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Title: Blog by Novelist William S. Frankl, MD

Archive for April, 2010

Arizona Dust Storm

Friday, April 30th, 2010

On April 23rd,  Gov. Jan Brewer of Arizona signed a law, SB 1070, prohibiting the harboring of illegal aliens and makes it a state crime for an alien to commit certain federal immigration crimes.  It requires police officers who, in the course of a traffic stop or other law-enforcement action, come to a “reasonable suspicion” that a person is an illegal alien must verify the person’s immigration status with the federal government.

Groups that favor relaxed enforcement of immigration laws insist the law is unconstitutional.  However, the arguments  against it either misrepresent its text or are otherwise inaccurate, according to Kris W. Kobach, a law professor at the University of Missouri at Kansas City and Attorney General John Ashcroft’s chief adviser on immigration law and border security from 2001 to 2003. Let’s analyze the major objections:

1. It is unfair to demand that aliens carry their documents with them:

––It is true that the Arizona law makes it a misdemeanor for an alien to fail to carry certain documents, but since 1940, it has been a federal crime for aliens to fail to keep such registration documents with them. The Arizona law merely adds a state penalty to what was  a federal crime.
––And most other countries have similar documentation requirements.

2. “Reasonable suspicion” is a meaningless term that allows police misconduct:

––Federal courts have issued hundreds of opinions defining those two words.
––The Arizona law didn’t invent the concept: Precedents list the factors that can contribute to reasonable suspicion. When several such factors are combined, the “totality of circumstances” that result may create reasonable suspicion that a crime has been committed.

3. The law will allow police to engage in racial profiling:

–– Section 2 of the Arizona Law provides that a law enforcement official “may not solely consider race, color or national origin” in making any stops or determining immigration status. Also, all normal Fourth Amendment protections against profiling apply.
––The Arizona law reduces the likelihood of race-based harassment by compelling police officers to contact the federal government as soon as is practicable when they suspect a person is an illegal alien, as opposed to letting them make arrests on their own assessment.

Source: Kris W. Kobach, “Why Arizona Drew a Line,” New York Times, April 29, 2010.

For text: http://www.nytimes.com/2010/04/29/opinion/29kobach.html

The Constitution in the “Cross Hairs.”

Friday, April 30th, 2010

Supreme Court Justice John Paul Stevens has indicated he is resigning effective before the next Supreme Court term in October. Thus, President Obama will nominate Steven’s successor. Since Obama is far to the left politically, he is likely to nominate someone who thinks the same way, i.e. that the Constitution is a ” living document,” and therefore fair game for judicial activism.
I was struck by a clear and concise article by Stephen J. Markman, Justice of the Michigan Supreme Court in Imprimus, a publication of Hillsdale College, Vol. 39, Number 4, April, 2010. The article was adopted from a speech Justice Markman gave on February 25, 2010 sponsored by Hillsdale College’s Allan P. Kirby Center for Constitutional Studies and Citizenship. In his article he outlines the controversies that are certain to emerge as the process of naming a new justice moves forward.
I am posting a few excerpts from the article, The Coming Constitutional Debate, and will link to the entire article. This is reprinted in part by permission from Imprimus, a publication of Hillsdale College. The following are these excerpts:

“Proponents of a “21st century constitution” or “living constitution” aim to transform our nation’s supreme law beyond recognition—and with a minimum of public attention and debate. Indeed, if there is an overarching theme to what they wish to achieve, it is the diminishment of the democratic and representative processes of American government. It is the replacement of a system of republican government, in which the constitution is largely focused upon the architecture of government in order to minimize the likelihood of abuse of power, with a system of judicial government, in which substantive policy outcomes are increasingly determined by federal judges. Rather than merely defining broad rules of the game for the legislative and executive branches of government, the new constitution would compel specific outcomes.
“Yes, the forms of the Founders’ Constitution would remain—a bicameral legislature, periodic elections, state governments—but the important decisions would increasingly be undertaken by courts, especially by federal courts. It will be the California referendum process writ national, a process by which the decisions of millions of voters on matters such as racial quotas, social services funding, and immigration policy have been routinely overturned by single judges acting in the name of the Constitution—not the Framers’ Constitution, but a “constitution for our times,” a “living constitution,” resembling, sadly, the constitutions of failed and despotic nations across the globe.”

“For the 21st century constitutionalist, perhaps the greatest virtue of redefining the privileges or immunities clause is the prospect of transforming the Constitution from a guarantor of “negative liberties” into a charter of “affirmative government,” guaranteeing an array of “positive” rights. As President Obama has observed in a radio interview in criticism of the legacy of the Warren Court of the 1950s and 1960s, “[It] never ventured into the issues of redistribution of wealth and . . . more basic issues of political and economic justice in this society. . . . [T]he Warren Court . . . wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution. . . that generally the Constitution is a charter of negative liberties, says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.”
“President Obama is correct. The Framers’ Constitution defines individual rights in terms of what the government cannot do to you. For example, the government cannot inflict cruel and unusual punishment, and therefore the individual has a constitutional right not to be subject to such punishment; the government cannot engage in unreasonable searches and seizures, and therefore the individual has a constitutional right not to be subject to such searches and seizures, and so forth. By contrast, the Framers’ Constitution does not guarantee rights to material goods such as housing, education, food, clothing, jobs, or health care—rights that place a related obligation upon the state to obtain the resources from other citizens to pay for them.
“Proponents of a 21st century constitution have many grievances with the individual rights premises of our Constitution as written—such as the largely procedural focus of the 14th Amendment’s due process clause, with its old-fashioned conception of such rights as those to “life, liberty, and property”; the negative cast of the specifically-defined rights in the Bill of Rights; and the limited application of the equal rights clause to things that have been enacted by legislatures (as opposed to things that they should have been required to enact). Each of these “limitations” poses significant barriers to what 21st century constitutionalists hope to achieve in reconfiguring America. This explains their interest in employing the privileges or immunities clause, which seems to them open-ended and susceptible to definition by judges at their own discretion.
“As various advocates of a 21st century constitution have urged, a privilege or immunity might be interpreted to allow the invention of a host of new “rights,” and thus be construed to guarantee social or economic equality. However pleasing this might sound to some people, there should be no mistake: adopting this interpretation will supplant representative decision-making with the decision-making of unelected, unaccountable, and life-tenured judges. Should the privileges or immunities clause be used in this way, as a charter of positive rights, ours will become an America in which citizens are constitutionally entitled to their neighbors’ possessions; in which economic redistribution has become as ingrained a principle as federalism and the separation of powers; in which the great constitutional issues of the day will focus on whether porridge should be subsidized and housing allowances reimbursed at 89 or 94 percent of the last fiscal year level; and in which a succession of new “rights” will be parceled out as people are deemed worthy of them by berobed lawyers in the judiciary.”

“It is with the intention of generating debate, and of providing a roadmap to help us better navigate the constitutional forks-in-the-road that will soon be facing our nation, that I offer these thoughts. While there has never been a time in our history in which there was not serious constitutional debate among our people, I would submit that there have been few times in which this debate was more fundamental in defining the American experiment.”

HENRY’s Message

Sunday, April 25th, 2010

This is a superb op-ed piece from the April 15th issue of the Wall Street Journal. It should be read by every American. I’ve linked it to The WSJ Web site: wsj.com

A Message from ‘Henry’

We’re high earners not yet rich, and now the government wants us to pay more?

By MIKE DONAHUE

I’m in the 32% federal and 10% state income tax brackets. I pay a 1.2% property tax on very expensive California real estate. I am subject to the Alternative Minimum Tax. I am self-employed and subject to a 15% payroll tax on the first $100,000 in income and an 8.75% state sales tax. If I have a gain from investing, I pay a minimum of 15% federal and 10% state tax but can only write off $3,000 per year if I lose.

And now the government wants me to pay more?

As a child I mowed lawns, shoveled snow, had a paper route, sold sandwiches at school, and cut up dead trees and split them for firewood to sell during spring break. I have worked every summer since I turned 14. I took out student loans for college and worked 35 hours a week, at night, to pay for the rest.

Since I graduated in 1983, I have been in straight commission sales and have had many 60- to 70-hour work weeks. No secure salary, no big promotions, no pension—just me profiting though helping others while being subject to the swings of the economic cycle. The first 20 years were tough, but it’s finally starting to pay off.

I drive a nicer car (bought used), live in a better neighborhood, have more retirement savings than many. But I am certainly not rich, and every month I find my ever increasing bills (and taxes) tend to match my income. I have more than most only because I’ve worked harder than most and because I am a saver. It was not easy.

Why then does the government feel so entitled to take my money and give it to others? Why should I have to carry so many people on my back? Call me cruel. I don’t care. I give to whom I choose—but since so much is confiscated (and wasted in the process) I have little left I wish to give.

During the 1990 recession I could have qualified for state and federal assistance, but my wife and I managed to get by as she worked nights while we juggled our infant daughter between us. It was hard. However, it never occurred to us to take from others to subsidize our shortage. It’s not our way.

Life is hard. You learn when you fail and you make changes when things hurt. Why then is the liberal agenda trying to make sure nobody feels any pain? And why does the government feel so entitled to steal from many in order to give it to others. What has happened to personal responsibility and accountability?

My patience and pocketbook are reaching the breaking point. I am not for equal outcomes regardless of effort. I’m tired of being the mule. Maybe I will quit and live on the dole for awhile. I probably even have enough health issues to join the one in seven adults categorized as disabled. I’ve been poor and I’m not afraid to go back.

Remember it was social mobility that made America great—the ability to earn and get ahead. If Congress continues to buy votes at the expense of social mobility we will no longer be a great nation. The truly rich will stay that way but many “Henrys” (high earners, not rich yet) like me will quit. We may be only a small percentage of the population but we pay a large portion of the taxes and employ many. If you take the incentives away you will lose Henrys.

Mr. Donahue is a financial adviser in La Jolla, California.

Another “Wonderful” Blessing of Obamacare

Tuesday, April 13th, 2010

Taxpayers earning less than $200,000 a year will pay about $3.9 billion more in taxes, in 2019, alone because of the Healthcare Reform Bill, according to the Congressional Joint Committee on Taxation.

1.Obamacare raises $15.2 billion over 10 years by limiting the medical expense deduction, a provision widely used by taxpayers who either have a serious illness or are over 65.
2. At present, taxpayers may deduct medical expenses in excess of 7.5 percent of their adjusted gross income.
3. Starting in 2013, most taxpayers will only be allowed to deducted expenses greater than 10 percent of adjusted gross income, and the over 65 taxpayers will be hit by this threshold increase in 2017.

It’s a tax on the middle class who are seriously ill!  How many times will Obama break his “no taxes on anyone earning under $250,000 a year ?” And how is that “improving healthcare?”

Another Observation On Supreme Court Nominees

Monday, April 12th, 2010

Here is another view from Judge Andrew Napolitano about a replacement for Justice John Paul Stevens:

“[Stevens’] views would likely be the same as whoever replaces him. So the liberal versus conservative, Constitutionalist versus big government coalitions on the Court would not change. However, what will change is that you are replacing someone who is 90 with someone who is 45.
“I would expect the President to nominate the most liberal, radical, person that he can find because he is unlikely to ever have the numerical superiority in the Senate that he has today.”

–––––The Heritage Foundation Blog. Posted April 9th, 2010


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