Saturday, March 07, 2009

Points to Ponder:

If prisons, freight trains, swamps and gators don't get ya to write songs, man, y'ain't got no business writin' songs. [Ronnie Van Zant]


Clarification of a Previous Posting In Lieu of a Recent Posting:

Though I posted a finalized version of a long talked about posting recently{1}, a previous posting which was written around when the former was being sufficiently completed for posting{2} served as an "appetizer" of sorts and dealt specifically with the constitutional question pertaining to declaring war.{3} And of course many who have claimed that the Iraq was illegal on constitutional grounds have asserted that it was required for Congress to actually declare war to enable President George W. Bush to actually go to war. I dealt with that constitutional misunderstanding{4} in a preceding post to avoid making the post in footnote one any longer than it already was. But since that time, I have been made privy to some information from Findlaw on this matter of which I was not completely aware. So without further ado...

An early controversy revolved about the issue of the President's powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war. Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed.Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli "and also to cause to be done all such other acts of precaution or hostility as the state of war will justify . . ." But no formal declaration of war was passed, Congress apparently accepting Hamilton's view. [LINK]

Let this additional evidence suffice to illustrate further the absurdity of those who would claim that the constitutionality of the war in Iraq required a formal declaration of war as some well meaning but unfortunately unrealistic individuals have claimed. And furthermore, let this posting be considered an amendment in perpetuity to the posting from December 26, 2007 on the constitutionality of wars fought without a formal declaration.

All things to the contrary notwithstanding.


{1} Between Unconstitutional and Unworkable (circa February 6, 2009)

{2} As for the posting in footnote one, that post had been "in the can" for more than a year with only a few adjustments made (mostly of a minor nature) to the form that was finally blogged on February 6, 2009.

{3} On the Constitutional Standing of Wars Undertaken Without a Formal "Declaration of War" (circa December 26, 2007)

{4} See footnote one.

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Friday, March 06, 2009

Another Idea For Federal (or State) Legislative Reform:
(Musings of your humble servant at Rerum Novarum)

At sundry times and in divers manner your host has written on the issue of legislative reform in the context of major movements underlying the foundational presuppositions of this endeavour. My approach though differs from many in that it encapsulates a process which intends to be diametrically opposed to the ordinary way these matters are addressed. The reason is that I view there to be far too much focus on one or another particular program or one amount of money or another "wasted", etc. I am not one to advocate approaches that deal superficially or insubstantially with these matters because treating symptoms while leaving the basis from which any infection can perpetuate is ultimately not going to work. Furthermore, the federal leviathan is in not a few ways akin to the hydra monster of Greek mythology and its perpetuation is based on some problematical presuppositions which (taken together) complicates matters further. I will have to briefly explain the hydra analogy so that I do not lose any readers in making that analogy -for those who already know this can serve as a refresher of sorts.

For those unfamiliar with the mythical hydra, it had many heads and every time one was cut off, two or three would grow back in its place. This is why any attempt to kill the monster could not be by lopping heads off but instead you had to aim at the heart of the beast to kill it. How this relates to the federal leviathan is that cutting one small program here and there or a stray billion or tens of billions in three plus trillion dollar budgets is like cutting off a "head" and you know darn well that others will grow back in its place -usually through that nasty rider approach which I have proposed a solution to before.{1} But that solution has one element that needs to be tended to at the federal level first and at the state level at least in Washington State I was advised that my solution for the most part is already in place.{2} And however laudable that idea is, we are past the point where the time to implement a policy like that can be casually entertained. For as is evident to anyone not hiding under a rock, we have a reckless fiscally irresponsible congress paired with a reckless fiscally irresponsible president.{3}

In dealing with the debt issue, I have an idea for not only balancing the budget but also to pay down the debt over a ten year period.{4} However, now is not the time to go over that proposal -I mention it here only in passing. For as offense wins games, it is defense that wins championships as the sports dictum goes. So before we get to a proactive approach to paying off the debt we have to get the issue of balancing the budget under control. And one way we can obviously not do this is with hoping to elect leaders who will be responsible in this area.

I have long been critical of the fact that the Republicans not only in their leadership have made a mockery of the notion of limited government.{5} However, it goes beyond that and even gets to the point that the seeming "nostalgia" many have for the Gingrich led Congresses also does not deal with the problem we are facing really is. Instead, the Gingrich congresses at best dealt with symptoms instead of causes. But I am about to go over a proposal to deal with causes. There are three things we need to do on this matter and two of them would not be difficult at all. The third is the hard one and that is going to take the greatest courage. But lest I get ahead of myself here, let us touch on the first two briefly before getting to the purpose of this posting.

To start with, the first of the aforementioned proposals is the reinstatement by the congress of presidential impoundment authority: something which no president since Nixon has been able to do.{6} The second of the proposals would be abolishing the notion of what is called "base line budgeting" a subject I do not have time to go over now but one which starts with the presumption that there will be budgetary increases.{7} Readers are aware that I have noted over the years{8} that to control the terms is to control the debate and the moment we let the debate be based on how much or how little a program or the budget is increased is the moment that we have surrendered the principle we are trying to espouse whether we realize this or not. And that brings us to the third proposal; namely the idea I want to set forth in this posting however incompletely: the idea of indefinite budgetary items.

This is an area which I believe the Republicans now that they appear to have found their spine again can make as a point of emphasis. For besides pushing for executive authority to impound funds{9} and going after the notion of "based line budgeting", it is important to deal efficaciously with the noxious idea that federal programs once they are formed are immortal. And the latter is this third area I want to go over in the material before you -a proposal to get at the root and matrix of the federal leviathan program.

I am not sure how exactly it would be implemented for best possible effect mind you but I first mentioned the idea around the same time as my rider reform initiative for the federal government{10} though it first came to my mind even prior to that point. Its origin was in the debates early in President George W. Bush's first term. I remember hearing all this talk about the tax cuts he and the congress implemented not being "permanent" and the legislation called "the Patriot Act"{11} having to be "renewed" before it "sunsetted." When pondering that and also recalling President Ronald Reagan's comment about eternity on earth is most closely realized in a federal program,{12} I found myself thinking "why can we not have sunset provisions in every piece of legislation"??? And why can this principle not be applies to every piece of legislation not only future and present but also from the past??? And that is the idea basically. How it would be implemented is another matter altogether but this would effectively put the entire federal leviathan on watch program by program and make it a requirement for periodical voting by the legislative bodies to retain certain programs or they automatically expire within say ninety days of a failure to extend them.

In such a proposition the bill extension periods could vary but basically something significant needs to be on the docket for potential expiration in every election cycle and if many of the more important programs were due to expire in off term election years this alone would make midterm elections more interesting as a rule. And it would put a stop to the "inevitability" of the federal leviathan growing larger but indeed would put it constantly in a state of potentially getting smaller and it would take the proactive aspect of cutting the size of government out of the equation to a good degree.{13}

Anyway, that is what I am looking at idea-wise though I do not have an idea as to how it would be fashioned in terms of precise legislation but I suppose if I put the idea out there in some form or another that others can propose a variety of ways of going about this. Furthermore, the terms of the debate or "language control" if you will{14} can be re framed in the context of genuine budgetary reductions and not the political shell game we have seen both parties play for far too long now which coupled with a functional template for constitutional interpretation{15} might see us actually make some real progress in arresting this government behemoth which up to now we have not succeeded in doing for want of a proper strategery of doing do in my mind. Once that is tended to, then we can go on offense and talk about paying down the debt but defense first, offense second. The question is, can we find any representatives or senators who would take this as their rallying cry or not??? Inquiring minds wanna know and perhaps we can if they will not put an amendment into the Constitution to do this.


{1} The original idea was first set out in some detail in a posting of January 20, 2004 not long after listening to President Bush's State of the Union that year. I then subsequently went about reiterating on more than a few times in subsequent years some of which are linked to this sentence and the most recent of which can be viewed here:

"Rider Reform Revisited" Dept. (circa December 16, 2008)

{2} The original idea was in a federal context but then I remembered we do not have a line item veto for the executive which the absence of that would basically make the idea inoperative. So before that can be approached, a constitutional amendment or some legislative provision to pass Supreme Court muster granting that power would be required. I then turned to the state level knowing that Washington State is one of over 40 states that have the line item veto for their governors. But Bob Williams (one time gubernatorial candidate for Washington State and head of the Evergreen Freedom Foundation) informed me that most of my ideas in that note were already part of Washington state law.

{3} And this was not exactly a problem we were without during the presidency of George W. Bush either of course.

{4} I have gone over it before but do not want to get sidetracked here by reiterating it anew.

{5} [P]erhaps the best way to understand why modern Republicans are not Republicans in the true sense of that term -and further, why I am not and for some time have not been a supporter of the Republican Party in any capacity- is to consider how their leaders view their own party today.

The following discussion between Rush Limbaugh and Ed Gillespie is instructive for one key reason: the Chairman of the Republican National Committee is absolutely clueless about the principles of limited government!!! Limbaugh granted could be more consistent on this subject than he is, but when the head of the RNC quite clearly has no idea what "limited government" is, that is not a minor bagatelle folks. Let me clarify if for you.

Limited government is not [reducing] the size of the increase, as Gillespie claims. How can one claim to be for "limited government" by arguing that [w]hen Bill Clinton left office, he proposed his last budget was an increase of 15% in non-defense discretionary spending. President Bush came in, he brought it down to 6% in his first budget, down to 5% in his second. It is at 2% today, non-defense discretionary spending??? This is a mockery of the entire notion of limited government.

First of all, who cares what the President proposes. The role of setting a budget is that of the Congress. The problem is that the role of impounding funds -shared by every president from Nixon back to Washington- was abolished by President Nixon when he signed the Congressional Budget and Impoundment Control Act of 1974. Since then, deficits have skyrocketed and an important check on Congressional excesses was cast aside.

This Act needs to be rescinded. The following article covers the subject in some detail -certainly better than the laughable Congressional article which tried to make the impounding sound like a novel notion of Nixon's...But it was not. And while there were still deficits prior to 1974, the national deficits starting in 1975 increased at an exponential rate...[Excerpt from Rerum Novarum circa October 31, 2003]

{6} I do not make distinctions between one part of Reagan's philosophy and another XXXXXXX. Instead, I take into account the entire picture and just as the Democratic Party left Reagan in the 1950's and early 1960's, the Republican Party has left behind the principles of Ronald Reagan the man and the president since 1988. The so-called 1994 revolution was a joke because they did almost nothing they promised to do: unlike Reagan who kept most of his promises.

They could not even close down a single federal department!!! That is ridiculous since so much of the federal leviathan as Reagan recognized was patently unconstitutional. They had the control of the congress and thus the legislative ability to make changes including (if necessary) changing the rules of procedure to make it harder for the Democrats to resist. But they did not. Care to go over the "Contract With America" with me point by point and see how much they actually enacted??? That alone makes my case since if anything the contract was a drop in the bucket of what needed (and needs) to be done to combat the unconstitutional federal behemoth. [Excerpt from Rerum Novarum circa November 11, 2004]

{7} I do not have time to go over this right now but Citizens Against Government Waste has a really good explanation which I refer the reader to at this time.

{8} Most recently in this posting:

Revisiting the Subject of the Underlying Weltanschauung of "Language Control" (circa November 25, 2008)

{9} If anything this proposal with a Democrat in the White House as we have now might have a better chance of being advanced by the Republicans because the potential of it being chalked up to "self-interest" is refuted by the circumstances of a Democrat being in the White House.

{10} Namely in this part:

Enact a law that inserts into every budget proposal and program a sunset provision. The points of sunset can be staggered to some extent so the entire wheel is not reinvented at once. However, in every presidential cycle all budget items or federal programs should have to come up for renewal at least once. My proposed point for this is of course the midterm elections. (That way, turnout will be higher and of course it will keep our officials honest.) [Excerpt from Rerum Novarum (circa January 20, 2004)]

Since then it has probably been mentioned on my weblog at least a dozen odd times when times or circumstances warranted.

{11} The "Patriot Act" is something which I have some reservations to parts of but that is a subject for another time perhaps.

{12} I paraphrase The Gipper here.

{13} And while I am not opposed to a national bank in either principle or on constitutional grounds, it bears noting that the first two national banks of the United States both had sunset clauses in them much as most of the Alien and Sedition legislation of 1798 did; ergo the idea of sunset clauses in government legislation is hardly untraditional from a constitutional standpoint even for seemingly "untouchable" programs.

{14} See footnote eight.

{15} Between Unconstitutionality and Unworkability (circa February 6, 2009)

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Wednesday, March 04, 2009

Today would have been the 68th birthday of my father Richard Dunn McElhinney. As I have noted before, days like this are ones of more intense than normal reflection for me. It seems appropriate to note it here and ask the readers of this weblog if they could offer some prayers for the eternal repose of his soul. (And for those who do not believe in this ancient custom, then prayers for my mother -who still has difficulties on anniversaries such as this- and the rest of the family would be appreciated.)

Eternal rest grant unto his soul oh Lord and may thy perpetual light shine upon him...May his soul and all the souls of the faithfully departed, through the mercy of God, rest in peace. Amen.

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Points to Ponder:
(On Presidential Hypocrisy and Its Relationship To Double Standards)

The issue of presidents and who really spends the country's money aside for a moment...

I can understand some who want things more irenic but I ask them this:

How did you approach things when GWB was president???

Did you play the "he was not elected" BS??? If so you cannot criticize those who question BHO's eligibility to even be president based on presumably failing to verify that he fits citizenship criteria. (The case against BHO here is significantly more credible than the one against GWB in 2000.)

Did you complain about "violations of free speech" when GWB was president??? If so then if you stand quietly while the party in power moves to silence dissent to a degree that GWB never even came close to doing (with this so-called "Fairness Doctrine") you are being a hypocrite.

Did you criticize deficits when GWB was president??? (I sure as heck did!!!) If you did and try to excuse them with Obama you are being a hypocrite since one year of Obama is more than eight years of Reagan, more than four years of GWB's dad, and more than five of eight years we ran a deficit under Clinton. Etc. [Circa February 27, 2009 @ 9:37am]

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"One From the Vault" Dept.
(With "Crimson Catholic")

[Prefatory Note: The bulk of this was originally written in October of 2008 and finished earlier today -the footnotes needed to be finished and some parts updated since the first draft was put together: I did this in purple font. Anyway, this material is now ready for posting at the present time and in light of a lot of what we are seeing from the present administration and congress could not be more apropo in my mind. -ISM]

I should note in advance that this "Crimson Catholic" is the same "Crimson" I was interacting with last year in 2007 on the subject of appeal to authority.{1} And as I am going to finish in the coming weeks a dialogual thread in the coming weeks with a reader who has intelligently{2} taken issue with one of your host's foundational presuppositions{3} pertaining to how he views a wide variety of subjects be they philosophical, sociological, geopolitical, etc., it seems appropriate to post this short bit from last year. It will serve as a reminder to those who may not be familiar with the subject of fundamental rights -one we have written a lot on in a variety of contexts over the years{4} but not as much recently for various and sundry reasons. Without further ado...


I found these statements by you to be of interest:

The state's role is protection of the common good; outside of this role, the state has no more authority to exercise its power than an individual...

[T]he objection here indicates that Justice Scalia doesn't grasp the argument. He doesn't realize that the state's power to avenge, to vindicate the public order, is yet limited by its own mandate to protect the public good, just as the individual's is limited to his moral duty to protect his own life and the lives of others. That is the argument of Evangelium Vitae.

This rationale looks eerily familiar Crimson. Note...

[C]onsider the theory[...] of fundamental rights which I have reiterated at this weblog not to mention developed further[...] in light of contemporary realities and applied to a whole plethora of issues in years past. The premise is that there is a gift from God given to us which encompasses the physical (life), intellectual (faculties), and moral (production) spheres of existence. This gift precedes all human laws and was the basis on which all human laws were constructed to begin with -whether those who constructed them realized it or not. From there a need to know what law actually is comes into play since to argue anything on the basis of stare decisis requires knowing what the function of law is. And again, let us consider Bastiat's synthesis on that subject before getting to the whole stare decisis issue:

What, then, is law? It is the collective organization of the individual right to lawful defense. Each of us has a natural right - from God - to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend even by force-his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right-its reason for existing, its lawfulness-is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. [Claude Frederic Bastiat: The Law (circa 1850) as quoted in a Rerum Novarum posting (circa February 1, 2007)]

I have made this argument for a long time and have never until now seen it made by any other contemporary Catholics in the blogosphere or anywhere else. I would not be rubbing off on you by chance now would I Crimson???


{1} More on the Appeal to Authority and Distinguishing Between Valid and Invalid Appeals Thereof--Dialogue With Jonathan Prejean (circa March 24, 2007)

{2} Unlike a lot of people who make pretenses towards dialogue but prefer to only respond to the weakest of arguments from their critics, your host prefers to only interact with intelligent and thought out objections to our viewpoints. This is one reason we do not have comments boxes at this weblog -not to berate those who do but we have our reasons for choosing otherwise and they are substantial ones and we noted this most recently in a posting located here:

The Comments Box Subject Revisited (circa January 26, 2007)

Since the bulk of this post was put together in October of 2008, I have revisited this subject in what I believe is a more irenic presentation and recommend this version instead if you only have time to review one of these threads:

On Reiterating Anew Our Comments Box Policy (circa December 1, 2008)

As for the threads mentioned in this posting, one of them was completed after this posting was originally drafted and posted here:

On Logic, Reason, and the Concept of Faith -A Dialogue With A Reader (circa October 23, 2008)

The other one as of this posting remains unfinished but I will get to and finish it soon time and motivation-willing.

{3} I explained this once in the heat of polemic in the following way in years past:

[A]s far as I am concerned, arguing for a position on its intrinsic merits or lack thereof utilizing the tools of reason and logic is a serious business and far too many of a sophistic bent either do not realize this or they fail to take seriously the principle that ideas are serious things.

People have fought for ideas, they have died for ideas, and this has not only not changed in the present but these things still occur. Therefore, what someone is willing to involve themselves in (should they set foot into the arena of ideas) should be focused on primary or serious matters and not secondary or ancillary griping. What interests me is the discipline of the dialogue.

I am willing to consider for engagement on various and sundry issues anyone else who shows a similar concern for what that entails. I am also interested in productive dialogue which means getting beyond the useless back and forth exchanges[...] where no one is willing to put their foundational presuppositions on the line and reapprise them at regular intervals. The latter is a process that by its very nature must involve respecting the faculties of reason and logic. That means one has to consider from time to time not only if the arguments they use to advance their position are good ones or not but even if their position itself is actually correct. As all of this probably sounds more complicated than it actually is, I will use the analogy of stocks and options to explain it in brief.

Those who are familiar with how stocks and options have a symbiotic relationship know that one of the reasons many investors like options[...] is because a small movement in the stock results in a magnified movement in the underlying option. This is the potential power inherent in dealing with foundational presuppositions of an individual: small shifts there can result in magnified movements in the individual's weltanschauung though sometimes it takes a bit of time for working out the ramifications of such shifts. [Excerpt from Rerum Novarum (circa June 28, 2006)]

{4} The last compilation post on this subject was posted in early 2007:

A Collection of Threads on Claude Frederic Bastiat's Theory of the Three Fundamental Rights of Man and the Role of Law in a Just Society--A Rerum Novarum Compilation Post (circa January 19, 2007)

If I have the time in the coming month or two I hope to finish another thread from that point on which was started at some point in 2008 but not finished. But for now that one will have to do even if it does not include two rather significant postings I did on the subjects of fetal stem cell research and abortion as they pertain to said fundamental rights which were on the drafting table when that thread was posted and completed in the weeks afterward. (They will be in the follow up compilation thread when I get around to finishing it but I digress.)

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