Predicting The Future

The hardest thing to predict is the future.

That idea is so old that it's long past the cliché stage. But we never stop trying. For example although we may want to know when the Messiah is coming (for the first or second time depending on your theology), our sages have never been able to come up with any kind of prediction that has proved true or that is likely to do so. Indeed, we are taught that this is not something we should be speculating about.

Still, through the ages, we've been fascinated by the possibility that we might be able to foresee what is going to happen (please forgive the tautology). From the ancient oracles through Nostradamus, and to Jeane Dixon and other similar personalities, we've wasted undue attention to the interpretation of “signs,” intestines, tea leaves, Tarot decks, crystal balls, and the like as we plan our lives. We've made astrologers and psychics rich.

And we've also contributed to the coffers of pollsters and the media, by seeking and studying their “scientifically-based” guesses about our future behavior. Often, but certainly not always, they're right. Polls and surveys have long been used in the planning of political campaigns, business models, product offerings and similar enterprises, while others, for example those who inform us of the latest fashions and the music that's likely to be popular – rather than foresee they try to force the future. And because we're so easily led, their prophesies are often self-fulfilling.

One of my biggest heroes is Harry Truman. He was viewed as an undistinguished senator who made it to the vice-presidency because other candidates were unacceptable. Yet he has turned out to be what most historians view as one of our best presidents. Whether or not you agree with his decisions, and the continuation of Roosevelt's nuclear policy was one of them, it is clear that he successfully shepherded our country through a difficult period and made it great at a time when the world was in turmoil. And he did it his way – with strength and determination. Notwithstanding predictions of his failure (polls and “Dewey Wins” headlines for example) he led America through a difficult post-war period; notwithstanding “informed” guesses that he'd be indecisive, and criticisms that he didn't have the knowledge and the background for what would certainly be a difficult and torturous responsibility, he demonstrated that this very responsibility brought out the knowledge and the wisdom of a man who represented the highest of our values and the will to achieve them.

I raise this idea now because it is three days before the inauguration of our newly elected president, Donald Trump. By the time this essay is published and you read it he will have been in office for a year and you'll be able to make a preliminary judgment of his performance. Right now what we're hearing dominating the news is a very negative representation of his qualities and ideas. He is viewed by the media as ignorant, thin-skinned, impulsive, bigoted, and egocentric – and that negative assessment is conveyed daily (and strongly) to everybody who happens to read or hear what they have to say. The media's view is that he hasn't the temperament, background, or knowledge to help him through what is likely to be a difficult and torturous responsibility. There are daily protests of his election and statements that his election was “illegitimate.” (It should be noted that those protests come, largely from supporters of Secretary Clinton who, though not trusted by a majority of Americans, was viewed as “the lesser of evils.”) Other countries are accused of interfering in our election process (something America doesn't hesitate to do around the globe when it suits our purposes) making the election indefensible, irrespective of its fulfillment of constitutional requirements.

Donald Trump will be a minority president. While he received a majority of electoral votes, the same was not true of the popular vote and, as periodically is the case, there will be a call for the revision of the Constitution and an amendment that makes the determination of the president a popular decision rather than reflecting the choice of those who represent the diverse needs of the states that make up our union. Perhaps rethinking of the issue is justified, but it isn't as clear an issue as it is characterized, and it isn't the subject of this essay. Donald Trump is our President and we have to get used to that fact, at least until the next election.

The issue I want to address is the idea that some have already predicted what will happen during his administration. There is no question that some of the reservations that people have about him are valid. At least (to me) at the time of this writing. Consequently there are those who feel that his impulsiveness will lead to war. It is of no consequence that we have been at war every day of the eight years his predecessor was in office. Some are certain that he will divide our country. No mention is made of the fact that we are already more divided than we have been in previous years, for a variety of reasons – some based on the policies of the administration which the new president followed. There is also a fear that the poorer among us will suffer from any economic changes that will occur under President Trump, but no acknowledgment of the fact that it was those people, dissatisfied with the current situation, who elected him. In short, the current opposition (I don't know what it will be like a year from now) seems to be basing its opposition on ideological grounds rather than reality.

I must admit that President Trump wasn't my choice. And I am fearful of what his administration will do, but the reality is that our country has survived predictions of doom as well as prophesies of glory. There are times we've “taken a lickin' but [kept] on tickin'.” Only time will tell. Our guesses are of no consequence. All we can do is hope for the best.

January 17, 2017

Continuing The DACA Overload

However they came to the United States, and irrespective of who's to blame, the 800,000 or so individuals now designated as “dreamers” are here illegally. They're called “dreamers” because it's a title that invites sympathy. Their defenders claim that they're honest, hard-working, tax-paying, loyal Americans who deserve our thanks and support, and who should be allowed to stay with a path to citizenship provided. There should be an amnesty, like the one afforded those who fled our country during the Vietnam War.

Whether or not that view is merited, the fact remains that they're here illegally. DACA doesn't change that. In a country that purports to accept the position that no man is above the law, somehow we are sympathetic to a violation of the Constitution by a President sworn to uphold that document. He has stated publicly “I do solemnly swear (or affirm) that I will … preserve, protect and defend the Constitution of the United States.” It says so in Article II, but the document does not give him the authority to decide what the law should be, nor that he may decree what he thinks it should be.

Among the reasons we declared our independence, and clearly written as the final justification in the preamble to the Declaration of Independence, was that “The history of the present King of Great Britain is a history of repeated injuries and usurpations all having in direct object the establishment of an absolute Tyranny over these states.” We rejected the idea that all power would reside in one individual, and we placed legislative responsibility elsewhere.

It states, at the beginning of Article I, “All legislative Powers herein granted shall be vested in a Congress of the United States.” All. Among the powers specifically assigned to Congress was to “establish an [sic] uniform Rule of Naturalization.” It was Congress's prerogative to decide issues of immigration, and it did so. And when pressed to ease restrictions on minors smuggled into the United States it did not do so. Whether the choice was a wise one or not, it was their choice, and the unilateral declaration of the President was a violation of his oath to defend the Constitution.

But he did it. And he secured the support of a sympathetic group – the “dreamers.” And their supporters. Still, however, notwithstanding the President's actions, they were not “dreamers” but illegal immigrants. However the costs of deportation (if we move in that direction) – politically, economically and in terms of our emotions and our appearance internationally – would be devastating. It would thus be almost impossible, for a variety of reasons, to do so. President Obama has won. Whatever the legality of his action, it will remain in place. Lawsuits to overturn President Trump's suspension of the amnesty, however attractive they may be politically and emotionally, don't alter the Constitution.

There will, however, have to be a clear expression by Congress of the law they favor. (And, perhaps, a reiteration of the Constitution's delineation of the functions and powers of the President and Congress.) It should be made clear that, from that time forward all illegal immigrants, however they reached our country, would be returned to their country of origin. No lengthy procedures will be required if they cannot prove their legal status and the date of their arrival or residence. As for those already here, in an attempt not to break up families, those under a specified age, whose parents are present, should be returned with them to the country of origin unless there is a justifiable fear of harm that might come to them – in which case we should discuss with their homeland's authorities why there is such a risk.

As for the remainder of the group, they should be quickly vetted for illegal activity apart from their immigration status. If such information is found, they should be tried for their alleged crimes and sent home after completion of any sentence if convicted. They should be treated as any suspect would be if he were a citizen. Those who are deemed to be possible criminals should be subject to the laws of the country in which they reside. And those who are simply living at the expense of taxpayers should do that in their countries of birth.

Those left after the initial screening should have a path to citizenship – not because they're entitled to it by law but because existing situations, even if their origin is questionable, are sometimes impossible to reverse. The path should be more difficult than that for those who have followed a legal course, but it should be available. Those who choose not to accept it should remove themselves to a place where they feel they would fit in better.

I offer these thoughts fully cognizant of the fact that I am supporting an action I consider completely illegal. It's my hope, however, that the President and Congress (and the courts for that matter) will revert to the roles set out for them in the document that they swore (or affirmed) they would uphold. Policies based on emotion but not supported by law may make us feel good about ourselves individually, but they weaken us as a nation.

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?

A Few Political Thoughts

Antonin Scalia died yesterday. He was a Justice of the Supreme Court and had served since 1986. He prided himself as being an “originalist,” one who considered the original intent and meaning of the Constitution as the principles by which cases should be understood and decided. It's a conservative view – one that frowns on the use of modern social concepts in the interpretation of the law. He was one of the conservative voices on a Court that alternated between liberal and conservative opinions with alarming irregularity. Its positions were not completely satisfactory to either constituency. Which was the cause of much anxiety among citizens whenever a case was to be decided about which they had strong opinions.

Antonin Scalia died yesterday. The President will now have the opportunity to nominate another candidate for the Court. He has already appointed two members – both staunch liberals reflecting his own political philosophy. Because they replaced one moderate liberal and one moderate conservative (though both had been appointed by Republicans) his appointments changed the nature of the Court. In all likelihood he will nominate another liberal to replace the conservative Scalia in an attempt to establish a firm liberal majority before his term in office ends. Because the Justices serve for life, such an appointment appointment would affect our society for many years.

President Obama will assert his right and responsibility to do so. It is his Constitutional duty. And he will contend that he is the only official elected by all the people and, thus, representative of their wishes. And he will remind us that it the duty of the Senate to pass judgment on his appointee. “Advice and consent” of the Senate are Constitutional requirements, and the Senators must not shirk their responsibilities. And if they do pass on his candidate, refusing to accept him or her, he will make a political year issue of their “obstructionism.”

President Obama will not mention that while he received 51.2% of the popular vote in 2012, he only had the approval of 43% of the population in 2014 (Pew). Any claim to his popularity and representativeness should be taken with those numbers in mind. And it is hard to ignore the fact that voters have since chosen Republican (conservative) majorities in both the House of Representatives and the Senate. The latter is more of a problem for the President who will challenge them to perform their mandated responsibilities as he performs his. He will not mention his end run around the Senate when he declared the treaty with Iran to be an “agreement” which does not require the Senate's consent. Indeed, he cajoled the Democratic minority in the Senate to prevent a vote there so he wouldn't have to veto Congress's will (and the will of the American people) which would lower his popularity still further. Put differently, he prevented the Senate from performing its Constitutional responsibility when it helped him to do so, but he will insist they perform it when he believes that this will be to his advantage.

It is my hope that they will remain firm and wait to see the will of the people in 2016 before making any decision on candidates put forth by the President.

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For better or worse, the United States, which was, at one time, the leader of the “free” world, has abandoned that designation. We once thought of ourselves as the world's “policemen” with the responsibility for protecting the weak from the tyranny of their leaders (primarily, of course, ones who disagreed with our policies). Our stance now is to defer to the United Nations and the European Union, and to the leaders of countries we once viewed as enemies. We talk and discuss problems. Perhaps that is better than taking a stand or taking action. As Churchill said, “To jaw-jaw always is better than to war-war.” But the recognition by other nations that we will only “jaw-jaw” gives them reason not to take our threats, red-lines, and deadlines seriously. In many senses we have returned to the isolationism of our past. Perhaps that is wise, but it implies the acceptance of injustices which we will permit to exist irrespective of our proclamation of American ideals.

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At the moment, the leaders in the race for the Presidential nominations are Donald Trump and Senator Bernard Sanders. Because they are both disliked by so many voters, former New York City Mayor Michael Bloomberg may enter the race. It would be an interesting lineup. In a country that spawned the “Occupy Wall Street” movement and numerous other similar crusades against the oppression by the rich of all of the rest of us, in addition to an avowed socialist our choice would be between two billionaires. And in a country with (according to the ADL) more than 10% antisemites among the adult population – a country that has always had a Christian President (we can debate about President Obama at another time) – two of the three candidates would be Jewish.

What a country.

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It's “silly season.” It's campaign time. That really started a long time ago and it's clear that some candidates for high office start planning their strategies many cycles in advance of their actual goals. Some countries limit the hullabaloo to a few weeks, but politics is an American obsession. We may not agree on anything else, but we love the time when we can argue. We all agree on that.

I'll probably discuss these issues again at another time, but I couldn't help commenting on them now. Silly season is contagious.

The American Way

According to yesterday's Wall Street Journal (January 4, 2016), in an article written by Siobhan Hughes,

“[T]he House is expected to vote on a measure to defund Planned Parenthood and repeal part of the Affordable Care Act. The measure, which already passed the Senate as part of a procedure known as reconciliation, is expected to be vetoed by President Barack Obama.”

Predictable, but welcome. Not that I either oppose or favor Planned Parenthood or the Affordable Care Act (I have strong feelings on both subjects but they're not pertinent here – indeed, they're impertinent) but the procedure itself (an over-ride debate and vote following a presidential veto) is one that has been functioning for a long time but is ow all but dead. President Obama is the first President since Lyndon Johnson not to have a veto over-ridden.

Congress doesn't work, and we're all paying the penalty for that. We live under a system that favors politics over policy. There's no room for compromise. Congress has been paralyzed, and when different parties control the House an the Senate it is unlikely that any controversial legislation will be passed. Even when, as is true now, one party has a majority in both houses, the need for a “filibuster-proof” majority in the Senate (sixty votes – virtually unattainable) to end any threat of an endless harangue, makes it unlikely to happen. Virtually all the issues boil down to a clash of ideologies between the parties, and sometimes within them. Believing themselves to be warriors for “right” and “truth,” those with strong opinions are unwilling to compromise with “evil.” And they are also unwilling to allow what they view as wrongheaded bills to be passed. They'll use the virtue they see in their obstinacy “courage” in the next election campaign as what they expect to be a selling point.

Sometimes, however, what is being debated has, in their minds, some positive features. They're happy to compromise on those proposals, as long as the opposition accedes to their most cherished views. That, unfortunately, is the goal of the other party as well. So the result is often – though not invariably – a stalemate.

As noted above, another tool of a minority in the Senate is the filibuster. Noble in purpose but subject to abuse, this tool has changed over time. As Common Cause puts it,

“American government is based on the principle of majority rule. But in the U.S. Senate, a minority has turned that principle upside down. The filibuster rule, designed to protect the minority's right to be heard, has been transformed into a weapon that allows just 41 of 100 senators to squelch debate and block action on any bill, no matter its importance or public support.”

Originally a filibusterer had to speak continuously, and the Senate could not take up any other business during such an action. It took a great deal of effort and dedication for a Senator to undertake such a tactic. It was serious business. But now, the Senate

“made it significantly easier to filibuster by adopting rules that allow other business to be conducted while a filibuster is, technically, underway. Since 1975, senators have not needed to stand up on the floor and make their case to their colleagues and their constituents in order to halt legislation. Instead, these “virtual filibusters” can be conducted in absentia.” (nolabels.org)

It's easier now. No effort is needed. It's a great political maneuver at virtually no cost

Apart from convictions, there are other reasons for this self-imposed congressional impotence, but I'll focus on just one. That is the desire to protect the President. If a bill never reaches the President, he doesn't have to veto it. And for legislation that may have broad constituent support, it is beneficial to not be forced to go against the people who elected you.

That, however, in addition to thwarting both congressional and popular wishes, eliminates some of the benefits which might be gained by an end to the protection against the need for a veto. A minority that knows it can defeat any attempt to pass legislation not in keeping with its views, or those of its leader, has little inducement to negotiate and look for a middle ground. If they can prevent their opponents from having their way, why compromise? In addition, this may harden the position of the majority, making them appear to be intransigent. By doing so, however, they might present voters with a clear issue for the next election – but this issue can be muddied by presidential rhetoric.

Since the President gets far more press coverage than any member of Congress, his message will be spread to all voters. That message will probably include the accusation that Congress is unable to accomplish anything, which is just what a minority would like the American People to hear and believe. It's the minority's hope that promises to “make Congress work” will be their path to becoming the majority.

And in addition to accusations of congressional incompetence and inaction, the President will sign Executive Orders to authorize the actions he wants – irrespective of the preferences of Congress and the voters. Presidents do this anyway, whether or not such action is authorized by the Constitution, but in this case he can shift the blame to Congress.

It all boils down to congressional weakness and the presidential acquisition of power. And a change in the filibuster rules which make it easy to avoid responsibility. Like a Senate hold on an appointee or on other legislation (which effectively confers veto power on a senator), the filibuster puts too much power in the hands of individuals and minorities. Such senatorial rules as these – not specified in the Constitution – make us all pay for political actions of the few.

Congress doesn't work. But the problems are not insoluble unless we allow them to be so. Congress can become stronger and more effective if it wants to be. They made their own rules and they can change them – if we force them to.

The UN, The US, And Syria

                                                                               

I expressed my concern recentlyⁱ over the American response to the use of chemical weapons in Syria. I was apprehensive about our standing in the world following the hesitation to act when Syria crossed what President Obama had declared from his bully pulpit to be a “red line,” when his Administration declared that we had proof that they used poison gas on their own citizens. I was sure that the President's decision to let Congress debate the use of force was an error and that the delay in action would be seen as weakness and a lack of resolution. It would send the wrong message both to our friends and to those who oppose our policies. And with an increasing isolationist sentiment among the voters, there was no certainty that Congress would support the President's stated goal of responding to such provocations.

Not surprisingly, both Congress and the President blinked. We have yielded to the United Nations. Although that body has determined that chemical weapons have been used fourteen times, and only the government has stockpiles, the organization cannot decide who is responsible for the use of the weapons.ⁱⁱ But Russia and Syria have come up with a plan whose purported purpose is to inspect and remove control of those toxins from the Syrian government to other nations, and to destroy them. And they have until some time in 2014 to do so. I suspect that Syrian President Bashar Assad is quaking in his boots.

This, however, was the path we chose to follow. To diffuse responsibility, President Obama declared that the “red line” was not his, but the world's, and it was up to the world to respond. And while he was inclined to pressure Syria to comply with international treaties which ban the use of chemical weapons, he would wait for the United Nations determination rather than act unilaterally. Consequently he backed off on his demand that Congress support him in his efforts. He was probably relieved that he didn't have to risk a congressional vote which he would probably have lost, and Congress was relieved that it did not have to go on the record. Russian President Vladimir Putin has gained status and President Assad will probably receive a new anti-aircraft system from the Russians. So, it seems, everyone gained something by the agreement.

More accurately, some gained, and others lost less than they might have. Our government now has time to regroup and prepare alternative messages for the time when there are further developments concerning the sarin and other chemical agents. There are likely to be delays at all stages of the procedure which will be blamed on the ongoing hostilities in the country, and our Administration will “grudgingly” delay any action based on that problem. And even if there is not compliance with the agreement, Syria will be protected in the UN by its good friend Russia, a member of the Security Council with veto power, who will probably claim that the Syrians are doing as much as is possible under the circumstances.

How did we get here? Did we go wrong, and if so, what happened? And what are the implications of our actions – or lack of actions?

In his campaign for the Presidency, Barack Obama promised “transparency.” He assured us that government with him at the helm would respect the public's right to know what was going on. But the only look at what's going on seems to be coming from Bradleyⁱⁱⁱ Manning, Julian Assange, and Edward Snowden.^iv According to an article in yesterday's Wall Street Journal,^v the President ignored his advisers' recommendations to act immediately, choosing to delay any action while he built public support. That decision, however, was not revealed by him.^vi Publicly involving voters in the process was probably seen as the most sensible choice politically, whether or not it was beneficial to the country, and it would provide reassurance that he was on the right track. He was unable to get the desired support, however, and American foreign policy is now in limbo. His performance and his public lectures were viewed as bluster and blunder, rather than confidence and resolve.

It's frightening to consider how we make decisions and how our stance will be viewed by other nations. Iran has already seen that we and the United Nations are unwilling to do more than lecture, and impose sanctions that hurt only their citizens – not their nuclear and military programs. They, and other nations, have seen that delay and deception are acceptable responses to threats that will not be carried out. And this is another example. That is not to say that we should attack every country that does not do our bidding, but that we should carefully consider our public statements and threats before we make them. As matters stand now, we are emboldening our enemies and creating a situation in which those who would like to be our friends must think at least twice about whether to accept “guarantees” from us.

My concerns have increased.

i       Full Of Sound And Fury, September 2, 2013.

ii       Since only the government has the stockpiles, it is difficult not to consider the government as the one that used them, and, after fourteen attacks, the President should have known about the attacks. Surely he has the responsibility for what happened.

iii      Now Chelsea.

iv      However accurate the reports of their revelations are, as I stated in a previous essay (The Big Picture, June 18, 2013), I am completely opposed to the actions they took. They were not “whistle blowers” but traitors who could have raised the questions they did without putting the lives of others at risk and without endangering American foreign policy.

v     Inside White House, a Head-Spinning Reversal on Chemical Weapons, September 16, 2013.

vi      So much for transparency.

Liar, Liar, Pants On Fire

                                                                                 

You think the press is bad? I mentioned recently that only 25% of the people asked by Gallup in a poll taken in June, 2012,ⁱ placed great confidence in newspapers.ⁱⁱ A more recent Gallup Poll (November, 2012) asked how respondents judged the “honesty and ethical standards” of people in various fields of endeavor, and the outcome is quite revealing (apart from the 24% rating for journalists, whom people don't trust even though we all “consult” them). For example, 70% of the respondents trusted the honesty and ethical standards of medical doctors, while only 62% trusted dentists; 41% trusted psychiatrists, and 38% chiropractors. But the confidence in nurses was at the 85% level. Even college professors, clergy, and bankers were considered more honest and ethical than journalists with ratings of 53%, 52% and 28%. Not very good to be saddled with such low levels of trust,ⁱⁱⁱ but better than the press, to whom we turn every day.

There are those, however, whom we trust even less than “reporters” of the^iv news – as unbelievable as that may sound. For example, although 58% consider policemen to be honest and ethical, we only rate the lawyers who take over from them at 19%.^v And the courts are in between.^vi In the case of the judicial system, however, the problem may be less a perception of dishonesty than the appearance of poor judgment or incorrect political outlook.^vii

In any event, consumers don't trust “car salespeople”^viii (8% confidence) or “advertising practitioners” (11%). It appears that lies are more their stock in trade than are the products they sell. Of course, all “lies” aren't really lies. Advertisers have learned how to play on consumers' hopes and fantasies, so they only need to suggest something, or display an attractive image, in order to seduce a prospect and induce a purchase. They don't have to make any claim. Last year over a thousand new perfumes were introduced. With so many already on the market it's hard to believe that any of them broke new ground, but attractive packaging and the imprimatur of a movie star, clothing designer, or other famous personality – one who probably had nothing to do with the development of the scent – and a customer, longing for love or a new “look,” can be convinced to try whatever is advertised so skillfully. (Hope may spring eternal, but when it is stretched too far it is likely to recoil. So second sales may be harder to get.)

And what applies to cars and perfumes applies to other products as well. Whether it's a skin cream,^ix laundry detergent, electronic device, or telephone plan, the new product is far superior to anything before.^x And the price can't be beaten.^xi So what are you waiting for?^xii

There are many others who mislead us or lie to us on a regular basis, and when they tell the truth we don't believe them. In the poll that determined honesty and ethical standards ratings of various professions, insurance salespeople earned a 15% very high or high score while it was 12% for HMO managers and 11% for stockbrokers.

No group is as worthy of discussion, however, as politicians. Although nearly half the population approves of the job he is doing, in a poll taken during the 2012 election campaign, Gallup determined that 5% of voters considered honesty as President Obama's greatest strength.^xiii His oath of office includes a promise to uphold the Constitution, which many consider to be his first lie as our Chief Executive. Before that, however, come his campaign promises (just as they flower for all politicians who are running for office). Fortunately no one really believes them. So after the election, when they are forgotten or violated, no one honestly believes he has been deceived. Anyway, the fault, is that of the previous administration or the opposite party, who created whatever problems exist and who now prevent their solution. Fortunately there are some successes, but they always come despite the opposition of the other party and all the credit belongs to the President and his party.

But the President wasn't listed in the honesty poll so it is hard to compare him to members of Congress. In 2012 they earned nearly a 43% improvement in the perception of their honesty from the year before. Actually they worked their way up from 7 to 10%, so it's a little less impressive than it sounds.^xiv Like those of other politicians, their campaign promises are strictly for their campaigns. So, as is the case with others running for office, they should be judged on the basis of previous performance.

But, of course, it's hard to determine what they've done in before because the past records claimed during an election are unreliable. The usual pattern is that the candidate says wonderful things about himself and his accomplishments while his opponent, in negative ads, defames and accuses him. No. That's wrong. The two defame each other. Claims of your accomplishments are of less interest than what's wrong with your opponent. And the few accomplishments are likely to be bills with attractive titles that mislead the voter about the content and intent. Too often they actually accomplish something other than, or even opposite to, what the title suggests. Caveat emptor. (My favorite – and I've mentioned it before – is the Paperwork Reduction Act which increases governmental paperwork.) But truth in labeling is not required of Congress. And the “transparency” they demand of others certainly doesn't apply to them. It's no wonder that citizens view Congress as a nest of liars.

It should be obvious that a lack of trust is not conclusive proof of someone's deception. Not all politicians are liars. (Whatever the claims they make though, you'd better confirm them yourself.^xv) But after all these years, consistent doubt should make us wary of the bold statements we hear. They want to be elected. They're no different from the rest of us. We want to be liked so we often say things we don't believe in order to please someone else. We don't want to deceive – at least that's not the primary goal – but we want to be liked. Just like the newspapers, the advertisers, and the politicians.

To tell the truth, you shouldn't trust anyone.

Next episode: “If I've Said It Once” -- Words to the wise. Words to the wise.

i      For additional information on the methodology and results of Gallup Polls, see http://www.gallup.com

ii     Although I didn't mention it, the number for television news was only 21%.

iii    Especially the clergy.

iv     “their version of the” news would be a more accurate characterization.

v     It may be unfair to categorize an entire profession this way, but that is the perception of the “street.” It is, perhaps, a cliché, however “perception is reality” and, in fact, it guides our beliefs about the group even if such a characterization is not warranted.

vi     When asked about the Supreme Court in a Gallup Poll taken in June, 2012, 37% of respondents expressed “a great deal” or “quite a lot” of confidence in it.

vii    Barry Friedman writes, in an article in the online edition of “The Nation,” which I read on March 11, 2013 – though the date it first appeared is not listed – entitled (Why Are Americans Losing Trust in the Supreme Court?), “The New York Times reports a recent poll showing the Supreme Court’s approval rating at 44 percent. This represents one of the lowest numbers the justices have polled in recent years and is part of a generally downward slide since 2009. ... A plausible answer [to the question posed by the article] is: partisanship. Polls show a widespread disgust with partisanship in Washington; Congress’s approval rating was at an all time low in May. Although the justices often are divided into left-right ideological blocs, those blocs have recently become identified in the public mind with the Democratic and Republican parties.”

Some citizens also take issue with the Court's occasionally finding in the Constitution what they feel ought to be there, even if there is no evidence that it is. See Lochner v New York and Roe v Wade.

viii   Big talk and small print bring high profits even when performance is low. Those believing the claims are all too often disappointed.

ix     Is pomegranate really better for your skin than cucumber? It seems that in every ad there is a new ingredient which is the answer to all your problems. Except gullibility. We keep hoping and we keep buying.

x      And it will remain so until the next version – even better – is introduced soon.

xi     Often the price can't even be found. That particular bargain no longer exists or the product is sold out. But wait. There's something even better (and more expensive). “Bait and switch” is an advertising device often used to maximize revenues. It's used because it works. “Never give a sucker an even break.”

xii    Don't waste your time thinking or comparing.

xiii   Interestingly, 3% considered his greatest strength to be the ability to lie with a straight face.

xiv   In 2011, when they received a 7% rating, they tied with lobbyists and car salespeople. By comparison, journalists got 26% and funeral directors 44%.

xv   As John Locke said, “The only fence against the world is a thorough knowledge of it.”

The Court In Action

                                                                                                 

It's hard for me to determine if the Constitution is the best form of government possible, but it's what we have. I don't presume to be the best interpreter of it. That's not my area of expertise. I'm neither a historian nor a Constitutional scholar.

I can't comment on the validity of the Affordable Health Care Act that was given the green light by the Supreme Court. It's legal. They said so, and since they claimed the prerogative to make such decisions in Marbury v. Madison I have no standing to do question it. I'm not a lawyer and it's not my area of expertise.

But is it better to be healthy or sick? I can offer an informed opinion on that. I'm a doctor so I have the expertise. Even if I weren't, I suspect that I'd opt for good health if given the choice.

But I don't think that is the issue. Congress passed a statute that provided, under the Constitution's Commerce Clause, that everyone would be required to have health insurance or pay a penalty. It would not be a tax. Raising taxes is a dicey political issue and Congress made great efforts to avoid that pitfall.

Not only that, but when arguing for the validity of that law, the Executive Branch of our government emphasized the fact that this was not a tax and that its sanction lay within the Commerce Clause.

The Supreme Court, however, rejected that argument declaring that while it was not Constitutionally valid under that clause, it could still pass muster as a tax, since Congress had the right to pass such a levy.

The President declared victory since the Court left the Act standing, but he stated flatly that it was a penalty, not a tax. He denied the underpinning of the Supreme Court opinion while accepting the decision itself. He denied the appellation of a tax, which is toxic at any time, but even moreso in an election year.

Whether Congress has the power to assess a tax on those without insurance is not the subject of the debate. Clearly Congress did not want to do so. And the Executive didn't want to defend the statute on that basis. And that is a perfectly valid point of view and action, but the Supreme Court wasn't prepared to accept the will of Congress and the view of the President. The Court, which had assumed the responsibility of deciding what the law was, preferred to declare and legitimize what the Justices thought it should be.

One of the main concerns of many Americans is about what they consider “judicial overreach.” There is a view that the courts have usurped legislative power and made decisions regarding legislation based upon their views of societal needs rather than Congress's. Even without training in Constitutional Law, I doubt that this was the intent of the Founding Fathers.

This decision cannot be seen in any other light. Although the Court rejected the wishes both of Congress and the President, the majority found a way to approve the Act. Referring to a power of Congress which it had chosen to reject, the Court allowed the new law to remaining force even as the President rejected the Court's reasoning. The Court had based its view on a right that Congress had not claimed, because it existed – even if Madison meant something different when he wrote it. The majority found a way to achieve the desired goal of universal health care in spite of the other branches of government. It legislated what Congress had not wanted.

It is hard to argue against health and for the denial of care to everyone, but it is also unreasonable to insist that the State knows better than the citizens who created it. If the courts can justify whatever they consider appropriate, whether or not Congress wants to do so, there is no longer any real balance of powers – no checks and balances. The Court claims the right to decide on Constitutionality, but as such, its mandate is to judge the laws that have been passed, not to find a way to pass their own laws and then find them Constitutional. At that point, Congress, and the Executive, which is charged with the responsibility of enforcing the will of Congress, become irrelevant. If Congress acts in a way that the courts find to be wrong, but the goal is one of which the court approves, the judiciary can write its own law, irrespective of the wishes of Congress.

Our health is critical, but so is the health of our country. And it's our country and our Constitution that are the real victims of the Court's therapy.

Judge For Yourself

(Part two of the discussion on Constitutional changes relating to the Judiciary.)

Republican presidential candidate Mitt Romney says rival Newt Gingrich's idea to send Capitol Police or U.S. marshals to bring judges before lawmakers to explain their decisions is neither practical nor constitutional.

Romney says the answer to out-of-control judges is not to tear up the Constitution and say that Congress is the ultimate power in the country. Instead, he says the Constitution should be followed when it comes to removing judges or reversing judicial decisions.ⁱ

Judicial activism is raising a lot of political hackles. Whether a particular action is justified,ⁱⁱ there is no question that the power of the courts to “interpret” the law also allows them to create it. That is why the ability to appoint Supreme Court Justices (and other Federal Judges) is one of the most important of the President – an idea that is loudly proclaimed in the presidential campaign. It is why judicial policy is such an important part of the debate when politicians frame their platforms. And, to a degree, it's fruitless to argue that the Justices' actions violate the Constitution, since they're the ones who will make such a determination.

A typical example involves privacy. Although it is never mentioned in the Constitution, and despite the Tenth Amendment which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” in Griswold v Connecticutⁱⁱⁱ the Court found that privacy was guaranteed by the Constitution. The First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, said the Court, provided such a guarantee, even if they didn't mention privacy. According to the majority, it existed in the “penumbras” and “emanations” of other protections offered by the Constitution. Thus Connecticut's law against contraception was unconstitutional. This decision was not “reserved to the States” despite the Constitution. And in 1973, in Roe v Wade^iv and Doe v Bolton,^v the same doctrine of privacy was the basis for sanction of abortion – also not mentioned in the Constitution. Because of the opinions of individual Justices about the importance of privacy and the propriety of contraception and abortion, since these matters were not treated in the Constitution, hooks had to be found to justify these personal opinions and judicial decisions. The Court was, in reality, legislating.

It is not at all clear that the Founding Fathers intended that Justices with lifetime appointments should have this power, but that is the way it has turned out, and no one questions it any more. Perhaps, however, that situation should be reviewed. Although “We the People” may have been the originators of the Constitution,^vi “They the Courts” have arrogated to themselves the definition of what “We” meant, and what is right for us. If there is to be any meaningful system of checks and balances, we need to rethink the system under which we live and, possibly, revise it.

Someone has to have the responsibility of determining what our laws mean. That's not arguable.^vii And the judiciary created by the Constitution seems to be the appropriate party. But with the goal of a court system which will consider public opinion – even if it does not accede to it – some alternative measures are worth exploring. After some basic questions are posed.

Should judges be elected? Should they be designated by experts? How can we make them more responsive to public wishes? Should we? How, if we do so, do we protect minorities? Is there any way to review laws passed by Congress, and court decisions? To what degree should public opinion play a part in such reviews?

Before answering these questions, though, it is important to note that “activism” is not solely a feature of the judiciary. The legislative branch – Congress – spends most of its time in activism – framing laws that will govern our actions. We may not agree with these laws but we're bound by them as long as they are on the books. And the executive – the President – will frequently issue “Presidential Orders,” often covering areas of law or procedure that he believes have not been dealt with properly by Congress.^viii In these instances – regarding the legislative and the executive branches – however, at least in theory, the average citizen's opinion will be heard by legislators and the executive (or their staffs) and it could conceivably have some impact. And the various players will be up for election within two to six years. That doesn't mean that they will necessarily follow the wishes of the voters – in fact representative democracy gives them the power to superimpose their own judgments over those of the voters – but it makes responsiveness more likely and provides remedies for dealing with those who wander too far from the wishes of their constituents.

At present, however, those options don't apply to the courts. The executive has the power to make appointments, and the Senate has the responsibility of advising on such appointments and consenting to them, but once the appointment has been confirmed it comes with lifetime tenure. True, a Judge can be impeached, but that is for a violation of the law, not for deciding what the law is. And voters play no part at any point in the process. The Federalists, who largely set the rules now in the Constitution, didn't trust the “people” to make those decisions, only the elite, so the rules reserved the appointment of judges to members of the Federal government – men they believed better able to make such important choices. And they wished the noble individuals so chosen to be insulated from public opinion. They would have the final word and they would never have to justify it. No one could call their decisions into question, and no one could do anything about it.

The time has come to reconsider this system. “We the People” are entitled to have our voices heard in judicial decisions as well as those of the executive and legislative branches. And the only way to do so is by altering the Constitution itself. Because, short of a constitutional convention and a rewriting of the document, major changes must come one at a time, the suggestions I offer are few – if far-reaching.

First of all, some consideration should be given to the method of choosing Justices. The current system of choice by the President guarantees that the appointment will be based on doctrinal issues and, since the Justice is likely to outlive the political administration, the Court's complexion may ultimately be out of touch with public opinion. This is not to suggest that public opinion should be the measure of the law, only that it is subject to change, and legal expertise, not political expediency, should be the main criterion for selection. A non-partisan commission of some kind could recommend a short list of highly qualified candidates – and views on particular issues would not be considered, only the qualifications of knowledge, wisdom, and understanding along with a sense of the popular mood. One from the list of candidates would be chosen by a committee consisting of the leaders of both (or all) major political parties. If agreement were not possible within a short fixed period of time, the choice would go to a preselected group selected by the American Bar Association. Some doctrinal litmus tests are likely to be used. They're unavoidable. But the choice will be less a political one than is currently the case.

And once appointed, the Justices would have the benefit^ix of periodic review. How might this be done? In the age of the internet, access is, or should be, available to all. Whether this is at home or in a public facility,^x every citizen might be given the opportunity to vote on each Justice at (for example) ten year intervals following his or her appointment.^xi The voting website could include a listing of “significant”^xii positions on cases decided by the Court since the individual's previous “review,” with a short evaluation by the Bar Association or another independent group. A Justice could be voted out of “office” if two-thirds or three-quarters of voters felt his (her) views were unrepresentative. In a country having a majority of “minorities,” a nation of the “Melting Pot,”^xiii it is unlikely that anyone would be removed for protecting minority rights. Congress would still have the responsibility of impeachment for legal offenses.

A regular review of Supreme Court decisions should also be held on line. A “bottom line” summary of the decision might be accompanied by short analyses of its impact. Those analyses would be offered by those who argued the case or provided friend of the court briefs. Here voters would have the opportunity to render opinions on the wisdom of the decision. While they would not be able to overturn the Court, their views would provide information for legislators or others who might initiate the process of introducing legislation, or of a constitutional amendment that would deal with the effects of the decision. As was the case with the evaluation of the Justices, and for the same reasons, it is unlikely that minority rights will be compromised.

The non-political choice of Justices, and the giving to voters of the chance to express their opinions on Supreme Court Justices, would represent a start in the process of producing opinions that are more in keeping with the law, rather than the politics of the party in power when the individual Justices were appointed. By allowing voters to express their views regarding Court decisions, the Justices would be put on notice of when their personal opinions are not shared by the public at-large. And it would provide information for those who might want to propose legislation to remedy the issue of concern.

It's likely that many will fear that Justices would be under pressure to bend to public opinion. With evaluation only every ten years or so, that's not likely. But even if it is, is that so bad? We the People should have some say regarding the “final” decisions that rule our country.

Next episode: “Chekhov's Gun” – Consider the alternatives.

i       Associated Press report. December 19, 2011.

ii     Though by whose standards would be difficult to say .

iii     Griswold v Connecticut, 381 U.S. 479 (1965)

iv    Roe v Wade, 410, U.S. 113 (1973)

v     Doe v Bolton, 410, U.S. 179 (1973)

vi      It's not really the case, but I'll deal with that some other time.

vii    Even if you believe the law should be explicit and without the need to be interpreted, there will always be unanticipated situations, nuances, and variations that require the judgment of someone, or some people, who understand the law and the political landscape, better than the average citizen. That, of course, is not to say that the electorate shouldn't have input into interpretations of the law.

viii   On January 4, 2012, President Obama issued several “recess appointments” to positions that were open. The President has this right, the pocket veto, and several others which evade the control of Congress. In this particular instance the Senate – which is supposed to advise and consent concerning such appointments – was not in recess, so the act was probably illegal, but the President considered it justified because he didn't expect help from Congress.

ix    It is assumed that the Justices would benefit from this kind of evaluation. But you know what they say about assumptions.

x     Like a public library.

xi    For more on the use of computers for voting, and the encouragement to do so, see One Liners – Part Two, a prior essay on this site, that appeared December 25, 2011.

xii    Whatever that means.

xiii   And especially if, like Glazer and Moynihan, you believe that “the melting pot metaphor [doesn't] hold water” – that ethnic minorities retain their individual characters and separateness.