Society And The Rest Of Us

I started this essay between six and seven years ago, but I never finished it. The time has come, even though the slant now may be different from what I originally intended. I've edited it to conform to my current philosophy.

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Someone repeats the same sentence several times. He is getting older and his children are tired of hearing him. What's to be done? Perhaps the affliction is pathological and requires a remedy.

A man goes around the room straightening every picture – some only a millimeter or two off his mark. He has obsessive-compulsive disorder. It clearly abnormal. Everyone agrees he needs to be treated.

A child looks out the window every time a teacher starts speaking. It must be attention-deficit disorder. Such a problem is clearly detrimental, and the proper medicines and counseling must be instituted to alter this behavior.

A woman talks incessantly, not leaving an opening for anyone else to talk, and apparently unaware of what anyone else has to say. Though irritating, it's normal and requires no professional intervention, although someone may say something.

No, this isn't a misogynistic or any other type of rant. My target, rather, is the way we set standards of what is normal and what isn't. I'm a little put out by the way we decide what falls outside the range of the acceptable, in speech and in behavior, and what we should – or is it what we can – tolerate. I'm concerned because I view our standards as being based on politics or some kind of imagined correctness and not on any objective criteria.

Let me give an example: A “pin-up” calendar in a men's locker room would be viewed as provocative and unacceptable, while lush wallpaper in a ladies' lounge, wallpaper that includes images of virile Greek gods, would not merit mention. How this attitude entered our society isn't clear, but there are many men, in addition to women, who agree with the view. Somewhere along the line society has conditioned us as to what's acceptable and what's not.

So our comfort is what counts, and the man with OCD needs treatment because it's bothersome to others – not necessarily to himself. And it's easier to diagnose a child as having ADD, and possibly put him on drugs, than to look for any other reason for his behavior. Perhaps the elderly individual who cannot remember what he said would benefit from therapy, but the problem is most striking to the listener, not to the one repeating himself – though he may be judged by the courts to be incapable of making decisions and forced to undergo therapy that others choose.

Most of the problems for which we have devised solutions derive from what society has taught us. And society's dictates vary from time to time. To the point that we no longer accept the Constitution of our country as it was written. Extensive interpretation is necessary. Free speech is nice unless it offends someone. And if it bothers someone we've designated as a member of an “oppressed” group it may constitute hate speech. “This is your punishment for deviating from the Bible. I pray that you are forgiven.” Though the speaker may sincerely wish for the benefit of the person he is addressing, said to a homosexual it constitutes deplorable hate speech. The concepts of free speech and freedom of religion, and religious views, are less important than the feelings of the listener. (Often it is a non-involved party whom it offends more than the one to whom it was directed. No one will find it offensive if somebody accuses you of being a gun supporter, though it may be accompanied) by more hate than the biblical remark.)

And words that were perfectly acceptable in the past are no longer to be used. Euphemisms must be substituted. A child who was once said to be retarded is now “special.” But if everyone knows what the euphemisms mean, they're no different from the words they replace. Except to the “sensitive” among us. Meanwhile other words, anatomical designations or expletives once forbidden in public discourse, are used freely and without disapproval.

There's no solution to the problem. Some people will insist that only the way they speak is acceptable, and those who disagree should be silenced. But, as Benjamin Franklin said, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.” Or, in the words of George Orwell, “If liberty means anything at all, it means the right to tell people what they do not want to hear.” The freedom to express ourselves any way we want is paramount (although those who see their nation's flag burned, or who see Nazis protected by the government while marching through the streets may want their representatives to revisit the issue). And our behavior as well. Forcing us to obey the rules of the intolerant is contrary to any ideas of freedom. Making us fit into societal norms is tyranny.

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I said then, and I still believe that what we say and what we do (as long as we're not physically harming others) is our own business and should be protected by society, not controlled by it. Limitations on free speech are only rarely justified, and such action should be taken only after careful consideration of the consequences. As for forced, or pressured, therapy, we went through the tragedy of eugenics early in the last century, and we should know by now that no one should be treated for any real or imagined disease unless he chooses to be.

The United States was founded with the intent of offering freedom. Destroying that freedom in order to soothe the majority must not be tolerated.






February 9, 2017

Sense And Sensibility

Sense And Sensibility

When I was growing up there was a spate of r0ad signs demanding the impeachment of Warren. The target was Earl Warren, the Chief Justice of the United States Supreme Court. Governor of California, he had been appointed to the position by Dwight Eisenhower, President of the United States – his nomination having been approved by the Senate and then by Congress. He was, however, more liberal – and he led the Court in a far more liberal direction – than had been anticipated.

Had the choice been a bad one? Was Governor Warren unqualified for the position? Absolutely not. Was he the right man for the job? Perhaps not. The two criteria don't necessarily go together. Chief Justice Warren was well-schooled in the law, the Constitution. and in American government, but his political philosophy – whether you view it as right or wrong – was not shared by large segments of the population. And the principal advocate of our judicial system differed in many of his views from those for whom he judged the law.

The Constitution was written at the end of the eighteenth century when our country was founded, and the document contained the compromises expected in such a contract. Not everything was agreeable to all our Founding Fathers, but it was a good start. It was the basis for all our laws, although there has been a lot of debate about some of their wisdom. Our outlook has changed regarding many subjects over the years, including the contents of our founding rulebook. Fair enough. Times change, and with them ideas. Over the years there have been numerous laws, at all levels, that have aroused the dismay of citizens – often dismay reflecting changes that simply mirror a reaction to societal differences over time rather than some political quibbling. And even moreso court decisions – especially those of the Supreme Court.

It's not a surprise. Since the beginning there was a call for a a regular review and updating of the Constitution. Thomas Jefferson was among the group favoring frequent change, feeling that children should not be bound by the views of their parents – moral or legal. In addition, however, perhaps nine eminent legal scholars should consider the perspectives of the American population – both the majority and significant portions of the minority – when they decide upon the “established law” that will govern our society. It's sad for example, that Roe v Wade, a decision long ago repudiated by the plaintiff, should still be inspiring invective and hostility so long after it became the law of the land, over the protests of so many. And it is surprising that “Doe,” of Doe v Bolton, whose suit accompanied Roe's and, according to the nine sages, supported its conclusions, disclaimed it and maintained that it was brought in her name without her knowledge, but was contrary to her wishes and beliefs.

And there are other issues about which we ask the enlightened nine to decide right and wrong although they are making sociological as well as legal decisions. The original Founding Fathers (all men) accepted the concepts of slavery, and the limitation of the franchise to certain men. Yet we manage to nullify these features of the “law of the land,” features with which the nine disagreed and which violated societal norms, by simply “interpreting” them out of existence. The Constitution is not inviolable when we want to change it.

Perhaps our Justices should consider how the American people feel and how they they'd vote when they consider the cases before them. More is involved in the law than the law than the law.

Guess What I Read

The Constitution. A few days ago. And the Declaration of Independence. No light novels or like material. I guess that makes me a hopeless conservative, but for me it's simply an interest in our nation's history. In fact I've read about these documents as well.

They're very different instruments, and neither deals with the other. Of course the Declaration couldn't have referenced the Constitution since it hadn't yet been composed, but it didn't happen the other way either. In fact, the Constitution contradicts it in terms of equality and slavery. But they're really unrelated. The former simply justifies actions taken, while the other lays out the structure of our government and our laws. The Declaration of Independence deals with our international relations as well as the relationships between states and the national government. It's philosophical (actually it's the declaration of what had happened already so as to justify the establishment of relations with other nations) while the latter is pragmatic – a plan for running the newly established country. Still it's important to remember that they were written by the same founding generation and that they are the basis for our country and our actions today.

I'm not a lawyer and I'm not knowledgeable about interpretation of the Constitution or any case law that expands on its concepts, but it's hard to understand how we got to where we are based on what I read in the document. I'm sure it's all perfectly explainable, yet I'm baffled by some of what people – people who, I suspect, have never read it – consider their constitutional rights. And I'm similarly amazed at what those familiar with it have done in its name.

Let me specify a couple – and only a couple – of examples of what I mean. They're amendments.

Article I

Congress shall make no law respecting … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (emphasis added) – Does that include flag burning, rioting, and violence? Does it include harassing those with whom demonstrators disagree? The courts say it does.

Article XIV

1: … No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Various amendments specify age (eighteen or above), previous involuntary servitude, and sex. The body of the Constitution prohibits religious tests for office. There is no mention of race, sexual preference, disability, or the like. Perhaps they're reasonable as prohibitions, but they're not listed.

There are many more examples of the “discovery” in the Constitution. “Rights” to privacy and abortion, nowhere mentioned in the framework that established our laws, have been identified by those who would find them. And while Article 1, Section 7, decrees that All bills for raising Revenue shall originate in the House of Representatives, somehow, presumably by additional legislation, that now has become all bills for disbursing revenue. Not that I oppose the system, but I'm bewildered by the fact that we're at a point where what it says is not what I thought it said.

Interpretation and further legislation seem to me to be the primary issues. They're the path to twenty-first century America. When it comes to Congress, and to the representatives we elect, I'm less bothered than otherwise, because those people are answerable to us, and they (their staffs actually) pay some attention to our wishes. We can vote them out of office in less than two years if we don't like what they are doing. And they're charged with the responsibility for making our laws.

Unfortunately the President is above us, even though we elected him, and the courts are free to impose their views irrespective of our wishes. And by their interpretations and social and political biases they establish the law. We have no recourse. Constitutional amendments are difficult, and a convention would lead to a crisis and mischief beyond our imagining. Still, we need a way for public opinion to be heard and considered by those who use their offices to promote their own social agendas. Jefferson, who is credited with writing the Declaration of Independence, believed that we should not be bound by the ideas of past generations and he thought that the laws we follow should be reviewed every twenty years or so.

Perhaps Jefferson's plan is impractical. Opening everything to change at one time can only lead to the possibility of massive and expensive reorganization, and lead to uncertainty as we move from one system to another, but it remains important for those with authority to know what we really want – not just the thoughts of a focus group. A system might be established using the internet (with public internet available to those who lack the capability at home) for citizens to list, by subject or keyword only, their areas of concern. Each time this is done (perhaps every other year) the top ten or so should be listed for public comment – again on the internet. Such comments should later be clarified by a formal questionnaire, with the opportunity to indicate specific concerns if they aren't already covered. Free-text, however, should be limited to avoid rants and to encourage focus on the real issues. I'm sure there are programs that could both arrange and count the comments for public officials to read and would filter out those with expletives or other undesirable content. None of the results would be binding, but publication of the public's vexations might encourage those with the power to do so to consider the views of “We the People.”

It is, after all, our Constitution.

Transgender Bathrooms

The protests continue. Since the presidential election of 2016, and the victory of Donald Trump, there has been a continuous series of protests about anything he or his administration does. The issue itself is not critical to their actions. Indeed, most of the protesters don't even wait to evaluate the facts, but the protests begin on the order of whoever is at the other end of instructions and orders from the social media. Time and place of the protest are provided, and the search is just for angry people. The reason for their anger is irrelevant. There will be leaders to focus it when you get to the site of action.

How many, or how few, attend a protest doesn't matter either. Even if there are only a few there is guaranteed press coverage – often disproportionate to the number of (often artificially) incensed participants. Their rage may be based on the failure of their candidate to win, or a general fear of the one who did, but the expression of their passion is aimed at whatever happens, and whatever will make news and get publicity. It has little to do with the importance of the issue, or right and wrong, but provides a vent for anger and the opportunity to join in the fellowship of protest. And the media is happy to cooperate – to “advertise” the cause du jour.

And the current one is transgender bathrooms. President Obama's interpretation of an 1972 anti discrimination law which includes, in Title IX, the prohibition of discrimination based on “sex,” was that sexual orientation, including sexual dysphoria (“a condition where a person experiences discomfort or distress because there's a mismatch between their biological sex and gender identity” – according to Google) was included. The George/Christine Jorgensen case had been in the news about two decades earlier, but transgender issues were probably not what Congress had in mind when they passed this legislation. Nonetheless, President Obama decided that schools that receive federal funding are subject to the law and that, as part of this prohibition, they must permit transgender students to use the restrooms of their choice, and he issued this as an Executive Order. Congress was not asked what they had meant. and President Trump has withdrawn the order. Since the issue of transgenderism was not explicitly discussed by the founders, and obviously not granted to the federal government as a responsibility, nor denied to the states, he views it is as a local, not national, decision. That's how the Constitution allocates authority.

There are many issues involved. It's not a simple question. One subject worthy of discussion, of course, relates to the relative powers of the President and that of Congress; another relates to the relationship of the federal government and the states; and another to the level of concern of the public for “minority” groups. Whether ethnic, religious, racial, or other, a group is defined as such in order to have it included under the fifth and fourteenth amendments to the Constitution so as to get special treatment for that group and to make it a federal rather than a local issue.

Do transgender issues fall under this rubric? That's not for me to say. It should be – I'm a citizen, one of “We The People” – but it's not. Nor does it seem to involve the rest of the American people who have not been asked to weigh in, except as protesters. Nor has Congress, which has never expressed it's view of what was meant in 1972 by “the basis of sex.”

Without passing judgment on those with gender dysphoria, it is hard not to wonder about the rights of the majority as some demonstrate to demand the rights of the minorities. It is likely that the majority of the population are not transgender. That doesn't mean that the majority may impose its will on them, but it should make us wonder if our catering to this minority comes at the expense of the feelings of the majority. Are those with gender euphoria (I suppose that's what you'd call those satisfied with their sex), who might prefer not to share their restrooms with those of the biologically opposite sex, without rights? The question is not whether the majority should control the minority (although in a democracy many would argue that it may do so) but whether a minority should control the majority.

The problem relates to the definition and understanding of protected groups. Some are specified in the Constitution and, until it is changed, are the law of the land. But the understanding of what the Constitution and its amendments mean is often decided by the courts, or the President, or a group of protesters. And many believe that this is not the way an important issue should be decided in a democracy.

Should transgender students have the “right” to use the restrooms of their choice? Is this a “one size fits all” issue? What are the rights, if any, of those who are not transgender?

Executive fiat doesn't seem to be the way to answer this question to the satisfaction of our citizens. The voice and views of the non-protesters as well as those in the streets, should be sought and heard. And considered before decisions are made.

The Slippery Slope

It wasn't so long ago when governments and private individuals began installing surveillance cameras at various locations. There was quite a reaction to it: mostly fear that it was an invasion of our privacy and would lead to greater spying on all of us. 1984 was here.

But now we demand those cameras, as well as body cameras on police and cameras in police vehicles. It's not that we no longer care about privacy, but we recognize their value in keeping us safe and in dealing with criminal activities. (Where would TV crime shows be without surveillance cameras and DNA – or is DNA examination another invasion of privacy?) Some jurisdictions have installed traffic cameras to monitor the violation of various laws, including failure to observe red light rules and stop signs. (Others view such devices as illegal – as first steps in the effort to deprive citizens of their rights.) Nowadays, in addition, we're recorded by the ubiquitous camera-phones operated by everyone seeking his or her fifteen minutes of fame, and a big payoff from some television network if (s)he's fortunate enough to see a murder, police brutality, or another disaster occurring. No one seems alarmed about it.

Do you remember the fall of the Soviet Union? It wasn't so long ago. After several years of violence had occurred in the latter half of the 1980s, most of the member states declared their independence in 1990 and 1991. One after another they established governments separate from the USSR of which they had previously been members. It was almost like a lineup of dominoes, falling in sequence after the first was toppled.

We, in the United States, had been concerned about a similar sequence of events in the previous decades. The “Domino Theory” posited that if any country adopted Communism it would be followed by additional nations, one by one, like a line of dominoes. Many believed that we couldn't afford to lose Vietnam (we did in 1975) for that would lead to Communism conquering the entire far east (it didn't). It was a “slippery slope” argument – that the loss of one battle would eventually lead to the loss of the war. (For the want of a nail the shoe was lost …) And eventually our own freedom would be threatened. It's likely that the same concern was felt by Soviet officials in the years of its dissolution, but Russia still stands and it has been increasing its influence in recent years.

But that's not what those who are worried consider relevant when they present their cases and take their stands. They are convinced that whatever they are protesting is the first step on a “slippery slope” and will eventually lead to some horrible endpoint. And they're sure that once the first step is taken there is no turning back. A typical example of this approach can be found, in the approach of some advocates of the inevitability of this construct, especially with reference to the First Amendment to the United States Constitution. A fear that failure to defend the “right” of Nazis to march through a community containing numerous Holocaust survivors (Skokie, Illinois) to spread their message of hate would ultimately lead to the complete loss of the right of free speech, caused the American Civil Liberties Union to come to the defense of the marchers. And a fear that including “under G-d” in the Pledge of Allegiance impinged on the rights of non-believers and would eventuate in our country becoming a theocracy prompted protests of the use of this wording in our secular state.

It is noteworthy that previous limitations of speech, like bans on inciting to riot, have not caused us to lose our right to speak out. Indeed, many of the same people who feared the Nazis' loss of rights now support the concept of “hate speech” which they apply to the speech of those who oppose groups they favor.

And while the change is the Pledge of Allegiance has not turned us into theocracy, neither did the chaplains in the military or in Congress, nor the tax benefits for clergy and religious institutions that predated the Pledge debate. Additionally, National Rifle Association officials who fight hard to defend the Second Amendment out of fear that any limitation in gun ownership will lead to a banning of guns entirely are unlikely to acknowledge that previous restrictions – for example, existing laws that govern gun registration – don't do that. Advocates of these absolutist positions are convinced that those who don't support them are evil, and no compromise with evil is possible. For any compromise may lead to even more far-reaching effects (and greater evil).

That perspective is not completely without merit. The first arguments for a “right” of “privacy,” a right not mentioned in the Constitution, were based on an 1890 Harvard Law Review article by Warren and Brandeis in reaction to the use of a camera at a party. Nowadays it wouldn't be worth a mention because most of the attendees would have cameras, but Warren and Brandeis viewed it as a massive invasion of privacy. Times change. Indeed, based on that article and its results, so did the Constitution. And since that time American courts have accepted an unwritten constitutional right of privacy – “the right to be let alone.” It's there – or, at least, should be – if you read between the lines. And that right extends to other unwritten areas. (For example, it resulted in the ruling regarding Roe v Wade.)

Change in the understanding of the Constitution is a staple of liberalism. After all, the world is different from what it was over two centuries ago. So it makes sense for the courts to reinterpret a document written then. But others argue that it is a violation of principle, and any change is the first step onto the slippery slope. Many conservatives favor no judicial change. Preferring what was written in the past, they argue against that first step.

But, as I noted already, times change. Societies were formed by those willing to give up some of their freedoms for the protection that society offered. Ours was formed before there was an internet and the hacking of our communications. It was formed before there was terrorism comparable to what we face now. There has always been spying by one government against another, and we have also supervised the actions of our own citizens. Hence the current Patriot Act, which allows for the interception of information that might be prejudicial to our country, is considered by some the first step on a slippery slope that will result in spying on all of us. Their view is that even if supporters of the act have America's good at heart, “the road to Hell is paved with good intentions” (as is the road to Heaven) and is contrary to our values. Our spying is wrong. And “transparency” of our actions is mandatory. We cannot risk a slip.

But that absolutist position is wrong. Life is a slope, and we're on it. We have to be if we are to adapt to the changes that take place around us. But the slope doesn't have to be slippery. We can make occasional changes, even though these are “exceptions” and are steps on the slope. We can take one step, and stop. Where does common sense come in, and the assumption that most people are honorable? You do what you can and hope for the best.

A belief in a slippery slope is a manifestation of conspiracy theory. And like conspiracy theory it will only lead us in the wrong direction away from the path we need to travel and the changes we need to make.

The Meaning Of Ends

The argument has always existed. Does the end justify the means? And the debate has been raging in our country for a long time. We've seen our own values sometimes used against us. When tyrants have battled us, we are loath to use their tactics against them; and when they use what we consider our “unalienable Rights,” like freedom of speech, to alienate our citizens, we refuse to deny them this instrument. It is, after all, a First Amendment right. Our Constitution guarantees it to us, and we guarantee it to everyone. We will not sink to their level. That's not who we are. Once we start making exceptions there is no end. And if the First Amendment also assures us that we have freedom of religion, and our religion opposes violence, then we have a right, as conscientious objectors, to refuse to serve a cause to which we object.

Those are some of the arguments that favor the idea that the end never justifies the means. But not everyone agrees. For example, when it comes to treasonous speech, there are many who are convinced that it must not be tolerated. In the history of our country there have been many incarcerated for seditious speech; but also those who believe that to preserve our country sedition can neither be compromised nor tolerated. “Right” is not halfway between good and evil, and occasionally we may be forced to use unpleasant means to arrive at a necessary goal. When we seek “right” we are obligated to consider all the tools at our disposal.

In addition, we are taught in the Bible, to Do unto others as they would do unto you. Even those who reject the source are usually accepting of a right of self defense. They usually don't favor the idea of turning the other cheek to an aggressor. That perspective, however, isn't universal. Many draft boards used to question applicants for conscientious objector status on points like this: what would they do if family members or their country were attacked? And do religious objectors accept Thomas Aquinas's view of a “just war?” The issues are complex. Means or ends?

It was a line from a movie. Gore Vidal's The Best Man, I think. And, presumably, from the play that preceded it. There are no ends – only means. Perhaps that's merely the view of an idealistic politician, but there are times when it is difficult to distinguish between them. The First Amendment, for example, guarantees that Congress shall make no law … abridging the freedom of speech. But is that a means to an end, or an end in itself. Supporters defend it strongly, suggesting that any breach in the protection of this right is a fundamental violation of what is due us. It's a principle. It sounds like a means; to others like an end, and that any infringement is a violation of the Constitution, and will challenge the entire idea of free speech.

Is the Constitution a slippery slope? Is it all or nothing? If we make an exception to a "right" do we lose the right? Why take the risk? Shouldn't someone be permitted to yell "fire" in a crowded theater? Why shouldn't the “right” to incite to riot be protected? If we make exceptions don't we risk all free speech?

The First Amendment is an addendum to a document designed to be the “rule book” for the new nation created by the Declaration of Independence – a nation of “Free and Independent States.” And the rule book – the Constitution – states that the goal is to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence [sic], promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. These are the ends, and the Bill of Rights containing the First Amendment, is the means – the means to those ends. To the degree that the amendments serve those ends, they are justified. But those who believe that the ends justify them under any circumstances are incorrect. Equally, though, those who follow Vidal's dictum are being led astray. The idea that there should be no ends is wrong. It sounds virtuous, but it's wrong. The ends may not necessarily justify the means, but there are some important ends, and there are times when the means must be changed to ensure those ends.

Preserving freedom of speech in its entirety would certainly be a victory for “right.” But it would be a Pyrrhic victory. We'd face the possibility that we won the battle but lost the war. However virtuous we might be, we'd have lost. When the battle is more important than the war, we're likely to do so. And with us, virtue would be lost. We cannot win if preserving a principle results in losing it.

And when it comes to violence, violence designed to provide for the common defence ... and secure the Blessings of Liberty to ourselves and our Posterity, those ends justify the use of violence, the means, notwithstanding the reservations some might have. When we “fight fire with fire” in order to protect our freedoms, we are not choosing “the lesser of evils.” We are not descending to the level of tyrants. We are simply demonstrating that our basic beliefs sometimes – and only after careful balancing of all the available options – require us to take steps which we may, under other circumstances, eschew; but there are times when the ends, principles, are sufficiently fundamental and important that we must do so.

There is an almost inviolable principle in Judaism: the sanctity of the Sabbath. But a threat to health takes precedence, and whatever action is necessary MUST be taken so that the individual at risk will be able to observe future Sabbaths. The end (preservation of the Sabbath) justifies the means (violation of the Sabbath).

So it is with all principles. The more important they are, the more important their preservation. And if they are ends rather than means, the more important the end, the more thought must be given to the justification, and perhaps overemphasis, of the primacy of the means – its inviolability.

The end may not ordinarily justify the means, but common sense cannot be ignored. The means cannot dictate the ends. We need to expand our thinking. As Emerson wrote

A foolish consistency is the hobgoblin of little minds, adored by little statesmen, philosophers and divines.

And to expand on Gore Vidal, There are no ends or means, only principles. And we are bound to uphold those principles.

Violence In America

The more I read – especially American history and the news about modern America – the less I understand. We are a society built on violence, from our Revolution and our use of weapons to ensure our “manifest destiny,” to the present situation. Add to that some wars and the use of firearms to oppress those of our people who were weaker than we. More recently there have been mass killings of American citizens using such weapons, and yet we are surprised.

Our founders were also concerned about firearms, but their fear was that the government might dominate us and take away our weapons. To prevent that from happening they passed the Bill of Rights – specifically the Second Amendment – that guaranteed that “the right of the people to keep and bear Arms, shall not be infringed.” The Supreme Court, discounting the language that “A well regulated Militia (emphasis added), being necessary to the security of a free State …,” which was the justification for the guarantee, ruled that we all had the right to guns. I don't agree with that decision but it is the law of the land and I must respect it. It is my view that, while, perhaps, gun ownership cannot be denied, it should be far better regulated than it is at present. But that should be accomplished by legal means.

The latest massacres, most recently in Orlando, make it clear that we have failed to take the proper steps to limit the availability of firearms – actions I believe we must take. Those actions, however, should honor our heritage and our laws, and we cannot use extralegal means to assuage our hysteria.

According to today's Wall Street Journal, two bills to achieve some gun control, which had the support of a majority of Senators, failed to receive “the 60 votes needed to clear procedural hurdles.” I'm unclear what “procedural hurdles” prevent the forwarding of a bill to the President for signature or veto, but the majority no longer seems to rule. And many of the opponents of the bills, demanding the limitation of Constitutional rights without any judicial review, a limitation based on FBI “suspicion” of terrorism, were among those arguing against the review of e-mail on on the basis of “suspicion” of terrorism, often also opposing, simply on the basis of police “suspicion,” the use of “stop and frisk” laws which likewise had the potential to yield weapons and prevent violence.

The two problems I see are the inconsistent regard for judicial review on the basis of suspicion, and the idea that a majority vote isn't adequate. It appears there are many who are troubled by the existence of Constitutional requirements for a separation of powers and checks and balances when the guarantees in our founding documents don't favor their own political perspectives.

In the 1780 Massachusetts Constitution, John Adams declared that we had a “government of laws, not of men,” but the concept that our officials are responsible for following the law is not currently in vogue. We have reached a point where “interpretation” of the laws is more important than the observance of what legislators have written, and when a strong executive has unilaterally arrogated the power of decision-making – limiting the choices of the legislative branch and of the people whom they represent. Perhaps the President's instincts are correct (I personally don't think so) but voters don't get the chance to make that decision. The best they can hope for is the opportunity to include his executive decisions along with the many other factors they consider in the next Presidential election, and by that time they are already faits accompli.

But it's too late then. If we need to change the Constitution, let's do it. If we need to pass legislation that will better regulate our practices, we deserve the right to encourage our legislators to do so. In the meantime, however, we should follow the laws and practices that we now have on the books. We need government of laws. And we need our elected legislators to take whatever steps are necessary to protect their prerogatives and our freedom.

The Decline Of Congress And Our Citizens

I recently sent the following letter to the New York Times:

Date: May 13, 2016 8:33:07 AM
Subject: U.S. ISSUES NOTICE ON STUDENTS WHO ARE TRANSGENDER
To: letters@nytimes.com

May 13, 2016

Dear Editor:

The President is showing his resolve. At home if not abroad.

The Supreme Court, having discovered the right of privacy (not mentioned in the Constitution) to guarantee the right of contraception (not mentioned in the Constitution), it seems perverse that the President would arbitrarily deny privacy to the majority of students in order to satisfy the demands of the transgender (not mentioned in the Constitution) minority and their supporters. Is the next step unisex toilets or the imposition of the policy on the military?

When do the people get a say? Will our next chance be when we evaluate Secretary Clinton's agreement with the President's views?

Not surprisingly the letter was not published.

The Supreme Court has, for many years, arrogated the rights of Congress by deciding what they meant, what they should have meant, and the general acceptability of the laws they have passed. Congress has abrogated the obligation to legislate by authorizing Executive branch committees to interpret what they mean and to make regulations which have the force of law.

And the President has all but assumed the power to legislate by directing the implementation of such rules with little effective oversight. Political decision have taken precedence over any other considerations.

The only unrepresented group has been the American People – in whose name these actions are being taken.

In the case mentioned above the new rule (transgender “rights” – minority “rights” – which I've discussed in other essays) was imposed unilaterally by the President without consultation with Congress, and certainly without any determination of its acceptability by the American People. And the President's assumption of “Executive Power” has resulted in the imposition of numerous rules and policies, though Congress should have been the decision maker. When necessary, the President has bullied Congress into passing legislation that he can use to justify his positions, and which he believes will provide cover for him when he is challenged in court. At the moment, the Supreme Court is weakened by the absence of one member and is unlikely to make any momentous decisions. Since so many of them have been political in origin that's not entirely a bad thing, but it is contrary to checks and balances system set up in our Constitution. In this instance it's likely that a decision won't be reached for many years and then only when it's a moot point. That's often the case with the court system, but it's probable that the delays will be even greater now (and, since the President will nominate a new Justice, the composition of the Court must be an important consideration for voters).

On paper Congress is a powerful body. The Constitution says so. We the People have made it so. But in reality it has surrendered much of its power, and much has been taken from it, so that it has diminished from the dominant body to the most dependent. Perhaps that's not what we wanted, but we were never asked. Has the time come for us to make our voices heard?

Bloodsport

If only the stakes weren't so high. But they are. Politics isn't for the faint of heart. Perhaps it doesn't involve the actual shedding of blood – though popular literature, films, and television sometimes posit otherwise – but American politics suggests boxing or cock fighting to the observer. There is certainly a battle going on. And no quarter is given, No handicap is awarded, though many handicaps exist. Indulging in some mixed athletic metaphors, there is a toe-to-toe fight between the players who are racing to the finish line. No holds are barred. In addition, unfortunately, all teams are often off-side.

A chess match may be a more fitting analogy, yielding less actual blood, but a battle nonetheless. It surely includes the jockeying for position, and no moves seem to be barred – no matter how unseemly they appear. The rules are sometimes ignored by all participants in the quest to outflank the opposition. Consequently wiliness, response to attacks, and unexpected moves characterize the competition. Winning is the only thing.

Our Constitution is now over two-and-a-quarter centuries old. It originated as a document designed to unify a number of states with conflicting interests, but with a need for common defense. Having separated from the British Empire there was a need to establish a stable government for a new nation, and our founding fathers, under the influence of European political philosophers, and by the hand of James Madison, produced a system of government that, with the approval of the citizens of the new nation, has become a model for many subsequent democracies.

Creating our country required a document that would balance many competing philosophies, wishes, and economic realities, and be acceptable to voters. And it needed to provide a framework for governing long into the future. The debates were illuminating, but they were heated. Ultimately, however, they generated a system acceptable to a majority of delegates and to the voters in the new states.

An important element was a system of checks and balances designed to ensure the control of each of the branches by the others, with none preeminent. And there was a careful delineation of the responsibilities of each, and allowance made for the states to have responsibility for whatever was not covered by the text as written. The document wasn't complete, requiring amendment immediately, but provision for doing so was built into it. The founders realized that change would be necessary, and they provided for that need. They were building “a more perfect Union,” and there had to be a way to correct imperfections when they were discovered.

As opposed to chess, though, American politics scorns the “check” as all of the participants seek the checkmate. And there are frequent instances when our government is out of balance. It's often difficult for the amateur to follow, and participants have staffs and playbooks to guide them – outlines of previous matches, devices that they will either cite or ignore depending on the utility of doing so. They're more knowledgeable and better prepared than we. They're aware of the Constitution and the way to change the rules. But that's too hard, and there's no guaranty that things will go their way. Perhaps, amendment is possible, but change more often happens ad hoc. It's whatever some party can get away with. In the struggle for dominance in the present and future, they pay no mind to the past. And they demand dominance of the Federal government, not the states.

Moves, also, bring chess to mind. The Judiciary, as exemplified by the Supreme Court, seems to favor the approach of bishops, notwithstanding the First Amendment. As the Church may interpret the Bible, the Court “interprets” the Constitution, finding meanings that no one else can see. That means moving obliquely, and, by doing so, overpowering both the Legislative and Executive branches. They have conquered Congress, by deciding what its words mean (and their understanding is final, not Congress's intent) and, the President, by deciding which of his actions (according to their view) falls within the guidelines set by the Constitution.

Not to be outdone, Congress moves more in the manner of rooks – “in a straight line … in a rank [and] file” (I took slight liberties with the definition in The American Heritage Dictionary) and with force based on party loyalty. They march together. Although devotees of the board game usually refer to the pieces as “castles,” the meaning of “rook” as a swindler should not be overlooked, nor should their resemblance to confused birds in a rookery. Their advantage in the infighting is that they may choose not to fund Presidential initiatives, and the Senate may defeat the nomination of a Supreme Court Justice.

The greatest threat to all the other players, however, is the Executive branch, led by the President, who commands all the moves of the queen. He moves in an unpredictable manner in any direction and can go as far as he wants to in order to avoid the domination of the others, or in order to destroy them. The queen wants to be king. (Transgender issues, and the President's sympathy, will be addressed at another time. This is intended as a discussion of power.) The President takes an end-run around the Senate when necessary (as it was when he wanted approval of a treaty – which he decided to call an “agreement – with Iran), pressures Congress in general using his “bully pulpit” (and the control of the media enjoyed by the office) to convince them of our country's needs – as he sees them, and as they and the voters should see them. And he employs “Executive orders” to enact whatever legislation he desires, even though the power to do so is not in the Constitution. Like the Court and Congress, he wants to win. He he wants to be in charge. And he wants to leave office as world champion.

And, of course, there are the pawns. Us. We, the People of the United States. We sponsor the match and pay for the tickets. In theory we control everything through our franchise. But, as in chess, we can be sacrificed. The bishops, rooks, and queen have their way with us. We can be manipulated for their ends. We may have the vote, but the branches of government have control. In theory they are our servants, but in reality we are there to serve them.

Every now and then there arises among us a knight. He is prepared to go over and around the system, but he is too often defeated or directed by the others. That's the way it is with knights. They owe their loyalty, and their future positions, not to the people from whom they arise, but to their superiors. So we are left to do and die as good soldiers. Though we're the majority, we have little power.

In a way, it's all entertainment. It's bread and circus. It's an elaborate bullfight. It keeps us busy as they compete with each other for mastery. Sadly we ignore the warning of the red cape but are fascinated by the battle taking place. We don't recognize that it is our Constitution that is dying before our eyes. All the rest is bull.

Nothing Could Be Finer

Jennifer. Seventeen, and never been kissed. Sounds bizarre doesn't it, in this hypersexual post modern age (substitute whatever cant term you prefer).

Of course that's not precisely accurate. The busses of family members were unavoidable, but a strict set of values inherited from her parents, and an uncompromising religious background, made her avoid circumstances in which romantic involvement might arise. But her time would come.

There was an editorial in today's New York Times, and numerous protests all around the country. Charlotte, North Carolina, had passed a “non-discrimination” law which gave transgender individuals the right to use whatever public rest rooms they preferred. (Presumably others were given the same right since the law demanded no proof of gender identification or sex.) There was resistance which was attributed to a fear of rape, and some local governments imposed their own regulations limiting bathroom use to that corresponding to what was declared on their birth certificates, as did the state.

North Carolina has a history. It has lots of history, but my particular interest relates to 1960, when four young men sat at a lunch counter in Greensboro, seeking to be served in accord with the rights guaranteed them by the American Constitution. No creation of a new minority group was involved, nor was there a right proposed that wasn't obvious – even to those who opposed it. No new law was required, nor was it necessary to hypothesize a justification. Now North Carolina was again in the eye of the law, only this time the issues weren't quite so clear.

Of course the idea that bathroom choice would lead to rape was disingenuous, but it was a good and provocative argument for both opponents and supporters of the state legislation. We live in an age when public safety dominates all our thought, and sometimes it's preferable not to discriminate between real threats and imagined ones, between an actual situation and a straw man. It's much easier to stir up emotion then – easier than when addressing a reality that may not be as vulnerable to propaganda. And an appeal to Americans to support the “rights” of transgender individuals irrespective of the views of others seems to be a long overdue call to all “fair-minded” Americans. The issue, however, is safe space, not safety. It is privacy.

But back to Jennifer. (Full disclosure: she's my creation, a straw girl, but a straw girl probably closer to the reality faced by twenty-first century adolescents than the one proposed by the populists and politicians.) She was overjoyed to receive a letter of acceptance to a local university in Charlotte – one located just far enough away that living at home would not be practical. She loves her family, but the time had come to test out independence.

With two brothers and only one bathroom for the family, her trips had always been hurried. She understood the problem and took her situation in good nature. She was a good scout. But she dreamed of the time when she could shower, wash, toilet herself, and even brush her teeth in a comfortable, unrushed setting. It was a feature of “slow” southern culture that she had never enjoyed. There had been tastes of that liberation in high school, but the luxury and relaxation of a shower or other prolonged activity did not apply there.

Jennifer opened the letter from college with great anticipation. First came the acceptance itself. She had worked hard to make this aspect of independence a reality – partly because of pressure from her parents, but largely based on her own initiative – and she couldn't help but believe that she had earned it. There were a lot of forms and notifications and, at the bottom of the stack, an insertion notifying her that bathrooms were open to whoever felt comfortable in them. How could she feel so in a setting in which people of both sexes (in her view) were free to wander around? However sympathetic she may have felt for emotional needs of those confused about their sexual identities, it was hard for her to understand why the rights of the majority could be legislated away – sacrificed – in the interest of satisfying the ”needs” of a newly named minority that was in the limelight now. Perhaps it was politically advantageous to cater to this group, but absent any actual constitutional right or public demand for an amendment to our governing document it was hard to understand the justification.

However politics rules, and the public had to be convinced that opposition to this “right” constituted bigotry. New York's governor is seeking to prevent any New York officials from traveling to North Carolina in order to pressure the state to restore the rights of this oppressed minority. (And the same tactic is being used by others.) It should be remembered that New York State is the home of New York City, America's largest city – a city that has already decided that public urination is not nearly as offensive as we used to think. Although it used to be a cause for arrest, a summons is all that is warranted nowadays. Perhaps the modern approach is to eliminate bathrooms entirely, allowing anyone to rid him-/her-/it- self of internal evils wherever. Or, at the very least, to eliminate all but unisex public rest rooms.)

Perhaps individual rest rooms are the answer; rooms where anyone can go and stay for as long as he (don't infer any sexual bigotry by my use of the word) wants. It would require much more space than is used now and be much more expensive, but it would respect the rights of everyone – except those who demand that everyone else accept his choice of gender.

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[This essay was begun on March 24^th. Today is April 4^th. Unfortunately this screed has taken far longer to write (type) out than is usually the case. Those who know me will understand why; those who don't will, in all likelihood, neither notice nor care. In any event, however, it's the thought that counts.]

The Only Question

Note: This was begun a little over a year ago but I just found it on my computer. Please pardon the old news (an oxymoron, isn't it?). Also note that it was from the time I used end notes, so I'll continue with them as I finish this essay. And if the content is similar to that in one or more of my other essays, I'm sorry. I'm only conveying last year's thoughts.

I heard on the radio yesterdayⁱ that the odds on the Chicago Cubs winning the World Series in 2015 had dropped from one in forty to one in twelve. It seems that they had just spent one hundred fifty-five million dollars on a long term contract for pitcher Jon Lester and the team was expected to do far better with him on board. Ticket prices will also probably go up but I don't care. I'm a Mets fan, and I live in New York. (Anyway, an important question it raises – one for another time, though – is “What is reality?” Dealing with this situation, we all know that whatever the Cubs do they don't have a chance. They can spend all the money they want, or have – or hope to have, but a World Series win will always be out of their reach.ⁱⁱ The Mets, on the other hand, ...ⁱⁱⁱ)

(There was also a story about an asteroid that will pass within three million miles of earth^iv in 2047. The likelihood that I'll be around then is moderately low, so I'm not too worried about that either. At least not yet.)

Today's news had such important items items as these. There are other stories that have been in the news recently and they've made me think about all manner of things – some important and some of no consequence.

News reporting is supposed to raise questions. Depending on the nature of the reports the questions may be different. Variation will also relate to the perspective of the questioner. The poor, for example, ask different questions from the rich – questions sometimes echoed by their supporters, and even by people who think they are poor. The strident controversy involving the Occupy Wall Street Movement, its participants, and its spinoffs, typifies this kind of a situation. And I want to spend a little time discussing some of the issues that relate to particular groups. (But I won't bother with Wall Street. It's too much a matter of fad and fashion rather than substance. I'm more interested in controversies that are less populist-driven and will be around longer.)^v

So let me illustrate my point that different populations have different concerns and different questions by citing two controversies that seemingly involve relatively few people. At least directly. (But they really concern us all.) Both have been the sources for debate and disagreement – often vehement. They raise the a very basic question. The first deals with the right of citizens to refuse to pay for activities that they oppose. We've probably all read of instances when a citizen protested the use of his tax money for the military. He didn't believe in war – or perhaps a specific war – and chose to withhold that part of his taxes that would be credited to the Defense Department. He considered the tax a violation of his religion.

The second controversy regards the rights of individuals with gender dysphoria. At least one court has ruled that such people are entitled to use whatever rest room was most comfortable for them.^vi Their gender preference was accompanied by what was determined to be a constitutional right to express it by rest room choice.^vii

The stories are very different, and the matters that they raise as well. But there are some questions they raise that apply equally in both cases, as well as in numerous other contexts, and I shall try to discuss them. If I am successful it will become obvious that there is a single uncertainty – a single issue – which has to be considered irrespective of the scenario, if those problems are to be fully understood. And I am acutely aware of the difficulty faced. I know the question. But I don't know the answer.

Perhaps I don't know the answer because I'm not a lawyer, let alone a Supreme Court Justice, but the question involves the rights of our citizens. The Constitution – specifically the Bill of Rights – guarantees us certain freedoms and protections. One is the assurance that an individual's beliefs and religious practices are outside the ambit of Congress's power to legislate or control. The meaning of that freedom, like the meaning of the entire Constitution, is the subject of many interpretations and differences of opinion. Without discussing and dissecting them, without arguing about whether the interpretation should depend upon what those who formulated it said or what (we believe) they meant, our government and our courts have taken the approach (in terms of taxes for the military) that individuals cannot decide for themselves that they will not pay for the defense of our country, even if their religion seems threatened. We similarly don't allow an atheist to opt out of taxes that fund a chaplain for Congress. And we permit tax exemptions for religious institutions. We have chosen a practical, and politically acceptable, solution to the problem. Perhaps we “understand” our position to reflect what the Founders believed and wrote, but the reality is that we “understand” the original document to say whatever we believe, notwithstanding any claim that it actually represents the intent of those who wrote it.

When it comes to gender dysphoria, however, the debate centers not on the “rights” of one group, but two, the first comprised of those who suffer from dysphoria and who wish everyone else to accept their new identity – after all, their gender is a private matter^viii – and accord it the recognition due one with a similar identity from birth. The second group includes those who believe their own rights are compromised when individuals who are unhappy with the sex into which they were born invade their privacy. The courts have adopted the position that the rights of the dysphoric take precedence over those of the euphoric. They can decide for themselves. It is hard to understand this to have been the position of the Founders since it is unlikely that they would have even given the concept any thought. Irrespective of any claims by members of the judiciary, the subject is not covered in the Constitution, no matter how you construe its words. But the bench has chosen sides and must find justification for it.

The basic uncertainty – and it will remain so for a long time – revolves around our rights as American citizens. It involves the question of beliefs, religious and otherwise. It is a basic constitutional issue. It bothered the Founders, and it was a question that they thought they had solved with the Bill of Rights. Both scenarios I have cited involve those rights and beliefs but suggest that we'll solve the questions day by day. Or, actually, they'll be decided for us.

The concept of gender dysphoria is a matter of deeper and more consequential belief than the Cubs winning a World Series, and that's saying something. People hope and pray for the Cubs. But they know that the ultimate outcome is out of their control. Not so those unhappy with their physiognomy, who prefer to take their beliefs and their sex into their own hands.

I        December 10, 2014.

ii       Actually the Cubs did pretty well last season. In fact they nearly made it to the World Series. “Nearly,” of course is the key word, and their failure to “close the deal” typifies their fate. “Wait 'til next year?” Don't bother. It won't help.

iii      Alright. They didn't win either. But they got closer.

iv      From an astronomical point of view that's apparently a “near-miss.” Actually it sounds to me more like a “near hit.”

v        It's a year later and I haven't heard much about it recently. People are protesting other things nowadays.

vi  https://www.lifesitenews.com/news/maine-high-court-orders-school-to-open-girls-restrooms-to-transgendered-boy

vii      More cases have been litigated subsequently with varied results.

viii     “Privacy,” though not ever found in the Constitution, is “understood” to be there by a majority of the Supreme Court. It is a Constitutional right. They are what they believe themselves to be.