The United States of America’s election day is little more than a week away. I believe it is important to tell my acquaintances, friends, family, and other readers how I intend to vote and why.

Donald Trump was not my choice to be the Republican nominee, but “Around here, baby, I’ve learned you get what you can get.” (Note 1)

Trump is the only choice who will protect what I will vote for. So the electors I will vote for are his.

• I’m voting for free market capitalism. Obviously, some regulation of commerce, the exchange of goods and services is necessary. But legislation and rules that masquerade as commercial regulation, particularly by the federal government, can hamstring free enterprise, particularly for small businesses and start-ups. As far as being “authoritarian,” Obama, with his “pen and phone,” and Biden, with his attempts to cancel student debts, ban petroleum production, and mandate electric cars, have been far more authoritarian. Trump’s use of executive orders have been to eliminate or restrict rampant non-legislative rule-making.

• I’m voting for the U.S. to have energy independence. The availability and cost of energy is the principal driver of inflation. Yes, yes, I know the climate may be changing – I am not a denier. But I know history. The earth’s climate has changed many times — without human assistance. Banning fossil fuels, which is the only source of energy that is dense, portable, abundant, and safe is a major part of the left-wing agenda that the other candidate has espoused, no matter what she says on the campaign trail. Anyway, try coercing China and India, whose carbon output is massive compared to the United States, into cutting their fossil fuel use. Won’t happen.

• I’m voting for the First Amendment, that includes freedom for free exercise of religious beliefs, together with freedom of speech and expression. This includes the right to speak opinion and not be censored — by government or public utilities that have (express or implied) government franchises (e.g., social media).

• I’m voting to preserve Second Amendment rights for honest citizens to defend their life and their property.

• I’m voting for the future Supreme Court Justice(s) to protect the Constitution and the Bill of Rights, and for the appointment of lower court Federal Judges to do the same. Many members of Congress see their primary function as getting re-elected to their good-paying and prestigious job that they have abrogated the hard choices to administrative agencies that they create. Those agencies have become an oligarchy that is the real threat America’s democratic republic. There are finally sufficient Justices who are reining in that oligarchy. I note that there is consternation among many citizens that the overruling of Roe v. Wade was an abrogation of women’s rights. Regardless of one’s position on the subject of abortion, is should be decided by the people of each state, not by five (or more) lawyers who wear black robes

• I’m voting for the continued growth of retirement funds (401K & IRAs) and the stock markets on which they depend. Those are under threat by some prominent leftists with their promotion of a so-called “wealth tax” to tax unrealized capital gains. Such a tax would cause the collapse of the markets, and destroy the retirement funds, not to mention incentives for investment in enterprise.

• I am voting to maintain the viability and strength of the federal system. Our union is that of states, not provinces. The complaint that, for example, the votes of people in Wyoming count more than the votes of those in California with many time the population is untrue. At the state level, which is where it counts for everyday life, the citizens of the states have equal say with each other. There was a recent cartoon in the daily newspaper when in the first panel the character asked “What is the purpose of the electoral College?” The second panel’s character replied “To protect us from democracy.”(Note 2) Now, I am sure that the sense that the cartoonist wished to convey was not complimentary. “Democracy” has become a sacred-cow shibboleth. But the answer was correct. Democracy, in the sense of 51% majority rule (known as plebiscitary democracy) can be as oppressive and tyrannical, especially to the other 49%, as a monarchy, dictatorship, or oligarchy. The Electoral College serves to mitigate the possibility of ill effects of a pure 51% rule. (Note 3)

• I’m voting for the police to be respected to ensure law & order without which there is no liberty. Full disclosure: I am a former police officer. “Protect and Serve” is the motto seen on police cars and other media. The best way to further that duty is to take lawbreakers off the street. To further that duty prosecutors must do their job and prosecute according to law. Mitigation of social problems is a job for legislatures, primarily at the state level, and the people at large, not social engineering by the executive branch, federal or state

• I’m voting for secure borders and legal immigration, and to stanch human trafficking and drug smuggling. On day one of the current Administration, Biden opened the floodgates. Trump would in good measure close them; his opponent, if elected, will not.

• I’m voting for our staunchest ally in the Middle East, Israel, and its right to exist and defend itself, as its leaders determine. Moral support, intelligence, and supply of necessary materiel to Israel is essential. Please note that I am not advocating direct military action other than defensive air and naval support like the Iron Dome and repelling attacks on shipping in the Red Sea.

• I’m voting for international peace for strength. Trump may be unpredictable in foreign affairs, but that can be a strength. If nothing else, he has had a career being a successful maker. His opponent would have not credibility with Putin, Xi, or Kim. Certainly not with the Ayatollah. A contemporary article by a former Congressman (Republican) from Texas laments that the United States has not yet elected a women for President. Well, that might be a concern to some, but his comparisons are inapposite. Trump’s opponent is certainly no “Iron Lady” Margaret Thatcher, Golda Meir, Indira Gandhi, or Angela Merkel. (Note 4)

• Finally, I’m also voting for my Republican candidate for Senate and House of Representatives who will limit the possible harm. If anyone stomach to vote for Trump because of his personality, he or she must vote for the Representative and Senatorial candidate who will oppose the elimination of the Senate’s super-majority rule, the packing of the Supreme Court and other federal courts, and the executive’s attempt to rule by a pen and a phone.

Note 1 — Apologies to Bruce Springsteen, who is for the other candidate. His song is “Tougher than the Rest” in the Tunnel of Love album (1987). Covered by Emmylou Harris (1990) and others.

Note 2 — “B.C.” by Mastroianni & Hart; https://www.gocomics.com/bc/2024/10/12

Note 3 — See David Lowenstein, “What Democracy is Not,” Harvard Journal of Law & Public Policy, p. 57 (Winter 2024); also, Tara Ross, Enlightened Democracy — the Case for the Electoral College (2004, 2012).

Note 4 — Alan Steelman, “Will Nov. 5 be the next step for American women?” The Dallas Morning News, Sunday, October 27, 2024, Section P, pg. 1. I would also include in the comparison Giorgia Meloni, the rising star Italian Prime Minister who has already shown her mettle. Steelman could have also included Nikki Haley, who will surely be in the arena in 2028.

Today, September 17 is celebrated as Constitution Day, commemorating the signing and publication of the United States Constitution in 1787. It went into effect when the ninth state, New Hampshire, ratified it on June 21, 1788. Although there have been twenty-seven amendments (the first 10, usually referred to as the Bill of Rights, were proposed by the First Congress and ratified in1792) for the 234 years of existence it remains the basic structure of our government.

Currently we hear quite a bit about threats to “our democracy” mostly from the political left. That is mostly overblown rhetoric. The Constitution does limit majoritarian governance — rule by 51% — but does so to produce an enlightened democracy that prevents the tyranny of the majority and the abridgment of minority rights.

The Constitution has not been without controversy. Two that have periodically appeared in recent years are: (1) the existence of the membership of the Senate where each State, regardless of population has two Senators; and (2) the Electoral College that actually casts the vote electing the President that can result in the election of a President by a candidate who receives fewer popular votes nationwide than an opponent. A third criticism, not discussed in this essay, is the Supreme Court that can void a law enacted by elected representatives as contrary to the Constitution. Those that oppose such measures argue that they stifle democracy. There are even more criticisms that are not addressed in this essay.

Senate Membership. We must recall that the states of the federal Union are just that: states, not provinces or mere subdivisions of the nation. The sovereignty of the people of each state is preserved thereby. The national government established by the Constitution has enumerated powers; the states retain such powers as are inherent in sovereignty. The people of less populous states have a bulwark against a national popular majority that could impose legislation that would not address state and local concerns or be detrimental to those concerns.

Electoral College. A similar argument exists as to why Electoral College is necessary. Should not the President be elected directly by the people? The concern the Founders had with a national referendum was a bare majority of voters nationwide electing the President would have no reference to how each state votes. As stated above, the states are not provinces. Each is sovereign in its own realm, exercising the powers not delegated to Congress and the President. Those branches of the government could then feel free to ignore state concerns. As few as six small states could show a majority for one candidate and be outvoted by one large industrial state. Also, the Constitution provides that the states choose the means by which electors are chosen and, if an at-large election would be imposed, ballot contests would have to be administered by the federal executive, and would be lengthy and cumbersome. Furthermore, a national popular election would encourage multiple candidates where a plurality could elect a candidate with only minority support. The means of remedying such a situation would have to be a national run-off. That could result in a President that only a minority voted for. It is true that the Electoral College system has elected candidates that did not receive popular majorities, but those elections have been close.

This essay will conclude with an observation about separation of governmental powers. Countries that have what is known as parliamentary democracy have the executive chosen by a majority of the legislature and dependent upon its confidence, whether that body is called a House of Commons, National Assembly or Bundestag. The judiciary in such system is likewise beholden to the legislature. In most European nations that has generally worked, at least since World War II. That is most likely because of those nations demographic homogeneity. That appears to be changing, and the result is uncertain. What is certain is that the USA was founded on the theory of government based on factions that were tamed by written principles and consensus, as well as strict separation of powers, not by the whims or ephemeral majorities. This was described in the Federalist Papers written by Alexander Hamilton, James Madison, and John Jay, especially Madison’s Federalist #10. The late former Vice-President and Minnesota Senator Hubert Humphrey, no conservative or otherwise of the political right, once remarked that a government that can do more for you is one that can do more to you.

Happy Constitution Day!

References:
Catherine Drinker Bowen, Miracle at Philadelphia (1966)
Clinton Rossiter (Ed.) The Federalist PapersTara Ross, Enlightened Democracy: The Case for the Electoral College (2004).
Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985)
Forrest McDonald, We the People: The Economic Origins of the Constitution (1958 (Third printing 2003)
Garry Wills, Explaining America: The Federalist (1981, 2993)
Numerous resources at the non-partisan National Constitution Center in Philadelphia, PA See https://constitutioncenter.org/
and
The Federalist Society
https://fedsoc.org/

The National Constitution Center has sponsored debates here in Dallas on several occasions.

Here is from a letter to the Washington Post: . It has: prevented the formation of a fragile multiparty system; demanded that parties develop wide national reaches in policy and geography; precluded small minority parties from acquiring power beyond their measure; and eliminated the risk of small factions from becoming kingmakers.

This is and updated version of an essay published on a past Independence Day. Current events being what they are, it seems apropos for today.

It seems there is a never ending screech of politicians, pundits , academics and the usual fanatics proclaiming that America has never been so divided as it is today. Truth is, our nation has always been divided in matters of society, culture, economics and politics. The union of the Thirteen Colonies came about because of a common purpose and common foe. Even so, many colonials were not in favor of leaving the British Empire. When independence was confirmed after a war that lasted seven years, quite a few loyalists were so distressed that they emigrated, many to Canada. And it was not clear that the former colonies would unite — they almost did not.

But for the most part, Americans have always shown a united front toward foreign enemies, particularly those who open the hostilities and who were a threat to United States interests. Post independence, the obvious exceptions were the War of 1812 and Vietnam, both of which were widely unpopular. The Iraq war is unpopular in retrospect, but was unopposed for the major action, except for a minuscule fringe. (World Wars I & II had their fringe opponents, too.) Nothing kept Americans more united in purpose than the 40 year Cold War with the Soviet Union. Of course, the prospect of nuclear annihilation in 30 minutes focuses the mind wonderfully.

At home, the division has always been palpable. The Constitutional purpose to ensure domestic tranquility has been imperfect at best. But public policy disagreements, which occasionally erupt into physical altercations, have served as a dialectic: thesis versus antithesis, therefore synthesis. Perhaps the most fundamental tension is individual freedom versus security. Nearly everything else is a corollary. Direct conflict has nearly always produced a compromise that is more on the liberty interest. The result has been innovation and its unparalleled material success.

Walt Disney’s animated film Fantasia was released to theaters 84 years ago in 1940. It is still popular as an amazing accomplishment in animation of a feature-length movie. It features a number of animated presentations, each accompanied by music of classical composers: Beethoven, Tchaikovsky, Stravinsky, Bach, Schubert, Dukas, Ponchielli, and Mussorgsky. It is probably most famous for Mickey Mouse’s portrayal of The Sorcerer’s Apprentice to the eponymous composition of Paul Dukas. The most dramatic and scariest episode is the penultimate one that depicts the massive satanic prince Chernabog opening from the pinnacle of the mountain and his hobgoblins, ghosts, and witch followers rising from the depths of the earth and cemeteries to frolic in the night on the Bald Mountain (Lysa Hora) in Ukraine.

The tone poem Night on Bald Mountain, composed by the Russian Modest Mussorgsky, is a favorite for Hallowe’en, the eve of All Saints Day. The saints — or “hallows” — are collectively observed by Christians and celebrated on November 1 each year. Many interpret the eve as symbolically representing as the frolic of the witches, devils, ghosts, and their master Satan. At the coda, the Angelus Bell signals the dawn and the triumph of the saints. Chernabog folds back into the mountain, the demons are cast into hell, the ghosts go back to their graves. A procession of monks with torches walk toward an old cathedral to the strains of Schubert’s Ave Maria.

While that is one way of looking at Mussorgsky’s composition and Disney’s use of it, the night the composer had in mind was not Hallowe’en, but rather the eve of the feast of John the Baptist, today, June 23. The Gospel of Luke in Chapter One relates that John was born six months before Jesus. Traditionally, Jesus’ nativity occurred around the time of the winter solstice. Thus John’s birth would have coincided with the summer solstice by the calendar then used, June 24. Thus, June 23 is Saint John’s Eve when Satan and his minions and ghosts fly and dance about the mountain. Their frolic ends when the bell at dawn announces the birthday of John the Messiah’s harbinger.

The solstices have religious and cultural, as well as scientific, significance. Almost all faiths have attached important events to each. For Christians, Jesus was born at that time. The Druids in ancient Britain probably erected Stonehenge as an instrument to ascertain the solstices for their worship purposes. Timing of the summer solstice has been observed since the Neolithic era, with many ancient monuments in Europe, the Middle East, Asia, and the Americas aligned with sunrise or sunset on the summer solstice. The term “Midsummer” refers to the time around the summer solstice. Notwithstanding astronomical observations, Northern European cultures have considered it to be June 23 – 24.

The astronomical summer solstice arrived early this year on June 20. I’ll leave the answer as to why to meteorologists and astronomers. Depending on the calendars used, the dates when the sun reaches perpendicularity with the highest and the lowest latitudes observed in the earth’s hemispheres have been the 20th– 25th of June and December respectively. Popularly they are called the longest and shortest days of the year and the beginning of the winter and summer season.

The Dallas Arboretum and Botanical Gardens today (June 16) hosted a close up “glove encounter” show of several species of hawks and owls. Included was a red-tailed hawk and several owls. Here are some close-up photos I took of two birds held by their handlers.

These raptors were rescued and rehabilitated. Neither could be released to the wild because of their limited flying ability. the owl rescued as a baby and is now 11 years old. It weighs 130 grams (4.6 oz.).

There are plenty of re-tailed hawks around White Rock Lake and the adjoining parks and trails, as well as surrounding neighborhoods. We’ve heard screech owls early in the morning before sunrise, but this is the first time to see one up close. They are surprisingly small.

If you find injured raptor?

Call Black Prairie Raptor Center or text 469-964-9696

The Blackland Prairie Raptor Center treats sick, injured, and orphaned birds of prey 365 days per year. https://bpraptorcenter.org

The Wall Street Journal, America’s second largest daily newspaper by circulation, had a promotional slogan in the past “Only Busy Men Have Time to Read The Wall Street Journal” in an effort to increase readership, particularly among professionals and those striving to get ahead in business.

For much of its 134 years in publication, the Journal concentrated almost solely on business and financial news and commentary. In recent decades the Journal while still featuring the same content, has become a general news source that includes entertainment, book reviews, and lifestyle features. Since September 2010, the Journal has published in its Saturday edition that, along with its daily news, opinions, business, and financial items, offers comprehensive ‘Review” and “Off Duty” sections not directly related to commerce and finance.

“How a Swan Stays White in Muddy Waters” by Helen Czerski, and “Maybe That Spoiled Kid is Cool After All” by Ben Zimmer were featured in the Journal’s most recent Review section (6/8/2024). Czerski described the swan’s method of grooming in detail. The description includes that these birds have a preen gland that secretes a “superhydrophobic” oily mixture that repels water and causes the dirt to just slide off its feathers. For me, anyway, that gives a whole new meaning to the term “preen” or “preening” that I have generally understood is a verb to describe meticulous or fussy grooming or pretentious posturing. The author doesn’t mention how black swans cope. One wonders; black often shows up dirt better than white.

Zimmer writes a regular Saturday column on words. His latest in the aforementioned edition is the etymology of “brat” — often applied to an unruly or obnoxious child. That meaning appears to come from a Scottish word for a mischievous child or a similar French word for a hunting hound. The Eighteenth Century lexicographer Samuel Johnson included both the pejorative meaning and a more neutral one, as in “military brat.” Zimmer mentioned a group of Hollywood film celebrities who have been dubbed the “Brat Pack” from their association in teen exploitation movies. The “Rat Pack” of Frank Sinatra, Dean Martin, et al with a”B” added. Another use was in Margaret Mitchell’s Gone with the Wind, Scarlett O’Hara’s father referred to the illegitimate child of a poor neighbor girl and his foreman as a “brat” but I’ve never seen or heard it used in that context anywhere else. “Brat,” as short for bratwurst, is my favorite use.

In reference to words and their use, there are numerous that are overused in contemporary parlance that might be a subject for a later post. Most are adjectives. I’ll mention one that has been banned from my vocabulary: the “a” word. It might be appropriate for an extreme quality for an event or something, but occasions are rare and its use has debased the meaning. There are plenty of synonyms to select from.

On June 6, it is again appropriate to republish an essay I first wrote and published almost a decade ago (with an update). Here goes:

The pleasant town of Bayeux in northern France is famous for its eponymous tapestry depicting the events leading to the Norman Conquest of England in 1066. The over 900 year-old tapestry is displayed under glass in a museum there. Across from the railway station there is a café that serves cold beer, wine, and the apple cider the region is also famous for. That establishment bears a sign in English “Welcome to our liberators.”

The sign might appear to be incongruous to some of us, except that ten kilometers (six miles) to the northwest is a bluff overlooking a sandy expanse along the English Channel that for the past eighty years has been known to the world as Omaha Beach.

Many words will be written and spoken on this 80th anniversary of D-Day, the beginning of what General Eisenhower called the “Great Crusade” to end the Nazi occupation of Europe and ultimately win World War II. Today, the word “crusade” is politically incorrect in some circles, being offensive to some who, incidentally, have vowed to kill us and actually have achieved some success in doing so. We have become accustomed to euphemisms, direct and to-the-point speech being too harsh for our sensitive ears. That is just as well. The loudest and most eloquent statements to be made come from the 10,000 American graves at the top of the cliff and the sound of the waves below.

When visiting the beach even this long after the fact, it is not difficult to picture the horror and chaos experienced by the soldiers and sailors who stormed ashore that day. The Germans had fortified nearly the entire coastline of France, as well as the coasts of other occupied countries, into what was called the Atlantic Wall. Various barriers and obstacles had been placed in the water offshore to prevent landing craft from reaching dry land, and to channel invaders into killing zones covered by machine gun bunkers dug into the 100 feet high cliffs above. This required the assault to be made at low tide, leaving a 300-yard open expanse of sand to traverse before the slightest natural cover could be reached. Above the high tide line is another 50-yard stretch of loose sand. Walking unencumbered on loose sand can be difficult; running with 60 pounds of weaponry and equipment, all the while facing withering small arms and artillery fire, is a nearly superhuman feat. Many of the invaders did not make it. That so many did is a credit to the quality of the military training and preparation, as well as the fortitude and power of the survival instinct of the troops. The actual film footage in the Normandy episode of the Victory at Sea documentary demonstrated some of the difficulty, but the bloodiest parts had to have been edited to make it suitable for a 1950s home audience.

The fictional first 24 minutes of the film Saving Private Ryan might more accurately portray the horror and difficulty of the assault, but still may be an understatement. Eisenhower said in his address to the American, British, and Canadian service members who were about to land on the beaches: “Your task will not be an easy one. Your enemy is well trained, well equipped, and battle-hardened. He will fight savagely.” They were about to discover that he got that right.

It could have been worse. A major part of the plan was to deceive the defenders as to where and when the attack would be made. The entire coast-line was fortified, the defending German army indeed was battle-hardened and exceptionally well-led by Field Marshals Gerd von Runstedt and Erwin Rommel. Their main problem was manpower and munitions. Five years of war, and the continuing demands of the Russian front in the east made critical to the defenders the knowledge of the place and time of the landings. The deception, with some cooperation from the weather, worked. The German defenders were caught off guard at Normandy and were unable to bring the full weight of their forces to bear until a beachhead was established. In spite of the withering fire and the obstructions, even Omaha Beach was taken by day’s end. The Americans didn’t get much farther that day, though, and the casualties were huge. This beachhead, established by those soldiers whose ranks are now thinning day by day, made it possible to end the war in Europe. Nazi Germany unconditionally surrendered eleven months and two days after D-Day. Those few that are left, and those who passed before them, merit the gratitude of us all.

For every victor there is a vanquished. So it must be added that within five years of the victory, the United States, and to some degree Great Britain and France, have become allies, if not friends, with Germany during forty years of Cold War, and beyond. There was no doubt then, or today, that the German Army was fighting on behalf of evil masters and a bad cause. Soldiers, most of whom in World War II were not fighting because they wanted to, can nevertheless fight honorably for an ignoble cause (or dishonorably for a good cause, for that matter). Soldiers know this, and once the fighting is over, they are often more inclined than the civilians far from the horrors to let bygones be bygones.

A poignant story related in a British history magazine relates the ordeal of two soldiers, an American and a German defender who shot him at Omaha Beach. Both survived the war. Heinrich Severloh manned a machinegun in a bunker in the cliff. He estimated that he fired over 12,000 rounds before he ran out of ammunition for it, and then picked up his carbine to continue shooting at the attacking Americans. Three of Severloh’s rounds hit David Silva, as he and other GIs were scrambling for cover on the beach. The German was later captured and held in a POW camp until sometime after the end of the war. He was repatriated in 1946 and took up farming. After reading Cornelius Ryan’s book The Longest Day, published in 1959, Severloh learned that he was the one who shot Silva. In 1963, the two former adversaries met each other in Germany. Silva, by that time had taken Holy Orders as a Catholic priest. The two formed a friendship, as former soldiers who fought honorably for opposing sides are often known to do and corresponded for many years. They both suffered of the circumstances that attend the fog and maelstrom of war.

But the story of Severloh and Silva’s later relationship is only an aside. The honor today goes to Silva and his fellow servicemen who stormed the beaches on the fateful day. They we salute.

One of those American heroes was Captain Joseph Dawson, who hailed from Corpus Christi Texas where a public school bears his name. This writer was provided with a link to and excellent pictorial essay about Captain Dawson’s feat along with other U. S. Servicemen who were the first to reach the top of cliff about the beach. This piece also describes Heinrich Severloh’s actions that earned him the dubious distinction and sobriquet “The Butcher of Omaha” for his deadly defense. Here is a link to that essay.

The adjectives “Orwellian” and “Machiavellian” are today often used to describe governmental abuse of power. Unfortunately, many believe that George Orwell and Niccolo Machiavelli were advocates of such ruthless and unscrupulous political behavior. Those of us, who have actually read these authors, understand that they were describing, not advocating, the dystopian societies and nefarious methods of Lenin and Stalin (Orwell) and the Italian Borgias (Machiavelli). Maybe another adjective should be used to describe recent events occurring under our current domestic regime. Here is a vote for “Randian.”

One of the protagonists of Ayn Rand’s novel Atlas Shrugged is a business owner and entrepreneur she names Hank Rearden. In one scene that occurs after he is charged with violating an obscure trade regulation, Rearden questions the glee expressed by Ferris, a government apparatchik, over “finding something on” him. Ferris responds:

“Do 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.” Ayn Rand, Atlas Shrugged (1957, 25th Anniversary Ed. 1992, p. 411). (Emphasis added)

The January 22, 2022 Wall Street Journal published an editorial that stated: “In the 2019 United States Code, [the Heritage Foundation and George Mason University’s Mercatus Center] found 1,510 criminal sections. By examining some of those sections at random, they estimated that they encompass 5,199 crimes in total. The Heritage Foundation report notes that ‘there is no single place where any citizen can go to learn’ all federal criminal laws, and even if there were, some ‘are so vague that . . . no reasonable person could understand what they mean.”

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“But even when it comes to conduct everyone agrees should be criminal, the inexorable expansion of the Code has serious consequences for justice and federalism. The Constitution envisioned that most lawbreaking would be handled by state governments, while the federal government’s jurisdiction would be narrower.

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“Both political parties should recognize the risks of an ever-expanding roster of federal crimes, which invites abuse by prosecutors. How about a commitment by Congress to re-examine the necessity of an existing crime for every new one it creates?”

The Heritage Foundation and the Mercatus Center appear to have done a large part of the job for identifying obscure criminal statutes. But what about the Code of Federal Regulations (“CFRs”)? The offices of U. S. Representatives and Senators have become, for most members, a sinecure; that is, a position of being paid for status, rather doing productive work. Congress has delegated broad powers in making regulations, even powers to criminalize conduct, to the various boards, commissions, and agencies created by a myriad of statutes. The so-called experts that run those organizations can declare citizens to become felons, without express Congressional approval, by criminalizing conduct of which they disapprove.

The proliferation of criminal cases brought against former President Donald Trump appears to be politically motivated. The “progressive” leftists are doing everything possible to keep Trump from regaining the Presidency. The Democratic Party, the party that once produced such principled political figures like Franklin Roosevelt, Harry Truman, and John F. Kennedy (whether one would agree with all their policies), is now stuck with a prospective ticket of an impaired stooge of the left for President and an incompetent for a possible successor.

Can Trump still run and win this November? Constitutionally and legally, he can. All criminal convictions (excepting minor ones like traffic violations) impose certain civil and social disabilities, regardless whether there is imprisonment or other punishments such as fines. A Trump conviction has no effect on voters who would not vote for him under any circumstances. Among his fans, the opposite is the same. How about swing voters? Many, even those who lean to the left, may be outraged by the apparent Machiavellian-Orwellian-Randian abuse of the legal systems, and will be more inclined to vote for Trump. There will be some, perhaps not a few, who cannot bring themselves to vote for one convicted of a crime, whatever it might be.

At this point it’s still early days, but stay tuned.

Notes: The current so-called “hush money trial” was held in a New York court and rules of decision and procedure under New York law, not federal law. The above analysis is no different.

For additional reading on what could be termed “mass criminalization” I recommend Three Felonies a Day by Harvey Silverglate (2009). Mr. Silverglate is a lawyer based in Massachusetts, who has extensive “white collar” criminal defense experience. Silverglate, along with University of Pennsylvania professor Alan Charles Kors, founded the Foundation for Individual Rights and Expression(www.thefire.org), and organization that advocates for and defends students and faculty members, journalists, and others in free speech and expression issues (regardless of their place on the political spectrum). Silverglate’s thesis is that if politicians in control of the government they can always find a crime to charge dissenters with and thus discredit or eliminate them. Not known whether Silverglate read Rand’s work, but the Trump prosecution appear to bear out her ideas.

Also see Howard, Philip K. (1995). The Death of Common Sense: How Law is Suffocating America. New York: Random House.

I received some e-mails asking about my reference to the Aristotlean-Medieval “Great Chain of Being” theory in the previous post of December 30, 2023.

The concept of a Great Chain of Being was derived from Aristotle’s Historia Animalia, that was his attempt to develop a taxonomy for living beings, animals in particular. This idea of classification was extended to the universe by later thinkers, into a sort of earlier day “theory of everything.”  Nowadays the quest for a theory of everything is often a topic for reporting and discussion. Present day theoretical physicists are striving, so far without success, to discover the basis for an explanation that will describe the way the universe works. Einstein’s relativity and the quantum theory seem to be at odds with each other in a manner that has yet to be reconciled. Some quests transcend time and place.

The Great Chain of Being theory was sometimes termed the “Ladder of Nature” (scala naturae), but is was decidedly not a ladder or stairway that beings could move up or down on. Everything had its place, which was immutable.

Chain of Being

God was at the top of the Chain and rocks were at the bottom in a hierarchical continuum. Humans occupied the space on the continuum between the wholly spiritual (angels and demons) and wholly physical worlds. Within their category, humans had their own hierarchy. For example the king was God’s lieutenant on earth, at least in his own kingdom. Below the king were the nobility or aristocracy, commoners of various ranks, and serfs and slaves. Everyone was born into his place, and stayed there. Moving up and down was not possible, and to attempt to do so was a crime and a serious sin.

Obviously, such a mind set had great benefit for those in power. It was a wonderful way to keep the hoi polloi in line. Try to change your station in life and you are punished by death; since you have committed a serious sin by attempting to interfere with God’s order, you go to hell for eternity. And the journey is not at all pleasant, to wit:

Auto de fe of a heretic

This idea began to come apart in the West with the Renaissance and Reformation in the 15th and 16th Centuries and received its greatest impetus in the Enlightenment of 17th and 18th Centuries. The United States of America became the Nation of the Enlightenment, its founding document for the first time ever declaring that all men are created equal, and possess certain unalienable rights. That Declaration established an intellectual basis for the rights of individuals being superior to any so-called rights of the collective — i.e., groups.

Obviously, the ideal did not immediately become reality. More than three millennia of tradition and established institutions did not roll over and play dead. The rest of the world, furthermore, was steeped in the same ideological mind set, and for the most part, it still is. Breaking the Chain, or converting it into a ladder, is an ongoing task and it not yet completed. One reason may be that history is a chronicle of people who are mostly lazy, scared, and greedy. Such people can take comfort in a system where everyone has a place.

Notes: The “Nation of the Enlightenment” was coined by Leonard Peikoff in his the Ominous Parallels (1982). “Lazy, scared, and greedy” people is Ian Morris’s description in Why the West Rules; For Now (2010). For those interested, a readable, more detailed narrative of the Great Chain of Being (as it applies to the subject matter of their book) is contained in the first chapter of Robert Bucholz and Newton Key’s Early Modern England (Blackwell Publishing 2004), pp. 22 – 30.

Nikki Haley supposed gaffe in New Hampshire this past week concerning her initial omission of slavery as a cause of the American Civil War might have given her primary opponents and Democrats ammunition. I viewed a video of and listened to her response and read a transcript. Her omission of mentioning slavery may have been impolitic, even clumsy, given the heat of this campaign season, but it was not egregious. This episode probably does not have staying power as an issue.

But what was the Civil War really all about? Here is an answer.

“All wars are sacred, to those who have to fight them. If the people who started wars didn’t make them sacred, who would be foolish enough to fight? But, no matter what rallying cries the orators give to the idiots who fight, no matter what noble purposes they assign to wars, there is never but one reason for a war. And that is money. All wars are in reality money squabbles. But so few people ever realize it. Their ears are too full of bugles and drums and the fine words from stay-at-home orators. Sometimes the rallying cry is ‘save the Tomb of Christ from the Heathen!’ Sometimes it’s ’down with Popery!’ and sometimes ‘Liberty!’ and sometimes ‘Cotton, Slavery and States’ Rights!’” — Margaret Mitchell, Gone With The Wind (speaking through her character Rhett Butler).

Yes, all wars are fought over money. A recent work by York University historian Mark Egnal, Clash of Extremes (2009) performs a detailed and painstaking analysis of the events leading up to it, and empirically validates Mitchell’s thesis as to the reasons we had a Civil War. It was all about money, or, more accurately, wealth, and how it is produced. The War was an epic struggle between the ancient feudal agrarian economic system, and the burgeoning free market capitalism made possible by the scientific-technological-industrial revolution which flowed from the ideas of the Enlightenment. In the large picture, in a process which is still going on, the War was a step in the dismantling of the ancient and medieval idea of the Great Chain of Being, which held that everyone was born into an immutable class: the king and his nobles at the top, and serfs and slaves at the bottom. This process was the long, and often rough and painful, transition from caste system defined by the accident of birth to the concept that “all men are created equal.”

We should reject the notion that any one of us today should have shame for slavery as it existed in the 19th Century and before. Why? For the same reason we should not feel shame (or take pride) in something we have had nothing to do with. There is no one alive on this Earth who does not have some ancestors who were oppressed and others who were oppressors. By today’s moral standards, human bondage is wrong. But that is a standard which has only gained acceptance in the past 200 years or so. Compare that it was once considered moral and even laudable to burn suspected witches alive, and inflict fiendish punishments on others who thought differently. For millennia, slavery was acceptable as part of an economic system that had been universally approved, and only became morally suspect with the liberation of the human mind by the Age of Reason, and Enlightenment. Slavery’s entrenchment in the United States – which occurred prior to the time the last alleged witches were hanged in Massachusetts – was not limited to the Southern states, although it persisted there because of the plantation. Principally cotton, economy. In fact, it was in many ways the welfare system of many bodies politic. It took care of the least functional members of the populace in return for menial labor. It still exists today in some less functional backwater countries.

The Southern leaders who brought about secession ill-served their constituencies. They wished to maintain slavery because it was the bulwark of the economic system that they knew, and, while becoming increasingly morally suspect, was not considered by many of all regions and countries to be the abomination that we, with the benefit of hindsight, correctly regard it today. They sought to preserve an archaic system, and in so doing, coupled with the clumsy manner in which they reacted to Lincoln’s election, precipitated a disastrous war. (For more on this topic, see another recent work: Nelson Lankford’s Cry Havoc: The Crooked Road to Civil War (2007).

Those who actually fought for the Confederacy — the poor men who fought the rich men’s war — were less cognizant of the economic reasons, but they understood the invasion of their homeland by outsiders – foreigners, really. Today we forget that what some historians have referred to as the “tyranny of distance” made one much more likely to identify with their state and region more than with the huge nation America was becoming. They, and even those who led the secessionist movement, did not fight to establish slavery – they were defending their homeland against a perceived invasion – which included defending the status quo they inherited, and which only a small minority of Americans wanted to abolish when the War began.

As for Abraham Lincoln, he was much more interested at first in preserving the Union for economic purposes than he was in ending slavery. He understood a united country was necessary to preserve and foster the free-market capitalist system, which was a moral purpose of its own. During the War, however, Lincoln came to realize that making the War explicitly a crusade against slavery was useful as military strategy — see the quotation above. The President also realized the moral value of free-market capitalism and destroying an institution that held men in bondage have the same underpinning – human freedom. That is what our country – all of it, North and South, East and West, however imperfectly – has been about since its inception. But when it comes down to fighting: it’s the money.

The evidence of slavery and the prospect of extending it to new western territories was certainly an underlying cause.
The attempted secession by the lower Southern states, beginning South Carolina was caused by the planters’ fear that Lincoln and a Republican Congress would abolish slavery. Of course, serious historians know that the Republican primary goal at the time was to exclude slavery from the new territories, not abolish it where it existed. And whether a state could secede was still an open Constitutional question at the time. The Confederate attack in Fort Sumter and the Union response in sending troops to quell the rebellion caused the upper South to secede was the proximate cause of the War’s commencement. The fight was on.