11/22/1963

Fifty-seven years ago today, I was in the first semester of my first year of college at Loyola University in New Orleans. It was a Friday, and I was looking forward to that evening. I was going to a school party on board a Mississippi River steamboat named The President, and had a date with who I considered to be a very attractive young woman.

Walking across the campus after lunch, I was on my way to a class when I heard the news that President Kennedy had been shot in Dallas, my home city. Classes were briefly held, but soon canceled. Students and faculty crowded into the student center where the lone television set— black & white, monochrome — was located. Those who couldn’t fit in listened to radios for the news that around 1:45 p.m. confirmed that the President was dead. Around 5:00 p.m. the afternoon newspaper’s final edition was delivered to the school racks bearing the headline “President Dead” in second-coming type that covered most of the first page (I kept a copy, but it was misplaced sometime during my various moves since. The Dallas Morning News font page from the next day is below). President Johnson took the oath of office in Air Force One, at Love Field, before taking off to Washington late in the afternoon. Those events and those of the next four days were a watershed in world history.

The event on the steamboat that evening was not canceled, but it turned out to be somber affair that lasted for about two hours of the four scheduled. At the time, most students were apolitical, though that would soon change with a vengeance. Classes for the next week were all canceled and I went home to Dallas for the Thanksgiving holiday on Monday.

That time was different in so many ways. In this writing the focus is on the communications technology as it was then.

Two of the most essential infrastructures our communications are dependent upon today are satellites and fiber-optics, Though AT&T had, with NASA, launched the Telstars 1 & 2 in 1962 & 1963 , they were of limited use, and not for the general public. Fiber-optics were limited to scientists imagination – some at the time might have said hallucinations. The existence of the Internet was unimaginable, except perhaps in science fiction. Telephones were limited to land-lines for most. All were rotary dial; DTMF (Touch-tone) had only been offered to the public as of November 18, four days prior to Kennedy’s death. Portable automobile telephones existed but they were very expensive to own and operate and had limited number channels which made them nearly impossible to use during peak hours. Cellular was 20 years away in the future. Televisions were all broadcast – no cable or satellite — and programming was limited to three national networks and a few locally programmed stations. FM radio existed but was of limited use. Some radio sets were AM/FM, but most available were AM only. Auto air-conditioning was an expensive add-on if you wanted it factory installed; most A/C was aftermarket. The only familiar and affordable imported car was the Volkswagen Beetle, though there were some luxury imports from Europe, and the Japanese Datsun (later Nissan) had newly arrived (and was considered a joke by many auto aficionados). Computers were all main-frame and programmed and data entered by punch cards produced by bulky keypunch machines. The availability of personal computers for home, or even office use, was unimaginable. Electronic calculators did not exist. Although mechanical adding machines, some electrically operated, existed they were limited to addition, subtraction, multiplication, and division. Slide rules were used to make more complex calculations, but the mainframe computers were necessary to do a large number. Air travel was expensive and limited. Overseas travel by air was beyond the means of most people. Sea transportation was a luxury and slow. Though more and more jets were put to use, airlines still used propeller engines on many routes. FAA regulations set fares and routes, limiting competition and expansion. Inter-city commercial passenger rail ravel was available, but declining mainly because of the expansion of the Interstate highway system. Nineteen sixty-three was technologically on a difference planet. It certainly was politically, socially, and culturally also. President Kennedy’s assassination, as well as the events of his administration, was responsible for a great deal of the changes, or at least the acceleration of them. The Apollo 11 visit to the moon eight years later, a Kennedy goal, was one. They might be topic for additional essays.

Dallas Morning New 11/22/1963

Presidential Tenure

This year’s presidential election had a minor significance to it. As it turned out, Donald Trump and his supporters were anything but pleased, and it is no secret where this writer stands in that regard. Nevertheless, it put Trump in a category with 12 of his predecessors. Let me explain.

Since the Constitution took effect, there have been 46 Presidencies not counting the one that will commence in January with 45 individuals as president. (Grover Cleveland served two terms, but they were split; he lost his reelection bid in 1888, but returned in 1892). During the 228 years, 12 elected incumbents were re-elected and served two full terms. These were: Washington, Jefferson, Madison, Monroe, Jackson, Grant, Wilson, Eisenhower, Reagan, Clinton, George W. Bush, and Obama.

During the same time, not counting Trump, 12 incumbents either did not run for reelection, or were defeated and turned out of office. It appears that Trump is the 13th, who broke the tie of that group with the two-termers. Maybe an unlucky number. The other initially elected one-term presidents were: Adams, John Quincy Adams, Van Buren, Polk, Pierce, Buchanan, Hayes, Benjamin Harrison, Taft, Hoover, Carter, and George H. W. Bush.

Of course, that only adds up to 24. What about the others? Five presidents did not finish the first terms they were elected to. William Henry Harrison, Taylor, Garfield, Harding, and Kennedy died in office (two were assassinated). Three did not finish a second term. Lincoln and McKinley were assassinated; Nixon resigned, the only President to do so. Franklin Roosevelt was re-elected three times, but died three months into his fourth term. The “accidental presidents” who took over upon the incumbents’ deaths or resignation were Tyler, Fillmore, Andrew Johnson, Arthur, Theodore Roosevelt, Coolidge, Truman, Lyndon Johnson, and Ford. Four were subsequently elected to one term each in their own right.

As mentioned above, Cleveland and Franklin Roosevelt were outliers because of Cleveland’s split terms; and Roosevelt’s election to four terms.

A four-termer will never occur again, or course, per the Constitution’s 22nd Amendment. There has been speculation that Trump might run in 2024 to become another split term President. This may be because some supporters believe Biden will screw up everything, if he lasts, but the chance is negligible. Trump’s age will be against him; the boomers have had their day.

An interesting note: When William Henry Harrison, died after barely a month in office in 1841, vice-president John Tyler insisted that he then became the President. Article II of the Constitution at the time stated that “In the Case of the Removal of the President from Office, or of his death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolved on the Vice President….” Some argued that Tyler was only an “acting President,” the “powers and duties” were his only temporarily, and a new President should be chosen in a special election. This mainly a partisan reaction. Harrison was elected as a Whig, but Tyler was a Democrat chosen as Vice Presidential candidate to “balance the ticket” and attract disgruntled members of his party. Many Whigs referred to Tyler derisively as “His Accidency.” As it turned out, this distinction had no practical difference and went nowhere. Tyler was accepted by everyone who matters as President. The precedent was established.

After President Kennedy was assassinated, the 25th Amendment was passed and ratified. It explicitly stated that upon the President’s removal, death, or resignation “the Vice President shall become President,” thus putting the rest any controversy in that regard.

The 25th Amendment also provided for filling a consequent Vice Presidential vacancy and standards and procedures to be followed in the event a President becomes disabled or otherwise unable to perform his duties. At least one commentator suggested that, given the virulence among certain factions his party and the apparent popularity of his future Vice President with those factions, future President Biden should watch his back. Not sure this writer buys into that concern, but we do live in interesting times.

Where is Tom T. Hall when you need him?

From the “you’ve got to be kidding me” files:

Tom T. Hall is a long-time country folk singer, noteworthy for “Old Dogs and Watermelon Wine” and “I Love (little baby ducks and old pickup trucks)” and others. He made a personal statement in his song “I Like Beer” that I have adopted as my own. Here are a couple of stanzas:

Whiskey’s too rough, champagne costs too much
Vodka puts my mouth in gear
This little refrain should help me explain
As a matter of fact I like beer

Last night I dreamed that I passed from the scene
And I went to a place so sublime
Oh, the water was clear and tasted like beer
Then they turned it all into wine
(groan).

Now professors at Virginia Tech David L. Brunsma and Nathaniel Chapman have decided that to like beer is racist. they have even authored a book How Beer Became White, Why it Matters, and th Movements How to Change It. Seriously. see https://www.brooklinebooksmith-shop.com/book/9781529201796 Details and excerpts on Amazon.

“They write: From the racist marketing of malt liquor to the bearded-white-dude culture of craft beer, readers will never look at a frothy pint the same after reading Beer and Racism.”

I have read a few pages of this drivel on Amazon’s website, but will not buy it, as I can think of a few hundred things to spend $25 on. Now, when you believe that this kind of idiocy has reached its peak, think again. This makes for low comedy, though some naive students might fall for it. As for me, will it change my attitude toward beer? Of course not, and it will not have the slightest effect on how I view a “frothy pint” — except possibly appreciate it while I can Perhaps the good professors should seek out a willing taxidermist and get stuffed — perhaps with the the product of their own vowel movements.

The Choice for Voters

Had to post something on October 25, since it’s this blog’s patron day. Here goes.

Many citizens are voting, not for Joe Biden, but against Donald Trump, and, more to the point, those who control him. The converse is true. They may rue the day.

Unfortunately, a lot of that mindset occur because so many of us most of us make choices based upon appearances, not substance. That is what we have to be concerned with in this coming election. Yes, Donald Trump can be rude, crude, and use bad grammar, but he has led in cutting taxes for all of us, reduced foolish (except for sponsoring special interests) and needless regulations, helped bring manufacturing jobs back from elsewhere offshore, and appointed excellent federal judges and Supreme Court Justices. His brokerage of normalization of relationships between Israel and some of its Arab neighbors should have earned him a Nobel Peace Prize, as similar achievements did for Jimmy Carter. It would have if he was anyone else.

For those who may disagree and favor voting for Joe Biden should consider the following points:

— Biden says he won’t raise taxes on middle class Americans. Maybe he would not, but a Democrat controlled Congress would, and he would let it. “Soaking the rich” never has worked, but it makes for a slogan to fool the uninformed. The rich don’t pile up their wealth in a money bin like Disney’s comic book character Uncle Scrooge. They invest it in productive, job creating activities. The middle class, and the poor, will pay through higher cost of goods and services and diminution of their IRA and 401k values.

— As for climate change, that is not the only area where the left-wing over-uses “existential” (Soren Kierkegaard would be appalled) but is the most. The phenomenon may be troublesome, but it won’t end human existence. To the extent it is human caused, the United States contributes a very small percentage of the emission that might be causing it. Biden says he wants to eliminate fossil fuels in the next decade or so, but he claims he won’t ban fracking, which produces much cleaner-burning natural gas. Anyway, Biden will allow a Democrat controlled Congress to try banning fracking and reduce petroleum production. Wind and solar will never take the place of fossil fuels for many energy purposes. Take air travel, for example. Given the current state of the physical sciences, it’s not even theoretically possible for any except a small model airplane to fly on electric power. The weight of batteries or size of solar panels would be prohibitive, as would a nuclear reactor, for that matter. The current breed of Democrats will also ban or reduce nuclear power, which it the only possible source of energy that could replace fossil fuels for widespread use — and it has zero emissions. (OK, radiation from accidents is a risk, but mostly in the mind of fans of 1950s dystopian movies. That is where safety regulations are needed, and are mostly in place. The only serious nuclear reactor accident in the 60 or so years they have been only was contained within the plant — the safety features worked!)

— Apropos to the last point, Biden and others of his mindset keep using the phrase “follow the science.” Well they should, realizing that “settled science” is an oxymoron. Free scientific inquiry? The first word is redundant, opined a famous author. Science is an ongoing process, not an orthodox shibboleth. Rigorous observation, testing, and analysis produce scientific theories are reliable when describing what and how something happened, or is happening. It cannot always predict the future, particularly when there can be, or are, an infinite number of factors that have to be considered, and no way to perform empirical tests. Dissenter scientists were once burned at the stake as witches. Today they are Twitterized, fired, shunned, or slandered.

— On the issue of labor law, Biden wants to raise the federal minimum wage to $15 per hour, abolish state right-to-work laws and eliminate the possibility of individuals to work independently and start small businesses. A minimum wage eliminates jobs, especially for unskilled entry level positions. Furthermore, it should be a state, not a national issue. Here’s is a link to a Wall Street Journal editorial October 23 that reveals a really dystopian vision. I am all for labor unions so long as their membership is actually voluntary. When it is coerced, the main beneficiaries are the union bosses. We learned that several generations ago. Also, curtailing gig jobs and making independent contractors become employees in all but a few industries (lawyers, for example) will stifle entrepreneurship. Many workers don’t want to be employees; they like the freedom of independence in their work. These are the primary reasons to keep Trump in office and at least a Republican Senate for another four years.

— Most of the articulated con arguments focus on the charges that Trump is a racist, misogynist, neo-Nazi sympathizer, and authoritarian. There is no evidence he is any or these. “Racist” has become an all-purpose epithet to shut down opposing views— on nearly any issue. Show me a racist act that Trump has committed. To the extent that Trump might have been a womanizer and even a philanderer, that is not synonymous with misogyny. He certainly does not advocate women having to wear burqas or hajibs, and he hasn’t drowned a paramour. Just because some neo-Nazi and others of that ilk like Trump, doesn’t mean he likes or supports them. And while, Biden and most of his supporters don’t approve of burning and looting, many are loathe to say so in public. As for being authoritarian, there is absolutely no evidence Trump is one. He might demand loyalty from those who work for him and within his branch of government, but as to the nation, he has been anti-authoritarian. He obviously believes in federalism — criticism of state and local officials is not out of bounds for anyone, much less a President. Some fool writer in the current edition of The Atlantic has opined that Trump is an American Caudillo. That is preposterous.

If one really wants to see an authoritarian government in this country. By all means vote for Biden. He might not last out his term and, anyway, the triumvirate of Harris, Pelosi, and Schumer (if the Senate falls) will demonstrate what authoritarianism really is. (I use that collective noun advisedly considering the sex of two of the three members.)

Finally, for those who dislike Trump for his manners or persona consider this observation: “I would rather have a good doctor with a poor bedside manner than a bad doctor with a good bedside manner.”

I invite dissent to my points, public or private.

Guns & Felons

Whether convicted felons should be able to possess firearms seems to be a no-brainer, at least on the surface. It appears obvious that if anyone is restricted from such ownership or possession, it should be those persons who have been duly convicted of a serious crime. A federal statute, 18 U.S.C. § 901(g) provides that a person who has been convicted of a crime that is punishable by imprisonment for more than one year, or two years if a state misdemeanor offense, is banned from possessing any firearm, or other dangerous weapon (whatever that might be), for the rest of their life.

The Constitutionality of this statute has been questioned by legal commentators and in a number of cases to the extent it applies to non-violent crimes such as regulatory offenses. So far it has been upheld in the federal appeals courts, though with dissents by participating judges in a few. The Supreme Court has not had a case that involved this issue as of yet.

During the recent U.S. Senate Judiciary Committee’s hearings on whether Amy Coney Barrett, a federal Court of Appeals judge and former law professor, should be confirmed as a Supreme Court Justice, at least one Senator on the committee questioned Barrett about this issue. What prompted the questioning was a dissent that Barrett wrote in an opinion in her role as a judge on the Seventh Circuit Court of Appeals upholding the statute.(1) That case involved an individual who had been convicted of mail fraud for representing orthopedic shoe inserts he was selling were Medicare approved when they were not. Her dissenting opinion would hold that in a case where the defendant was convicted of a non-violent felony, the statute would be unconstitutional under the Second Amendment to the United States Constitution, and the Supreme Court decisions that recognized the individual right to keep and bear arms. If Barrett is confirmed as a member of the Supreme Court, which appears likely at this juncture, and the court were to hear a similar case, the “felon in possession” law, at least at the federal level, could be modified to not apply for nonviolent offenses.

This prospect distresses many who are in favor of stricter gun control laws, particularly lawmakers on the Democrat side of the aisle. Why would anyone believe that someone convicted of a serious crime should not lose their right? After all, a felon has been convicted of a crime that Congress or a state legislature has determined to be a serious affront to public safety and order. And when one is convicted they can lose their liberty by incarceration, and lose their property through fines or forfeiture. In some states, a convicted felon loses their right to vote, to hold public office, to serve on juries, and other civic rights.

Conviction of crime does not allow infringement of religious liberties, freedom of speech, freedom from cruel and unusual punishment, and so forth. Should such conviction allow the government to curtail ones right to self-defense — especially when in their own home — and other lawful use of arms, as protected by the Second Amendment?

There are several things to keep in mind in this controversy.

There is a concept in law that categorizes offenses as either malum-in-se, meaning they are evil in themselves by commonly accepted standards, or malum prohibitum, that is, bad because they are prohibited for some reason other than they are inherently evil. It is obvious that, for example, murder, rape, robbery, assault, and similar offenses utilizing physical force, its threat, or potential, are evil. At the other end of the spectrum, jaywalking, driving without a license, damming a stream on one’s property that feeds into a navigable waterway, or shipping lobsters to market in the wrong kind of packaging, are not inherently evil.

At common law, felonies were few, and limited to acts of violence for the most part. Treason was a separate category at common law, and could include merely wishing for harm to the king. Felonies were all punishable by forfeiture, corruption of blood, and even (but not always) death. In some felonies such as theft, the punishment could be mutilation or branding — serious and exceptionally harsh punishment. Anyone who committed these crimes was considered not to be fit to live in the community or to remain there with significant legal and even physical disabilities. This, of course, is no longer the case in any common law jurisdiction. These punishments had been abolished in the English-speaking world and in many other cultures, by the end of the 19th century except for the most serious of offenses such as murder.

The statute, 18 U.S.C. § 901, discussed here provides that the prohibition extends to a conviction of a crime punishable by more than one year imprisonment. It does not use the word “felon” or “felony” in its language.

Offenses that provide for possible punishment of more than a year incarceration include over a thousand acts criminalized under the United States Code and state laws. Many of these are regulatory offenses defined by administrative bodies, and not necessarily by legislatures or Congress. Those administrative or regulatory crimes, with few exceptions, do not involve any kind of violent act, or threat of violence. The title of lawyer Harvey Silverglate’s Three Felonies a Day (2009) suggests the number, or more, each adult individual in the United States might unknowingly commit while going about their everyday activities.(2) What is worse, while Title 18 is the federal criminal section of the Code, there are numerous other crimes defined elsewhere in the Code — some in really obscure places — and in administrative rules that the average person, and even Justice Department lawyers, are unaware of, And this in a legal system where ignorance of the law is no excuse!

There have been recent calls from along the political spectrum for criminal justice reform. Many have called for an end of “mass incarceration” particularly regarding non-violent drug offenses. There is is also widespread criticism of the strict liability crimes, that is, offenses that do not require a culpable mental state such as intent, knowledge, or recklessness. Whether there is a political will to accomplish any such reform is not entirely clear.

In any event, this issue needs to be addressed in the Supreme Court. It “cries out for a serious and fresh look–the first serious look since the 1920s, and arguably the first ever in light of the historical right. The need is particularly acute given the cancerous growth since the 1920s of “regulatory” crimes punishable by more than a year in prison, as distinct from traditional common-law crimes. The effect of this growth has been to expand the number and types of crimes that trigger ‘felon’ disabilities to rope in persons whose convictions do not establish any threat that they will physically harm anyone, much less with a gun.”(3)

The over-criminalizing of activities that are not inherently evil coupled with the lifetime ban on the ability to exercise a fundamental right enumerated in the Constitution and recognized by Supreme Court is a danger to liberty. This is so even by the mere threat. It might seem remote to most of us. But consider the following warning written over 60 years ago:

Did you really think that we want those laws to be observed? We want them broken. You better get it straight that it is not a bunch of boy scouts you are up against — then you’ll know that this is not the age for beautiful gestures. We’re after power and we mean it. You fellows were pikers, but we know the real trick, and you had better get wise to it. There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted — and you create a nation of lawbreakers — and then you cash in on guilt. Now that is the system, that is the game, once you understand it, you’ll be much easier to deal with. (4)

Think about that.

Endnotes

  1. Kanter vs. Barr, 919 F.3d 437 (2019).
  2. Follow this link to see eight ways to inadvertently commit a felony. There are doubtless many others. https://www.mic.com/articles/86797/8-ways-we-regularly-commit-felonies-without-realizing-it
  3. See C. K. Marshall, “Why Can’t Martha Stewart Have a Gun?” 32 Harvard Journal of Law & Public Policy 695 (2009).
  4. Ayn Rand, Atlas Shrugged (1957) pb. 410.

Celebrate Columbus Day

October 10, 1492 — Here the men lost all patience, and complained of the length of the voyage, but the Admiral encouraged them in the best manner he could, representing the profits they were about to acquire, and adding that it was to no purpose to complain, having come so far, they had nothing to do but continue on to the Indies, till with the help of our Lord, they should arrive there.

October 12, 1492 — At two o’clock in the morning the land was discovered, at two leagues’ distance; they took in sail and remained under the square-sail lying to till day, which was Friday, when they found themselves near a small island, one of the Lucayos, called in the Indian language Guanahani.

— As translated in Journals and “Other Documents on the Life and Voyages of Christopher Columbus “ (1963) by Samuel Eliot Morison, pp. 62 – 64 (derived from a summary made by Bartolomé de Las Casas).

One of the current targets of the American left’s chagrin appears to be Christopher Columbus, the discoverer of the lands of the Western Hemisphere. Commemorative statues of the explorer have been vandalized and even removed from many cities and places in the United States. There is a movement — among some institutions and in places already successful — to rename October 12 to “Indigenous Peoples Day.” Perhaps those of us were born in this country should not be offended, currently being indigenous and native to America ourselves. But, of course, what the cancel culture has in mind is a sop to those (assuming most even care) individuals whose ancestors immigrated to the Western Hemisphere prior to Columbus’ arrival.

Anthropologists and those of related disciplines, have demonstrated that the original “discoverer” was the first human who crossed the Bering Strait, or the land bridge that formerly existed, several millennia ago. And Vikings briefly visited what are now the Canadian Maritime Provinces and perhaps the coast of Maine four or five centuries before 1492.

Columbus’s voyages of exploration and discovery, however, commenced the permanent connection between Europe and the Western Hemisphere and later the rest of the world. In most significant aspects, the New World over the next five centuries became the New Europe. The culture termed Western Civilization came to dominate the world, and its world has been much better ever since. Anyone that does not believe that it has is not paying attention.

The left in the United States, especially the majority of the university professoriat, are certainly among them. They are the blind who will not see. Their fiction is that Columbus and his immediate successors rapaciously conquered “paradise” and brought war, disease, racism, slavery, and oppression to the inhabitants who had long communed in harmony with nature.

Of course, this is nonsense. Western Civilization did not invent racism, disease, slavery, or warfare. Those maladies existed among humans from time immemorial, and still do, chiefly in places that have not yet accepted Western culture. The West, however, during the post-Columbus centuries ended slavery, drastically curtailed disease throughout the entire world, and made subsistence so abundant that as much, if not more is actually thrown away as consumed. The slavery that still exists is in places that have rejected Western Civilization. While racism, that is, tribalism, may have been mitigated, the leftist identity politics have given it a new life under a different name. War has not been eliminated; perhaps that is impossible for so long as there are those who eschew reason.

Christopher Columbus was in the vanguard of the West. He was the individual with the courage to strike out and risk his very life by sailing into the unknown to discover a new route, not for conquest, but for trade and commerce. He found this new hemisphere where Western Civilization was to expand and flourish. If it had not been Columbus, it doubtless would have been another European who came to the American continents. But no matter, he was the first, and over four voyages he made the connection between the old and new worlds permanent. This commenced what Texas historian Walter Prescott Webb called The Great Frontier — a four century economic boom that benefitted the entire world.

_____________________________________________________________________________

Note: Just this past week, adjunct professor Richard Taylor was punished by St. John’s College in New York for posing the question “Do the positives outweigh the negatives?” about the Columbian Exchange to his history class. That was the exchange of plants, animals, and diseases between the Old and New Worlds that occurred subsequent to Columbus’ voyages. The most noted of the exchange was the smallpox and other diseases the Europeans brought to the Americas, and the maladies unknown to Europeans that the sailors brought back. The short term effects of that exchange were devastating to the then indigenous inhabitants, but the long term effects may well have been, and are, beneficial to later ones. A debate on both sides of this topic is certainly an exercise that students and faculty should be able to have without being censured or canceled. See https://www.thefire.org/teaching-history-not-permitted-st-johns-bulldozes-academic-freedom-punishes-professor-for-posing-question-about-columbian-exchange/

Systemic Racism

(Endnotes in parentheses)

“Racism is the lowest, most crudely primitive form of collectivism. It is the notion of ascribing moral, social or political significance to a man’s genetic lineage—the notion that a man’s intellectual and characterological traits are produced and transmitted by his internal body chemistry. Which means, in practice, that a man is to be judged, not by his own character and actions, but by the characters and actions of a collective of ancestors.”
* * *
“Today, that problem is growing worse — and so is every other form of racism. America has become race-conscious in a manner reminiscent of the worst days in the most backward countries of nineteenth-century Europe. The cause is the same: the growth of collectivism and statism.”
* * *

“The smallest minority on earth is the individual, Those who deny individual rights, cannot claim to be defenders of minorities.” (1)

Ayn Rand wrote these words over 50 years ago. But her words live on as a present day description of the so-called “Progressivism.”

Fifty-plus years after a successful movement to eliminate legal race discrimination and institute remedies for such conduct, the cry of racism has emerged in three-digit decibels here in the United States. Why? The answer is contained in Rand’s essay. Racism is but a sub-set of collectivism, and that has been by no means eliminated, either officially, culturally, or socially. In fact, it has been encouraged by official acts, and imposed by popular culture, threats by employers, and, in some cases, by mob action.

Thus, the flaw in attempts to end race discrimination was that the legislation and judicial action enacted and decided with that goal in mind perpetuated collectivism that was inherent in racism.

“Systemic” means “relating to a system as a whole; inherent in the system.” or “fundamental to a predominant social, economic, or political practice.” (2) As early as 1967, the term “institutional racism” began to be used to justify such practices as “affirmative action” and other race-conscious activities in government. (3) That term has not been heard recently. One can suppose that there are some who believe “systemic,” which has generally been used in the medical context, might give some scientific aura to racism as pervasive or a disease of the entire body politic.

Is there “systemic racism “in the United States today? Well, yes. But not as our leftist cousins would like us to believe.

My recent experience with racism happened recently, and similar experiences have occurred over some time, as they have most of my adult life, and for sure, every ten years such as the present one.

The recent occasion spoken of in the above paragraph was my purchase of a firearm from a dealer. In order to make the purchase, I was required to complete ATF Form 4473. The purpose of this form was to ensure that eligibility to purchase and possess a firearm; that is, I was not a felon, mentally ill, et cetera. The questionnaire asks for identifying information, such as date and place of birth, height, weight, residence, and so forth. It does not ask for eye color or complexion hue. It does, however ask for the race and, whether buyer is “Hispanic” regardless of race. In other words, it asks you what tribe, recognized by the government, you belong to. It means the government classifies you by your accident of birth. This is also the case for the U. S. Census and a myriad of other forms. To purchase a firearm, to completer the Census, it is mandatory. True, one can classify himself or herself. (4) For non-government agencies and organizations, many such forms have options for “multi-racial” or “prefer not to answer,” but those still have a number of racial categories to choose from.

What is interesting about each person choosing the racial and ethnic classification he or she belongs to is that their choice cannot be successfully challenged. (5) Biologically, almost everyone is of mixed race, and thus there is only one: human. (6)

As an aside, since most anthropologists appear to agree that humans originated in the eastern and southern Africa, one can suppose that all individuals in the United States can claim to be “African-Americans.” (7)

The ATF is not the only agency that insists that an individual who interacts with it be classified by their supposed race. Other agencies do. For example, the EEOC regulations require employers who have more than a certain number of employees to do so. (8)

The national Census was required by the Constitution to implement apportionment of members of the House of Representatives. A controversy arose as to whether slaves, who could not vote, would be counted for that purpose. The states, mainly Virginia, and New York, which interestingly enough had a significant number of slaves, whose ratification of the Constitution was essential if the new federal government was to succeed, wished to include the slaves. Other states essential to ratification also objected, because counting the slaves would give disproportionate power to the state where they were a significant portion of the population. Thus, the compromise in which “three-fifths of all other persons” would be counted was included in Article One. (9)

After the 14th & 15th Amendments, it was no longer necessary to identify who was a slave versus a free person. Nevertheless, later enumerations identified persons by race or ethnicity, though such identifications were to an extent arbitrary, and sometimes ludicrous. More categories were added until the number in the current 2020 Census reached 14, plus “some other race, ” which I suppose could include Martian or Vulcan (which would be logical for Mr. Spock). The current form includes “Chamorro” — residents or those whose origin is in Guam. Why this is a separate “race” can doubtless be traced to a bureaucrat’s desire to curry favor with a denizen of K Street.

While actual enumeration of individuals continues to be necessary to decide the number of members of the U. S. House of Representatives allocated to each state, identifying the race or ethnicity of each person does not serve any Constitutional purpose. It should be eliminated, once and for all.

The late Nineteenth and early Twentieth Centuries saw academic acceptance of racial hierarchy and eugenics. Many intellectuals, who included President Woodrow Wilson, educator John Dewey, Justice Oliver Wendell Holmes, Jr., and feminist hero Margaret Sanger, promulgated those idea that were termed “progressive” in those days. (10) Apparently our current “Progressives” agree at least for their own purposes.

An official government website enumerates the ostensible reasons for asking the race question:

• Establish and evaluate the guidelines for federal affirmative action plans under the Federal Equal Opportunity Recruitment Program.
• Monitor compliance with the Voting Rights Act and enforce bilingual election requirements.
• Monitor and enforce equal employment opportunities under the Civil Rights Act of 1964.
• Identify segments of the population who may not be getting needed medical services under the Public Health Service Act.
• Allocate funds to school districts for bilingual services under the Bilingual Education Act. (11)

Affirmative action as it has been practiced is the most egregious form of government race discrimination. It, of course, assumes that one is inferior in some way because of their racial classification, and needs special treatment on that account to achieve some benefit or achievement. (12) More to the current point, a supposed beneficiary of an affirmative action program may be, and quite often is, assumed to have attained position, profession, or occupation only because of their race rather than their ability, and, perhaps, edged out a more qualified person. Whether it is a fact that many affirmative action beneficiaries are objectively unqualified for the status or position they attain, the perception is widespread, and is unhelpful in the quest to abate race or sex discrimination. (13)

Regarding voting rights, the Census does not publicly identify individuals, so to ascertain a pattern of supposed discrimination, those interested would have to assume that qualified voters in a particular voting precinct failed to vote because they were excluded from the polls because of their race, which might not be the case in fact. Many citizens do not vote because of indifference or simple laziness. Anyway, racial or ethnic discrimination in voting, housing, or employment should be enforced by individual actions based on intentional acts. The “disparate impact” concept as proof of discrimination is rampant collectivism, which is inherently both over-inclusive and under-inclusive.

Additionally, the Census is used for allocation of government largesse and is useful for private commercial uses. (14) But dividing and categorizing citizens (and non-citizen) residents by race only perpetuates the concept that and individual’s race should matter to the government. Obviously, in this case our government is still discriminating by race.

Many countries do not enumerate their inhabitants by race and ethnicity. France is one of the most notable. In that country, an individual is a French citizen or not. On July 13, 2018, the day prior to Bastille Day, the National Assembly voted to remove the word “race” from the Fifth Republic’s constitution. This comes some years after the word was removed from French legislation in 2013. (15)

Dr. Carolyn Liebler, an associate professor of sociology at the University of Minnesota worked with the Census Bureau to document how answers to the race question changed from 2000 to 2010. She found that 6.1% (9.8 million) changed their answers. If that trend continues in 2020, the Census’ expressed purposes for distribution of government largesse will become invalid. (16) Nevertheless, Dr. Liebler answered her rhetorical question why we ask the race question thus, “Because our society is organized by race. We treat it as real.” (17) Perhaps so, though one can certainly argue that no such “organization” exists. But the official treatment of individuals in this country as members of tribes only perpetuates the existence of racism. That is inevitable, and “systemic” when the government continues to treat it so.

Supreme Court Chief Justice John Roberts has declared “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” (18) Our government should start with the U.S. Census by purging the racial and ethnic information from current and past Censuses and eliminating the question from future ones. In his dissent in the 1896 case of Plessy v. Ferguson, which upheld the “separate but equal” doctrine for racial segregation, Justice John Marshall Harlan stated “our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” The doctrine was repudiated in the Brown v. Board of Education (1954), but our governments still tolerate discrimination on the basis of race. If “systemic” or “institutional” racism exists, it will persist so long as Justice Harlan’s words are ignored. (19)

Note: Doubtless there are those who would question this analysis, or parts of it. This blog is always welcome to such questions, if they are respectful.

Endnotes

  1. Ayn Rand, “Racism” (1963), reprinted at https://ari.aynrand.org/issues/government-and-business/individual-rights/racism/
  2. “systemic, adj. and n.” OED Online. Oxford University Press, September 2020. https://www.oed.com/
  3. See S. Carmichael & C. V. Hamilton, Black Power 4 (1967). (Cited by the OED in its entry “institutional.”)
  4. In our brave new world, it’s been asserted that one should be permitted to choose which sex (“gender” in wokespeak, a dialect of George Orwell’s Newspeak, I suppose) one wishes to identify with.
  5. Ann Morning, “It’s Impossible to Lie About Your Race,” (July 1, 2015, updated July 1, 2016) https://www.huffpost.com/. To enforce the “Jim Crow” laws, in the early 20th Century, some states adopted the so-called “one-drop rule” that and discernable Negro or black ancestry makes one “black” for legal purposes. This “is taken for granted as readily by judges, affirmative action officers, and black [and white] protesters as it is by Ku Klux Klansmen” interestingly enough (emphasis added). See F. James Davis, Who is Black? One Nation’s Definition (1991),
    excerpted at https://www.pbs.org/wgbh/pages/frontline/shows/jefferson/mixed/onedrop.html
  6. Many on the left, in their Orwellian doublethink way, challenge this concept as being racist itself. One particularly outrageous example is a recent Twitter statement by one Ibram X. Kendi, the director of the Center for Antiracist Research at Boston University, stated that the recent Supreme Court nominee Amy Coney Barrett and her husband adoption of two black children from Haiti, proves they are racists and “white colonizers.” One cannot make this stuff up.
  7. See Mounier, Aurélien; Lahr, Marta (2019). “Deciphering African late middle Pleistocene hominin diversity and the origin of our species” Nature Communications. 10 (1): 3406.
  8. See https://www.eeoc.gov/employers/eeo-1-survey/eeo-1-instruction-booklet.
  9. U. S. Constitution. Article I, Section 2. The “three-fifths” obviously referred to the aggregate number of persons counted, not three-fifth of each individual.
  10. Margaret Sanger has recently been removed from the pantheon by the woke crowd, notwithstanding her contributions to their cause, because they discovered she held some heretical beliefs. Revolutionaries always eat their old, as well as their young.
  11. See https://www.census.gov/acs/www/about/why-we-ask-each-question/race/
  12. One wonders if an ostensible racial category could be a disability and “affirmative action” considered a reasonable accommodation under the Americans for Disabilities Act.
  13. It might be added that many small businesses are formed with women (often spouses or siblings) or members of favored “minority” groups as token owners to obtain government benefits.
  14. See endnote 11.
  15. https://www.connexionfrance.com/ July 13, 2018. This move has not been without controversy, apparently for the same reasons there would be opposition here. It would prevent the use of identity politics and wedge issues based thereupon.
  16. As will its use for identification of alleged “disparate impact.”
  17. Jo Craven McGinty, “Documenting Race Proves Tricky for Census” The Wall Street Journal, July 25 – 26, 2020, page A2. (Print edition).
  18. Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007),
  19. Plessy, 163 U.S. 537 (1896). Harlan should not be confused with his eponymous grandson who also served as a Supreme Court Justice from 1955 to 1971. The flaw in Brown was that it did not base its holding on the categorical grounds Harlan articulated, but upon the sociological theories, that relied largely on the work of Swedish academic Gunnar Myrdal.
                           

Good Week for the Constitution

This has been a good week for the U. S. Constitution and good guys.

On the Fifth Amendment front, as of yesterday, colleges and universities conducting Title IX proceedings are required to use a First Amendment-compliant definition of sexual harassment and to guarantee basic due process protections for the accused (such as a presumption of innocence, the right to an advisor, and the right to question one’s accuser). Accusers and victims, too, will benefit from newly required measures that will offer them support — without punishing anyone accused before they are actually found to have committed the offense. The new regulations, passed in strict compliance with the Administrative Procedures Act, overturned the “suggestions” in the infamous “dear colleague” letter issued by the Department of Education during the Obama administration. That letter suggested that institutions requiring the above enumerated protections could be penalized by the loss of public funds. Due process, which includes a requirement that an accuser prove their case, not that accused prove their innocense; having counsel that is familiar with the adjudication process; and the ability to confront the accuser is the cornerstone of liberty. A tribunal that denies this right is not worthy of respect and amounts to a kangaroo court.

Two federal courts have denied relief in suits brought to enjoin the enforcement of the new rule. See https://www.thefire.org/legal/fire-fights-back-against-lawsuits-challenging-2020-title-ix-regulations/

It is still possible that a new President and his/her administration could reverse this, though it could be a lengthy process.

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On the Second Amendment front, in the a case challenging the California statute banning possession of high-capacity magazines for firearms, the U.S. Ninth Circuit Court of Appeals upheld a district court’s ruling that the law was unconstitutional.

In Duncan vs. Becerra, Case No 19-55376 (August 14, 2020) Judge Kenneth Lee, writing on behalf of himself and Judge Consuelo Callahan gave the reasons behind their ruling.

“Armed self-defense is a fundamental right rooted in tradition and the text of the Second Amendment,” said the majority ruling in . “Even well-intentioned laws must pass constitutional muster. They passed the law in the wake of heart-wrenching and highly publicized mass shootings, but it isn’t enough to justify a law that is so sweeping that half of all magazines in America are now unlawful to own in California.”

“Ammunition is typically used for lawful purposes, and are not ‘unusual arms’ that would fall outside the scope of the Second Amendment.”

As important as this ruling is, it only applies to laws prohibiting the possession of all magazines that hold more than ten rounds. The court concluded by stating “[w]e also want to make clear that our decision today does not address issues not before us. We do not opine on bans on so-called “assault weapons,” nor do we speculate about the legitimacy of bans on magazines holding far larger quantities of ammunition.”

This leaves open the possibility that a ban on a rifle magazine that holds, say, 20 or more rounds could be constitutional, at least in the Ninth Circuit. (Western U.S.)

A fly in the ointment is that there was a dissent in this case. Our own Barbara Lynn, Chief District Judge of the Northern District of Texas, sitting by assignment, wrote that this opinion is wrong and is contrary to rulings in other circuits. A dissent and split in the circuits make U. S, Supreme Court review more likely, though not certain. The Supreme have been reluctant to take any cases regarding gun control since McDonald vs. Chicago in 2010. But who knows? Many believe the Justices are inclined to let hink the issue should be handled by individual states and the circuits.

My own opinion is that a nationwide ban on possession of large capacity magazines (or for that matter, semi-automatic rifles) would be unenforceable, would potentially criminalize half the population of the United States, and do nothing to take those firearms and accessories out of the hands of those who would use them unlawfully.

The full opinion in Duncan et al vs. Becerra is available at https://law.justia.com/cases/federal/appellate-courts/ca9/19-55376/19-55376-2020-08-14.html