Broken Politics? I Think Not ...

Altogether too many of us accept the conventional wisdom that today "politics in America is a broken institution." There was a recent PBS special on that very subject, with most of the panel defending the affirmative. But the historical record shows that politics has always been down-and-dirty in America ... indeed, when compared to some eras in the life of our nation, political discourse today is positively gracious and well-mannered.

For specific instance; during the debate over the Alien and Sedition Acts in the administration of John Adams, one Congressman, Matthew "Spitting" Lyon, earned his colorful sobriquet by walking across the aisle of the House and spitting in the face of a fellow representative who'd just uttered the 18th Century equivalent of "There is a suspicious and unhealthy diversity of species in your family tree." The spittee then attacked the spittor with his cane, at which point Representative Lyon grabbed up the fireplace tongs and tried to give as good as he got. The two were finally separated, rolling on the floor, kicking and punching, by their fellow legislators.

Also, in the 18th and 19th centuries, some members of Congress routinely carried, in addition to their walking sticks, canes with swords concealed within, daggers and pocket pistols onto the floor of the House and Senate.

One is inclined to comment, "Walking sticks and knives and swords and loaded sidearms may break my bones, perforate my flesh and make me die, but inflamed rhetoric can never hurt me ... "

Fast-forward to the 21st century: Part of the problem of perception we have regarding the "broken politics" of our era is the availability of instant plebiscites on every single issue. Pollsters have their place, but the passions of the moment often obscure the real bones of the debate, the eventual good or ill which may accrue to any given policy. To put it another way, in the long haul, who cares about George W. Bush's approval ratings? Such numbers are ephemeral and tell nothing about the eventual consequences of his - or any other elected officials' - competence at the fine art of governance.

I seriously doubt the historical record will ever elevate our current Commander in Chief to the upper ranks of American presidents, but who can know? Harry Truman had far lower poll ratings during the last year of his administration than has George W. Bush at this point in his second term. And those of us who follow such things distinctly remember that back in the 1990s, every flipping candidate on both sides of the aisle wanted to prove he was a lot more like Give-'em-hell Harry than was his opponent.

For that matter, Dwight Eisenhower, in his day, was seen by many commentators as an "amiable dunce," the sobriquet Ronald Reagan came to be tarred with in the 1980s. Yet today, historians have more than rehabilitated Eisenhower's reputation, putting him solidly into the upper reaches of the second rank of Americann presidents and identifying him as precisely the right man for the times.

That's the thing about history; it has a tendency to rehabilitate, and sometimes damn retrospectively, some of our most beloved and despised characters.

Which brings us to the discussion of a military-political dynamic they didn't teach you in 9th Grade American History: While he was alive, a lot of Americans said terribly unkind things about The Father of Our Country. At his first inauguration, David McCullough writes that one senator was overheard muttering to a friend, "I fear we have traded George III for George I."

Also, throughout the Revolutionary War, Washington was constantly assailed, slandered and attacked behind his back by members of his own general staff, all of whom wanted his job ... and none of whom (with the probable exception of Benedict Arnold, who was a Washington loyalist before military politics drove him into the arms of the enemy) was even vaguely qualified to do it as well as Mrs. Washington's little boy, George.

One of the chief anti-Washington conspirators, General Charles Lee, was so convinced the Continentals and militia soldiers of Washington's army could never stand and deliver against British regiments, he retreated halfway back to camp when he stumbled upon a smaller force of Redcoats at Monmouth Courthouse. Washington had to personally stop the ill-advised retreat, reposition his guys and then fight the battle defensively when he could have had a decisive victory.

Had General Lee had only done as he was ordered, things might have gone far better for the Continentals on that day. Lee himself rode his horse all the way to the next town, many miles distant, then claimed he had engaged in an orderly retreat for tactical reasons. He was, blessedly, cashiered after the near-debacle.

Another conspirator in the anti-Washington cabal was Horatio Gates, a semi-competent commander who lucked out and accepted Burgoyne's surrender after Burgoyne's own hubris and poor logistical planning - plus the harassment his troops suffered at the hands of Hudson Valley militia units - had already substantially defeated the Lobsterbacks.

To sum up, history shows us that Washington was precisely the right man for the times, but during the years of his service to his country, he had plenty of detractors. History has absolved George Washington of his rumored military incompetence and lust for power ... as it has cleared Truman of his lousy approval ratings in his final year in the Oval Office and Eisenhower of his reputation as being too dim a bulb to do the job he was elected to do.

Here's the nub of it: No matter how well or ill one performs one's duty to one's country, there are always going to be second-guessers, mostly the ever-present corps of persons blind with ambition and exhibiting levels of character disorder that would kill most folks. These misguided persons often see themselves as the Man on the Horse who will deliver us from evil, and their actions are, by their own lights, entirely logical and patriotic.

The abiding truth is that only history is fit to judge, and only after the fog of war has lifted and long-range results can be objectively analyzed.

Broken politics in 21st century America? I think not.

Rather, we enjoy nothing less than the salubrious rough-and-tumble of political discourse characteristic of any healthy democratic republic. Comity has its place, and I for one would be ecstatic if all the ad hominem attacks upon the character and intelligence of our leaders - so much in vogue in this and every other era - could be dispensed with.

And yet, having said that, I must confess that on balance, I'll take the sometimes nasty, always impassioned debates - ad hominem attacks and all - of our democracy over the illusory ideological solidarity of the totalitarian state in any civilization, in any century, on any day.

Wahhabists vs. Lobbyists

The Hated Lobbyist, and How He Saves Republican Democracy Every Day

The demonization of lobbyists in American politics reminds the freethinker - who bothers to do a little research - of nothing so much as the demonization of other faiths and sects of Islam by nutcase Wahhabists. Our good friend Wikipedia defines this violent and intolerant division of a perfectly good faith thus *(an abridged but otherwise unedited definition is at the bottom of this post):

Wahhabism is, essentially, the Ku Klux Klan version of Islam. Just as the night riders of yore spread their sick interpretation of the Holy Bible by murder, torture and intimidation, so do the Wahibbists seek to dominate through destruction and terror … as we all saw on 9/11/01.

A lobbyist, by comparison, in neither violent nor judgmental concerning the belief systems of his fellow men and women.

Moreover, far from being wholly based in the teachings of a single individual (in the case of Wahhabism, Muhammad ibn Abd al Wahhab), the lobbyist owes his/her existence to a carefully crafted clause of the 1st Amendment. That amendment, along with its primary document and fellow amendments, are sublime creations of some of the best minds of the Age of Reason. In case you've left your Pocket Guide to the Constitution of the United States somewhere you can't easily access it, I'll give chapter and verse:

The amendment begins with "Congress shall make no law respecting … " and then guarantees free speech, free press and freedom of faith.

The amendment's final clause prohibits government infringement upon the right of the people to " … peaceably assemble, and to petition the Government for a redress of grievances." That, in the shorthand of the 18th Century, explains exactly what lobbyists do. Sound menacing? I thought not.

So who are the Wahhabists in America out to nail the lobbyists?

They are misinformed persons who think it is somehow wrong for a group of individual citizens with shared interests to hire someone to petition their government for redress of grievance.

Today, the lobbyist is portrayed - by too many otherwise intelligent persons - as first and foremost a corrupting influence on government, personified by the Gucci-loafered snake who fiddles important legislation and tax code amendments for fun and profit, somehow keeping ordinary citizens from being heard in the halls of power.

A recent Non Sequitar cartoon depicted a maze with two entrances and a politician sitting at his desk in the middle. The lobbyists get a straight shot to the "cheese" from their entrance, while regular Americans have to tread the long maze, with lots of dead ends and no clues of which way to turn at any point. How clever. And how utterly disingenuous. Wiley should know better. He's either abysmally ignorant of how government works in a Democratic Republic or is - as is his 1st Amendment right to do - pursuing his own blinkered political agenda by disregarding facts while seeking to inflame in his readers a spurious validation of their outraged sense of victimization and entitlement. I'll fight to the death to preserve his right to do it, but I'll be damned if I can approve of it.

Here's why (the following Brief History of Lobbyists may be skipped over by those of you who are well-read on the early history of the Republic and those of you holding degrees in History and/or Political Science):

In the early days of the Republic, politicians were approached everywhere, in Congress, the White House, on the streets and in the lobbies of government buildings (in case you ever wondered how the profession got its odd name, now you know) and petitioned by individuals seeking jobs, justice and everything in between. Were we still using this constitutionally guaranteed right as individuals, no public servant would have time to do anything more than sit at his/her desk and receive petitioners 24/7.

Now, I will stipulate that I am a big fan of do-nothing government, since what government does is so often overreaching, unnecessary and, even when honorably attempted for good cause, poorly executed. But locking our legislators and executives in their offices all day to receive lines of petitioners winding around the block is not my idea of the ideal way to achieve my preferred (safely gridlocked) outcome. Far from it.

No matter how valid the petition, if the elected official who hears it can't get out his office door long enough to get to his committee assignments and the floor of the legislature, the issue is not going to be addressed or debated. Nor will the process result in the delivery of redress to the honorable petitioner.

So, even in the old days, and certainly today, Americans hit upon a way to get their beefs heard while staying at home, doing their work, gently rearing their offspring and generally keeping the Republic afloat outside the Halls of Power. The ingenious solution was to form cooperatives in which members chipped in, hired somebody good at research and persuasion, and sent him/her to city council, the county board of supervisors, their school board, state house or Congress.

And the beauty part is, even if one does not personally join the cooperative and pay dues, one still gets the benefit of all that pro-grade lobbying! I have never joined the N.A.A.C.P., N.R.A., A.C.L.U., N.A.R.A.L., N.F.I.B. or a host of other worthy organizations, yet their work has resulted in the abolition of legal racial segregation, protection of my right to own firearms (until such time as I prove myself unfit to do so), keeping anti-choicers' rosaries off my wife's ovaries, and maintaining similar protections of my full and complete set of Constitutional rights, keeping them safe from the depredations of bullying majorities or noisy minorities.

This is great! And, in the aggregate, all the lobbyists in America, those whose causes I endorse and those whose causes I despise, are helping democracy work properly: They are informing lawmakers of exactly what is likely to happen - if a given bit of legislation, regulation or tax code is amended - to farmers, teachers, preachers, industries supporting tens of millions of American families, believers, non-believers … the list of infinitely righteous causes is, well, infinite.

So, far from being an impediment to us average Joes and Janes getting our cases heard by the power elite, lobbyists actually give all of us a good, efficient, time-tested process through which we may all be heard, our needs recognized, our petitions for redress of grievance presented for debate and resolution.

It gets no better than this!

The Gucci-Loafered Snakes and All Their Nefarious Works

Now, about all those corrupt lobbyists, those shysters and their clients who abuse the rights guaranteed in our primary national legal document: Am I the only one who has noticed how many people are either in prison or most likely headed there these days for lobbyist-related nefarious activities? Does the name Abrahamoff ring a bell? Or William Jefferson, Duke Cunningham, et al.?

Saying lobbyists are all bad because some of them lack a moral compass is like saying drivers are all killers because some of us tailgate, drink to insensibility then get behind the wheel, speed, disregard red lights and kill lots of Americans every day.

It's also like saying that non-Wahhabists who practice idol-worship, disrespect the Lord, drink, gamble, make out-of-wedlock babies, curse and carry on justify the attacks of 9/11.

Like the bad lobbyist, the bad driver will eventually pull one to many of his/her monkeyshines while engaged in piloting his/her 3,000 pound lethal weapon. At that point the bad driver will be caught, tried, and, if found guilty, forced by society to pay for his/her depredations of everyone's right to be reasonably safe from injury, property damage and death.

So I say, let's allow citizens continue to drive, and let's allow people to continue to hire spokespersons who will tell government what might happen to their lives if a given piece of legislation, regulation or tax code is promulgated. And for heaven's sake (literally), let's all quit demeaning an essentially honorable profession because of the hyperventingly-reported corruption of the few who don't play, or drive ... or worship by the rules.

*From Wickapedia:Wahhabism (Arabic: الوهابية, Wahabism, Wahabbism)

" ... is a Sunni fundamentalist Islamic movement, named after Muhammad ibn Abd al Wahhab (1703–1792). It is the dominant form of Islam in Saudi Arabia and Qatar.

"The term 'Wahhabi' (Wahhābīya) refers to the movement's founder Muhammad ibn Abd al Wahhab. It is rarely used by members of this group today, although the Saudis did sometimes use it in the past. The currently preferred term [outside of standard Western journalistic use] is "Salafism". In the past, they usually called themselves the Ikhwan, the Brethren.

"The term Wahhabism was originally bestowed by their opponents … Wahhabism accepts the Qur'an and hadith as fundamental texts, interpreted upon the understanding of the first three generations of Islam … Wahhabi theology advocates a puritanical and legalistic stance in matters of faith and religious practice [italics mine].

"Wahhabists see their role as a movement to restore Islam from what they perceive to be innovations, superstitions, deviances, heresies and idolatries. There are many practices that they believe are contrary to Islam, such as: pictures of human beings, praying at tombs (praying at Mohammed's tomb, the prophet of Islam, is also considered 'shirk (polytheism)'), not observing hijab (modesty in dress and demeanor) and skipping prayers (all businesses close five times a day for prayers), invoking any prophet, Sufi saint, or angel in prayer, other than God alone (Wahhabists believe these practices are polytheistic in nature), celebrating annual feasts for Sufi saints, wearing of charms, and believing in their healing power, practicing magic, or going to sorcerers or witches to seek healing and innovation in matters of religion (e.g. new methods of worship)."

On to Mars: how space exploration helps pay the bills here on Earth

Editor's note: This column was first published in January, 2004.

Now that we've had time to hear the predictable cracks about President Bush wanting to send human beings to live on the Moon and Mars ("Maybe he'll find the WMD up there," etc.), let's analyze the cost-benefit ratio of the proposal. The argument that the money would be better spent here on earth lacks logic. NASA appropriations are less than one percent of the annual federal budget. For every dollar we put into space exploration, we spend dozens on social programs and other earthly needs. NASA's costs, measured as either a portion of the Gross Domestic Product or the federal budget, are tiny. It would seem we could earmark that relatively small amount money for scientific inquiry without starving any orphans or forcing senior citizens to eat dog food.

Having said that, it must be noted that most arguments in favor of space exploration are almost as lame as the arguments against it. We can't count on discovering vast new resources of anything useful out there, and so far as providing humanity with alternative survival environments, human nature doesn't change through travel, no matter how far we go. If we are inclined to poison the planet and blow ourselves up on Earth, it's reasonable to believe colonists on the Moon or Mars will carry the seeds of the same madness with them.

There's just one good reason to send people to explore and possibly colonize other worlds: A reinvigorated space program will generate spinoff benefits that will pay its own costs, and then some. Historically, that dynamic has been working for decades.

Consider: Human productivity has been greatly increased through applications of the info-tech revolution. Those advances were initially made affordable through the huge decrease in the cost of computer chips, paired with a massive increase in the amount of data they hold. The chips got cheap and efficient because the Department of Defense needed a lot of them for high-tech military equipment, while NASA had to make everything on spacecraft smaller and lighter in order to increase mission payloads (space exploration and national defense have been joined at the hip since the 1950s, for reasons we'll get into later). The big costs of any new technology are the startup expenses, the research and development. Once you've got a production line cranking out a given item, the per-unit cost soon drops from dollars to cents.

So it's reasonable to postulate that because the U.S. poured money into improved technology for defense and the space race, the standard of living for everyone in America, and indeed the world, has been improved. The reason so little credit for that increased productivity (and, by logical extension, wealth) has accrued to expenditures on space and defense is, the money goes out in large, identifiable chunks and trickles back in, via higher profits and salaries, through thousands of private companies.

The thing to remember is, no science occurs in a vacuum. For instance, when former Senator Jesse Helms decried the millions spent researching AIDS, a disease which kills fewer Americans than heart disease or cancer, he was technically correct, but also incredibly short-sighted. AIDS researchers study viruses and how they break down the human immunological system, so what they learn has instant crossover implications for virology and immunology. With deadly viruses locked in a perpetual arms race against human ingenuity, aren't we glad all that money was spent on AIDS research?

What too few of us understand is that when scientists publish their findings in order to get the credit they're due, other scientists read those publications, then use the information in their own projects. And we all profit thereby.

Back to the defense-space program relationship: When Sputnik began orbiting, as explained in Tom Wolf's "The Right Stuff," the U.S. military was very concerned with potential Soviet domination of "the high ground." Our space program has its historical roots in military necessity, which in and of itself is enough to make some of us despise it. It's no coincidence that many of the same people who would de-fund NASA also think too much is spent on our military.

Also, while scientists have said for years that unmanned missions were safer and cheaper than manned ones, Congress wouldn't fund exclusively unmanned programs. That's because we, the taxpaying public, has never had the enthusiasm for robots that we've had for our astronauts. Or, as appropriations committee members used to remark, "No bucks without Buck Rogers."

All that notwithstanding, increased human productivity through the side benefits of the first four-and-a-half decades of human space exploration have expanded human knowledge while creating bonus wealth to help pay for all the things we need on Earth, including feeding orphans and keeping senior citizens from having to eat dog food. Who knows what unanticipated benefits lurk within a Mars colony?

Price controls on prescriptions: Killing the goose that laid the golden egg

By Mark Dorroh

The fable of the goose that laid the golden egg should be mandatory reading for anyone publicly discussing the "soaring prices of prescription drugs" in America today. The fable goes like this: A poor peasant discovers one morning that his prized possession, a fine, fat goose, has laid a solid gold egg. Each morning thereafter, there's another egg, and soon the formerly poor man is wealthy.

But greed gets the better of him. One day, as he's counting his wealth and wishing he had even more, he gets to thinking, "If there's one egg each morning, how many more must there be inside the goose? It would be the mother lode!" So he cuts open the goose, looking for the source of the wealth, and discovers that all he's got now is a dead goose.

This story has a moral applicable to a number of current issues, none more so than the debate over prescription drug costs and the pending plans to lower them through government price negotiations with drug companies.

To get a full understanding of what's at stake, let's go back in time. In 2004, the Associated Press reported "about a dozen states are exploring ways to buy cheap prescription drugs from Canada and make them widely available to Americans, even though importing the drugs is illegal."

The story goes on to say representatives from the states met with Canadian drug companies which say they can deliver the same drugs bought here in the U.S.A. at 40 to 60 percent off. "Drugs from Canada are generally made by the same pharmaceutical companies, but price controls keep their costs to about half those in the United States," states the A.P.

Those Canadian government-capped prices are why individual Americans in border states make regular trips to Canada to buy at the lower prices. But importation for resale is forbidden. ‘‘Drugs are cheaper in Canada — how do we bring these drugs into the states?’’ asked Tom Susman, acting administration secretary for West Virginia. ‘‘If they work better, and the cost is cheaper, I think it’s legitimate."

The drugs they're talking about were, for the most part, invented by American drug companies. One reason they're more expensive in America is, even though our government taxes the living bejumpus out of the companies and their workers, it does not limit profits that can be made with a popular drug.

Accordingly, investors from around the world know if they put their money into an American drug company, their investment will be risky but potentially more profitable than investments in other sectors. Consider; in 2004, an article in the Journal of Health Economics estimated the cost of researching, developing, testing and bringing a new drug to market at $802 million. Add to that the information in the journal Pharmaeconomics that only three out of ten new drugs recoup research and development costs and generate profits, and one begins to perceive the dimensions of an investor's conundrum. Would any sane investor take such a long-shot risk if the potential for profit was not commiserate?

Everybody knows how betting on a long-shot works. If your horse goes off at 15 - 1, you'll win more money if it wins than if you'd backed the 2 - 1 favorite. Investors also understand the concept of the long shot. The drug company they put their money into may invent the next Prozac and reap billions, or might have a streak of unprofitable projects which don't get back the money spent on research and development.

In some cases the company can be sued out of business, leaving investors with nothing, not even a devalued stock to sell and get back pennies on the dollar. Under those circumstances, would it be wise to cap the "winnings" of investors who choose the right company? I think not.

Look at it from their perspective; if they make no more buying drug company shares than they do buying Sony or General Motors, why not choose the less risky investment? And if that pool of capital dries up due to price caps (or the virtual price caps imposed by government-drug company negotiations), where do drug companies get the money they need to hire scientists to invent the next generation of miracle drugs?

If you think the answer is "federal or state government," please do a little research into the history of government appropriations. Do we really want decisions on which drugs to fund for development made by the same folks who, during the military procurement scandals of the 1980s, bought $3,000 coffee makers and $100 hex wrenches?

On the issue of all the supposedly "unconscionably expensive drugs" available these days, it must be noted that of course drugs cost more than they used to. They also do more than they used to. And dollar for dollar, they're generally much cheaper and more effective than the old treatments, including some dangerous major surgeries now made obsolete by those pricey drugs.

Fairness?

Market "fairness" seems to be an obsession of many on the anti-corporate side of the drug debate, so let's talk about fairness for a minute. Specifically, let us ask the question, "why is it fair for a sports star to make millions, but not the people who invest in companies which invent drugs that save lives?"

For our follow-up questions, let us inquire, "Wouldn't you want those folks to make lots and lots of money, so they'll keep investing in the creation of lots and lots of new, useful drugs?" and, "Is the investment of hundreds of millions of dollars in the next generation of drugs less important than paying tens of millions of dollars to some guy with excellent eye-hand coordination?"

Bottom line: Limiting wages, prices and profits has been tried at various times in various countries, and has never worked. How many useful drugs did the late U.S.S.R. create, despite its extensive corps of world-class scientists? Or for that matter, how many new drugs have been invented by the many world-class researchers working in Canada's price-capped environment?

So here's the deal: We can keep feeding our goose the best, most expensive food we can find and continue thereby to benefit from its golden eggs, or we can feed our goose cheaply and think we're getting a better deal. But the history of invention and investment strongly suggests that the creation of the next generation of life-saving drugs will not be among the dividends of cheap goose food.

Such a beautiful penumbra

Editor's note: This post was initially written as a series of newspaper columns during and immediately after the confirmation hearings of US Supreme Court Chief Justice John Roberts and Associate Justice Samuel Alito. I flatter myself to believe it holds up well in retrospect, and continues to provide important information on the much-ballyhood issue of "constitutional constructionist" theory as well as the much-despised label "judicial activist."

According to the Oxford Dictionary and Thesaurus, a "penumbra" is "the partially shaded outer part of a shadow." In legal terms, it has come to mean the fringe area of implied rights surrounding defined rights. Within this penumbra of Constitutional rights exists today’s most controversial right of all; the right to privacy.

According to the Legal Information Institute Web site at straylight.law.cornell.edu/topics/personal_autonomy.html, "The personal autonomy dimension of the right of privacy has been overwhelmingly developed in cases dealing with reproductive rights ... The Supreme Court first recognized an independent right of privacy within the 'penumbra' of the Bill of Rights in Griswold v. Connecticut in 1965. In this case, a right of marital privacy was invoked to void a law prohibiting contraception."

Although lots of Righties would like to pretend otherwise, in authoring the Griswold opinion, Justice William O. Douglas clearly expressed his reluctance in encouraging the high court to engage in judicial activism.

"We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions," he wrote. But Douglas also clearly believed the court was obligated to declare the anti-contraception Connecticut law unconstitutional. His next sentence explains why the Griswold opinion, and by logical extension, subsequent opinions based in the right to privacy, is consistent with constitutional law.

"This [anti-contraception] law, however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation," wrote Douglas.

According to the Legal Information Institute, "Later cases expanded upon this fundamental right, and in Roe v. Wade in 1973 the right of privacy was firmly established under the due process clause of the 14th Amendment. The court classified this right as fundamental, and thus required any governmental infringement to be justified by a compelling state interest. Roe held that the state's compelling interest in preventing abortion and protecting the life of the mother outweighs a mother's personal autonomy only after viability [the stage of development in which the fetus is able to respire outside the womb]. Before viability, it was held, the mother's liberty of personal privacy limits state interference due to the lack of a compelling state interest."

To those who seek to overturn Roe (including Norma Covey, the woman whose desire to have an abortion in 1973 brought the case to the attention of the high court), the right to privacy, since it is never explicitly mentioned in the Bill of Rights, is legal fiction. Many doctrinaire conservatives want it to disappear. One can easily sympathize with them; abortion destroys millions of human lives each year. And Justice Douglas was rather well known for his propensity to identify constitutional rights where none had been noticed previously.

But we who call ourselves Libertarian Conservatives get very nervous whenever this "created" right is challenged.

Why? Because the Constitution also fails to mention the principle of innocence until proven guilt, the right to be married, the right to travel, the rights to life, liberty and the pursuit of happiness, the right to vote and the essential democratic principle of "no taxation without representation."

Douglas wrote about similar implied rights in the Griswold opinion, noting that if only explicit rights were real, a lot of liberties we take for granted would cease to exist.

"The association of people is not mentioned in the Constitution nor in the Bill of Rights," he wrote. "The right to educate a child in a school of the parents' choice - whether public or private or parochial - is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights."

To me, that doesn't sound so terribly liberal, and it certainly does not sound like the opinion of a judicial activist.

Finally, it should be noted that the right to privacy exists in the penumbra around not one, but several constitutional amendments and the liberties they protect. Those include due process and equal protection under the law as well as the right to peaceably assemble with whomever we choose for any legal reason, the right to not have religious beliefs endorsed by the state and the right to be protected against unreasonable search and seizure.

Are we willing to minimize and restrict all those rights just because they imply that one's own home (or, in the case of a pregnant woman seeking an elective abortion, one's own body) is one's castle?

In the context of future hearings on any Supreme Court nominee, I believe penumbral rights should be discussed extensively. Every American should know who thinks government should have broader latitude to invade the privacy of law-abiding citizens, to what extent ... and toward what ends.

****************

When the confirmation hearings of Chief Justice John Roberts and Associate Justice Samuel Alito were going on, there was some discussion of schools of constitutional jurisprudence. To my way of thinking, that discussion didn’t go on either long enough or deeply enough.

Here's why: President Bush, during his two campaigns and many times afterwards, has often publicly expressed his desire to nominate “constitutional constructionists.” On the face of it, that sounded pretty good to this Libertarian Conservative. That good feeling faded as I did my research. I discovered that the term "constitutional constructionist" has no single definition. As a matter of actual fact, the term can mean pretty much anything.

Yikes.

An Internet syllabus for a college Justice 401 course at http://faculty.ncwc.edu/toconnor/410/410lect02.htm informed me that there were three main schools of constructionism; Original Intent, Textualism and Precedent. The syllabus defines "Original Intent, aka Original History," as a method based in the "intended meanings of [the Constitution's] words." Original Intent judges believe the Framers carefully considered and debated each word "precisely to produce neutral principles of law." The strengths of Original Intent are consistency and the preservation of rights for all time.

Critics of that flavor of constructionism, according to the syllabus, contend that "it can be easily used to disguise ideological ends, that the framers were not of one mind and [that] historical records are lost."

In regard to the alleged loss of historical records, I find myself at a loss: I was pretty sure copies of The Federalist Papers were widely published in 1789 and have been available ever since ... Oh well, live and learn.

On the 2005 court, the syllabus stated, "the leading proponents of original intent are Justice Stevens and to a lesser extent, Justice Ginsburg."

Another school of constructionism, "Textualism, aka Literalism - the Plain Words approach, [relies upon the] ordinary meanings of words." Justice Scalia and the late Chief Justice Rehnquist are named as its chief proponents. To them, "Congress shall make no law ... abridging the freedom of speech, or of the press" meant exactly that. The idea behind Textualism is to produce "value-free jurisprudence," although we LibCons have a lot of trouble with some of the value-rich decisions written by Scalia on issues involving sex and/or religion.

Under the "Precedent" school of constructionism (otherwise called the "stare decisis" or "let the decision stand" approach), the court looks at its own previous decisions for wisdom and direction. Its leading proponents were former Justice O'Connor and former Chief Justice Rehnquist. Its perceived weakness is hidebound support for outmoded doctrines.

But carefully adhering to precedent does not make reversals impossible; in some cases, it makes them mandatory.

For instance, the court carefully followed precedent in Brown vs. the Topeka Board of Education, the 1954 ruling which overturned Plessy vs. Ferguson. Plessy was the 19th century "separate but equal" ruling underpinning legal racial segregation. Looking at evidence presented by plaintiffs and using the precedent approach, the court found separate schools to be inherently unequal, invalidating the conditional crux of Plessy.

Thus did the stare decisis-based Brown decision adhere not only to precedent but also to common sense and common human decency.

The "living Constitution" schools: moral relativism by another name

The schools of judicial thought president George W. Bush abhors are those which seek to treat the Constitution as "a living document," adjustable via current conventional wisdom on social and political issues.

Chief among those methods is "structuralism" which the syllabus says makes courts "more concerned with remedy-making than rule-making ... in other words, the more judges justify their decisions on grounds that they are good for society ... the more divorced they are from any ethical decision-making ... "

Those types of pseudo-jurisprudence look at law as a tool historically employed by the wealthy, white, male or other despised classes (usually ethnic or religious in nature) to keep society's salt-of-the-earth plebeians down and themselves ascendant. The mission of structualist jurists is not to end the injustice so much as to turn the tables on the despised class for the benefit of its perceived victims.

Thus, Hitler justified his persecution of Jews and political dissidents by claiming they had victimized Germans for generations. Stalin said likewise of the wealthy peasant kulak farmers of the U.S.S.R.

In both cases, Nazis and Marxists used a doctrine of remediation of imagined historical wrongs to justify the looting of wealth created by the despised classes. Structuralists are the true judicial activists. They cheerfully use the courts to get what they can't get at the ballot box. Liberals employ judicial activism to effect sweeping social change; conservatives use it to enforce severe doctrines of regressive social policy. When a conservative justice decides the Establishment Clause of the 1st Amendment only forbids creation of a formal state church, he/she is acting as a structuralist who believes religion, even when government-endorsed, is good for people.

Ditto a liberal judge who decides, in a case involving race or gender, that it's his/her job to guarantee equality of economic outcome rather than to merely uphold constitutional guarantees of due process and equality before the law. Both sides engage in rampant judicial activism while taking to task the other side for doing the exact same thing in its pursuit of a different agenda.

Were God indeed just, She would bring back to life James Madison and Alexander Hamilton just long enough to put paid to this pernicious threat to our essential liberties by Conventional Wisdom Lefties and Righties alike ...

Fair’s Fair

Mark Dorroh

There’s a lot of chatter about the coarsening of modern America culture, most of it justified. I, happily, have stumbled upon an anti-coarsening protocol you may find useful. Give it a 90-day trial in your own home.

It works like this: when you are given proper, respectful and professional service, take a moment and report your experience to the service person’s supervisor.

Try it. You simply won't believe the rewards which accrue to you and your fellow human beings.

The patent on this idea was taken out years ago by, among others, Jesus Christ and the great Confucian philosopher Mencius, so I'm not claiming royalties. I just want to see it spread like kudzu, that's all.

Like many great discoveries, this one came about as the result of random circumstances. Monday, our telephone line worked fine until about midday, then the dial tone disappeared and attempts to call in were met with a busy signal.

Tuesday morning, I called our service provider’s 800 number and, following my interaction with the voicemail system, explained our plight to a live agent, one “Maria.”

Yes, we had tried the outside service box test with a plug-in phone, and no, that had not yielded a dial tone. Maria then asked if the test had been conducted at least 30 minutes after all computers, faxes and phones in our home had been disconnected. When I told her it had not, her joy was unbounded.

“Try that, and if it doesn’t get your dial tone back, we’ll send a service representative at no cost to you,” she said. “Get back to me, okay?”

In days gone by, I would simply have said, “Thank you, Ma’am,” and hung up. But in days gone by, good professional service was far more prevalent in the American workplace. That’s because in the old days, most Americans earned their livings making things or growing things or catching things or mining things. But the mammoth workforce shift from production to service has thrown a lot of us into a sector for which some are temperamentally unsuited.

A lot of workers who would be perfectly competent at growing corn or striking out widgets on a factory press now have jobs in which they deal with the general public eight hours a day. A production worker has to get along with his foreman, shop steward and coworkers.

A service person has to get along with any geek who calls on the phone or shows up at his work station.

And geeks they are, on a distressingly regular a basis. A friend of mine who joyously served the public for decades put it this way; “I’ll tell ya, these people ask some hellacious stupid questions.”

Having served the public in one capacity or other for most of my adult life, I can confirm the truth of his assessment. But, like him, I also get enough of a kick out of people (and enjoy my jobs enough) to be tolerant.

Anybody, especially when trying to get something fixed, is liable to panic and make an ignorant inquiry or two. So we who understand the dynamics of relationships get in the habit, early on, of treating everyone like a friendly stranger who speaks a different language.

That’s what Maria did for me. In spite of my abysmal ignorance of her area of expertise, she was patient and pleasant.

So instead of saying “thank you” and hanging up, I asked for her name, then said I’d like to tell her supervisor how well she’d done at her job. She was surprised and grateful; I was blasé.

“Hey, if you’d screwed up, you can bet I’d be telling your boss about that ... and fair’s fair,” I said.

It took about one minute out of my life to wait for her boss to come on the line, deliver my message and go on my way.

Since most of his referrals from downstairs are complaints, he was delighted to hear from me. He promised to put a complimentary note in Maria’s file, and I thanked him for that too.

In the space of a few minutes I made all three of us feel good, rewarded a worker with a heartfelt “attagirl” and made the world a marginally more genteel place in which to work and live.

Imagine a society in which everyone did likewise.

Take your time.

Savor it.

For the record, Maria’s solution worked like a charm. This fact bolsters my core belief that “all good things come to him who is considerate.”

So here’s the deal: You’ve got your marching orders and a 90-day free trial. Now, let’s go out and save the world, one harried service person at a time.

Come on, don't make me beg. Because I will.

Mom, Dad, North, South and the folk poetry of archaic slang

MARK DORROH

Living south of the Mason-Dixon Line is a sweet if unsettling experience for this Midwestern boy on his own.

One would have to conjecture at least part of the reason is rooted in Your Humble Correspondent's DNA. Daddy was a Mississippi Baptist farm boy gone north to make his fortune. Mom was a nice Pennsylvania Methodist girl gently reared in South Florida.

Although they were always happy to drive me to and from Sunday school, neither parent spent a lot of time congregating with coreligionists. It's fair to say my folks were freethinkers in a time when that mindset was publicly frowned upon by the putative elite. Their honorable social compromise was to keep their libertarian souls intact while observing most standard rituals of social decorum.

And decorum, my friends, is observed with some degree of variance depending upon latitude and attitude. My parents' dating history illustrates the point nicely.

When Ralph Dorroh met Gay Schell, he was properly smitten. By way of inviting her out to dine and dance with him, he asked if she would like to go "whoop and holler" some night.

Upon (brief) reflection, she thought not.

Ms. Schell was endlessly tickled with Daddy's down-home Southernisms such as, "I carried her to town."

"Did you wear a saddle," she would pertly inquire, "or did she ride you bareback?"

Fortunately, for me at least, the next time Mom saw Dad, he was wearing a crisp new suit, his curly black hair was shiny (as were his shoes), his tie was perfectly knotted and he'd sanded off many of the rough edges which had identified him as a man no nice young woman would allow courting privileges.

Eight weeks later, they wed.

Oh yeah, I forgot to say: My family's a little precipitous, a fact to which many of you had, no doubt, already twigged.

Anyway, with this mixed batch of genetic material, plus growing up in Northern Kentucky across the river from Cincinnati, I can sort of "pass" as a native in a lot of places. And getting back to Daddy's Dixie wasn't quite the culture shock I had anticipated, Nonwhite-Loving Yankee Meddler that I truly am.

Many Southern customs appeal to me greatly. For one thing, there's all this cool social hugging.

Folks down South will hug you on the merest pretext. All kinds of folks; big ones, little ones, black ones, white ones, female ones, male ones … it's like living in a giant commune of socially conservative hippies. That is to say, they don't necessarily want to have sex with you, but a hearty clinch and air kisses - between women and women or between women and men* - are accepted practice.

I used to really get off on it when the late Hopewell Mayor Teeny Ledbetter Wendell would see me at a city council meeting and accept a big hug. For whatever reason, I find it endlessly gratifying to greet elected officials with expostulations such as, "C'mere, Sweet Thang, and gimme some love!"

Which brings us to the theme of today's offering: I really want to bring back some of the best, most poetic examples of archaic slang.

Many of the really evocative ones never grow old: "Sweet Thang," for instance, has enjoyed a lifespan of at least a hundred years and it's still going strong. By comparison, "Cat's Pajamas," "Bee's Knees" and "23 Skidoo" have disappeared into the mists of time.

Which is a shame. So many of the vulgar expressions we employ could and should be replaced with the folk poetry of achaic slang. For instance:

The next time your supervisor drops a bale of work on you at 4:43 on a Friday with the demand that it be finished and on his/her desktop no later than noon, Monday, don't, upon his/her departure from your workspace, say, "Bleeeeeeeeep!" or give voice to your suspicions concerning the inappropriate and unhealthy diversity of species in his/her immediate family.

Try instead the terse, elegant, punchy "Rats!" If it's good enough for a lifetime loser like Charlie Brown, it's gotta have legs.

Alternatively, to express delighted surprise, instead of saying, "Whall, Gaw' D___!" try "My stars and garters!" or "Now don't that just about take the rag off'en the bush!"

Your friends will be charmed, as will that stud muffin at next table with the curly hair and spit-shined shoes. Also, you will have avoided breaking yet another Commandment.

Colorful, metaphorical hyperbole is another lost art these days. Mom, for instance, used to say prices were getting to be "higher than a cat's back." Say that today and you'll get a nasty letter from PETA.

One of Daddy's all-time great throwaways was his assertion that in June, the mosquitoes in Canada were "big enough to stand flat-footed and rape turkeys."

PETA wouldn't even bother sending the letter to Dad. Were he alive today, they'd be either hauling his butt into court every five minutes or mining his toothbrush with small, pressure-sensitive explosive devices.

Some people just don't appreciate folk poetry when they hear it.

* In most neighborhoods hereabouts.

Firewalls, good intentions and former Councilor Trammell

Mark Dorroh

There is a reason elected officials are legally barred from attempting to manage the work of municipal employees excepting the city attorney, city manager and city clerk. Skating up to that line and ice-dancing around the intent and letter of the law is neither graceful nor particularly wise.

And it's certainly not evading the notice of anyone who got out of the fifth grade on his own hook. Many people have taken note of these monkeyshines, and some of them could be getting frosted enough to challenge the perpetrators in public. When they do, it will be yet another embarrassment for Hopewell, as the ice-dancers are taken to task and have it explained to them how the law is written and what it's intended to do.

This explanation will probably be done using little bitty words even I could understand. Not a happy sight. And if these same city council members employ their standard gambit of alerting every media outlet on the East Coast, it'll be all over Richmond television, too.

Okay, maybe it's only fair that our cousins in The Big Town get to have a laugh or two at our expense. We sure do get tickled at some of their depredations and follies. Consider the case of the long-suffering former member of Richmond City Council, Reva Trammell.

I only interviewed Ms. Trammell once, while I was working for a Richmond all-news radio station, and was impressed with her savvy, her heart and her wit. Not a dull girl, this one, and chock-full of good intentions. A very successful landlord who was able to treat her council membership as pretty much a full time job, Councilor Trammell delivered constituent services like am avenging angel. Her peeps knew how to get her ear, and they got her good sword arm as well, sort of a package deal.

The lady was darn near a Superhero Council Member, and that's finestkind stuff. Not to put too fine a point on it, public service-wise, the lady rocked. Hard.

Unfortunately, she also had a penchant for romantic involvement with men not her husband … in fact, she was sometimes swept off her feet by men who were married to someone else. Bad scene, Bix.

But the weird thing is, no one would have known except for her public dustup in a custody fight over (no fooling) a vintage American production automobile. She sued her former beau, or he sued her because they couldn't reach an agreement on who got custody of the internal-combustion child.

So some clever reporter went to the clerk of court's office, boned up on the publicly-available materials, and slathered the world's dumbest civil suit all over the newspaper. And the airwaves. And the ever-fairminded blogger community. Bleccch.

Then there's the infamous slapping incident, in which one of her philandering beaus either hit her or was hit by her in the presence of a uniformed Richmond Police officer. She instructed that officer to keep mum, trashing the firewall which, by state charter, is installed in every local government.

In this Commonwealth, elected officials aren't allowed to tell city employees anything, ever. They're allowed to make collective suggestions to the city manager, who will filter the requests through his/her extensive knowledge of what's legal, then deliver that amended, heavily-censored message to, oh say, the city's chief of police.

City council members sticking their busy, personal-agenda laden fingers into the mix is prohibited. Skating up to the edge of legal prohibitions is not advised. It certainly didn't work out so well for at least one famous American elected official and his spouse during the long national nightmare of Whitewater.

Of course in the case of Ms. Trammell, no one got chucked into the cooler, no lies were spun in depositions to a federal judge and no impeachment proceedings were instituted. She just got in a lot of hot water and forced her formerly loyal constituents to toss her out of office.

There's a moral to this story. For me it is that two of my personally favorite Hopewellians of all time need to beware for whom they carry water.

It's disloyal to geek for the state and against the city when you are a (minimally) paid city employee. The state has plenty of accomplished geeks to perform those distasteful tasks which are sometimes part and parcel of the art of good governance. The help of city-paid personnel is neither needed nor desirable, since their constituents (and the city charter) put them in charge of municipal code, not Commonwealth statutes.

These councilors should stick to what they know and avoid what the law proscribes. These two guys are, like Ms. Trammell, too smart and too well intentioned to be playing this, thus.

Like Homie the Clown, they ought not do 'dat.

They also need to look out for that old slippery slope, you know, the one made of good intentions which invariably carries a skater right up to the line beyond which lies perilously thin ice.

Talking to the shadows

MARK DORROH

Last week, I alluded to persistent rumors of a Hopewell shadow government. I trust the veracity of these tales, especially in a rumor-happy town like The Wonder City, about as much as I trust pop gossip fantasies that dead rock stars are alive, well and partying hard in Brazil.

Still, it is a rumor that's not going away any time soon, so let's deconstruct this puppy and see what we're left with.

Just for the pungent good fun of it, let's assume the rumors are true. Let us suppose a bunch of very successful business types want things in their city to go their way whenever possible. Let us further stipulate that they are willing to deploy their influence when and where they deem it necessary.

Our problem with that would be … ?

Excuse me for not marching in lockstep with conventional wisdom, but I'm one of those punk neo-Capitalists who believes businesspeople are, on average, more realistic and far more optimistic that the rest of us. So the way I see it, if persons who have a demonstrated aptitude for selling people things they need at prices they can afford - in a competitive marketplace mind you - want to assert themselves, their wealth, judgment and vision upon the body politic, what kind of pernicious twit would I be to object?

These avatars of Capitalism meet payroll every week. They provide the necessities of corporeal existence to fellow human beings. They actually get stuff done. Without their hard, smart work, we'd all be less well off.

By way of contrast, consider my chosen career path.

I scribble stories and features on the acts and opinions of others, busting loose once a week to run all that grist through my own peculiar sensibilities and spit out this column.

Do I feed anybody? Do I put roofs over their heads, clothe their nakedness or succor their children? I do not. I also keep no one employed but myself, meet no payrolls and generate pathetically small annual tax revenues.

These are important distinctions. By any reasonable standard, I'm far less connected to the Real World than are these alleged shadow government folk.

So the problem is not with attempts to influence the future of Hopewell. If the tales are true, all I can say is thank heaven some clever persons of wealth and taste are willing to do it.

The problem is the sneakiness.

Virtuous actions taken in the daylight are seldom reviled. Those done anonymously via clumsy, easily detected machinations nearly always are.

So let's get a little daylight on this deal. One supposed member of the alleged shadow government has already opened the conduit. He has presented me with solid, persuasive justifications for his very public record of successfully attempting to affect Hopewell's future.

I invite the remaining Hopewell Shadow Government Ministers without Portfolio to ring me up and unburden yourselves.

It would have to be a deeply satisfying experience for you. It would assist me in telling the "real truth about Hopewell" to my readers.

There is no downside to this proposition.

Gentlemen (and ladies, if there are such), please feel free to download, on this aging, ink-stained wretch, a few of your hopes, fears, frustrations and triumphs. Commiserate with me on the subject of how suspicious minds can slander the authors of good and righteous plans.

But mostly, explain to me how your future Hopewell stands in contrast to the one we had chugging along Monday, May 1. You'll get a sympathetic hearing. No one has a monopoly on wisdom in this or any other town.

Discrepancies?

One final note. There were no "discrepancies" in any of the publicly available campaign finance information I accessed. I did, in a pre-election story about campaign finance records, state that there were wide disparities in how much was raised and spent by the nine candidates, but as any English teacher will be happy to tell you, "discrepancies" and "disparities" are two different words with two different meanings.

Okay, this dumb-ass rumor is all bloody and battered, but still twitching. The coup de grace is incumbent upon whoever has been bruiting about talk of "discrepancies."

Thank you.

Jimi, Janis and Jim in Rio

MARK DORROH

God bless Don Parr. The Hopewell realtor finally gave me some answers I'd been seeking for most of a month.

My quest started the day after the May 2 city elections. That's when one of three recipients of Southside Virginia Association of Realtors campaign contributions spoke with me about how Hopewell's pilot Rental Inspection Program might be improved.

Christina Bailey of Ward 1 told me Mr. Parr had been instrumental in helping her procure the SVAR Political Action Committee money, which was fine. But she also shared with me some odd notions of what city council could do relative to residential building code enforcement. For one thing, she seemed to believe that replacement of windows which would not open - or stay open without being propped up - was an infrastructure improvement not every landlord could "afford" to make. She also suggested the city might want to offer tax abatements to landlords with sub-code rental units as a "carrot" to supplement the "stick" of fines.

Don Parr supports neither of those proposals, saying, "I for one would not be comfortable with getting a tax break from the city just for keeping my buildings up to code."

He also, citing safety issues, doubted the wisdom of allowing inoperable window sashes to remain inoperable. "I keep my buildings in excellent shape," he said. "I'm a businessman, and properties are what I buy, sell and lease. Why would I want to let them to deteriorate? That wouldn't make much sense."

Parr said he had personally encouraged the victorious candidates in Wards 1, 3 and 7 to run for office. He was perfectly happy to tell me why he alerted them to the possibility that the SVAR might be willing to support them.

"I thought they were the best candidates for the offices," he explained. He went on to say he thinks Christina Bailey, Kenneth Emerson and Greg Cuffey will do the right thing for all the residents of Hopewell; homeowners, home buyers, home sellers, renters, landlords and, yes, real estate professionals too.

The "real truth?"

Four days after The Hopewell News published a May 4 story about Bailey's suggestions for tweaking the Rental Inspection Program, a pal of mine, acting as an intermediary, delivered a spreadsheet listing all the "Professional Service Expenditures" paid out over the past two years by Hopewell. He told me the spreadsheet had been provided to him by unnamed persons wanted me to grasp the "real truth" about the Wonder City.

I faxed the spreadsheets over to the Virginia Institute of Government and the Virginia Municipal League, asking if they could check them for any obvious waste, fraud or abuse. The response from Associate Director Tedd E. Povar of UVa.'s Virginia Institute of Government, was that it is impossible to tell at a glance whether Hopewell's consultant fees are appropriate for a city our size engaged in projects of the sort Hopewell is.

Povar did also write that the city is audited annually by an outside agency, so the potential for misapplication of tax monies is quite small.

What I find intriguing is that the unnamed persons' response to the May 4 story about Ms. Bailey was not one of concern over her extreme lack of familiarity with the duties and prerogatives of her new job. Instead I was gifted with alleged evidence that the city spends too much money on consultants.

That said, I'm continuing to investigate the possibility that Hopewell is consultant-happy.

Tax abatements?

A bit of research on the subject of tax abatements yielded some interesting conjecture. While I have thus far detected no state law or local ordinance which forbids tax breaks as rewards for fire and/or building code compliance, the experts I've communicated with seem highly skeptical that such would be a legitimate use of tax authority.

Tedd Povar wrote me, "Real estate tax abatements are pretty rare and specific, usually reserved for historic districts or downtown revitalization, enterprise zones, etc. To my knowledge, individual structures not in one of those types of districts or designations are not eligible for that type of tax abatement."

A shadow government?

For over a decade now, I have been treated to persistent rumors about the existence of a "Hopewell shadow government," a small group of moneyed individuals who pull strings and work their will from behind the scenes.

I tend to scoff at such obvious paranoia, just as I scoff at fairy tales about Jimi Hendrix, Jim Morrison and Janis Joplin cohabitating peacefully and in seclusion somewhere on the continent of South America.

Still, when an intermediary is sent by unnamed parties to deliver alleged dirt on city government, one is inclined to wonder if perhaps a diversionary tactic has been deployed.

One also wonders if perhaps Jimi, Janis and Jim are, even as we speak, sipping Pina Coladas on the beaches of Rio.