NO.

I did something this morning that I haven’t done in a very, very long time.

I shut the radio off during a news report.

It wasn’t before shouting.

I’m not proud of that, but the tantrumatic expressions of an entire generation marinated in the divisive and toxic stew of political correctness have reached a zenith for me.

It was yet another story about how people who are ostensibly adults have nothing better to do than gather outside a building with the President’s name on it, and angrily protest the fact that a man who has zero connection with a tiny (and I mean statistically insignificant) group didn’t “do” enough to specifically denounce them in the strongest possible terms.

Like so many other “outrages” surrounding the President’s communications, this is yet another misstep by the President.  Not because he didn’t do as our self-appointed betters in the media, and their shrinking audiences seemed to think necessary, but because he didn’t take the opportunity to set them straight.

Sadly, we have reached a point in this country where without any real consensus, as evidenced by a successful ratification process, whereby we have amended the First Amendment.  By allowing the creation of a de facto right to not be offended, we have enshrined the heckler’s veto, and subjected the freedom of expression to the censor of 50%+1.

If you are one of the people reading this, and saying to yourself “But Blackiswhite, some ideas are so repulsive that they should be shut down, by any means necessary.”, I’m going to tell you, unequivocally, you are wrong, and as un-American as you can possibly  be.  And I don’t care if you don’t like that.  I don’t give a good God Damn if you are “triggered” by that.  Despite all recent efforts to the contrary, life doesn’t come with “safe spaces” and places to color, suck your thumb, or cling to your blankie, while rocking back and forth.

America has been successful because of its freedoms.  The lynchpin of the entire experiment is embodied in the First Amendment, and we are all made to be better citizens by it when we participate in the marketplace of ideas, rather than demanding that the marketplace be shut down.  To silence someone for saying something you don’t like is lazy.  It is easy.  And it is tyrannical, because it ultimately punishes “bad” thoughts.  And given what is being “taught” in the ivory halls of academia today, it is sadly predictable.

It comes down to this:  Compulsion is easy; persuasion is difficult.  But persuasion doesn’t rely on fear or force for conversion, and it requires you to understand, to think about, and to evaluate your reasons for thinking the way that you do.  It also requires the deepest kind of honesty…honesty to yourself, because if you have to confront the reality that the facts don’t support what you believe, but you choose to believe it anyway, then your beliefs are not rational.  And that’s ok, too, but you no longer get to claim “consensus”, or that the “science is settled” or that someone is “on the wrong side of history”, or any other fatally weak rationale for not engaging in a debate, and instead, attempting to silence those who believe differently than you do.

All of this is bad enough, but this latest manifestation, in regard to the denunciations of the President, and the obligatory breathless reporting on it is not only a blatant double standard, but an engagement in a game that the subject can never win.  For better or worse, there is a segment of the population for whom nothing this President, or the party he claims affiliation with will ever be worthy.  The idea that he must be made to specifically denounce a group he has nothing to do with, in the strongest terms, is laughable, as is the implication by doing so, he will magically be granted their approbation.  To believe this is to believe that these same critics would abandon the “victimhood” status which they have employed to such great advantage, rather than simply moving the goal posts, as this twitter exchange illustrates .  The weakness that too many who suffer this kind of assault fail to see is that capitulating to these kinds of demands means allowing others to shape and form your own speech, until you fit into the same mold their as their own preferences, making you indistinguishable from those preferences, but less appealing, because those preferences won’t have your demonstrated proclivities toward the badpolitithougtspeech disfavored by the mob, and our self-appointed betters…thus ensuring the only real diversity that is “approved”… impervious to the irony that if it meets with such approval, it isn’t really an expression of diversity at all.

Being a citizen, rather than a subject, means that you will be exposed to things you do not like.  It means hearing things you don’t like hearing.  And it means that you can evaluate for yourself the merit of the ideas and speech that you are exposed to.  This is worthwhile, if only because you don’t surrender the sovereignty over your own conscience to others and their own subjective ideas about what is worthy of expression…which any citizen knows is dangerous, because sooner or later, YOU will be on the wrong side of what that 50%+1 deems worthy.  This is why the rule of law matters, and why we are all diminished when we engage in de facto exceptions.

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The Cowards Are Winning The Nation Because We Are Letting Them

I have been watching the latest cultural crusades with some dread and trepidation.

The campaign against the Confederate Battle Flag is one in which cowards have not only prevailed, but engaged in an orgy of self-congratulation that would leave most rational witnesses convinced of the insanity of the most fervently committed, and it has enjoyed a success that could not have been possible until we empowered those among us who decided to be offended at anything.  Once we allowed offense to become a de facto crime, we robbed ourselves of the most powerful tool of personal and regional autonomy: The Burden of Persuasion.

Make no mistake.  This is where we have been headed the minute we set foot on this road.  One need only look back and recognize that this has been how the left has accomplished every major coup of the last 60 years.  What could not be won in persuasion, and therefore by legislative means, was won in courtrooms, by judges and justices peering in “the law”, and divining just the right purpose to reward petitioners by mining the necessary meanings from penumbras and emanations, until they have gotten so bold that they will announce their conclusions as rooted in shallow philosophy rather than actual jurisprudence.  And at the same time, they have set themselves up as the ultimate arbiters of culture, unafraid to take advantage of the general good nature of those they would browbeat into submission.  This, was in fact, their avenue to victory.  By claiming offense at anything and everything, they caused those they deemed themselves to be superior to surrender.  It is a cowardly way to advance an idea, a notion, a concept, or a worldview, but shame was not to stand in the way of victory.

It is said that one of the great flashes of genius in the Second Amendment is that it prevents compulsion and requires persuasion.  Small wonder, then that the Second Amendment is a touchpoint, and a sore one at that in the war that our cultural betters have been waging against us for years now.  I have largely stayed out of the battle over the Confederate Battle Flag, not because I didn’t think it mattered as a fight, but because it has been a convenient distraction and wedge to occupy good people in a never-ending battle against the cultural shock troops of our betters, while the very people who have fomented this conflict benefit from drawing everyone’s attention away from what they are doing.  Frankly, the only reason I’m commenting on this farce now has to do with a blog post that made its way around Facebook this week, where a “hero” took it upon himself to tear the battle flag off the back of a semi trailer.  The author waxed poetic about the vandal’s heroism, and about the “cowards” who fought for the losing cause of the Confederacy.   The aggressiveness of the ignorance underscored why this matters.

Back when I was young, and my skull full of mush, I believed in the nobility of the North’s cause in that conflict.  I too, referred to that banner as a traitor’s flag.  But when I got outside the halls of public indoctrination, and took the time to read first-hand accounts, and to dig deep into the history to understand the events of the era, I learned that not everything that I was taught was correct, and that it sure as hell didn’t tell the whole story.  But even when I didn’t know what I didn’t know about the conflict, I still wouldn’t have characterized the Confederates as “cowards”.  Knowing what I know now, I know that men don’t fight for years, in rags, sometimes barefoot, with as many of their number falling prey to malnutrition as to enemy action out of a belief in an institution that many of them weren’t wealthy enough to practice on their own, and it is cartoonish and silly to assert otherwise.

But flush in their recent judicial victories, complete with govern-given “rights”, and cultural victories against a symbol that represents a lot of things, good and bad, our betters now assume that persuasion is no longer necessary.  They show no hesitation at demonizing anyone who dares to think, or believe in ways in which they do not approve.  They seek to criminalize non-conformity, to bring the power of the state to bear against anyone who dares resist their collective will.  This is the essence of cowardice; the absolute refusal to persuade when compulsion has been made easy.  It shows no respect, despite demanding it still when “offense” is invoked, and it will brook no resistance.  The only view that is acceptable is their own, and if you cannot be made to voluntarily silence yourself, then they will shut you up by force, and make an example of you if necessary.  And when all else fails, they will attack the dead.

I read a tweet the other day by some Administration flunky, which expressed the view that states rights has been dead (and rightly so) since the Civil War.  In some ways, he was correct, but in the most important one, he was wrong.  I don’t recall any amendment repealing the Tenth Amendment, and until that occurs, Americans everywhere are free to exercise their rights within their home state to live in any way that they did not expressly grant the Federal government control over. And it is LONG past time to stop being polite, to our own detriment, and remind our betters and our rulers (BIRM) of that fact.

It’s been said that war is simply politics by other means.  Our betters believe that politics is war by other means, and that is why they are always on the attack.  If it feels like you’re always being put on the offensive, it’s because you are.  And its being done by people who are cowards, people who don’t want to have a conversation, people who don’t want to have a debate.  They are people who want to lecture.  They are people who want to scold.  No give and take is necessary, because they don’t have to afford you the courtesy or respect of acknowledging that your opposing (or even just different) thoughts and beliefs are honestly arrived at, derived, or earned.  They are people who eschew morals, but cling to their own ideology, and advance it by any means necessary as if it were the strongest moral imperative.  As long as your motives can be disregarded by the casting of aspersion, then they do not have to persuade you, because you…YOU…are a racist.  YOU are a hater.  YOU are a bigot.  YOU are a reactionary, and only their view may prevail.

The President recently said that the only thing we all have in common is government.  It is small wonder then, that so many among us keep trying to imbue it will power it was never meant to have, in part to stamp out any non-conformity with what it would plan for us.  I think that we could set the cultural cannon fodder back on their heels if we would only stand.  It wouldn’t mean being rude; merely firm.  But then, if they continue to criminalize thought, and continue to presume that they know what is in our hearts, then they should be weary.  Getting what one has wished for has been the undoing of many people throughout the years, and the fact is that if they are determined to make me, and my friends outlaws, then I am quite sure that we will be the scariest damn outlaws to ever walk the Earth.

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On the Coronation of Our Nation’s First Monarch…

What I learned from Barry the Usurper’s speech:

1. Progressivism sees the ultimate aim of government as the removal or mitigation of consequences for those it has deliberately enslaved with gilded shackles.

2. Logic has no place in the actions of government. You MUST believe that deportation is physically impossible, but verification of tax status and criminal background checks for the very same people can be accomplished with the wave of a wand.

3. “New tones” and “civility” only apply to discourse directed toward the monarch and his prerogatives; he will be as insulting, as condescending, and as reckless with the truth as he likes. He may impugn the character of his opponents, and assassinate any character he choses without acknowledging that he never had a right to claim the moral high ground that he has. And if you expect something different, that’s your problem, not his.

4. Breaking the law should never be rewarded, unless the Monarch deems it proper to do so.

5. Redefining terms and words in order to rhetorically spin dross into gold is acceptable linguistic alchemy.

6. Claiming cover based on the actions of predecessors whom you have reviled and disrespected at every turn isn’t despicable and toxically ironic when the Monarch does it.

7. If Congress doesn’t pass a law that the Monarch wants, the Monarch can refuse to enforce the law that exists…and such a trick is capable of repetition.

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“UNEXPECTEDLY”

When I was a young man, about a week or so out from high school graduation, my friends and I piled in a Suburban and went up north to Hammond Bay for a few days of sailing and fishing.  On the second day, we all woke up, and everyone was eager to get on the boat and do some sailing.  Except me.  I could smell rain, and I suggested that we wait.  After some grumbling back and forth, we agreed to go over to the port, and hang out there for a while.  I grabbed my fishing pole and went to the end of the pier.  I sat there, casting my line out, and slowly reeling it in, while watching the sky along the coastline to the north.

After about ten minutes, one of my friends sat down next to me and was doing the same.  We sat there, casting, reeling, and looking north, while listening to the sound of the reels and the rising waves.  Twenty minutes later, we could see a wall of rain about a mile off to the north.  The wind picked up, and a small power boat came into the middle of the harbor, dropped anchor, and zipped everything up.  “It’s raining pretty hard up there.” my friend observed.  “Yup.” was my only reply.  The casting and reeling continued for another twenty minutes.  The wind was blowing harder, the temperature had dropped, and the wall of rain was only a half mile or so away.   My friend looked up and said “It’s raining pretty hard up there.”  I looked up, and said “Yup.”, and continued to cast and reel.   Ten minutes passed.   Two more boats came in, and tied up, their passengers rushing off to their cars waiting in the parking lot.  The wall of rain was now less than a quarter mile away.  My friend stopped reeling, and stared at the rain as he said “It’s raining pretty hard up there.”  I stopped, and shivered in the wind as I regarded the rapidly approaching wall of rain.  “Yup.” was my only reply.

Three minutes later, a raindrop the size of a half-dollar slammed into my forehead, followed by another.  And another.  We got up and ran as hard as we could for the Suburban, but in the minute or so it took us to get there, we were drenched.

Why am I telling you this story?  Because our government is doing the same thing.

Just as it was utterly predictable that we would get wet if we didn’t react to the obvious threat, our government refused to react to the obvious threat of a terrible disease, and suspend air travel from the affected area in west Africa, and the inevitable happened.  It flew in with a passenger from the affected area.  And while that passenger has since passed, he didn’t do so without infecting Americans with a disease that has a 70% mortality rate, according to the new data from the World Health Organization.

The government, facing the obvious question, has decided that rather than stopping the flights now, it is imperative to keep these flights going, because stopping them will make us less safe from the virus.  This causes anyone with three brain cells and the knowledge that England and France (FRANCE!!!) believe otherwise to stifle a collective “That’s quite possibly the dumbest thing we’ve ever heard.” , but actually, this makes a perverse sort of sense when you consider that this excuse originates in the same town where not spending more on an agency or program than we spent last year is somehow a “cut”.

The fact is that a travel ban from West Africa would lead to questions about other immigration…and those questions would lead to questions about Enterovirus 68, which has killed several American children, and the emergence of which corresponds to the resettlement of all the “children” from south of border. (Unexpectedly!) and then people would be questioning an ideological touchstone of this Administration for reasons that could not logically be defined as “racist”.  And they can’t have that.  The illusion of the naked emperor’s resplendent garb is simply too precious, especially to the emperor himself.  Protecting the first failure, which ignores the wisdom of previous generations who saw the wisdom in health screenings as a condition of entry into this country, means committing more errors, which will, in turn, cost more American lives.

To combat this obvious failure, which would even cause Helen Keller to say “What the hell…?”, the meme has been floated that being  concerned about this silly, given that tobacco, alcohol, and obesity kill tens of thousands more in this country annually, so being concerned this government’s stubborn insistence to continue to allow people from affected areas to travel to this country and potentially infect Americans with a dread disease with a 71% mortality rate that heretofore was unseen among our population is somehow foolish “panicking”.  “Panic” is of course, hyperbole.   Panic is afoot in this nation today, but it is found in the offices of Democratic incumbents seeking re-election to the United States Senate, not among the average American who realizes that common sense and logic are being deliberately suppressed in favor of purely political considerations that have already needlessly cost the lives of Americans, and place countless others at risk

It isn’t panic that most Americans feel about this, it is ANGER.  Justifiable, controlled, and focused ANGER.

And when the response is to draw comparisons to other causes of death, such as from alcohol, tobacco, and obesity, they have a right to be even angrier, as the lyric “One of these things is different from the other/One of these things is different from the rest.” plays loudly in the radio of their minds.  The fact is that we are all dying, a  little bit each day, and for most Americans, these causes are also incremental.  They kill, but because they are patient, and slow, they feel like they are contributing factors, and not direct causes.  And more importantly, they are the result of choices WE make, not choices that our government refuses to make.   That is the difference, and it is an even greater irritant when we consider the steps that government takes to “protect” us from these incremental harms.  Minimum ages in order purchase the products.  Taxes to discourage purchase.  PSAs.  Fitness and nutrition programs.  Millions and millions of dollars spent annually to “protect” us from cutting off the years we would otherwise spend in wheelchairs, warehoused in a “home” somewhere, staring off into space, exhausting our resources, and more commonly, the taxpayers’ money, and yet this same government, afraid to threaten a source of new votes purchased with our money refuses to take common sense measures to reduce the number of Americans exposed to and infected with a disease that will cause fever, liquefied internal organs, seizures, and death while bleeding out of every orifice, all in a span of days.  That kind of dual-mindedness would hopelessly confuse Bob Arctor.

And when the government decides to do “something”, it is to appoint a political hack to “take the point” (and the blame) for an executive who’d rather be golfing, until it’s time to blame someone for the inevitable failures.

We have a right to be angry.  And they are the ones who should be panicking.

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A Different Perspective

For a while now, some conservative pundits and individuals have portrayed our current political predicament as being akin to the “zombie apocalypse”.  It is an easy comparison to make, and it isn’t even a new one, as demonstrated by our friend, Packy East, in this clip:

But ask I drove to work this morning, listing to a discussion about the ridiculous and costly nature of public sector unions, and how government, led by the EPA, was standing in the way of what should be a very simple infrastructure improvement that would allow American businesses to remain competitive moving forward into the 21st Century, and this story about the Bureau of Land Management harassing a rancher in southern Nevada, I realized that the zombie analogy wasn’t entirely accurate.

Don’t get me wrong.  I think the zombies are still out there, shuffling along, and multiplying quickly, but I realized this morning that there is a better analogy of the relationship between our government and its citizens:

I trust no further explanation is necessary.

Those who are paying attention will get it.

Those accustomed to stupid government tricks will get it.

The zombies will engage in ad hominems to prevent others from getting it.

The grievance pimps will take to their fainting couches with wicked, crippling cases of the vapors.

And it will still be true.

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Interregnum

With a government based on the rule of law becoming increasingly lawless with every passing day, I find the subject of rebellion on my mind more and more.  I don’t mean rebellion in the sense of the contumacious response that many of our forebears reserved for those who disregarded the notions of individual rights and liberty in favor of a distant sovereign.  I mean a deliberate and conscious effort to hinder the designs of those who “rule” without understanding, and who turn the notion of consent of the governed around so that the governed must seek the consent of the government.  Indeed, when we are burdened with a President who has voiced criticism of the Constitution that characterizes it as a “charter of Negative Liberties”, and laments the fact that it has in the past prevented government from working a top down, fundamental change, including redistribution of wealth, as a means to work “social justice” upon the country, and without a trace of understanding that this has been a feature and not a bug, reasonable men and women will observe that these are not normal times.

It is hard to maintain a fealty and respect for the offices of government when its scrutiny and muscle render so little of it those it was intended to serve.  And as the single biggest usurpation of power ever devised by man, the cruelly and ironically titled “Affordable Care Act” continues to harm Americans in greater numbers than it “helps”, despite the Administration’s near constant extra-Constitutional efforts to delay implementation of some of its more onerous provisions, I suspect that I am not the only one considering rebellion, in a myriad degrees.

I fear the disruption and chaos that would come with an open insurrection.  But with a government that disregards any semblance of limitation upon its power, or any regard for ours, I find it difficult to believe that things will improve of their own accord.  As corruption becomes the norm, and as government wears less tolerant of competitors and critics, I suspect that acts of rebellion, large and small, will become commonplace.  Lawlessness begets lawlessness.  Selective enforcement is no different from arbitrary and capricious fiat, save for the window dressing of legitimacy conferred by the fact that what is being selectively enforce having actually once been enacted by a legislature.  Without a common moral compass to act as a moderating influence, I have little faith that once contempt for the rule of law is shared equally by those charged with enforcing it, and those meant to live under it, that bloody retribution will not be a fatiguing fixture of daily life.  And still, it comes, along with the day when each person will have to decide how far is too far, what trespasses are too offensive, and what intrusions are intolerable.  As that decision is arrived at, the legitimacy of government will evaporate like morning fog on a summer lake, because once those charged with maintaining the peace have abrogated the birthright of our citizens, the social compact will be swept away, leaving those with no understanding of the philosophy and history of our legal tradition to make the laws.

25 In those days there was no king in Israel; everyone did what was right in his own eyes.
Judges 21:25

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A Nation of Bullies

I saw a post today on Facebook talking about how wrong it is that the Presstitute Corpse was all over the story about a top Chris Christie aid and a childhood friend of his colluding to snarl up traffic for the city of Fort Lee, New Jersey getting on the George Washington Bridge. [Apparently, they decided to “punish” the mayor of Fort Lee, a Democrat, for refusing to endorse Christie in his campaign for governor, so multiple lanes leading to the bridge were shut down for a “traffic study”.]  Basically, this post took the position that the same media that was fairly disinterested in the IRS being used to target the Administration’s critics, and really cannot be persuaded to dig very hard into Benghazi shouldn’t be making a big deal about this abuse of power, because it shows that Christie can be a badass.

It’s right and it’s wrong.

First, the attitude of the Presstitute Corpse with regard to the abuses of power and scandals of the Obama Administration is contemptible, and the logic is laid bare in this exchange between DNC Chair Debbie Wassermann-Schultz and CNN’s Don Lemon.  The sad truth is that both deserve a great deal of scrutiny and criticism.

I don’t want a Presidential Candidate (I wouldn’t have chosen Christie anyway) who establishes his “badass” creds by abusing power, or allowing those close to him to do so without his knowledge *winkwink*.  And it isn’t ok when one of “ours” does it, simply because it has become second nature to the Executive Branch in Washington DC.

Abuse of power is the worst abuse of the public trust because it takes something that exists for the benefit of citizens, and turns it against them.  And when it is used to specifically punish or deter the exercise of freedom of speech and freedom of association, it becomes particularly repugnant.  While we have an undercurrent in society today that finds retaliation against the exercise of these rights acceptable, especially if the retaliator was “offended”, this concept is anti-American, and belies a weakness in those finding such “offense”.  If your ideals are so delicate that you cannot adequately defend them, and instead must “punish” those who believe differently, you’re the one with a problem.  If you cannot convince those who believe differently than you to see it your way, and you believe that the appropriate response is to “punish” them, you’re the one with a problem.   And if you are so “offended” by a differing opinion that you must squelch it, you’re the one with a problem.

You want a candidate who is a badass?  Find one who isn’t afraid to be unapologetically conservative.  Find one who isn’t afraid to go to those places where conservatives “dare not walk”, and plainly and patiently explain why conservative principles, especially smaller government, create opportunity and an economic climate in which the limitations on people’s accomplishments and standard of living are up to them, and not simply reduced to what government let’s them have.  Find one who will not retreat, and will not compromise freedom…but most of all, find one who is a good enough leader that he or she will not be “surprised” by a close aid or staffer who believes it ok to use the offices of government to punish people who disagree with them.

If Christie knew about this, he isn’t worthy of the nation’s trust in Federal office.  If he didn’t know, then he isn’t ready to be trusted with this kind of authority.  But if the Presstitute Corpse believes that it is appropriate to turn this into the biggest scandal since Watergate when it couldn’t be bothered to turn the same scrutiny on the IRS, on Benghazi, on Solyndra and other “green energy” graft, they are committing malpractice, and need to be held to account, too.

 

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The Remnant

I had an interesting conversation this week with another businessman who has had enough.

The topic came up when he learned that I am business attorney, and he started to talk to me about the never-ending stream of regulations and taxes, and how he wondered if government didn’t do some of it just to find out how much we would let it get away with.  I smiled, I nodded, and then I told him about my recent odyssey with the Census Bureau.  We both got a laugh out of that, especially when we talked about how long the survey was, and how they just presumed that I would be willing to surrender that time to the government without a peep.  This lead to a discussion about how it doesn’t take very many agencies, bureaus, and offices making “insignificant” demands on you time, and on your earnings before it really starts to add up.  And of course, none of them ever take into consideration that their “insignificant” demands are coming along with all the other “insignificant” demands…not that it would matter, of course, since their demands are important, and must be responded to.

Then he said “I’ll go you one better.  A few years back, I got one of those forms where they wanted me to pretty much inventory EVERY item in my business, then compute the tax and send it to them.”

“Ok…” I said.

“Yeah.  I thought about it for a minute, realized how many HOURS that would take to do, hours that I wouldn’t be using to earn money, and so I looked at the form, and saw that it was a $40.00 fine to not fill out the form and send it back.  I wrote on it “I’m not going to take the HOURS necessary to do this.  Bill me for your fine.”  And I never heard anything more.  They send a new form every couple of years, I answer the same way.  And I’ve never been contacted by anyone looking for their fine.”

We both laughed.  And for a few minutes, I was glad.  It makes me happy to see even small acts of defiance against an out of control government.

———————————————————————

I was introduced to a new song last night.  And it made me very, very happy to know that there are people willing to be the nail that stands up, at a time when so many allow themselves to be intimidated by a tyranny of political correctness, and small-minded thugs who keep finding new ways to take what doesn’t belong to them.

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A friend of mine let loose today with a good rant on Facebook today on the chronic misuse of the word “tolerance” and how the ones who use it most clearly don’t understand it based on their intolerance of those they disagree with.  I’m proud to count her, and others like her, as friends.

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As our President continues to hamfistedly attempt to gaslight the nation about his blatant lies, and as he sets the tone from the top down of a government culture that pays lip service to accountability, yet remains blissfully consequence-free in light of its mendacity and failure, there is a rising anger that will eventually remind our public “servants” that service and employment both come with accountability, and that we will not let those who serve us continue to enjoy good fortune at our expense, and a cushy sinecure that none of us could ever hope to dream of.  The fact that they continue to let this attitude build, while flaunting their disrespect and lack of self-awareness in our faces demonstrates the kind of bad judgement that converts dismay due to lack of respect to a desire to instill fear.  I don’t think it will be pretty, but I do think it will be instructive, and occasionally, “pour l’encourage les autres” has its place.

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The First Amendment Is Still Alive

A friend of mine posted a link to an article this morning he prefaced with the question “Is sacrificing your religious liberty the price of market participation?”  The article, by Benjamin Wiker, entitled “The Religious-Liberty Quagmire to Come” discusses a recent Slate article sympathetic with the current HHS mandate overreach in which government attempts to abrogate the rights of people to exercise their religious liberty with their property, specifically duly chartered legal business entities.

The article’s author opposes the viewpoints expressed in the Slate article, by author Dalia Lithwick.  I oppose them also, but on grounds originating not just in my studies, but also by practical experience and logic.

The first point raised is this:

Lithwick argues, first of all, that corporations are distinct entities from individuals.

This is true in a literal sense.  Corporations have a legal identity that are separate from their owners in the same way that I have a legal identity that is separate from my oldest son.  You’ll note that I did not use my wife in that example.  It was not an accident.  While she is indeed an entity that is distinct from myself, we happen to live in a community property state, so we “enjoy” the dual status of having distinct legal identities, while legally being considered as having the same legal identity for legal, and more to the point, commercial, purposes.  This reality is imposed upon us by the state, which applies this status based upon an action we took based on a shared religious conviction, and retain based upon that same shared religious conviction.  We are each “owners” of that resultant fictional legal entity known as a “marital community”, which, at least in our case, exists and acts in both personal and commercial transactions in ways that express or are the result of our individual religious beliefs.

While individuals can have religious beliefs, corporations can’t. Once you establish a corporation, it is automatically a secular corporation.

This is what we called in law school a “false starting premise”.  The reason is simple.  The state’s blessing to act as a corporate entity does not automatically confer a “secular” (like the author of the piece, I also object to the common use of the word “secular”, and for the same reasons, however, for the purpose of this essay, I will use it in the context of the incorrectly presumed “neutrality” in which it is often used) status on the resulting entity.  The reason for this is simple.  State enabling statutes almost always permit corporations and limited liability companies to be established “for any lawful purpose”, which by its nature would include the conducting of any lawful business in a manner consistent with the religious faith of the owners of the entity in question.  In fact, thanks to the First Amendment, and its extension to the individual states, the states would be legally prohibited from restricting individuals from forming entities for such purposes.

The other obvious weakness in this rather remarkable assertion from Ms. Lithwick would be the fact that churches often incorporate as non-profit corporations in order to apply for Section 501(c)(3) status so that donations, gifts, and tithes maybe tax deductible to the donor. (Contrary to popular opinion, churches do not have to apply for this status to be tax-free.  They are already tax-free, as they should be, as a result of the First Amendment.)

Wiker states that Lithwick’s assertion is rooted in the decision in the Conestoga Wood Specialties Corp. decision.  The corporation is owned by a Mennonite Family which employs 950 people.  The family opposes the HHS mandates regarding abortion on religious grounds.  The Federal Judge hearing the case concluded:

“We simply cannot understand how a for-profit, secular corporation — apart from its owners — can exercise religion,” circuit Judge Robert Cowen wrote. “A holding to the contrary … would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”

Aside from the naked and unsupported (and unsupportable) conclusion that a corporation is secular, there are a few other weaknesses.  State law would rightfully permit me to draft and file for a client Articles of Incorporation or a Certificate of Formation establishing that the entity is “being formed for the express purpose of selling ice cream, and spreading the gospel of Jesus Christ, and any other lawful purpose,”, and there is nothing that the state or the Federal government could Constitutionally do to prevent me from doing so. Being a distinct legal entity doesn’t mean that a corporation cannot express or conduct itself based upon a specific political or religious viewpoint.  And while there are instances in which government may lawfully restrict what an owner does with its private property in certain balancing of the equities situations, at this time, I can think of none which directly conflict with the right of conscience.

The assertion of an automatic secular nature of corporations based on a theory of complete segregation between a legal entity and those that own them faces other philosophical and logical difficulties aside from being an assumption of a fact not in evidence.  First among them is the fact that one of the pillars the good Judge rests his opinion on is the notion that that an individual can exercise religious freedom, but a corporation cannot.  This point ignores the fact that corporations ARE allowed to exercise other First Amendment rights, such as freedom of speech, and Freedom of Association, which is the main principle underlying the freedom to enter into contracts with people of your choosing, or the freedom to hire people who you think make a good fit with your corporation, and will make a good employee.  Recognizing this, there is no logical or legal basis to presume that these freedoms can be exercised by a corporation or an LLC, but that those same entities can or should be barred from exercising religious freedom to act in a manner consistent with the religious beliefs of its owner.

The second weakness with this assertion is the fact that the income from many of these “separate, distinct legal entities” is reported not on a separate tax form for that entity, but on the personal tax forms for those who own those entities, which would hardly make sense if these were indeed separate and distinct from their owners.

The third weakness of this viewpoint is that our economy would be in much worse shape without corporations and LLCs because they make it possible for more people to provide goods and services at prices and in quantities that the risk that they would necessarily have to bear individually would either make prohibitively expensive, or practically impossible to provide.  While the very word “corporation” often evokes the image of boardrooms filled with grey suits making decisions that impact the livelihood of hundreds or thousands, or more, the fact is that the majority of corporations are closely-held businesses, where the ownership consists of a individuals, or small numbers of people, often members of the same family, or of one or two families. And in some instances, this is also true of those large corporations that I previously spoke of.  Ford is one example that comes to mind.  However, even if it wasn’t for the fact that a majority of these entities are small, closely held corporations or LLCs that permit individuals to offer products or services because of the risk management that the law permits through the use of these entities, there is also the fact that the law DOES allow certain individuals who offer goods and services through corporations and LLCs to refuse to offer those goods and services based on the individual owner’s right of conscience and/or religious beliefs, among other factors.  Doctors, who can refuse to perform abortions, and attorneys, who can refuse representation based on any factor at all, are two that come to mind.  While competence or having the requisite skill are among the reasons for these rights of refusal, they are not the ONLY ones.  And while it might be tempting to say that the personal nature of services rendered by these professions support such an exemption, the fact is that for nearly all closely-held business entities, the nature of what those individuals do is personal.  For such individuals, their business is at the forefront of their thinking.  It is the first thing they think of in the morning, it is what they contemplate as they drift off to sleep at night.  Their businesses ARE an expression of who they are, and  that “separate legal entity” invariably becomes associated with the individuals who own them.  The manner in which they conduct their business often expresses an opinion or a philosophy held dear to the owner of that business.  It is not reasonable or logical to suggest or expect that these individuals segregate their religious and spiritual identity and activity from the profession or career that they otherwise breathe and eat; to do so would be a denial of the very essence of the person that the law and society would find morally objectionable and repugnant if any other belief or activity was being discussed instead of the free exercise of religion. This is no less true for a baker of wedding cakes, or a photographer than it is for a doctor or a lawyer who has incorporated so they can ply their trade without risking the loss of everything they own and have worked for to one lawsuit.

Another logical weakness in this assertion is that many of these entities often are operated day-to-day in accordance with various codes of ethics voluntarily committed to by the owners and employees of the corporations and LLCs.  For an entity to be, even indirectly, conducted according to such a code of ethics, but presumably not capable of exercising a religious point of view is facially absurd.

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I’d like to think that things will get better, but the current prevailing prejudice against religion in some of the most litigious groups in our society leads me to believe that we’re in for a lengthy fight to preserve our first liberties.  Especially if examples such as the New Mexico photographer, and the pink swastika philosophy that seeks to punish those who do not wish to participate in their activities, regardless of whether not it makes any logical sense to compel those who object with their beliefs to provide a personal service or product is any indication.  But then, with a federal government that is engaging in similar unconstitutional behavior as a guide, there really is no reason to be surprised at the bold entitlement demonstrated in this strategy, which is why legal interest groups such as the ADF are going to become increasingly important and need our help in the coming years.

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Federal Follies, Part 3

Apparently, the sequester hasn’t affected the Census Bureau, because they CONTINUE to call my home.

Last night, to their bad fortune, they did so when I was actually here.
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I got another call from the Census Bureau last night.

It didn’t even register with the flunky attempting to intimidate me into giving them a host of information that is none of their business that telling me “Congress passed a law giving us the authority to collect data for them.” wouldn’t even be the slightest bit convincing to an attorney who has read the relevant sections of 13 USC and can’t find ANY authority for the scope of the questions they were asking, and she got very upset when I told her that they need to quit calling my home, as it is starting to border on harrassment.

Fed Flunky: Sir, if you do not answer the questions, I’ll have to make you as a “refusal”.

Me: You can mark me as a refusal, but that would not be true. The law says I can be fined if I willfully refuse to fill out any portion of the survey. I filled out the first page, and then wrote “None of your damn business” on the remaning 35 pages. Therefore I didn’t fail to fill out any portion of the survey, only the parts that are none of your business. Besides, I’d be seventeen different kinds of idiot to give you that information considering the federal government’s recent treack record with confidential data.

Fed Flunky: Sir, THAT’S not what the law means.

Me: Oh, I’m sorry. I wasn’t aware I was speaking to another attorney. It must suck having to work a Friday evening for minimum wage.

Fed Flunky: If you have a law degree, you can defend yourself at the hearing.

Me: Is that supposed to scare me?

*click*

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If we can pay for this kind of idiotic pursuit of American citizens, and NOT enforce current immigration law, and not allow the government to perform the functions that it is SUPPOSED to be doing, like training for military units, then this government’s legitimacy should be loudly and frequently questioned.  Daily.

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