Clause 61: The Pushback Blog

Because ideas have consequences

Archive for September 2016

Guess What! Lindy Made It!

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Did you know that we have a gravely ill Constitution? Garrett Epps does, and he wants to tell us all about it in The Atlantic. Of course, you know there is going to be a convenient explanation for all this:

“Political correctness” is out of favor, so I won’t pretend that “both sides” bear responsibility. The corrosive attack on constitutional values has come, and continues to come, from the right. It first broke into the open in 1998, when a repudiated House majority tried to remove President Bill Clinton for minor offenses.
— Epps, “Trumpism Is the Symptom of a Gravely Ill Constitution”

I did just discuss the price to be paid for trying to nullify an election.

According to his bio, Epps teaches constitutional law and creative writing at the University of Baltimore. Obviously, his article owes more to the creative writing side than the constitutional law side. Can Epps really be that ignorant of history? Or is he hoping to put one over on us unenlightened rubes? We can’t settle that question, but we can review some history. Here are some years to remember from a constitutional perspective.


The Sixteenth Amendment is adopted, which strikes out the wording in Article I, Section 9 that:

No Capitation, or other direct, Tax shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken.

The framers of the Constitution inserted that because they feared a mob would use the police power of the state to steal from a minority of the people. But, hey, nothing to worry about now!

As if that weren’t achievement enough, the Seventeenth Amendment follows three months later. This establishes direct election of Senators, thus eroding the status of States as mediators between the Federal Government and the people. The Senate becomes an Upper House with really expensive seats.


In A.L.A. Schechter Poultry Corp. v. United States [295 US 495], the Supreme Court for the last time throws out delegation of lawmaking by Congress to the executive branch, holding:

A delegation of its legislative authority to trade or industrial associations, empowering them to enact laws for the rehabilitation and expansion of their trades or industries, would be utterly inconsistent with the constitutional prerogatives and duties of Congress. P. 295 U. S. 537.

Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade and industry. P. 295 U. S. 537.

The sitting president was Franklin Delano Roosevelt, and his response was to threaten to pack the Court. Did it work? Nobody will say, but since then no court has had the insolence to make Congress do its job.


In Susette Kelo, et al., v. City of New London, CT [545 US 469], the Supreme Court ruled that a municipality could use its eminent domain powers to force the transfer of land from one private owner to another. This is the “Kelo” case and the source of the questions about eminent domain that Donald Trump artlessly glossed over earlier this year.

What’s not to like about this? The dissent of Justice O’Connor explains it:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

Either Garrett Epps is stupid or he believes we are; more likely than not the latter. The Constitution has been in real trouble for my entire life. Where was his impassioned defense of the Tenth Amendment? Now that the chickens are coming home to roost, he wants to start worrying about process. It’s a little late.


Written by srojak

September 22, 2016 at 10:18 pm

The Flat Earth

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How to appraise the media coverage of this election?

I would like to invite you along on a thought experiment. Imagine we had a major party candidate for President who announced that the earth is flat. The candidate dismisses all evidence to the contrary as a fabrication by a conspiracy of interests who want to exploit the American public for nefarious purposes.

This candidate has a ready answer to every piece of evidence you can offer to support your argument, not that her answers are relevant or logically sound. You say we’ve seen pictures of a spherical Earth from space? She asserts that is a government conspiracy. You ask how it is possible for people to travel around the world? She says you’re naïve and such stories are not true. You cite an article in a newspaper questioning her claims? She shoots back, “That failed rag? Are they really still in business?” She asserts that, until you stand in space yourself and see the Earth for yourself, you can’t disprove her claims.

Media outlets are confused as to how they should handle this candidate. By journalistic standards, they should be offering her and her supporters equal time to present their views. However, on this issue, such behavior flies in the face of common sense. They perceive, correctly, that educated audiences are going to find them ridiculous if they offer a credible platform to people making such an outrageous statement.

Some cable channels try different tactics to keep the discussion tethered to sense at some point. One tries an approach where they bring on pilots, who have seen the Earth from the stratosphere. The candidate dismisses them as paid stooges of the establishment. Her campaign dredges up from somewhere a former pilot who is willing to go on the air and claim that it is all a hoax perpetuated by pilots so they can have employment privileges. He’s been in on the scam and he’s telling it all now.

Meanwhile, the candidate’s supporters charge bias against any media outlet who fails to give equal time to their assertions that the earth is flat. Everyone on the payroll may know that the claim defies believe, but if the organization does not give it a platform, the campaign howls that the system is rigged against them.

The subject of the shape of the Earth completely consumes the campaign. There is no remaining time, energy or attention to discuss the opposition candidate. This is unfortunate, because he has a lot for us to discuss. He is secretive and vindictive. In earlier pronouncements, he has stopped just short of saying that he believes the President is above the law. His previous actions attest to a belief that anything is justified to a person in power who has good intentions.

But we won’t be talking about any of that. The entire election has become a referendum on the credulity of the American electorate. We get up on 8 November and go to the polls, already knowing whatever the outcome, America has already lost.

Fortunately, that could never happen here.

Written by srojak

September 18, 2016 at 11:52 am

Nasty, Shallow and Desperate

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I look for patterns. Patterns help us understand the world. Using patterns, we can pick out trends, tendencies and directions.

The latest pattern has to do with Hillary Clinton’s health. The steady drumfire of articles keeps blasting away. I first noticed an article in the Washington Times by Wesley Pruden on 5 September. Since then they keep coming — thump, thump, thump.

Mr. Pruden, however, was very helpful, in that he pointed out the pattern. He referenced another, related story: the campaign to find that Barack Obama was not a citizen of the United States by birth, and therefore constitutionally ineligible to be president. I don’t recall this assertion being substantiated with evidence. It was more a wild wish that, from somewhere, there would arise evidence that would magically remove this person from office.

I am certainly no fan of President Obama and his policies, but he defeated his Republican opponents in two elections. If you have evidence that the game was rigged or that he really was ineligible, lay it out. Otherwise, can we discuss ideas, policies and agendas? There are more than enough of these to which to object.

Instead, over the past twenty years, we have the opposition to the Democrats repeatedly attempting to get what they want by the back door:

  • The impeachment of Bill Clinton initiated in 1998 over what was basically a morals charge;
  • The endless charges that Barack Obama was constitutionally ineligible to be president;

and now, before the election is even conducted,

  • This fugue about the implications of Hillary Clinton’s health.

The pattern is that of people who did not get the outcome they wanted and are seeking to nullify an election.

We need a competent opposition to the progressives. This is not the behavior of a competent opposition. This is not conservative; this is passive-aggressive. This is magical thinking. “We didn’t get our message through to the voters, but maybe some force from outer space will come down and reorder the world to our liking.”

Not hardly. All this does is reinforce the sense that the voters who are not true believers have, that conservatives are raving. When people engage in these behaviors, they appear nasty. They appear shallow. They appear desperate.

Nasty, shallow and desparate: it’s a bad trifecta and a one-way ticket to the political wilderness.

Now we have the election being compared to UA Flight 93. I will have more to say about that in an upcoming post. For now, I will limit myself to remarking that Todd Beamer is not remembered for saying, “Let’s pitch a fit.”

If Clinton collapsed during the debate with a stroke, would that make you happy? Would you let the rest of the voters see you gloat?

I get that it is not easy opposing progressives. They are the caring people — if you don’t believe me, just ask them. There are people in this country who are hurting, and they want to dry their tears — with your checkbook, but never mind about that now. If you stand up to oppose them, they put words in your mouth: You just want to kill all the poor people. They set up straw men and knock them down.

Having said that, there are sensible and senseless ways to respond. The sensible way is to have an intelligent discussion, trusting that the majority of the voters can be reached by people who make the effort and who don’t appear to be ridiculous caricatures. The senseless and pointless way is to be petulant, mulish and snotty.

When you piss into the wind, three things happen:

  1. You get wet;
  2. You smell bad;
  3. People tend to shun you.

— Robert “Gene” Woolsey (1936-2015), Colorado School of Mines

We have the current election season, which is basically an ugly fight over distribution. You show that this course only leads to worse conflict as there are always more people looking for goodies from Uncle Sugar, who has continually less to offer. Eventually enough people are on the receiving end of enough promises that the whole mess screeches to a halt.

Beware of being the roller
When there’s nothing left to roll.
— Shel Silverstein, “The Smoke-off”

There is plenty of substance in Hillary Clinton’s ideas to which to object. You can start with her “earnest, incoherent moralism” — read that link carefully for examples of well-reasoned big picture objections. Then drill down to the specifics of her plans to expand the role of government, outbidding all comers in the quest to buy votes. You can ask what limits she envisions on her authority if elected president. You can ask in what form she will promise to uphold the Constitution.

There is no need to carry on about her health. Saying she’s ugly and she dresses funny will not win you points with the public at large (The comparison of her outfit to that of Kim Jong-un was funny — exactly once, don’t go there again).

Maybe you could even reach for the stars and talk about equal justice under the law, a subject with profound implications for both our politicians and our minorities.

If the state of the nation is as bad as conservatives say it is, there is no justification for being unserious and adolescent in opposition.


Written by srojak

September 15, 2016 at 12:19 am