Friday, July 3, 2015

High Court of Interest

All for freedom and for pleasure
Nothing ever lasts forever
Everybody wants to rule the world
--Tears for Fears

Captures the current situation well.

In our government framework, the last bastion against arbitrary rule under the principle of judicial review is the Supreme Court. Even if the executive and legislative branches fail to uphold their constitutional oaths, a high court that adheres to the rule of law protects liberty.

Of course, that is not what we have. As demonstrated by the SCOTUScare decision last week, we have an interested court willing to facilitate, rather than check, discretionary rule.

The last paragraph of Justice Scalia's dissenting opinion summarizes the predicament (p. 21):

"Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court's two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation that they have performed ("penalty" means tax, "further [Medicaid] payments to the State" means only incremental Medicaid payments to the State, "established by the State" means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites."

175 years ago, Abel Parker Upshur wrote that an interested court would be the icing on the cake in destroying the system of checks and balances that protect liberty. He and the AntiFeds were spot on.

Thursday, July 2, 2015


Standing in line, marking time
Waiting for the welfare dime
'Cause they can't buy a job
--Bruce Hornsby & The Range

Today's headline employment numbers once again betray the true state of the job market. Driven in part by the mandates of Obamacare, full time positions continue to leave the system in favor of part time work.

Number of people not in the work force hit a record 93.6 million. The labor force participation rate is estimated at 62.6%, a level not seen since 1977.

Civilian employment to population ratio now stands at 59.3%.

Less people working. Those who are working are engaged in less productive activity. Less production to support a burgeoning welfare state.

This the Grecian Formula. It is also a predictable outcome of all socialistic designs.

Wednesday, July 1, 2015

New Deal Settlement

Crapgame: Then make a deal.
Big Joe: What kind of a deal?
Crapgame: A DEAL deal!
--Kelly's Heroes

In a previous post, we observed that rate of decline in protection of liberty by the judicial branch has been increasing since FDR was able to pack the Supreme Court to his liking. This period marks what is sometimes called the New Deal Settlement.

Prior to the New Deal Settlement, the high court frequently limited Congressional authority related to, for example, the Commerce clause or the Necessary and Proper clause, on constitutional grounds. Primary tools for doing so included the Fifth and Fourteenth Amendments. For instance, the Due Process and Equal Protection clauses were employed to prohibit arbitrary restrictions on liberty and equality under the law.

Under the New Deal Settlement, the high court stopped enforcing these limits. New tools of judicial sophistry, such as the rational basis test, were developed to justify nearly all infringements on liberty that other branches saw fit to bring.

Based on recent rulings such as the gay marriage case, some observers wonder whether terms of the New Deal Settlement may be weakening.

Proponents of liberty certainly hope so.

Tuesday, June 30, 2015

National Concealed Carry

There's a battle ahead
Many battles are lost
But you'll never see the end of the road
While you're traveling with me
--Crowded House

Is a logical extension of last week's gay marriage ruling the reciprocal recognition of concealed carry permits across the states? Some commentators think so.

After all, states have taken upon themselves to issue licenses to legalize the carrying of a firearm under cover. Failure to recognize these licenses from one state to the next appears to violate the Equal Protection clause.

Unlike the gay marriage ruling, however, there is a legitimate Due Process argument here as well. Carrying firearms for personal protection is not a privilege granted by government, but a natural right, one deemed so noteworthy as to be enumerated in the Bill of Rights. If an Ohio resident with a concealed carry permit can be arrested in Illinois simply for carrying a firearm without an Illinois-issued license, then that person is being denied a basic right.

The anology would be for Illinois to make same sex couples subject to arrest for living together (co-habitation is also a natural right) in that state.

Current concealed carry laws violate the Fourteenth Amendment in more than one way.

Monday, June 29, 2015

Game On?

She's got a heart of gold
She'd never let me down
But you're the one who always turns me on
You keep me coming 'round
--Bryan Adams

Not sure. Early attempts to jam them higher failed and domestic markets sank all day, closing on the lows. The SPX lost about 2% and now sits on its 200 moving avg.

Banks lost a bit more and dropped out of the channel that defined their recent melt-up.

Ugliest chart belongs to the Trannies that have now decisively broken down thru near term support. Perhaps other markets are now moving to close the divergence.

Technically, then, most damage is limited to the shortest of time frames. Which, of course, is what one should expect from a single 2% down day in a generally uptrending market.

On the other hand, markets have been stick saved by central banks et al so many times in these situations that it is hard to imagine a context pregnant with more moral hazard. Risk seems higher here than many market participants may realize.

position in SPX

Acropolis Now

Phil Connors: I've been stabbed, shot, poisoned, frozen, hung, electrocuted, and burned.
Rita Hanson: Oh, really?
Phil Connors: And every morning I wake up without a scratch on me. Not a dent in the fender. I am an immortal.
--Groundhog Day

Over the weekend, Greece announced capital controls, including shutting its banks and stock market, after failing to reach a debt deal with the EU. Foreign markets have had sizeable negative reactions although the downside movement thus far stateside has been muted.

It remains to be seen whether we are once again being treated to a preview, or whether the full length feature is about to unfold.

Sunday, June 28, 2015

Gay Marriage

Matthew Harrison Brady: We must not abandon faith. Faith is the most important thing!
Henry Drummond: Then why did God plague us with the ability to think? Mr Brady, why do you deny the one faculty of man that raises him above the other creatures of the earth? The power of his brain to reason. 
--Inherit the Wind

Someone seeking an example of how convoluted legal thought has become in the land's highest court need look no further than the recent Obergefell v. Hodges ruling on gay marriage. Convoluted logic in the majority opinion underwritten by Justice Kennedy is only trumped by even more convoluted logic in dissenting opinions authored by four other justices.

Many pages of analysis have and will be generated on this ruling. One that I found particularly insightful is here. In this post, I want to discuss what I believe to be the proper basis for the ruling.

At its heart, marriage is co-habitation. Two people living together in voluntary union. Co-habitation, one aspect of freedom of association, is a natural right--a dimension of liberty endowed by our Creator. It is with us at birth as a function of our humanity. It is unalienable, meaning that no one can justly take away the right of co-habitation, whether that union is between members of the opposite sex or same sex.

Over time, and for various reasons including economic ones, the construct of marriage has evolved. One aspect that has developed is a social one where the union between two people is recognized as legitimate by others. However, this social recognition is not a right to those in voluntary union. Married people cannot force others to recognize their union.

If this was the issue in Obergefell--that gay couples were seeking to force others in society to respect their union--then the plaintiffs have no case. They cannot force their beliefs onto others.

But that is not the issue here. Unfortunately, others in the past have successfully forced their definition of marriage on others. They have done this by getting state governments to pass laws declaring that only a certain type of co-habitation arrangement, that between man and woman, will be legally recognized.

It is important to note that contemporary legal recognition of marriage does not preclude same sex unions. It does not make it illegal for gay couples to live together. Laws outlawing gay marriage would be outright violations of natural law.

What legal recognition of a particular union does do in the current system is confer particular benefits to couples who are deemed legally married by a state. Some of the benefits listed by Justice Kennedy in his opinion include (p.17) favorable treatment related to taxes, inheritance, health care access, government certificate making, and worker's compensation. Moreover, Kennedy notes that "valid marriage under state law is also a significant status for over a thousand provisions of federal law." Consequently, states have placed the institution of marriage "at the center of so many facets of the legal and social order."

Of all dissenting justices, only Justice Thomas acknowledged this. By failing to legally recognize marriage among same sex couples, "the States have refused to grant them governmental entitlements." (p. 10).

Therein lies the basis for the ruling. Primarily through democratic process, people have used the strong arm of government to force their definition of marriage on others. Along with this legal status has followed a set of government-granted entitlements to those couples who meet the legal definition.

Under the Equal Protection clause of the Fourteenth Amendment, there can be no discrimination when it comes to government-granted entitlements. If people put government into the marriage contract business and confer privileges based on marital status, then both same and opposite sex unions are entitled to those benefits.

Why government is involved in marriage in the first place, and why unmarried people aren't privileged to the same treatment as married people are both excellent questions, but they aren't central to the immediate case.

Kennedy et al also claim that there is a due process issue here, as a fundamental right to marriage has been denied some individuals (p. 10). This would be true if marriage was defined only in terms of co-habitation, and laws had been passed that prohibit voluntary union among gays. But that is not the contemporary construction of marriage considered in this case. Instead, marriage is a legal status and benefit package conferred by government. It is erroneous and misleading to label marriage in this sense as a right because it is not a liberty grounded in natural rights. The contemporary legal construction of marriage imposes obligations, such as increased tax burdens, on those who are not married.

Under the current legal arrangement, marriage is an entitlement. Refusing to grant legally married status to a union because of sexual orientation is clearly discriminatory. As such, gay marriage must be legally recognized by all states under the Equal Protection Clause so that associated government-sponsored benefits can be equally distributed.

Saturday, June 27, 2015

Roberts Doctrine

"I think that when statesmen forsake their own private conscience for the sake of their public duties, they lead their country by a short route to chaos."
--Sir Thomas More (A Man For All Seasons)

SCOTUScare is now an appropriate label for the Affordable Care Act as a majority of the high court headed by Chief Justice John Roberts has rewritten law as if the judges were serving at the pleasure of the executive branch.

The Roberts Doctrine, as George Will characterizes it, includes a judicial function that modifies laws in ways the court believes would make them perform better than they would as written by Congress. Consequently, rather than serving as a check on congressional and executive power, the court works in tandem with the other branches as legal consultants of sorts.

Progressives who are end zone dancing around the King ruling might do well to consider the implications of this development relative to future periods when other factions rule the day.

To be sure, our judiciary system designed under the assumption that it constitutes a the primary line of defense in protecting liberty against discretionary rule as been deteriorating for years--particularly since FDR was able to reconfigure the court to his liking.

However, with the court now editing legislation firsthand for the other branches, the Roberts Doctrine promises to take loss of liberty to a new level.

Of course, some saw this coming many years ago.

Friday, June 26, 2015


I'll pick up my guitar and play
Just like yesterday
And I'll get on my knees and pray
We won't get fooled again
--The Who

The primary goal of judicial process is arriving at and acting on the truth. Sometimes this does not occur. The process may be erroneous or incomplete which prohibits the truth from being obtained. Even if obtained, the truth may not be acted on due to either intentional or incompetent misbehavior.

In high courts, responsibility for arriving at and acting on the truth lies with a judge or panel of judges. A jury does not process evidence and render decision. Instead, it is the bench's duty to obtain the truth.

An institution that permits outsiders to evaluate the extent to which judges have upheld this responsibility when rendering decisions is the written opinion. High courts must explain their rationale in writing. If some judges dissent from majority opinion, then they are invited to put their counterarguments in writing.

As long as this institution remains, anyone can evaluate the extent to which judges have arrived at the truth when making decisions. The is because written opinions lay bare judicial reasoning. They expose errors in thought process and possibilities of judicial interest rather than disinterest. No amount of sophistry can obscure incomplete or erroneous judgment when a reasoning mind carefully examines written judicial opinion. As such, judges who fail to arrive at or act on truth have nowhere to hide when they write their arguments down. They can only hope that onlookers do not scrutinize their work.

By analyzing both the affirming and dissenting opinions in King v. Burwell, we can conclude that the majority of the Supreme Court has once again abdicated its truth-seeking process regarding the Affordable Care Act. Similar to his affirming opinion written three years ago, Chief Justice Roberts displays tortured rationale to justify why, under section 36 of the Act, health insurance sold on an "Exchange established by the State" actually means "Exchange established by the State the Federal Government."

In defense of his decision, Roberts offers various arguments involving the statute's context, design and purpose, and "inartful drafting." He also suggests that the decision is consistent with the principle of judicial restraint. His arguments are weak and at times preposterous, as demonstrated by the ease with which each of them is excoriated by dissenting Justice Scalia.

For example, with respect to the argument that the majority of the court is practicing judicial restraint in this case, it is easy to see that they are engaging in just the opposite--judicial activism. The court is rewriting the law by adding words that do not appear in the statute. As Scalia (p. 20) observes, the court's revision authorizes the IRS to collect billion$ in taxes on federal exchanges, it changes insurance prices for millions of Americans, reduces state participation in implementing the ACA, and expands the reach of the law's individual mandate.

A straightforward and wholly appropriate response consistent with judicial restraint would have been to send the law back to Congress so that it can hammer out the problems with the current statue. The legislative branch would thus be doing what it is supposed to do: write clear law--which by the Roberts majority's own admission the current statute is not.

It is easy to conclude that, similar to the case three years ago, Roberts is grasping at straws because he is interested. He wants the law to 'work' and he is willing to sacrifice the truth in doing so.

Near the end of his dissent, Scalia (p. 21) concludes as much, suggesting that because the majority of the court is rewriting law, effectively working in tandem with other branches of government rather than providing a constitutional check, in order for the health care program to work out as they hope, "We should start calling this law SCOTUScare."

Once again, the highest court in the land demonstrates how truth can been subjugated in favor of interest.

Thursday, June 25, 2015

Protecting Hatred

"My old man was so full of hate that he didn't know that bein' poor was what was killin' him."
--Agent Rupert Anderson (Mississippi Burning)

In both his recent essay and subsequent conversation with Jon Stewart, Judge Nap explains how protecting hatred preserves freedom. The context is the Confederate flag. The flag has garnered attention because a gunman who killed nine people in Charleston last week identified with it. Because the Confederate flag flies over the South Carolina state house, some people view this as the state's tacit endorsement of what appears to be a racially motivated shooting.

To many people, the Confederate flag constitutes a symbol of hatred as reflected by the practice of Southern slavery and bigotry. As such, these people believe that this symbol needs to go. However, other people view it differently. To them the flag symbolizes states rights, self-determination, independence. As with many symbols, the flag takes on multiple meanings. The wise person sees them all.

But regardless of what meaning the government of South Carolina (or any other government for that matter) might assign to the Confederate flag, the state has no business flying it.

This is because government does not enjoy the same freedom of speech naturally endowed to each of us as individuals. If government was free to endorse an opinion, then it could employ its virtual monopoly of force to coerce others to abide by it. The entire purpose of the First Amendment is to keep government out of the business of speech.

The correct thing to do is for the state of South Carolina to remove the flag from public grounds. Similarly, governments at all levels in the United States should retract all opinion, and processes that produce it, from its operations. For example, government should not recognize individuals deemed to be noteworthy achievers, promote a particular diet,  or opine about economic affairs. Only government speech that can be construed as universally accepted, such as the American flag, or absolutely necessary for governance, such as speed limits, should be retained. That even those issues can be seen as contestable demonstrates just how little speech government should engage in.

On the other hand, the First Amendment guarantees our unalienable right to thought, expression, and association. It bars government from interfering with a person's expressions or associations except when necessary to prevent immediate physical aggression when there is no time for more expression to do so first.

As the Judge noted in his discussion with Jon Stewart, there is no right not to be offended. This means that government can not interfere with speech or associations that some people might find offensive or distasteful. In the case of the Confederate flag, this means that government cannot pass laws to ban its general use or trade. When government is on the receiving end of distasteful speech, it may never, consistent with the First Amendment, interfere with thought or expressions because it fears or despises the views reflected by those speaking.

Hatred, therefore, is a protected mode of thought and expression in a free society. It may provide the basis for association. Groups may form based on hate. If the group expresses a willingness to use violence, then that expression is not criminal in itself. It is only the manifestation of hatred in actual aggression that may be prosecuted.

As Judge Nap observes, a remedy for hatred is reason. Human hatred is always unreasonable. It often errors by connecting traits such as physical characteristics to sweeping behavioral generalizations. Hatred provides a dark place of comfort for weak minds.

The challenge of those on the receiving end of hate is not to hate back--which includes not to recruit the strong arm of government to suppress the hate. Instead, we are free to not take the hate of others personally. We are free to respond peacefully with reason, compassion, and love.