Friday, May 31, 2013

McQuiggin v. Perkins: Good news for prisoners seeking to prove their innocence

In the recently decided case of McQuiggin v. Perkins, the conservatives on the Supreme Court continue their struggle against the most powerless people in our society, those who have been convicted of a crime. Justice Scalia, in his written dissent, once again claims special knowledge of the U. S. Constitution, which, he tells the court, does not permit the Supreme Court to make changes to laws, only to opinions of other judges. The part where the Constitution forbids the Supreme Court from modifying laws, according to Scalia, states “All legislative Powers herein granted shall be vested in a Congress of the United States...”. That seems to be a straightforward statement, but it has been interpreted differently by different jurists.

Chief Justice John Marshall, in Marbury v. Madison (1801), decided that the Judiciary Act of 1801 was unconstitutional and voided the entire bill. The Act was passed by the Congress, but the Supreme Court nullified it. This is undoubtedly legislating, by deciding which laws may be implemented and which may not. So the Supreme Court has been legislating from the very beginning of the republic.

The framers did not intend for judges and legislators to become quasi theologists using the Constitution as holy writ. Today, the text of the Constitution is held in such reverence by some Supreme Court Justices that they relate almost every case directly to the Constitution, whether or not the Constitution has any relevance to the case. Scalia has assumed the mantle of soothsayer, since he interprets the Constitution and expects others to be guided by his interpretation. When he says that Judges are forbidden by the Constitution to legislate, he splits some very fine hairs about what constitutes legislation and what doesn't.

Scalia also continues his crusade against what he considers a blasphemous decision, Brown v. Allen (1953). In Brown, the Court decided that a writ of habeas corpus could be granted not just on procedural grounds, but also on substantive grounds. Scalia refers to this decision as a Faustian bargain, in other words, a deal with the devil. He goes on to complain that Brown has caused the courts to be inundated with requests from prisoners. Scalia has said that there is no such thing as substantive due process.

Whether substantive process exists and whether appeals should be granted on substantive grounds depends very much on your politics. Conservatives argue that the Constitution only guarantees you a statutory trial, but does not guarantee a fair trial. You got your trial, your lawyer bungled his job, and now you're sitting in a jail cell for 20 years. If you try to assert your innocence in court, Scalia writes, you are contributing to a flood of “stale, frivolous, and repetitious petitions”.

Looking at substantive grounds for a retrial, however, as the majority of the Court ruled in this case, gives an innocent person a chance to prove his innocence in court. Justice Ginsburg, in writing the opinion of the court, writes that a provable claim of innocence justifies the extension of the one-year limitation prescribed by law. The substantive finding of actual innocence, she says, outweighs the letter of the law, which would require the innocent as well as the guilty to be punished for failing to meet a deadline.

This finding drives Scalia mad. He says the law must be observed. In this uncompromising stance he is acting like the clerk who won't let you buy a pack of cigarettes after closing time. The store is closed, the chance for justice has vanished. Scalia and the clerk make the same excuse. “It's not my fault,” says the clerk. “Rules are rules.” But Scalia and the Supreme Court are not clerks at a seven-eleven. They are the highest jurists in the land, the last court of appeal. Scalia's opinion attests to his belief that innocent people should suffer to reduce the workload of the courts.

In his dissent, Scalia uses a metaphor that reveals just how removed he is from reality. You can't just add something to a law passed by the legislature, he says. “any more than one would add another gear to a Swiss watch on the theory that the watchmaker surely would have included it if he had thought of it. In both cases, the intricate craftsmanship tells us that the designer arranged things just as he wanted them.”

The problem with this metaphor is that the watchmaker of a Swiss watch is making an instrument that is guaranteed to work indefinitely. The watchmaker assures the buyer that all of his skill has gone into the making of this watch. A legislative body assures no such thing. The legislature presents the public with a law that is very often a compromise between two diametrically opposed schools of thought. Laws are frequently badly written, containing loopholes that skillful lawyers can use to negate their purpose. Sometimes laws fail in practice because the legislature designs the law to do something that cannot be done, such as lower taxes and balance the budget at the same time. Comparing congress to a Swiss watchmaker is like comparing God (who is infallible) to the committees that design how traffic flows in our big cities.

We all may wish that our Constitution and laws could be perfect, but most of us understand that they are not.

Monday, May 27, 2013

Peer Reviewed Articles are the Gold Standard of Scientific Discovery

The following comment appeared in an article on global warming on the NewsBusters site, a conservative blog.

The concept of "peer review" has been debunked even more than CAGW has. Those in the know now refer to it as "pal review."”

This comment is categorically false.

The NewsBusters article cited many climate skeptics giving interpretations of data they had collected. Criticizing peer reviewed articles is best performed by writing peer reviewed articles. But if you can't do that, at least don't criticize the entire scientific community and the ways they have discovered to transmit their findings that have build the extraordinary technologies we now possess.

Every scientist on the planet uses peer review as the gold standard of scientific proof. Energy companies do, too. Energy companies rely on the scientific expertise of their multitude of paid scientists  to find fossil fuel deposits, extract the contents, and create products from them. Without scientists, there would be no energy companies. Energy company scientists make decisions based on peer reviewed papers and repeatable experiments. The energy companies have complete faith in the scientists they employ.

But when other scientists (who are not paid by the energy companies) publish papers which the energy companies find detrimental to their interests, the energy companies (or front organizations they fund) attack those other scientists as conspirators and their peer reviewed articles as frauds. If the articles agree with energy company policies, the energy companies believe them. If the energy companies don't like the results of the articles, the companies attack the scientists who write them and, with them, the whole scientific world.

Climate change deniers can't have it both ways. They can't claim that peer reviews work for every other kind of science but have somehow inexplicably failed for climate science. If the climate change deniers have proof that can stand up to professional scrutiny, they should publish it in peer reviewed journals. But there is no such proof and there have been no such publications.

Peer reviewed articles are published so that anyone can refute their findings with new studies or with new interpretations of the same data. The energy companies have been unable to refute the findings of climatologists, although they have plenty of money to do so and have certainly tried.

The opinions listed in the NewsBusters article are not refutations of peer reviewed articles. They are ad hominem attacks on professional scientists. Such attacks could not be published in scientific journals, which demand proof, not innuendo or baseless rhetoric.

Global warming is real and it is harming us every day.

A New Bill of Rights for We the People

The current Bill of Rights concerned individual rights to be protected from the government. These rights were important at the time, when a war had recently been fought against the British monarchy. The American Revolution was a clash between those who believed that one class of people, the nobility, was superior to all others, and others who believed that there should be no perpetuated classses. This was the original meaning of the Declaration of Independence, when it declared that all men are created equal.

Authoritarian governments, like the English monarchy, recognized no rights among the people, only obligations. The people had the obligation to respect the sovereign, pay their taxes, and fight for him, if necessary. The American colonists objected to this view of their rights. Many of the colonies had been opposed to the English monarchy and nobility. They objected to the King's attempt to reclaim his full rights, especially the right to tax. The original Bill of Rights addressed the abuses of the monarchy.

Events that led to the American Revolution were imposition of taxes on Americans, who were not represented in the English parliament; reorganization or abolition of American governing bodies; quartering English soldiers in America for the purpose of maintaining a standing army, which could defend or control the colonists; and seizure of arms intended for militias.

Such were the events that still troubled the minds of the Framers of the Constitution in 1789. Such were the evils that the Bill of Rights was intended to combat. But these evils were shortly diminished or rendered harmless. Militias were replaced by a standing army. Representation was provided by a Congress elected every two years. The federal government has never reorganized a state government, except after a civil war. The standing army was never quartered on the populace. The amendments that refer to those ills are no longer relevant.

New ills have taken their place. First among these new ills is inequality between the wealthy and the poor, an inequality of opportunity and an inequality of power. The ills associated with industrialization are rampant: unemployment, dislocation, exploitation of labor, hunger. Corporations, monopolies, and cartels prey upon the people and control the government, the press, and the courts. New rights need to be guaranteed to counter these modern ills.

The starting point for the People's Bill of Rights is the Virginia Declaration of Rights, adopted by the Fifth Virginia Convention in June, 1776. This declaration of rights was echoed in the Declaration of Independence adopted at Philadelphia in the following month. The Virginia Declaration also influenced James Madison when he drew up the first 10 amendments to the U.S. Constitution.

People's Bill of Rights

I. All people are by nature equally free and independent, and have certain inherent rights, of which, when they enter into society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

This is the first article of the Virginia Declaration of Rights, here referred to as Mason's Declaration, except that the word “people” has been substituted for the word “men” in the first line. It was appropriated into the Declaration of Independence by Thomas Jefferson, with some important changes. Jefferson's Declaration states that man is endowed by his creator. Mason's Declaration requires no such divine entity. Jefferson's rights are inalienable; Mason's are inherent, and he describes precisely what Jefferson refers to as inalienable, that is, that the people cannot deprive their posterity of these rights by any compact. Jefferson mentions three inalienable rights, namely life, liberty and the pursuit of happiness. Mason defines these rights more succinctly as the enjoyment of life and liberty, and pusuing and obtaining happiness. Mason also adds to these the means of acquiring and possessing property, and the ability to pursue safety.

Dropping this article from the U.S. Bill of Rights has the effect of removing the guarantee of equality. Mason also makes clear that the government is us, not an entity that was created by us and then took on a life of its own. Mason makes the people themselves those who cannot deprive their posterity of these inherent rights. This distinction erases the artificial opposition of the government to the people.

This article also answers the question whether corporations are people: No, they are not. A corporation is an artificial association of people that does not exist in nature and therefore has no inherent natural rights. Corporations, like governments, are creations of the people and responsible to them.

II. All power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

This article describes the kind of government this is, namely a democracy, since all power is vested in and derived from the people. It also describes the relationship of the government to the people, namely that the government is their creation and its functionaries are servants of the people. In a monarchy, such as Great Britain at that time, all power arises from the monarch, who is responsible only to himself. The people in a monarchy become the servants of the monarch, who can make laws and raise taxes as he sees fit, without their consent. The people have the right to petition the monarch, but cannot force him to alter his course. Any attempt to argue with the monarch is considered treason and can be severely punished. This is why there is no freedom of speech or of the press in a monarchy.

The framers of the Constitution were republicans, that is, they designed a republican form of government. In this sort of government, the people elect representatives who make all their decisions for them. The people become the servants of their representatives, who have all the power. The people hold elections, but the same people tend to return to power again and again, becoming a de facto ruling class, who are out of touch with the people they are supposed to represent.

III. Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.
This article reinforces the supremacy of the people over their government while it describes the attributes of a true democracy. Mason makes clear he does not necessarily favor a republican form of government unless a republic is capable of producing the greatest degree of happiness and safety and is most effectually secured against maladministration. The framers designed a republic that was inflexible and incapable of providing for the happiness of the people. Instead, the current Constitution guarantees the happiness of it rulers and gives them the power to threaten the safety of all. The waging of endless war, as some of our representatives favor, does not lead to the safety of the people; rather, it leads to an erosion of the civil liberties inadequately guaranteed under it. Civil liberties are seriously violated when the government can throw people in prison and hold them indefinitely without a trial, as is currently the case under our Constitution.

Tuesday, May 21, 2013

Moore, OK: Where Taxes Are Low And Children Die In Tornadoes

By Holly and Allan Masri

In 1999, Moore, Oklahoma, was hit by a tornado that killed 36 people and registered the highest wind speeds ever recorded. Then yesterday, another massive tornado struck, killing twenty-four people, including nine children. At least seven of those children died at school.

Between 1999 and yesterday, the citizens and government of that town had 14 years to make their schools safe for their children.  You would think that the 36 deaths in 1999 might have been a wake-up call, that the survivors would say, "We must be better prepared, next time.  We must make sure our children, at least, have a shelter to go to".    But yesterday, children at both of the schools had no better shelter than hallways and closets.

Where were the underground shelters?  Where did the tax money go, the money that could have built shelters for those children?  Turns out, the wealthy people have it... because Oklahoma eliminated inheritance tax, and made sure that the wealthy people pay no more income tax than poor people.

Keith Mitchell, executive director of communication at Lawtown Public Schools, located 80 miles southwest of Moore, Oklahoma, told the New York Daily News that there are no specific guidelines from the state that mandate a certain type of storm construction like a fallout shelter.

 "It was left up to the school district to determine what structures to have," he said.

Since money obviously wasn't spent on the schools, who was responsible for that decision?  Here's one person:  U.S. Rep. Tom Cole, who lives in Moore.

According to Wikipedia, Rep. Cole's voting record "during his nine years in the House marks [him] as a solid conservative with occasional libertarian sympathies. Cole has consistently voted against positions supported by lobbies for senior citizens, labor unions, and teachers' unions."  

Cole said Tuesday on MSNBC TV that the school was the most secure and structurally strong building in the area.

"And so people did the right thing," he said, "but if you're in front of an F4 or an F5 there is no good thing to do if you're above ground.  It's just so tragic."

"Tragic" doesn't begin to cover it.  But WHY were people above ground, Mr. Cole?  Why were there no adequate shelters at Plaza Towers Elementary, or at Briarwood?  Why did seven children drown in a basement?

Undoubtedly Rep. Cole and the wealthy people he works for are enjoying the blood money they saved because they refused to make safe refuges for the children of Moore. Perhaps they are even toasting each other with expensive champagne right now, congratulating each other on how little they pay to the government.  And all the dead, and wounded, of Moore?  Expendable.  (Big sigh)..."It's just so tragic."

Every day we hear from the Tea Party and their ilk that government spends too much, collects too much in taxes, and wastes our money.  But Mr. Cole, what better use for money could there be, than to keep our children alive?  A little tax money spent on underground shelters in Moore would not be wasted.

Keep Keystone XL on the Drawing Board

On Sunday, May 19, an OpEd appeared in the Washington Post on the subject of the Keystone Pipeline. Lamar Smith, a Republican and chairman of the House Committee on Science, Space, and Technology submitted the article, but it was most likely written by a lobbyist for the oil industry. It presents the industry's best arguments for constructing the Keystone XL (KXL) pipeline. These arguments should convince no one.

Smith makes the argument that KXL will create 40,000 jobs, but previous estimates have yielded a figure of 20,000 jobs. The project will cost $7 billion. This means each job will cost about $350 thousand. These are only temporary jobs. The 20,000 figure is the total number of jobs created in one year. The pipeline will actually take 4 years and the jobs will be spread out over that time period, so a more accurate estimate would be 5,000 jobs for 4 years. After four years, the pipeline will be maintained and operated by 35 people, so 35 permanent jobs will be created by $7 billion.

The figure of $350 thousand per job may seem high, but that figure is the same as was calculated by a 2009 University of Massachusetts study for oil and gas industry job creation. The study projected that $1 million spent in the oil and gas industry creates less than 3 jobs.

There are better ways to create jobs. The U Mass study compares jobs in the oil and gas industry to jobs in clean energy industries. The same $7 billion, if invested in wind production would create 66,000 jobs. Similar results, yielding many more jobs, hold true for investments in solar and biomass industries. The best way to create jobs in clean industries is by investing in mass transit rail. The same amount of money invested in rapid transit would yield 111,000 jobs. Small wonder that pro-oil industry politicians like Rick Scott of Florida have cancelled rapid transit projects. The results of rapid transit take profits from the oil industry and create thousands of new jobs as well.

The oil companies could better spend their money in numerous other ways if they truly want to create jobs. But the oil companies do not want to create jobs. They want to create profits for themselves. So any talk of job creation is pure propaganda for public consumption. If the oil companies actually wanted to create jobs, they would spend their money elsewhere.

Smith's article claims that the environmental effects of KXL would be minimal. He bases his estimates on a flawed State Department study. This study discounts any environmental damage from the pipeline itself because the study assumes the oil from the tar sands will get into the environment anyway, through some other means of transportation. This logic is flawed because KXL can be stopped and the other means of transportation can also be stopped. Furthermore, a similar investment in wind, solar, or biomass projects would help clean up the environment instead of worsening it.

The State Department study also discounts pollution effects on communities where this tar sands oil will be refined. The study says that those pollution effects shouldn't be considered because those communities are already polluted, so, in effect, a little more pollution won't hurt. This theory assumes the health of the people in these communities doesn't matter. Their health will get worse after KXL is complete, but it's already bad, so that won't matter.

Investment in clean energy technology would improve the health of communities that are currently suffering the ill effects of fossil-fuel pollution. The State department argues that KXL would make them only a little worse. That cannot be considered an argument for the project. It must be considered a strong argument against it.

Perhaps the strongest argument against KXL is that it absolutely will cause severe environmental damage in the areas it passes through. Serious oil spills from pipeline are inevitable. Small spills happen nearly every day. Tar sands oil is heavier than other oils. It is more difficult and costly to clean up. In 2010, for example, 20,000 gallons of tar sands oil spilled into the Kalamazoo river system in Michigan. As of this date, 3 years later, the cleanup is not finished and the total cost of cleanup can only be estimated at between $175 and $800 million. The potential cost of cleanups like this one has not been factored into the cost of KXL. The cost is now estimated at $7 billion, but a single spill could make the cost $8 billion or more. The number of jobs created should include those jobs necessary for cleaning up large oil spills that will inevitably occur. The oil industry would not like to see those figures published, however.

Smith's article argues that global warming has stopped. Nearly every climate scientist in the world agrees with this statement, and the scientists are the people who have gathered the data that Smith cites. It makes no sense to take data from these scientists while at the same time denying the interpretation of the data that these scientists have made. These scientists have dedicated their whole lives to studying our climate. Their opinions should not be discarded without direct proof, which can only be provided by the climate scientists themselves, because no one else in the world is qualified to evaluate their data.

Smith has argued both ways on this issue. He argues that the damage to global warming by increased CO2 concentration will be small. He also argues that there is no global warming. This paradox occurs because the State Department report is aimed at an educated audience that understands the dangers of global, while Smith's supporters have been so overwhelmed by fossil-fuel industry propaganda that they don't believe the scientists we employ to protect us. 

Smith contends that U.S. emissions contribute very little to global greenhouse gas concentrations. He says that the U.S. cut CO2 emissions by 12 percent between 2005 and 2012. This is not an argument for KXL, however, which will supply the rest of the world with oil to keep on increasing their omissions. If the rest of the world is increasing CO2 emissions, that is a good argument for the U.S. to stop selling them gasoline.

There is no valid argument for building the KXL pipeline, other than giving profits to oil companies. KXL will create new jobs, but not as many as similar projects in other, clean energy projects. It will pump greenhouse gases into the environment. It will pollute rivers and ground water in the communities through which it passes.

The oil and gas companies are profiting hugely from activities that are harmful to the entire planet. They cannot argue that their profits are good for the economy if those same profits damage the environment. Their argument, taken to its ultimate conclusion, is that we will all die with our pockets stuffed with money. But we will all be dead.

Nature has found the best place to store fossil fuels. It is in the ground now and it should remain there.

Saturday, May 18, 2013

Unholy Alliance: Revising the Alien Tort Statute

There is an unholy alliance between corporations and American courts. Corporations do not influence the courts through elections. Instead, they rely on propaganda to create a pro-corporate mindset. The judges internalize this propaganda and usually rule in favor of corporations. In general, they believe that what's good for business is good for the country.

A recent disaster at a clothing factory in Bangladesh has crystallized the issue. A fire broke out in a factory and killed 117 people. Numerous foreign companies, including Walmart and the Gap, used the factory and others like it to make their clothing. The fire safety certification, awarded by the fire authorities in Daka, had expired in June 2012 and was not renewed. The authorities noted that the building had a permit for five stories but the owner had built eight and was adding a ninth when the building collapsed.

The government of Bangladesh has arrested the owner of the building. They may have difficulty convicting him of a crime, however. The investigation following a 2006 fire in Chittagong, Bangladesh, did not lead to a trial, despite discovering numerous violations of safety regulations. The question remains whether Walmart and the other foreign corporations involved with the building will receive any punishment for their part in the crime.

Walmart has recently warned its suppliers not to buy merchandise from subcontractors who have not been authorized by the contractor. Walmart's actions reveal that the company would like to avoid liability in any future disasters. This new, somewhat belated, safety campaign does not exonerate Walmart, however. The Bangladesh government has proven incapable of regulating its garment industry. Walmart knew or should have known about government incompetence before the fire in question, since there have been many such fires, including the one in Chittagong where more than 50 people died.

There is an American law, the Alien Tort Statute (ATS), that might have been used by victims of the Bangladesh fire to sue Walmart in American courts. The Supreme Court has been whittling down ATS to make it less comprehensive. In the past, victims of torture in foreign countries have sued individual torturers and won in American court. When victims of corporate criminal conduct began using the law, the Supreme Court changed directions to protect the corporations.

Once they had decided to shield the corporations from civil suits, the Supreme Court discovered, what they had apparently missed in earlier cases, that the Alien Tort Statute did not support “extraterritoriality”, that it could not be applied to crimes committed in other countries. In Sosa v. Alvarez-Machain (2004), the court determined that the Law of Nations, which ATS was intended to enforce, does not include corporate liability.

This theory is nonsense. ATS was passed in 1789. The law of nations has since transformed itself into international law, which does indeed have laws that apply to corporations, including criminal statutes against homicide. What ATS did was to give the victim a chance to recover damages in civil court. By ruling that the law of nations, which is no longer a current legal term, does not include corporate liability, the Supreme Court achieves the purpose of shielding corporations from wrongdoing abroad.i

Since Sosa, the Supreme Court has gone further to discover that ATS does not apply anywhere outside the United States, effectively castrating it as a tool for individuals to recover damages against corporations.ii We the People can take steps to rectify this injustice by changing the law, but it will not be easy, considering that corporations contribute heavily to the campaigns of our lawmakers, some of whom appear to believe that what's good for the corporations is good for the U.S. Such a law would merely amend the Alien Tort Statute to replace the phrase “Law of Nations” with the phrase “established international law”. Furthermore, the new ATS could state that it applies equally to individuals and corporations. Finally, the new ATS could state specifically that the law applied in any nation where an injustice may have occurred.
i In this instance, corporations have more rights than individual persons, since international law in no way can be considered to exempt persons from its statutes, yet the Supreme Court has discovered that the law of nations does not apply to corporations. This inconsistent treatment of corporations is a proof that the unholy alliance exists and has consequences in the real world.

Friday, May 17, 2013

Unholy Alliance: South Carolina Politicians Suppress Report on the Environment

South Carolina's coastline is rapidly eroding, due to the rising sea level and other effects of global warming. The government of South Carolina should be planning for the changes and budgeting state money to counteract them.

The South Carolina state government, firmly under control of Tea Party climate change deniers, is not preparing for those changes. Instead, it decided not to release a three-year scientific study on what changes have already occurred and what changes are likely in the future.

The study had been compiled by the South Carolina Department of Natural Resources (DNR) under the leadership of its Director, John Frampton. Tea Party darling, Governor Nikki Haley, appointed Caroline Rhodes to chair the board regulating the DNR. Rhodes, in turn, forced Frampton out of his job and replaced him with Alvin Taylor, who explained the suppression of the report on global warming with the ominous words, “priorities have changed”.

Rhodes, a small business owner with no government experience, has been forced to step down as Chairman of the DNR for lying to the SC legislature about her part in Frampton's departure. The DNR has now agreed to release the report.

The global warming crisis has hit hard along the Atlantic coast. Suppression of a report like this in South Carolina is only a minor problem. The real problem is that the government of South Carolina won't be paying attention to the report anyway. They have no plans to combat global warming, but will only react to each event as it happens.

The global warming report contains a list of consequences of global warming for South Carolina's coast. Rising sea levels, salt water intrusion into ground water, disappearing islands, appearance of new exotic species: These are only a few of the items listed in the report. South Carolina needs to decide whether to preserve the sea turtle hatcheries along the coast. If the people want to save the turtles and other endangered species, they need to act now.

It would help them to act if they had a report outlining in detail what they must prepare for.

Sunday, May 12, 2013

Our Decrepit Constitution: Remedies (Part Two)

6. Give the President More Domestic Power

The Founders persuaded the colonists to support the revolution by blaming a long list of problems on the King of England. They included this list in the Declaration of Independence. The Declaration also served—pehaps primarily—as a notice to the countries of Europe that the colonies wanted a new country, not reconciliation with the King. The colonists fought against the King and were not likely to accept a new monarch in his place.

The Articles of Confederation lacked a strong executive authority, which was seen as a major weakness. So the new Constitution had to describe a middle road. The office of the Presidency was a compromise between the power of a monarch and the limited authority of an administrator appointed by the Congress.

The President at first glance appears impressive. But the President does not propose a budget; only the House of Representatives can introduce spending measures. The President can appoint his cabinet, but they must be approved by the Senate. The President can negotiate and sign treaties with foreign nations, but the Senate must approve them before they go into effect. Likewise, the President appoints judges, but the Senate approves them.

This situation has lasted for two hundred years. At the beginning, when there was mutual respect between Congress and President, the system worked fairly well. As time went by, it worked less and less well. Today, Congress sees its approval as conditional on concessions from the executive branch, or simply as a way to attack the President.

It is absolutely impossible to imagine a corporation operating successfully under similar restrictions. The CEO appoints subordinate executives without any interference from the Board of Directors. The CEO proposes plans for the Board to approve, but once the plan is agreed upon, the CEO may implement the plan in any manner he or she sees fit. The President should have similar powers.

In line with their limited powers under the new system, the Senate may have veto power over presidential appointments, but only for 60 days. After that waiting period, the appointment becomes official.

7. Impeachment should be abolished

When it came time to establish procedures for removing a President from office, the Framers adopted a complex set of rules for impeachment, modeled after the British Parliament's impeachment procedures. In recent years, other procedures have been substituted for impeachment. The House or Senate may expel a member without any complex, quasi-judicial process. There is no reason to continue using this creaky, 18th century artifact, except that it can be used to completely stymie the political program of a president, as happened in President Clinton's second term. That alone is a reason to abandon the process, not to preserve it.

The last impeachment proceedings held in the Congress, against William Clinton, were entirely political in nature. The Republican House indicted Clinton with only five democratic representatives voting to impeach. The Republican Senate voted to convict Clinton with none of the democratic senators joining the Republicans.

The impreachment of President Clinton was a direct result of a Supreme Court ruling that Paula Jones could bring a charge against him in a civil court because there was little likelihood that he would be hindered in his duties as president while answering the civil suit (Clinton v. Jones, 1997). The Supreme Court was unanimous in this decision and they were completely wrong. Clinton spent much of the rest of his term as president embroiled in the Paula Jones case and the impreachment that followed.

After the National Initiative Amendment is passed, the Constitution may substitute a much simpler procedure involving a recall election. The House may vote for a recall by a two-thirds majority to place the recall on a special election ballot. The election must be held within 30 days to avoid any undue delay. If the President loses the recall election, he is immediately removed from office and the Vice President assumes his duties.

8. Sign International Treaties and Remove Exceptions

American Exceptionalism is a theory that regards the U.S. as a special nation. The idea has become part of conservative dogma since the 1980s. Ronald Reagan introduced the concept, if not the name, in a speech delivered to the first Conservative Political Action Committee. Reagan claimed he had a mystical revelation that America was part of a divine plan that involved men who believed in freedom and had a special kind of courage. 

Reagan backed up his mystical belief in that speech with a number of examples drawn from history, particularly the history of the founding fathers. Most of his examples were entirely false, but Reagan connected with the conservative movement with his folksy charm and his Hollywood-inflected view of the world and world history. 

Since the 1980s, the U.S. has withdrawn more and more from the family of nations. It has failed to sign treaties that offered cooperation on war and peace, the climate crisis, and the law of the sea. While President George H. W. Bush conducted an attack on Iraq with a broad coalition of nations under the auspices of the United Nations, his son rejected the advice of the U.N., instead attacking Iraq with a small coalition of U.S. allies. This action violated the United Nations Charter by carrying out an aggressive war that did not respond to a threat against our nation. 

Bush appointed an ambassador to the U.N. who stated that there was no United Nations, that the U.S. was the only real power in the world and that sometimes the U.S. could persuade other countries to follow its lead. This is an expression of American exceptionalism that few countries in the world could accept.

As a result of this quasi-religious belief in American exceptionalism,
the U.S. Senate has repeatedly failed to ratify treaties intended to increase cooperation between the countries of the world. Instead of leading the rest of the world, the U.S. has pursued its own interests in despite of any other country's opinions.

The Supreme Court has fallen in line with this belief. Its conservative members refuse to consider any court rulings from outside the U.S. as persuasive. This position is insulting to jurists in other countries, especially those who have been working for world peace and cooperation. Rulings of the Supreme Court have also reduced the reach of the Alien Tort Statute, further eroding any possibility of legal remedies for victims of injustice overseas.

We the people must curtail the power of the Senate to block implementation of treaties which the executive branch has negotiated and agreed to. These treaties could be approved by initiative and referendum, but that process is time-consuming and unnecessary. The Senate should have the power to block treaties for one year only. After one year, if the Senate hasn't approved a treaty, it should go into effect automatically.

9. Incorporate the International Declaration of the Rights of Man into our Constitution

The U.S. helped form the United Nations after World War II. We were then the world leaders calling other nations to move toward a peaceful world. In recent years, due in part to the theory of American Exceptionalism, we have moved away from a vision of the world which was ours. We the People should reclaim this vision.

The Framers believed that the Bill of Rights guaranteed all the rights that government should be concerned with. Their vision of the world did not extend farther than that. At that moment in time, the Bill of Rights was a laudable achievement. But we no longer stand at that moment in time.

Americans believed in 1945 that they possessed all the virtues in the world, since their armies had just defeated the alliance that embodied all the evils in the world. Sixty years later, we know better. We have seen our own country commit unspeakable crimes, bomb defenseless civilian populations, torture captives, imprison captured enemy soldiers indefinitely without trial. We can have only two reactions to these crimes: We can embrace a theory that defines them as virtues, since the country that committed them is ordained by God to be the savior of the world; or we can atone for our errors by becoming the world leader for peace and prosperity that we once were and can be again.

Sunday, May 5, 2013

Heavy Trousers: Tales from an Electrical Apprenticeship

Two weeks ago, I noticed a new pain and tightness running down the center of my lower back. The low back pain was freaking me out because I couldn't pinpoint what was causing it. Last year, when I was seriously contemplating this career move, physical agility was - and still is - the forefront of my concerns. My body is now my most valuable tool and I can't afford to injure it or mistreat it! I love working for an electrical shop who places a high priority on our morning stretch and flex routines. Yet I have let my personal maintenance slide. Our 10 hour work days have pulled me away from my typical gym and swimming routines: I'm simply too worn out by the end of the day to be as attentive as I was when working our standard eight hour days, and each day does not necessarily bring the exercise my body needs. I'm still getting about an hour's worth of cardio and stretching work out (outside of work) three times a week. This back pain is a warning sign I will not ignore.

A couple days ago, while placing my favorite tools into my pants pockets, I had an "aha!" muscle twinge. The culprit seemed to be heavy trousers! The weight of the tools plus the weight of my belt and heavy canvas pants don't amount to much: maybe six to nine pounds. But the way my pants land around my waist, compounded by the long days and long weeks, turns out to be a cumulative problem for my back. Both this electrical contractor and the one I worked with before are "no tool belt" kinds of shops. We each get our own cart and use these as our work stations. Most of the electricians (and even the other trades around us) are adamant about wearing suspenders with their tool belts - if they use tool belts at all. And now I'm understanding the consequences of having weight around the waist with no secondary support. I'm guessing seasoned/frequent scuba divers, who wear their weight belts around their waists, might have similar issues despite the buoyancy and support they get in the water.

I've invested in my first pair of overalls and until the back pain resolves itself, I'm carrying NO tools in my pockets. So far, this seems to be doing the trick. My crew thinks it's funny to make kangaroo and farm-girl jokes at me now: and it's all in the spirit of camaraderie. I love these new overalls so far and I'm especially grateful at how the wardrobe requirements of this new career are much more practical (and less expensive) than the typical office job.

I am carving out the time to get back to a physical workout routine, despite the long days. This Pocket Yoga App helps me work through my inner excuse dialogue. And on the days where I don't need to be somewhere directly after work, I pack my gym bag and hit my closest gym: this helps me avoid the gnarly traffic, too. I admit: I'm ashamed when I catch myself having harsh judgemental thoughts when I see my extremely out of shape brothers in the field. How on earth do these guys do it? They can't touch their toes and they pack around an extra 30%-50% body weight. Several times now, I have been "the only one to fit" in tight work spaces. My newly revived actions to stay in shape is both carrot AND stick - the stick portion being, "Please do not let me turn out to be like THEM!" I have the feeling I will be setting up a completely different routine (and moments of appreciation) when I can be assigned to an ONLY eight-hour work day!

Heavy Trousers was originally published on My Electric Avenue by Jeanne Slate.

Saturday, May 4, 2013

Our Decrepit Constitution: Remedies (Part One)

The National Initiative Amendment (NIA) is the only way to resolve our Constitutions problems in the long run. There are a number of stop-gap measures we can take without amending the constitution, but these would be just as hard to pass as the NIA, so there would be little point in wasting our energy on them. Once we give the power to amend the Constitution back to We the People, there are a number of measures we can take to restore the balance between competing interests.

  1. Increase the number of Senators

The Constitution provides for two senators to represent each state. This has led to many problems, chief among them the fact that California, with 35 million residents, has the same number of senators and the same relative power as Delaware, with under a million. This imbalance leads to defeats for issues of interest to large states, such as gun control.

The U.S. Senate was modeled on the House of Lords. Like the Senate, the Lords became a barrier to passing bills for the common good. The House of Commons partially resolved the problem by increasing the number of Lords. We, the People, could resolve the Senate problem by adding another 100 Senators to be elected at large. By definition, these Senators would represent a larger constituency than any of the current Senators. Small states would still have disproportionate representation, but nothing could stop one of the small-state senators from running at large. Such a candidate must appeal to a broader electorate than one running in a small, homogeneous state.

Other, more drastic measures may be taken. The Senate could be abolished altogether, or Senators could retain the ability to block bills (which is their primary function now) but only for three years.

  1. Elect the Supreme Court

Life appointment for Supreme Court Justices was intended to free them from political pressures, giving them liberty to vote their conscience. This idea never worked very well, since the Justices are nearly always members of the elite classes. Recently, the idea of apolitical Justices must appear a cruel hoax. Observers can usually predict which justices will join a majority. Presidents appoint younger and younger justices to prevent the opposing party from gaining a majority on the court. Retiring justices choose the terms of like-minded presidents to give up their seats. The Court has actually become a third legislative body, one with even less variety of opinion than the Senate.

We, the People, should make the Court responsible to us by forcing the Justices to run for election every seven years. Renowned jurists who can't get seats on the current, highly politicized court, should be happy to run for such a prestigious post. Presidents could still fill vacancies with the consent of the Senate, but they would be forced to make better choices if they want their appointees to withstand an electoral challenge.

  1. Normalize the Laws

Another measure would be to remove the appellate responsibilities from the court, or abolish the federal bench entirely. The Federal Bench exists side-by-side with the state courts, with many of the same responsibilities. All courts should be combined into a single, national system of district courts and appellate bodies. Instead of striking down laws they deem improper, the judges in this system could replace the offending laws with others that have been passed in other states. Many states have similar legal codes already. This blending of federal with state authority would discourage state legislatures from passing frivolous laws that pander to the electorate.

This system would also discourage well-heeled groups like ALEC from changing the laws, state by state, to favor corporations and the wealthy. Judges would be free to ignore changes made by ALEC and other groups in favor of more moderate laws.

Lawyers should be allowed to practice in any state, since the laws would, over time, tend to be similar. State Bar Associations would lose their monopoly control of the legal profession. Legal professionals could practice in any state without fearing law suits from the State Bar. The cost of legal assistance would decrease, enabling ordinary people to better afford lawyers.

  1. Abolish the Electoral College

We, the People, should elect presidents by majority vote. If no candidate achieves a majority, we should hold a runoff election. Third parties would be able to participate in elections without fear that their participation would defeat candidates with whom they agree on most issues.

There is currently a National Popular Vote movement (NPV) to sidestep the electoral college by passing laws in each of the states. These laws commit the states to cast their electoral votes for the candidate who wins the majority of all votes cast in all states. NPV flips current presidential campaigning on its head. Candidates would spend most of their time and money in the largest states instead of in the key swing states.They would have to take positions on important issues instead of avoiding them.

NPV avoids the Amendment process but ends up with laws that can be repealed without using the Amendment process. It also fails to institute a runoff system, as described above. It does not encourage third party candidates, since it will rob them of any electoral votes they might have gotten using the current electoral system. This could lead to appeals through the courts, throwing elections into confusion for other reasons, such as when a third-party argues that the anti-electoral college law prevents third parties from getting the votes necessary to appear on ballots. Current election laws are a tangled thicket that may cause unforeseen problems.

The instability of the NPV, which could be undone by the votes of only a few states (assuming it ever passes) will lead to more electoral confusion, not less. The supporters of this plan have a good idea, but the execution would likely be chaotic and reversible within a few years. NPV will go into effect when the states that have adopted it have enough electoral votes.

NPV now has about 50 per cent of the states necessary to put its plan into action. From here on, however, it will run into the same problem of the electoral college, only in reverse. Each state that passes NPV will now be a state that benefits from the current situation.

Another movement, much less realistic, to reform the electoral college would divide the nation into 50 new states with equal populations. The logistics of this proposal make it impossible. State governments are huge, unwieldy bureaucracies that have taken root in one place for up to 200 years. Moving one of these bureaucracies to a new location would create a complex mess and cost a fortune. Moving 50 of them might take another 200 years.
  1. Undo the Corporate Strangle Hold on Our Laws

In the late nineteenth century the Supreme Court discovered that the Due Process Clause of the Fourteenth Amendment applied to corporations, though they couldn't figure out how to use it to help African-Americans. In 1890, Congress passed the Sherman Anti-Trust Act to regulate corporations. The Courts permitted the Sherman Act to be used against Unions, which it declared illegal combinations as defined by the law. In United States v. E. C. Knight Company (1895), the Supreme Court upheld the appeal of the American Sugar Refining Company, which controlled 98 per cent of sugar refining in the U.S., because this control did not constitute a restraint of trade.

During the last years of the twentieth century, Congress responded to public concern about corporate lobbyists influence in politics by passing modest reforms. In Citizens United v. FEC (2004), the Supreme Court reversed much of what reformers had accomplished. In his dissent, Justice Stephens cited earlier Court decisions that recognized that corporate spending on elections should be viewed as a business transaction designed for no other purpose than profit-making. Corporations unfairly influence elections with vast sums of money that few individuals can match. Finally, Stephens pointed out that the mere appearance of impropriety fostered by Corporate campaign contributions would have a chilling affect on voter participation.

Stephens' arguments fell on deaf ears. The Court, as so often before, sided with corporations against the interests of ordinary citizens. One protection for We the People would be to limit the power of the Court by limiting its terms and making it easier to overrule their decisions with a national initiative. Critics of the Citizens United decision have proposed a Constitutional amendment to overturn it. A constitutional amendment would require majority votes of both houses of Congress and passage by three-fourths of the state legislatures. The amount of time, energy, and treasure necessary for the effort is enormous. This massive effort, involving millions of citizens, is required to counter the opinions of five Republican Justices. Nothing about our republic is less democratic than this proposition.

An amendment should be passed outlawing corporate spending in political elections. Laws should be instituted imposing heavy penalties for corporate officers who authorize anonymous spending from the corporate coffers.

Wednesday, May 1, 2013

Our Decrepit Constitution: Slavery by Another Name

During the last days of the Civil War, Congress passed the Thirteenth Amendment. This amendment freed all the slaves in perpetuity, including those not yet freed by the Emancipation Proclamation. The Fourteenth (1868) and Fifteenth (1870) Amendments followed within a short while.

The Constitution was not strong enough by itself to protect the newly minted rights of freedmen. The government posted federal troops in the states of the former Confederacy to enforce the law. Freedmen--former slaves--voted in elections for the first time. African-Americans were elected to state offices, helped by laws that made former Confederate office holders ineligible to run.

The freedom and justice promised by the Fourteenth Amendment was short-lived. The Ku Klux Klan began intimidating and murdering Republicans and African-Americans in 1868. The Klan murdered Republican organizer George Ashburn in Columbus, Georgia, on March 28, 1868. The Klan published a pamphlet intended to slander Ashburn and intimidate anyone who might try to take his place as an organizer. The pamphlet charged that Ashburn was living with an African-American woman and described the place of assassination as a brothel.1

Nine men, described as prominent citizens, were arrested and brought to trial before a military tribunal. Before they could be tried, the Georgia legislature accepted the Fourteenth Amendment, which was the condition set for reentering the union. The military government was dissolved and the prisoners released. No one was ever tried for Ashburn's murder.

A group of African-American Republicans marched from Albany to Camilla to attend a political rally in September, 1868. White southerners ambushed them in Camilla's Courthouse Square, killing 12 and wounding many others. The white men kept on attacking the group as they retreated along the road back to Albany. Other similar massacres occurred in South Carolina and Alabama.

Some political leaders were intimidated or imprisoned. T. G. Campbell described how he argued before the Georgia Legislature that he and other freedmen should be allowed to speak. While he was speaking, the white legislators put their hands on the butts of their pistols and made threatening gestures at him. Campbell gave up after eight days of argument. Later he took office as justice of the peace and organized a group of 300 African-American horsemen to protect himself from the Klan.

Campbell could perhaps protect himself from violence within the enclave of freedmen he organized along the Georgia coast, but he could not protect himself from miscarriage of justice perpetrated by his white enemies. Campbell was charged with malfeasance in office and brought before a local judge. He was convicted and immediately jailed. Campbell spent the next year and a half being shuffled from jail to jail. His wife tirelessly worked to free him, but nothing she did was of any use. Judges avoided him. New trials were arranged, but with each new trial came demands for new documentation that had to be found and delivered to the court.

Finally, Campbell's wife secured an order from the U.S. Attorney General that the case be moved to a federal court. Campbell believed that he was about to be cleared, but his lawyer failed to file the proper papers and his case was dismissed. After the dismissal in federal court, Campbell was sent to a prison camp where the prisoners were worked from dawn to dusk and beaten if they fell behind the other workers. This system of forced convict labor replaced slavery to a certain degree. Campbell's wife interceded for him with the camp overseer and succeeded in getting him a job more suited to his age. He was sixty-three when he entered the camp in 1876.2

Following the passage of the Fourteenth and Fifteenth Amendments, Congress passed several Civil Rights Bills to protect the civil rights created in the amendments. The Supreme Court set about methodically destroying these rights in a series of decisions that ran counter to the spirit and the letter of the amendments.

In Blyew v. United States (1871), the Court ruled that the Civil Rights Act (1866) did not affect the witnesses in a case. The Bill specifically states that all persons born in the United States are citizens and that citizens have a right to give evidence in court cases. In Blyew, two African-Americans were denied the right to testify by Kentucky state law. The Court construed the Civil Rights Act to apply only to principals in court cases, not witnesses, despite the clear intent of the law, and affirmed the ruling of the Appellate Court. In this case, the principal, a blind, 75-year-old African-American woman, was the murder victim. Since she was dead, the Court ruled, the federal court had no jurisdiction in the case.

In United States v. Cruikshank (1876), the Supreme Court ruled that the Enforcement Act of 1870 was only binding on state actions, not individuals. Using this logic, the Court overturned the convictions of two white men who had joined the Colfax Massacre in Louisiana, when over 100 blacks were murdered by a white militia. The Congress had intended this Act specifically to address the actions of the Ku Klux Klan, so the Court ruled exactly counter to the purpose of the Act. The Court's action left the freedmen in the south at the mercy of the Klan and numerous other private militias. Their action returned African-Americans to their pre-War status, when an African-American could be raped, murdered, or tortured by a white with impunity.

In the Civil Rights Cases (1880), the Supreme Court ruled likewise that the Fourteenth Amendment did not apply to private citizens, like railroads, hotels, and the operators of public amusements. These individuals, said the Court, had the right to choose the people they wanted to associate with, regardless of what the Fourteenth Amendment said. Justice Harlan, the sole dissenting voice in these five decisions, reminded the Court that private railroads were by law public highways, that innkeepers had long been held to be public servants of a sort, and that public amusements are maintained under a license coming from the public. No state, said Harlan, nor any corporation or individual acting under state authority for the public good, can discriminate against freemen or citizens. These rulings put an end to efforts by Congress to ensure civil rights for African-Americans and ushered in an era of segregation and second-class citizenships.

In U.S. v. Harris (1883), the Supreme Court once again ruled that federal courts had no jurisdiction in cases of murder or assault. These cases were matters for the states. It did not matter that the persons assaulted were African-Americans and the assailants were a group of Ku Klux Klansmen. In Harris, the Klansmen dragged four African-Americans from their jail cells and beat them, one of them to death. Although Federal Law intended to stop such violations of African-American civil rights, as authorized under the Fourteenth Amendment, the law was unconstitutional because it usurped the rights of the states. Harris also ruled that the sheriff who had custody of the African-Americans who were beaten could not be held liable under federal law because he was liable only for his actions, not his inactions. Under this ruling, depriving a person of his life is not the same thing as depriving him of his Constitutional rights, and inaction is not a form of action.

Not until the 1960s did the Supreme Court repudiate the extreme racism inherent in all these rulings (and others besides). The Constitution failed to protect individuals from crimes committed against them, even when Congress explicitly created laws saying that it should.

1 Radical rule : military outrage in Georgia: Arrest of Columbus prisoners (Louisville, Ky., 1868), Since this pamphlet declares in its preface that its intent is to convey the proper impression of military despotism to the northern mind, its content must be treated as completely unreliable.
2Campbell, T.G., Sufferings of the Rev. T. G. Campbell and his family, in Georgia (Washington, 1877),