Outliving this Day and Coming Safe Home

It seems that the claim that President Obama is not a natural born citizen and therefore ineligible to be President of the United States will not die among some persons. That is unfortunate, however, the question remains as to why is this could be an issue in the first place?

I know from a long study of history and Constitutional law that the “natural born citizen clause” was one of the compromises the Convention delegates came to when drafting Article II. The executive was given broad and considerable power, and that concerned many of the framers. The executive model in those days was that of a hereditary monarch. Various alliances were obtained by the intermarriage and between and among the various European royal families. The result was that the executive, that is, the king, because of his lineage, might be of a different nationality.  This sometimes caused unhappy results.

The example the colonists were acutely aware of was Britain. King James I, who was Scottish, but descended from Henry VII through his daughter Margaret (sister of Henry VIII), in 1613 formed an alliance with Frederick V, Elector of the German Palatinate, through the marriage of his daughter Elizabeth Stuart to Frederick. (Elizabeth was also known as the Winter Queen of Bohemia during the first phase of the Thirty Years War, another interesting story too long to tell here.) Their daughter Sophia married Ernst Augustus, Elector of Hannover. Sophia’s son, as the nearest Protestant relative to the British royal family, became King George I when Queen Anne (James I’s great-granddaughter) died in 1714. His great-grandson George III was the designated villain to the American revolutionaries. The King’s perceived despotism and disregard to the “rights of Englishmen” was attributed in part to his German – foreign – ancestry. After all, he was also the Elector of Hannover, one of the principal German states.

Some of the framers we also concerned that perhaps a European prince could come to America bringing great wealth and a retinue capable of buying his way into high office, even the Presidency, with its considerable powers. How plausible this was is open to question, but the delegates decided to assuage fears by putting the natural born citizen clause in the Constitution — they had other matters to worry about.

Whether this concern is relevant today is really beside the point. The Constitution says what it says. Senator Orrin Hatch of Utah, perhaps motivated by the then popularity of Arnold Schwarzenegger, who is a naturalized citizen, proposed in 2004 a Constitutional Amendment that would permit a naturalized citizen to become President after 20 years. This proposed amendment has so far gone nowhere.

Nevertheless, logically, a “natural born citizen” is one who is a citizen when he/she is born. A person born to a citizen is a citizen at that moment. Thus, if a person is born to a citizen, he is a natural born citizen, even if he was born on Mars.

President Obama’s mother was unquestionably a citizen at the time he was born.  Therefore, he is a natural born citizen Constitutionally eligible to be President. End of story.

Whether he should be is a different question entirely. I can think of a half-dozen reasons why Obama  should be defeated in his re-election bid, and will work to that end. None of those reasons have anything whatsoever to do with his ancestry, skin color, or identification with a racial or ethnic group.

There is a rhetorical device called “sandbagging” or “hustling” in which one sets up an opponent by appearing to given them an argument that seems unassailable on its face.  When they pursue it, it becomes irrelevant, patently fallacious, or petty. Maybe President Obama refused to release his birth certificate (or at least the “long form”) for so long so as to allow those who seized upon that issue to make fools of themselves.

Those who would like for the President to have early retirement should forget the natural born citizen issue, and concentrate on those with substance.

I am not a believer in grand conspiracies, I do recognize trends that manifest certain attitudes.  The overcriminalization we see that results in the injustices to Lawrence Lewis, Gibson Guitars, and a lot of others has creeped up on  us over the past half century.

Interestingly, the trend was recognized and published 55 years ago, even before it was fully underway.  Read on:

Dr. Ferris smiled. . . . . .”We’ve waited a long time to get something on you. You honest men are such a problem and such a headache. But we knew you’d slip sooner or later – and this is just what we wanted.”

“You seem to be pleased about it.”

“Don’t I have good reason to be?”

“But, after all, I did break one of your laws.”

“Well, what do you think they’re for?”

Dr. Ferris did not notice the sudden look on Rearden’s face, the look of a man hit by the first vision of that which he had sought to see. Dr. Ferris was past the stage of seeing; he was intent upon delivering the last blows to an animal caught in a trap.

“Did you really think that we want those laws to be observed?” said Dr. Ferris. “We want them broken. You’d better get it straight that it’s not a bunch of boy scouts you’re 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’d 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 law-breakers – and then you cash in on guilt. Now, that’s the system, Mr. Rearden, that’s the game, and once you understand it, you’ll be much easier to deal with.”

from Atlas Shrugged published in 1957. (quote from p. 411, 35th Anniversary Edition, paperback, 1992)(emphasis added).  The “new normal”?  Who would have thought?

Never gripe about a problem unless you have an solution.

H.R.4171 (identical Senate is S. 2062 titled the Freedom from Over-Criminalization and Unjust Seizures Act of 2012 (FOCUS Act) would repeals criminal penalties under the Lacey Act; It would instead establish a maximum civil fine of $200,000. The Lacey Act is the law Gibson was accused of violating.

For more, see  here.

To findand contact your Congressman see www.house.gov; Senator www.senate.gov

Regulation can be a dirty word – I mean dirty as a stopped up toilet.

When most of us think of crimes and criminals, we envision robbery, burglary, car theft, murder, rape, and the like. Embezzlement, fraud, bogus investment schemes, and tax evasion also raise no eyebrows when referred to in a discussion of criminal law.

For most of the history of the United States, criminal law enforcement was, with few exceptions, a state matter. Indeed, the only crimes specifically mentioned in the Constitution are treason, counterfeiting, and piracy. Over the first century of its existence, Congress, as part of its power to enact laws necessary and proper to carry out its enumerated powers, defined other crimes, and so by the year 1900 around 165 federal criminal laws were on the books.

By 1970, the number reached 2,000. In 2004, there were over 4,000 federal laws providing for punishment by fine and imprisonment, and they are scattered throughout over 27,000 pages of the United States Code. Some of the prescribed offenses are so obscure, it’s not hard to believe that fewer than a score of persons know they exist.

The image of the criminal is that of a bad guy who kills and hurts people and steals their belongings. Although few would disagree that water pollution is undesirable, should someone go to prison for inadvertently spilling sewage into a creek? Apparently, one can.

Lawrence Lewis was raised in the projects of Washington, D.C. By the time he was 20, all three of his older brothers had been murdered and his father was dead of a heart attack.

“I got a criminal record from my job—when I thought I was doing the right thing?’

Seeking an escape, he took night classes while working as a janitor for the D.C. school system. He rose to become chief engineer at a military retirement home. He raised his two youngest daughters alone, determined to show them how to lead a crime-free life.

That goal was derailed by blocked toilets.
 
In 2007, Mr. Lewis and his staff diverted a backed-up sewage system into an outside storm drain—one they long believed was connected to the city’s sewage-treatment system—to prevent flooding in an area where the sickest residents lived. In fact, the storm drain emptied into a creek that ultimately reaches the Potomac River.
 
Eight months later, Mr. Lewis pleaded guilty in federal court to violating the Clean Water Act. He was had to pay a $2,500 fine, was given one year’s probation and placed under court-ordered supervision.

Lewis didn’t realize he was committing a crime, or even that he was doing something wrong. No matter. Lewis’ lawyer explained that a guilty plea was the only reasonable option unless he wanted to risk a prison term. Under the CWA, the government did not have to prove he knew he was violating the law, and the cost of a defense would be enormous even if a jury found him not guilty. From personal experience as defense counsel in federal court, I know that the deck is stacked against criminal defendants there. And this is the USA, not the USSR, or is it?

By the way, this isn’t a partisan issue. Both parties have made a lot of political mileage out of being “tough on crime.” The modus operandi for the past half-century has been: find a problem; pass a law.

The first thing a jail inmate asks another is “What are you in for?” In Mr. Lewis’s case it would be “Stopped up toilets.” Good grief, y’all!

For more of the article, please see this link.

A clarification for the previous post. The EIA is a private organization, not a government agency, and I didn’t make that entirely clear. Nevertheless, it was federal law enforcement officers who raided Gibson’s plants. It should not be the business of our government to act as hit men or shills for zealots. Neither is it the DOJ’s function to enforce foreign nations’ laws based on the these fanatics’ interpretation of those laws, especially in the face of contrary opinions issued by those nations’ officials. The EIA’s director of forest programs Andrea Johnson also says she mis-spoke when she said that Gibson “was on the ground in Madagascar getting a tour to understand whether they could possibly source illegally from that country.” “I used ‘illegally’ when I meant ‘legally’ in talking about the trip to Madagascar,” she says. Big difference. 

Stay tuned for more horror stories.

An uncomfortable number of my friends and acquaintances dismiss the concern that our government is playing too much of a role in our lives. Perhaps they are among Professor Ian Morris’s (Why the West Rules; for Now) lazy, greedy, and scared people? There may be some of that, but for most of us, so far, I say no. I am not going to give up on Americans that easily. One problem is that we are now living in the age of information overload, and there is so much out there, and our day to day lives take so much effort, that too many of us don’t have, or make, the time to think about and understand what is going on. Furthermore, for nearly everyone in this nation, life is, if not luxurious, comfortable by world and historical standards. Comfort makes for complacency.

Among those who are doubtless no longer complacent are the management and employees of the Gibson Guitar company in Nashville and Memphis Tennessee.

Three times during the past two years, federal law enforcement agents brandishing firearms raided Gibson’s plant and seized contraband – that is, wood used to manufacture their guitars. Horrors! It seems that the Lacey Act, one of those ill-considered laws passed by members of Congress who no doubt did not bother to read, makes illegal the importation of agricultural – including wood products – that foreign nations have declared to be protected by their laws. It seems that the wood Gibson was using came from India and Madagascar. According to the U.S. Environmental Investigation Agency, it was contraband and was illegally imported because the trees it comes from were protected by the laws of those countries. Both nations have said that was untrue; their law were not violated. The EIA and Justice Department held otherwise, and commenced preparation of a criminal case against Gibson and several of its officers and employees, notwithstanding that they were acting in good faith reliance they were in compliance with the law.

One of the truest statements made about this outrage was made by Andrea Johnson, director of forest programs for the EIA. “This is a new normal,” she said, “and it takes getting used to.”

Gibson and its employees got lucky. Apparently the case was too shaky for even USDOJ goons to try. The case was resolved with a “criminal enforcement agreement” in which the federales required Gibson to adopt some “remedial measures,” pay a $300K penalty to the government, and make a donation to the National Fish and Wildlife Foundation (out of kindness, I suppose — my apologies to the late Townes van Zandt). The details of the agreement require a gag provision that Gibson will not contradict a factual resume appended to the agreement (whether true or not, I suppose).

Why did Gibson and its officers agree to this when the case was shaky, as it doubtless was? Because the possibility, remote though it might have been, of the company being shut down and hundreds of people put out of work while key employees went to prison for up to five years, was too great of a risk.

In a column by lawyer Harvey Silverglate in the Wall Street Journal (August 20, 2012), he says “In exchange for agreeing to read the government’s script, Gibson regained its ability to conduct business without a federal sword of Damocles dangling over its corporate head.”

If my friends who believe this “new normal” is overstated and it won’t happen to law-abiding persons, I recommend Silverglate’s book Three Felonies a Day: How the Feds Target the Innocent. He is writing about YOU.  After you finish, it is your turn to write — to your Representative and Senator.

Also see my prior post Are you a Felon?

The Augusta National Golf Club, famous as home of tthe Masters, has parted with its 80 year old all male membership tradition.  It has announed that former Secretary of State Condolezza Rice and financier Darla Moore have been offed memberships.  Word is they have accepted. 

Will they both have to buy some plaid pants to fit in with the rest of the geezers?  Probably not, but they will get green jackets.

I have occasionally wondered how Charles Lindbergh’s The Spirit of St. Louis received its name. A natural first reaction was that it had something to do with the city in Missouri. Lindbergh, however was not from there – he was born in Detroit. The airplane was manufactured by Ryan aircraft in San Diego. It’s true that when he flew the plane from its manufacturer to New York, the departure point for his non-stop flight to Paris, he stopped on at St. Louis on they way, but that city was about midpoint across the U.S. and a natural stoppin gpoint.  Once, someone, perhaps imbued with more piety than knowledge, suggested to me that because Lindbergh was flying to Paris, he named the airplane after France’s sainted 13^th Century monarch, Louis IX. As discovering this bit of information was not particularly important, I let this quest lapse.

As it turns out, my first impression, as it often is, was correct. The Spirit was named for the city on the Mississippi because its Chamber of Commerce contributed financially to Lindbergh’s flight across the Atlantic. Wonder of wonders, organization of private businesses and entrepreneurs, and not the government, were responsible for this sea-changing (pun intended) feat.

Chris Mead, whose brother Walter Russell Mead, the Bard College professor and American Interest edition I quote and reference occasionally, is a VP of the American Chamber of Commerce Executives. He is writing a history of the Chambers, believing that not enough has been said about the local folk who did much of the heavy lifting on main street.

So much heavy lifting that Chambers were responsible for, among other things, the downfall of a well known gangster and one of the defining events of 1960s American flower power. For more, please see this link..

Once upon arriving tardy when in high school, the assistant principal once told me it was “better never than late.” I found out what he really meant when serving in the military; being late might really mean nevermore when the real deal comes. So, being punctual, even to a fault, has been burned into my character.

When I make an appointment to meet a client, or prospective client, in my office. I try my very best to not keep them waiting past the appointed time. Sometimes an urgent phone call comes that delays my attendance a few minutes. When that happens, I usually apologize to the client by (partially) jokingly saying that “I don’t want you to think you have come to a doctor’s office.” (Disclaimer: I never have to wait more than a few minutes past an appointment time in my regular doc’s office and I don’t think I get special treatment. I seem to be in a minority, however.) It’s bound to get worse — for everybody.  Read on.

Why the Doctor Can’t See You
August 16, 2012

Washington Post columnist, with whom I frequently disagree, but am willing to give him his due when he is right, wrote on Mitt Romney’s observation concerning Arab-Muslim culture while visiting Israel.

“The cultural difference between Israel and its Arab neighbors is so striking that you would think it beyond question. But when Mitt Romney attributed the gap between Israel’s economic performance and the Palestinians’ — “Culture makes all the difference,” he said in Israel — the roof came down on him. PC police the world over raised a red card, giving him demerits for having the temerity to notice the obvious. Predictably, Saeb Erekat, chief Palestinian negotiator and a member of the executive committee of the Palestine Liberation Organization, denounced the statement as “racist.” It was, of course, just the opposite.”

See Cohen’s complete article at this link.

Cohen modified his stance somewhat by writing that Romney probably should not have been so blunt.  But why not,  “Give ’em Hell Harry” Truman, a Democrat, was praised for his plain speaking, mostly post his tenure, admittedly.  Maybe we need more of the same.

What happened to “Tell it like it is”?