Archive for June, 2010

I, Citizen

June 29, 2010

I, Citizen

The Unforseen Victory from McDonald v. City of Chicago

June 28, 2010

by Michael D. McFarland

Today, the Supreme Court ruled along predictable ideological lines in favor of protections of individual gun rights and against the City of Chicago’s law banning handguns. Much has been made about the National Rifle Association’s lobbying efforts and seemingly overreaching influence. The court ruled on the same side of this case as the NRA fought for. The basis for the ruling came down to a protection of rights guaranteed under the Second Amendment to the Constitution, which states:

“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.”

Many regard this as a conditional privilege and those who hold that opinion point to the “well regulated Militia” part of the Amendment to reinforce their case. On the other hand, many regard this as an unalienable right of American citizens as evidenced by the “shall not be infringed” part of the Amendment. Both positions are worthy of valid debate.

What the Supreme Court relied on today in their ruling is Section 1 of the 14th Amendment, which states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

What’s important to note is that the Supreme Court reinforced the power of this clause by using it as a basis for their ruling. What should stick out to everyone is that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. By reaffirming this section – even if the justices in favor of today’s ruling only meant to reaffirm a particular provision of this section – they have strengthened ALL of it. That means that they strengthened the “nor deny to any person within its jurisdiction the equal protection of the laws”.

What does that mean to ‘We the People’? Well, it means that the 15th Amendment, which pertains to racial discrimination in voting, is strengthened. It means the 19th Amendment, which pertains to a woman’s right to vote, is strengthened. It means that the 24th Amendment, which pertains to prohibiting poll taxes, is strengthened. It strengthens these by the reaffirmation that these rights cannot be infringed upon by any law of the State.

Where this will be evident is in Arizona as it relates to the recent immigration law and the 4th Amendment, which pertains to illegal searches and seizures. The moment a single US citizen of immigrant origin is detained because he cannot provide proof of citizenship and his rights are therefore violated, he has an immediate case against the state and the Supreme Court today reaffirmed that citizen’s protection from the laws of the State of Arizona. As if the law wasn’t already unconstitutional because it assumes Federal responsibilities to the State, this only sets the precedent that it is now unconstitutional at the individual level.

It will be more evident in the right to privacy that was reaffirmed in Roe v. Wade. Remember, that decision was tethered to the right to privacy as guaranteed by the 4th Amendment. While the case did rule on the basis of “viability” of the fetus, the fundamental basis of that case was privacy. That’s right. Roe v. Wade was a ruling of privacy. Therefore, based on today’s ruling, Oklahoma’s recent legislation that would publish women who get abortions is a direct violation of person’s privacy due to a State law.

Now that the Supreme Court reaffirmed Constitutional protections and rights for the individual against the States, where will the implications be seen beyond Arizona, Roe v. Wade and Oklahoma? Can a legal argument be made that dry counties (counties where the sale of alcohol is prohibited) are a violation of a citizen’s rights? After all, isn’t the legal purchase of alcohol a voluntary market exchange and hasn’t Prohibition been settled by the 21st Amendment? And though Section 2 of the 21st Amendment does cede control to municipalities and States, those laws can now no longer infringe upon the rights of the individual. In short, what can of worms was really opened by today’s ruling?

It almost seems a bit retroactive to say that the 2nd Amendment is guaranteed to all individuals because of Section 1 of the 14th Amendment, but that precedent is now set. This ruling is a big brick wall. Say what you will about your position on gun ownership, but it is irrelevant in this discussion. What matters are the broad and expansive implications of this ruling. In some regards, this could be viewed as a huge Federal overreach of States’ rights and we’ll see if that debate materializes. What this means at its core is that American citizens, wherever home is in whatever State, has rights protected by the Constitution that supercede any legislation put forth by the States.

Now that individual rights are paramount to State laws, don’t be surprised to see this precedent reverberate in many different manifestations.

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The Age of Treason

June 22, 2010

The Age of Treason

The Anti-Constitutional Insubordination of General McChrystal

June 22, 2010

by Michael McFarland

Our military is an implement of our brand of democracy. It is designed to protect, yet sometimes used to project. It has often been used for good, and many times misused for unclear objectives. However, it has always been – as was always intended – to be subject to the control of a civilian representative government. It is structured such that military leaders are responsible to a civilian leader elected by the civilian population – the President of the United States. This ensures that our implement of democracy properly reflects our democratic principles through the voting process. It is not an autonomous, self-governing body.

Therein lays the problem with General Stanley McChrystal’s yet-to-be-released Rolling Stone article, ‘The Runaway General’ due out June 25, 2010, in which he lambastes several top officials within the civilian government – including the Vice President and the President.

McChrystal is certainly of dubious distinction. He supported former President George W. Bush’s assertion that major combat operations in Iraq had ended. He was involved in at best a horrifically mismanaged investigation into Pat Tillman’s ‘friendly fire’ death in Afghanistan in 2004 and at worst a straight up cover-up of his death. He was involved in a 2006 detainee abuse scandal at Iraq’s Camp Nama. He campaigned for his own military strategy, which differed from the preferred strategy of the administration, in a speech he gave in late 2009 in London, England. He called the Afghan town of Marja a ‘bleeding ulcer’. And now?

McChrystal gave seemingly unprecedented access to Michael Hastings, who also had wonderful access to McChrystal’s aides. Through this access, Hastings has written what amounts to fantastic reporting, but it also amounts to insubordination from America’s top general in Afghanistan – an ongoing theater of war.

The blowback from the early release of this article is already coming in fast and heavy:

-Rep. Alan Grayson has called for McChrystal to be fired.

-Rep. David Obey, the chair of the House committee responsible for the military purse, has deemed McChrystal “reckless” and “renegade”

-Sen. Susan Collins has called McChrystal’s comments are both “not appropriate” and “troubling”

-A bipartisan clutch of Senators – McCain, Lieberman and Graham – released a statement characterizing McChrystal’s statements as reported in the article are “inappropriate and inconsistent”

-Secretary of Defense Robert Gates, a cabinet member appointed by the President, has indicated that McChrystal has made a “significant mistake”

-White House Press Secretary Robert Gibbs punted on a question put to him by the White House Press Corps by merely saying “wait and see” about McChrystal’s prospects of keeping his command

-President Obama has been characterized as “angry” and “furious”, has ordered McChrystal back to Washington, DC for a face-to-face meeting

Meanwhile, defense of McChrystal’s horrifying insubordination is a slow leak. Sen. James Inhofe and Rep. Eric Cantor are the only elected legislators to have defended him thus far. Afghan President Hamid Karzai has also come out in defense of McChrystal, which may soon prove to be suspicious. Karzai, after all, has recently indicated a warming to the idea of coupling with the Taliban.

It is yet to be seen how the defense of McChrystal unfolds, but it is reasonable to expect that the genesis of his defense will be from Right Wing radio hosts such as Rush Limbaugh, Mark Levin and Sean Hannity. It is also reasonable to expect that lawmakers who derive their strategies and their Obama counter positions from talk radio will soon (within a day or two) adopt the same message and use this article, not for what it is, but as a battering ram against a duly elected government that they hold with such deep contempt.

There’s a grave danger in coalescing around the military at the expense of even the cordiality of respect for an elected government. It’s the danger of the military-industrial complex (MIC) that President Dwight D. Eisenhower warned us about in his outgoing address to the nation when he said:

“In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist. We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted.”

It is among our civic duties to be vigilant against encroachments of our civil structures that define the very being of our Union. The first order of business is that McChrystal be fully and strongly punished. He should be removed from all duties and summarily court martialed for his blatant violations against the Constitution and the Uniform Code of Military Justice. Beyond that, ‘We the People’ must forcefully rebuke those elements in our society – be they legislators, talking heads or neighbors – that would seek to be apologists and enablers of said encroachments. If military leaders are allowed to establish a precedent opposed to our elected civilian leadership, we not only risk a rogue military that would threaten a vital precept of our American Democracy, but we give way to the possibility of a quasi-junta, which itself is also anti-democratic. If a pernicious marriage between politicians whose only end is to upend the duly elected government and the MIC, with all its inherent faults, is allowed to come to fruition, we risk a malignancy that would upend that which defines us. It is imperative that McChrystal be handled swiftly and punitively, but it is of even greater imperative that the MIC be reminded that they are beholden to ‘We the People’, not the reverse. McChrystal, after all, is merely a contemptuous player in the MIC’s endgame.

A Call for a Moratorium on Morons

June 21, 2010

A Call for a Moratorium on Morons

Gulf-area Republicans have taken quite a strange, short-run position on the just imposition of an offshore drilling moratorium

June 21, 2010

By Michael McFarland

Responding to a question from David Gregory while appearing as a guest on ‘Meet the Press’ on Sunday, Mississippi Republican Governor Haley Barbour unleashed a whopper of a claim that the offshore drilling moratorium is the worst thing happening to the Gulf Region. Specifically, the question and answer unfolded as follows:

Gregory: “Governor, what’s worse, the moratorium or the effects of this spill on
the region?”

Barbour: “Well, the moratorium… the spill’s a terrible thing, but the moratorium
is a terrible thing that’s not only bad for the region, it’s bad for
America.”

If you haven’t incurred a severe case of whiplash as a result of reading this incredible exchange, that would certainly be a strong indicator of where your sensibilities lie. This position can only lie on the premise that the Deepwater Horizon tragedy is unquestionably a freak, unpreventable accident that has a less than miniscule probability of happening on another rig. This position carries the implication that the economic damage resulting from the moratorium on the majority portion of the region’s industry is a more devastating consequence than the ecological holocaust that has been unleashed on the region.

To be clear, that part of Barbour’s position is fair to debate, but what is not fair to debate is if we should simply knuckle under and charge ahead into a thick fog.

That fog is the uncertainty of the likelihood of a repeat of this disaster on another rig, the uncertainty of how to stop or even contain the ongoing disaster, the uncertainty of the level of safety as it relates to workers’ health in the current environment, the uncertainty of shortcuts used by rig companies throughout the Gulf in the interest of expedited production and inflated profits, the uncertainty of the safety measures and safeguards employed by other rig-operating companies.

We cannot handle the spew we currently have, so what would we do in the instance of another spew?

These uncertainties, hence the moratorium.

The economic damage as a result of the moratorium is not a matter of fault to the president, nor the government in general. The fault always lies with BP/Transocean/Halliburton, period. The sentiments expressed by Barbour fail to account for the separate $100 million uncapped account for unemployment benefits acquired by the president from BP for Gulf area residents.

This then begs the question, “If it’s a matter of economic survival of those residents, yet their economic survival is accounted for, then in whose interest does lifting the moratorium serve?” The benefit cannot fall to the residents, because they will have access to an uncapped fund to carry them through the duration of this process. The benefit does not fall to the government because lifting the moratorium puts the government in a position that opposes the interests of the citizens it is charged with protecting. Therefore, the benefit can only fall to the Gulf area oil companies because the moratorium impedes their ability to produce, which in turn impedes their ability to profit from those operations.

Oil is a fungible commodity. In short, that simply means that what is drilled goes into a pot with all the other oil that is drilled in the world. That pot of oil is then sold off in quantities on a global commodities market. So, when a gas company or a plastics company buys oil from that pot, they can’t possibly know where the oil originally came from. The pack of plastic food containers you buy tomorrow at your local grocery store may well have been made with oil from BP’s rig operations. When you stop at your local mom and pop gas station, what you pump into your car may well be from BP as well. There is simply no way to tell.

With that understanding, it becomes much clearer how the moratorium only hurts the Gulf area oil companies and no one else, so long as the unemployment fund is also accounted for in this analysis.

From Barbour calling the moratorium the most damaging thing in the Gulf to neighboring Louisiana Republican Governor Bobby Jindal filing an amicus brief to compel the courts to force a lifting of the moratorium to Texas Republican Representative Joe Barton’s shameful apology to BP during a Congressional hearing to Minnesota Republican Representative Michelle Bachmann encouraging BP to not let itself be made a “chump” to Georgia Republican Representative Tom Price fathering the “shakedown” talking point to Kentucky Republican Senate hopeful Rand Paul’s defense against the president’s “un-American” bullying of BP to the Republican Right Wing radio bullhorning of the president’s “tyranny” against BP, the list goes on and on.

Republicans have not only staked their claim in this fight, they have put on full display their philosophical opposition to the US and its citizens. “Profits über älles” truly encapsulates the Republican position. Instead of pulling to the side of the road when encountered with a heavy fog, Republicans would rather that we put the pedal to the metal and plow through whatever lies ahead in the fog. It is a completely reckless position to operate from.

Death and destruction be damned, there’s money to be made….

Dude, you HAVE TO join this FB group….

June 5, 2010

Click here

Pop Torts

June 2, 2010

Pop Torts

Explaining the Republican obsession of so-called ‘Tort Reform’

Michael McFarland

Ah, the good ol’ days of spring.  Remember way back when in, say, March 2010 when the Health Care Reform (HCR) debate was coming to a rousing crescendo?  What a “spirited” time that was, huh?  One thing still sticks out at me: The Republicans’ petulant insistence on tort reform being the be-all, end-all of true HCR.

Let’s think about that for just a second.  Our annual costs associated with the health care system runs at roughly $2.4 trillion.  The Congressional Budget Office actually scored tort reform as the Republicans would craft it and they came back with a finding of $54 billion per year in savings.  $2.4 trillion vs. $54 billion.  Hmmm.  Something’s fishy.

Why the insistence?  Why the foot stomping?  Why the messaging campaign?

Let’s take a trip down to the Gulf of Mexico for the answer.

I recently posted a blog demonstrating the potential costs associated with the ongoing catastrophe in the Gulf.  We’re talking in the tens of billions of dollars.  When people in the affected region start developing cancer, emphysema, asthma, other chronic disorders and diseases, they will rightly seek redress from BP/TransOcean/Halliburton through civil suits.  Think about all the mesothelioma commercials that dominate the midday television broadcasts.  Guess what kind of law deals with such things?

Tort law.

Tort is defined as “a wrongful act, not including a breach of contract or trust, that results in injury to another’s person, property, reputation, or the like, and for which the injured party is entitled to compensation” (Dictionary.com).  Tort law is simply the legal manner through which those “wrongful acts” are remedied.

Bring it all together and it should now be clear to you why “Tort Reform” is such a sticking point for Republicans.  Republicans are as predictable as a Pez dispenser on this.

If they ever achieve tort reform, damages are capped in instances of people seeking rightful redress for damages across the entire tort system.

What this all boils down to is Republicans reflexively defending corporations over the interests of people.  It’s their cause celebre, or worse, their raison d’etre.  It’s why they cling to it during the HCR debate even though it represents 2% of total costs.  It’s why they utilize the so-called “slip-and-fall lawyers” talking point to smear the tort legal practice.  It’s why gaining a pittance of a victory on a seemingly unrelated piece of legislation actually provides quite a boon of a victory in another area.

It’s an attack on you.  It’s an attack on all of us.  It’s underhanded.  It’s sneaky.  It’s oh, so Republican.

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June 2, 2010

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