Outliving this Day and Coming Safe Home

“It is well that war is so terrible – lest we should grow too fond of it.”
                     – Robert E. Lee, after the Battle of Fredericksburg,
                        December 1862.

 “I’ve been where you are now and I know just how you feel. It’s entirely natural that there should beat in the breast of every one of you a hope and desire that some day you can use the skill you have acquired here. Suppress it! You don’t know the horrible aspects of war. I’ve been through two wars and I know. I’ve seen cities and homes in ashes. I’ve seen thousands of men lying on the ground, their dead faces looking up at the skies. I tell you, war is Hell!”
                    – William Tecumseh Sherman, Graduation address,
                       Michigan Military Academy, June 1879.

“The Nazis entered this war under the rather childish delusion that they were going to bomb everyone else, and nobody was going to bomb them. At Rotterdam, London, Warsaw, and half a hundred other places, they put their rather naive theory into operation. They sowed the wind, and now they are going to reap the whirlwind.”
                      – Air Marshal Sir Arthur Harris, RAF, reflecting on
                         the bombing raids over London, September 1940.

This past June 28, at Green Park near Buckingham Palace, Queen Elizabeth unveiled a memorial to the Royal Air Force Bomber Command. Prince Phillip and Prince Charles, both wearing the dress uniforms of Air Chief Marshals, along with surviving veterans of World War II watched.

See the Daily Mail  http://www.dailymail.co.uk/news/article-2165852/Lancaster-drops-payload-poppies-Queen-unveils-Bomber-Command-memorial.html

It has been 67 years since the end of that terrible war, and a good many believe that it is high time the service of 125,000 airmen is recognized. After all, 55,573 died in action – a higher percentage than those who served in the trenches of World War I. There are those, however, who believe such a memorial is misplaced, after all Bomber Command was responsible for more than 600,000 civilian deaths in Nazi Germany and its allied and occupied nations.

The British air raids, along with the U.S. Army 8^th Air Force, wreaked unprecedented devastation on German cities. The British pioneered what came to be known as area, or carpet bombing. Massive fleets of aircraft would target an area that contained strategic facilities and attempt to saturate that area with bombs. Some raids included more than 1000 bombers that rained high explosive and incendiary bombs on cities causing massive firestorms with deadly consequences. Hamburg, an important port and manufacturing center, was almost totally destroyed. Berlin was reduced to a pile of blackened rubble (what the British and American bombs didn’t blast into pieces, Russian tanks and artillery, as well as those of its defenders, did). The collateral damage, that is, civilian casualties, was immense, and there are critics who say that the civilian deaths were not collateral at all, but part of a purposeful campaign of terror.

The most criticized raid of the War was the February 13^th & 14^th 1945 bombing of Dresden in eastern Germany. The Altstadt, Dresden’s old central city, was known as the Florence on the Elbe because of its art and architecture that was some finest example of the Baroque style. The raids almost completely destroyed the Altstadt, including the magnificent Frauenkirche (Church of Our Lady), built in the time of Bach and Pachelbel, and killed more than 25,000 men, women, and children. Moreover, Dresden was bombed less than three months before the German surrender, while the British, American, and Soviet forces were on large parts of German soil and rapidly closing in. An obvious and unnecessary exercise in overkill?

It would seem that these horrific results perpetrated by Bomber Command, led by Air Chief Marshal Arthur “Bomber” Harris, with Prime Minister Winston Churchill’s approval and encouragement, should have been prosecuted as war crimes, or at the very least, allowed to fade into obscurity. After all, the German Luftwaffe attacked cities in Poland, Russia, the Low Countries, and others. The surviving Nazis were tried as criminals, and many were hanged, for such offenses. The Nazi bombing of Coventry in 1940, for example, killed 500 civilians, as well as destroying the cathedral there, many more civilians were killed in London and elsewhere. The destruction and casualties of the 1940 Nazi blitz would pale in comparison to what Harris and his airmen would accomplish. The British raids on Hamburg in 1943 killed 50,000. And that was just the beginning; over tenfold more would die before it was over. Perhaps, as General Sherman might have concluded, the winner in war is the one who best plays the part of the devil.

Nevertheless, I am afraid I cannot agree with the critics. Sadly, the British were justified in sending the bombers to do what they did.

Area bombing in Europe was destructive and deadly. Did it win or hasten the end of the war? Did it have any salutary effect at all? Was the loss of civilian life and the ruining of historic structures and artifices worth the cost? Was there any justification to continue the bombing after late 1944 in Germany or after mid-1945 in Japan when the war was all but won? For one thing, the Nazis were the first to target cities. Furthermore, the bombing in Germany was not carried out wantonly against a defenseless people. The German military fought back ferociously. As previously noted, more than 50,000 British airmen were casualties of the campaign and thousands of aircraft were shot down. Until the United States geared up sufficiently to help in Europe (remember, the U.S. had its hands full with Japan in the two years of the Pacific war, and the Russians were reeling from a withering German offensive until the 1942-43 winter) Britain was essentially alone. It had been subjected to a terror bombing campaign from May 1940 through June 1941 that was halted only when Hitler turned his attention to the Soviet Union. The British fought the only way they could. Given the technology of the time, and the European weather conditions, nighttime area bombing was the only method that could be remotely effective. The most important immediate objective the British had was to keep the Nazi bombers from coming back. The diversion of resources to air defense, particularly after the Cologne raid of 1942 and Operation Gomorrah over Hamburg in 1943, surely kept the German air force from making further raids on Britain. Moreover, this surely hindered the effort on the Russian front.

As for Dresden, at the time of the February 1945 attacks, it was an important transportation hub and command center for the German eastern front. After the successful D-Day invasion and the liberation of most of France by September 1944, combined with Russian drives into Poland by that time, one could believe that Germany was defeated, and all was over but the shouting. This is hindsight; it was not all that apparent at the time. In September, the Anglo-American forces were dealt a severe setback in Operation Market Garden in the Netherlands, and in December the German army launched a fierce offensive in the Battle of the Bulge. All the while, Great Britain was again subjected to air raids, this time by the unmanned V-1 and V-2 missiles, the latter being supersonic and striking without warning of any kind. Even after the Bulge, the Anglo-American forces were opposed every step of the way as they invaded Germany, and continued to suffer many casualties. The Soviet Army in the East was even more ferociously opposed. The Russians suffered over a half million casualties in the final drive to Berlin, and had to fight for the city block by block. Britain and the U.S. had to use everything at their disposal to end and win the European War. Britain has lost too many men, and as Arthur Harris said in February 1945: “I do not personally regard the whole of the remaining cities of Germany as worth the bones of one British Grenadier.” Many British families who had lost men killed in action surely shared his sentiment.

Winston Churchill observed that World War II was a struggle for civilization, Western Civilization as it had advanced in its highest and finest order. One of its finest exemplars had been hijacked by evil forces that harken back to barbarism, superstition, and savagery. These reasons that happened are the subject of a surfeit of writings with many more to doubtless follow. That evil had to be defeated, at whatever cost, for civilization to survive.

Moralists, philosophers and politicians of all stripes are fond of observing that two wrongs don’t make a right, and there was no justification for sinking to the same moral level as the Nazis. That is true enough, but beside the point. When someone manifests an intent to kill you, has the apparent means to do it, and tries mightily, you employ whatever means you have to defend against that. The concept of a “disproportionate response” toward an aggressor exists only in the lexicon of fools. Furthermore, consider this. Winning the war was one thing; maintaining a peace afterward is quite another. Twenty-two centuries prior the Romans concluded a third war of defending against the aggression of rival city-state Carthage by totally destroying the city, killing all the men, selling the women and children into slavery throughout the Mediterranean world, and sowing the fields with salt so nothing would grow again. Rome never had any trouble from that place again. It was the Carthaginian peace. For sixty-seven years after World War II ended, the world has not been troubled by military aggression emanating from Germany, or Japan, which was similarly devastated with conventional, and ultimately, nuclear, bombs. Perhaps, at least in two corners of the earth, Arthur Harris’ whirlwind uprooted the grapes of wrath.

Postscript: Dresden

I have had the opportunity to visit Dresden three times. The first in 1983 may not really count, because I was on a train from Prague to Berlin after dark, and didn’t see much. The only thing I recall was peering out a window toward where I thought the Altstadt was located as the train crossed the Elbe. This visit was before the fall of the wall. I asked a fellow passenger, a young man wearing the uniform of the East German navy, if I was looking in the right direction. He looked away, apparently not understanding my German (which would have been unsurprising) or not inclined to be seen talking to someone who was obviously an American.

My second visit was in 1995. I saw quite a bit more. At that time, a great deal of progress had been made in restoration of the Altstadt. The Frauenkirche, however, was still a pile of rubble, and the only thisng standing in the plaza were a few charred pieces of the exterior wall, and a statue of Martin Luther that survived the bombing more or less intact. The Soviet puppet government had decided to leave it that way as a reminder of the war. After the Soviet collapse and reunification of Germany, plans by a private foundation and other donors were in the works. A major part of the plan was to use as much of the original stones as possible, so the pieces were in the process of being identified and catalogued to be assembled more or less like a giant three-dimensional jigsaw puzzle.

Prior to my most recent visit in 2010, the puzzle had been assembled, albeit with quite a bit of new materials, and with modern infrastructure. The exterior is nearly identical to the church as it was before the bombing; the sanctuary, as well as other parts of the interior, are faithful to the original. The famous dome again graces Dresden’s skyline, now with a new cross. The original cross, still bent and blackened, is displayed in the sanctuary, as a reminder, perhaps.

There has been some discussion about the Frauenkirche’s restoration. Artistic purists do not like restorations, I know. They would rather have an original work in damaged conditions, than one maintained and restored to its original beauty – not sure why. There are also those who believe the restoration of the Frauenkirche, as well as other war damaged buildings and cities, is akin to trying to forget the war ever happened. In England, the ruins of the Coventry Cathedral, mostly destroyed by bombs in 1940, have been preserved in their damaged state next to a new church adjacent to it. Berlin’s Gedächtniskirche (Memorial Church) was rebuilt much like Coventry Cathedral, an ultra-modern sanctuary and bell tower around the damaged spire of the old building. Dresden, and other cities, notably Nuremberg, have opted for restoration of structures mostly as they were.

One writer has complained that the Dresden restoration demonstrates the city’s refusal to confront its past (see George Packer’s essay, “Embers” <http://archives.newyorker.com/?i=2010-02-01# ). This is collectivist nonsense. What that author’s beef is that citizens of Dresden, like so many other German citizens, were enthusiastic supports of National Socialism, and their children, grandchildren, and perhaps progeny to the end of time must say mea culpas for the Nazi aberration, in which they had no part. It is more fitting that they rebuild a beautiful and architecturally significant accomplishment of a long past century that would have been lost to future generations had it not been restored to what it was.  Those re-builders have rejected the wallowing in guilt that was not theirs.  They created instead a triumph of spirit.  Witness!

Frauenkirche 2010

For more see this link

Permit me to say a few words about our national birthday and the document it celebrates.

Bard College professor and The American Interest editor and contributor Walter Russell Mead is fast becoming one of my favorite commentators. He has a lot of common sense, real world observations. One of his latest is on the subject of immigration. He writes: “No country on earth is in the same league as the US when it comes to the quantity of immigrants who have come here in the quality of their contributions. But lately, and are generally sour mood, Americans have been questioning the benefits of immigration. Many worry that today’s immigrants differ from those of the past: less ambitious, less skilled, less willing and able to assimilate.” Not to worry, at least for one group: those from South and East Asia. See  America’s New Tiger Immigrants.

Immigration has been at the forefront of American concern for a long time. I mean a very long time. According to archaeologists and geneticists, as well those in other scientific disciplines, the first human being first emerged (you can believe that God created him/her directly, through the process of evolution, or it just happened; it matters not) in or near the Great Rift Valley in eastern Africa, and the species migrated to the rest of the globe from there. I suppose that makes all of us, including those whose biological ancestors were here pre-Colombian, African-Americans, even if in an extremely attenuated sense. Those who were native here before and during European colonization and settlement doubtless were anxious – with good reason as it turned out – about the arrival of the colonists, but most of the anxiety about immigration in the now United States occurred after independence from Britain.

Immigration populated the United States and the other American countries. The Western Hemisphere was sparsely populated before the arrival of Christopher Columbus and those who followed him. The microbes that the Europeans unsuspectingly brought with them wiped out most of the then indigenous population, and those remaining were subjugated (in Latin America), or dispersed and marginalized (in North America).

The main characteristics of immigrants –whether from Europe or the other eastern hemisphere continents – was, and is, their boldness, courage, and adventurousness. They were not “huddled masses” described in that obnoxious poem that some fool believed was appropriate for the Statue of Liberty. (See below) Many have suggested that immigrants who left their homeland migrated because they were not doing well where they were. That is probably true in most cases, but the tone of that suggestion often is that they are and were what some might call “ne’er-do-wells.” That notion is misplaced. The ne’er-do-wells usually stay put and eke out enough to get by, and no more. Those who have gumption and vision, but are repressed by a hidebound society and culture, or a pathological political system, are the people who emigrate. Two such new Americans were featured sometime back by an article in The Economist. One is the perhaps rather well known Ayaan Hirsi Ali, who suffered persecution in her native Somalia, and later in the Netherlands where the pusillanimous Dutch failed to protect her from the barbaric Muslims they have allowed to run amok in their country. The other is the more or less (until now) obscure Joshua Lee, born in Korea, but who prefers the more relaxed social atmosphere in America and did not come here to escape violent persecution. Like these examples, most immigrants to America have done pretty well, and their descendants have done better. I here include the current Mexican and other Latin American immigrants, legal and illegal. They come here to work, not to collect welfare. And they work hard. As The Economist article points out, it is difficult for an able bodied male to do anything but barely subsist on welfare in America, as they can in Europe. To the extent that illegal immigrants are able to sponge off the taxpayers for medical care and other services, that is the fault of our government at all levels. Not being stupid, the immigrants accept the largesse offered to them.

The late Samuel Huntington, the Harvard political scientist, wrote two influential works before his death two years ago. The Clash of Civilizations theorized that world conflicts are the result of civilizations of disparate values coming into contact and competing to establish their hegemony and value-system. The most widely disparate are the Western and the Islamic civilizations, and that violence between the two is inevitable. Writing in 1994, he sure got that right. It is almost if he had a crystal ball. In a later work, Who Are We?, alluded to in The Economist article, Huntington questions whether the numerous Latin American immigrants will change the United States into “two peoples, two cultures, and two languages” and eschew “the Anglo-Protestant values that built the American dream.” It is probably too early to tell if Huntington’s fears have merit – similar fears were expressed about Italian, Polish, and other immigrants 100 years ago, not to mention the Germans in the mid-18th Century – by Benjamin Franklin, no less. (Many, possibly including Franklin, were highly offended that the Pennsylvania legislature required the draft of the proposed Constitution to be printed in German for publication. (But no one had to “press 2 for Deutsch” – they didn’t know what they were missing.)  See also Peter Feinman’s “Who is an American?” in The American Interest.

In his Clash of Civilizations, he observed that the two aspects of culture that kept people cohesive were religion and language. I have not studied the extent to which it is happening, but have noticed that there are quite a few Protestant churches catering to Mexicans and Mexican-Americans in my city and its environs, and I hardly ever have any contact with anyone who cannot speak English. I know of a number of self-employed entrepreneurs whose first language is Spanish, and their main problem, like many of their indigenous competitors, is collecting debts for goods and services provided.

I am not pessimistic about our current immigrants, whether from Asia, Africa, or our Western Hemisphere neighbors. What really worries me is the sixth plus generation descendants of Mayflower immigrants who are guilt-ridden about their inherited means and believe that everyone’s wealth is unearned like theirs. Those are the leftists, the real racists who believe that today’s immigrants from Asia, Africa, and Latin America are incapable of fending for themselves as individuals and must be coddled by a nanny state.

I have heard some radio and television polemicists complain that during the last Presidential campaign, the present First Lady opined that America is a downright mean country. I have never heard or read a direct quote to that effect by Mrs. Obama but if she so opined, she is correct in many respects. Americans are generous to a fault, and our government has spent much of the blood and treasure of its people trying in vain to export our Republican Democracy. Nevertheless, America does not welcome and cannot use ne’er-do-wells or huddled masses. Not to worry, because, as related earlier, most of those stay put. America needs and welcomes individuals with vision, gumption, and fortitude, not the greedy, lazy, and scared people that historian Ian Morris opines direct societies. The sports adage displayed in numerous locker rooms that when the going gets tough the tough get going is never truer than in this country. The United States won World War II with the help of immigrants, many of whom came, or whose ancestors came, from the enemy countries. The immigrants to this country have provided individuals like that; from John Smith to General John Shalikashvili; from Ann Hutchinson to Ayann Hirsi Ali, and countless others. There will doubtless be many more.

Postscript

A while back, I thought I would try to improve on Emma Lazarus’ “The New Colossus” verse on the Statue of Liberty, and invited my brother Steve to give it a shot. I invite others to do so.

Lazarus version:

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

My version:

“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “I welcome your stalwart, intrepid,
Tired of being poor and yearning to breathe free,
Scorned by kings for wanting more.
Send these, the ill-used and fed-up home to me,
I lift my lamp beside the golden door!”

Steve’s version:

Sentiment, the sweetly stuff of saps,
Requires that tears be shed for victim’d good
Yet nursing those whose souls have given up
Renders Liberty’s message misconstrued.
Charity is not the strength we claim in patrimony.
A torch, a book: no open purse.
Opportunity, no promise of success:

Give me your tired – who rested will bring forth
Energy to light my beacon torch.
Give me your poor – who they themselves will make
Rich through enterprise, recorded in my book
Agreed among us all to common good.
Ye huddling masses, give each other strength!
The air is fresh and clear: breathe it for yourself!
Wretched refuse? Prove you are not.
Homeless, build a home
Here, keep what is yours:
Nothing is Caesar’s, Nothing is God’s.
Helpless, stay away.

Well, I have to admit, I watched the first three episodes of the reincarnated Dallas series. The first incarnation lasted from 1978 to around 1990. I don’t remember the exact year it discontinued mainly because I never became an avid fan. Watched when just curious enough or happened to be around others who were watching at the time. I do recall seeing an language-dubbed episode at a hotel in Vienna – J.R. speaking in German sounded rather intimidating. The new version is really just a continuation of the old: double and triple crossing, back-stabbing, and other over-the-top antics, and by some of the same characters, no less. May watch a few more airings; may not. I already missed the fourth.

One of my favorite television serial features was the 33 episode Inspector Morse series. I have most of the DVDs, and have watched some several times. When John Thaw, the actor who played the main character, died it was almost the end of an era.

In 2006, the series Lewis was spun off with Kevin Whatley who played Morse’s sidekick in the title role. So far it has been of similar quality, except for the enigmatic character Thaw was able to make Morse.

Now, the creators have brought back a younger version of the protagonist Morse in a new series named Endeavour, set in the 1960s. Only the pilot has aired so far, but it is promising. Anyone who watched any of the Morse episodes know that the detective was an opera fan. In one story, Morse mentioned without explanation that he didn’t care much for Puccini’s Madama Butterfly. The pilot of Endeavour sort of explains why.

“What’s that smell in this room? Didn’t you notice it, Brick? Didn’t you notice a powerful and obnoxious odor of mendacity in this room?… There ain’t nothin’ more powerful than the odor of mendacity… You can smell it. It smells like death.”

Anyone who plays chess know that a gambit is the giving up a piece to get a superior board position and thereby an future advantage. It has its counterpart in baseball with the sacrifice fly or bunt. Occasionally, similar ploys are used in deciding hard cases.

The Election of 1800 was a revolution in American politics. The incumbent President John Adams and his party had been defeated by the Jeffersonians who captured two of the three branches of the federal government. Adams’s Federalists, however, managed to hold on to the judiciary, and even strengthened that hold by the Judiciary Act of 1801, which created many new courts for the outgoing President to appoint like minded judges to lifetime positions. Because Adams reportedly signed some commissions late in the evening of his last day in office, these were called the “midnight judges.” One was William Marbury.

When Thomas Jefferson took office shortly thereafter, Marbury’s commission had not been delivered to him, a pre-requisite for his exercise of judicial powers. The new President instructed his Secretary of State James Madison, not to deliver the commissions to any of the late Adams appointees, though the Secretary probably had a ministerial duty to do so. Marbury sued in the Supreme Court for a order to Madison to deliver the commission.

One of Adams’ appointees, who early on had been delivered his commission was Chief Justice of the Supreme Court John Marshall. At the time, the Court had so little prestige that Marshall was the fourth Chief Justice since the Court was established a mere dozen years prior, his three predecessors having gone on to bigger and better things. Marshall, however, was to serve for thirty-five years – the longest tenure of any Chief to date – and during that time he made the Court truly powerful and prestigious. The first, and probably the most significant of Marshall’s opinion for the Court was Marbury vs. Madison.

At the time, it was problematic whether Jefferson would have obeyed a Court order to deliver Marbury his commission. An argument could have been made that the separation of powers provided for in the Constitution precluded a Court ordering a President to perform a duty, or at least from enforcing such an order. Marshall was faced with either making an order that might be disregarded with impunity, or letting the executive get away with flouting what appeared to be a clear duty. Either way, the court’s future prestige was at stake.

Marbury sued Madison in the Supreme Court rather than a lower court because the Judiciary Act of 1789 gave the court jurisdiction to issue an order – called a mandamus – to a public official to perform a ministerial duty. Article III of the Constitution, however, enumerated the type of cases in which the Supreme Court had original, rather than only appellate, jurisdiction. Marbury’s suit was not among those cases. Marshall took the opportunity to write an opinion that explained in considerable detail why the Supreme Court could review a law passed by Congress and signed by the President, and rule that it was unconstitutional and thus could not be enforced. In doing so, the Chief Justice concluded by declaring the jurisdictional grant to the Supreme Court for this kind of suit was contrary to the Constitution and must be dismissed. Having achieved the result he wanted, President Jefferson was hardly in a position to disagree with Marshall’s judgment. The Court, by ruling as it did, and stating that it is” emphatically the province of the judicial department to say what the law is” with Presidential approbation, no less established the principle of judicial review for the (so far) entire future of the nation.

Fast forward to June 28, 2012. Chief Justice Roberts authored a 5-4 opinion which sided with the President in upholding the controversial Obamacare law, the Constitutionality of which was seriously questioned. Roberts spent nearly as much page time explaining why the law could not be upheld on the ground that it was a necessary and proper use of Congressional Power under the Commerce clause, which was the stated Constitutional basis. But the Chief Justice upheld the law on the ground that it was a Constitutional tax, something its proponents, including President Obama, had taken great pains to deny from the beginning. Nevertheless, having the administration’s position upheld, albeit at the price of the first judicially articulated limit on Congressional power under the Commerce Clause, Obama, like Jefferson, can hardly criticize the Court. This lends a considerable amount of prestige to the Court, and to Roberts, because he used some of the most time honored judicial principles, to decide a case on narrow grounds, and to read a statute in a manner that would uphold its Constitutionality if at all possible.

Now, technically speaking, Marbury’s explication of the principle of judicial review and NFIB v. Sebelius’s commerce clause analysis were not necessary to the outcomes of either case. They were what lawyers term obiter dicta, and not necessarily binding precedent. (Probably the most noted exercise in dicta was Dred Scott’s statement that Congress could not prohibit slavery in the territories.) Nevertheless, a Texas Supreme Court justice is reported to have opined that “there’s dicta, there’s strong dicta, and there’s damn strong dicta.” Dicta coming from the highest Court in the land, clearly qualifies as the latter.

As for the actual holding of the case, Roberts applied the “duck analysis” (if it looks, walks, quacks) to decide that the so-called individual mandate is actually a tax. Perhaps that is what former Speaker Pelosi meant when she said Congress had to pass it so we could find out what was in it. Surprise! A brand new tax, and one that falls mainly on those making less than $250K a year. The proponents sold the bill as not a tax increase; when interviewed on cable and broadcast news shows, the laws defenders insisted that the mandate was not a tax, and President Obama vowed not to increase taxes on middle income Americans. The odor we smelled over and over again during the Congressional battle over Obamacare was that of mendacity. Fraud, actually.

The downstream effects of this newest judicial finesse depend primarily upon what cases and controversies come before the Court.  We now have an articulated limitation on the scope of the Commerce Clasue. Maybe that will put a brake on some of the more ambitious left-wing fantasies.  It is much harder to sell a tax increase.  The ultimate fate of Obamacare, however, lies in the hands of the next Congress and President, the hands of the electorate this November, and, ultimately, in the invisible hand of Adam Smith.

Also see http://blogs.the-american-interest.com/wrm/2012/06/28/biggest-winner-in-healthcare-decision-the-founders/
and
http://www.realclearpolitics.com/printpage/?url=http://www.realclearpolitics.com/articles/2012/06/28/the_chief_justices_gambit_114646-full.html

There are doubtless many dissimilarities between the Sanford, Florida confrontation where George Zimmerman may or may not have been justified in killing Travon Martin, and the one near Shiner, Texas where an unnamed father killed a man who he claims was sexually assaulting his six year old daughter. The most important one is the manner in which it was handled by the authorities post.

In Florida, the police and state prosecutors – initially decided not to charge Zimmerman without reference to a grand jury. Later, after some questionable aspects of the confrontation were aired in the media and Florida politicians were beginning to feel heat, a special prosecutor was appointed and unilaterally charged Zimmerman with the most serious offense possible – again without a grand jury. (See my previous posts in this regard here..)

In Texas, the prosecuting authority immediately referred the case to a grand jury that promptly heard the case and declined to indict the man – apparently finding that the homicide was justified. Because twelve citizens, who have no stake in the outcome, have looked at the evidence and found there was justification, it is unlikely this case will cause anywhere near the furor the Zimmerman-Martin case has, even if it has a racial/ethnic component (which is unknown because the father and child remain unnamed publicly).

The U.S. Constitution provides that no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury. This is one provision of the Bill of Rights that is not applicable to the states, for reasons which are too arcane to go into here. Nevertheless, many states have the same requirement in their constitutions. Texas does, and I believe every state should, as it is good public policy. They haven’t asked me yet, though, and can make their own call.

Grand juries have been called both a shield and a sword. This is because, as an arm of the court, they have subpoena and broad investigatory powers. As a practical matter, they have to rely on the police and prosecutors to bring evidence before them, and that evidence can be quite selective. Federal prosecutors in particular have been accused with abuse, and one wag opined that prosecutor can get a grand jury to indict a ham sandwich if they want to. I once was told by an Assistant U.S. Attorney my client better think about pleading guilty because she didn’t indict folks she couldn’t convict. (After a pre-trial hearing, the judge threw that one out of court. Hey, it ain’t bragging if you can do it.)

Nevertheless, the members of the grand jury cannot be forced to indict or not indict an accused person. And, if they decline to indict – termed a “no bill” – the case can be revisited. Jeopardy does not attach in a grand jury proceeding. Most importantly, it is the judgment of members of a community – in Texas it takes nine out of twelve member to indict – that there is or is not sufficient evidence to have a trial. Being brought to trial itself can be punishment enough in some instances for the stress or uncertainty it brings on.

Anyway, we do know that here in Texas, one is justified in using deadly force to protect his child against a rapist. Citizens have said that is what happened.

The AP story as reported by the New York Times can be linked to here..

It seems that numbers rule our lives. Time, distance, money, and all sorts of things in our experience are quantified in numbers. Existence itself can be described in terms of mathematical functions, which are systems of numbers and their relationship.

There are many numbering systems used for different purposes. Time, for example, is measured in seconds, of which there are sixty to a minute, of which there are sixty to an hour, of which there are twenty-four to a day. After that, it gets a little complicated in that there are seven days to a week, 52.14285 weeks to a year (52.28571 to a leap year), and months which vary in the number of days. In Britain prior to February 15, 1971 (“Decimal Day”) the currency was measured by the pound, consisting of 20 shillings of 12 pence each, or 240 pence. I made it to England once before the switch where the taxman’s take was “one for you, nineteen for me” – shillings, that is.

The number system we use for common applications is, of course, the base-10, or decimal, system. Various explanations of how this came to be include the existence of ten fingers and toes to count with. Whatever its origin, it is ubiquitous; the ten arabic numerals are familiar everywhere. The use of 10 as a base, however, does not have to be. Other systems include the binary system where only 0 and 1 are used (decimal 8 is binary 1000). This system is convenient for digital (whence the name) electronic systems as the state of on-off, positive-negative, north-south polarity, can be easily represented mathematically. Other computer oriented number systems include the octal, which has 8 numerals, and the hexadecimal, which has sixteen, the letters A–F used to represent the six extra numerals. Don’t ask me why these systems work better in those applications. I’m sure some who read this can explain.

The duodecimal system – base 12 – seems like it would be the second most intuitive system. The number twelve keeps popping up inexplicitly in various places throughout history. The ancient Hebrews had twelve tribes; Jesus had twelve apostles. Juries have twelve members. A dozen was and is a common quantity of goods. The time measurements are divisible by twelve. This would include the year, but for those pesky extra five or six days. We normally count the these multiples of twelve with our decimal system, but we could use the duodecimal system, which would add two additional numeral, say “A” for the decimal 10 and “B” for the decimal 11; 10 would come to represent decimal 12. In duodecimal, decimal 22 would be 1A.

Walter Russell Mead, the Bard College professor and editor-at-large of The American Interest, suggests that we begin to use the duodecimal system to express human age. Mead takes the now oft heard assertion that “60 is the new 50”, and so forth, to another level. The decimal 60, really is 50 in duodecimal notation. Mead’s point is that we humans, especially in developed nations such as the U.S., are now living longer, healthier, and more productive lives. “[B] barring accidents or unusual events, people at 60 (old style) can reasonably expect another fifteen years of active life, and quite possibly more. In thinking about where one stands in the arc of life, base twelve actually provides a more accurate measure.” Mead says.

“As people get used to these longer life expectancies and longer periods of preparation at the start of life, we will adjust, but right now our arithmetic is out of touch with our life experience. I notice this as much among college students and people in their twenties and thirties as among aspiring geezers like myself. Lots of young people go through all kinds of angst as their thirtieth birthday approaches because culturally they are conditioned to associate the age of ’30′ with a certain stage of life; by then your career ‘should’ be well launched.

“But in a world in which many people are in college until 22 or 23, then take two to five years to figure out what to do next, and then start professional school (a perfectly sensible and appropriate way for somebody to make life choices in our world today) that milestone birthday of ‘30′ approaches and there isn’t much to show for it.”

Mead wonders if this thinking in duodecimal is a form of denial of reality, and then concludes that it doesn’t have to be. He’s right. In my experience, age and treachery will always overcome youth and enthusiasm.

By the way, the new Dallas is now in its second week. Wanna bet on whether the aged J.R., or the whippersnapper John Ross wins out?

See Mead’s essay here:  On Turning Fifty

As stated in my previous post, as well as in conversations over the past year and a half with whoever would listen, Aetna CEO Ron Williams has been my synecdoche and perhaps whipping boy for the medical insurance industry. Prior to the PPACA’s (aka “Obamacare”) passing, he was a staunch advocate for the “insure everybody” mandate for insurers, a well as the individual mandate for health insurance coverage, from which his company was sure to reap a whole slew of low-risk policyholders. Now, he has changed his mind about the individual mandate. Perhaps, like Mahatma Gandhi, he has learned something in the interim. Maybe he knows what’s coming. In and op ed piece in Monday’s Wall Street Journal, Williams writes an essay telling us why he was wrong:

“I don’t say this lightly, as I have long been a vocal advocate of getting and keeping every American covered. As a society, we have a moral obligation to ensure everyone has access to affordable health care. We must find a way to cover those who are no longer healthy but need care.”

Here, he appears to be covering his tracks. This “morality” argument was, and is, one of the main selling points of PPACA. We were constantly harangued by being told that we were shirking our moral duty by “allowing” so many Americans to be uninsured. That made us evil, and who wants to be evil. Effective rhetoric, it was.

But society, or government” has no moral obligations. You cannot reward a society for being good, or punish society for doing evil. Only individuals can be moral or immoral.

In his essay Common Sense, the American revolutionary Thomas Paine observed a distinction between society and government. The former was “in every state a blessing.” The latter was, at best, a necessary evil, and, at worst, an intolerable one. Both societies – which are often called civilizations – and governments have their functions. The government’s primary purposes are to protect its citizens from those who would initiate the use of force against them, and to settle disputes among them. For this protection, individual citizens surrender some of their property into to have an authority to protect the rest. Governments can also appropriately act to provide facilities and services that cut across various spheres of interests. The Federal Aviation Administration’s traffic cop of the air is one example. The limits of various constitutional powers delegated to government are seldom clear. That is why we have courts.

Williams continues: “My early support for an individual mandate had always been grounded in this companion solution, supported by broadly funded subsidies for lower-income Americans.

Yet, as I studied the arguments for and against the individual mandate, it became clear to me that the legislation raises serious constitutional concerns.

“For starters, the legislative process that produced the Act was driven by partisan politics, and traditional oversight mechanisms that would have facilitated bipartisan and reasoned policy development were discarded in favor of rapid enactment.”

He has that right. A single statute that has 2000+ pages is ipso facto an abomination. One would hope that our lawmakers would at least be aware of what they are voting for. No Representative or Senator could possibly have read and digested a bill that size. Yes, they all have staffs that can do a lot of the work and prepare executive summaries, but no one can read and understand the ramifications of a document that is two and one-half times the length of War and Peace in the short time after the bill had been put together. I do not doubt, however, that each lawmaker who voted for it made sure their pet constituents were taken care of within the tome, or at least appeared to be. No law can possibly have that many provisions without producing tensions and contradictions. Furthermore, the manner in which back door deals and parliamentary chicanery was used to ram the bill through at the end was offensive. A law designed to fundamentally change the way that on-sixth of the economy works must beenacted in the most careful and deliberate manner possible. The manner of its genesis should be above reproach. It obviously was not.

Williams really gets to the main point when he observes: “Most seriously, Congress insisted on describing personal inactivity—in this case, the failure to purchase insurance—as interstate commerce within its regulatory reach. Americans were alarmed, rightly, that this could empower future legislatures to mandate that citizens engage in activities none of us would think reasonable today.”

Many have scoffed at the suggestion that upholding the law would authorize Congress to enact a mandate to buy broccoli as being absurd and extreme and never could happen. Even so, our system is designed to prevent that, and enlightened legislators would never do that. I agree, that is what the check and balances and division of the legislature into two houses of Congress was designed to do. When it fails to observe Constitutional limits, that is what the Supreme Court is for. History is replete with things that “could never happen.” The Nuremberg Law is a prime example.

As stated before, there is little doubt that the battle will end with the Supreme Court’s decision, whichever way it goes. It does appear that if it is overturned, Ron Williams and Aetna, at least, have given some thought as to how to put their industry’s house in order.

For Williams’ full essay, please see this link.

Trying to predict what an appellate court is going do to when the issue boils down to a matter of public policy, even when the Constitution or applicable law seems to provide a clear answer, is a fool’s errand. Thus, I cannot and will not opine how the Supreme Court will rule on the Obamacare law. One thing that is certain is that it will not be the end of the controversy.

Another certainty. If the law is upheld, it will be a win for the health insurance industry, and a loss for consumers. During the legislative fight member of Congress and the President railed against the ‘greedy” insurance companies, all the while making back door deals (when I was typing this I left to “r” off of “door” – an appropriate Freudian slip, perhaps). I’ll never forget listening to an interview with Aetna’s CEO on NPR about how his company was anticipating the prospect of millions more customers. The man was palpably giddy.

The following excerpts from Ann Coulter’s recent column explain why a one-sentence statute could replace the 2000+ page Obamacare law. I acknowledge that Ann is a bomb-thrower at times, but I don’t let ad hominem criticisms obscure the validity of ideas. See more here./

“In most states, you can’t choose a health insurance plan that doesn’t cover gambling and sex addictions, psychological counseling, speech therapy and prenatal care — even if you plan on never having children.

“Health insurance companies don’t need to compete for your business — they’re all offering the same product, anyway. Moreover, because of government regulation concerning how health insurance is taxed, most people aren’t choosing their insurers. Their employers are.

“As a result, insurance companies have become outrageously unresponsive to both patients and doctors. Insurance companies need only concern themselves with satisfying government regulators and corporate purchasers. Meanwhile, doctors have to please only the insurance companies, which don’t particularly care how patients are treated, as long as it’s cheap.

“This is a third-party-payer problem, or as the proverb goes, “He who pays the piper calls the tune.” All third-party-payer systems are disasters. The customer is trapped, forced to pay for something he doesn’t want, with no one to complain to and no possibility of taking his business elsewhere.”

*****

“We need a free market in health insurance, which Congress could accomplish with a one-page bill stating, ‘There shall be interstate commerce in health insurance.’ Once we were allowed to purchase health insurance across states lines – prohibited by law today – everyone would be buying insurance from companies based in states such as Utah, which have the fewest mandates about what health insurers must cover.

“Insurance companies would be responsive to us, the people buying their services, and not the government or corporations. Most people would choose to buy insurance only for what insurance is intended for — catastrophes — while paying for regular checkups themselves, the same way we pay for our own cell phones, computers, baby sitters, manicures and everything else that’s been getting better and cheaper, unlike all government-regulated services.”

Enough said.