Fulminations and Philosophy

[The following items constitute a collection of observations and opinions about politics and society. I began this compilation of my "fulminations" during my run for Congress in 1998 and plan on continuing it as the mood strikes me.]


"Our Children"

If there is one phrase I would like to ban from political discourse, it is "our children" -- as in "...we need to do <something> for 'our children'". Aside from its being trite, it also implies that children are a collective entity with all of the adults in our society acting as co-parents. That's what is so insidious about "our children", and its close synonym, "the children" ("...it's for 'the children'"). Society becomes the parent. Politicians and pundits use this idea to justify calling for some action by government to further insinuate itself into private, family matters. After all, it's for "our children".

"Our children" is used to manipulate parents' love of their children and their natural desire to protect them. In the culture wars, "our children" is used against adversaries whose lifestyles or beliefs are different. Naturally, government must intervene to insure that "our children" are protected from these folks. Both the left and the right play this game.

When I hear a politician start talking about "our children", I wonder what rights I'm going to be asked to surrender in order to protect them. Typically, this usage is associated with attempts to control digital communication along with TV, radio, and movie entertainment in order to protect "our children" from dire influences.

I want what's best for "my children" -- you want what's best for "your children." I may not agree with your ideas about child rearing and you may not agree with mine. But let's agree to a moratorium on the use of government to impose our ideas about child rearing on each other. Let's reserve the phrase "our children" for conversations we have with our spouse.

-- 25-April-1998

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"The Constitution is a 'living document'"

This phrase is used as shorthand for the idea that the U.S. Constitution should change in order to reflect the needs of contemporary society. This change is accomplished by reinterpretation rather than by constitutional amendment. Typically, defenders of this idea will say that it is dangerous to amend the Constitution (I tend to agree). What they never bother to explain is why it is safer to change the Constitution by reinterpreting it rather than by amending it.

Amending the Constitution is a formal process described in Article V. There are two methods for proposing amendments: (1) 2/3 of both Houses of Congress may propose an amendment; or, (2) 2/3 of the state legislatures in convention may propose an amendment. The amendment is then sent to all of the states, and 3/4 of their respective legislatures must vote to ratify it before it becomes part of the Constitution. This is a very difficult process and helps to explain why there have only been 17 amendments added to the Constitution since the original Bill of Rights was adopted in 1791.

Amending the Constitution is risky. That's why the framers made the process difficult. The "living Constitution" crowd want to circumvent this arduous process so as to use government to realize their partisan goals while appearing to uphold the idea that the Constitution is sacrosanct. The most common approach used in reinterpretation is via anachronistic definitions of words (for example "regulate", which in 18th century usage meant to "make regular" or "put in good order" and not to legislate), often coupled with exploiting differences between 18th century and modern grammar and punctuation. Naturally, contemporaneous writings or published materials that elucidate the actual meaning of the Constitution's text disappear down the Orwellian memory hole and are conveniently forgotten. Another approach is to denigrate the framers of the Constitution as sexist white male slave-owner patricians who can be ignored, thus rendering the history irrelevant. Of course, in law, the fact that one enters into a contract with a thoroughly reprehensible person does not allow one to unilaterally change its terms so long as the other party abides by them. The Constitution, as a formal compact between the states, should be treated with at least the same level of respect.

The "living document" phrase is most often associated with the political left. The right also reinterprets the Constitution to fit its agenda but it avoids the contortions and hypocrisy of the left by just lying about what it is doing. I'll leave to others to judge which tactic is the more reprehensible.

Embracing the idea that the Constitution is a "living document" is actually the surest way to kill it.

-- 25-April-1998

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TANSTAAFL is an acronym for "There Ain't No Such Thing As A Free Lunch". It is from the writings of the noted science fiction author, Robert Heinlein. In physics, it means that you can't have a perpetual motion machine. In economics, it means that free Canadian health care ain't free.

-- 26-April-1998

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Move the District of Columbia (a modest proposal)

This idea is a natural -- it is so good I'm amazed that no one else has suggested it. Let's give the federal district of Washington, D.C. to Maryland. We then designate a new area to become the seat of the federal government.

The statists who inhabit Congress should embrace this idea. Washington, D.C. is their baby and it is an exemplar of everything that is wrong with big government. I'm sure they'd just as soon hand off responsibility for this embarrassment to someone else. Meanwhile, the clamor for D.C. statehood would be rendered moot. Washington, D.C. would become Washington, Maryland and be treated like any other crime-ridden East Coast city.

An immediate benefit would be that the vast infrastructure of big government would be left behind. All of the beltway bandits would find that their corporate highrises were now far away from the action. Lobbyists would, likewise, be left high and dry. We would get at least a few years respite while they were relocating.

The main problem with the initial conception of the District of Columbia was that it would be a capital city. We will avoid repeating that mistake by moving it to an existing military facility. My preference: the Crane Naval Surface Warfare Center. It has two major advantages: (1) it is close to the geographical center of the country; (2) it is in the 8th District.

Crane is aproximately 100 square miles in area and has lots of extant buildings and warehouses. I figure that a suitable warehouse and 535 metal folding chairs can be found for Congress. We could stick the Supreme Court in the office space above the cafeteria. There are innumerable bunkers where the various alphabet agencies of the executive branch could be housed. The Presidential and Vice-Presidential residences could be outside Crane, D.C. -- bringing them closer to the people. I suggest Washington, Indiana (it has a nice ring).

Part of the problem with the current Washington, D.C. location is that our elected representatives attempt to inflate their own importance to match the overblown classical architectural style. At a minimum, sitting in a 60 year old warehouse or ammunition bunker might inject a little humility into the proceedings.

[Please note: the above is satire. Don't go off saying that Hager has a crackpot scheme to move D.C. -- that is, unless enough of you like the idea. Then I'll be happy to add it to the platform.]


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Don't call them "legislators", call them "de-legislators"

Elected representatives to Congress are often called "legislators". This is an understandable, but unfortunate, designation. True, the members of the House and Senate do possess the constitutional power to legislate. But why remind them? If you call them "legislators", they get the idea that they aren't doing their job unless they are passing laws. The possibility that they would better represent their constituents and honor their oaths of office by repealing laws never enters their minds.

How we define people or organizations does make a difference. The classic example is provided by Russia during the revolutionary period. The militant communist wing of the socialists called themselves Bolsheviks -- literally the "majority" party. In order to demonstrate their total opposition to the Bolsheviks, the democratic wing of the socialists came up with the clever idea of calling themselves Mensheviks -- literally the "minority" party. As a result of this stunning piece of bad judgement, the Mensheviks became an increasingly irrelevant minority and were ultimately consigned to the dustbin of history.

So, the moral of the story is that you should never call the folks in Congress "legislators". Call them what they are: representatives. If you want to tell them what their job should be, call them "de-legislators".


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A lawsuit I'd like to see

The subject of Dick Cady's column in the 14 May Indianapolis Star was an intriguing lawsuit. It seems that two black workers with Airborne Express are suing the company in federal court for failing to sufficiently remedy a situation in which a white co-worker was using racial epithets in their presence. The company's defense: the white worker has Tourette's Syndrome, and is thus covered by the federal Americans with Disabilities Act (ADA). For those unfamiliar with this affliction, Tourette's is a neurological problem that is associated with physical tics, shouting, and uttering epithets and/or scatology.

Obviously, this is a serious matter to the parties involved, but whatever happened to that old admonition, "Let's not make a federal case out of it"? Why couldn't this have been settled among the various individuals and the company without getting the federal government and a bunch of lawyers involved? These days, it seems as though the goal is, "Let's make a federal case out of everything". In the case at hand, we have the federal government bringing private action between employers and employees under its control without any constitutional authority to do so (see, "The Constitution is a 'living document'" for my thoughts on that subject). I would argue that federal meddling actually encourages litigation.

Which brings me to the topic of this piece. Bizarre as this case against Airborne Express is, consider a case where a sports announcer or news anchor has Tourette's and begins to say the "seven words you can't say on television" on television. Permute the litigation possibilities inherent in this situation through your brain. The most prosaic one would be that the TV station would fire the person, who would then sue under the ADA. The more intriguing possibility would be that, because of the person's popularity, the TV station would keep him/her on with a suitable disclaimer and the FCC would then move to revoke the station's license. Now that's a case I'd really like to see!

The TV station would point to the (unconstitutional) ADA and also make a 1st amendment argument against the FCC. The FCC would argue commerce clause, which "of course takes precedence over the 1st amendment" (see "The Internet Technology Pledge" for my arguments as to why the FCC is not needed and should be abolished). What a delicious mess.

The possibility that an TV personality with Tourette's might be popular with the viewing public is not at all unreasonable, by the way. Touretter's are often very creative, perhaps by way of compensation. A news anchor with Tourette's might render a news story about the latest Clinton-Starr-Burton-Lewinski farrago into a comedy routine -- which is about the treatment that it deserves. It would be as though George Carlin or Robin Williams were doing the news.

But, I digress. While the ADA is unconstitutional, I see it as being a minuscule problem when compared to the activities of the FCC. The FCC's control of TV and radio content as well as its attempts to control the internet are a very real threat to freedom. In a federal lawsuit involving a popular TV personality against a bunch of dour federal bureaucrats, my money would be on the TV personality. I think if the case went to the Supreme Court, the folks in the black robes would do the right thing. Well, at least one can hope.

[Incidentally, neuroscientist Oliver Sacks, the author of Awakenings and The Man Who Mistook his Wife for a Hat among other books, has written on the subject of Tourette's Syndrome. Sacks is a first-class scientist who also happens to be a skilled writer and sensitive observer. If you want a good introduction to neuroscience and the workings of the human brain, there is no better place to start than Sacks.]


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A TV time capsule

[This was written in 1992.]

I engaged in a little channel grazing this afternoon and happened on a long-defunct series that is being replayed on TNT. The series is/was called "Cain's 100" and follows the exploits of a federal agent who goes after bad guys. The series appears to be from the early 60s. The episode I happened on was both an amazing time capsule and a cautionary fable for burgeoning young prohibitionists.

The plot in essence: a maker of costume jewelry gets entangled with mobsters in a scheme to smuggle gold out of the U.S. for sale in Mexico. At the time of this show, personal ownership of gold except for jewelry was illegal -- trade in bullion was prohibited and the price of gold was artificially fixed at $35 per troy ounce. Naturally, the rest of the world didn't follow this absurdity so it made the trade in gold lucrative because $35 U.S. gold would fetch a much higher price just over the border. Government agent Cain, an earnest and somewhat humorless fellow, explains on a couple of different occasions how serious this "crime" is and how the mobsters use the proceeds from the smuggling to bring narcotics (horrors!) into the U.S. and/or to finance their "infiltration" of legitimate business.

As I watched, I went into fulmination overdrive. Unfortunately, there was only the TV which, like some elemental force, went on heedless of my imprecations. I had to supply the irony. "God help us if we ever made trade in gold legal," I said. "Why there'd be crime in the streets and more grisly, mob-related murders."

Eventually, I calmed down. Amazing, isn't it? The government comes up with a prohibition, which, in turn, creates a black market. It then has to have federal agents running around to investigate the activity. Finally, it ends the prohibition (under Nixon, if memory serves), the black market disappears, the mobsters no longer find the activity lucrative (particularly if they have to compete with Wall Street and Harvard Business types) and thus said mobsters shuffle off the scene.

What a re-education tool this program could be for drug warriors and prohibitionists of every stripe.

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Hollywood hypocrites

The right-wing has been asserting for a long time that the Hollywood entertainment industry is full of people pushing a "liberal agenda". The right-wing is all wet. I know the things that would go into a "liberal agenda" because I'm an ex-liberal. It used to be that liberals in the United States were the folks who assiduously defended the Bill of Rights (well, not quite all of the Bill of Rights -- see, for example, Sanford Levinson's The Embarrassing Second Amendment). These Hollywood folks are no more liberals than Jesse Helms is a liberal. If they think they are defending the Bill of Rights, it must be the made-for-TV version.

Here's the story. It seems that actors Michael J. Fox and Paul Reiser, among others, have been testifying before the House Judiciary Committee in support of bills to get the federal government involved in determining what is acceptable behavior for photographers or news people who pursue celebrities. Apparently the 1st Amendment applies when the issue is free speech and artistic freedom but not when it involves the press.

If I am elected to the House, one of the committees I want to be on is the Judiciary Committee. Would that I had been elected in 1996 -- then I could be one of the Representatives questioning Fox and Reiser. It might go something like this.

Rep Hager: Mr. Fox, you say that a photographer trespassed on your property in order to take a picture?

Michael J. Fox: Yes, sir.

Rep Hager: I don't think there is any state in the Union that doesn't have some law against trespass. Why are you here bothering us with this?

Michael J. Fox: The state laws are inadequate...

Rep Hager: Then go and bother the California legislature. And, by the way, I understand that you are from Canada. If you became a U.S. citizen, you are supposed to have learned something about the Constitution in order to be naturalized. If your performance here today is any indication, I think you must have cheated on the test. Maybe we should look into having you deported.

Mr. Reiser, what is your problem?

Paul Reiser: A photographer actually spat upon me into order to get a reaction before taking a picture.

Rep Hager: I sympathize. But that is almost certainly considered battery -- a criminal act -- in California. Again, what is your problem?

Paul Reiser: State laws are inadequate...

Rep Hager: It seems to me that you already have adequate legal remedies. What do you want, a federal anti-spitting law? If you feel the penalties in California are too lenient, lobby the state legislature.

Mr. Reiser and Mr. Fox, I've had one of the Committee staffers supply you with a paper on which is written the First Amendment to the U.S. Constitution. Would you gentlemen read it out loud, please?

Fox and Reiser: "Congress shall make no law..."

Rep Hager: STOP! This is the House of Representatives -- part of Congress. Not only is there no place anywhere in the Constitution that gives us the authority to deal with trespass, assault, or anything along those lines -- there is an absolute prohibition against any sort of law restricting freedom of the press. If you are libeled, sue. If you are assaulted, report it to your state or local law enforcement. Now, if the issue has to do with copyright issues, by all means come and talk to us -- that is one of the enumerated powers of Congress. But don't bother us with this stuff.

Really, I'm surprised and disappointed in you gentlemen. I can sort of forgive Mr. Fox for this foolishness. He is from Canada and probably doesn't know any better. But, Mr. Reiser, you are a native-born American. Didn't they teach you anything about the U.S. Constitution in school? Tell me, Mr. Reiser, should we conduct an investigation to ascertain whether or not Mad About You is appropriate for television?

Paul Reiser: H-h-hold on a second. That production has a substantial dollar value attached to it.

Rep Hager: I'm sure it does.

Paul Reiser: Besides, Congress has no power... [Reiser's indignant response peters out]

Rep Hager: Yes, Mr. Reiser. The light dawns. If the U.S. Congress can pass a law regulating the press, we can also pass a law regulating movies or TV. Tell you what I'll do. I'm going to have a closed-door session with the other members of this Committee and explain the Constitution to them. As for you and Mr. Fox, I hope you enjoyed your visit to Washington, D.C. Now, please go home.

A pleasant fantasy. Someone needs to sit these Hollywood hypocrites down and explain that the same Constitution that protects their freedom of expression also protects the press. You don't get to pick and choose which parts of the 1st Amendment you like and which you don't. It's a complete package.


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What fools these cigarette companies be

The other day, shortly after embarking on the return leg of my 1 1/2 hour commute from my job in Indy, I noticed a new billboard ad with the familiar colors of Winston cigarettes. After a brief processing delay, I realized that what I had seen was not an ad but was, instead, a political statement. It said, "Why do politicians smoke cigars while taxing cigarettes?" Clearly, it was a dig at Bill "I didn't inhale" Clinton, whose penchant for cigars is hypocritically melded with his advocacy of higher taxes on cigarettes and more federal control over tobacco products. On this issue, there's a surfeit of hypocrisy, not only with politicians at both the federal and state level but also with the corporate management of the cigarette companies themselves.

It is pretty easy to see that American society is in the early stages of a move toward tobacco prohibition. For a whole host of reasons, this would be a public policy disaster. In my view, the criminogenic effects of nicotine/tobacco prohibition on society would make crack cocaine prohibition look like a Sunday school picnic. At the same time, I have a certain perverse satisfaction in seeing the cigarette companies paying the first installments on the karmic debt they've run up over the past 3 or 4 decades.

Despite overwhelming scientific evidence to the contrary, representatives of the cigarette companies have steadfastly maintained that nicotine is not a drug and is not addictive, and that tobacco cigarettes don't have anything to do with lung cancer. Coupled with this, they have also poured 100's of millions of dollars into the Partnership for a Drug-Free America to whip up anti-drug hysteria, even though science tells us that the illegal drugs in question are safer and less addictive than tobacco cigarettes (see Crime and the Drug War). It is hard to imagine a strategy better designed to condition public opinion in favor of tobacco prohibition. Mere stupidity should produce a random bad strategy. This strategy is so optimally disastrous that it almost seems to be a diabolically clever suicide conspiracy.

Normally, only a government bureaucracy can afford to indulge in the kind of blatant mendacity and political folly exhibited by the cigarette companies. The market tends to operate as a corrective. The fact that the federal government has subsidized and protected the tobacco industry for a large chunk of this century, and thus insulated it somewhat from market forces, is the most likely explanation for the observed behavior. Count the suppression of safer alternative drugs (such as cannabis) by the government's drug war as part of that protection.

Ironically, the government's drug war has helped to keep nicotine/tobacco the most dangerous recreational drug around. Any attempt by the tobacco industry to produce a safe and enjoyable way to get nicotine immediately runs afoul of the Food and Drug Administration, which labels it a drug delivery system. Now the cigarette companies are prisoners of their own rhetoric and the drug war they have helped to promote. The time is fast approaching when the cigarette companies will have to honor their end of the Faustian bargain they struck with the federal government.


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With the recent announcement of a new, simpler approach to mammalian cloning developed at the University of Hawaii, it can be expected that Congress and the President will whip up a recrudescent hysteria and reproduce (dare I say "clone") a whole series of bills to stifle the technology. The last go-round, President Clinton was quick to promote neo-Luddism and anti-science, obviously because he found it politically expedient to do so. This time, he will probably do the same thing. While it is probably true that many of those in Congress who want to enact federal laws against cloning research have obtained their knowledge from repeat viewings of The Boys from Brazil, some must have enough understanding to realize that the arguments that have been offered against human cloning all emanate from bad science fiction and have nothing to do with reality.

In fact, clones already exist: they are called identical twins. A clone of a human adult would begin as an egg. It would have to be implanted into a woman who would then carry it to term, just as is already the case with in vitro fertilization, a technology that is widely used with no dire consequences. A clone would be born like any other normal baby and it would have the same rights as any other person.

In fact, cloning is simply another method of reproduction that will eventually be available to humans. It will almost certainly be an extremely expensive and much less enjoyable alternative to old-fashioned methods and will seldom be chosen. But, if some people want to choose cloning for reproduction in the future, that is a choice that they should have, and under the U.S. Constitution, it is an individual right that the federal government is supposed to protect.

Irrespective of where one stands on the abortion issue, most people would agree that the government has no business intruding into people's reproductive choices. Arguably, reproduction is one of the unenumerated rights protected by the 9th Amendment of the U.S. Constitution. Furthermore, under the 14th Amendment, the federal government has the authority to prevent states from enacting their own laws interfering with a person's reproduction.

It is ironic that both the anti-abortion and abortion rights movements seem to be largely in agreement that human cloning should be banned. The logic of their respective positions defies understanding as the expectation would be that both would be vigorous supporters of cloning, albeit for different reasons.

Opponents of abortion assign rights to an egg at the moment it is fertilized and the full DNA complement exists. With cloning, DNA from a living person is removed and inserted into an enucleated, unfertilized egg, which allows the DNA to produce a separate (but genetically identical) individual. There is no indication that the typical "pro-life" position takes much interest in unfertilized eggs. Given these facts, it would seem that abortion opponents should be strong supporters of cloning because somatic DNA is already "life" in every way except that it lacks a surrounding egg and a particular mix of chemicals. Legally prohibiting a person from expressing the "life" they carry in their own bodies is prospective abortion by government.

Supporters of abortion rights take the position that DNA and fertilized eggs are not important at all, and that rights either accrete during gestation (as in Roe v Wade) or else they are assigned at birth. A woman's body is hers to control and it is up to her to choose to carry or abort as she sees fit. Legally prohibiting a woman from using her eggs and her womb to produce and carry a clone is gross interference with the right to choose.

Banning human cloning research doesn't just constitutionally interfere with reproductive rights, it also would cripple fundamental research into ameliorating the effects of aging, regenerating tissue (such as re-growing severed spinal cords), and curing cancer -- all of which are closely allied fields of study. Blocking the expansion of such critical areas of knowledge will protract human suffering and condemn millions of people to premature death. The only beneficiary would be government Social Security, which would collapse even sooner if life spans were increased because of medical science.

Politics and science are not congenial companions -- science functions best when it is free of all government interference. The federal government shouldn't fund cloning research but neither should it ban it.


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