Thursday, December 23, 2010

Judicial Independence versus Activist Judges: American Intelligence Test #9

One of the more prevalent political themes that is and will perpetually be used by both Democrats and Republicans whenever some constitutional-oriented ruling is made by a federal or state court is that the said court's justice(s) is/are acting proactively (and wrongly) based on their personal views and inconsistent with the “true meaning/intentions” of the applicable constitution. Yes, the infamous “activist judiciary” as it has become known in the popular parlance. So it would behoove us to consider what the general understanding the public has regarding the underlying issue at question here. Perhaps even to determine if the political parties are, as they ever like to do, creating a lightning-rod issue that draws the attention of the public or at least their own constituency to, so as to distract the public away from issues that are more pertinent to their individuals' lives and to the nation's interests.

How better to focus on this issue then to assess the insight of popular opinion, the intellectual prowess of the electorate and the attention span of the huddled masses.

Remember as Lincoln almost said:

Some of us can fool ourselves all of the time, and all of us can fool ourselves some of the time, but all of us can not fool ourselves all of the time.

So, gentle-persons: Start your engines!

Question 1: Our laws are based on clear and precise written statutes, including the Constitutional framework of laws that create and govern our democratic system.

True or False

Context: Consider that a lot of our laws are based on common law inherited from legal systems that predate our Constitution.

Question 2: When ruling on a case before the court, a judge (or justices) should adhere to the “original meaning/intent” of the law; there is no justification or need for the judiciary to interpret the law.

True or False

Context: Do you want to appear before a judge who should not have the right and duty to consider the situations and circumstances that prevail in our daily lives? [This is not a test question.]

Question 3: If you believe in Constitutional 'Originalism' rather than it antithesis a 'Living' Constitution then which of the following topics would you agree are beyond the scope of our laws as they are not contained in the text of the Constitution or for some topics that were not within the realm of understanding that our founding fathers could have conceived or thus intended?

A. genetic engineering

B. marriage

C. equal rights – required an Amendment

D. income tax – required an Amendment

E. Women's suffrage – required an Amendment

F. Desegregation of public schools

G. All of the Above

H. None of the Above

Context: While the ability to amend the Constitution is provided for in the Constitution it can hardly be considered as providing the original meaning of what was intended by the founding fathers regarding any topic that required an Amendment.

Question 4: Preserving the independence of the judiciary requires that the judiciary has not only the right but the obligation to interpret the Constitution, and to do so in the context of the society that we have today, not the one that we have at the founding of the country.

True or False

Question 5: The founding fathers' vision and understanding represented in the Constitution is completely sufficient to guide and direct the legal decisions presented by our society and national situations confronting us today.

Agree - Disagree

An extra, but Critical Question X: Would you be willing to live under the social systems that were our American reality at the time of the Founding Fathers, today?

Yes - No

Please close your books, the test is over. You now must decide how well you did. I assume you got a perfect score, else you have an unusual concept of taking a test. For those of you with an interest: here are my answers.

Q1: False Q2: False Q3: G. Q4: True Q5: Disagree Q-X: No

The Constitution defines the nature of our government and the structure upon which it will operate. It includes limits upon the government for the protection of the people from the government and upon the people to protect them from themselves. The Constitution does not and never did hold the secret mysteries for running a free and democratic nation; and it particularly does not allow the members of any generation of citizens of this country from being responsible for and accountable for applying their skills, talents and wisdom in pursuit of seeking to better understand and apply themselves to developing the laws and institutions that we use to govern ourselves.

Suppose that at least one founding father stood before us today and counseled us to accept this responsibility. Who then among us would not recognize that we are and must be responsible for deliberately seeking to understand the Constitution in today's context. Further that we must strive to apply it's principles in a meaningful way so as to take into consideration our knowledge, perspective and judgment about the issues that we have to contend with in our times, given our society, with our resources, and with a mind to better the nation that they envisioned to be a living democracy.

And we have founding fathers that stand before us today, in their own words. One need look no harder than at Jefferson, who some might agree had a notion of freedom, democracy and a people's responsibilities.

Wednesday, December 22, 2010

Congress: The Legacy of Unsuccessful Students

We have to step back in disbelief when we observe the intellectual ineptitude displayed by Congress, even when Congress strives to do the right things. The things for which they are Constitutionally responsible. The things for which they advocate and champion policy, laws and governance. The things for which they collect our taxes, institute public agencies to carry out, and allocate their budgets to paradoxically over and underfund simultaneously. And often those essential things that are at the heart of our democratic nation. This is no less the case for American education than for any of the other gladiatorial arenas that our representatives contest over with the feckless skills of an untrained juggler attempting five balls simultaneously before a live audience.

Once the best educated citizenry in the world, we are witness to the accelerating retrograde of our global educational position in general, scientific, technical, business, and even knowledge of the arts to a lesser light in the darkness. And this intellectual recession is not a brief momentary period brought about by some small transient error in judgment or direction by a small dedicated though misguided group of Congressional leaders; but rather is the result of the prolonged diligent efforts on the part of every amalgam of Congressional compositions assembled by the American electorate over decades.

Sure Congress has had the occasional serendipitous stumble into some legislative actions that promoted either a slight impetus toward advancement or at least impeded our rush toward decline; but overall Congress has not managed to pass the grade. Oh yes, they have managed and continue to spend an enormous amount of the public treasury on education. But only with the results that we see about us daily, and hear about now and again when some study illuminates the accumulating anti-achievements from their accredited attention to the education of the nation's children and our society's future.

Perhaps it is not to be unexpected that a nation that has failed for decades to maintain an adequate level of public education, let alone a superior one, has produced political leaders (and correspondingly their electorate) that are unable to face and especially unable to meet the challenge of national education. We may only have to look to science to provide an explanation, something of course difficult for the ill-educated to do. Many of these politicians were of course educated by the same educational system that has failed so many others. As products of these institutions they are thus the recipients of the quality of intellectual DNA transferred from annual school crop to crop. And as genetics will tell you, if you create a selection bias for recessive or harmful traits then you will progressively year over year, generation over generation cultivate a weaker and weaker species. Hence, even if you subscribe to the theory of 'the best and brightest' in pubic service, you will find that the quality of individuals at the 'top' is ever declining.

How then to salvage the American educational system? For Congress the answer to this lies in the same process that saves alcoholics and addicts; they have to admit that they have a problem and that they cannot solve it on their own. Congress's strength (enfeeblement?), their courage (cowardice?) or their vision (blindness?) requires that they seek out wisdom and understanding beyond their comprehension. They may find that the same principles that have fostered the decline can be employed to guide the improvement of the breed. Oddly, Congress could rely upon a basic American principle to gain success in this endeavor; they could depend upon capitalistic competition to restore America to preeminence in education. They only need to find people who can show them how to make it work because their only excuse for not having already done so is that they are not sufficiently capable of doing it by themselves.

Whether they are Republican or Democrat, our legislators and administrations of the moment must learn to hold true to ideals of our founding fathers, to forgo the personal advantage from special-interests, and to serve the pubic need. Education must be returned to a primary obligation of the nation and hence of federal, state and local politicians. Education must be more important than party, than affiliation, than special-interest; it must be once again a pillar of our freedom.

Saturday, December 18, 2010

Congress on Failure: It's Our Motto

And now for the final part on how our political leaders succumbed to their lesser sides of their philosophies.

Congress passed and President Obama signed the extension of the Bush (now Obama) era tax-rates. Everyone in fool-ville is hooting for joy because they all agreed (compromised in agreement anyway) that this is best thing since Congress figured out how they could just raise the nation's debt ceiling. It's not just the the middle-class got a couple more dollars in temporary tax relief (temporary because with the debt increase they will have to pay it back and even more), but most importantly the very well to do got really big tax relief gifts from the politicians. These abundant and lavish gifts are a repayment by our legislators' to the wealthy for their control of the political funding machinery that runs the parties' campaign financing processes.

Now we cannot fault the politicians for bowing to the pressures that the well-healed special-interest groups exert, after all the most important thing is getting elected not what you have to give up or agree to to get there. This is a parallel to the public's lemming-like race toward whatever politician promises to support some totally meaningless or inconsequential policy or position that is more critical to the electorate than any of the responsibilities of a free and democratic society. Besides you can flood the media with tons of lies that satisfy and entertain the public while completely avoiding any meaningful discussion of issues and solutions to the problems that are the true business of the government and the governed.

But surely the continuing the tax-rates at this time are essential to the economy, and particularly the lower tax rate for the rich. All the economists that the government consulted agreed that now was not the time to raise taxes, because consumer spending accounts for the bulk of the economy and … Uh, Wait! The consumers, most of them anyway, are not wealthy and the upper rate tax rate doesn't apply to them. I am sure that the upper 1% spends a lot more than you or me, but I also know that it is the rest of us that makes and sustains the economy. So the tax-cuts for the rich isn't needed because of their spending, which they will continue to do and are able to do regardless of this tax-cut.

I know, the tax-cut for the 1% is because these are the people who create jobs for the rest of us. And if we tax them more, then more of us won't get employed. Yeah that must be it. Wait! If these folks create the jobs that make the economy robust then why haven't they been creating these same jobs already? In fact, shouldn't the bad economy have provided a better opportunity for these folks to have created lots of new jobs by now? Oh, and are most of these folks the small-business owners that we hear about creating most of the jobs in the country? Surely, they're not the CEO of large corporations that are so essential that only they can run our major industries effectively, the heads of the banking and finance institutions that have protected us from fiscal irresponsibility so well, the lawyers and law-firms that do most of their work pro bono just to benefit society, or the politicians who serve the public at great expense to themselves and their families.

Ok, but then the tax-cuts for the rich were necessary because we need to give the Republicans this tit-for-tat in order for the Democrats to get their important gifts. And these Democratic party needs were also essential to the economy because without them the economy would suffer. I guess this just means that our legislators and we ourselves are so stupid that we can't figure out that you could let one bill fail and propose another bill that addresses everything else but that didn't include the cornucopia for the rich.

But now that we have the extension, we can all look toward an economy that will absolutely recover. And if it doesn't work out at least we can't hold the politicians responsible because they did everything that was possible.

Besides the politicians need to start focusing on how to make everyone pay their fair share for the debt we just increased. And they need to make damn sure that the 1% don't get hrt by that.

Sunday, December 12, 2010

How To Fail Again. Again (Part 2)

Before getting to the main Christmas gift from Congress – extending the Bush/Obama-era tax-cuts, there are still more lessor gifts tucked, shoe-horned, wedged, cobbled, and stuffed under the national tree. Given it's a tax bill, it's not surprising that Congress used their hammer to pound more and more tax cuts/credits/exemptions/deferments into the bill as a compromise to gain support. Now compromise isn't a bad thing, in fact it's an essential ingredient in politics. The structure of our legislature is a compromise, the Constitution is a compromise and the Bill of Rights is a compromise. So the fact that Congress and the Administration compromised in drafting the bill is to be expected, especially since neither the Republicans nor Democrats could get a bill through Congress and signed by the President without some give and take. Whether its a good bill or not is not tied to the compromises that have been made, that question has more to do with the all-or-none nature of the tax-rate extensions, its affordability, and the true worth and impact that it will have to the nation's economy. But that is for the Part 3. Here let's shake all those other boxes chock-full of goodies for those who have been uhh! Is it naughty or nice?

We have an environmental gift for renewable energy development. Good intentions no doubt, but couldn't Congress have thought about how to make it target market conditions that impede the development of renewable energy?

There's a gift from Social Security rates, wage earners will find that the government's hand will leave more behind in their pockets as it withdraws its take this year. While few like the pay-day mugging, is reducing the extraction really going to help address the real problem with Social Security? It's underfunded and proceeding toward yet another crisis, and the solution that's going to help is postpone doing anything about the growing cancer in the system itself. Yeah, now that's leadership!

The stockings are filled with all sorts of credits and incentives: child-care, college, use of mass-transit, hybrid cars, energy efficient products, and economic development support for Gulf Coast states. All things that lots of people like, support and don't want to give up. But all things that either cost money or redistribute wealth. (FYI, redistributing wealth is a given in government and societies; but usually the redistribution, as in this case, is not from the wealthy but to the wealthy.)

The justification of everything is that it will help the economy and will create jobs (or will prevent more jobs from being lost). Sounds good, sounds important, sound critical doesn't it. But do you really believe these politicians? When was the last time that they were right? When was the last time that they did something that people liked and then turned out to help the public, as opposed to when they did something that the public thinks was completely wrong but probably was both necessary and benefited the nation?
Everyone likes getting the presents under the tree at Christmas. But how often do people regret the costs that they have to struggle to pay after Christmas because they went out and bought things that they should have known were extravagant or beyond their mean.

Saturday, December 11, 2010

The Tax-Cut Resolution, or How To Fail Again

We are on the verge of an Administration and Congressional agreement on extending the Bush-era tax-cuts for all Americans. As usual our illustrious and politically savvy leaders have failed to demonstrate a smattering of intelligence in their usual and pathetic legislative manner. The Republican side staked out a non-negotiation position that they would only support an extension of tax-cuts if it included every American. The critical aspect of this position being the preservation of the tax-cuts for the higher income individuals (particularly the very wealthy or it would not have been at all important to the Republicans). The Democratic position represented via the Obama Administration was to patch together a variety of attachments to the Republican position so as to create the sludge that feeds the politicians and the political process. Before considering how the tax-cut position is more of the same special-interest disaster for America, let's look at the the decorations added by the assorted visionless champions of the American electorate.
A couple of presents being offered up as a placating placebo for the economy are for ethanol. We get a subsidy for corn-based ethanol production and tariff protection from ethanol imports. Now I am sure that there are a couple of folks who will benefit from this, mostly politicians but there will even be a farmer here and there that get a little benefit. Of course, both could have gotten a really good benefit and the public would have benefited even more if they had crafted the law in an effective manner rather than the simple-minded and dysfunctional way that they always do.
So if encouraging ethanol production is good for America, then here's a couple of questions:
Why just limit it to corn-based ethanol? Wouldn't the same amount of ethanol produced via other organic matter be good for our economy, environment and electorate? It gets the same amount of money in the economy, and may do it at a lower cost to our food supply. And does subsidizing corn-based ethanol really add any jobs to the economy?
The tariff on ethanol imports extends the costs but doesn't actually promote any derivative benefit. So how does this generate more jobs? Might it not actually cost more jobs since it adds to the cost of the fuel used by other employers?
Finally, why not make the bill a productive impetus for the farmers and the energy industry, an economically stimulative action in support of the country, and something beneficial for the public both monetarily and in terms of new jobs? Just because these legislative light-weights can't see beyond their own limited horizons shouldn't prevent them from seeking the guidance and creativity of those who could serve the country's interests far better then they seem able to. After all, really good leaders don't actually have to know much or be able to do anything on their own, as we have evidence from many of our corporations' leadership; they just need to have people who can get things done show them the way.

Tuesday, December 7, 2010

No Child Allowed Ahead – An American Education

While the US economy is struggling to recover from the recession wrought from our imprudent ways, we have received yet another reality check on the soundness of our societal commitment to educating our children. Relative to other nations that we compete with on the international stage, the US continues to decline as others advance. We recede in math, sciences and reading and wonder why our nation struggles to provide the skilled and capable employees needed by American businesses. And what was the great undertaking by our political leaders, an unfunded mandate called “No Child Left Behind” by the Bush administration that seems to have achieved its goal not by elevating the achievement of our schools but by holding back those students who managed succeed thus preventing any other child from being left behind. If no one succeeds, then no one is left behind.
With the Obama administration, our school system is going to succeed by a “Race to the Top” spending more money on education. It does sound more achievement oriented then its predecessor's touchy-feelly random walk approach; but its going to run up against some significant resistance in the cut-spending campaign that will be a non-stop political whipping post for the next two years.
Is it possible that the political parties are in favor of a poorly educated public. We just had a Republican and Democratic compromise on the continuation of the Bush era tax-cuts (now to be known as the Obama era tax cuts) that continues to underfund Government revenues while simultaneously spending more. I suppose as long as Americans can't do the math, aren't capable of reading and understanding what is happening in the world, and don't have a scientific comprehension of the forces at work in their lives that I can't be surprised that they have elected the type of politicians who would continue to pursue the most idiotic and addle-brained policies that have failed to make a difference.
If America wants an education system that creates the competitive and world-leading citizenry essential to sustaining our democracy and economic vitality then the public (and their representatives) need to link the performance of our education system to the interests of our governmental, industrial and commercial entities. If a failing education system penalizes the interests of the powerful then like the hangman's noose, it will focus the mind's attention quite effectively on making sure that we succeed.