grumpyjohn

We have recently been treated to another claim of absolute power by the President of the United States. Such claims are inconsistent with the language of the Constitution and the constitutional history of the United States. Many of the President’s supporters in the legal community claim to be “originalists.” That is, they feel that the Constitution should be viewed today as it was by those who wrote it and voted for its adoption. My remarks are intended to be an “originalist’s” interpretation of executive power even though I have often disagreed with this approach to the Constitution in the past.

 

One of the most historic statements on the issue of absolute executive power was issued at Runnymede, England on June 15, 1215. A group of disgruntled barons forced a despotic king to agreed that the power of the monarch was not absolute. My genealogical research has revealed that I had ancestors on both sides of that argument. Since the common people were in no way involved in this dispute or in its settlement, it was not a great victory for democracy. It does provide the solid legal base for an argument against claims of absolute power.

If we “fast-forward” about 560 years, we find the beginning of our infant nation and early attempts to deal with the issue of executive power. There can be no doubt that the colonies revolted against both king and Parliament, but the prejudice against monarchy was particularly strong. The Articles of Confederation, which outlined the structure of our government during and immediately after the Revolution, make no provision for a national executive. As those who drafted our Constitution met to consider changes to our basic governmental document, most recognized this omission to be serious. The nature of powers of the executive office and the limits placed upon those powers was an issue central to debates over the drafting and ratification of the document. Defenders of Article Two (principally Alexander Hamilton) were forced to spend a great deal of time and effort outlining limitations on executive power and demonstrating why those powers were not absolute.

The argument continued after the adoption of the Constitution. Federalists such as Hamilton and John Adams argued for a strong executive while Anti-Federalists such as James Madison and Thomas Jefferson argued against it and raised the specter of monarchy in their political debates. This debate has continued to the present day, but only recently have claims of absolute executive power been uttered. Certainly the Federalists never offered such an argument.

The current debate concerns the authority to reopen commercial activity following the Covid-19 pandemic. It always nice to see what the framers had to say in the Constitution itself about the involvement of the national government in these matters. Article One, Section Eight, Clause Three grants the authority to deal with interstate and foreign commerce to Congress. Article Two, Section Two deals specifically with the powers of the President and makes no specific mention of emergency powers.

It is possible, of course, to argue that the framers could not have foreseen every contingency and that some “implied” power exists for the President derived from his power as Commander in Chief. I cannot do that here because I stated initially that I was going to be an “originalist.” Therefore, if the framers did not mention this Presidential power, it does not exist.

I also like to think that I am a realist. I must take a look at the actual unfolding of events to understand the real locus of power. When we first became aware of the existence of this corona virus and the threat that it poses, the President dismissed the seriousness of the event and suggested no unusual action or response. He did not assert any executive authority to respond to the pandemic or to its economic ramifications. It was left to the governors of the states to assert the residual powers reserved to them under the Constitution and to restrict activities that might lead to the spread of the virus. These restrictions had clear and understandable economic consequences. When the virus continued to spread, the President criticized governors, in general and in particular, for doing a poor job. He clearly thought that the power rested with them to deal with the virus.

Now, many of the governors are beginning to work with one another to develop strategies for relaxing restrictions and re-opening economic activities when the greatest danger of the pandemic has past. It was this activity that appeared to trigger the assertion of presidential power. One may be forgiven for seeing this as saying, “You take the blame for closing economic activity, and I will take the credit for opening it again.”

In summary, I can find no constitutional source for absolute and unlimited power for the President of the United States in the matter of the economic and commercial aspects of dealing with Covid-19. Congress could grant him such power, but they have not done so. In the historical context and specific language of our Constitution, powers not delegated to the national government are reserved to the states. Congress has shown no desire to interfere with state action in this matter.

Finally, I must observe that many people understand that when one assumes authority, one assumes responsibility. As I watch various governors play leadership roles in responding to the pandemic, I see that they understand this. They are willing to take the blame for the unpleasant aspects of the response. The leader who claims absolute authority must bear absolute responsibility for outcomes whether they be good or bad. Our current President does not seem to understand this.

The members of the United States Congress are under tremendous pressure as they attempt to fulfill their role as a check and balance to the Executive branch. Clearly, the impeachment process is at the center of the conflict. This is a time at which it is important to stop and take stock of what it means to be a representative. There are two approaches. The first says that, “I am here to reflect the will of the majority of my constituents on any particular issue.” The second says that, “I am here to vote for what is in the best interests of my constituents and the nation.”

In the early days of our republic, the first approach was challenging. There was no convenient way for members of the House and Senate to measure constituent sentiment on each issue as it came before them. Even frequent visits to their constituencies provided only rough estimates of people’s sentiments on particular issues. The only true test came in the next election. If they were wrong on enough issues of importance, they might not be elected. Of course, cynics would point out that it was and is easy to confuse motivations. Is it being re-elected that is most important or literal representation?

Today it is much easier to discern constituent views with a fair degree of accuracy through the device of polling. It is possible for our representatives to obtain a reasonably accurate and timely sense of constituent sentiment. This introduces an element of direct democracy into decision-making that was not present through most of our history.

At the risk of reducing my argument to absurdity, I would suggest that the country could save a great deal of money by governing by electronic plebiscite. If representing the will of the majority is the only goal, we do not need Senators and Representatives. Of course, we would have to prevent evil foreigns powers from “hacking” our computers, but we already have that problem.

One cannot help but come to the cynical conclusion that many of those who claim to follow this first approach are really focused upon re-election. Perhaps this is because they think that they truly are the best people to fulfill the legislative function. Alternatively, they enjoy the position and its “perks” and don’t want to give it up.

The second approach to representation is, perhaps, best reflected by the conservative thinker and member of Parliament, Edmund Burke. When he was criticized by constituents in his district of Bristol, Burke responded as follows:

“I have written this long letter in order to give all possible satisfaction to my constituents with regard to the part I have taken in this affair. It gave me inexpressible concern to find that my conduct had been a cause of uneasiness to any of them. Next to my honor and conscience, I have nothing so near and dear to me as their approbation. However, I had much rather run the risk of displeasing than of injuring them,—if I am driven to make such an option. You obligingly lament that you are not to have me for your advocate; but if I had been capable of acting as an advocate in opposition to a plan so perfectly consonant to my known principles, and to the opinions I had publicly declared on an hundred occasions, I should only disgrace myself, without supporting, with the smallest degree of credit or effect, the cause you wished me to undertake. I should have lost the only thing which can make such abilities as mine of any use to the world now or hereafter: I mean that authority which is derived from an opinion that a member speaks the language of truth and sincerity, and that he is not ready to take up or lay down a great political system for the convenience of the hour, that he is in Parliament to support his opinion of the public good, and does not form his opinion in order to get into Parliament, or to continue in it. It is in a great measure for your sake that I wish to preserve this character. Without it, I am sure, I should be ill able to discharge, by any service, the smallest part of that debt of gratitude and affection which I owe you for the great and honorable trust you have reposed in me.”

Truth be told, Burke was not returned to his seat in the next election, but that is not the point. He chose to act on his view of truth, sincerity, and the defense of “a great political system.” Furthermore, these are not just the ravings of an eighteenth century politician. They have served as a moral guideline to more contemporary legislators as well.

The best example may be found in the person of William Moore McCulloch (R) of Ohio. McCulloch serve in the House of Representatives from 1947 to 1973. He became ranking member of the House Judiciary Committee, and, in that capacity, was one of the first to introduce civil rights legislation in that body. He joined with President John F. Kennedy in pushing the legislation that became the Civil Rights Act of 1964. McCulloch was a conservative. He had few minorities in his district. He played his pivotal role because he thought that it was the right thing to do. It wasn’t a popular role with his constituents, and it certainly wasn’t particularly popular among Republicans. He did it because it was the right thing to do, given his moral precepts.

To make the story of William McCulloch complete one must turn to his district office. On the wall of that office was a framed copy of Burke’s letter.

Of course, there is another way to deal with pressures of legislative decisions. Some Republican members have elected to resign from Congress. Senator Jeff Flake of Arizona was specific in declaring that differences with the President and his Republican supporters in Washington led to his decision. Others have not been so specific. Burke would probably counsel them that principled action in office is to be preferred over resignation.

One must decide, regardless of party affiliation, what principles underlie that affiliation. Furthermore, as Burke so eloquently pointed out, principles must come first. We can be much more tolerant of representatives who identify the principles upon which they base their actions even when we disagree with their votes.

Impeachment has been the topic of heated discussion in recent weeks. On one hand, some are calling for immediate impeachment of the President and for his removal from office. Others describe the current investigation as a “witch hunt” and the procedures as “illegal” and “unconstitutional.” As a life-long civil libertarian, I cannot avoid adding my thoughts. I cannot claim that they are particularly original, for I have seen many of them expressed by others in recent weeks. I seek only to organize and present them in a different manner.

Impeachment is a constitutionally authorized process, but that document contains only vague substantive guidelines and no procedural guidelines. “High crimes and misdemeanors” is a phrase that may be interpreted in many ways. However, it has historically not be interpreted as including only violations of statutory law. One can only wait to review any articles of impeachment adopted by the House of Representatives to do determine whether the alleged behaviors constitute an offense. Those who have already convicted the President have their own list of offensive behaviors, but these may or may not be the behaviors cited by the House. Will the language used in the telephone call with the President of the Ukraine be the only behavior included, or will other behaviors deemed to be “obstruction of justice” be included as well? It is wise to wait and see.

The President deserves procedural due process of law as does any other participant in American judicial proceedings. I recognize that impeachment proceedings are not, strictly speaking, judicial, but considering them to be so allows us to provide important procedural protections.

As many legal scholars have pointed out, procedural due process guarantees apply to a large degree during trial. These include the right to confront ones accuser, the right to counsel, the right to a speedy trial, etc. In an impeachment, the trial is that event which occurs with the Senate as jury and the Chief Justice of the Supreme Court as the trial judge. We are not yet at that stage.

What is occurring now is an investigation. Witnesses do not have a right to counsel. The proceedings do not have to be in public, and, indeed are usually not. Technically, there is no accuser, because no formal accusation has been lodged. Nothing that occurs so far seems to violate any statute nor any constitutional provision. In fact, the presence supporters of the President and their ability to ask questions during depositions goes well beyond normal due process protections.

The release of transcripts of witness testimony and the conducting of open hearings as the next stage add elements of transparency which are politically valuable but not required by statute or the Constitution. The current process can, I believe, be compared to the preparation for submitting potential charges to a grand jury. In this situation, the grand jury would be the House of Representatives. It is that body that determines whether the charges warrant a trial.

The accused has no right to be present, to be represented by counsel, or to call witnesses before a grand jury. The fact that current and former impeachment rules adopted by the House permit the active participation of members who support the President and allow those supporters to ask to have witnesses appear represents a recognition that this is not a normal judicial proceeding and that a more generous procedure is called for.

If Articles of Impeachment are adopted, the matter passes to the Senate for trial. Ordinarily, jurors would be carefully screened to determine prejudice including close association with the prosecution or the accused. Obviously, the Senate fails this test. It is a partisan body. Few expect it to carefully listen to the evidence presented and to render a verdict based upon that evidence alone. Most of us expect Democrats to vote for removal and Republicans to vote for acquittal. There will be exceptions, but they will be insufficient in number to alter the outcome.

Much of the current rhetoric is clearly partisan wind. “There was no ‘quid pro quo.'” “There was ‘quid pro quo’, but it was not illegal.” “Soliciting information about a political opponent from a foreign government is not illegal, because that information is not ‘something of value.'” “Refusal to testify before House committees is a permitted defense of the President’s executive powers under Article Two of the Constitution.”

The first three statements clearly assume that the call with the Ukrainian president and the events preceding it will form the basis of any House resolution of impeachment. That is probably the case, but a competent defense will wait until they know, specifically, what the charges are before formulating a defense. This politically difficult in the current situation, but some discipline in this area would benefit the President and his defenders.

The final defense is focused on potential obstruction of justice charges. It raises constitutional questions which will have to be resolved by the Supreme Court. I am sure that most of them are not looking forward to the task. To me, Article Two provides no such protection, and my reading of constitutional history tells me that most of the “founding fathers”, however you choose to define them, would be horrified by the monarchical implications of such a claim.

In spite of the search for instant headlines in the media and sharp changes in polling results, it is prudent to sit back and wait for the process to unwind. Consider the number of people who have been portrayed as clearly guilty by the media but who have, in fact, been innocent of the particular offense with which they have been charged. What will the final charges be? What evidence will be offered in support of them? What defense will be mounted to these specific charges? What did the Senate decide, and how did those individuals explain their decisions?

Although the cry of “fake news” is a relatively recent phenomenon, the practice of disseminating news that is not true has been around for a long time. False stories and rumors have been commonplace in politics, business, and everyday personal relations for a good deal longer than I can remember. Foreign governments and political agitators of every stripe engage in what communists used to call “agitprop” in order to disrupt governments and societies. However, there should be some reasonable criteria for determining whether or not news is “fake.”

The guidelines for those who would report news have always been pretty clear. What happened? Where did it happen? When did it happen? Who was involved? Why did it happen? If the answers to any of these questions is contrary to fact, then a story is, at least, partially false. A story with one or more false elements is not necessarily “fake news.” It may be a mistake. Good journalists are trained to admit their mistakes and to publish or broadcast corrections. Fake news is “news” that is deliberately created out of whole cloth. It is published with the knowledge that one or all of the “W’s” is incorrect. Fake news is not just news that does not fit into our current world view. If the “W’s” are all correct, then we must deal with it no matter how unpleasant it may be.

The last of the “W’s” is always the most difficult. If it involves a discernible fact, e.g., the brakes failed on the truck, there is no problem. But when human motivation is part of the answer to the “Why?” question, things get difficult. All of us have a tendency to attribute evil motives to those whom we dislike or distrust. We cannot accept the fact that those whom we find distasteful might, on occasion act according to good motives. Neither can we accept that our friends and heroes may, occasionally act with bad motives.

The conspiracy theorist always has an answer to this. The reason that you cannot verify the five “W’s” listed above is that “they” are continuing to hide the real facts from you. One current movement is said to derive from an unidentified source within the government who is seeking to counter the machinations of the “deep state.” Of course we just have to take the statements of such groups at face value. “They” would enact horrible punishment on the true patriots behind the movement. If you are a journalist, intelligence officer, or law enforcement official who questions such assertions, you are, obviously, one of “them.”

Very little of the current reporting by the traditional mass media would fall into the “fake news” category. We can see and hear current events happening in real-time. The sense of what, when, where, and who is usually not in doubt. When we receive “news” from non-traditional sources, we have many electronic resources that will enable us to check it for accuracy. Of course, if it fits with our preconceptions, we tend not to do that.

A major problem that I see as addressed too little, is the fact that much of what is broadcast and printed in the mass media is not news at all. In order to fill the time and space, the media resort to telling us what others think that the news means. Whether it is Shields and Brooks on the News Hour or Fox and Friends, it is opinion and not news. I love to read disgruntled conservative columnists, but I know that I am not reading news. There is nothing “fake” about the opinions that are expressed. In this sense, one might reasonably charge the media with hubris. It is a particular problem when these commentators and columnists are either grappling with the answer to the “Why?” question or attempting to tell us what current events mean for the future.

There is one media practice that does hinder the communication of news events. The result is not news that is “fake”, but news that is miscommunicated. This practice is the introduction of false excitement and hyperbole. Those of us who are old enough to remember Cronkite, Mudd, Huntley, and Brinkley can recall news that was delivered in a serious, straightforward manner. Today broadcaster must display excitement and/or concern. What is more, in both broadcast and print media, the use of unnecessary adjectives and adverbs introduces both false excitement and value judgements. The use of such words as “iconic”, “amazing”, “unbelievable”, “heroic”, “terrifying”, etc. not only are attempts to excite passions about the story, but also tend to diminish the traditional meaning of the words. I have frequently observed that the acts of all true heroes are diminished when entire classes (i.e., all veterans) are labeled as heroes. What are those of the orthodox faiths to think when every entertainer, athlete, or petty politician is labelled an “icon?” If something is not to be believed, why should I waste my time reading or listening about it. If it is unbelievable, maybe it is “fake news.” Deleting unnecessary adjectives and adverbs from the news would provide more time and space for real reporting. It brings to mind a quotation from the old TV show, Dragnet. “Just the facts, Ma’am.” Let us keep the opinion to the editorial pages (or, perhaps, the comics). If they give me the facts, I will tell them whether or not I believe them, whether or not I am amazed, and whether or not I held the subject of the story in particular reverence. I don’t need help, and neither do you.

I generally attempt to keep my sense of outrage under control. However, as events have unfolded over the last two days, I find it impossible. President Trump’s performance in Helsinki was, indeed, historic. Twenty-seven of my thirty years in the US Army were in intelligence. Through my own experience and that of my son, Craig, I have accumulated many tales about decision-makers ignoring intelligence professionals. It is not even unusual for them to blame the intelligence community if things subsequently go wrong. The ignoring of warnings has now gained new levels. Our President has cited the findings of all of his intelligence agencies with respect to Russian electoral interference and recited the sober denial of the Russian president. In balance, he finds no reason to believe one rather than the other. Are the interests of our intelligence community and Mr. Putin the same or even roughly equivalent?

President Trump followed up by saying that he could think of no reason why Russia would want to interfere. Then, in response to a question that asked whether he had favored Mr. Trump’s election, Mr. Putin replied, “Da.” I think that no one in the audience required a translation, but they received one anyway. The circumstantial chain of evidence is bolstered by a chain of direct evidence as well. Multiple intelligence agencies traced hacking and disinformation campaigns to Russian government computers. The efforts that had any partisan tone were directed at the Democratic National Committee and Secretary Clinton. Mr. Putin maintains direct control of the activities of the Russian government, and he has admitted to wanting Mr. Trump to win the election. Much of the direct evidence for this has been presented to a grand jury that returned an indictment of twelve Russian government officials.

President Trump continues to insist that this whole affair has been orchestrated by “deep state” opponents in the Intelligence Community and the FBI. This anti-Trump conspiracy has allegedly gained momentum even after the President appointed the major actors in the offending agencies. I gather that we are supposed to weep and paraphrase Shakespeare, saying, “How sharper than a serpent’s tooth it is to have a thankless appointee!”

The whole affair is made worse by the fact that it was played out on a public stage. While the world was still recovering the President’s embarrassing performance in Brussels and the UK, he decided to stay on stage and improvise some additional lines. How it is possible that such actions will “Make America Great Again?”

It seems that Donald Trump desires to be deemed a truly historic figure as President. As he approaches the end of the first half of his term, it appears that he will be successful. He may beat out such luminaries as Millard Filmore, Franklin Pierce, James Buchanan, and Warren G. Harding for the title of America’s worst President. Why would Vladimir Putin want such a person as President of the United States? A better question is, “Why would he not?” The President’s behavior is of no possible aid to the interests of the United States and, potentially, of great benefit to Vladimir the Great. [This sobriquet was kindly provided to us by a Russian citizen who was introducing us to Moscow.] Both presidents appear delusional. Of the two, Mr. Putin appears closest to fulfilling his dreams if Mr. Trump is allowed to further weaken NATO and insult our allies.

I suppose that there is faint ray of hope. The nation survived Filmore, Pierce, Buchanan, and Harding. One might even claim that our nation has risen to new heights since the last of these worthies occupied the Oval Office. Unfortunately, the major difference lies in the fact that we were largely able to keep their lack of ability to ourselves. Today, we are blessed with instant information that is available world-wide. What causes me to weep may cause others to laugh. They may laugh at what they see as a “strong” executive who battles the national and international establishment. In other countries, they may laugh as they perceive their own national interests as benefitting. There is little laughter in Latvia, Lithuania, and Estonia. They will be among the first to bear the costs of this behavior.

The nomination of Brett Kavanaugh has spurred me to greater thought about the Supreme Court and the reasoning process of its judges. Although I am not a lawyer, I have studied and taught Constitutional Law. I suppose that I am knowledgeable, but not an expert. In a recent column, Michael Gerson advocated a “serious discussion of constitutional interpretation.” This is my attempt to contribute to such a discussion.

Gerson and most other serious observers of our court system recognize that conservatives generally consider themselves to be “originalists” when interpreting the Constitution. This is certainly true of Judge Kavanaugh, Justice Gorsuch, and the late Justice Scalia. Oversimplified, this approach simply means that the intent of the framers or original authors should, by and large, be controlling in applying constitutional provisions. Gerson points out that this is harder than it sounds. First of all, there were multiple framers of the Constitution, the Bill of Rights, and subsequent amendments. Even if we limit our consideration to those activists in 1789, there is evidence of serious disagreement. Consider the two primary authors of The Federalist Papers, James Madison and Alexander Hamilton. There is abundant evidence that these “framers” and defenders of the Constitution interpreted that document quite differently. These differences led to their participation and leadership in the two major political forces of the time, the Federalists and the Anti-Federalists. Also, most of us would recognize John Adams and Thomas Jefferson as being among the founders. Their disagreements were both fundamental and fierce.

What this means is that conservative judges are able to “cherry-pick” the historical evidence in support of their position just as liberal judges are able to be creative in their reasoning. An excellent example of the problem can be seen in the various opinions offered in the gun control case of District of Columbia et al. v. Heller. The basic impact of the majority decision is to sever the connection between the Second Amendment and militia service. Justice Scalia’s lengthy majority opinion goes to great lengths to achieve that purpose, and Justice Stevens’ dissent uses a different historical interpretation to assert the connection.

Justice Scalia explains the phrase asserting the need for a “well-ordered militia” as declaring a purpose for the amendment without affecting the application of its guarantee of the right to bear arms. The discussion is quite scholarly, but I have great difficulty believing that James Madison, the author of the amendment, went through this reasoning process when he drafted it. As Justice Stevens pointed out in his dissent, Madison included language in his presentation to Congress that would have exempted conscientious objectors from militia service. Scalia’s response was to say that this language wasn’t included in amendment, so we cannot considered it in determined “framer’s intent.” What we have then, is a claim that we cannot consider language in the amendment as binding for linguistic reasons and that we cannot consider part of a written argument by the author of the amendment because those words were not included in the text.

The majority’s contention in Heller that fear of standing army was a motivating factor in the crafting and adoption of the amendment is quite correct. The problem was that the Federalist founders, particularly Hamilton, felt that a standing military and naval presence was necessary to protect both the existence of the new nation and its commercial activity. The Anti-Federalist founders feared standing armies as instruments of oppression and insisted upon using a militia for this purpose. It is quite possible to logically contend that this very argument strengthens the connection between the preparatory and operative clauses of the amendment. Furthermore, the events of the 19th, 20th, and 21st centuries and our subsequent dependence upon standing military forces give support to Justice Steven’s later argument that the Second Amendment should be abolished entirely. Furthermore, it is entirely possible that Justice Scalia’s lengthy discourse on the right of citizens to rise up in arms against oppressive regimes could be taken by many as a justification for the many militia movements scattered about our country today. At least, that is how most of them justify themselves.

Note that the argument above is based entirely on an “originalist” approach to interpretation. That is why it illustrates Gerson’s point so well. Indeed, it is not until later in the opinion that the more current cause of the day, regulation, is considered. The Court appears to unanimously agree that regulation of firearms is permitted under the Second Amendment. The majority simply held that the District of Columbia went too far.

There is precedent to suggest that the amendment was intended to preserve the right to own weapons “in common use.” [See the text of D.C. v. Heller for extensive citations.]
On this basis we cannot question the laws that ban ownership of fully automatic weapons, grenade launchers, and anti-tank weapons. The question remains, “What can be banned?” Herein lies the difficult. The framers don’t help us at all. Common sense might help. As I argued in an earlier essay, and Judge Kavanaugh argued more eloquently in his dissent in D.C. v. Heller at the appellate level, the use of the term “semi-automatic weapons” in such bans is silly and clearly violates the “common use” criterion as applied today. The characteristics of the so-called “assault weapons” that make them dangerous to society are the ability to direct a large volume of fire at a target and the ability of the ammunition used to inflict great damage to the target. It is those same characteristics that make them useful for military purposes and dangerous for civilian purposes. Furthermore, the practical difference between a fully automatic weapon and a semiautomatic weapon with a 30-round (or even a 15-round) magazine may be trivial if you are on the receiving end. (My recollection of the Browning Automatic Rifle with its slow cyclic rate of fire is that I could pull the trigger that fast on an AR15, and most AR15s have larger magazines.) The basic point is that reasonable regulation is possible under Heller and that local, state, and federal governments should put aside the more extreme views of the NRA and enact some controls with respect weapon ownership. In addition to considering magazine size and ammunition characteristics, they might want to expand examination of mental and criminal background when permitting sales and possession. I doubt that James Madison would have approved of having a musket in the hands of a homicidal maniac.

There is a final aspect of “originalism” that is worthy of consideration. It is one thing to base one’s announced criteria for constitutional interpretation on the framers’ intent, but quite another when it comes to applying those criteria. One runs the danger of discovering conflict with other deeply held values whether moral or practical. The media have widely reported that Judge Kavanagh is both an “originalist” and a defender of executive power. My wife, Dorothy, picked up on this immediately. She pointed out that one of the driving motivations for the framers of the Constitution was fear of executive power in the form of kings, queens, and emperors.

To be sure, one can find advocates of a broad interpretation of executive powers in the Constitution in such Federalists as John Adams and Alexander Hamilton. It would be interesting to hold Judge Kavanagh’s definition up against that of Adams and Hamilton. I suspect that the passage of time between the 18th and 21st centuries might cause significant differences. There has also been considerable criticism of the last Administration and its claim to “excessive” executive power. Perhaps some eager legal scholar will comb through the Judge’s opinions and find language which might be applied to actions of President Obama. Is it at all possible that years of service in the Executive Branch and the White House itself has colored his view of the political world? I find myself wondering what the framers and adopters of Article Two of the Constitution would make of our current President. I think back on the virulence of Thomas Jefferson’s criticism of John Adams. It almost makes me an “originalist.”

I attempt this essay with a great deal of discomfort. I recognize that my views on this subject are at variance with those of members of my family who are near and dear to me. Recent events have moved me to give greater thought to what I see as a serious problem, although I confess that my thoughts may be more directed toward mitigation that solution. At any rate, here goes nothing.

I am struck by the degree to which the phrase “semi-automatic weapon(s)” seems to dominate much of the discussion involving guns in America. There is something ominous about the phrase, and its breathless use in the mass media serves to inflame matters. A “semi-automatic” weapon is one that discharges with each pull of the trigger until the cylinder or magazine is empty. As a category, it excludes single-action revolvers and bolt-action, pump and single-shot rifles and shotguns. To be sure, the fact that a weapon is “semi-automatic” implies an increased rate of fire and that implication is serious. It also seems to be true that serious, competitive marksmen do not normally use semi-automatic weapons in competition. The same may, or, perhaps, should be, true of hunters. But is equally true that serious criminal acts are committed with firearms that are not semi-automatic.

My understanding of history is critical to my approach to this subject. In the early years of the 20th Century, semi-automatic weapons were unusual, even in the military. The earliest exceptions were the double-action pistol and the 1911 Colt .45 pistol. Up until the 2nd World War, military long guns tended to be bolt-action magazine-fed weapons like the Springfield and Mauser. As we entered the war, the military recognized that the rate of fire for a rifleman could be increased if they did not have to operate a bolt between shots. Thus, the M1 Garand and the M1 and M2 carbines were introduced to the U.S. Army. Some of the carbines were capable of full automatic fire. These weapons remained standard for our military through the Korean War.
After that, there was a relatively brief attempt to switch to the M14 rifle which fired a NATO standard 7.62mm round. These weapons proved to be unsatisfactory. I (and many others) thought the M1 to be a far superior weapon. We entered the Viet Nam era with the M14, but quickly moved to a new design, more suited to what the military saw as modern combat.

Thus was born the infamous assault rifle. The military wanted a basic weapon that would increase firepower without radically increasing the weight of the “basic load.” They also sought to increase the effectiveness of the round fired. The result was the M16, which became the standard weapon of the Viet Nam era. It was light. It had the capacity of both semi-automatic and full automatic fire. It fired a smaller .223/5.56 round. The smaller round permitted larger magazines. Design and engineering problems apparently made this weapon less that ideal for the military. There were many stories of the failure of the M16 and of troops picking up Kalashnikov AK47s as replacements. Today, the military is replacing this weapon with a lighter, more reliable version, the M4 carbine, which is limited to three-round bursts (although a full automatic version is available).

The various versions of the AR15 under discussion today are improved versions of the M16, limited to a single round with each trigger pull unless modified by a “bump stock” or some other after-market equivalent. Here is the point at which I will get particularly controversial. The large capacity magazines for these weapons were originally designed to increase the rate of fire for the military. The rate of fire is intended to be directly related to the casualty rate achieved by the firer. The selection of the .223/5.56 round enabled the military to reduce weight without losing the ability to cause maximum casualties. I cannot completely detail the ballistic characteristic of this round. What I can do is repeat the statements of those in the medical community who have seen and, sometimes, treated people with wounds related to this ammunition. Apparently, it causes maximum internal damage to flesh and organs. It does not leave a “clean” wound. It is well-suited to its original purpose.

I cannot see a real, civilian purpose for such ammunition or for a delivery system that is designed to put it out at a high rate of fire. The system is not well-designed for hunting or target shooting although it can be used for these purposes. At a minimum, a ban on civilian sale of this ammunition and the large capacity magazines associated with it would be in the public interest. Those who are interested in weapons for self-defense can be served by traditional weapons although I continue to doubt their efficacy for this purpose.

Would my proposal eliminate all mass shootings? Clearly the answer is “No.” However, decreasing the rate of fire and the damage caused by the ballistic characteristics of a single round would significantly reduce both the casualty and mortality rate of such shootings. In my calculus, any damage to the rights of marksmen and hunters or even those who are “standing their ground” is not as important as protecting human life.

I believe that there is a Second Amendment argument to be made in support of my position, but I will save that for another post.

I suspect that no one is really sure who the first inhabitants of the territory know as the United States of America were. Unlike Africa and Australia, we have not identified any truly indigenous people. However, I am reasonably sure that few of us today can identify a direct path of ancestry from that person or persons. Over the centuries, “Americans” have been suspicious, if not openly contemptuous, of those who followed them as immigrants. While those tribes that inhabited the East Coast may, at first, have been only curious about that new wave of immigrants who indicated that they were here to stay in the early 1600s, they soon learned that differences in race, religion, and culture would lead to conflict. My immigrant ancestors were insistent and often brutal in their contention that this new land, this ” city on the hill,” was theirs. As each new wave of immigrants became more diverse with respect to nationality, religion, and culture, they were met with hostility only to turn around and exhibit the same attitudes toward those who came later.

As someone whose immigrant ancestors all arrived in this country before the Revolution, I do not share the sense of privilege that appears so often among members of the DAR and the SAR. After all, although we share some 17th century roots in New England, most of my wife’s ancestors come from Sweden in the 19th century. We are both comforted by the fact that one can stretch a current Norwegian preference to include other Scandinavians. The difficulties associated with attempting to maintain and “hands off” open border policy in today’s world, suggest that an imposition of limits on immigration may be appropriate. The difficulty lies in determining the size of an annual immigrant population and the criteria to be used in selection. It is also necessary to consider the status of refugees and to determine how they are counted and whether different criteria apply to them. To make matters even more difficult, this determination is, apparently, going to be tied directly to the fate of those “dreamers” who were brought to this country illegally as children.

Closely tied to this debate is the argument over what constitutes citizenship by birth. Currently, the USA recognizes both ius sanguinis and ius soli. The first means that any child who has one parent who is an American citizen can claim citizenship. The second means that any child who is born in the USA can claim citizenship. Obviously, this means that many children of illegal aliens can claim citizenship. Some would limit automatic citizenship to those born of an American parent. To me, this is the least alarming of the many approaches to immigration reform and long as it is not applied in a manner that violates provisions against ex post facto legislation. That is to say that it cannot apply to anyone who was eligible for citizenship prior to its passage.

The issue of numbers is a difficult one. It is particularly so if we eliminate the reuniting of families as a major selection criterion. If we are not to count on family members, we must make sure that there are sufficient institutions in place to ensure that immigrants are properly settled and acculturated. We appear to do well in this respect in our treatment of refugees, but there is alway room for improvement. Do we simply issue a visa to a Norwegian brain surgeon and leave him on his own? That might work only because she is likely to speak better English than many of our current citizenry, and she is likely to attract an employer who will assume the settlement and acculturation functions. But what of the others?

One of the suggested reforms is the granting of preference to those prospective immigrants who offer particular skills that are determined to be in demand in this country. Our friends in Australia, New Zealand, and other democratic countries follow this practice. Of course, the principal question is, “Who decides on the list of skills?” After all, many employers in this country have taken advantage of advances in communication and shipping to go outside of this country to find skilled labor at low prices. (There is also some evidence that they are sneaking “temporary” workers in this country to perform jobs in construction that would normally be filled by US workers.) A rational argument may be made for skill-based immigration, but I am bothered by the fact that many of my ancestors came to this country on bases totally unrelated to any skill set.

Most of our immigrant ancestors were religious, political, or economic refugees. To be sure, some of them were members of the establishment seeking to gain greater wealth in a developing economy. Some of them were even refugees from the law. As long as they had money or labor to exchange for passage, no one worried much about their skills. It was good luck rather than wise policy that enabled the US to grow as it did. We grew because of the energy of the talented and in spite of the sloth of the scoundrels. We gave people the opportunity to prove where they should be classified. Among our immigrant ancestors, my wife and I can count farmers, tradesmen, chefs, pastors, and saloon keepers. We can also find draft dodgers and wastrels. Where would we be if any of them had been eliminated.

I can find other interesting examples as well. One well-known American springs from an immigrant line that is more recent than mine. His grandfather came to this country after amassing a considerable fortune as a keeper of saloons, some of which offered “Rooms for Ladies,” in the mining towns of the US and Canadian frontier. He attempted to return to the country of his birth but was refused admission because he had avoided military service. While his occupations were legal at the time, they hardly constituted skills for which there was great social or economic need. Furthermore, he was a criminal. Would we be better off had he been denied citizenship here or even resident status?

Finally, the abandonment of family-based admissions seems particularly difficult for me. If I am to believe public statements by political and religious figures, family and family values are deemed to be particularly important among the more conservative elements in our country. I share their view. It is only logical, then, that the reuniting of families should be of prime importance when considering immigration criteria. Of course, even family members must be subject to “vetting” in these perilous times. After all, if grandpa is an ISIS-loving ax murderer, we don’t want to admit him regardless of his many virtues as a grandparent. While no vetting process is perfect, I would contend that DHS and other agencies can do at least as well as domestic agencies in identifying potential political and religious lunatics.

In short, our Congress is about to engage in an enterprise that is full of pitfalls. As usual, there is little sign of careful study of real problems. There is the usual plethora of draconian solutions for problems that may or may not exist. To make matters worse, the entire approach to immigration reform appears to be tied to the fate of the “dreamers.” I understand the politics of this, but that does not make it easier to accept.

First of all, I must confess. The problem with this type of communication is that, when you commit an error, all can see it. In my blog on the tax bills originally proposed by the House and Senate, I greatly overstated the amount of our increase. I combined two methods and came up with an erroneous base. In fact, these bills would have increased our taxes by only 11-12%. Now, after the reform bill has become final, I find that our increase will only be about $93. That is certainly bearable, but it is, equally certainly, not a tax cut. I hope that the true working and middle class taxpayers fare better. It is likely to be so in the short run.

Some of the worst aspects of the original bills have been eliminated. Graduate students will not be taxed on their tuition waivers. Interest on student loans is still deductible. However, some things that are particularly bad for those seeking an education remain. I am particularly disturbed by the taxation of some college and university endowments. Many colleges and universities, including the two that I attended and one of my wife’s, have moved to “need blind” admissions. Under these systems, students are admitted based upon their academic qualifications and potential. Once admitted, financial needs are assessed. If students and parents are unable to meet some or all of the costs of attendance, the college endowment picks up the necessary costs. To the degree that endowments are taxed, the ability to continue such practices is diminished. This does not seem to be logical public policy. I can see the logic in taxing those endowments that are not reserved to purely academic purposes. I can see no logic in taxing funds intended to assist and broaden the educational experience.

I understand why “budget adjustment” procedures and rules required that some tax cuts be temporary. However, the effect of choosing individual taxpayers as the focus of these temporary rates has the effect of concentrating the impact of the failure to stimulate growth on these individuals while holding the corporations whose behavior contributed to that failure harmless. Ugh!

Why am I still harping about this failure? The first reason lies in experience. It hasn’t worked in the past, so why should it work now? Most economists agree with this view.
The second reason lies in my assessment of corporate behavior. Many business leaders have indicated that they do not believe that the tax act will result in higher levels of investment and growth or in significantly higher wages. They suggest, and I agree, that profits are most likely to be spent on stock buy-backs and purchase of other companies.
This can be traced to the fact that corporate executives are rewarded for “increasing shareholder value.” The most reliable, short-term way to do this is through reducing the number of shares outstanding or by adding value by the purchase of another enterprise. Expanding through capital investment and increased productivity linked to higher wages is, at best, a longer term process. We are fortunate enough to hold a significant number of corporate investments, and I have seen almost nothing in the annual reports of corporations in which we hold stock that would contradict my view. I have no doubt that we are profiting from this practice, but I do not think that it supports the supply side model espoused by the supporters of the recent tax bill.

We will see. I am sure that many will seize upon bonuses offered and the Wal-Mart increase of starting Pay to $11 and hour as evidence that the scheme works. I am more skeptical.

I know. The “tax reform” plan just announced by the House leadership is only a starting point. However, I am not a trusting soul, so I decided to run a few numbers myself. I wanted to see what the impact would be on us. I also know that reasonable people do argue about who is considered “middle class.” Most of the numbers that I have seen would include us in that group, although, perhaps, at the high end. We certainly are not rich according to any reasonable calculation.

My method was simple. I began with our 2016 Adjusted Gross Income. I then added in the exemptions and deductions that would no longer be permitted under the current proposal to achieve a new AGI. I then applied the reported tax rates — 12% for the first $74,400, and 25% for the balance. The result was a 47.3% increase in our tax bill. Our new “effective rate” would be 20.5% compare to the 2016 rate of 14.6%. We are clearly not part of any “middle class tax cut.” The President’s top economic advisor, Gary Cohn, is quoted as saying that “…everyone has got their own unique set of circumstances.” Therefore, it seems somewhere between disingenuous and dishonest to make sweeping claims about tax reductions for ill-defined economic groups.

Those that know me, know that I do not object to tax increases that pay for the goods and services we receive from government. I also am a believer in progressive taxation. I certainly hope that true “working class” Americans enjoy tax relief. I do remain suspicious. It appears that the tax relief is disproportionately slanted to wealthy individuals and corporations. It is entirely possible, then, that our tax increase is being used to pay for their tax decrease rather than for improved government services. The promise of “pie in the sky by and by” based upon unproven economic theories is insufficient consolation, the assurances of the current Council of Economic Advisers to the contrary notwithstanding.

I recommend that everyone do the numbers for themselves. Simply accepting glib assurances is dangerous. Even Mr. Cohn is recommending the same thing. Perhaps we might ask our Senators and Congressmen to run their numbers and to compare them with ours. I might be more charitable toward our Congressman if his taxes also increased 47.3%.

As I indicated in my initial post, I represent a strange mixture of political philosophies. I am a strong believer in civil liberties as well as a strong supporter of national defense and those who have engaged in it actively. In this context, I feel compelled to offer some observations on the current controversy involving professional athletes.

I have always believed in and tried to practice proper respect for the national anthem. When the national anthem is played, I believe that citizens should stand and place their right hand over their heart (or render a salute, if in the military service). I have attended many public events in which large numbers of people have not observed this practice. I have never attempted to determine their reasons for their behavior, but I suspect that they have nothing to do with any form of protest. Laziness and ignorance probably rank toward the top.

I have also observed numerous occasions on which the American flag has been treated in ways that are at variance with published standards and common sense. The flag should never be permitted to touch the ground. Its passing should be observed by standing with one’s hand over the heart or by rendering an appropriate military salute. The flag should not be displayed at night without proper illumination. In foul weather, only an appropriate storm flag should be flown. The flag should never be displayed as an item of apparel. How many times have all of us observed violations of these protocols? Are those that commit such violations protesting? Again, I think not.

This brings us to those who are, indeed, protesting. Professional athletes are “taking a knee” or raising a fist during the playing of the anthem. They are doing this, I believe, in protest over what they perceive as discriminatory actions (principally killing) by some police officers. Their right to protest is unquestionably protected by the 1st Amendment to the U.S. Constitution. The method of protest is certainly not one which I would choose or recommend, but I share many of their concerns. (I am thinking through an essay on the current St. Louis “cause celebre”.)
They have a purpose behind their behavior. Those listed earlier engage in the same behavior for no discernible purpose.

Over the years, I have supervised many people whose political and social views differed widely from mine. Many of them have engaged in demonstrations of which I did not approve. It never occurred to me that I should terminate their employment as a result of their views or practices. We have seen and heard employees of the Federal Government call for the firing of protestors. This is certainly questionable on First Amendment grounds and, apparently, a violation of Federal statute. There is an appropriate message in the behavior of many of the other athletes in the past weeks. Some have chosen to kneel in solidarity with their teammates before the anthem and to stand with an appropriate salute during the anthem. Others have elected to stand behind their kneeling teammates with their left hands on the shoulders of those kneeling, while standing and rendering an appropriate salute. By doing so, these players are supporting the constitutional rights of their colleagues while continuing to display appropriate respect for the anthem and flag.

Some of us may support the protesting players fully. Others may totally disagree with them. But all of us could well join those other teammates in respecting both the Constitution and our national symbols.

Following the President’s announcement of a “tax reform” outline, critics and supporters have had a field day. However, until the entire piece of legislation is drafted and released, we will not know who benefits from this “reform.” As I indicated in an earlier essay, the key lies in the effective tax rate imposed on individuals and corporations. That is the rate applied after all exemptions and deductions are subtracted from adjusted gross income.

My initial analysis of our own situation leads me to believe that the rates reflected in the tax tables must be significantly lowered if our taxes or going to go anyway but up. The elimination of personal exemptions and the deduction of state and local taxes has a significant impact on us and, I am guessing, many others in the “middle class” as well. It is important to note that the increase of the standard deduction for couples to $24,000 will have a positive effect for many whose deductions have traditionally been less than this amount.

While the current publicity about the “reform” has hinted at new rates for the top of the schedule, it has said nothing about the large number of other exemptions and deductions that exist for corporations and the very wealthy. For them we have rates without exemptions and deductions. For the rest of us there is news about exemptions and deductions, but not rates. Our local congressman is flooding the airwaves with self praise about the tax cut which he has helped to get for us. I cannot tell how he arrives at that conclusion from the information available.

While the proposal may mean large tax cuts for the wealthy and corporations as liberals claim, it may not. While it may mean tax cuts for many working and middle class people, it may not. Frankly, I suspect that much of the debate over the next few months will be of the kind that muddies the waters. Many of our elected representatives are clueless about the intricacies of taxation, and other are knowledgable but unwilling to share their knowledge with us.

Stayed tuned. I am counting on our taxes to increase.

The debate over our system of paying for health care continues without pause. Bernie Sanders and a number of Democratic colleagues have introduced a Medicare for Everyone bill. Nancy Pelosi has said that her priority is maintaining the Affordable Care Act. Some in Congress insist that the only way forward is to repeal the ACA. The President appears to have been on all sides of the issue, supporting at different times single-payer health care, repealing the ACA, and a number of different “replacement” bills offered in Congress. Throughout, the rhetoric appears to promise affordable, high quality health care for all.

Several things appear to me to be clear. Most important is the principle that, in order for coverage to be both high quality and affordable, the system must be universal. In any “insurance” plan, if the people paying the premiums are only those most likely to receive benefits, the plan must fail. Insurance in the private sector operates successfully on so long as premiums collected exceed benefits paid. There may be unusual short-term situations in which this is not the case, and those must be covered by retained reserves. This means that any system that does not require mandatory participation cannot by definition be universal, affordable and high quality.

The Affordable Care Act attempted to provide such a system but has experienced mixed success. It has not been able to achieve universality as of now. Younger, healthier people are still electing to pay fines rather than choosing to participate. Some states have elected not to expand Medicaid coverage for less affluent citizens. Political challenges have rendered the payment of government subsidies uncertain in the eyes of insurance companies. All of this has resulted in fewer choices and, probably, higher costs to individuals insured under the act.

Experience elsewhere indicates that the ACA concept is not fundamentally flawed. The Swiss system of health care is much like the ACA. Participation is mandatory. Insurance is provided by private companies. Government subsidizes premiums that exceed an established percentage of individual income. A number of plans are offered with a variety of deductibles and coverages. The system apparently works as designed. This may explain why the basic concept was popular in some conservative circles after the failure of universal health care in the first Clinton administration. The adoption of the basic scheme by the Obama administration must have somehow changed its basic character.

Now we come to single-payer systems of the sort championed by Senator Sanders et al., and practiced in a very large number of industrialized democracies. I have discussed the idea with some citizens of countries with the system (mostly Canadians), and have received generally favorable reviews along with the identification of some problems. Most have given the system high ratings for emergency and acute care. Elective procedures are another matter, and they usually involve surviving a long waiting list. Furthermore, there is alway the problem of defining “elective.” The most common illustration that I have heard involves hip and knee replacements. These are “elective” procedures in Canada. Most of my acquaintances who have required such procedures did not view them as “elective.” For them the alternative was miserable pain. Is this trade-off acceptable? For those currently without any coverage, I suspect that the answer is, “Yes.”

Perhaps the larger problem with Senator Sanders’ proposal is its cost. How is such a program to be funded? I gather that the senator simply says, “higher taxes.” Some analysts believe that he has underestimated costs. In any event, the tax portion of his proposal is coming “later.” A lot of troublesome questions remain. Is the current payroll tax for Medicare to be retained and at what level? Will employers be required to add their payments for health insurance premiums to their share of the payroll tax? If not, will they have to increase employee wages and salaries by the amount of those premiums in order to help employees meet a higher tax burden? (After all, such a requirement will not change the bottom line payroll costs for the employer.) Are private insurers to be forced out of the health care business? Will they be left with only “platinum” policies which exceed single-payer coverage? Will they be able to find a way to participate under something like the current Medicare Advantage program? If anyone has thought all of this out, I have not seen the results.

For now, this leaves me with Representative Pelosi (not one of my favorite government officials). I think that the ACA must be fixable. Why does the concept work in Switzerland? Does the Swiss experience offer us any clues? How do they enforce universality? What role, if any, is played by their cantons (states). What has been the per person cost of government subsidies? Are the Swiss just smarter than we are?

You will notice that this entire discussion has proceeded to this point without mentioning socialized medication. In spite of some of the hysterical rhetoric, neither of these approaches involves “socialized” medicine. Health care providers are free to practice on their own or as part of a private, corporate structure. However, it would be a problem if they would refuse to treat patients under any such universal system. Patients are free to select the doctor of their choice. It has always seemed to me that both providers and patients are severely constrained by insurance companies under our current system. Constraints are surely present under any universal health care system, but we should focus on the nature of those constraints rather than arbitrarily deciding that they are bad if they come from a government and good if they come from a private insurance company.