Category Archives: Political Science/Specific Issues

Creeping Totalitarianism — We Must be Constantly Alert!

 In various writings the author has observed the dangers of corruption through immersion in too broad a scope of alien influences. Infection from those influences through osmosis is a natural threat. (For just one reference in Holy Scripture of this warning see Psalm 125:3.)

While this country was neither quarantined nor imbued with sterling purity prior to World War II, its projection into Europe resulted in a gradual unconscious assimilation of some of those attitudes and traditions. While possibly only peripheral, some of those attitudes include those which spawned the Sturm Abeilung, Schutzstaffel, and Komitet Gosudarstvennoy Bezopasnosti.

Alert observers have recognized the unconscious — and, perhaps, even conscious — incorporation of certain of those proclivities into American structures and policies over the last seventy-five (75) years. A recent example is an instance of which I learned from a recent article.

A perusal of this article reveals a new and expanded policy expounded in a Federal Bureau of Investigation internal memorandum.


Its implications are incredible, and tend to bespeak a terrifying image of those Nazi Germany and Soviet Union agencies.

Little more can be added by me than the observations in the article. I then only post this to enable a possible further dissemination and awareness of them.

WAYNE A. SMITH
Sanilac County, Michigan USA
10 August 2022

Rescission of the Constitution for the United States of America — To enable better “securing the Blessings of Liberty”

[A PDF version of this article, including the footnotes thereto, may be downloaded from here.]

On November 3, 2020, I transmitted the following message to my State Senator, along with a suggested application bill:

“Subject : Article V Convention Application Bill

On this Election Day it seemed to me that perhaps the best mode for participation, given the regrettable apparent irreconcilability in our nation, would be to propose the submission by you of a Bill for a Convention of the States, pursuant to US Const, Art V.

Accordingly, I submit the attached for your consideration and potential action.”

A suggested application in generic format can be downloaded from here.

As many conceive and as the author reluctantly concurs, there then existed a “regrettable apparent irreconcilability in our nation”; this assessment was articulated by diverse voices, from across the spectrum consisting of both liberal and conservative proponents, from “elite” and from “ordinary” exponents. This irreconcilability has only been accentuated during the ensuing fifteen months.

While the polarization is between both various segments within society as well as government units of the nation, the author apprehends that the catalyst is an excessively-powerful National government. Rather than restrict itself strictly to the enumerated powers granted to it, it has expanded its reach to innumerable arenas of the liberty, and even of the freedom, of its citizens. Accordingly, the possibility of a radical restructuring of the National government should be seriously considered; by this I suggest the repeal of the Constitution for the United States of America and its replacement by a new instrument of government.

* * * * * * *

The evolution of the settlement of our Nation essentially followed the historical course of community formation. Initially, local enclaves were established; most of these habitations though were pursuant to commercial grants from the English Crown rather than autonomous individual and group migration into virgin territory. Many of these grants allocated territory to these adventurers greatly in excess of those enclaves first inhabited.

Initially the magistrates of those enclaves only governed locally since habitation had not expanded beyond their limited peripheries. Yet, as the magistrates’ authority extended to the boundaries of these grants and various inhabitants of these enclaves migrated to new localities within those boundaries, their authority likewise expanded to encompass them — resulting in a commonwealth embracing numerous communities and the subordination of the initial enclave thereto. Thus, though the inaugural local body polities constituted the foundation of these commonwealths, they did not remain as the predominant civil order but rather were incorporated within and subject to the commonwealth.

This then resulted in the Colonies, and eventually the States, being the sovereign bodies. We then are compelled to consider the powers and remedies available within the context of State jurisdiction rather than local jurisdiction.

Nevertheless, in assessing whether fundamental changes to governmental structure are necessary, as well as the parameters thereof, we must constantly remember core concepts and axioms. For these constitute the foundation upon which any governmental edifice must be structured; repudiation of these concepts and axioms, and substitution instead of an artificial composition will only introduce fragility and the failure and destruction of the edifice.

The author conceives these concepts and axioms to consist of the following:

  • Neighborhoods initially were, and remain still, the core unit of habitation. (This was propounded in the first volume of the author’s Interstice Amid the Fabric of Life essay, The State of Primordial Mankind.) The most-frequent interactions transpire between persons in close physical proximity and regular intercourse with each other and from which their identities are embellished.
  • Neighborhoods then are described and delineated by the radius of normal interaction between the majority of contiguous inhabitants. This interaction will allow the development of common identities and a network of mutual supply of physical necessities and reciprocal assistance and support, both physical and moral.
  • The smaller the political entity, the less the diversity of its inhabitants.

Thus, though we are compelled to recognize the States as the operative entity, we are also compelled to recognize the surpassing importance of the local civil orders and their utilization as the primary expression of the civic will. The justification for this assertion is further confirmed by an examination of the purpose and limitations of these civil orders.

* * * * * * *

The initial stage of the inquiry is the consideration of the inextricable limitation on their authority; for the prime proscription on their powers consists of those inherent rights of its inhabitants which are beyond their capacity to invade. As argued previously by the author, no person, individually or collectively, has the authority to alienate his Primary Natural Rights. Only Secondary Natural Rights are capable of alienation; even then the alienation must be express, unambiguous and unqualified, and restricted to the context which induced the alienation thereof.

Therefore, if the inhabitants of a locality elect to establish a commonwealth for it, the only powers they can grant to it are the powers to regulate Secondary Natural Rights. The necessary corollary, since a commonwealth can only exercise the powers granted to it, is that its powers then are limited to the regulation of these Secondary Natural Rights; even then the regulation of those rights must be both uniform and subject to the express and innate restrictions upon those powers.

Thus, governmental powers are inherently and inextricably limited. The initial and basic limitation consists of the scope of power delegation, for the state cannot exercise a power that it was not granted. This scope is inextricably proscribed as the citizens of a commonwealth are entitled to delegate to a government only those powers whose exercise will generally restrict the Civil rights of at least a majority of the citizens of the commonwealth. In addition to the prohibition against a government exercising power that would restrict the Primary Natural Rights of its citizens, it is limited to regulating only the portion of those additional Civil rights, viz, those which do not constitute Primary Natural Rights, that also constitute Civic rights. There, however, are further reasons for this conclusion.

A more-important, albeit conceptual, limitation consists of the role of a commonwealth and the powers it is entitled to exercise in the performance of this role; if we first isolate the basic purpose of the commonwealth then we better delineate this role. The basic purpose of a commonwealth is to prevent, as far as practicable, an abbreviation of the scope of Liberty available to each individual in the natural order. Hence, the role is to eliminate, or at least ameliorate, conditions that adversely affect at least a majority of its citizens, viz, constitute general problems within the commonwealth.

By this formula the powers that can be exercised gradually diminish, in both scope and degree, the greater the population and geographical extent of the commonwealth — as within the most geographically-restricted commonwealth the impact that any target condition may exert upon the citizens will be more general and tend toward commonality due to the relative homogeneity of those citizens, while within the most geographically-expansive commonwealth (“federal commonwealth”) any target condition that may exert general impact upon the citizens will be few and extraordinary due to the relative diversity of those citizens. The most local commonwealth then is implicitly granted the greatest quantum of power to eliminate or ameliorate adverse conditions within its boundaries, whereas the federal commonwealth is implicitly granted the least quantum of these powers.

Hence, the powers to which the commonwealth is confined — and which constitute the limit of those delegated to it, unless indisputable evidence to the contrary is tendered by it — are those proper and necessary for the performance of this role and the discharge of this function. In this performance and this discharge, the commonwealth is obliged to ignore problems that are only transient and limited within the body of citizens for which it was instituted. Any other standard would implicate the commonwealth intervening in a myriad of potentially-minuscule controversies, with any boundary line beyond which it should refrain being difficult to define and envision.

Objection will presumably be made that this standard will allow the abuse of, by potential abbreviation of rights that should be afforded to, minority segments of the citizenry. Facially this objection would be well-taken. The solution, however, is the formation of a multi-tiered framework of commonwealths, progressively devolving as far as practicable to the most localized jurisdiction. By such a framework those minority segments will have the capacity to constitute a majority in a localized commonwealth and thereby preserve the rights afforded to them.

* * * * * * *

Does the current structure or practices of government in the United States of America conform to the foregoing standards? Clearly they do not.

By virtue of historical development the States have paramount jurisdiction over the local civil organs; the latter, except for limited functions are wholly subordinate. Instead, the author has proposed that it is the local civil organs that should perform the majority of proper and necessary functions and hence possess most governmental power. Nevertheless, given this historical development, there is little present recourse other than to accept the States as the primary unit.

However, the question of the National government is wholly of another class. The extent to which it has grossly exceeded its constitutional limits and eclipsed the status and roles of the State and local civil organs is malevolence indeed. By endeavoring to do too much, it has necessarily antagonized large swaths of the diverse segments in the country; for while policies can contain various exceptions, any policy has to be essentially uniform and general — and no policy can be sufficiently uniform and general to accommodate such disparate diverse segments.

Hence, a dramatic restructuring is in order. Of what form might it consist?

It is supposed that numerous alternative might be suggested. But the author is bold enough to propose one possibility that, it seems to him, should revert inter-governmental relationship closer to the design originally envisioned, and thereby better “secur[e] the Blessings of Liberty”.

This proposal consists of:

  • the passage of bills by two-thirds (2/3) of the States applying for a Convention of the States;
  • the calling by the U.S. Congress of a convention pursuant to these applications;
  • the convening of the convention;
  • the proposal at and approval by the convention of an amendment rescinding The Constitution of the United States, thereby reverting the several States to their full sovereign capacities, or the approval of a new Constitution that provides for and thereby constitutes an amendment rescinding The Constitution of the United States;
  • the formation of a minimum of, say, nine (9) federations between contiguous States, which could conform to:
    • historical, cultural, or unique geographical characteristics, such as, for example:
      • New England,
      • the Mid-Atlantic States,
      • the South,
      • the Northwest Territory States,
      • the Louisiana Purchase States,
      • the Mexican War States, and
      • the Western Coast (including Alaska and Hawaii); or
    • the current divisions of the U.S. Courts of Appeal; or
    • other combinations not yet identified.
  • the formation of a confederation between these various federations.

The chronology of the foregoing stages of this proposal might be differently manipulated. However, it is tendered that this is a framework that ought to be given serious consideration.

* * * * * * *

In 1787 there admittedly were significant differences between the States. These were the result of various factors, including the different groups of adventurers who founded the colonies as well as the divergent religions to which the respective inhabitants adhered.

Nevertheless, as the substantial majority of the immigrants to the colonies were of British origin, these citizens perceived they were endowed with the inherent and established rights of Englishmen. As a result of this common historical knowledge and perception, the similarities between them were more profound than their differences and effectively submerged, or at least subordinated, any dissimilarities.

Hence, a National government was not regarded as likely to be oppressive since there would exist a common body of citizens of similar mind and experience ready and prepared to resist any tyrannical encroachments. Moreover, there was significant dispersion of the inhabitants within the various States. This relative isolation of the citizens, from each other and from the seats of government, constituted substantial obstacles to any effort to infringe the Liberties of them by any particular factions or control by the respective governments.

These conditions, however, soon experienced eradicable alteration — compromising these protections and, ultimately, these principles. The initial, as well as ultimate, cause was the vast accretion of territory controlled by the United States of America. This geographical expansion, proceeding at various times and occasioned by a variety of circumstances, permanently corrupted the carefully-designed polity.

By enabling the multiplication of the number of potential States it presented the specter of lessened cohesion between the existing and new States; for the lesser the number of jurisdictions the greater the capacity for them to unite on proposing or opposing certain policies, with the converse situation the greater the number of jurisdictions. This then presented both the opportunity and justification for the National government to expand its role and power by entry into this void. Thereby was the equilibrium in the Federal system, between the National government and the State governments, imbalanced.

These new territories also provided the opportunity and incentive for new and expanded immigration into the country, as the new regions and resources enticed the settlement and exploitation of them. This immigration exponentially increased the number of citizens of the country in the aggregate; moreover the diversity of the nationalities, and their accompanying national experiences and heritages, of the citizens was necessarily increased. As a result of this increased quantity and diversity the prospect of uniting on proposing or opposing certain policies was impeded, inasmuch as, one, a greater mass of persons always renders accedence to a common position more difficult and less likely, two, these greater dissimilarities rendered consolidation into a uniform position more difficult, and, three, these different traditions introduced the factor of willingness, or at least accentuated the volume of adherents thereto, in acceptance of, rather than resistance to, authority. Thereby, with reduced meaningful opposition, was the continued momentum of the juggernaut of National authority unabated.

The augmented national territory augmented also its power, both in isolation and relative to other countries. The first effect thereof was to induce it to expand its defense establishment and capabilities. As a normal consequence it was then induced to exercise this capability relative to other countries.

The exercise of this capability resulted in the international expansion of the country, both in the form of new territories — some by conquest and some by the exercise of monetary might incident to economic and military might — and the permanent presence within other countries. The latter is exhibited both in the economic influence over and foreign military establishments in numerous countries by the United States of America.

By all of these factors the authority of the National government was expanded to gargantuan proportions. We are now Reaping the Whirlwind. The cavalier and virtually uninhibited exercise by the National government of its Article I and Article II powers, whether real, presumed, assumed, or seized, has strained the fabric of the country with the resulting tension approaching or being at the breaking point.

Accordingly it appears to more than a few isolated malcontents that a dramatic reconfiguration of this country is necessary. The within proposal is but one of many that could be a solution by which retrenchment of concentrated central power is realized. It though appears to the author that the necessity of this retrenchment is beyond cavil.

A sufficient number of Federations of various States — with substantial powers reserved to those States, and a substantial portion of those powers progressively reserved to the local jurisdictions therein — would not only enable geographical segmentation of diversity in those jurisdictions and thereby obstruct suppression of it by more populous segments of different characteristics in different jurisdictions, but would preserve Liberty by this division of power. A Confederation of these federations would maintain national unity, albeit of a more-restricted scope and a more-restrained National government.

The author does not contend this is an ideal framework; but nothing designed by mortal man is ever ideal. It is anticipated though, that under the conditions of 2022 as contrasted with those of 1787, this general skeleton would constitute a vast improvement of the corrupted evolution that has transpired over the intervening two hundred thirty-five (235) years.

While careful design of the structure of the Confederation will of course be necessary, it is anticipated that conceptually the functioning thereof should not be problematic. Conceptually, though, the functioning of the Federations could pose some consideration.

There theoretically is the danger from a smaller federation that its officials will have greater opportunity to interfere in the liberty of its citizens as a consequence of the government having fewer responsibilities and fewer disparate segments of society to distract itself. However, this may be sufficiently offset by its capacity to craft tailored rules for its fewer discrete segments rather than general rules which, by necessity, will not be able to accommodate all of a broad range of segments.

In any event, a solution of this type should obviate many of the problems, Nay, the evils, that exist presently. It is left to abler minds than that of the author to refine this solution more perfectly.

WAYNE A. SMITH
Sanilac County, Michigan USA
26 February 2022

The Elective Franchise — A Secondary Civic Right

[A PDF version of this article, including the footnotes thereto, may be downloaded from here.]

Electoral procedures and proposed reforms have been the subject of extensive discussion for much of the last few years, and in particular presently. I consider the emphasis excessive and grossly misplaced. In considering the validity of the author’s perception we must begin with the recognition of the difference between civil rights and civic rights.

Civil rights are those powers that a person exercises in isolation or in a direct relationship with other persons. They are inextricable from the core of each person’s existence and activities, and their source is God and Nature. Being first in origin, they are senior to and dominate all other rights.

Civic rights are those powers that a person exercises in relationship to and within a governmental structure and which are defined and prescribed by this structure. Government though only has those powers that are delegated to it by the citizens of the commonwealth who established it and thereby granted it those powers. Any Civic rights then are derivative from and subordinate to Civil rights, as: the foundation of the society that established the commonwealth are the Civil rights of its individual members; the power to establish the commonwealth and grant its government the authority to exercise its prescribed functions resided in and proceeded from the society establishing it, and, ergo, the Civil rights of its individual members; and Civic rights are only a segment of Civil rights as a priori these Civic rights must have had a source and only Civil rights could have been this source. This should be indisputable as the whole is by nature superior to any part, both in quantity and quality. Civic rights then constitute only the portion of the body of Civil rights that are expressly and unequivocally delegated, and appropriate for delegation, to a commonwealth.

Most Civil rights are exercised within a narrow orbit and with only minimal impact upon others; to the extent there is an impact, it is of the type that should normally be allowed and tolerated, inasmuch as the exercise of Civil rights by those so impacted will also not be in isolation but themselves will exert some degree of impact. It is only when the impact is so substantial and affects others within a broad orbit that rectification is required.

Civic rights though are exercised within even a narrower orbit. Most interactions between inhabitants of a commonwealth are initiated and ordained by those engaging in them, viz, at the level of the civil society. Even the resolution of any disputes as to the rights and duties incident to those interactions are resolved conceptually at the civil society level, inasmuch as the judicial function originated within pre-civil society existence and was then conserved and maintained within civil society.

Conversely, government is only engaged when the factors affecting and bearing upon these interactions are too numerous and affect too many people to be efficiently and comprehensively considered and reconciled at the civil society level. Hence, its functions and activities are inherently proscribed — as its jurisdiction is limited to but a subset of social interactions. As Civic rights are only exercised within the perimeters of the governmental structure, their occasion, significance, and impact is likewise limited.

Among those Civic rights is the elective franchise. By the foregoing hierarchy analysis it is clear that it is subordinate in importance to the Civil rights with which the society’s members are endowed.

Nevertheless, there are those who assert that the exercise of one’s elective franchise is the most-important civic function, and by extension civic right, of a citizen. Others assert that a person who does not exercise the elective franchise has no right to complain about any objectionable exercise by the commonwealth of its powers. With neither assertion can the author agree.

The first assertion is refuted by the circumstance that personal interactions, as above discussed, are the primary, most-significant, and most-numerous activities of any inhabitant of a commonwealth. These personal interactions are central to the existence, life, and viability of a society, with interactions between any inhabitant and the government of the commonwealth being but peripheral. The salient civic function of an inhabitant then is his normal intercourse with his fellow inhabitants, his exercise of his Civil rights in those interactions, and his respect for the Civil rights of the other inhabitants engaged in those interactions.

The civic function of the citizen embodied in the exercise of his Civic rights is but occasional and sporadic, and therefore but peripheral. As the elective franchise is but one of the components of these Civic rights, it is more-peripheral yet.

The second assertion is refuted by the fact that persons frequently form opinions upon policy initiated by foreign governments. Yet they have no right to exercise the franchise for selection of the magistrates of those foreign governments. Are they therefore enjoined from forming and expressing those opinions, much less endeavoring to influence those policies?

Let us, though, for argument accept that one’s central civic function consists of participation in the citizen’s relationship to the government of a commonwealth rather than in the citizen’s relationship to his fellow citizens. Even so, the elective franchise remains as a secondary mode of participation.

Exercise of the elective franchise chooses the magistrates who will exercise the powers of the government. The most-important set of those magistrates are those who will compose the legislature of the commonwealth, for it establishes those rules appropriate for supplementation of, and not in contradiction to, Natural Law. Yet the voting for choice of those magistrates is a broadsword, not a rapier.

No person is the exact imprint of any other in perspective or opinions. This perspective and those opinions are formed by the qualities and experiences unique to each person. Each legislator then will depart from the opinions and preferences of each of his constituents on some, perhaps many, issues. Any citizen’s choice of his legislator then only occasionally results in the legislator adopting positions on policy consistent with the preferences of the particular citizen. Rather, other avenues are available and potentially more-efficacious in promoting the adoption of those preferences.

One avenue consists of that expressed in one of the rights expressed in US Const, Am I, viz, the right to “petition the Government for a redress of grievances”; parallel provisions exist in the State constitutions. The formal petition process allows the citizens to expressly communicate their explicit preferences to their legislators. In this we have a rapier rather than a broadsword.

An even more incisive device, and perhaps the most-important part of civil participation, is the oral or written — with emphasis on the latter as more-effective expression — by a citizen of his opinion on potential or pending legislation; this expression may be directly to a legislator or publicly through some media agency. By this explicit suggestions are provided for policy adoption, revision, or repeal without the burden of the formal petition process.

Moreover, those who communicate their opinion and advice on proposed or pending legislation should be, and at least often are, presumed to have educated themselves to some degree on the subject thereof and the ramifications of the contours of the proposed rules; the aversion to embarrassment in expression of an uneducated opinion will induce reluctance to do so unless the person is sufficiently confident in their position.

Thus, reliance by the legislative body on these expressed opinions, rather than on their vote, will emphasize and elevate both the quality of legislation and the educated portion of the citizenry. Both objectives are invaluable as, one, poorly-conceived legislation will only exacerbate tensions within a society, and, two, enhancement of the proportion of the citizenry that is educated — or at least the influence of the existing proportion that has educated themselves — can only yield immeasurable benefits.

Nevertheless, perhaps the most-important civic participation that is available to every citizen, as well as the greatest influence on the legislative strictures, consists of the exercise of Liberty, as the effect thereof tests the legitimacy of legislation by confronting its boundaries and determining whether those boundaries are justifiable or excessive. By this are these supplementary rules either confirmed or repudiated.

WAYNE A. SMITH
Sanilac County, Michigan USA
16 January 2022

Economic Impact Payment Quandary

Shortly after April 7, I by chance discovered that my Savings Account had been enlarged $1,400.00 by the Economic Impact Payment (“EIP”) authorized by the American Rescue Plan Act of 2021 (“ARP Act”); this amount yet remains there untouched, pending a decision of how to respond to it. (By being bypassed by the $600.00 EIP authorized by the Consolidated Appropriations Act, 2021 (“2021 Appropriations Act”), I was relieved of the earlier necessity of any decision on how I should respond.)

I, at the time of the enactment of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), considered the $1,200.00 EIP authorized by it to be a prudent response to the severe disruptions caused both by private and public actions in response to the unforeseen COVID-19 onslaught. This was an invasion for which adequate preparations could not have been instituted, and which then appeared to require certain protective action — albeit the scope of such action being then and later still problematic. The response caused extensive unanticipated hardship for which few could have prepared, thus justifying some financial relief for those afflicted.

The passage of time though allowed modulation in those putative protective actions, as experience enabled clarification about those measures that were or were not effective and those that were or were not necessary. Moreover, interim medical advances had ameliorated, to some extent, the danger caused by this virus and the prevalence of being afflicted by it. Therefore, in my mind, by the end of 2020, the necessity of further financial relief was questionable.

I thus then, when the expectation of being confronted with the receipt of an additional $600.00 EIP presented itself, realized that a decision would apparently be required. Accordingly, I investigated whether a response was available and discovered that a mechanism existed for rejection of this payment. I then conceived providing a response, to accompany a check returning this amount, in the following possible terms:

“As acceptance by me of this amount of $600.00 would constitute my contributing to the continuing fiscal and moral bankruptcy of this nation — the repercussions and dangers of which are already and will be further manifold, and an apparently-constant progression in which I decline to participate — I hereby refuse and return the amount of this second Economic Impact Payment.”

The absence of receipt thereof however allowed me to defer the decision to take this action. Now, though, I no longer have this luxury.

For all of my adult life, a period which alone is of no-small duration, the juggernaut in the District of Columbia has demonstrated little inclination to quench its insatiable appetite. While there have been periodic, albeit few, aberrations by way of limited retrenchments in its expansion, the direction of the process has generally been unabated. In this both major political parties bear substantial fault.

As the benefits to be conferred are usually more visible than the costs to be incurred, new or expanded entitlement programs have the intrinsic greater potential to garner advocates and popularity. The existence of this potential is regrettable for various reasons, not the least of which are: the engendered expectation of the permanence of these benefits as well as the accession by additional ones; and the weakening of the fiscal health of the nation, a severe (perhaps fatal) condition already apparent. Nevertheless, these considerations have not proved to be frequently successful in hampering the enthusiasm of expansion advocates.

Yet it now though appears that there could be an exponential growth of this monstrosity we call the Federal Government. While the necessity of the CARES Act was partially justifiable, there was still significant wasteful excess in it. Far less justification existed for components of the 2021 Appropriations Act and the ARP Act; moreover all three (3) of these Acts inordinately increased the U.S. National Debt. However, though the adverse impact upon the current and future fiscal and economic posture of the nation through the exorbitant magnification of debt from these Acts can already be envisioned, the deterioration will pale in comparison as a result of the projected cost of new programs proposed by the current administration.

While the proposed American Jobs Plan and American Families Plan would constitute the largest expenditures, it is expected that further likely proposals would also substantially increase Federal expenditures. The expenditures for those two alone would aggregate in excess of Four Trillion Dollars ($4,000,000,000,000.00), in addition to the One Trillion Nine Hundred Billion Dollars ($1,900,000,000,000.00) authorized by the ARP Act. Whether either of those plans is enacted, or whether sufficient revenue is generated through new tax revenue in order to pay for those expenditures, is of course presently unknown. Suffice it to say that these proposals, along with the CARES Act, the 2021 Appropriations Act and the ARP Act, have and would greatly expand the role of the Federal Government in both the economy and Civil Society. (While non-fiscal proposals of the current administration would also greatly expand the role of the Federal Government in Civil Society — many, if not most, of which the author considers highly objectionable — this post is limited to considering the ramifications upon the economic and fiscal health of the nation. Therefore any comment on the excess intrusiveness of these other proposals would be deferred to possible later posts.)

While these incipient proposals would exponentially increase the National Debt, this insatiable trend has been consistent now over more than the last Half-Century. (A PDF version thereof may also be reviewed.) With rare exceptions all administrations, of whatever political composition, have demonstrated their addiction to extravagant spending. The warnings by the Congressional Budget Office of the unsustainability of these expenditures and deficits have generally fallen on deaf ears. As graphically demonstrated, not only does the recent accentuation of the National Debt consume a far greater proportion of the Gross Domestic Product (“GDP”) than it did on average over the past Half-Century, it now is equal to One Hundred Percent (100%) of the GDP!

In the opinion of the author, as well as many others, this is clearly unsustainable. To liquidate it: in say ten (10) years, we would have to reduce all expenditures to equal revenue, continue to pay the same amount in taxes as currently, plus divert an additional Ten Percent (10%) of GDP to its payment; or, in say one (1) year, to continue to produce at the same rate but for every inhabitant to simultaneously go into suspended animation for a year! Thus, to the author, it clearly appears we are already in a Crisis Situation.

It is tendered that perpetuation, much less accentuation, of the present course can only result in extreme social upheaval, inasmuch as: increased diversion of fiscal resources to and through the government would cause economic disruption by supplanting the natural and ordinary employment of those resources by the populace; and social disruption through the corollary preference of certain social sectors and denigration of others, as these policies by definition would only benefit those selected recipients who are anticipated, by the use of those resources, to contribute to or enable the attainment of the objectives thereof. But perhaps only an extreme social upheaval can result in an inversion of the present destructive path and a reorientation toward reduced governmental participation in and ramifications upon the economy and Civil Society.

Even a Crisis Situation can degenerate into a more-critical state, as there are degrees of crisis. At an earlier stage of a crisis certain actions can be taken to eliminate the causes and remediate the damage; at later stages the scope of those actions are restricted, and ultimately reach a point where any effort is virtually, or absolutely, ineffective. If there was presently any indication of sufficient awareness of this crisis, then vigorous advocacy to inspire corrective efforts by those with this awareness is apropos. However, from what is reported, it appears that few in government are sufficiently-concerned but rather that most are feckless.

Perhaps then the prudential course is to accelerate the crisis by exploiting the opportunities offered — and thereby assist in a propulsion beyond the brink of this fiscal and moral bankruptcy — in order to broaden the awareness of this crisis and make it apparent to even the most injudicious. In this instance it might consist of acceptance by everyone of every EIP and other opportunities that might be offered. But is this the most-principled course?

In embarking upon a course to attain an objective one is often confronted by the conundrum of adhering to principles consistent with the objective and actions, albeit possibly contradictory, more-efficacious in attaining it; compounding the question is the effectiveness of one small action among many countervailing ones. Yet can the action, combined with a declaration of the rationale behind it, resolve this conundrum? Hence the quandary …

WAYNE A. SMITH
Sanilac County, Michigan USA
07 May 2021

EFFECTIVE “Gun Violence” Control

The recent atrocity perpetrated by Brandon Hole (“Hole”) at the Indianapolis Federal Express facility on April 15, 2021 — as well as other recent media high profile like heinous offenses — will undoubtedly result in new demands for “Gun Control”. I tender though that any narrative should be rephrased to consider “Gun Violence Control” rather then “Gun Control”.

These abominations are of course committed only by a small set of citizens. Firearms though are owned by a much larger set of citizens. Ergo, then, only a minority of owners or possessors of firearms engage in commission of these acts. Consequently, the focus of any regulation should be narrow, viz, on the class of these perpetrators rather than the weapon used or superfluous burdens and restrictions imposed on innocent owners; the latter class, being broader, would impact the majority of owners and possessors who are not a component of the problem. By addressing factors that are not the elements of a problem, i.e. here the segment of owners and possessors of firearms who only use them legally, the effectiveness of any regulation would by definition be diminished. Thus, effective measures rather should be considered, the following being tendered as preferable approaches.

According to news reports (reliable or not, such as CNN and AP), Hole was reported to the Federal Bureau of Investigation (“FBI”) during 2020 by his Mother because of concerns that he might commit “suicide by cop”. The FBI responded and questioned Hole, afterwards of which officers seized a pump-action shotgun possessed by him. It is unclear whether the officers were Federal or State, and whether it was pursuant to IC 35-47-14-1 et seq — the Indiana “Red Flag Law” — or not.

Also according to news reports, Hole subsequently, during July, 2020, and September, 2020, purchased two rifles apparently employed in the atrocity seven (7) months later. The reports do not mention whether any report was made, or any effort was made to invoke IC 35-47-14-1 et seq, during the interim.

The author has previously expressed his opinion that Extreme Risk Protection Order statutes, if structured properly, should be considered for State enactment. Regrettably, as also previously expressed, certain bills introduced at both the Federal and State level fail to satisfy the standard of proper structuring. A cursory review of the Indiana statute appears to indicate it provides at least some of the necessary due process protections.

The author’s rationale is that the vast majority, if not virtually all, of these perpetrators have exhibited severe mental or emotional behavior disturbances prior to their atrocities; some were reported and some were ignored. Assuming that knowledgeable persons would assume the responsibility to initiate appropriate action, then effective solutions for avoidance of many of these incidents do seem to present themselves.

The author is of the opinion that the Eighteenth Century concept of the utility of the Militia is not in the least anachronistic. If so, then each citizen should be expected to own and be familiar with the use of a firearm appropriate for militia use. They should be further required to undergo periodic mustering and training. This would provide the opportunity for observing any aberrations in any of the militia members and the occasion for initiating corrective and protective action to prevent illegal use of and removal of the weapon by and from such a person. A similar scenario is discussed in an earlier post by this author.

It is recognized that this solution might experience significant resistance, Therefore, a solution that likely would have broader appeal would consist of:

• First, a Federal enactment of a due process-compliant statute (“Federal Red Flag Law”) providing financial support to those States that enact Extreme Risk Protection Order statutes that contain certain minimum conditions. (This would be of the form of S.7 and S.506 introduced in the U.S. Senate during 2019, but with its due process deficiencies corrected.); and

• Second, the amendment of 18 USC 922(d) and (g) — the so-called “Prohibited Persons” provisions prohibiting certain persons from firearm purchases — by the addition of a subsection (10) comparable to 18 USC 922(d)(8) and (g)(8), possible verbiage being:

“(10) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) was issued pursuant to a State Extreme Protection Order statute that complies with the Federal Red Flag Law;
(C) includes a finding that such person represents a credible threat to the physical safety of himself or others; and
(D) deprived the person of a firearm in his possession or prohibited the return of a previously-seized firearm to the person.”

Provision for a maximum time for the effectiveness of such a provision, as well as to relief due to changed circumstances in the mental and emotional condition of such a person, should also be addressed. And, of course, none of this discourages attention to improved mental health treatment, as the mental and emotional condition of these perpetrators is the common denominator of the occasion for all of these incidents.

Would all incidents be eliminated by one of these solutions? It is not expected that they would. However, it is tendered that the vast majority thereof would be eliminated, while concurrently avoiding the abuse and restriction of rights of those persons who are not an element of the problem.

[UPDATE:  A new study by the Rand Corporation demonstrates the difficulties with defining and categorizing “mass shootings”.  Accordingly, legislatures should be even more-cautious in promulgating new restrictions to prevent incidents that may be exaggerated by some observers — particularly when those restrictions adversely impact, to a severe extent, a class of persons external to the problem.]

WAYNE A. SMITH
Sanilac County, Michigan USA
19 April 2021

Fossil Fuel Retrenchment  — The Law of Unintended Consequences?

This is a topic that I don’t recall I have addressed previously. Thus, since I today composed the following as an e-mail message to a friend in response to an editorial cartoon, it occurred to me that I ought to post it here — to provide an expression of my thoughts and possibly to engender some in others. From the circumstances of its composition it is not as elaborate an articulation as it might otherwise be; thus it likely ought to be later expanded, but should suffice, for the moment, as to an outline of these considerations. (The original text has been somewhat revised in verbiage as well as format, but, due to time constraints, has been retained in its original brevity.)

Though I’m not a tree hugger (in the sense in which that term has been pejoratively used), I’m all in favor of environment conservation; this preference is a product of my opposition to excessive, conspicuous consumption as well as my religious beliefs. But I recognize that attaining this objective is not going to be as easy or painless as many people think.

It would require much personal sacrifice and alteration of normal behavior. My style may be an example, including: minimization of use of a motor vehicle to less than 5,000 miles/year; avoiding much restaurant visitations; grouping necessary errands in a single trip; grouping purchases of regular staples for a couple months usage; eschewing leisure travel/vacations; and no air conditioning and maintaining the thermostat during the Winter at no more than 64 to 65 Degrees.
If everyone voluntarily adhered to similar retrenchments, then many of the adverse effects upon the environment from human activity would be eliminated; but it will have severe effects upon many economic sectors, e.g. restaurants, airlines, automobile industry, lodging establishments, etc.

Moreover, in addition to the many counterproductive effects you have mentioned in a switch to replacement energy modes — these consisting of equivalent or near-equivalent energy expenditure in extraction or production of the materials required by these replacement modes — there will be substantial economic distress, at least during the interim. If electric motor vehicles become prevalent — either as the compelled or voluntary mode — it will necessarily increase the price of gasoline due to amortization of the same fixed costs over a smaller volume of purchases. (The old rules of supply and demand will be reversed because of contortions of the market by these external influences and factors.). Those then who cannot afford these new vehicles or who have to travel long distances will suffer extensive hardship.

The discouragement of vehicle use within cities appears to be the new trend, and is from an isolated view attractive for many reasons. But it ignores the fact that not everyone lives in these densely-populated elitist enclaves. Those who do will benefit the environment and experience advantages while circulating there. But the prices on items they purchase that depend on long-distance transport, such as food and non-locally produced materials, will increase exponentially — as the cost of those hardships on persons engaged in long-distance travel will have to be passed on to the beneficiaries thereof — and they will be restricted from travel outside those enclaves. Prospects of the consequences of the early abandonment of fossil fuels then are being viewed through excessively rose-colored glasses.

WAYNE A. SMITH
Sanilac County, Michigan USA
10 November 2020

The Improvidence of Disproportionality in Governmental Policy

[A PDF version of this article may be downloaded from here.]

The COVID-19 Coronavirus Pandemic has spawned many public and private avoidance efforts. It has also spawned many antagonistic perspectives and attitudes as a consequence.

The divergence between them, and the objectives that they propound, make it difficult to evaluate which should prevail. It is submitted that perhaps use of the Liberty-Freedom Dichotomy might assist in this effort.

As has been posited by this author, Liberty is the Prime Natural Right as it is affirmative and affords the right to initiate action. However, as the exercise of this right is most likely to affect others — whereas Freedom is passive and affords the right to refrain from action — it is the right with which a public body has the legitimate power to circumspectly constrain.* The question here then is not what actions a public body may require an individual to perform but what actions a public body may legitimately constrain an individual from performing.

In the context of various restrictions imposed by governments during this pandemic some may say the distinction is immaterial. I tender it is not.

All potential actions are impacted by various factors that necessitate assessment of the relative importance thereof in determining the beneficial or adverse consequence of the action. In addition, there are numerous possible consequences of each potential action, of which the likelihood and effect thereof (on future potential actions) has to be projected. Thus, all decisions to initiate or refrain from action are impressed with certain risks.

The author concurs that we are obliged to avoid needless risks, in order to optimize our time and hence opportunities for attaining further objectives, those beyond the objective envisioned by the immediate proposed action.** However, these should be substantial, demonstrable risks. We cannot eliminate all risks with which we may be confronted, and it would be perilous to even endeavor to do so.***  While there conceivably are numerous reasons, two of them are paramount.

First, it would promote an even-further deterioration in intellectual capabilities. We are endowed, by Nature or by God (as one’s perspective chooses), with rational, abstract capacity, and it is our duty to preserve and deploy these capabilities whenever possible. As already observed, this process entails assessing various factors in each situation which we confront, and determining those most relevant to and beneficial for an intended course of action prior to formulation of the decision as to the choice to be made. Each situation has various nuances and requires intensive examination to identify and analyze these nuances in order to determine what action, if any, is appropriate to avoid and ameliorate the risks incident to alternative courses. Discouraging employment of this process would result in superficial and careless reasoning. All approaches constitute precedents that have the potential to be ingrained; an absence of meticulous consideration then has the potential to be a “foundation of sand”, to our future detriment — by failing and even refusing to make adjustments where circumstances warrant or even require them. Thus, retention of risks is beneficial, as providing challenges that require mental acuity.

Second, and most importantly, an extreme risk-aversion preoccupation deemphasizes the role and supremacy of both God and the Creature. The secular aspect of this proposition derives from the necessity of this preoccupation assigning to some corporate body the function and right of determination of the existence and degree of risks. Who would be this corporate body? Some discrete or obscure body of “experts”? Some singular governmental body? In any event, thereby would be established an oligarchy entitled to control decisions rightfully belonging to the individual; this is contradictory to and destructive of individual responsibility and moral choice. By being subjected to acute situations requiring critical decisions, the individual is compelled to experience moral growth and a sense of his responsibility for making these crucial decisions. This process leads to virtue and righteousness, the abandonment of which would only be at our peril.

The sacred aspect of this proposition derives from the absence of control by humanity, in contrast to the potential control by God, over conditions and events; while God has the power of absolute control, it is only periodically exercised and therefore potential. Scripture repeatedly acknowledges that retribution for vice is suffered by the offenders through their own actions, with rewards for righteousness being but occasional and not linear. It is only through the supplication of prayer that God’s intervention can be enlisted. The world then is, by First Cause design, a deterioration into chaos; God created order as the natural condition, but also created other factors (including humanity) that permitted irretrievable devolution into corruption. Though humanity then is by nature of limited power and competency, yet some apparently perceive that virtual elimination, and not merely minimization, of risk is an attainable objective; they believe by their intervention they can remold the world, through the elimination of the risk incident to disorder, rather than seek God’s intervention. By not trusting in God are we not treading on dangerous ground, by pretending to usurp His power?****

Government then should be cautious in the exertion of any power which is granted to it. It should only exercise this power when clearly necessary to protect vital interests. This then requires:

  • First, assessment of the severity of a risk, and if it is deemed sufficiently-substantial the gradual implementation of restrictions to minimize it; and

  • Second, if restrictions are deemed necessary, the tailoring of them so that there is a reasonable fit between the rules and the objectives thereof; this then requires recognizing the differences between the circumstances of the persons who will be affected thereby.

In most instances there was no compliance with the conditions of the posited first stage. Simply by virtue of its designation as a “novel coronavirus” it was established that there was no clinical data to determine its transmissibility or its virulence. While it appears to be undisputed that its transmissibility is greater than normal, it yet remains doubtful whether its virulence is such. Accordingly, no justification existed for initially imposing draconian measures as opposed to gradual implementation of them if proven necessary — particularly as experience and logic both confirm that it is more difficult to revise and remove restrictions than it is to expand them later.

The second stage implicates another basic principle of not only our jurisprudence but of core justice, viz, Equal Protection. Equal Treatment can be either a just requirement or an unjust burden, depending upon the circumstances. In many contexts it prevents unjust discriminatory treatment, as when its absence would deprive certain individuals or classes of persons of rights afforded to others. But in other contexts it will deprive certain individuals or classes of persons of liberty that the circumstances do not justify. The latter was the consequence of many of the governmental initiatives during this pandemic.

Those restrictions which imposed isolation, because of the circumstances of some classes of people, were to their benefit. The same restrictions, because of the circumstances of other classes of people, were unnecessary and therefore to them a burden. Thus was imposed unequal treatment.

Moreover, certain of these restrictions — a regime that was a burden upon all — were accompanied by benefits that redounded but to some.*****  These benefits, designed to partially alleviate those burdens, were thus unequally distributed. This was further manifest error as awarding benefits to certain classes of persons but not others demonstrates (or at least implies) that the latter are disfavored and disadvantaged.******  Thereby was afflicted further injustice as governmental action should not burden but some and thereby require them to palpably suffer and experience inequity.

Rather, burdens should be imposed only where the substantial liberty of some is being directly threatened by the liberty exercised by others, consisting of clear jeopardy to the former and not merely speculation. Thus, imposed restrictions on liberty are not justifiable but under circumstances of clear and present danger.*******

The author does not dispute that there are certain situations that entailed increased risk, such as population density, frequency of circulation outside of the domicile, circulation outside of their community (community being capable of a flexible definition depending upon common characteristics of susceptibility or lack thereof), age, and preexisting health conditions. Application of restrictions to persons and areas subject to these conditions are justifiable. General restrictions applied to persons and areas not subject to these conditions, but rather composed of different characteristics, however are not; and the more persons or areas differ the greater the burden on a government to justify them.  They are particularly unjustifiable when applied to institutions historically and by intrinsic nature antagonistic to government — the Church in particular.*******

Justifiable measures restricting liberty ought then to have focused upon isolation of those most at risk. But does imposing protection measures on those at risk justify doing so on those not at risk? Is not this a case of the onerous, and thus erroneous, application of equal treatment? If classes of persons are unlikely to injure others, then no justification exists for imposition of restraints on their liberty, much less constraints on their freedom. Rather, if classes of persons are more likely to be injured by others, then it is proper only to devise protection measures to impose on those at risk of being injured.  This then preserves the Freedom of those not at risk while only limiting the Liberty of those at risk and those persons in contact with them to the extent necessary.

But the regimes that have been imposed have been contrary to this principle. Rather they have yielded benefits to some and burdens to others.*********  As a result those benefited acquire greater Liberty and hence more Power as the increased rewards yield greater opportunities for initiating activity, and these opportunities will enable, if rightly pursued, the acquisition of more power. Those without those opportunities will have little, if any capacity for acquiring power.

Increased, and hence inequality of, power is always malevolent. For Power is a variable in the equation of the amount of Liberty bestowed upon a person. One might devise the following formula:

L = ((Σ-Δ)/Σ) x ((Ω/(Ω-P))
where
L = Liberty Coefficient
Δ = Government Expenditures
Σ = Gross Domestic Product
P = Median National Wealth
Ω = Total National Wealth

or, alternatively,
L = ((Φ-Ψ)/Φ) x ((Ω/(Ω-P))
where
L = Liberty Coefficient
Ψ = Government Employees
Φ = Total Population
P = Median National Wealth
Ω = Total National Wealth

By these formulae a Liberty Coefficient is calculated with the greater the product of the calculation demonstrating a greater level of Liberty in a nation.**********  While the author believes either formula is a valid demonstration of a level of Liberty, he apprehends that the first equation may be preferable.

In either event, assuming the validity thereof, the greater the intrusion of a government and the greater the wealth inequality, the greater the power afforded to only certain classes and the less the liberty afforded to the citizens in general. Either variable, viz, the dominance of government or the concentration of wealth, has egregious effects; when combined they are intolerable.***********

* * * * * * *

To the author the current pandemic regime has disclosed all of these pernicious factors and effects. It has paralyzed many without reason, but with atrocious effects. It is an apt study of the obscene dangers of power in government and society. Whence has gone the ascendancy of the Individual and of Freedom?

WAYNE A. SMITH
Sanilac County, Michigan USA
06 October 2020

*   Liberty is exercised, consisting of activity initiated by a person, and thus is anticipated to, and usually has, an effect beyond the person exercising it. Therefore, it normally will have some constraint upon the Liberty of another. Accordingly, certain constraints by government on Liberty are permissible.
Still, the imposition of constraints has to be circumspect, viz, only when this Liberty will either substantially and materially affect a sufficiently-substantial number of persons or will deprive an identifiable class of persons, even if not of a substantial number, of a Primary Natural Right; while deprivation of a Primary Natural Right from even a single person is to be regretted, this factor alone does not justify prohibition of a constraint per se since a magistracy of the size necessary to identify and prevent any abuse by a constraint would jeopardize all Liberty.
Freedom, though, is an absence of compulsion by another to initiate a specified action and thus its preservation will have no effect other then the failure of the effort to compel; the person who is the object of the inchoate compulsion will be unaffected though the person endeavoring to compel will be affected only by the failure of his effort and, thus, a negation of his activity. Therefore, since the preservation of Freedom will have no effect extending beyond the person asserting it, its orbit has a diameter shorter than the diameter of an orbit of Liberty. Accordingly, restriction of the orbit of Freedom is always unjustifiable.

**   These further objectives may be of disparate quality, depending upon the framework of principles of each person. They may be, inter alia, to: enhance personal reward; benefit mankind or some segment thereof; or serve and glorify God.

***   The peril would consist of constant inaction, as every action entails certain risks and their elimination is impossible. Concern about these risks then would paralyze all decisions and actions. But to avoid action, one then denies the very quality of life and existence — as it is a constant progression from one stage to another and, finally, to the ultimate stage of life.

****   It is my conclusion that the Church, in both its abstract and institutional sense, is theoretically and historically in an adversarial relationship with Government. I consider the Biblical authority to be consistent. For example, compare: 1 Samuel 8:7; John 18:36; Acts 5:29; and Matthew 22:21.

***** These consisted, inter alia, of monetary benefits to replace lost income, paid leave to accommodate family circumstances, and adjustment of the working environment to allow telecommuting. Because not all classes of persons had regular income, were blessed with a family, or could perform their work in isolation, only certain classes were afflicted with substantial burdens.

****** Extending benefits to some may expand their liberty, but should it prejudice people to whom these are not awarded and whose liberty is thus not benefited?

******* The standard of “clear and present danger” admittedly originated in a different legal context. Nevertheless, the author posits that its application is appropriate here as only demonstrable and immediate substantial injury should be a justification for restricting Freedom.

******** In addition to these restrictions being antagonistic to the limited role that God has assigned to government, there is the additional protection afforded through our jurisprudence by virtue of the Free Exercise Clause. We are enjoined by Scripture to celebrate the Lord’s Last Supper and to praise God through joyful song. Yet governmental restrictions in many jurisdictions restricted observance, and thereby enjoined the faithful to violate their sacred duties. To paraphrase Jesus’ command, many were compelled to “Render to Caesar the things that are Caesar’s, and to God the things that Caesar allows.” Thus, was God, in this core function of the life of many, subordinated to government rather than government subordinated to God.

********* Some of those disproportionate in benefits have already been mentioned. However here a different disproportion surfaces; this is the disproportion in burdens. For each if gross burdens on all are equivalent, some will be benefited thereby while others will not. Thus the net burdens are not equivalent.

********** Other more refined and sophisticated formulae can be devised and likely are more demonstrable and better proof of this question. Yet, while the author only expended limited time in devising them, he still believes they are valid and can be legitimately applied in analysis.

********** Preliminary calculations seem to indicate that these two variables have equivalent negative effects; thus submission to one while limiting the other is a Pyrrhic solution as it will still yield an equivalent loss of liberty. Rather, both are subjects for constraint.

 

Secularism in Defense of Ignorance

Regrettably there are not a few who conceive that the language “Congress shall make no law respecting an establishment of religion” permits, if not mandates, the establishment of a secular state. Some may even fancy that the United States should approach the concept of such a state that has been adopted by France. This would be tragic.

France admittedly has a unique legal framework where the laïcité principle was in incubation for over two (2) centuries. However, as demonstrated by a most-recent abuse of this principle that is discussed in the New York Times “Another Hijab Furor Hits France, Over a Mother on a School Trip” article, its application yields egregious results and certainly should be avoided by all other legal systems.

Being offended appears to be a salient motivating sentiment these days. While in certain instances it could be a legitimate grievance, the character of the putative offense is the determining factor.

Ad hominem assertions are one set of offending assertions that generally should be castigated. However, an expression that the opinion of another is unfounded, imprudent, or unwise — or, perhaps, even just stupid — should never be restrained. Even more offensive is when an effort is made to restrain isolated actions of a person who is thereby expressing their own opinion.

The wearing of a hijab certainly is encompassed within the latter category. It is isolated in that it does not impinge upon or restrict either the liberty or freedom of another. And it is but the expression by the wearer of their own opinion, in this case of religious beliefs.

It does suggest that the wearer believes their opinion and beliefs are superior to those of persons who hold contrary opinions and beliefs. But are there not a diversity of opinions and beliefs? And is there not a value in this diversity as it allows an inducement, or at least an opportunity, for assessment of one’s own opinions and beliefs?

Homogeneity has many benefits; but they are best embraced and pursued in discrete communities. As duality is the rule in all systems, in order to preserve homogeneity, heterogeneity must also be preserved.

Here, those objecting to these public displays are seeking to suppress contrary opinions and beliefs. But the expression of opinions and beliefs, either verbally or non-verbally, best enables the preservation of them. These efforts at restriction obviously are destructive of both heterogeneity and diversity.

Even more abusive are restrictions that evince religious hostility or restrict religious diversity. Unlike actions that have common activities as a focus — and therefore have a greater capacity to unjustifiably impinge upon the liberty of another — religious opinions and beliefs are inherently of an abstract character. For this reason, as well as the very character of the focus of these beliefs, they have historically always been afforded greater protection. (It is of course recognized that history records numerous acts of violence perpetrated in the name of religion, but these almost universally constitute repudiation of those religious beliefs and thus do not invalidate the aforesaid assertion.)

The policy of laïcité had its origins in the French Revolution as a reaction to the power of the Church under the monarchy. Excessive power of the Church was deemed inconsistent with “Liberty, Equality and Fraternity”. But is excessive power concentration in the state an appropriate remedy for perceived ills?  For:

How is suppression of the expression of opinion consistent with Liberty?
If all are Equal, how can some opinions be more equal than others?
Does not relegation of some opinion to disfavored status in fact destroy Fraternity?

A Free State permits all actions of its citizens that do not impinge upon vital interests of another. These include all expressions and displays of religious opinions and beliefs. Secularism though seeks to suppress those expressions and beliefs by purging them from the public arena. It then by circumscribing and abbreviating the scope of those opinions which it deems permissible is in service of ignorance.

Let us then pray that this malignant contagion never infests our shores, and that we may succeed in retrenching the misconceived abbreviation of this liberty inflicted by our Courts in incipient service of this foreign doctrine.

WAYNE A. SMITH
Sanilac County, Michigan USA
24 October 2019

Jefferson’s “Wall of Separation”

[The below are posts made by the undersigned in different fora, and now are incorporated here. These are provided both to memorialize them, and as background for the succeeding post.]

06/23/2019:

It is possible, as noted below, that Jefferson was aware of Roger Williams’ opinions. (I have no knowledge of Madison’s awareness thereof.) The issue though is the construction of the Free Establishment clause, and I tender that Mr. Chief Justice Waite, in Reynolds v United States (1879), followed by Mr. Justice Black, in Everson v Board of Education (1947), misconstrued the prohibition against any “law respecting an establishment of religion or prohibiting the free exercise thereof,” as requiring “a wall of separation between church and State”, as enunciated by Jefferson in his letter to the Danbury Baptists.

First, it of course was Madison that proposed in the First Congress the amendments that would, in part, become the Bill of Rights. While Madison and Jefferson agreed on many things (e.g. Kentucky and Virginia Resolutions), they certainly had differing opinions also. Further, Jefferson had no role in those amendments; when Congress passed the bill consisting of the proposed amendments to be submitted for ratification, Jefferson was still in France. How then Mr. Chief Justice Waite could find that Jefferson’s opinion “may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured” is more than a bit surprising.

Second, while scholarly opinion differs on the origin of the phrase and what was understood by Jefferson thereby, there is some support that his opinion was parallel with that expressed by Roger Williams more than a century prior. (The fact that both Williams and the Baptists were opponents of the Congregationalists seems to me more than a bit material to the issue, as will appear below.) There is little dispute that Williams was not in the mainstream of thought on the question. Likewise, I would modestly tender that, even if Jefferson intended what was later inferred by SCOTUS, neither was he in the mainstream.

Third, it would appear that Jefferson’s missive was intended more for political benefit than intended as a legal or philosophical exposition. It thus should earlier and now not have received the impact it was afforded.

New England, and Connecticut in particular, was the stronghold of Federalist politics. Providing support to Federalist opponents then was to the benefit of the Democratic-Republicans. According to Dumas Malone, perhaps his preeminent biographer, Jefferson circulated a draft of the letter only to his Postmaster General and Attorney General, his chief consultants on New England, for their comments. Malone concludes that, by the letter, Jefferson “was seeking to encourage the dissenting minority in Connecticut and to rebuke the politico-religious rulers of that commonwealth.” The “politico-religious rulers of that commonwealth” were the Congregationalists.

Malone does not indicate that it was also circulated to his Secretary of State, Madison. Further, my scanning of the correspondence between Jefferson and Madison during the last quarter of 1801 and the first few days of 1802, the letter to the Baptists being dated January 1, 1802, discloses no reference to it. If Jefferson had intended it to be “an authoritative declaration” on the First Amendment, would he not have also elicited Madison’s comments thereon?

The Reynolds and Everson decisions are now of course precedent. But, as we all know, precedent has not necessarily been without error. In this instance Jefferson’s metaphor resulted in an Historical Fiction that regrettably produced much misdirection in this jurisprudence.

06/24/2019:

I am modestly familiar w/ 17th Century Massachusetts, having in my long-ago youth studied a decent number of the works of Perry Miller and Edmund Morgan; I’m currently, in my “spare time”, sporadically revisiting some of Prof Miller’s works. These though of course dealt primarily with Massachusetts Bay’s theological, rather than political, structure.

I would concur that it appears Massachusetts Bay’s theocracy “went off the rails” as essentially being in conflict w/ their theology. One of the pronouncements of the Westminster Confession of Faith is that:

“God alone is Lord of the conscience, and hath left it free from the doctrines and commandments of men which are in anything contrary to his Word, or beside it in matters of faith or worship. So that to believe such doctrines, or to obey such commandments out of conscience, is to betray true liberty of conscience; and the requiring an implicit faith, and an absolute and blind obedience, is to destroy liberty of conscience, and reason also.”

Now admittedly when the Long Parliament caused the Westminster Assembly to be instituted, the Arbella had already sailed. Still, the attitude and practices of Winthrop et al ought not to have been at significant variance w/ those of his compatriots who remained behind.

Further, while Archbishop Laud was not installed as such also until after the sailing of the Arbella, his dominance and hostility should have been known by those in Boston. If one finds autocracy in England obnoxious, can one justify it in Boston?

Perhaps the conundrum can be justified by the necessity of contemporaneously establishing both the church and government in a virgin territory. (I’m currently listening to Bradford’s “History of the Plymouth Settlement”, and will find it interesting how it resolved this question. While the religious polity of the Separatists in Plymouth was different from their Boston counterparts, their theology was essentially the same.) Still, Boston’s variance in what it should have done seems indisputable.

The purpose then of the Establishment Clause isn’t questioned. My dispute is w/ the misuse of Jefferson’s metaphor — in Reynolds, Everson, and Justice Ginsburg’s Dissent — which has unduly expanded this purpose. Part of the abuse is Jefferson’s use of the dichotomy of “Church and State” whereas the Establishment Clause (as well as the Free Exercise Clause) instead utilizes the term “religion”; the distinction has been noted previously, and different conclusions drawn as a result. While it can be argued that the policy of Jefferson and Williams (assuming the latter was the inspiration for the former) was preferable, I still find little evidence for it being the proper basis of construction of the Establishment Clause.

WAYNE A. SMITH
Sanilac County, Michigan USA
24 October 2019

Michigan “Extreme Risk Protection Order” Bills

After my last posting I took the occasion to review the subject, consisting of House Bill No. 4283 and Senate Bill No. 156 introduced in the Michigan Legislature.  They are “carbon copies” of each other.

Since the last post didn’t explicitly indicate that I favor these type of bills if properly structured, I decided that I ought to post comments I submitted to my State Representative and State Senator.  These demonstrate both my support of appropriate ERPO statutes, and also deficiencies in those bills.  Therefore, below is the text of those comments.

This is provided in regard to [House Bill No. 4283] [Senate Bill No. 156].

It is my opinion that the utility of an Extreme Risk Protection Order (“ERPO”) is a beneficial exercise of authority in appropriate situations and ought to be authorized by appropriate statute provided that the authorizing ERPO statute conforms to procedural due process requirements. Regrettably, it is my opinion that this bill does not, and therefore urge that the committee and chamber make radical amendments thereto.

For assistance in demonstrating some of the deficiencies in the aforesaid bill I have recently made an analysis of similar bills now pending in the U.S. Senate, this being accessible at:

Do the current proposed Congressional “Red Flag Laws” themselves exhibit Red Flags?

A PDF version of the post, containing in the body thereof the PDF tables linked therein, can be provided on request.

Specifically, I inter alia note problems with the following sections of the bill:

  • 3(e) (a qualified objection, as to its breadth)
  • 5(2)(b), (c) and (d)
  • 5(3), as to the “significant risk”, rather than an “extreme risk”, standard
  • 7(1), as to the minimal “reasonable cause” and “significant risk” standards. [In this connection I would note that the bill does not even require the unacceptable “preponderance of evidence” standard for the adversarial hearing order imposed by S.506 of Senator Feinstein.]
  • 7(1)(a), as it is not clear from the “testimony” reference that appearance by and cross-examination of the complainant is required, risking the same possibility of “show trials” envisioned by Senator Feinstein
  • 7(2), as a “clear and convincing” standard only is appropriate, though it, unlike S.7 of Senator Rubio and S.506 of Senator Feinstein, does require a showing of “immediate and irreparable injury”
  • 7(4), as to the limitation to 1 motion is inadequate, as potential abuse from multiple motions could be otherwise addressed
  • 17

Other sections of the bill also pose difficulties but, since they are not replicated in the U.S. Senate Bills, are not addressed in the post and would have to be discussed later.

I trust the foregoing is satisfactory to indicate the necessity of opposition to the aforesaid bill as presently drafted.

WAYNE A. SMITH
Sanilac County, Michigan USA
04 June 2019

Do the current proposed Congressional “Red Flag Laws” themselves exhibit Red Flags?

On January 3, 2019, Senator Marco Rubio of Florida introduced in the United States Senate his Extreme Risk Protection Order and Violence Prevention Act of 2019 (“S.7″). On February 14, 2019, Senator Dianne Feinstein of California introduced in the United States Senate her Extreme Risk Protection Order Act of 2019 (“S.506”).

On March 26, 2019, the United States Senate Judiciary Committee conducted a hearing on Red Flag Laws: Examining Guidelines for State Action (“Hearing”). Five (5) witnesses appeared at the Hearing, all of whom submitted written testimony prior thereto as well as testified at it. One of those witnesses was Professor David B. Kopel (“Kopel”) whose written testimony set forth certain criteria for assessing the conformity of such statutes to procedural due process requirements.

This post will endeavor to analyze whether S.7 and S.506 conform to Kopel’s criteria. While some may disagree that these are the proper criteria to apply, this post operates upon the assumption that these ought to be operative in determining the acceptability of, or deficiencies in, either S.7 or S.506.

The initial observation is that both S.7 and S.506 are properly limited to the function of providing possible financial grants to the States for implementing such statutory regimes. For these regimes are solely within the Police Powers of the States and thus beyond the enumerated powers of the Federal government. Nevertheless, since both S.7 and S.506 prescribe certain guidelines for determining standing and procedures, those guidelines will be expected to exert a certain coercive effect upon the States to adopt a statutory regime parallel to them; for even if more strict standards could be employed by the States, or some of them, it will be expected that the general propensity (if not universal principle) to exert minimal effort to attain an objective will discourage the States, or some of them, to be more ambitious in providing further standing limitations or procedural protections.

Let us first review Kopels’ criteria, by category and standard, of preferred requirements. Afterward I will offer my own modest reaction to any toward which I might find problematic. These criteria, due to page width and consequent formatting problems, are set forth in my PV-ERPO_Tlb-1.pdf PDF file.

The only requirements that I might find problematic are, first, providing appointed counsel for the Respondent, and, two, excessive discouragement of No-Knock Raids.

Addressing the latter first, while these entries are certainly subject to abuse, they are occasionally required. If specific restrictions are described for their employment, then these can be prudent.

A confiscation regime is a civil proceeding. Accordingly, the requirement of provision of appointed counsel could be questionable. Nevertheless, since these proceedings could be deemed quasi-criminal, such a requirement could be appropriate.

Other than these, I find Kopel’s requirements reasonable and prudent indeed.

Let us now address our attention to S.7 and S.506 to determine how their standards conform to Kopel’s requirements. While some of those requirements may not be appropriate to either bill, as its purpose is to provide financial grants and only prescribe minimum standards therefor, I will include all of them in the below table, and either fail to note an “X” in either the “Yes” or “No” column if inapplicable, infer a negative answer by its silence, or include an * when the answer is qualified.

Now let us see how well these bills measure up. This comparison, due to page width and consequent formatting problems, are set forth in my PV-ERPO_Tlb-2.pdf PDF file.

As is clear from this PDF file, both S.7 and S.506 are deficient in providing protections deemed by Kopel to be required; while the marks in the “No” column for S.506 are profuse, S.7 also exhibits numerous failing grades. This writer likewise concurs that insufficient protections are afforded to the potential respondents in these proceedings.

S.7 makes some attempts to afford protection to potential respondents, albeit not adequate in this writer’s opinion. Its profuse provisions, the verbosity being far in excess of the sketchiness of S.506, may detract from, rather than enhance, those protections.

S.506, however, makes no attempt to provide more than a facade of procedural due process. It provides only a bare skeleton, delegating to the States — a facile gesture to Federalism as §4 describes it as the “National Extreme Risk Protection Order Law” (emphasis supplied) — the task of defining the procedural requirements, none of which have to be more rigorous than the bare skeleton of S.506.

Nevertheless, an attempt will be made now to compare certain of the respective provisions in, and the anomalies of, these bills. These will be addressed, as above, in a chronological order, and thus not a ranking of the importance of these deficiencies:

1. Commencement
S.506 provides no definition of or limitation upon the persons who could file a petition, but wholly defers to State action. Theoretically, then, if each State acted likewise, any of some-325,000,000 persons could file a petition against anyone else, regardless of their facile lack of knowledge.

S.7 attempts, by its addition of 34 USC 3041(3), to limit those qualified to initiate a proceeding. Still, the breadth introduced by (3)(B), (3)(C)(ii), (3)(E), and (3)(F) allows a wide range of persons who could act from ulterior motives as well as, in some of the cases, have minimal current contact with a potential respondent. Curiously, the proposed addition of 34 USC 3042(b)(5) allows a State to limit qualified petitioners to only law enforcement officers without imposing it as a minimum requirement; by this it almost appears as an afterthought or as a cautious suggestion to the States.

2. Risk of Injury
Neither S.7 nor S.506 impose a high standard of prospective adverse consequences if a confiscation order is not entered. S.7 only requires a showing of significant danger, while S.506 even eliminates the adjective and is satisfied with just a showing of danger. Neither then is consistent with their titles of addressing extreme risk. Further, the criterion of just danger seems overly-broad, would “cast too wide a net”, and often can merely be in the “eye of the beholder”.

3. Burden of Proof
This it would seem is the most-important deficiency in the bills.

While S.7 fortunately does require proof at the adversarial hearing by clear and convincing evidence, it permits the entry of an ex parte temporary confiscation order upon only a finding of probable cause; as this does not satisfy even the preponderance of evidence, much less the clear and convincing, standard, it clearly seems inadequate. This writer considers Kopel’s argument — if an unopposed application cannot at least satisfy a clear and convincing standard then there would not seem much merit to it — persuasive.

S.506 fails even more than S.7 in this regard. For an ex parte temporary confiscation order it only requires a finding of reasonable cause. And for the adversarial hearing it allows entry of a confiscation order by only a preponderance of evidence. Along with its other provisions, S.506 seems to consider requiring confiscation to be the default posture.

4. Ex Parte Temporary Confiscation Order Evidence
If the standard for the burden of proof justifying entry of such an order were high enough, then neither bill would be fatally deficient in this regard. It is of course common practice for Temporary Restraining Orders to be determined and entered based upon affidavit only.

S.7 does require the petition to be accompanied by a sworn affidavit “stating the specific facts that give rise to reasonable fear of significant dangerous acts” and requires for the entry of a temporary order “detailed allegations based on personal knowledge that the respondent poses a significant danger”. It also requires the court to “conduct a hearing, either in person or by telephone”. If it also imposed a higher standard of proof, this procedure would seem sufficient.

S.506, though, in addition to the same inadequate standard of proof, fails to provide for like submission of necessary evidence. It permits the entry of an order if “the application alleges that the respondent poses a danger of causing harm”, with the application being “on a form designed by the court … that … describes the facts and circumstances justifying … an extreme risk protection order … and … is signed by the applicant, under oath.” Those with familiarity with court forms providing for check boxes allows them to apprehend that merely minimal and cursory allegations may well suffice.

5. Surrender of Firearms
S.7 appears to provide for sufficient procedural protection upon this aspect. While not explicit, the various sections providing for surrender indicate that voluntary compliance will be allowed. No necessary confrontation between law enforcement and respondents is envisioned.

S.506 again is less accommodating. As it defines an extreme risk protection order as either “a written order or warrant”, it suggest that No-Knock Raids may be a standard feature of its regime.

6. Storage of Firearms
Both S.7 and S.506 provide adequate provisions upon this aspect. However, S.7 is superior as, in addition to storage by law enforcement and Federal Firearm Licensees, it allows storage by responsible third persons, presumably acceptable to the respondent. Further, S.7 provides an express prohibition upon any action (or inferentially inaction) by a custodian that would deleteriously affect or impair the rights of the owner in the firearms.

7. Notice to Respondent
While both S.7 and S.506 refer to providing notice to respondents, neither prescribes that this will be promptly effectuated, much less within any defined period after entry of a temporary order or the issuance of a hearing notice. This obviously allows for potential abuse and, especially in the case of an ex parte temporary confiscation order, possible dangerous situations.

8. Conduct of Adversarial Hearings
Here also, as with the Burden of Proof aspect, there is an inexcusable failure to conform to procedural due process requirements.

S.7 provides that a court “may conduct the hearing required under clause (i) [the adversarial, not the ex parte, hearing] by telephone …” The respondent then is apparently deprived of the right of cross-examination, and possibly even of sworn testimony being required of the petitioner. This is wholly unacceptable.

S.506, if possible, is even more egregious. It provides no standards for the conduct of the hearing — not even telephonic “testimony”. Apparently, the only evidence it would require of the petitioner is the sworn application. S.506, it would seem, now introduces the novelty of “show trials” into American jurisprudence.

9. Malicious Prosecution Sanctions
S.7 at least endeavors to discourage abuse of its procedures. For it requires the States to enact a statute that any making of false statements under oath in these proceedings would constitute a Felony. While it would presumably apply also to respondents, any petitioner would likewise be subject thereto.

This should discourage any clearly-unjustified petition. However, since some prosecutors conceivably could be loath to prosecute these felonies, provision should have been made also for a civil remedy, as it would be under the control of the wronged respondent. No such provision exists.

S.506, as expected, makes no provision for either.

Other deficiencies exist in both statutes. Among these are some questionable categories of evidence treated as admissible, particularly those recited in S.7. However, this post is verbose enough as it is. Suffice it to say that the foregoing should demonstrate both bills require radical amendments in order to conform to well-established principles of American jurisprudence.

WAYNE A. SMITH
Sanilac County, Michigan USA
06 April 2019

UPDATE

The author belatedly became aware that also on February 14, 2019, Representative Salud Carbajal of California introduced in the United States House of Representatives his Extreme Risk Protection Order Act of 2019 (“H.R.1236”).

The author has now compared S.506 and H.R.1236 and they are identical.  Therefore, H.R.1236 displays all the deficiencies of S.506 discussed above.

Nevertheless, there is a further deficiency in both bills not previously appreciated.  Section 7 of both Bills recite:

SEC. 7. FULL FAITH AND CREDIT.
Any extreme risk protection order issued under a State or Tribal law enacted in accordance with this Act 14 shall be accorded the same full faith and credit by the court of another State or Indian Tribe (the enforcing State or Indian Tribe) and enforced by the court and law enforcement personnel of the other State or Tribal government as if it were the order of the enforcing State or Tribe.

However, Section 4 of both Bills, in pertinent part, recite:

SEC. 4. NATIONAL EXTREME RISK PROTECTION ORDER LAW.
…
(b) ADDITIONAL AUTHORITIES.—Legislation described in this section may—
(1) provide procedures for the termination of an extreme risk protection order;
(2) provide procedures for the renewal of an extreme risk protection order;
(3) establish burdens of proof for issuance of orders described in paragraphs (3) and (4) of subsection (a) that are higher than the burdens of proof required under those paragraphs; and
(4) limit the individuals who may submit an application described in subsection (a)(1), provided that, at a minimum, law enforcement officers are authorized to do so.

Therefore, Section 7 is manifestly inconsistent with Section 4.  Suppose State A enters an Extreme Risk Protection Order (“ERPO”).  The ERPO is then sought to be enforced in State B

However, State B, pursuant to Section 4(b)(1), (3), and (4) has enacted similar legislation but with standards more rigorous than those of State A; those higher standards might conceivably have resulted in denial of an ERPO if sought in State B.  Nevertheless, Section 7 would purportedly require enforcement of the State A ERPO even though unjustified by the laws, and against the public policy, of State B.

Hence, thereby, would the Police Powers of State B be supplanted and controlled by the laws of State A.  Federalism is not intended to allow, nor does it permit, the lowest common denominator to dictate the laws of another State.

For this reason also, these Bills are unacceptable.

WAYNE A. SMITH
Sanilac County, Michigan USA
03 September 2019

 

 

Limitations of Science

[The below consists of a comment by the writer on The Volokh Conspiracy blog on a posting about today’s “March for Science”.]

While I have no essential difficulty with the concept of “evidence-based policy” — ignoring for the moment the intractable problem of capacity limits on apprehension of evidence, the accurate measurement thereof, and the interpretation of this data — it seems to me the real questions consist of:

One, what policies ought to be addressed, and,

Two, if it is decided that a particular policy ought to be addressed, how is it to be implemented; a subsidiary question to the latter is who is to implement it.

A wide swath of issues and problems are a constant feature of existence. However, does this mean that a uniform policy ought to be formulated to address any specific one? Ought not some be deferred or avoided simply because they are beyond the capacity of mortal minds, or as they involve such conflicting values or considerations that any policy is unfeasible?

Even if there is sufficient concord that a specific problem ought to be addressed by a particular community, there remains the question of which facet of the community ought to address it. Climate Change might be a good example. While I fully concur that excessive human activity necessarily has a deleterious effect, might not the best solution be individual, rather than concerted, behavior to restrict one’s unnecessary activities? A perception that the existence of a problem automatically necessitates the formulation of a policy to solve it is the threshold for oppressive centripetal interference in all areas of life.

Finally, there always remains the issue of the hubris of certain science advocates. It appears to me that many may be excellent technicians but are unaware of the very nature of science, perceiving it as some vehicle for identifying Reality or even Truth. (While announced in a different context, with a different meaning and for a different purpose, Pilates’ famous question of “What is Truth?” is a thought of continuing relevance.) Even Reality is a chimera subject to constant metamorphosis.

It seems that many of these proponents have forgotten that the scientific process is to constantly search for and identify new data and to formulate an hypothesis that comprehensively and accurately explains this data. It is a process, and for a purpose, that is much more humble and modest than to Discover Reality — unless one adopts a definition of Reality that is itself modest.

WAYNE A. SMITH
Forester Twp, Michigan USA
22 April 2017

A Well-Armed and Well-Regulated Militia as a Mechanism for Gauging the Presence of Tyranny

Certain semiautomatic rifles, particularly the AR-15 and similar configurations, have been characterized by some as “weapons of war”. Since there are significant differences between the AR-15 and M16, particularly in the modes and rate of fire, it is well-known the characterization is inaccurate.

However, given the similarity in general design, including its ability to accept a high-capacity magazine, let us for the moment accept the designation as a “weapon of war”.  Does this then disqualify it for civilian ownership?

Preceding posts have sufficiently demonstrated, it is believed, that a large block of civilians in this country are compelled, in certain exigent circumstances, to provide military-type services to the country or their State in their capacity as members of the unorganized militia — or at least be available and prepared to do so.  By definition, then, would they not be engaged in war-type activities?  And, if so, should they not then be experienced in and have available a “weapon of war”?  How then can they be proscribed from ownership of and familiarity with such a weapon?

Moreover, the statutory prescription of potential militia service is parallel to the prefatory clause of the Second Amendment.  While historically and contemporaneously there have been continued conflicting interpretations of the purpose and scope of the amendment, there can be no dispute it includes two (2) clauses and that at a minimum the right to keep and bear arms was to enable the people to perform militia service.  Now, by both historical and legal definition, the performance of militia service was engagement, as the circumstances might require, in paramilitary and military service.  How then is the keeping and bearing of a “weapon of war” incompatible with this capacity?  Rather, does not this capacity instead require it?

One might also analyze the question from the perspective of the purpose of a militia.  It is beyond cavil that a militia was considered more harmonious with liberty, in contrast with the greater threat to liberty that was posed by a standing army.  While not as universally accepted, there was also an understanding that a militia could potentially act as a bulwark against a standing army controlled by persons with objectives in conflict with those of the larger — or, at least, a sufficiently substantial — body of the people.

Certain critics have cast scorn on the continued viability of this function, given the geometrically-superior firepower of the country’s military forces. How can, they say, a militia equipped with AR-15s and sidearms realistically oppose a standing army with, inter alia, M16s, tanks, fighter aircraft and bombers?  This however overlooks a singularly perceptive observation (or, at least, its corollary) from our Declaration of Independence.  It is tendered that this provides the mechanism which preserves and proves the viability of such a resistance — albeit one that hopefully will never be required.

Mr. Jefferson noted that “[p]rudence … dictate[d] that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.”  Thus, even if evils are being perpetrated, they are likely to be borne by the greater body of the populace if they are not excessive and egregious.  Any rebellion by an insignificant body of the populace then allows, if not compels, a conclusion that the causes of the outrage are sufferable.

What then is the conclusion that is allowed, if not compelled, when a significant body of the populace engages in some form of insurrection?  It is tendered that it should be deemed then that these evils have now become magnified into ones which are excessive and egregious.  And it seems Mr. Jefferson concurs, as he further states that in such an instance of “… a long train of abuses and usurpations … evinc[ing] a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”

Let us then suppose that just Five percent (5%) of the population between 15 and 54 years of age deemed themselves outraged by a “long train of abuses and usurpations”.  Nay, instead of more than 8,500,000 citizens, let us suppose that but One percent (1%) resolved to resist what they deemed despotism.  What is conceived to be the likely reaction of the U.S. military forces to a civilian force of more than 1,700,000 citizens?  Would they likely view with equanimity the slaughtering of such a large body of their fellow citizens, deeming it to be consistent with morals and the law?  Wouldn’t they instead be likely to conclude that the perceived grievances of their fellow citizens had become, consistent with Mr. Jefferson’s formula, “insufferable” and due to excessive and egregious “abuses and usurpations”?

It is tendered that out of natural and innate morality — much less and regardless of any concern for their potential jeopardy as a consequence of possible commission of War Crimes and Crimes against Humanity — these military forces would conclude that the actions inspiring such resistance, as well as any orders to overcome such resistance, were patently illegal, and therefore would themselves resist.

It would be impossible of course to reduce to mathematical certainty what proportion of the citizenry would be required for an observer to conclude that resistance was legal rather than illegal.  Suffice it to say that there would be sufficient parameters, when viewed in the context also of any surrounding relevant circumstances, to allow a resistance by a substantial body of the citizenry to be cause for concluding the resistance was justified.  And upon a determination of such justification would instead eliminate the despotism that caused the resistance.

Consequently, a citizenry keeping and bearing arms sufficient to cause a suspension of exertion of force against them, in order to allow an assessment whether their actions were rather justified, demonstrates that the existence and interposition of a militia remains a viable mechanism for resistance to potential despotism.  And the keeping and bearing of arms compatible and consistent with their function as a militia continues to be an essential right.

WAYNE A. SMITH
Forester Twp, Michigan USA
04 July 2016

Duty of Every Citizen as Militia Member to Defend State as Nullification of Restrictions upon Means of Defense

As suggested by my three (3) postings this past February 26, I commenced work upon and intended to post the below shortly thereafter; however, other circumstances and obligations interfered with my completion hereof. Those three (3) postings provide context and reference for this posting and, in some respects, elaborate on this subject.)

The massacres over the past seven (7) months have, as is well-known, resulted in more calls for “gun control”. Unfortunately, these have to a great extent focused on the type of weapon used rather than the type of person who used the weapon or, perhaps more precisely, the deficiencies in the person who used the weapon.

In my opinion, the controversy and ill to be eradicated can be better addressed by attention to the well-regulation of persons who acquire what are deemed to be certain kinds of weapons that justify further regulation. This is further addressed at length in my ASSAULT WEAPONS BAN Memorandum, one of those postings published at this site on February 26. For prolonging exhausting and futile discussions about types of weapons, with certain exceptions of course, ignores and repudiates the reality of the right to keep, and justification for keeping, arms, the obligation to do so, and the necessary circumstances incident to the exercise of this right and obligation.

It is indisputable that there is a natural, and long-recognized common law, right to self-defense.  Nay, the writer tenders that there is not merely a right but further a duty of self-defense. The fact of birth of each living person is a given. If a person was born, then there is a reason for his or her life, be it, among possibly others, the choice of God, or the decision of his or her parents, or a role or purpose for him or her to perform, or an objective for him or her to realize or status to attain. In any event, the very fact of the person having life necessarily implies that it ought not be terminated but ought be allowed to endure, for fulfillment of whatever might have been its reason; for each person had no control over and was not the cause of his or her birth. If then he or she as it were was “impressed into duty”, he or she has no right to shirk this duty but rather a further duty to defend himself or herself from anyone who might endeavor to terminate their life and thereby prevent him or her from performing this duty or realizing their destiny.

The right to keep arms is but a corollary of that right and duty. While the circumstances under which one might have to defend oneself have not it seems been explicated, nevertheless the scope of this right of self-defense is intrinsically wide. For it must encompass at least each of the situations where a person is called upon to defend oneself against a:

  • savage animal,
  • solitary criminal aggressor,
  • band of criminal aggressors,
  • foreign or rogue domestic paramilitary force, or
  • foreign or rogue domestic military force.

All of these situations indicate that there can not be a severely-circumscribed scope of arms to which one is entitled. For an individual weapon that might be sufficient to protect oneself from a small savage animal would not be sufficient to protect oneself from a military force. Consequently, the conclusion must be that a person is entitled by right to keep arms that are sufficient to protect oneself against each of those exigencies.  [The writer of course recognizes that there are certain legal limitations to a broad rule — limitations though which are not incident to or inherent in the natural right of self-defense — as historical usage has, first, extended the entitlement to weapon types which an individual would commonly keep and personally bear, and, two, carved out weapon types that are specialized or might be usually stored in a facility such as an armory. Still, the burden should be upon the one arguing for a restriction that the type is one that should fall into the latter, rather than the former, category.]

Buttressing this line of reasoning is the insufficiently-examined significance and description of what a militia consists. The coupling of the militia phrase in the Second Amendment is frequently used as an argument that the right in the succeeding phrase should be limited.  However, this ignores what was the understanding of the composition of the militia at the time of its adoption. In addition, even the present meaning of the term “unorganized militia” — assuming that the term’s existence is even recognized, much less the significance thereof appreciated — encompasses a broader range of persons than is frequently acknowledged.  (For the succeeding citations the reader is referred to the writer’s Statutory Definitions of U.S. Militia posting this past February 26.) As a perusal of 10 USC 311 indicates, all able-bodied citizens of the United States, between the ages of 17 and 44, inclusive, are automatic and mandatory members of the militia. It would seem that the States have authority to expand the composition thereof since, for example, Michigan has expanded, by 16 years, the age group of persons who compose its unorganized militia, they likewise being under compulsion to be members of the State militia. MCL 32.509.

And what duties and in which circumstances may the unorganized militia be called upon to perform? Among them are to:

  • “… suppress Insurrections and repel invasions” US Const, art I, § 8, cl 15.
  • serve in the defense force “… in case of riot, tumult, breach of the peace, resistance of process, or for service in aid of civil authority, whether state or federal, or in time of actual or imminent public danger, disaster, crisis, catastrophe or other public emergency within this state.” MCL 32.555.

At a minimum certain of these duties, and the circumstances in which they would be performed, clearly are paramilitary or military in character. And is not some of the material with which they must be equipped well known?

If these persons are then part of a contingent military force and thus would be bearing arms in this service, is it not then incumbent upon them to have available and be trained in the use of the weapons which they might be required to employ in a hostile action? And it would seen that such a possible scenario is not simply academic, since, for example, both the U.S. Constitution and the statutes of Michigan allow the President and the Governor, respectively, to call forth the unorganized militia in exigent circumstances. US Const, art I, § 8, cl 15; MCL 32.555. If a person then is a potential military conscript, is not familiarity and training in the use of the arms necessary for them to competently perform their function essential?

Now it is perceived that an argument might be presented that the arms need not be kept by these members of the unorganized militia, but could be stored in some type of armory facility. However, in addition to this being inconsistent with the terminology of the Second Amendment, viz, a right not only to bear but also to keep, there could be a gross impracticability in the administration thereof. For in the event of some type of untoward and unanticipated emergency, might not the members of the unorganized militia require immediate resort to those arms? In addition, having the arms constantly available allows these members to frequently practice and train and perfect themselves in the use of the weapon, something that would not be as conveniently, if at all, possible if they were not always readily available.

In sum, undue restrictions upon the types of weapons available to the populace would not only be inconsistent with but would conflict with and vitiate both the rights granted to them and the duties imposed upon them. For these reasons, any effort to restrict or prohibit certain types of weapons appropriate to these potential functions would negate and interdict this right and this duty.

The writer shortly will further address a related issue in a succeeding posting.

WAYNE A. SMITH
Forester Twp, Michigan USA
03 July 2016

“Safe Communities, Safe Schools Act of 2013” Bill Commentary

[This is being provided both as an independent commentary and as further background to a later post to be published, the below though not being issues to be directly addressed therein.  This constitutes the body of an additional letter, this being disseminated during April, 2013, by the writer to Michigan’s two U.S. Senators.]

I provide this in my capacity as one of your constituents for consideration in your deliberation on the “Safe Communities, Safe Schools Act of 2013” Bill.

While I may have overlooked some material improprieties in Title II or Title III of the bill, it would appear to me that, other than the reference in Sections 203 and 205 to “ammunition”, that these provisions are within the jurisdiction of Congress, do not offend any rights secured to the States or the people, and appear to be reasonable policy.  I however exclude from this sanction the above reference to “ammunition” since it is not mentioned in the preceding sections and therefore is beyond the scope thereof.

I do though have significant problems with Title I of the bill. In fact my difficulties with it are so many — a conclusion that surprised me as I thought many of the opponents of broader background checks were being too extreme — that I am uncertain that I can set forth these objections in as complete or organized a fashion as I would prefer.  Initially I would note that the prohibition set forth in Section 122(a), especially when taken in conjunction with the definition of transfer set forth on pages 13 and 14 of the bill, is far too broad.  In addition to it being so intrusive, as affecting almost every conceivable action constituting a “transfer”, and therefore being in violation of Amendment X of the Constitution, its prohibition on transfer, except by means of the conduit through a federally-licensed person, is a deprivation of a property right that renders it in conflict with Amendment V of the Constitution.

The very narrow and minimal exceptions set forth on pages 11 through 13 of the bill prove the excessive inclusiveness of this prohibition.  Reviewing and reflecting upon them it is an easy matter to conceive of a whole panoply of normal and innocent activities involving a firearm that would be criminalized by such a prohibition.  For example, a person who visited another friend (in a rural area where there was no ordinance prohibition on firearm discharge) and who, while engaged in target practice on his friend’s property, handed his firearm to the friend standing next to him, so as to allow him to practice with it, would apparently be guilty of a felony.  Can it be imagined that it was anticipated that the federal government was permitted to regulate such an extensive range of otherwise permissible and innocent private activities?

The obnoxiousness of the proposed regime, it seems to me, is further proved by Section 123 of the bill. Now a person who has his firearm stolen and fails to at all realize he has to report the theft to the U.S. Attorney General, or is too busy for, say, a day-and-a-half to so report it to the federal government, is also guilt of a felony?  Is it really conceived the U.S. Congress has the constitutional authority to prescribe such conduct ordinarily within local purview only?

I could focus on other provisions and set forth the basis for why these are defects, but I trust the foregoing adequately indicates the core deficiency of Title I as currently drafted.

I understand that Senators Manchin and Toomey are engaged in endeavoring to fashion a compromise substitute for Title I.  I believe the effort is directed at regulating only arms-length transactions, such as gun show sales and online transactions and to not include temporary transfers or those between people who the owner knows or with whom he has the opportunity to familiarize himself. This seems consistent with the catalytic purpose of the bill, viz, preventing firearms from coming into the possession of prohibited persons; for under the latter circumstances the owner knows or would have the opportunity to know whether the recipient appears to be a prohibited person. And if the owner nevertheless delivers it to a prohibited person can be penalized under existing law or perhaps Title II (or a variation of Title II).

Thus I would urge support for such a substitute for Title I.  Failing an adequate substitute, then I would urge a Nay vote on the current version of Title I.

WAYNE A. SMITH

STATUTORY DEFINITIONS OF U.S. MILITIA

[This is being provided both as an independent memorandum and as an introduction to a later post to be published.]

UNITED STATES

10 USC 311 Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are-

(1)  the organized militia, which consists of the National Guard and the Naval Militia; and

(2)  the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

(Aug. 10, 1956, ch. 1041, 70A Stat. 14; Pub. L. 85?861, §1(7), Sept. 2, 1958, 72 Stat. 1439 ; Pub. L. 103?160, div. A, title V, §524(a), Nov. 30, 1993, 107 Stat. 1656 .)

MICHIGAN

MCL 32.509 State military establishment; composition; organized and unorganized militia.

The organized militia of this state taken collectively shall be known as the state military establishment and constitutes the armed forces of this state. The organized militia consists of the army national guard, the air national guard, and the defense force when actually in existence as provided in this act. The unorganized militia consists of all other able-bodied citizens of this state and all other able-bodied citizens who are residents of this state who have or shall have declared their intention to become citizens of the United States, who shall be age 17 or over and not more than age 60, and shall be subject to state military duty as provided in this act.

History: 1967, Act 150, Imd. Eff. June 30, 1967

MCL 32.555 Unorganized militia; power of the governor.

The governor may order into the defense force any members of the unorganized militia in case of riot, tumult, breach of the peace, resistance of process, or for service in aid of civil authority, whether state or federal, or in time of actual or imminent public danger, disaster, crisis, catastrophe or other public emergency within this state.

History: 1967, Act 150, Imd. Eff. June 30, 1967 ;– Am. 2013, Act 99, Imd. Eff. July 2, 2013

 

ASSAULT WEAPONS BAN Memorandum

 

[This is being provided both as an independent commentary and as an introduction to a later post to be published.  This was drafted originally as an enclosure to a letter disseminated during February, 2013, by the writer to Michigan’s two U.S. Senators.]

This is provided as a brief commentary in connection with the consideration of the “Assault Weapons Ban of 2013” Bill, introduced in the United States Senate, and any similar bills that might be or have been introduced in either house.

Certain enhancements of the current regime may be appropriate, but I would tender that a ban of either so-called “assault weapons” or so-called “high capacity magazines” — being terms of art and having no meaning independent of arbitrary statutory definition — would be patently unconstitutional.  In addressing the question one should first give attention of course to Amendment II of the Constitution of the United States of America, viz,

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. [Emphasis supplied]

By the use of the terms Militia and Arms, it is clear that certain weapons arguably of a military character are not prohibited to the people but rather protected from infringement.  Thus, the use of the term “weapons of war” as characterizing implements that can be restricted is plainly a canard.

Now, by the terms of the amendment, the right is not unrestricted, for there are also present, one, the terms keep and bear.  The latter term protects only those arms that could be borne by an individual and whose primary capacity and use is to incapacitate or disable a single individual with each discharge, and the former term further identifies arms as those that both can be and historically are of a type that would have been kept by the people in their individual capacities, viz, arms that by the nature of the function they were designed to perform would not have been stored, in preparation for use, in a community armory.

However, more signal as a criterion is, two, the adjective well regulated.  The right to bear military (or quasi-military) arms is within the context of their disciplined use.  The concept of discipline reminds me of the analogous context of the CPL structure in Michigan.  Any person can, unless within certain defined categories, purchase and maintain a handgun.  However, they are not permitted to carry it concealed without certain training by an authorized person or persons.  By this they are both enhanced in the practical use of the weapon and also subjected to the observance of the instructor, as well as the other participants, in the process.

Thus, might not a tiered system of training, relative to the type of weapon to be used or the context of its use, thereby resulting in a better regulated citizenry, pass constitutional muster?  It would seem it might if the various additional levels of training required were not so arbitrary and capricious as apparently designed simply to be obstacles to the right to bear. In addition to imposition of a greater sense of responsibility upon the person, the additional training required should provide significant opportunities for observation by the other trainees as well as the instructor of any possible psychological or personality aberrations exhibited by any of the participants; if unacceptable or abnormal attributes were observed, then the observer could report this behavior, a determination that the offending person failed in his training might perhaps be issued, and the right to bear such a weapon possibly obstructed.  This it would seem would offer the most efficacious and practicable solution to problems ineffectually attempted to be addressed by misguided “gun control” restrictions.

Would institution of such a regime be consistent with the powers of Congress?  In addressing this question it would now seem appropriate to give attention to the following provision of the Constitution of the United States of America:

Section 8 – Powers of Congress

The Congress shall have Power

[Clause 16]

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; [Emphasis supplied]

The Congress then has the explicit power to prescribe the training discipline to which the citizen-soldier is subject.  This would include it would seem the reasonable level of knowledge, skill and mental acclimation to use an “assault weapon” equipped with a “high capacity magazine”, or other implements of war that can be kept and borne, as a condition to the purchase and keeping of it.  And depending upon the implement there could be gradually expanding levels of training for each, as appropriate.

To my mind, such a regime would provide the necessary amelioration to certain problems conceived to exist in the abuse of these types of weapons, while avoiding the constitutional defects incident to an effort to ban them.

While other proposals in the aforesaid Bill might be consistent with the Constitution, and also be amenable to a sufficiently broad range of the populace, and thus appropriate, I have focused here simply on the provisions endeavoring to ban “assault weapons” and “high capacity magazines”.  For the above reasons I consider these provisions constitutionally defective, in addition to being misguided as the objectives thereof ought to be attained by alternative and more acceptable mechanics.

WAYNE A. SMITH

Voter “Suppression” Revisited

[This is in supplementation of my previous post regarding this issue.]

One primary motivating factor behind expanding the electorate — or the ease of exercising the franchise — is the apprehension that “Democracy” is somehow the highest form of government. This type of conception seems unfortunately too much akin to the usual superficial analysis by present society of most questions and subjects.

As we know, classical political theory, first discussed by Aristotle, conceived of three (3) types of government forms — government by the one, by the few and by the many — none of which were considered intrinsically superior to the other; rather they were respectively considered better than the others for a particular community depending upon the type and development thereof.

These classical types were denominated as: Monarchy (or Kingship); Aristocracy; and Democracy. It was conceived however that the proper functioning of these forms could deteriorate and become corrupt. The corrupt forms thereof, respectively were denominated as: Tyranny; Oligarchy; and Ochlocracy (or Mob Rule). Polybius later conceived of these forms as a cycle, with one leading to the other, viz, Kingship -> Tyranny -> Aristocracy -> Oligarchy -> Democracy -> Mob Rule -> Kingship, and ad infinitum.

We no longer of course talk in these terms. We talk in the terms of Bad Government, on one side, and Democracy, on the other. This is unfortunate, for two reasons.

First, a lack of precision yields superficial, and therefore inaccurate, analysis. Vague definitions result in vague thinking. Yet present practice is to subsume too much under the rubric of “Democracy”. It hence has little meaning and less utility as a tool to measure competing policies. If we then want to avoid muddled thinking, we must avoid this muddled definition of Democracy and instead revert to a narrower and delimited sense that is more in keeping with its original meaning. This will yield benefits not only in this specific context but, by training a more rigorous habit of mind and thinking, by replication of this type of analysis in related contexts.

But even more importantly, by failing to recognize the boundaries of legitimate democracy, we stray into a rampant wilderness that our forbears rejected. Studied observation over millennia resulted in a normative conclusion that Democracy is capable of degeneration into a mutated monstrosity. Vigilance in scrutiny, to enable discovery of any aberration from its accepted limits, was as important here as it was for detection of corruption in any of the other forms of government.

Such a perspective then would sanction any form that would partake of the characteristics of or otherwise resemble classical direct democracy. Critical elements of this of course would be presentation of arguments and evidence directly to the citizens of the community and personal approval or rejection by them of the proposed legislation or policy; similar systems are known by us in the original New England Town Meetings setting. Mechanics that would tend to stray beyond such norms would be suspected of likely tending toward or at least laying a foundation for what they characterized as Mob Rule.

Presently though we do not seem to be concerned about such propensities. We seem to think that expansion of what we deem Democracy by ever greater indirect participation tends toward a favorable outcome. [However, this, among other things, confuses the franchise  — and its exercise in elections  — with Democracy; it is not the sine qua non of Democracy much less the definition of it but just a device for the selection of magistrates for a variety of forms of government, since both Kings and Aristocrats occasionally were chosen by election (in one form or another)].

Further, if we are prepared to accede in the “wisdom of the ages”, then we have to be concerned about and seek to avoid departures that might tend toward what could be characterized as extreme democracy. For if we accept these premises of classical theory, then it would seem only those elements that have historical frequency predominance would be deemed appropriate components of Democracy — since they would have developed during the Early and Middle stages of each community and therefore not in the fringe stage most contiguous to Mob Rule; all communities that had the experience of Democracy would have passed through an Early and Middle Stage but not necessarily a Late Stage, and thus measurement of frequency would yield identification of elements more common to the former — and therefore before deterioration and corruption.

I would tender that devices which make it too easy for too many people to indiscriminately elect various partisans are subject to such a characterization. As such, then, they likely would be viewed by the ancients as indicia of entry into the Mob Rule phase and, hence, would be rejected. I then would suggest that we should very critically view:

  • early voting,
  • extended voting periods, and
  • expanded absentee voting,

presuming they are generally dangerous and destructive of the interest of the society. Such a conclusion would proceed from the recognition of these devices as novel, and therefore not inherent in core Democracy. (Again, we must remember that the weight of authority and wisdom rejected erection of any hierarchy of particular governmental forms, which would treat one as usually superior to another, but deemed each as possibly more appropriate for a particular time, conditions and circumstances. Thus, unless experience demonstrated that certain devices or modes were commonly practiced, they would be considered a corruption, being arbitrary and subjective.)

Unfortunately, our present age seems to be afflicted with unparalleled arrogance. Rather than accepting the societal application of the Second Law of Thermodynamics principle, it views change as “progress”, i.e. transformation that is good and positive, rather than of what it most often partakes, viz, deterioration into corruption. Thus study of the old is repudiated and “new ideas” are what are honored; somehow an absence of the “burden” of history is beneficial, enabling the constant pursuit and introduction of new forms.

This rejection of historical restrictions on election procedures in favor of adoption of untried and untrue procedures is but one example. But it is the example, in the writer’s repudiation of the demagogic “voter suppression” diatribe and characterization, that is castigated here.

WAYNE A. SMITH
Forester Twp, Michigan USA
26 Oct 2014

Voter “Suppression”

Procedures to purportedly enlarge or restrict access to the ballot, as well as also enlarge or obstruct convenience in voting, are of course a matter of current controversy. Much can be said supporting, and significant educated thought does support, procedures that are restrictive; yet, on reflection, it would even appear that such mechanics ought to be viewed and accepted as reasonable by most observers almost without cavil.

Historically, of course, the franchise was limited to persons who were deemed to have a sufficient “stake in the society”. During Colonial times in the American colonies, and extending to the early years of the Republic, this consisted of a requirement of, and was measured by, the ownership of a certain minimum amount of land; unless one met this minimum property qualification, the franchise was not extended to them. The majority of the populace — at least voting populace — as well as Founding Fathers deemed this kind of a requirement to be a reasonable method to assure a virtuous government and citizenry.

Opinion has of course turned. Such a perspective seems “no longer in style”. Much of this is due of course to the abuse that occurred when the States of the former Confederacy instituted certain procedures in connection with and built certain roadblocks to the exercise of the franchise for ulterior and illegitimate reasons; therefore, caution has to be exercised in approving adoption of any such procedures and roadblocks as they likely might be tainted by malignancy. But this alone does not mean the objective of a virtuous government and citizenry is thereby also tainted.

For everyone should be able to agree that all to whom the franchise is extended should be capable of being educated as to the issues to be decided. Further, it seems likely to be without dispute by virtually all that a voter, to properly exercise the franchise, ought to be first informed about the competing considerations and qualifications upon the issues or candidates being submitted to a vote. Unless they are sufficiently informed, how can a vote be made intelligently and with a salutary result? But how would one measure whether a person who is casting a vote is qualified and the vote itself is well-considered? Many mechanics have been used, frequently with discriminatory and unjustifiable effects, if not intent. So these generally should be considered beyond the pale.

However, in what seems a swing of the pendulum to the opposite extreme, there now are new artificial devices being suggested to be employed, and these for the purpose instead of expanding or promoting greater access. But do not these seem just as objectionable? It would seem the following ought to clarify, address and constitute a rejoinder to these concerns.

Ideally, both the capacity and the degree of investigation should be of a sufficiently-high level. The rub of course is the problem of quantifying both (or perhaps either) capacity and issue/qualification education.

Optimal capacity to assess and knowledge of the issues is of course but theoretical, as all have intellectual limitations and comprehensive knowledge is but a phantasm; therefore we can dispense with any serious attempt to utilize either measure. The objective to secure then is the best possible approximation of optimal capacity and knowledge while also avoiding the abuse that (even if not intrinsic) frequently becomes attached.

It would appear that this objective can be legitimately attained not by erecting it as a filter but rather allowing it to develop naturally, in the ordinary course of events, simply as a normal and unobjectionable byproduct. This proceeds from the normal relationship between the relevant factors.

It should be conceded that one of the axioms in society is the direct relationship between an interest in exercising the franchise and the willingness to educate oneself on the issues. Thus, if one is not motivated to or has a low interest in voting, it is equally likely they will have expended an equally low level of effort to educate themselves as to the competing factors on the issues. Cannot all agree that electors should vote wisely and on a rational basis? Thus, it would seem most should agree that procedures ought not to be adopted that circumvent and fail to take into account the degree of interest. Making it easier to vote then circumvents the effect of the level of interest in voting. Therefore, most should agree that procedures to make it easier to vote are imprudent as they enhance the proportion of uneducated voters likely to vote.

Now, from a different facet and interjecting an additional contrary rationale, efforts to abnormally elevate interest in or willingness to exercise a franchise should be deemed inconsistent with the purported objective and therefore objectionable. If a person has a lower than average interest or willingness, then, if a motivator or facilitator is able to overcome their resistance, it should be presumed the rationale employed reflects the policy preferences of the motivator/facilitator; for if the elector was uninclined to exercise the franchise, the overcoming of the resistance had to be the result of some argument of the motivator/facilitator and any argument by such a person must necessarily be the product of and reflect those preferences. However the argument in favor of enlarging participation is that it will avoid the interests of an otherwise unrepresented segment from being so unrepresented and will enable the interests of more of society to be represented; but if the above analysis is sound, then the policy preferences of the motivator/facilitator will be unduly represented by having his or her choice magnified. Would this not then be inconsistent with and rather a repudiation of “equal protection” of those with a contrary viewpoint and result in the dilution of their choice and selection?

The mantra in opposition to measures that might discourage exercise of a franchise constantly echoes that these constitute voter suppression. But haven’t we always had “voter suppression” since we have requirements of, among others, citizenship, age and residence duration. Do these not restrict and in a sense suppress? And aren’t these type of requirements beneficial since they are designed to be inclusive of those persons who are more familiar with the relevant factors bearing upon the respective choice, and thus better likely to make an educated and rational selection? For, as an example, allowing those persons who only have a new and temporary relationship to a community the right of the franchise are clearly more likely to result in superficial, uneducated choices, ones more imbued with and the product of irrational, emotional influences.

True, various persons not infrequently have malicious motives in the procedures and mechanics they propose. And rational dispute can exist as to which is most propitious of various targets. But one objective seems unassailable, and this, not so much as an educated electorate — the standards for and attainment of which might be problematic — but an educated vote. For attainment of this objective, any policy that has as its goal the elimination of reasonable restrictions on the exercise of the franchise ought to be subject to the most rigorous and critical review and critique.

 

WAYNE A. SMITH
Forester Twp, Michigan USA
6 Aug 2014

Gun Control

Do we need Gun Control? Looking at our world and the obscenities and tragedies rampant throughout it, it seems the answer has to be a resounding YES!

However, I would suggest a direction and focus that might be a bit different from what is likely the common answer. I would suggest that the direction and focus should be on controlling access to and use by our Political Leaders rather than, the usual suspects, the Private Citizen.

We have tragedies in Israel/Gaza, the Ukraine and all over the Middle East and Central Asia, to name just a few. After stepping back and taking a look, do we really want access and control in the hands of the likes of, for example, Vladimir Putin, Benjamin Netanyahu, Khaled Meshaal, or Barack Obama?

I would suggest that just about, say, any N.R.A. Member is more trustworthy than any of those people. So, Yes, let’s start a move toward Gun Control, by exerting more overview of and placing more limitations on the use of Military Force by all Political Leaders. (In the meantime, why not just move on from some of the concerns about our Private Citizens and allow them to continue to retain and exercise their rights in this arena.)

Sound reasonable?

WAYNE A. SMITH
Forester Twp, Michigan USA
18 July 2014

Bonuses to Government Officials? Revisited

Since posting of my earlier message, I had occasion to reflect further on the appropriateness of bonus awarding. This resulted in a reinforcement of the hypothesis that they generally are unjustified.

A person agrees to render services for a specified compensation. He then performs his obligation and a benefit, theoretically at least, is realized by the person with whom he contracted. If the benefit is greater than might have been anticipated, and if this might be due to the ingenuity and perspicacity of the service renderer, is not the result and is not the nature and extent of the services but the scope to which these parties earlier agreed? If so, why is the one due anything more than what he agreed to accept? (Though the dynamic and principle is different, one could look to Matthew 20:1-16 to see a parallel scenario.)

But, for argument, let us accept that a bonus might be able to be justified in an activity performed in the For Profit Arena. While it should be carefully structured  — because of the great possibility of abuse if loosely granted and administered  — it might be permissible under limited situations where a significantly greater-than-expected result is produced. But is this what is expected in the Governmental Arena?

Here, the dynamic and principle is to unilaterally provide benefit to the citizens, without a corresponding benefit to the government; a government exists only to do what the citizens cannot easily and efficiently do themselves, and thus it is to serve, not to itself benefit.

Further, because it is the agent of many, it has been delegated extraordinary power, that must be carefully controlled and exercised. Authorizing bonuses for its personnel, because a personal benefit would be received by them as a consequence of the performance of their duties, only encourages potential excessive and onerous exercise of this power, even though the dominant principle is to confine and restrict exercises of power, as being fatal to liberty.

Hence, for both these reasons also, allowance of bonuses to government officials is even more obviously wrong and impermissible.

WAYNE A. SMITH
Forester Twp, Michigan USA
14 May 2014

Bonuses to Government Officials?

Only recently has it come to my attention that certain government agencies provide bonuses to certain of their employees. To say the least, I was astounded and shocked!

On what basis could a public agency justify providing bonuses? Now, the answer may be given that private enterprises not infrequently do provide such extra compensation. But those private enterprises (or most of them) are, by definition, profit-making ventures; their purpose, in addition to providing a valuable product or service, is to make money.

The only reason for the existence of a government agency is to perform functions that its citizens are unable to, or at least can only inadequately, perform for themselves. Thus, its purpose is but to minister in the interest of and upon behalf of its citizens. Consequently, private enterprises and government agencies have different characters and postures, and thus must need be organized on different principles.

Perhaps most saliently the private enterprise is paying bonuses from its own monies; and its shareholders have the capability to directly control awarding, or not awarding, such compensation. The government agency though would be paying these bonuses from someone else’s money, that is, from the pockets of its citizens. And who could possibly say the citizens have the de jure, much less de facto, power to countermand such awards?

Yet someone may say: But certain of our officials perform long, arduous service and thus are entitled to this extra compensation. If so, might not the answer be to appoint additional personnel and divide the work between them?  — so that the volume of work is now more in proportion to the compensation? Not only would this seem to resolve the putative objection, but would have the further salutary benefit of allocation of authority between numerous officials and, thus, division of power.

WAYNE A. SMITH
Forester Twp, Michigan USA
27 April 2014

Income Inequality / MINIMUM WAGE

Various discussion has recently been generated over the issue of “income inequality”. Ancillary to this has been controversy over the practical repercussions and moral posture of an increase in the Minimum Wage. It is possible that in the noise some perspectives have been ignored. (One which the writer believes can be ignored is the effect or lack thereof on income equality from such an increase, since to this individual it seems clear that any effect would be de minimis.)

In analyzing the questions we should first consider: Who is the Minimum Wage intended to benefit? It would seem a fair conclusion that it is those who are only marginally skilled, either by being new to the work force or by not having had the opportunity or inclination to develop any skills other than the rudimentary. Thus, it would seem that most persons would or ought to be relegated to this category only for a relatively-brief duration. (For those who do not have the capability to develop these skills, due to various physical, mental or psychological deficiencies, there should be provided some type of permanent financial support; since this, hopefully, will only be a small segment, its effect on diminishing overall resources should not be controversial.)

Now, would an increase in the Minimum Wage have the intended effect and the desired efficacy? It may well be doubtful since, by definition, it would only benefit those with marginal skills. The basic and introductory premise, it would seem, is that those with these marginal skills have the least job security since they would most easily be able to be eliminated and replaced, and would only be supplying a limited benefit to the employer. Can we now, from this perspective, further analyze these questions?

This limited benefit to their employer necessitates a conclusion that these employees are of marginal value to the employer. As the differential between the value and the cost to the employer is thus narrow, any magnification of the cost will be material. And if the cost is increased too much so that the cost exceeds the value, the employer may decide termination of these employees, and the investigation of alternatives, is required.

Even if the differential is only narrowed — with the value of the employee still exceeding the cost — it is likely the same result will be yielded. For marginally-skilled employees, because of their minimal level of abilities and consequent similarity between equivalent employees, are relatively fungible. Now, even if the differential in value is somewhat diminished, the employer may still continue the relationship out of convenience, habit or tradition. But if the differential between value and cost narrows too much, an exchange for an employee who may be more compatible with the position and of more value may be more easily justified. Thus, the inherent dubious tenure of these employees will be threatened even more under such a regime, viz, where the Minimum Wage is significantly increased.

The above examination of course has proceeded from the position and perspective of the absolute and relative attributes of the employees. It should be at least equally pertinent to consider the position and perspective of the financial status and considerations of the employers.

To this writer it would seem the type of employer who might most often utilize the marginally skilled are also those who experience only marginal profitability. For more skilled employees are of course capable of performing more efficiently and at a higher level of quality. If a person is operating at sufficient profitability, it would normally then be expected they might seek the more qualified (as long as they are not overqualified) employees. If the employer utilizes instead the marginally skilled, it is likely due to it being unable to afford higher-value employees due to their own marginal profitability. Now, if the cost to them of these employees increases, they may be faced with the prospect of becoming unprofitable, resulting in either elimination of some of their current employees or termination of their operations. In either event, the already-questionable tenure of this class of employees becomes even more tenuous.

Thus, it is doubtful that an increase in Minimum Wage levels would in fact attain its objective. Nevertheless, I perceive there being a sound policy that would support and induce such a change. And this would be the pressure it might exert to eliminate or at least reduce so-called Economic Stimulus programs.

A switch of activities or programs to attain this objective from the governmental sector to the structures within society already would be salutary indeed. If this were to result in private, rather than public, organizations being the ones to help others up by their bootstraps, then such a change in policy certainly would be most beneficial.

Now, one could attempt to condition a Minimum Wage increase on an offsetting reduction in appropriations for Economic Stimulus programs. However, it may be sufficient simply to induce a change in the mentality of recourse to resources — looking first to and relying upon the private sector — by resort to employers rather than government agencies for magnification of disposable income. Thus, even if their is no immediate reduction in governmental expenditures, adoption of such a change in attitude ought to justify obstruction of or even reduction in later expenditures for, much less enhancement of, these programs since the objective thereof ought already to have been attained by the greater disposable income flowing from the private sector. I consequently would think such a Minimum Wage increase should be supported for the above reasons; the conclusion that the purported income inequality reduction argument is merely a phantasmal exercise without weight or logic should not be deemed a reason to refrain from pursuing a policy that has its own good and sufficient rationale.

WAYNE A. SMITH
Forester Twp, Michigan USA
3 March 2014