Outliving this Day and Coming Safe Home

This coming week there will be three Supreme Court cases decided: Issues are gay marriage, affirmative action, and voting rights act application. Perhaps as early as tomorrow.

I cannot predict how any of them will go; each is an extremely close call, otherwise it wouldn’t be before the Court.

I will predict, however, that at the end of the term either Ruth Bader Ginsburg or Stephen Breyer will announce retirement. This is based on the perception that this year is the last time President Obama may have the ability to obtain confirmation of a justice that has judicial and political ideologies similar to those of these incumbents. Next year is an election year and the Senate Republicans will “Bork” any such nominee. If the GOP takes the Senate then, same thing for the est of the term. Anthony Kennedy could retire this year, but I don’t believe he will. If he does, there will be the equivalent of nuclear war in Washington.

I would welcome any thoughts readers might have.

Judge Edith Jones of the Federal Fifth Circuit Court of Appeals certainly does not need me, or anyone else, to defend her. Federal judges are appointed to serve during good behavior. Like the President, they can be removed from office only by Congressional impeachment proceedings. Few have been. The standard for an impeachable offense is not entirely clear, but it almost certainly must be a serious crime or abuse of office. This jurist thus can take good care of herself.

Because of the current attempt to use the judicial complaint process to stifle off-the-bench free expression of ideas by a prominent judge, I am nevertheless impelled to comment, with some analysis, on the Complaint filed this month alleging judicial misconduct filed against Judge Jones. See Dallas Morning News, June 14, 2013, p. 2A; Texas Lawyer, June 10, 2013, p.1; Internet links: Huffington Post ; National Review ; New Orleans Time-Picayune ; Daily Kos ; there are many others.

The Complaint has stimulated a leftist circle-jerk. (Sorry for the off-color metaphor, but it’s impossible to otherwise adequately describe this ado.) The accusers are the usual suspects, whose front man is Austin’s pecksniff-in-chief James Harrington. Enough said concerning the Complaint’s provenance

The Complaint has been described in the media, mainstream and otherwise, as alleging Judge Jones is racist, and her racism informs her judgment in death penalty cases that come before her, mainly in post-conviction habeas proceedings. Her alleged transgressions occurred during her lecture entitled “Federal Death Penalty Review” at the University Pennsylvania School of Law in February.

Not being entirely trusting of the media accounts, I read the Complaint, as well as a supporting affidavit that supposedly provides support for nearly all of the allegations. The affidavit was signed by one Marc Bookman, an attendee at the lecture, whose resume might indicate he has an ax to grind. No audio or video recording of the lecture has surfaced.

First of all, Bookman’s “affidavit”would not past muster in a court as it does not specifically recite that the facts stated are within the affiant’s personal knowledge and are all true and correct. It is also vague, conclusory, and opinionated. For an affidavit to be valid, it must support a charge of perjury if any fact stated as such is untrue.

Secondly, to the extent this statement recites objective facts, it puts the writer’s spin on them, and, conveniently leaves out the context. It’s not worth much as evidence of anything, let alone wrong doing by Judge Jones.

As for the Complaint itself, its main thrust is that Judge Jones made statements that were “offensive” (I suppose mainly to leftists), and demonstrated bias and – horrors – opinion that is unpopular among those on the left.

There appears to have been no recording, and thus no transcript of Judge Jones’ remarks. Accordingly, there is no objective, verifiable evidence of her precise words, tone, and context. Tone and context themselves would be important in determining what points she was making. If, for example, she were to have said “All Blacks are inherently amoral” preceded by a phrase “the old, but discredited belief.” That would make a big difference in what she was trying to get across, than the first quoted independent clause said by itself.

But I don’t want to waste time and bytes on speculating what Judge Jones actually said and parsing the sentences. What is alleged on its face is in no way misconduct or, for that matter, wrong or even offensive to anyone whose skin is more than an Angstrom unit thick, regardless of its hue.

The Complaint alleges that Judge Jones made the following points during her speech:

• The U.S. system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution.

To the extent this is an accurate rendition of Judge Jones’ point, this is one of the philosophical bases for capital punishment, and has been for centuries. It may not comport with contemporary leftist dogma, and it might be a religious belief that some do not accept, but Judge Jones is entitled to her personal opinion. She can believe what she wants philosophically and religiously so long she does not judge inconsistent with the law and the Constitution. Congress, the legislatures of (currently) 30 states, and the Supreme Court have accepted the death penalty as Constitutional and legal. Some of us would like to abolish it, but it was accepted by those who drafted the U.S. Constitution, and concerted attempts to get rid of during the past half-century have failed. The principal reason for that failure was that there is a consensus in most states, and at the national level, that capital punishment is appropriate in certain circumstances.

• Certain “racial groups like African Americans and Hispanics are predisposed to crime,” and are “prone to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities.

This allegation is not even supported by Marc Bookman’s affidavit, upon which the complaint is primarily based. Bookman states, “[Judge Jones] responded that she did not mean that certain races were ‘prone’ to such violent behavior – just that, ‘sadly,’ they happened to engage in it more often. She noted there was no arguing that ‘Blacks’ and ’Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly’ people from these racial groups do get involved in more violent crime.” (Bookman affidavit, ¶ 28) This is a far cry from the allegation that Judge Jones stated those racial groups are “predisposed” to crime. Regarding the more “heinous” allegation, Bookman related that “In [Judge Jones’] words ‘Sadly, some groups seem to commit more heinous crimes than others.’” (Bookman affidavit, ¶ 27 (emphasis added)). If, indeed, Bookman accurately quotes or paraphrases Judge Jones, she can only be fairly accused here of stating demonstrable facts, with which the EEOC appears to agree, given its recent guidelines discouraging prospective employers’ from making criminal background checks (The Wall Street Journal, 6/12/2013, p. A1). The reasons for these disparities are anything but clear and are certainly arguable. Our persistence in classifying persons by race or ethnicity when it is supposed to be legally irrelevant goes a long way to providing an explanation. Furthermore, it is demonstrable that children of illegitimate parents, regardless of how they are ethnically or racially classified, grow up more apt to commit criminal acts. The left’s hegemony over the legal system for the past half century is responsible for both factors.

• Claims of racism, innocence, arbitrariness and international standards are simply “red herrings” used by opponents of capital punishment.

Arguing racism in a habeas petition is standard. And why not? It is the rhetorical nuclear option; a proven loser’s ploy to end a discussion. Federal (and state) appellate judges see it so often it’s lost any effectiveness it might have once had. As far as actual innocence is concerned, it is rare, but when serious evidence is brought forward, it gets due consideration. Anyway, the prisons and jails are full of innocent persons, just ask any inmate. As far as international standards are concerned, they are not due any serious consideration. Our systems of government and criminal justice are unmatched for fairness anywhere. Other nations have had their reasons for abolishing capital punishment. That’s their business. Nearly ever other nation curtails freedom of the content of expression to some degree; the United States emphatically does not, except in the narrowest of cases.

• Mexican nationals would prefer to be on death row in the United States rather than in prison in Mexico.

and

• The country of Mexico does not provide and would not provide the legal protections

that a Mexican National facing a death sentence in the United States would receive.

Given the horror stories about conditions in Mexican prisons and the official warnings our State Department gives to travelers to that country, this may well be true in many instances. In any event, it is at worst, rhetorical hyperbole. Offensive to Mexicans? Possibly; but so what? Diplomats might be fairly criticized for making invidious comparisons of another nation’s legal systems, but Judge Jones is not a diplomat. Mexico is our closest neighbor with a totally different system that does not give the deference to individual rights ours does. The comparison is apt.

• Capital defendants who raise claims of “mental retardation” abuse the system.

This is similar to the allegation of Judge Jones’ disparagement of “racism, innocence, arbitrariness, and international standards” above. The Judge’s principal offense in this regard seems to be her use of the politically incorrect term mentally retarded (the Complaint puts it in quotes, probably out of fear a fellow traveler might be critical of its repetition).

• The United States Supreme Court’s decision in Atkins v. Virginia prohibiting execution of persons who are “mentally retarded” was ill-advised and created a “slippery slope.”

A jurist criticizing a Supreme Court opinion? The very idea! There were vigorous dissents in Atkins. Judges apply the law as handed down by the legislature and higher courts that they do not like all the time. Because a judge would like to see the law changed, doesn’t mean that can’t or won’t apply it as it currently is when a case comes before them. Anyway, many dissents have famously become the law at later times.

The Complaint further alleges that “Judge Jones demonstrated extreme disrespect to a fellow Fifth Circuit judge [James Dennis], lack of judicial temperament, and a failure to maintain and observe the ‘high standards of conduct’ required of federal judges” during a court proceeding.
It would seem that Judge Dennis, or perhaps the litigants at that proceeding, would be the appropriate persons to complain, if they indeed believed Judge Jones’ conduct was sufficient to violate the standards. It’s nothing remarkable when appellate judges get testy with one another, particularly when one attempts to monopolize a time-constrained argument, which, upon listening to the exchange, was exactly the situation. (recording available at http://www.ca5.uscourts.gov/OralArgRecordings/07/07-41041 9-20-2011.wma  ) Inclusion of this alleged offense is gratuitous, and unworthy, even of these complainants.

One of the conclusions set forth in the Complaint was that Judge Jones “severely undermine ‘public confidence’ in the federal judiciary.” On the contrary, a jurist who is unafraid to speak her mind in public and refuses to kowtow to the fashion of political correctness, does a lot to maintain and instill such confidence for most Americans who are not enamored by such fashion.

There are doubtless those who would disagree with the foregoing analysis. That’s fine. Before you make up your mind, read the Complaint and the supporting affidavits.

Last week we took a respite from the daily grind here in Dallas and flew out of town at sunrise. Actually, it was a little later in the morning, but leaving at sunrise sounds dramatic.

Our journey took us first to Maryland, where I was at Aberdeen Proving Ground for my last year in the U. S. Army. Some friends who were there planned a get-together. Had dinner in Havre de Grace at a nice Italian restaurant, which I recommend to anyone who might be up that way looking for a place to eat. Havre de Grace is off I-95 at the mouth of the Susquehanna River, roughly one-third of the way between Washington and New York City. See http://www.chiapparellishdg.com/.

The next day was travel by car to western Pennsylvania. On the way we found a small restaurant called Shab Row Bistro in Frederick Maryland. Quite imaginative and tasty food. Many local, American, and imported wines. Didn’t try any vino there as we were on a long drive, but purchased a bottle to go. See http://www.shabrowwine.com/.

For the Pennsylvania sojourn, our purpose was to visit Falling Water, the house in the mountains that Frank Lloyd Wright designed for the Edgar Kaufmann family (of the Pittsburgh department store fame) and is considered his masterwork. Prior to that visit, we learned that Wright had designed another house located nearby that was open for tours. Kentuck Knob, as it is called, was designed and built in the 1950s when Wright was in his eighth decade. It was commissioned by the Hagan family, who owned a Pittsburgh ice-cream business (no relation to the present well known Hagen-Dazs). The Knob is now owned by a British peer who installed his extensive painting and sculpture collection inside and on the grounds. The house is not large, but the grounds are extensive. See http://www.kentuckknob.com/.

So stunning was Falling Water, it was a good thing that we visited Kentuck Knob first, otherwise it would have been anti-climactic. Falling Water is a veritable treasure-trove of fine-art pieces, and is a work of art in itself. Most of all the innovations Wright is famous for are incorporated in to the design. And, true to his vision, it was built into the side of the cliff. This house is now owned by the Western Pennsylvania Conservancy. The conservancy’s mission is to preserve and maintain the house as a museum. It is an expensive endeavor; like most of Wright’s houses, it was designed to achieve maximum aesthetic value, rather than for practicality. Most of us couldn’t afford to live there if we received it as a gift. It is a wonder to see, and should be on everyone’s bucket-list. See http://www.fallingwater.org/.

A nearby historical site just off Route U.S. 40 is the Fort Necessity battlefield. This is where George Washington, as a 22 year old colonel in 1754, led colonial Virginia troops west in an attempt to oust the French from the Ohio Valley. He met an overwhelming force of the French and their Indian allies, and attempted to make a stand at a hastily built “fort” – about the size of the average modern living room. Washington was forced to surrender, but the terms were generous – leave your heavy weapons behind and get the hell out of our territory. Two years later, Washington, as second in command in General Braddock’s regular British force, returned and met with a similar degree of success, being forced to withdraw after Braddock was killed. Nevertheless, the British and colonials ultimately prevailed and captured the French Fort Duquesne, which was renamed Fort Pitt – later Pittsburgh. The outcome of the French and Indian War, which was part of a world wide conflict, was the end of French political, if not cultural, influence in North America. See http://www.nps.gov/fone/index.htm.

Also in the area is the exceptionally scenic Ohiopyle State Park. The Great Allegheny Passage trail, which extends from Pittsburgh to Cumberland Maryland, passes through the park. Might be a future bicycle trip.

Next stop was Cleveland Ohio. To see more recent history as displayed in the Rock and Roll Hall of Fame was our goal there. Located on Lake Erie proximate to the Cleveland Browns stadium, the Hall of Fame is a steel and glass monument to the history of Rock & Roll music from its beginnings to the present. Unlikely as it might seem for a music genre whose roots and early performers were mostly rural and Southern, Cleveland is regarded as the place rock & roll first took hold and, thanks to WJW radio disc jockey Alan Freed who coined the name, was launched nationally.

The current feature in the HOF is the Rolling Stones’s “50 Years of Satisfaction” exhibit. The displays are, true to rock’s image, mostly over-the-top. Beginning in 1986, individual performers and groups, as well as promoters, mangers, songwriters, have been inducted annually. The objective criterion for induction is that it must be 25 years from the first performance of a prospective inductee’s work. The other criteria are significant contribution or impact, necessarily subjective. Chuck Berry, James Brown, Buddy Holly were among the 17 inducted in first year. In 2013, Rush, Heart, Randy Newman, Public Enemy, Donna Summer, Albert King, Louis Adler, and Quincy Jones were inducted. There is a small theater that has a continuous big screen feature about 45 minutes in length showing audio/video snippets of inductees year-by-year up to the present. The gift shop has the most extensive popular music CD inventory I’ve ever seen in one place. They even sell a good deal of vinyl, included some recent recordings. The CD’s were surprisingly inexpensive, so we purchased greatest hits of the Doors, Chuck Berry, and Bo Diddley. For more info, see http://www.rockhall.com.

Anyway, it was a good trip. Hope you have an opportunity to see these sights some day.

The Nation’s bicentennial in 1976 was a year-long extravaganza of celebrations that included patriotic music and fireworks, tall ships sailing on the wind into New York and Boston Harbors, red white and blue painted fire plugs, and other assorted hoopla.

The bicentennial of the United States Constitution in 1987, on the other hand, was rather subdued in comparison. It received considerably less press.

As important as our Constitution is, it generally has not been in the forefront of public consciousness, and for the past half-century or so, the first thing that would come to mind upon mention would be the Bill of Rights; that is, the first ten amendments.

Recently, however, various events have brought the Constitution more notice. The meaning and interpretation of it is a subject of much discussion, argument, and even heated rhetoric. There are those who treat the Constitution almost as holy writ; the scripture of a secular religion, and a bulwark of freedom. Others look upon our founding document as a roadblock to enlightened governance, or a means of stifling the will of the majority. Still others believe it is outdated and ill-fitted for modern society.

Regardless of the various points of view, it appears certain that most of us do not know much of what is in the Constitution, how it works, and the issues and tensions created there. Now, however, there is an interesting and entertaining television series that might help to change that situation and bring the Constitution home to many more of us.

Peter Sagal, who hosts, with the help of his sidekick Carl Kasell, the oddly informative “Wait, wait… Don’t tell me” weekly news quiz program on National Public Radio, narrates an equally entertaining four-part series “Constitution USA” now in progress on public television.

Sagal rides a motorcycle, appropriately decorated in red white and blue with patriotic design themes, across the country and talks with scholars, lawyers, ordinary people, and even a squad of motorcyclists who are all Marines no longer on active duty (acknowledging there really isn’t any such thing as an ex-Marine).

The two episodes have already aired, and I watched both. The first focused on the concept of federalism; that is, the separation of powers and functions between the national government and the states, and why that is important. The second focused on several of the liberties protected by provisions in the Bill of Rights. Topics include freedom of speech, even when grossly offensive; freedom from religion, even when clearly against the wishes of a local community; taking of private property for public use, but only for just compensation.

NPR and PBS have a reputation for having a left-of-center slant, so I had some trepidation that would be the case with this program series. I was pleasantly surprised. Sagal is scrupulously balanced in his presentation, at least in the first two episodes. I have no reason to believe he will not be the same in the last two. He presents the Constitution and all sides of the issues raised in its application. His characteristic humor and enthusiasm works to inform and emphasize salient points. The show doesn’t take sides.

Well, maybe it does somewhat. A recurring spokesmen in the series is Yale law professor Akhil Amar, an enthusiastic Constitutionalist who is convinced that the founding document is one of, if not the greatest, accomplishments in the history of mankind. I tend to agree, and hope that more of us would learn what it is all about. Here is an opportunity. If you missed the first two episodes, I’m sure they will be available for download or You-Tube viewing; and look for DVDs to be out later.

“Strange… You can read about a hundred atrocities, hear about a thousand, but you only have to see one” — from The Counterfeit Traitor (1962 film)

I was really reluctant to post this link that shows a collection of photographs from immediately after the Boston Marathon bombing. To some degree, it seemed like encouraging morbid curiosity, like “rubbernecking” while passing a car wreck scene on the highway. And, even though I have seen many dead and mutilated bodies in person without similar effect, some of the photos brought me close to being nauseated.

I decided, mindful of the quotation above, to post the link, sent to me by a long time friend and former police officer.

Here it is: graphic photos.

While car wrecks, plane crashes, natural disasters such as hurricanes and tornadoes, violently kill many people and cause horrific mutilating injuries, they are happenstance. There is no conscious malice. The world is a risky place.

But the Boston Marathon bombing was a conscious, deliberate act to not only kill people, but to produce terrible mutilations that victims will have to live with for the rest of their lives. And these victims were not members of the armed forces, volunteers who knew they were going into harm’s way. They were citizens who believed, as they had a right to, they were enjoying the blessing of our liberty, and would not be molested when so doing.

Many call the bombers cowards. Maybe they are, but that is beside the point. It’s rhetoric; used mainly because of the near universal opprobrium and disgust attached to that characterization. They really are evil cretins – subhuman monsters who have forfeited all rights that human beings have. They are mere vermin who should be extinguished.

As someone who enjoys walking in the wilderness, running, and bicycling, I cannot imagine the terrible loss to the 20 or so who enjoyed the same activities, but who will never do the same normally again. This is not to mention the horror and undoubtedly excruciating pain of seeing exposed jagged bone and ragged flesh that is your own.

There may be nothing that can be done to prevent these horrors short of abrogating our hard won culture of liberty and personal autonomy. But at least, when we catch the cockroaches disguised as humans who have proven themselves capable of such a deed, we should quickly eliminate them.

The Dutch have a reputation for libertarian excess. They seem to allow all kinds of weird goings on in their little country. At one time I arrived in Amsterdam at that city’s central station by train, then rode from the train station to the Leidesplein near a hotel where I had reservations. When alighting from the streetcar, I dodged cyclists, skateboarders, rollerbladers, cars, other trams, street purveyors of pot and hashish, none of which seem to be out of place. There is also a red-light district when the working girls display their wares in picture windows lit by, you guessed it, red lamps. Wild.

Except for transport on the tram, I declined to participate. I don’t object to most of their permissiveness. Most of the time it amounts to minding one’s own business. But I wish the Dutch would be more consistent regarding freedom of expression, particularly regarding their criminalization of so-called hate speech that is merely critical of certain religious philosophies that countenance murder of those critics, and anyone else that makes remarks at which certain favored groups might take offense. Ask MP Geert Wilders, former MP Ayaan Hirsi Ali; can’t ask Theo van Gogh – he was murdered on the street by an Islamist with a knife. Too bad Theo didn’t have a gun, possession of which is illegal there.

So it may be surprising to some that the latest big news from Amsterdam is that on April 30, Queen Beatrix of the Netherlands abdicated her throne in favor of her son, the now King Willem-Alexander. I am sure that many of us are surprised to learn that the Netherlands has a monarchy, as low-key as it is. What is even more newsworthy is that this King is the first male monarch in 123 years. His mother became queen in 1980 when grandmother Juliana abdicated. She in turn had been queen since great-grandmother Wilhelmina abdicated after 48 years on the throne. Unlike other royalty, who absent special circumstance reign until death, since Wilhelmina, the Dutch monarchs have had a tradition of abdicating – essentially retiring.

Europe still has, by my count, ten hereditary monarchies. With the possible exception of Monaco, all are figureheads with no real political power. (The Pope is technically a monarch who has absolute power within the confines of the 110 acres that comprise Vatican City, but he is elected.) Contrast those few with the Europe on the eve of World War I, when every sovereign nation on the continent, except France, Switzerland, and, to the extent it can be called a European country, Iceland was a monarchy. Five were styled emperors (including Britain who had a king, also titled Emperor of India). World War I toppled the monarchical rule of the losers; that is, Germany, Austria-Hungary, and their subsidiary states, as well as Russia and Ottoman Turkey. The years between the wars, as well as World War II and its aftermath finished the rest except for the ten alluded to previously.

Today, tracing their lineage to William the Conqueror in 1066, the British have the oldest continuous royal family in Europe. In 1913, The Habsburgs who ruled the Dual Monarchy of Austria-Hungary were the second oldest royal house, and at one time in the Sixteenth Century, ruled over half of Europe, including Spain and the Netherlands.

The Dutch revolted against the Habsburg King of Spain Felipe II, and after a protracted struggle, achieved independence as the Dutch Republic or the Republic of the Seven United Provinces in 1588. This entity was governed by a States-General, with a Stadtholder as military commander, and de facto executive; a sort of federal system. After the Napoleonic Wars, during which the French annexed the Low Countries, Willem of Orange-Nassau, declared the Netherlands, which included Belgium and Luxembourg, a kingdom and himself king. Thus, perhaps the first republic on mainland Europe, aside from the Swiss confederation, retrogressed into a monarchy. Predominantly Catholic Belgium split from the Protestant northern provinces in 1831 to form its own kingdom.

It is one of the anomalies of history that today, the nations which have taken much of the lead in forming and administering the European Union, which many envision ultimately becoming a United States of Europe akin to the federal system here, are Belgium and the Netherlands – two of the surviving monarchies. The American Revolution revolted against the very idea of a monarchy.

The George W. Bush Presidential Library & Center was dedicated this past Thursday here in Dallas, or to be precise, on the Southern Methodist University in University Park. My office is directly across Central Expressway (US 75) from the new edifice, and I have been watching the construction progress since the formal groundbreaking in late 2011.

I have also taken photographs from time to time for a chronicle of the progress. Here are a few.

During the week before dedication, things were rather hectic in the neighborhood. Putting the finishing touches on the building, setting up the stage on the fronts, the seating area, and the press box was done in a flurry of activity. Not the least of the consideration was the security; a sitting President and four former Presidents, together with numerous other prominent guests, domestic as well as foreign, made a tempting target for enemies such as al-Qaeda and assorted other fanatics and madmen. The temporal proximity to the Boston Marathon bombing made that especially eerie.

Nevertheless, the ceremony went off without a hitch. There was adequate pomp and ceremony. All of the speakers, regardless of party, were gracious toward former President Bush. All of their remarks were mercifully brief, even Bill Clinton’s.

On my side of the Expressway were a smattering of protesters, still expressing outrage mainly toward the Bush Administration’s handing of the post 9/11 response and wars. That is a sacred right of Americans, which never should be abridged. One can hardly see their point, though. Bush’s Presidency is four and a half years gone, and the present administration is pretty much handling things in the same way, though not necessarily characterizing some subsequent acts of terror as such.

At this writing, I have only visited one Presidential Library, Harry Truman’s in Independence, Missouri, and that was by happenstance, rather than design. During the next week or so, I plan to visit my second, this time right across the street.

The Senate’s defeat of the remnants of the Feinstein gun control bill last week was denounced by the President and others as “cowardly,” not to mention other unkind epithets. It was touted by many, but not all, Democrats as “common sense” legislation. The terms in quotation marks deserve some comment.

First, it is always useful to look at terms that are effective, as in Frank Luntz’s Words that Work treatise. “Cowardice” is an emotionally loaded term. It is an odious offense for which the death penalty is prescribed for soldiers who display it in battle. It is the failure of one to perform a clear duty because of perceived harm or unpleasantness to oneself. Cowardice is unjustifiable, even in our wishy-washy current culture, and it is hard to live down. Joseph Conrad’s Lord Jim is a good explication of the downstream effects of a cowardly act.

“Common sense” is a powerful concept. It means that wisdom is gained by an accumulation of shared common knowledge. It denominates a cut to the core, no-nonsense approach to problem solving. It is free of nuances and matters irrelevant to the immediate question. And it works for most of us most of the time. Thomas Paine entitled his pamphlet calling for American independence from Britain Common Sense, and applied the concept: It was common sense that an island (Great Britain) should not rule a continent (the colonies). Common sense has since had a powerful appeal. I say rightly so. It is true that common sense often fails when one attempts to apply it to complicated, esoteric problems, where all of the variables are unknown, but it is nearly always a good starting point; a populist Occam’s Razor, if you will.

The invoking of common sense, not common sense in itself, will also fail if one misapplies it. In other words, if something is obviously not commonsensical, calling it such will not make it so. I suggest that its exactly what happened in the recent controversy. The idea that universal, or nearly so, background checks would prevent or reduce the number of guns available to criminals and lunatics, does not make sense when the meanest intelligence can see how such checks would be evaded by criminals. Additionally, most of use realize that mentally disturbed persons would simply fall through the cracks because there is no way to identify them consistent with due process before they commit a heinous act.

Is it cowardly for a legislator to oppose and vote against a measure his constituents do not want? After all, they elected him to represented their interests. There has been a dichotomy since the days of Edmund Burke as to whether an elected representative is bound to use his best judgment on an issue, even when it might not be popular, rather than be a mere mouthpiece for his electors. Yes, we elect representatives to use their judgment, particularly on measures that are complex and the average voter does not have the time and inclination to become familiar with. Nevertheless, if a legislator ignores the wishes of his constituents on an issue when they have made their views plain, he won’t remain in office for long, and rightly so. Trusting a politician has its limits.

Senators, especially Democrats from swing or Republican leaning states, were accused of bowing to the National Rifle Association’s perceived ability to influence elections, and thus shirking their duty to vote for a law that was in the national interest. But was the bill, even when reduced to merely expanding background checks to some private sales, in the national interest? There were vocal, even strident, opinions on both sides, and no clear consensus. If Congress is to enact a law that substantially burdens what has been declared to be a fundamental right, there must be a clear and convincing super-majority to do so. Liberty is an overriding issue on which politicians must listen to their electorate, not their individual judgment.

Well, what about the 90% of Americans who want background checks? That number has been bandied about incessantly. The accuracy of polls depends on the form of the question asked and the sample of the population that is polled. I have seen neither the questions asked nor the sample data. If it was a nationwide poll, however, I would venture a guess that a question framed like “Do you believe that Congress should enact gun control measures that would prevent guns from getting into the hands of criminals and the mentally ill?” would elicit positive responses from nearly everyone. Furthermore, the sample polled could be be weighted toward regions where gun control is more popular.

Much to the dismay of those who tilt to the left, we have a federal system of government in place. This means that the opinions and wishes of those who inhabit the several states and may have different opinions have a mechanism for those to be respected. There may well be 90% and more in the northeast and west coast states who favor certain elements of gun control. I am certain that not even a simple majority of Texans, or, more to the point, Democratic Senator Max Baucus’s Montana constituents, want. Recall that we are debating a national law, applicable to everyone in every state, that would burden a fundamental right guaranteed by the Constitution. Perhaps that could be justified by proof that it would be effective in keeping criminals and lunatics from possessing firearms, but that proof does not exist.

The great bogeyman for the left, the NRA, is effective because it speaks to and for a significant part of the population. It would not exist and have the power it apparently does if it did not. The only thing the leftist gun control advocates can do now is stomp their collective foot like a child having a temper tantrum.

Wayne LaPierre and the NRA, as well as other really commonsensical Americans might paraphrase Franklin D. Roosevelt: The leftists have begun to consider the Government of the United States as a mere appendage to their own affairs. They are unanimous in their hate for us — and we welcome their hatred.

At this writing we don’t know who is responsible for the Boston Marathon Bombing, but we know a few things for certain, or almost so. First of all, that is the appellation that will go down in history, like the Oklahoma City Bombing, 9/11, or the Wall Street Bombing (of 1919). In the last, by the way, the perpetrator(s) were never discovered, though most evidence pointed toward anarchists, one of whom accidentally blew himself up while planting a bomb on the doorstep of the U.S. Attorney General at about the same time.

Other things we know, or should know are (1) it trivializes the event, as well as the word, by describing it with the overworked “tragedy.” A tragedy by its nature involves fate directed at or some failure of the individual suffering the misfortune. This was a despicable act of terror that was intentionally perpetrated on unsuspecting individuals, and a event of profound sadness to those killed and injured and their families and friends, as well as all of us. But,

(2) It was not a criminal act; it was an act of war, or at the very least, an act giving aid and comfort to the enemies of the United States, and particularly Massachusetts. This is an important distinction. The perpetrators are enemy combatants, who should be neutralized, that is, killed, once they are positively identified. At most, the only due process they deserve is ensuring their identity, and that they did the deed. The Nuremberg Trials are an example to follow: Swift, sure, and severe punishment and elimination. The last act of terror on our soil was Nidal Hasan’s massacre at Fort Hood. This November it will have been FOUR YEARS since that atrocity occurred, and there is still no definite trial date. Why? Because the United States government under this President refused to recognize it as a act of war and, absurdly enough, has characterized it as “workplace violence.” And

(3) At this writing, three people have died, and nearly two hundred were injured, many severely. More may die. There were traumatic amputations of feet and legs, and injuries to flesh, blood vessels, and bone serious enough to require surgical removal of the remnants. Not are these wounds excruciatingly painful, but the disabilities are permanent. While prostheses have come a long way, the injured will never get back the lives they had. The bombs used were of the improvised explosive devices (“IED”) especially designed to cause these kinds of wounds, and manifest a deliberate attempt to cause painful death and permanent and profound injuries to the maximum number of Americans.

Whoever the terrorists are, once they are found they should be immediately brought to trial for war crimes, and assuming it is shown they participated in doing the deed, receive the death penalty. They should suffer public executions broadcast live over worldwide television and the Internet. Given the profound pain and suffering as well as the probably permanent disruption of our way of life they cause, I might favor them being hanged, drawn, and quartered with their heads being put on stakes in Boston Common to rot, or burning them alive at the stake. That would get the world’s attention that we are through putting up with this nonsense.

I really don’t expect that will happen, though. It’s possible that, as in the 1919 Wall Street Bombing, we’ll never find the actual perpetrators. Our sophisticated technology goes a long way in tracking down these people, but has its limits. I wonder if we would ever have found Timothy McVeigh and his cohorts if he had not been so stupid as to drive on an interstate highways with no license plates and a loaded gun on the front seat of his car. Criminals are mostly stupid, though. Enemy combatants may not be.

We will continue to suffer indignities when boarding airplanes, be fearful of attending public events, and be subject to government intrusion in our personal affairs. We will have to be satisfied with the occasional elimination of terrorist by drone strikes, but I suppose that is better than nothing.

Maybe I’m just venting. Perhaps I will reconsider. I just might settle for punishment by simple public hanging, without the embellishments. After all they might result in sympathy for the perpetrator.