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

Hiroshima & Nagasaki + 75

On August 6, 1945, and again on August 9, the United States military dropped atomic bombs on the Japanese cities of Hiroshima and Nagasaki. Three days later surrendered, thus ending World War II.

The 75 years since, not one more nuclear weapon has been used in anger, despite escalation of tensions over that time, and proliferation of those weapons. A nearly 50 year Cold War saw a number of wars between client states of the Soviet Union and the United States, that despite the ferocity in which they were fought at times, never resulted in an exchange of atomic weapons.

Perhaps one reason hostile nations have so far avoided the use of nukes is because Hiroshima and Nagasaki demonstrated the sheer horror of the use of those weapons.

During this annus horribilis of 2020, we have the usual suspects calling for a “conversation” (which really means recrimination) questioning whether President Harry Truman’s of those weapons was necessary, or perhaps profoundly immoral. Some have even accused the President and those involved in dropping the bombs of being war criminals. That is sheer nonsense.

Sixteen years ago a British writer A. C. Grayling wrote Among the Dead Cities: The History and Moral Legacy of the WWII Bombing of Civilians in Germany and Japan. I wrote a review of the book for a local blog. It bears repeating on this semisesquicentennial anniversary of the Hiroshima/Nagasaki bombings, as follows.

A friend once opined that if the United States and its British ally had pulled their punches in World War II as they have in every war since, including the present one, we’d all be speaking German and/or Japanese. Rhetorical hyperbole this might be, and it would in no sense justify a no-holds barred approach to the current conflict in the Middle East. It is should be undeniable nevertheless that the total war Britain and America fought was necessary to beat the Axis. After all, Nazi Germany and Japan began the concept with a vengeance, and fought ferociously until the bitter end. Air Marshal Sir Arthur “Bomber” Harris, head of the Royal Air Force Bomber Command is reported to have observed while watching the fires around St. Paul’s during the London Blitz “they’ve sown the wind and will reap the whirlwind.” Harris, of course, was the chief windmaker, the architect, if one can use that appellation in such circumstances, of the utter devastation of German cities in the air war that ensued. His bombardiers sowed the seeds of the tornadic firestorms that engulfed Hamburg, Dresden, and other cities, incinerating tens of thousands of civilians and reducing houses, shops, museums, and public buildings to hideous skeletons. The U.S. Air Force in the Pacific, once islands in range of Japan had been captured, carried out similar raids on Japanese cities creating even greater destruction. The final two raids witnessed the only wartime use ever of nuclear weapons.

A.C. Grayling’s Among the Dead Cities is the latest of a number of histories of the strategic bombing in World War II. Its dramatic title (possibly an allusion to I Samuel 31:7) alone sets it apart from the prosaic works by more methodical historians. Grayling styles himself a philosopher rather than a historian and focuses on the morality of the area bombing – sometimes called “saturation” or “carpet” bombing – of German, and Japanese cities. That such bombing was indiscriminate and served to terrorize the targeted populations, kill civilians in great numbers, and destroy their cities makes the whole concept morally repugnant to Grayling. The author claims that, while the stated purpose was to break the enemy’s morale and spirit and disrupt the daily lives and economy of the German people, it served only to increase the resolve of the Germans – much like the 1940-41 Blitz steeled the British to resist. All that the bombing accomplished was wanton and useless mass destruction of centuries old cultural treasures and wanton slaughter of civilians, and had little effect on the outcome of the war.

That thesis is nothing new. A postwar assessment of the effect of strategic bombing indicated that German industrial production continued to increase almost up the end in spite of nearly continuous attacks during the last year of the war. Grayling’s conclusion, however, is that the area bombing was unjustified by military necessity, and thus amounted to a moral outrage and a war crime. Harris, Churchill, and other commanders who carried out their orders (Grayling, perhaps protesting too much, includes a disclaimer that he does not intend to impugn the RAF and American pilots and crews bravery or morality) perhaps escaped prosecution because no international protocols like the Geneva Convention proscribed aerial bombing of civilian targets, and, most importantly, because the Allies won the war.

Similarly, Grayling believes the area bombing raids of Japanese cities were American war crimes, and, by implication, Roosevelt, LeMay, and Nimitz were war criminals. The firebombing of Tokyo and other cites, even more destructive, is of course overshadowed by the nuclear devastation of Hiroshima and Nagasaki, criticism of which from time to time is the subject of unctuous breast beating by certain elements – but that is another story.

Area bombing in Europe was destructive and deadly. Did it win or hasten the end of the war? Did it have any salutary effect at all? Was the loss of civilian life and the ruining of historic structures and artifices worth the cost? Was there any justification to continue the bombing after late 1944 in Germany or after April or May of 1945 in Japan when the war was all but won? While a majority of Germans never voted for Hitler (when it was still possible to vote for leaders prior to 1933), few protested Nazi policies, most acquiesced in the anti-Jewish laws, and probably a huge majority were thrilled by Hitler’s diplomatic and early military victories. So-called terror bombing was first used by the Nazi controlled Luftwaffe against Holland and Britain. When tit was given for tat, the bombing in Germany was not carried out wantonly against a defenseless people. The German military fought back ferociously. Over 50,000 British airmen (and a considerable number of Americans) were casualties of the campaign and thousands of aircraft were shot down. Until the United States geared up sufficiently to help in Europe (remember, the American military had its hands full with Japan in the first two years of the Pacific war, while the Russians were reeling from a withering German offensive) Britain was essentially alone. It had itself been subjected to a Nazi terror bombing campaign from May 1940 through June 1941 that was halted only when Hitler turned his attention to the Soviet Union. The British fought the only way they could. Given the technology of the time – a far cry from the kind that allowed U. S. forces to pinpoint and kill terrorists with drones and computer guided missile resulting in minuscule collateral damage – and the European weather conditions, nighttime area bombing was the only method that could be remotely effective. The main accomplishment the British wanted was to create sufficient disruption to discourage the Nazi bombers from coming back to their homeland. The diversion of resources to air defense, particularly after the Cologne raid of 1942 and Operation Gomorrah over Hamburg in 1943, surely kept the German air force from attacking Britain again, at least with manned aircraft. The bombing likewise surely hindered the effort on the Russian front. The Soviets begged the western Allies to open a western front for over two years before the invasion of France on D-Day. Aerial bombing was the best that Britain and the U. S. could do until sufficient resources were marshaled for the Normandy invasion.
Grayling argues that after the establishment of a western front, and the liberation of most of France by September 1944, combined with contemporaneous Russian drives into Poland, every indication was that Germany was defeated, and all was over but the shouting. Continuing the relentless bombing of German was thus unnecessary.


This is hindsight; it was not all that apparent at the time. To illustrate this point, in September 1944, the Anglo-American forces were dealt a severe setback in Operation Market Garden in the Netherlands, and in December of that year, the German army launched a fierce offensive in the Battle of the Bulge. All the while, Great Britain again was subjected to air raids; this time by the unmanned V-1 and V-2 missiles, the latter being supersonic and striking without warning of any kind. The only defense against the V-2s was to prevent their being available to be launched in the first place. Area bombing, haphazard as it was, was the only possible way. Even after the Bulge, the Anglo-American-Canadian forces were fiercely opposed every step of the way. The Soviet Army in the East was even more ferociously opposed. The Russians suffered nearly a half million casualties in the final drive to Berlin, and had to fight for the city block by block. It is incontrovertible that Britain and the U.S. had to use everything at their disposal to end and win the European War.


As for Japan, the resistance of the enemy was even stronger. Japan began its war with the United States with a sneak attack. Japanese forces contested every battle by fighting, almost literally to the last man. American and British prisoners of war were treated abominably. And when the war was clearly going against Japan, the Kamikaze suicide campaign began. After the liberation of the Philippines, the U.S. was faced with the necessity of invading the home islands of Japan to end the war. Given this situation, could any rational American commander in chief not conclude that serious softening up of the Japanese homeland was a necessary prelude to invasion? When the atomic bombs became available, why should it have been preferable to spare Hiroshima and Nagasaki so the United States and its allies could suffer a million casualties (the estimate at the time, never seriously refuted) invading Japan?


The measureless human suffering caused by the bombing is evident. The loss of lives, particularly innocent children who could not have made the world they are born into, is an unfortunate reality of war. The resultant loss, particularly in Germany, of cultural treasures is one of the saddest legacies of the area bombing. Photographs of the pre-war German cities – Berlin, Hamburg, Dresden, and others — reveal charm and beauty that was utterly destroyed. Berlin suffered the most, not only from the bombing, but the devastation of the last battle, and division between two hostile powers for the next two generations. During my first visit to Berlin twenty-one years after the end of the war, the scars were still there, and where rebuilding had taken place, it was mostly soul-less modern. At the time of my visit a few years before the Wall fell, it had not changed much. Even in 1995, large tracts were still rubble strewn vacant areas. But Berlin has come back, much of the city has been restored to its pre-war appearance, and the newer architecture has its own beauty. Dresden was more remarkable for the restoration of the old city area, including plans, much delayed by the former East German communist regime, for the restoration of the totally destroyed Frauenkirche (which now is complete and was rededicated in 2005 last year, Britain’s Queen – during the war, Second Lieutenant Elizabeth Windsor – sending her best wishes). Nuremberg’s old city center, especially targeted because it was a Nazi hotbed, has been almost completely restored to its pre-war appearance. This demonstrates that artifacts can be rebuilt. Civilizations, however, might well not be. World War II was a struggle for civilization, Western Civilization as it had advanced in its highest and finest order. One of its finest exemplars had been hijacked by evil forces that harkened back to barbarism, superstition, and savagery. The reasons this happened are the subject of a surfeit of writings with many more doubtless to follow, so this phenomenon will not be examined here. But happen it did, and was an evil that had to be defeated, at whatever cost, for our civilization to survive.

Grayling acknowledges that Naziism was a profound evil, and Japanese militarism was not much better, and committed worse atrocities than could ever be laid at the feet of the British and Americans. He maintains, however, that two wrongs do not make a right, and there is no justification for sinking to the same moral level as the Nazis. True enough, but beside the point. Allied strategic bombing was not calculated genocide or wanton cruelty toward conquered people and prisoners of war. It had the legitimate goal of defending against and defeating the forces that practiced such atrocious conduct.


A final point that Grayling ignores completely is what would happen when the fighting was over. Winning the war was one thing; maintaining a peace afterward is quite another. After the World War I armistice, which occurred while the German army was intact and still on French and Belgian soil, and no part of Germany had been invaded, gave credibility to the Nazi explanation that the victorious German army was “stabbed in the back” by reformers, bankers, pacifists, and, especially, Jews. At the end of World War II, Germany and Japan knew they had been beaten – badly. While the comparison is apt, the victory did not quite impose a Carthaginian Peace, as the Romans did after being troubled three times by the same foe. The defeated German and Japanese adversaries were devastated to the point that they had to be rebuilt from the ground up. They were; and reconstructed in the image of capitalist representative democracies. For sixty years after World War II ended, the world, beset by conflict and bloodshed as it has been, was not to be troubled by military aggression emanating from Germany or Japan. Perhaps, then, at least in two corners of the earth, Arthur Harris’ whirlwind managed to uproot the grapes of wrath.

R.I.P. for Another Civil Rights Hero

During the past two weeks there has been quite a bit of pomp and circumstance and celebration of the life of John Lewis, a civil rights icon and hero. Lewis doubtless well-deserves these accolades.

Lewis was in the vanguard of the civil rights movement of the late 50s and 60s, was in harm’s way of the segregationist resistance, and was beaten and jailed for his pains. He brought attention to the injustice of racial segregation and consequent oppression that existed in the southern United States, and elsewhere in the nation. For that everyone should honor him.

Easy to miss among the Lewis mourning is a death of another civil rights hero, if less than an icon, Herman Cain. Few of us had ever heard his name until he offered himself as a candidate for President of the United States in 2012.

Cain’s accomplishment in the private sector showed what intelligence, education, and persistence could do for an individual, even if he had been born and raised as a black person in a racially segregated society. The elimination of legal barriers to individuals like him did not themselves change the hearts and minds of many who thought that black persons were inherently less capable than those of lighter complexion. Nevertheless, Cain did a lot to dispel that notion.

He was educated at Morehouse College in Georgia, a historically black institution, and received a Master’s degree from Purdue University. His college major was mathematics, certainly not the easiest discipline one can study.

Cain worked first for Coca-Cola, became a vice president with Pillsbury, then was appointed to run its struggling Burger King unit in the Philadelphia area. His success prompted Pillsbury officials to ask Cain to take over its floundering Godfather’s Pizza chain. His success in industry showed that a person of his complexion and ancestry certainly had the qualifications for running large businesses, including bringing one back to profitability. As an executive he certainly had experience to rival the present incumbent of the White House, and vastly more than its previous occupant, both of whom he sought to challenge for the office.

Many statues commemorating past public and private individuals are currently under attack, and in some cases destroyed by vandals. Some of those persons probably do not to be so commemorated, but all heroes have flaws, including Cain and Lewis, both of whom are worthy of eponymous streets, statues, and institutions.

There is a lot more to say about Herman Cain, and others will surely say it.  I close with this thought: May he rest in peace.

The Declaration of Independence

Earlier this year we acquired a “Betsy Ross” American flag — the one with thirteen stars in a circle on the ensign. Somehow it seems appropriate to display it on the Fourth of July.

The following is a post published on previous Independence Days. It is worth repeating on this day (with a few non-substantive updates).

The Fourth of July is a day for picnics, fireworks, parades, and all kinds of activities celebrating our Nation’s birth. It should also be a time for reflection on the founding principles. The source of those principles is most immediately found in the Enlightenment. This was a cultural, intellectual, and, later, political movement of the late Seventeenth and Eighteenth Centuries that historians regard as the culmination of a sea-change of thought about the relations of human beings with the universe that began with the Renaissance and Reformation and their precursors. Enlightenment thinkers emphasized the use of reason as the basis of knowledge and understanding and the primary method of discovering moral and physical truths which many regarded as inseparable. Their use of reason led to the idea of the essential sovereignty of the individual person, and the rights of man (in the generic sense) to life, liberty, and estate, or property. The Enlightenment is associated with such thinkers as Isaac Newton, John Locke, Montesquieu, Voltaire, Rousseau, Adam Smith, and others in Europe, and Thomas Jefferson, Benjamin Franklin, and Thomas Paine in America. The United States of America is the only nation founded on the basis of common ideas, rather than accidents of geography, of kinship or tribe, or conquest. Some historians have described our primary founding document as an Enlightenment Manifesto. Leonard Peikoff in his book The Ominous Parallels described America as the “Nation of the Enlightenment.” I have spent some time parsing the Declaration of Independence to show why this is so. Please read on.

When in the Course of Human Events…

The first seven words of the Declaration of Independence are themselves revolutionary. Before Thomas Jefferson (with help from Benjamin Franklin, John Adams, and others) penned this document, all important legal documents began with the paean to God, or the monarch. The Magna Carta, the Mayflower Compact (which some call the first American Constitution) are some examples. There are countless others. This Declaration recognized human, not supernatural, not authoritarian, events which drive this change. This is not to say that it rejects a deity, or even Christianity. It emphasizes that this is the act of human beings, and it is done in the name of a group of people freely associating.

… it becomes necessary…

The word “necessary” in the Enlightenment sense means naturally caused; that is, inevitable because it is of nature. It is akin to a natural law like Isaac Newton described in his treatises on motion and gravity. The law of gravity requires – makes necessary – that an object falls to the ground. As the Declaration goes on to say, events have made American independence necessary.

… for one People to dissolve the Political Bands which have connected them with another…

Political connections are a human construct, not the divine right of kings. The King is not the state – Le roi n’est pas l’état.

…and to assume among the Powers of the Earth the separate and equal Station…

The people of the colonies are “assuming by their own act a status that is independent sovereignty is equal to all the other nations on earth. This assumption is not a grant; it is not a sufferance of the colonial master. It is inherent by right, by the law of nature.

… to which the Laws of Nature and of Nature’s God entitle them,…

This is the core of Enlightenment thinking. God is revealed through nature, and the laws of nature are the laws of God. Jefferson may have been treading lightly here. He probably was a Deist, which many Enlightenment figures were, including Benjamin Franklin, and most notoriously Thomas Paine. He had to recognize the Judeo-Christian tradition because most of the colonial leaders, not to mention the ordinary colonists were at least nominally Christian. Deism as such, was not hostile to Christianity, or other forms of religion, but those faiths did not tolerate Deists.

… a decent Respect for the Opinions of Mankind requires that they declare the causes which impelled them to the Separation.

The people seeking independence are telling the world why. They are justifying their actions to the rest of the world, not just their former British overlords. Reason is what gives actions legitimacy, according to Enlightenment principles. Reason is given to men by God, or nature, and they are expected to justify their actions by it. In order for the world to grant its approval and sanction, human actions must be reasonable.

The next paragraph of the Declaration is a treatise on government and gives the underlying philosophical basis and general justification for independence.

We hold these Truths to be self evident…

The introductory phrase is an epistemological statement that breaks from the long-standing Aristotelian Scholasticism’s presumed authority of the past. The Enlightenment held that the empirical observation, and reasoning from those verifiable observations, is the basis of knowledge. The intellectual tradition of the Western world – indeed, the entire world – had been that the received wisdom from the past should not be deviated from and should form all premises on which knowledge was based. The primary Western authorities, of course were the Scriptures and the Greek philosophers, particularly Aristotle. Beginning with Francis Bacon, the early modern thinkers gradually broke with this method, at least insofar as it attempted to explain the workings of the physical universe. To them, self-evident truths are those that could be apprehended by ordinary minds that are neither clouded by superstition nor addled by passion. The Enlightenment scholars, and other humanists, did not necessarily reject religious Christianity to provide moral guidance and inform men as to the relation with God in eternity, but believed that God manifested truths about the physical universe in nature.

… that all Men are created equal…

The notion of equality of human beings in the Enlightenment did not mean that everyone was the same; that is, equal in physical, intellectual, and moral character. Neither did it mean that they should be leveled to the same economic status. The operative word here is “created.” Its use in this context means that no one is given any special status in relation to others merely by the accident of birth. The Aristotelian description of the universe included the Great Chain of Being. This construct held that there is a order from God in heaven down to the inanimate rocks in which every species of being has a place. In the human order, the King and his nobles have their places at the top, and the peasants and serfs have theirs at the bottom, with different levels of status or importance in between. The Chain of Being was not a ladder, and one’s place was immutable. It was a crime or a sin to attempt to rise above or sink below the status to which one was born to. The Seventeenth Century doctrine of the Divine Right of Kings was a logical deduction from the concept of a Chain of Being. The King was God’s lieutenant on earth. The Enlightenment broke with that concept, and declared that there was no inherent aristocracy based merely on the accident of birth. The turmoil of the English Civil War, the Restoration, and then the Glorious Revolution broke the chain in England by the end of the Seventeenth Century. It would persist in France until that country’s Revolution, a hundred years later. That was not long after the American colonies won their independence, with a little help from their friend – France, ironically, while still under the ancien regime.

… that they are endowed by their Creator with certain unalienable Rights,…

The quality of being human means that there are rights which are given by God, the Creator of nature and the universe, which cannot be abrogated by the whim of human authority. Those rights may be forfeited, but only by conduct of the individual as rationally determined in the due process and course of valid law.

… that among these are Life, Liberty, and the Pursuit of Happiness –…

This enumeration of rights is declared to be, by the use of the word “among,” not exclusive, but these are the basis of, and imply, others. It comes directly from John Locke’s formulation that when human beings are in a state of nature, these are their individual rights. Locke’s Second Treatise on Government termed these rights as protection of “life, liberty, and estate” – estate being interchangeable with the concept of property. Jefferson changed “estate” or “property” to the “pursuit of happiness,” which included the right to possess and enjoy property, but was broader in scope. The proposition that the pursuit of happiness was a fundamental right was revolutionary in itself. From almost time immemorial, and certainly in the Christian tradition at least until the Reformation, life on earth was not supposed to be happy. Life was an arduous journey through a vale of tears on the way to an afterlife of happiness, or punishment, depending on how one conducted oneself in this world. Rather than pursuing happiness here on earth, it was self-denial and mortification that were virtues, not enjoyment or seeking betterment of living standards and conditions. This, of course, was a doctrine which kept the Great Chain of Being intact, as well as the hoi polloi in line. Individual liberty was nonexistent, because the individual person was subject to the collective, that is, the King or state. One’s life as well belonged to the same sovereign.

That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed…

Legitimate governments are created by the consent of the people, not imposed from the top down. The people, who in a state of nature are unable to adequately protect their lives, their liberty, and the ability to pursue happiness, including the protection of their private property, form a government for this purpose. In order to accomplish these ends, certain aspects of the fundamental rights are limited, and ceded to a constituted authority by consent, whose primary – and only legitimate – function is to secure the essence of those rights.

… That whenever any form of Government becomes destructive of these Ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.

A government can become destructive of life, liberty, and the pursuit of happiness. In fact, the use of the word “whenever” seems to imply that it is inevitable that at some point the government will become destructive of such. It is part and parcel of these unalienable rights for the people to alter or abolish it, and create a new government. A new government, however, must be instituted on the core principles stated.

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed.

When government has existed for a long time, some deference must be given to it for that quality alone. Stability and just expectations are aspects of the unalienable rights, which themselves must be respected. This passage recognizes that the governments will not be perfect, and there may be better ways of accomplishing the protection of life liberty and the pursuit of happiness at various times, and under different conditions. Just because a government may act in an imperfect manner temporarily is no reason to take the drastic step of abolishing it. The phrase that “mankind are more disposed to suffer while evils are sufferable” echoes William Shakespeare’s observation in Hamlet that we “rather bear the ills we have than fly to those we know not of.”

But when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government and to provide new Guards for their future Security.

This sentence states the conditions necessary to overcome the presumption that governments long established should not be changed. When they are fulfilled, revolution becomes a right – and duty.

Such has been the patient Sufferance of these Colonies; and such is now the Necessity which constrains them to alter their former Systems of Government. The History of the present King of Great-Britain is a History of repeated Injuries and Usurpations, having in direct Object the Establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid World.

Thus begins the justification for Revolution and nature of the grievances against British rule. It is followed by a bill of particulars containing twenty-seven specific grievances committed by the Crown, personified by King George III. If one studies the Constitution later drafted and ratified, it is possible to find a provision there which addresses nearly every one of the complaints found in this bill of particulars.

In every stage of these Oppressions we have Petitioned for Redress in the most humble terms: our repeated Petitions have been answered only by repeated Injury. A Prince, whose Character is thus marked by every act which may define a Tyrant, is unfit to be the Ruler of a free People.

After the bill of particulars, the Declaration provides additional justification for independence by asserting that the people of the American colonies have brought their grievances to the attention of the King, and his ministers, to no avail, and only to receive further injury.

Nor have we been wanting in Attentions to our British Brethren. We have warned them from Time to Time of attempts by their Legislature to extend an unwarrantable Jurisdiction over us. We have reminded them of the Circumstances of our Emigration and Settlement here. We have appealed to their native Justice and Magnanimity, and we have conjured them by the Ties of our common Kindred to disavow these Usurpations, which would inevitably interrupt our Connections and Correspondence. They too have been deaf to the Voice of Justice and of Consanguinity. We must, therefore, acquiesce in the Necessity, which denounces our Separation, and hold them, as we hold the rest of Mankind, Enemies in War, in Peace, Friends.

This penultimate paragraph reminds the people of Great Britain that the American colonists have notified them of the grievances, and they have nevertheless done nothing to prevail upon Parliament and the King’s ministers to change policies and redress the grievances. It concludes by defining the relations going forward that the Americans will have with the British: that is, a separate and equal station, along with all other nations of the Earth, and not as sworn enemies.

“We, therefore, the Representatives of the united States of America, in General Congress, assembled, appealing to the Supreme Judge of the World for the Rectitude of Our Intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly Publish and Declare, that these United Colonies are, and of right ought to be Free and Independent States; that they are absolved from all Allegiance to the British Crown and that all political Connection between them and the State of Great-Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce and do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, Our Fortunes, and Our Sacred Honor.

The use of the lower case “united” indicates that each of the new entities are separate States, though united in purpose. Unification will come later, and remain tenuous, in many ways, even unto this day. The Declaration appeals to God as a witness, but is done in the name of the “good People of the Colonies” who are to be the sovereign. Divine Providence will protect them. The signers pledged their “sacred honor,” the most precious possession to an Enlightenment man. As for their lives and fortunes, they were aware they were committing treason against the British Crown, which was subject to the severest of penalties.

It was over seven long years of war and privation before the Declaration of Independence was ratified by the Treaty of Paris in which Great Britain gave up all claim to sovereignty over its former colonies, but these words written and approved by the patriots in Philadelphia two hundred and forty-four years ago finally became a reality. It remains so to this day, perhaps imperfect, but there is nothing better. Indeed, there is nothing like it in the world.

Note: The writings of Professor Alan Charles Kors of the University of Pennsylvania, who is the editor of Encyclopedia of the Enlightenment, gave me the idea for this essay. He teaches 17th & 18th Century intellectual history. Professor Kors is one of the founders of the Foundation for Individual Rights in Education (FIRE), a watchdog organization that fights the increasing denial of freedom of expression on American college campuses.

Are you kidding me?

Abolish/defund the police? The following observation by one who has observed and commented on the police for 50 years.

“The traffic on Revolutión [street in Tijuana, Mexico] was nearly bumper-locked. Young Americans hanging out of car windows were whistling, clapping, yelling, thumping on car doors, flipping the bird at pedestrians, cutting off cars, mooning any female older than 12, and spewing the contents of their stomachs onto the streets of a country they considered third-rate and Third World. In short, it was a scene that might be replayed in just about any U.S. city if the police were underpaid, underfunded, undermanned, undermined, and as desperately corrupt as the police of Tijuana.” — Joseph Wambaugh, Finnegan’s Week (1992).

Of course, uninhibited carousing, fueled by alcohol and other chemicals, nearly always results in violence to persons and property, often bystanders.

70 Cold Winters

70 years ago today, June 25, 1950, North Korean forces, supported by Stalin’s Soviet Union and Mao Zedong’s new established Peoples Republic of China, invaded the Republic of Korea (ROK), which, because of the Cold War still had American and other allied forces located there. The NK Army managed to move almost the entire distance of the peninsula and appeared just about ready to overrun and conquer the entirety of the ROK.

President Harry S Truman responded almost immediately and the American military in Korea and occupied Japan, together with ROK army units, established a defensive perimeter surrounding an area centered on the southern port of Pusan. The United States moved the UN Security Council to authorize a United Nations response to this aggression. Because the Soviet Union was boycotting Security Council over other issues at the time, it was not able to use its veto against the UN resolution. Thus, the United Nations Command was established and authorized to respond militarily.


In September of that year UN forces, now under the leadership of General Douglas MacArthur, simultaneously broke out of the Pusan perimeter and landed forces at Inchon near the mouth of the Han River near the ROK capital of Seoul, subsequently routing the NK forces.

By November, American soldiers, Marines, and allies — mainly British — had pushed the NK Army all the way out of the South and almost to the Chinese border at the Yalu River. Then, Chinese forces, ostensibly “volunteers” but actually Mao Zedong’s People’s Liberation Army, counterattacked and drove the UN forces out of the north and back in to the South where they established another defensive line of Seoul. The full weight of Americans and allies was able to push the RK/PRC forces back into the north by February 1951. After that, a stalemate for the next two years until a shaky armistice was signed, establishing a demilitarized zone, which remains in place to this day.

The attempt of North Korean leader at the time, Kim Il Sung, to unify Korea by force failed. But Korea remained divided, and still is. In the interim the north has been ruled by Kim (until his death in 1994), his son Kim Jong-il (1994 – 2011), and his grandson Kim Jong-un (2011 – present). It has been, and is, a totalitarian state that makes George Orwell’s Oceania pale by comparison. It continues to exist only by virtue of Chinese support, and its acquisition of nuclear weapons, which the United States and other nations should never allowed to happen. (The Soviet Union also provided a measure of support until it collapsed in 1990-91. Was that collapse an opportunity missed?)


For comprehesive histories of the war, see T. R. Fehrenbach’s This Kind of War (1963); David Halberstam’s The Coldest Winter (2007). Fehrenbach, a noted Texas historian (Lone Star and Fire and Blood, histories of Texas and Mexico respectively), served as an infantry platoon leader in the Korean War. Halberstam was a journalist who covered both the Korean and Vietnam wars.
Also see: https://bobreagan13.com/2017/04/15/now-hes-too-rich-to-kill/

St. John’s Eve

Since first seeing Walt Disney’s Fantasia (when a youngster, in a movie theaters), I had been under the impression that Russian composer Modest Mussorgsky’s tone poem “Night on Bald Mountain” was a Hallowe’en piece where witches and other evil spirits romp throughout the night on the mountain only to be sent back into their inferno at dawn. Animation of the devil Chernobog was scary to a kid. And it seemed to fit with the theme of All Hallows Eve preceding the dawn of All Saints Day. This was reinforced so because the classical music radio station here often played the recording on Hallowe’en.

When they became available, I purchased the DVD of Fantasia, and have watched it every now and then. It’s amazing that the animation — it was produced in the 1940s— is so good. On a whim, I played Mussorgsky’s part of the movie as a Hallowe’en treat for a class I was teaching at the Dallas County Community College District as an adjunct faculty member. That prompted me to look into the provenance of the piece so as not to impart misinformation.

I discovered that Mussorgsky originally titled the piece “St. John’s Night on the Bare Mountain.” His inspiration was an eponymous short story by fellow Russian Nikolai Gogol, published in 1930. It originally in 1867 and was revised around 1872 and again in 1880. That last version contained a hauntingly beautiful quiet ending; in which a church bell announces the dawn, and daybreak chases away Chernobog and his minions.

Beginning at sunset on June 23rd, St. John’s Eve is the eve of celebration before the Feast Day of John the Baptist. The New Testament relates that John was born six months before Jesus (Luke 1:26-37, 56-57). Thus, the feast of John the Baptist is June 24th, six months before Christmas, the Western Christian date of December 25.

St. John’s day is close to the summer solstice, Midsummer in the Northern Hemisphere. The holiday has been, and still is, celebrated in many places, including New Orleans, in the practice of Louisiana Voodoo. The famous Voodoo priestess Marie Laveau was said to have held ceremonies on the Bayou St. John there.


Note: For what it’s worth, the familiar version of “Night on Bald Mountain,” including the one in Fantasia was rearranged by Mussorgsky’s contemporary, Nikolai Rimsky-Korsakov, who many have added the church bell finale.
Chernobog (Russian: dark god) has been historically assumed to be the dualistic counterpart or contrasting aspect of the good deity, Belobog. Both under different forms of the name are Slavic pagan deities.

Matt Ford Has A Death Wish

Recent and current events have brought some films from the mid-1970s to mind. More on that later.

The most recent issue of The New Republic, a magazine that has been around for quite some time and has a distinctly leftward slant, featured an article by staff writer Matt Ford entitled “The Police Were a Mistake.” Mr. Ford, is undoubtably intelligent and a technically decent writer (or he has a very good editor). But evidenced by his opinion and advocacy in the article, he is either insane or a fool.

His thesis is that municipal and state police forces have become the standing armies that was feared by America’s Founders. He quotes parcels of James Madison’s speech to the Constitutional Convention in which Madison warns that “a standing military force, with an overgrown Executive will not long be safe companions to liberty.” Those words, “not long be safe companions to liberty” could more aptly apply to today’s administrative state, which has all but supplanted the elected executive of the nation and those of many states.

Mr. Ford’s invocation of Madison’s warning is apposite to the vast law enforcement powers of the federal administrative state, as well as many of the states and some large cities, such as New York, that he cites as a prime example. He fails, however, to cite the abuses of many of the enforcement arms of the administrative state.

Instead, Ford’s beef is with municipal police departments who “overpolice” low income urban areas, inhabited by mainly black persons. Well, those neighborhoods are where most street crimes occur. And their residents are almost always victims of those crimes.

Ford proposes a solution, nearly as idiotic as wholesale abolishment of the police:. “Perhaps smaller, detective-heavy police departments that focus on homicides, white collar offenses, and other major crimes would be a healthier alternative. Perhaps shifting the bulk of police budgets into housing, mental health care, and other social services would be a better long-term investment.” Really? Before I unpack the first sentence of Mr. Ford’s quoted proposal, it is useful to recall John Maynard Keynes’s quip that in the long-term, we are all dead. Citizens need to be safe now.

“Homicides”? There are few whodunit murders a la Agatha Christie, Perry Mason, or other crime novelists. Most homicides in urban areas are gang related, either killing rival gang members, or sadly, locals who get caught in the crossfire. Ford claims that the police are “not very good” at discovering and charging the perpetrators. Perhaps so. But gathering evidence sufficient to arrest and convict the number of murderers in one weekend in Chicago, for example, would require much larger, not smaller, departments.

“White collar crime”? Leftists love to point out that financial crime — embezzlement, securities fraud, and the like — costs more in dollars than petty street crime. True enough, depending on one’s definition of a “white-collar” crime. But it’s really a matter of degree. White collar crime rarely threatens the livelihood of its victims, who are most often entities that can absorb losses. These misdeeds have to be detected and punished, of course, but that leads us to the last of Ford’s trilogy.

“Other major crimes”: Where do we draw the line? One of my complaints about most penal codes is that they reckon the severity of property crimes by the dollar value of the loss without regard to the impact on the victim, for the most part. If a thief stole $100 from a mother receiving government assistance, her children might not eat. Stealing that same amount from Mr. Ford, perhaps, would not create much hardship. Looting a mom and pop store would put them out of business. When supermarkets get robbed in poor neighborhoods, the chains go elsewhere, creating food deserts. Ford does not even mention burglary, assault, rape, and other street crime. If we were to effectively decriminalize “minor” or “property” crime, if police were ordered not to address it or were de-funded to the extent that they could not address it, what would the consequences be?

By the mid-1970s, Charles Bronson had been a yeoman supporting actor for over a decade. The movie Death Wish made him a star.

For those who have not seen or heard of it — it’s now 45 years ago — the plot goes like this:

Bronson’s character is Paul Kersey, an architect who lives in New York City together with his wife and daughter. At the beginning of the film, Paul is a self-described “bleeding-heart liberal” One day his wife and daughter are followed home from the grocery store by two miscreants (young males, white if it matters). The robbers use subterfuge to enter the Kersey’s apartment, steal some valuables, beat and rape the daughter, and beat her the mother, who dies of her injuries, when she tries to stop the rape. In the story, the robbers are never apprehended.

While recovering from his grief, Paul’s company sends him to Arizona on business. There, a client who refers to New York City as a “toilet” befriends Paul, sympathizes with him, and, and gives him a revolver. Paul returns to New York to begin an after-hours career as a vigilante. He roams the streets to attract muggers, and when they attempt to rob him, he shoots them to death. When an NYPD detective determines that Paul is the vigilante, he does not arrest him but tells Paul to get out of town. He does, and two sequels we see off muggers in other cities.

This precis of the film is not to advocate or glorify vigilantism, although that can happen (maybe did happen – recall Bernard Goetz) quite naturally enough. The real point to be taken is when a society is unable to have a police force that can effectively keep crime levels low, such self-help measures will emerge.

Vigilantism as a method to safeguard individuals and communities, and reducing crime, is seriously flawed. Vigilantes do not observe due process and quite often pursue and punish the wrong guy. One of the more famous depictions of this in fiction is Walter Van Tilburg Clark’s The Ox-bow Incident (made into a now-classic movie with Henry Fonda as a main character) where the vigilantes hang the wrong person. Those who take the law into their own hands inevitably become their own law and turn on those they were formed to serve and protect.

But the possibility that vigilantism will come about in the absence of duly constituted law enforcement is real. We cannot have that. Leftists have for many years complained that the police are really agents and enforcers of capitalism and big business. Who would enforce socialism or fascism? (Two sides of the same coin).If our the police forces are eliminated, vigilantes may well turn into mercenaries. Who will they serve? The highest bidder, of course. Posh apartments and gated communities already have private armed security, which amount to mercenaries on a small scale. Rioters and looters pretty much leave them alone. Kings and nobles used to have their knights at arms; their modern incarnations have theirs by other names.

Of course, the complaint against so-called police brutality needs to be addressed. Police have to be allowed to initiate physical force when necessary. “When necessary” is the issue. Every situation is different. When a suspect is cooperating, no or minimal force, depending on the degree of cooperation, should be used and nearly always is.

The use of deadly force is obviously necessary when anyone is threatened with a gun or knife. Every situation in between is based on the facts of that situation. Much has been made of police, as well as private citizens using deadly force, a firearm, against an unarmed individual. But “unarmed” does not necessarily mean “not dangerous” and there is a continuum, from, say a young, large and muscular man, attempting rob another similarly endowed individual to the same assaulting an elderly disabled woman, at the extremes.

The law regarding the use of such force by the police or private citizens varies from state to state. It may be a subject for further comment on this platform. In the meantime, Mr. Ford and those of his persuasion on law enforcement reform better hope they do not get their wish. When the mob comes for them, there will be no one left to object.


Note: Mr. Ford and his acolytes might well get their wish. As this essay becomes ready to publish, news items have it that the Minneapolis city council has a veto-proof majority of members who wish to abolish the city’s police department. The mayor, who ordered his police to retreat from the station that was burned down, does not agree, and is being denounced and picketed for his stance — can’t please the mob. No formal vote has been taken yet, but I guess we’ll see. If abolition were to happen, There may be a mass exodus from that city. But who knows exactly what might happen.

Coming Safe Home

After a diagnosis of Covid-19 in mid-April, Marilee Shapiro Asher was given 12 hours to live by her physician. She was never put on a ventilator. She outlived the day and came safe home. Five days later she left the hospital to go home under her own power, and resume her work as an artist.

This was the second pandemic she survived. The first was in 1918 when she was six years old. She is 107.

https://www.jpost.com/diaspora/meet-the-107-year-old-woman-who-survived-the-coronavirus-and-spanish-flu-627180

Yapping Dogs

“Those who talk of governments ‘following the science,’ or ‘acting on the science,’ most of whom could not give a coherent account of the science of anything, are like dogs who yap because the other dogs are yapping.” = Holman W, Jenkins Jr. (WSJ, 5/20/2020)