Laws and Flaws

In the Supreme Court’s ruling in the Hobby Lobby case, Justice Ginsberg, in her dissenting opinion, made the point that ‘closely-held’ corporations could now use their deeply and sincerely held religious views to circumvent long-standing anti-discrimination laws.

Since it really isn’t all that hard to justify just about anything based on someone’s religious views, she correctly noted that the court has “walked into a minefield” in this ruling.

Given the ideological activism of the Robert’s court, it most certainly will not be the last. Yet, this wasn't the first time that religion was used to provide exemptions from the law.

On August 17, 1789, the 1^st Congress held discussion and debate on the proposed first ten amendments, what became the Bill of Rights. Like other passages of the Constitution and its amendments, every word in it was scrutinized and examined with granularity.

The 2^nd amendment was no exception. One proposal was to include an exemption for religious purposes, to relieve some from the duty of bearing arms:

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms[1].” (emphasis added)

Worth mentioning is whether or not to allow for religious exemptions suggests that members of the 1^st Congress were considering making serving in the militia mandatory. If it wasn’t mandatory, then an exemption for whatever reason would be unnecessary.

And, if it were to be mandatory, then, of course, it would also be organized, i.e. ‘well regulated’. That in turn, would put to rest the idea of the lone patriot, armed to the teeth, bravely defending liberty against the ravages of an oppressive and tyrannical government bent on denying personal freedom.

In fact, in another earlier version of the amendment held this passage:

“A well regulated militia, composed of the body of the people…”

the second clause was removed because it was thought to be redundant and therefore unnecessary. Had the clause as written above survived the debate, there would be no confusion whatever regarding whether the authors were talking about the people’s collective right versus a person’s individual right.

Akhil Reed Amar, writing in The New Republic[2], suggests that if the amendment were written in the modern language it would read:

“An armed and militarily trained citizenry being conductive to freedom, the right of the electorate to organize itself militarily shall not be infringed.”

Amar refers to this as a ‘communitarian’ reading, as distinguished from either a statist (read: gun control) or a libertarian (read: gun rights) reading. The preamble reads “We the People” for good reasons: to establish this new government for the collective benefit of its citizenry. The militia, then, was to be summoned by the government, yet stand outside of government.

Amar continues with a comparison of juries. Like the militia, it is summoned by the government and is comprised only of qualified citizens. Twelve people coming together of their own volition and declaring another guilty is illegitimate under the Constitution. It must be done under the auspices of the government. So too, a militia is only legitimate when comprised of qualified citizens operating under the aegis of the government.

During the debate to include the religious exemption, Elbridge Gerry asked “What sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty…The Assembly of Massachusetts, seeing the rapid progress that administration were making to divest them of their inherent privileges, endeavored to counteract them by the organization of the militia…” (emphasis added).

Thanks to 60 years of special-interest groups’ manipulation of public opinion, there’s been much debate about the 2^nd amendment and what it means, or more importantly, what the Founding Fathers meant it to mean. Oftentimes this debate comes down to whether the 2^nd amendment’s intention was to guarantee an individual’s right to bear arms, as opposed to a militia’s right.

There is a plethora of documentation describing what the Founding Fathers meant by the 2^nd amendment, perhaps none better than the 2^nd Militia Act of 1792, written, debated, and voted on by the same men who wrote the Constitution and the Bill of Rights. This act defined just how well regulated the militia was to be.

Many of the founding fathers were lawyers, men who knew the importance of words and their meanings. So when they included the term ‘A well regulated militia’, they were being intentionally specific. If the authors of the 2^nd amendment meant for it to be an individual right, they would not have included the term ‘militia’ at all.

In the Cato Institute Handbook for Policy Makers (2009), David Hardy states that the “right to bear arms” is an ancient right[3]. In fact, it wasn’t so much a ‘right’ as it was an obligation. That obligation was to be prepared (armed) to protect the King from insurrection.

What is omitted in the text submitted to the Congress by Hardy is the concomitant and superior aspect of the requirement of the populace in those ancient times to carry the burden of the cost and maintenance of said arms, all for the benefit of the King.

What else is omitted in the report is the real ancient regulations that went along with the imagined right. In 1548, a law of Edward VI required people who "shoot guns" to register with their local justice.[4] This, along with size requirements of longbows (the original ‘arms’ of militias) was the origin of the well-regulated militia. Many of these 'regulations' have survived and are incorporated into the 2nd Militia Act of 1792.

The now widely-discussed idea of ‘militia vs. individual’ can be terminated easily. What did the authors of the 2^nd amendment really think a militia was?

States exercised militia drafts in the late 1770’s to maintain the Continental Army[5]. The ‘well regulated’ aspect came into play after the Revolutionary War, during which Washington would regularly report back to John Adams (and others) the difficulty he was having in conducting the war, in part to what some British Loyalists referred to as the “rabble in arms’ that didn’t deserve to be called an ‘army’[6]. Washington’s army was not well-regulated and that made conducting the war considerably more difficult.

So when time came to amend the Constitution, this concern was at the forefront of the author’s minds. They wanted to secure the newly established country from attack, particularly from the British, who they suspected of attempting to retake the colonies.

In rejecting the religious exemption clause of the draft amendment, Gerry said:

“…this clause would give an opportunity to the people in power to destroy the Constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms[7].”

Gerry was concerned about the creation of a militia comprising members of some particular religion, or excluding one or another religion from participation altogether, of twisting the purpose of the militia for political purposes.

In removing the threat that the 2^nd amendment could one day be construed to favor one religion over another, members of the 1^st Congress made the 2^nd amendment stronger, if not more ambiguous. In the Hobby Lobby ruling, the Robert’s court, in an act of ideological judicial activism, has now made the 1^st amendment equally as ambiguous, and weaker, as Elbridge Gerry once feared would happen to the 2^nd amendment.

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[1] Robert P. Williams, “The First Congress March 4, 1789 – March 3, 1791: A Compilation of Significant Debates”. Exposition Press Inc. Jericho NY 1970.

[2] Akhil Reed Amar, “Second Thoughts”, The New Republic, July 12, 1999.

[3] “Historical Bases of the Right to Bear Arms”, Report of the Subcommittee on the Constitution of the Committee on the Judiciary, U.S. Senate, 97^th Congress, 2^nd session (“Other Views”).

[4] “To Hold and Bear Arms: The English Perspective”. Lois G. Schwoerer, Chicago-Kent Law Review Volume 76, Issue 1.

[5] “The Evolution of Military Conscription in the United States” Timothy J. Perri, The Independent Review, Volume 17, Number 3, Winter 2013

[6] David Mcullough “1776”, Simon & Schuster, 2006

[7] Ibid.

The Myth of John Galt

“We never think entirely alone: we think in company, in a vast collaboration; we work with the workers of the past and of the present. [Across] the whole intellectual world, each one finds in those about him the initiation, help, verification, [and] encouragement that he needs”

Antoine Sertillanges, La vie intellectuelle, 1920

No one knows who it was that first discovered iron, but legend has it that a man named Magnes who lived in an area of Greece called Magnesia was the first to notice the phenomena of magnetism. His dog was probably named ‘Maggie’.

Less legendary are the writings of Lucretius and Pliny the Elder[i]. Later, it was Hans Oersted who showed that magnetism was related to electricity, and it was left to Maxwell to codify the phenomena and establish the basis for the electromagnetic theory.

From there, it was a whole cast of actors, over many years, each making their own contribution, that lead to the innovation of the electric motor[ii]. John Galt, hero of Ayn Rand’s second-rate work of fiction, Atlas Shrugged, ‘took’ these ideas and incorporated them into his imaginary ‘static motor’.

The same dynamic occurred with respect to machine bearings, without which any motor would be worthless.

Henry Timken is credited with the invention of the roller bearing, and was awarded patent number 606635 by the United States patent office[iii]. But roller bearings were actually invented thousands of years before Timken was even a twinkle in his mother’s eyes.

The first use of roller bearings was by the ancient Egyptians, to build the pyramids. And even they couldn’t have made use of the idea without the invention of trees, and there’s no consensus on who invented them.

One can now extrapolate this theme of continuity to the invention of Reardenite.

The point of all this is that no one stands alone in space and time, no solitary figure changes the course of history. And, when there is a need, someone will step in to fill that need.

Rand, who claims to espouse values that can only be derived through logic and observation, fails to notice the continuity of the innovative dynamic: one person improves upon another’s work; one person sees the possibilities that others overlook, or one person combines the work of several others and ends up with an entirely new product.

In each case, as it is in reality, one adds to what’s already there, made possible only because that previous person did the same thing. Collectively (that word!) this is called history, which is a function of reality, unlike Galt, which is not.

None of this would matter if not for the many acolytes of this 3rd rate fantasy. Too many of our current policy makers and influencer's read the silliness that is Atlas Shrugged (usually while at a young age, more susceptible flights of fancy) and decided that she’s right. And worse. Among many of Ayn’s acolytes are those who cherry-pick aspects of her worldview, discarding the very threads of logic that would otherwise make it whole. 

In the same way that the flu spreads from one person to another, so has Rand’s self-defeating philosophy spread, and the result is that today we have many people in our society who fancy themselves as clones of Galt, who espouse her philosophy.

Paul Ryan fits this bill. This man is in a position to affect every person in the country, yet demonstrates no abilities that would legitimately place him there. Sure, he’s graduated college, but he parasitically used his father’s Social Security benefits to so. And, true, he has managed to get himself elected to congress. So did Gopher, from The Love Boat. So, no bragging allowed.

The personal independence that the philosophy embraces would not be possible without the sacrifices and hard work of those who came before, in many cases the sacrifice of others was a product of altruism, a despised activity in her constructed universe.

Never mind that many of these same people have never accomplished anything on their own, at the time the book was read by them, and therefore had no real-life experience to compare the fiction to. For someone such as Ayn Rand, who repudiates the philosophy she’s invented through the sheer implausibility of the notion of the ‘independent man’, to inspire others to a pretended state of independence, the irony of it all is invisible and therefore unreal.

Just like John Galt.

[i] http://www.howmagnetswork.com/history.html
[ii] For a very well defined and interesting timeline of the electric motor, see http://www.eti.kit.edu/english/1376.php and http://www.eti.kit.edu/english/1390.php
[iii] http://inventors.findthebest.com/q/387/2770/When-did-the-famous-inventor-Henry-Timken-invent-Roller-Bearing-for-Vehicles-Roller-Bearing-Tapered-Roller-Bearings

Falling Hard While Falling Short

You hear an awful lot from politicians, conservatives mostly, of how important the private sector is and how the public sector should be eschewed. They seem to forget, exactly as they are speaking those words, that they themselves are working in the public sector.

Maybe the reason we hear this repeated so often from conservatives is that they really do know how hard it is to work in the private sector and they’re trying their best to avoid it by getting elected or, if already in office, to stay there.

And, if not public office, at least a friendly think tank assignment.

It is a dog-eat-dog world, after all.

By working in the private sector, one can focus their talents on practicing self reliance and avoid the temptations of receiving public benefits of any sort, gumption...bootstraps...get up and go (but not this kind). 

So the narrative goes. Sounds good, at least at first blush. Yet, how come so many of those that espouse this philosophy do not adhere to it themselves?

Paul Ryan, a front-runner for a leadership position on the Hypocratic Party, is an excellent example of this phenomena. He works hard to try to deny others' government benefits that he was able to take advantage of. Then, he used the education he got to largely avoid working in the private sector. Why?

Could it be that Ryan feels it’s a lot easier to tell other people how to live, what to do, than to live up to those ideals himself?

Ayn Rand’s name often comes up (she is his hero), when someone invariably mentions the ‘makers’ and the ‘takers’, as Ryan has been known to do. It turns out she herself became a taker in her later years, receiving both Social Security and Medicare, after railing against any form of government assistance, yet she saw no irony in it, when she needed it.

Imagine. The Queen of Self Reliance relying on someone other than herself.

(One of Rand's biggest followers, Nathan Blumenthal (who went by 'Nathaniel Branden', in order to incorporate Rand's name in his) had an affair with Ayn and after he lost interest in the John Birch Society's pin-up girl, began seeing another someone who wasn't his wife. Ayn found out, excommunicated him, which led him to contemplate whether the "Collective" (Ayn's ironic term for her inner circle of friends) would try to assassinate him. Fun group, no doubt.)

This begs the question: If it’s okay to take Social Security, Medicaid, etc. with the justification that your own money was put into it and therefore, one is entitled (I apologize for my language - I hope there are no children in the room) to it, okay...okay – but then you have to stop criticizing others (like Ryan does, but spares any criticism of Rand) who are receiving, or have received, Social Security.

If, on the other hand, you maintain the position that Rand became a ‘taker’, then you must denounce her and her philosophy and never repeat it again.

We also have another member of the Hypocratic Party, Ron Johnson, purported job creator, famed Tea Partier, is another candidate for Hypocratic Party leader. This former CEO of Pacur LLC, a company which received a $75,000 federal grant in 1979 and between 1983 and 1985 used industrial development bonds to fund plant expansion.

Ron Johnson, Senator from Wisconsin, is an admirer of Rand. He's another pretender, posing as a self-resourceful businessman who tries hard to make it sound like he's all bootstrap. Except he isn't. He claims that he and his brother-in-law started Pacur. while this claim is technically true, it is also only technically true. The new company had in reality been in operation, and simply took it's one customer and re-named itself.

Again, nothing wrong with this, and at least it is in the private sector. Yet to hear Johnson talk about it, he make it sound as if he did it on his own. The reality is that he caught a break through the public assistance with loans and grants. That, and marrying a woman who's family had a thriving business didn't hurt, either.

And there, right there, is the rub. Both Johnson and Ryan caught a break and that break is what made the difference in their lives, and surely in the lives of their respective families as well. Others who would benefit from the benefits Ryan got, for instance, wouldn’t be able to leverage those ‘breaks’ as well as he did because we all don’t come from wealthy families to begin with. This group would be using that money to survive, not to thrive.

But if you get a break that’s available to anyone and after you get that break and no longer need it, you fight to deny that same break to others who do need it and are currently in the same boat you were in when you got it, is hypocrisy.

When you hold a position of power from where you can achieve that goal of denying other’s what you once had, then you are in the lead for the Hypocratic Party’s nomination.