Folly is the cloak of knavery. ~ William Blake, Proverbs of Hell

When Cicero said "There is nothing so absurd but some philosopher has said it," philosophers were actually a component of the popular culture. We don't have philosophers nowadays. We have law professors.

Enter Louis Michael Seidman, Georgetown University constitutional law professor, and his recent op-ed "Let's Give Up on the Constitution." In his calumny against the United States Constitution, Professor Seidman, author of the forthcoming book On Constitutional Disobedience, yearns to breathe free from that "archaic, idiosyncratic and downright evil" document. As I read on I wondered whether Seidman was merely being purposefully incendiary and ginning things up for book promotion night at Politics and Prose, whether his mind had been rendered feeble and credulous in the thin air of the ivory tower, or whether he was a sly and cunning crypto-fascist offering a Trojan-horse-utopia vision for the masses.

In his clarion call to break the weighty chains of — well, frankly — the rule of law, Seidman displays himself ever the free thinker — his thinking being free of logic, common sense, and eons of human experience. He argues that because the "nation teeters at the edge of fiscal chaos" the "culprit" must be the Constitution, bemoaning for example that the Senate Democrats' best-ever-plan-in-the-history-of-plans plan to save us all is hampered by the fact that revenue measures must originate in the House of Representatives. The good professor makes no effort to analyze the causes of the chaos. (Could it be that extra-constitutional institution the Federal Reserve?) Neither does he, as a putative constitutional scholar, address the check-and-balance rationale behind the House's special revenue prerogative or how the 17th Amendment has altered that balance. Instead, like clockwork, Professor Seidman offers the threadbare mantra of all legal positivists — what do a bunch of dead white males 200 years removed from us know about anything? Really, professor? Is that all you've got?

But Seiden does give us something else as he takes a rhetorical detour I didn't expect. As grounds for ditching former-decider-in-chief George W.'s favorite gu2014damned piece of paper, our Georgetown don makes perhaps the most candid admission ever to get clicked-out on a keyboard — the usurpers on the Potomac have actually been ignoring it for years! Not only does Seiden come clean that Lincoln, FDR, and the Supreme Court didn't let America's foundational document stand in the way of what they wanted to do, the law be damned, but also offers the even more surprising admission that the Constitutional Convention was itself a coup-d’etat against the Articles of Confederation. But rather than reach the sane conclusion that this crisis situation was a function of the state's attacks on liberty and the American people's unwarranted tolerance of usurping petit despots, he offers us a utopian state which can only be conjured when individual rights wither away. In Seiden's cloud-cuckoo-land, our cherished "protections against governmental deprivation of life, liberty or property" would "continue" but only "out of respect, not obligation." Dare I ask if a government which was obligated to respect the rights of its citizens had engaged in the wholesale disregard of those obligations, as catalogued and endorsed by Seiden, what would its restraint out of mere respect look like?

Professor Seiden assures us that: "Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper." Neither does an occasional illness kill the body, but it is sheer folly to contend that sickness is the root cause of health or that destruction is the key to prosperity.

Does Louis Michael Seidman seriously believe that "extricating ourselves from constitutional bondage" will lead to "real freedom" or is he advocating that the American people keep the mere illusion of our institutions while the substance becomes something very other as that other Georgetown sage put forth? Does he share the unrecanted view of his academic co-author Cass Sunstein that government should be free to "ban" any views it defines as "conspiracy theory" from public discourse?

The close of the op-ed — "before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage" — can be read two ways: as a warning call or as a blueprint for enslavement. Whether he is conscious of the hell he would unleash, we've seen Professor Seiden's rationale promoted again and again (in those histories written by and about dead white men that he finds so irksome) with horrific results and it's the sirens' song that leads to doom always the same refrain: War Is Peace, Freedom Is Slavery, and Ignorance Is Strength.

C.T. Rossi [send him mail] is an attorney who lives in Mobile, Ala.

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"Life imitates Art far more than Art imitates Life" ~ Oscar Wilde

"The sign of a clever auteur is to achieve the illusion that there is a sole individual responsible for magnificent creations that require thousands of people to accomplish." ~ Louis B. Mayer

I guess that every movie critic's idea of hell is being eternally trapped in a frightful viewing room subjected to some vapid, endless film. To be truly hellish, this 9th circle cinema couldn't be a cringe-worthy, stinker-of-a-flick (lest it have some type entertainment value and perhaps charm by its ineptitude). Rather it must be mundaneness personified and pabulum in its purest essence. It would be the Void that stares back — the banality of evil.

One hopes that grace preserves pious film critics from such a fate. However, the American electorate is not so lucky. Through our passive role in the political system designed to keep us disengaged, we are essentially "watching" such a movie and any unbiased reviewer should find themselves scathingly mad, accordingly:

I went into Election 2012 with low expectations but as it turned out my expectations weren't low enough. Billed as the next thrilling installment of the Election saga, notable previous installments including Election 2000 and Election 2008: A New Hope, what was delivered failed to live up to even the most modest expectations of fans of the series.

The plot of Election: 2012 — loosely based on Sir James Frazier's tale of a dying and reborn man-god, The Golden Bough — was a manager's special of recycled clichés and hackneyed subplots already exhausted by the earlier installments in the series. For those unfamiliar with the mythos, the film is set in a dystopian not-too-distant future, where "The President," an all-powerful leader, must undergo the ceremonial "election" and run the gauntlet of the "electoral college." Incorporating sci-fi elements (lifted from a vastly superior British TV series Dr. Who), how The President accords himself during the trials determines whether he will be "regenerated" into a new form. Even for those familiar with the previous movies, one is left to slog through a confusing and unimaginative screenplay that fails to establish any dramatic tone and never answers the question of why anyone should care about the lead character.

In an overt homage to Luis Buñuel's 1977 classic, That Obscure Object of Desire, the role of The President, in different aspects, is played by two actors: Barack Obama, reprising his role from A New Hope, and newcomer Mitt Romney. However, here (unlike Buñuel's masterful use of both Carole Bouquet and Angela Molina to show different sides Desire's Conchita) the use of the cinematic device was ham-handed, and one could find very little difference in the portrayals of the lead offered by Romney and Obama.

The story, neglecting the powerful (yet underdeveloped) themes of the effects of endless war and impending threat of economic collapse, focused instead on threadbare figure of The President himself. This narrative choice proved disastrous in part because of the wooden performances of the two leads. Obama's handling of the role was sedated in comparison with his performance in the earlier A New Hope, while audiences were subjected to Romney's torturously paralyzed acting style with the notable exception of a few minutes in the Denver action sequence.

The film's much ballyhooed twist dénouement (SPOILER ALERT) where we learn that the action sequences were in actuality the internal dialogues of The President (Do the writers think no one saw Fight Club?) hardly came as surprise to anyone who paid attention to the heavy-handed foreshadowing laced throughout the film.

In a series of unremarkable films, Election: 2012 may prove to be the least memorable and (hopefully) signals the end a franchise which has long run its course. That something new is in the offing may be found in a teaser scene after the credits where a minor character seems to be implying a new direction for the series. You can watch it by clicking here. If the studio and producers build on this fresh plotline, it might breathe new life into the once-great film series. No official announcements have been made, so only time will tell.

C.T. Rossi [send him mail] is an attorney who lives in Mobile, Ala.

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Thus from the four preceding articles, the definition of law may be gathered; and it is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.

~ St. Thomas Aquinas, Summa Theologica, First of the Second Part, Q. 90, Art. 4

The law is the organization of the natural right of lawful defense; it is the substitution of collective for individual forces, for the purpose of acting in the sphere in which they have a right to act, of doing what they have a right to do, to secure persons, liberties, and properties, and to maintain each in its right, so as to cause justice to reign over all.

~ Bastiat, The Law

As a member of that noble profession that concerns itself with the above subject matter, I take care to proclaim that the great Law is dead (or, at best, feeling quite unwell in 21st-century America). There is little hope for a resurrection of Law until the most important question is answered — whodunit?

Like any good suspense novel there are a retinue of likely suspects. Was it the pompous and hypocritical Politician, who rather than acting as guardian of the Law, turned his sacred trust into a tool for personal benefit and needed to off the Law before she squealed? Was it the shadowy Corporate Special Interest in the dead of night who needed the Law out of the way to effect his dastardly plan? Or was it the Professor, envious that Law always took center stage over him and his work? Perhaps it was the unassuming John Q. Public, who seemingly had no motive. Was Public put up to it by the seductive Media — who had an agenda of her own? Or was it — the unkindest cut of all — Lawyer, the Law's own lover, the most natural suspect?

I will spoil the plot by telling you the ending of this mystery — stolen directly from Murder on the Orient Express — that there are two possible explanations. First, as the sleuth Poirot explains, we can blame the murder on a random stranger — a tragic twist of fate. Alternatively, we can posit that all of the suspects took their turn plunging the blade into her bosom. Poirot suggested adoption of the former in his mystery. I suggest the latter in ours.

The Law died because she had to in order to make room for what Bastiat called "legal plunder" which "destroys for its own profit, and in different degrees amongst the rest of the community, personal independence by slavery, liberty by oppression, and property by plunder." The story is too in-depth to be told in a single article, so I hope to provide fuller detail in the future. But for now, I briefly want to provide an outline of the roles and motives of the players.

The Politicians: Individuals whose skill set, natural or acquired, consists of those things necessary for getting elected. The main skill is the art of telling people what they want to hear (or avoiding what they do not want to hear) — otherwise known as pandering. However, there is a prerequisite to really successful pandering — acquiring the resources necessary to pander — also known as begging.

The essentially negative, passive, and defensive nature of Law is an impediment to promising a chicken in every pot, in the case of the voters, and delivering said chickens in the case of moneyed special interest. To give cover to the fact that special interest gets the gold mine and voters the shaft, the Law has to be replaced with a brummagem system of regulation underpinned by a purely positivistic concept of law, i.e., unreasonable ordinances against the common good, made by those receiving questionable delegations of power, and concealed as much as possible.

Corporate Special Interests: As opposed to those individuals and entities attempting to engage in lawful commerce, these are promoters of perverting the Law either to win themselves graft or to use the power of government to bludgeon their competition in a way the market would not normally allow. In short, they want the game rigged in their favor and are willing to pay to make that happen.

Academia: This is bifurcated entity: there is the institution and there are the individuals. The legal profession was once learned by apprenticeship and largely self-regulated on state and local levels. The advent of the law school was ostensibly done to elevate and standardize the level of legal learning. But eventually the law schools hungered for the profits that only monopoly could bring and the path of apprenticeship was largely outlawed. Controlling the doorway for entry into the profession, the law schools soon learned that they could teach what they wanted — first out of hubris and later the curriculum could be put up for auction. Through partnership with the politicians and special interest, the law schools soon learned that opening a floodgate of free-flowing student loans — specially exempted from bankruptcy — meant they could charge what they wanted.

Then there is the individual law professor. Under the strictures of "publish or perish," legal innovation is his friend. There is nothing more exciting than when the Supreme Court makes a "major ruling" in his specialty — for with such rulings the dreams of new law review articles (prestige) or the revised 8th edition of his treatise (money) come. Those that choose as their mistress the mastery of sound principles of Law find themselves relegated to the dusty corners of the law library.

Then there are the select few, the legal rock stars, who labor proactively to change the law and advocate new policy positions. But to carry out such designs, the would-be legal divas need two things — access to the power brokers and money — things that bring these legal geniuses directly into the waiting arms of politicians and special interest.

The Public: Beginning with Prohibition, the hoi polloi were gradually inculcated with a disrespect for law and a tolerance for corruption. The disdain for (positive) laws is not wholly unjustified as Joe Six-pack can intuit that the game has been rigged, that the bureaucratic regulation of his life inures not to the good of the common man but rather to special interest. The only line from Shakespeare he knows (and he may not know it be Shakespeare, and certainly does not know it to be a villain's line) is "let's kill all the lawyers." While one may forgive Joe for failure to brush up on his Shakespeare, it cannot be denied that he is the product of an educational system which has robbed him of the ability to tell that there is a difference between babies and bathwater. When encountering the reality of "legal plunder," Joe is ill-equipped to appreciate that "Law" exists — or might be possible. So for Joe the only good lawyer is a dead one, unless — of course — he needs one.

The Media: There was much wisdom in Jefferson's preference for "newspapers without a government" but what would he have made out of the chimera known as the corporate media? Most likely it would have filled him with dread second only to the corporate farm. The corporate media, owned by corporate plunderers and designed to (give) cover to political plunderers, exists to make the public think that there is a difference between "High Popalorum" and "Low Popahirum" — the two official brands of legal plunder. Implicit in the media's pimping of official two-party plunder is the marginalization of any other politico-intellectual flavor –see Ron Paul as exhibit A.

The Legal Profession: Modern legal practice is fueled by insurance companies, i.e., corporate special interest. For plaintiff's attorneys, the presence of policy monies means that a judgment is recoverable and that they can afford to take the risk in investing time and money (usually in the form of a line of credit) in the prosecution of a case. For insurance defense attorneys, the insurer fuels his practice by supplying the firm with (the attorney hopes) a steady stream of cases to litigate. This, in essence, places the insurance defense attorney in the moral hazard of serving two masters — the insurer, upon whom his livelihood depends, and the single-event client in the form of the insured. While the ethical codes are clear about the insurance defense attorney's loyalty to the insured/client — such a system calls for moral courage on the part of the attorney as he risks alienating his primary source of income.

The insurance companies evaluate lawsuits, not on the legal merits, but on cost/benefit of litigation. The potential "hit" that the company will take determines the vigorousness with which the defense will be pursued. The companies have no qualms with settling somewhat dubious smaller claims but will fight to the death larger claims where liability is almost certain.

Rather than trim the fat they pay out in small claims, the insurance companies attempt to job the system they created by resorting to politicians in the form of tort reform. Tort reform is in essence wage and price controls applied to the legal system. The "reforms" usually consists of heightened evidentiary hurdles and damage caps. The heightened evidentiary hurdles mean a greater investment of the plaintiff attorney's time and resources — sometimes stretching to the point where the claim becomes economically unfeasible. The caps not only aid the insurance companies in their cost/benefit analysis, but exploit the economy of scale of large insurance defense firms in order to financially exhaust the plaintiff into settling the case before it becomes cost prohibitive to maintain.

We should not forget the third attorney present in every litigation — judges. The great majority of judges are elected, meaning that they are to some degree forced to become politicians whether they wish to or not. The sober qualities of a good trial judge seem antithetical to the qualities generally comprising "electability." The alternative is the appointment of judges — placing the bench under the direct control of the special interest-dominated politicians.

Is there a way to resurrect the Law? It may be possible to find her again but not unless we pursue her and we cannot pursue her if we passively accept as bona fide the system of legal plunder.

C.T. Rossi [send him mail] is an attorney who lives in Mobile, Ala.

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The world itself is the will to power — and nothing else! And you yourself are the will to power — and nothing else! ~ Friedrich Nietzsche

Base, soulless and ultimately devoid of any moral code not rooted in expediency, American politics has devolved into a perpetual celebration of the medieval Feast of Fools, where a grotesque and deleterious pantomime has been grafted over those activities found in sound societies. In an attempt to make good my oath to live not by lies, I have, for the most part, been able to swear off all things politic, but a story caught my eye and — alas — I am temporarily off the wagon. What was the headline that has driven me to cry out on the keyboard?

"Sotomayor Quits Belizean Grove"

So multilayer is the societal rot in those four words, so emblematic are they of where we find ourselves. In honor of the quickly fading generation of Roman Catholic nuns who taught some of us to diagram sentences, let’s savor every sour word.

Sotomayor: The subject of the sentence, Sonia Sotomayor, is a nominee to be a justice of the Supreme Court. You might assume that someone talented enough to be considered as a top jurist would cut an interesting figure of a person, but then again you would be laboring under the misapprehension that the most talented people are the ones who rise to the top in the cesspool of American politics. It isn’t just cream that rises.

What little I have seen of Sotomayor bores me. Is she qualified? In a certain sense she is ultimately qualified to be on the Supreme Court. She has the proper pedigree. For the politically correct, social engineering, lefty scrabble-letter-value types, she is a double minority: Latina and female. For the less superficial, she has a law degree from Yale, i.e., she is an establishment type through and through. To be fair, maybe the Yale J.D. by itself does not make one a minion of darkness (but then again, maybe it does). But Sotomayor has displayed that oh-so-unbecoming-and-slightly-creepy Yalie habit of wanting to belong to quasi-elitist cliques, which brings us to our direct object.

Belizean Grove: Belizean Grove? A Johnny-come-lately, Spice Girl-power alternative to the shadowy über-elite boys’ club, Bohemian Grove? As the brilliant Florence King once noted about Southern culture: sin is more tolerated than faux pas. Perhaps it is that sensibility that is coming out in me when I blush at the thought of the, er, Belizean Grove. What phenomenally bad taste. While I have no love for the real Bohos, whether true or not, their gathering is cloaked in a Faustian mystique which gives it some type of cache. Is Bohemian Grove a secret gay orgy or some type of summer camp for satanists? Who knows? But to sign up for some Brummagem, ladies’ auxiliary version of Bohemian Grove is not only embarrassing, but it shows an uncomely lusting and groping for poweru2014elite power, secret power. By signing up for the New Coke of secret societies, Sonia gave a glimpse of what is in her soul. She and her BeHo(?) sisters by creating their club all but admitted they are not "illuminati" but have shown themselves to be something worse — would-be, self-appointed illuminati. This mind-set brings us to our verb.

Quits: When her membership in Belizean Grove came to light, Sonia Sotomayor quit and all the poor dopes in TV-land are supposed to think that everything is groovy cool. I’m afraid not. I’m sure Sotomayor and the BeHos would tell us that if they had just been born AC rather than DC then they would be allowed to dance around a giant owl in the real grove and none of this would really matter. This proves to them that women are still oppressed and a double standard is still operational in the 21st century. Not quite. This proves that the lust for power knows no sex discrimination. The Bohemian Grove is repulsive in that it represents a collection of men who have been born to power or who have grasped power and whose desire is to associate with others for the sole purpose of maintaining, if not expanding, the power that they have. Such behavior is at its root immoral and none of those men are fit to have any power over the lives of ordinary people. For a poor Puerto Rican girl to want to emulate the very worst in these "elites" is not only a sad sight, but a very dangerous one.

C.T. Rossi [send him mail] is an attorney who lives in Mobile, Ala.

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There are those who think they are holding the pass against a revolution that may be coming up the road. But they are gazing in the wrong direction. The revolution is behind them. It went by in the Night of the Depression, singing songs to freedom.

~ Garet Garrett

There is a genuine and well-founded hope that we are on the brink of a political watershed. It has been dubbed the Ron Paul Revolution, not by Paul himself, but by lovers of liberty who recognize Dr. Paul as the only champion for the Constitution, not only in the presidential race, but in all of national politics.

But all of this begs the question: "What happened that we need a revolution?" The short answer to that question is that the institutions founded in the wake of the American Revolution, institutions designed to minimize government and foster personal freedoms, became subverted. Borrowing from modern organizational babble, the federal government got away from its mission statement. The mechanisms of the American Experiment, somewhere along the way, started robbing freedoms rather than protecting them. Though we can say what happened, it is slightly more difficult to say precisely how it happened. Ironically, many answers can be found in a recent book on the genesis of the recent Catholic Church sex scandals.

It is not hard to make the case that no institution has had a portion of its leadership act so visibly counter to its stated mission than has the Catholic Church over the last 40 years. From the immense sexual abuse scandal, to rogue movie reviewers in the United States Bishops Conference, to an Italian diocese which refuses to allow the return of the Latin liturgy, the Catholic Church is often its own worst enemy. Author Randy Engel had shed some amazing light on why.

Engel has penned The Rite of Sodomy in an attempt to answer many questions raised by the priest-driven scandals which have not only soiled the Church’s image in the headlines, but has also stripped dioceses of their property to pay for jury verdicts.

Engel addresses the elephant in the living room, the issue that an overwhelming majority of the abuse was of a same-sex nature. From this starting point, she analyses homosexuality first from an historical perspective and then from the perspective of the tenets and beliefs of the Catholic Church. Engel goes on to outline unexplored connections between the scandals. Finally, she provides circumstantial evidence that the scandals were not only covered up by some Church leaders, but that those leaders were themselves compromised by their own indiscretions.

While all of this proves intriguing for the reader interested in Catholic issues, Engel has unwittingly provided something to those not generally interested in religious and/or Catholic histories. The subtle thesis that emerges is that the modern State, with its seductive power, has played a major role in the corruption of the Church.

The State’s ascendancy came at the opportune moment when Christendom had been cleaved in two by the Reformation. Because of this, Christianity has subtly ceased to be the center of Western cultural and intellectual life. Ultimately, Church leaders relegated themselves to be the handmaids of the State — most especially in the United States.

While the conversion of American prelates into statists evolved over time, they were sufficiently indoctrinated in the "religion" of state worship by Woodrow Wilson’s presidency that the hierarchy "informed President Woodrow Wilson that Catholics were ready to u2018rise as one man to serve the nation.’" This "rising" culminated in the creation of the National Catholic War Council (NCWC). The organization gained the title of "one of the most effective lobbies on Capitol Hill." (Not the preferred title for an institution committed to the salvation of souls.)

The NCWC was the first instance of centralization in the American Catholic Church, but it did not come about unopposed. Engel captures the heroic words of Bishop John J. Nilan of Hartford as he opposed the creation of the NCWC in 1919:

I am opposed to any standing committee to either declare policy or shape the policy of the Church or to commit the Church publicly to any policy; as the method of dealing efficiently with all questions must depend on local conditions . . . and should be left in the hands of local authority.

Other perceptive critics of the Church’s foray into the welfare/warfare state accurately suspected that radicals had "captured the American Church and chartered a new course for her."

The NCWC proved a training run for what was to come when "on April 10, 1919, Pope Benedict XV gave the American hierarchy permission to organize a new episcopal bureaucracy." That creation would become the National Conference of Catholic Bishops/United States Catholic Conference.

Most interesting to followers of American political centralization is a statement released by the NCWC in 1952 entitled (with the second-rate film strip title) Religion: Our Most Vital Asset. While one might assume that a (nominally) Catholic organization might offer St. Thomas More as the model of a religious man in the secular world, the NCWC manifested its true disposition by choosing Abraham Lincoln — "a deist, subscribed to no creed, and believ[ing] in no personal God" as the "prototype of a religious man."

Engel goes on to recall other unholy alliances of Church and State, like a 1965 black welfare recipient sterilization program undertaken in conjunction with the State of Louisiana, which, predictably, led to the destruction of lives and the pursuit of "illegal payment of liquor bills, private plane junkets, and political contributions."

Ultimately, in Engel’s assessment, it was the hijacking of the NCCB/USCC, a "canonically approved super-bureaucratic structure with virtually unlimited control of every aspect of Catholic life and direction of all public policies of the Church in the United States," which allowed a handful of individuals to subvert the mission and morals of the Church.

The sexual abuse scandals are only partially about sex. Its roots lie not only in the darkness of men’s hearts, but also in unnecessary and immensely powerful bureaucratic structures which ultimately function as a vehicle for the fulfillment of the lusts of select individuals to the detriment of the rest of humanity.

As witnessed by his recent motu proprio, the current Pontiff seems dedicated to allowing rich and authentic diversity within the Church (much to the chagrin of the NCCB). If Ron Paul is similarly able to tackle the leviathan in Washington, DC, a springtime for peace and freedom may not be as far off as we might think.

C.T. Rossi [send him mail] is an attorney who lives in Mobile, Ala.

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A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

U.S. Constitution Amendment II

When the legal history of the 20th century is objectively spelled out at some distant time, it will be remembered as the age dominated by the anti-concepts of legal positivism, relativism and nominalism, which are listed under the pop culture tag of "judicial activism." Indeed, how can judges not be "active" when they are asked to apply words, concepts, and constructions — which under the current jurisprudential framework of belief have no inherent constraints or meanings — to concrete, real-life occurrences. The movers and shakers of the American bench are repulsed by the notion of natural law and have taken seriously Nietzsche’s admonition, "I am afraid, that we are not free from God, because we still believe in grammar." Their free-style method of interpretation and abandonment of the age-old "plain meaning" rule for reading law is nothing more than a frantic attempt to escape their greatest fear — the concept of natural law.

Yet in that century which saw such a flurry of innovations in the law through notable case law, it is ever so peculiar that the Supreme Court only heard one Second Amendment case during the 20th century — United States v. Miller.

There is a legal maxim that "bad cases make bad law." "Bad cases" are those cases with fact patterns which are distorted from the norms of everyday life and lead to absurd results. However, oftentimes "bad cases" are exactly the kinds of cases which are sought to be brought before the Court, so that questionable, but highly desirable, legal results can be foisted upon the people. Such was Miller.

The backdrop of the Miller case is the late 1930s. Amongst FDR’s usurpatious New Deal legislation was The National Firearms Act, which made illegal certain types of firearms (relevant here is a shotgun with a barrel less than 18 inches) without a stamp purchased from the Federal government. The stamp for the shotgun cost $200, while a shotgun at that time cost around $20. (I will refrain from exploring the utterly delicious irony that this country was founded by individual gun owners who revolted against having to pay outrageous taxes to the government in the form of stamp purchases.)

What made the case "bad" was that two men with extensive criminal backgrounds, Jack Miller and Frank Layton, were the defendants in the case. The duo was charged with

unlawfully, knowingly, willfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearm . . . and not having in their possession a stamp-affixed written order for said firearm . . . contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

Miller and Layton claimed that The National Gun Act was violative of the Second Amendment and the Federal District Court for the Western District Arkansas agreed. The Feds appealed to the Supreme Court.

While this was a "bad case" in that it featured putative gangsters claiming a right to firearms, what makes it worse is that the case was decided, 1930s show-trial style, without an appearance by Miller and Layton before the Court or even a brief submitted by their lawyers. Even with the scales thus tipped in their favor, the best the Feds could get from the Supreme Court was a ruling that there was no evidence presented by the (absent) Defendants that a "sawed-off" shotgun was the type of weapon which would be used in a militia. Therefore, as the Second Amendment protections had as their predicate "a well regulated militia," Congress was free to regulate this weapon which was not shown to have a militia purpose. All this despite the fact that the shotgun had had a prominent place in the Civil War and additionally that the federal government had purchased 19,600 shotguns as late as World War I.

The rule established by Miller would seem to be that if a weapon has a military application, then the right to possess such an arm should not be infringed upon. But, needless to say, it was not interpreted in that way. Instead Miller was read as an imprimatur for gun control which reached its zenith in 1976 when the District of Columbia passed the most restrictive gun control law in the nation — a law which a young Congressman from Texas, Ron Paul, stated was "flat-out illegal" and would "be thrown out" when challenged in the court system. While Paul’s prediction has yet come to pass, it may yet come to fruition in the case of Parker v. District of Columbia.

Parker represents a test case with normative facts — a run-of-the-mill citizen with no criminal record who merely wants to have a gun in his home. As a result of these "good facts," a three-member panel of the U.S. Court of Appeals for D.C. struck down the District’s gun control law on Second Amendment grounds. The District plans to appeal to the Supreme Court. The case was developed and funded by Cato Institute scholar Bob Levy as one which would hold the Supreme Court’s feet to the fires of liberty. However, the case has been a target for jurisprudential sabotage on two fronts.

The first attack comes from Congress where Senator Kay Bailey Hutchison and Representative Mark Souder have introduced "The District of Columbia Personal Protection Act." The Act would use Congress’s power to require D.C. to strike down the D.C. gun control law, thereby rendering the issue in Parker moot and unable to be entertained by the Supreme Court. Why would a couple of Republicans be helping to scuttle a case that could force the Supreme Court to acknowledge gun rights? Why indeed.

The second assault came from the National Rifle Association. The NRA apparently tried to convince Levy not to file the test case in the first place, ostensibly because of a fear that the Supremes might uphold the law opening a Pandora’s box of gun control around the nation. But the NRA didn’t stop its opposition when Parker was filed. They attempted to sabotage the suit by filing their own test case, Seegars v. Ashcroft, with a much inferior fact pattern which would allow the Supreme Court to waffle on the issue of gun control. Not stopping with their own watered-down case, the NRA tried to have Seegars consolidated with Parker. That effort failed.

One is left to ponder from their behavior whether the NRA was concerned about an adverse ruling from the Court or whether they where concerned about a favorable one. If there were no more gun control, would the NRA continue to receive the same financial support to which it has grown accustomed? Has the NRA succumbed to being the professional paid opposition to the government, receiving a perverse form of corporate welfare from the government gun control racket? If so, the Constitution doesn’t need friends like the NRA.

The current state of Second Amendment jurisprudence is an exemplar of much of constitutional jurisprudence today. The plain meaning of the Constitution is first whittled away by cases so factually flawed that they lie far outside the normative existence of most Americans. Once "bad law" is made by the "bad case," the holding is enshrined via the concept of stare decisis and extended in application. While this pattern may seem to make about as much sense as training medical students using the anatomy of the severely deformed, it is not without a purpose. Cui bono? Without fail, the bad cases that make bad law consistently extend the power and scope of government entities at the expense of individual citizens, the People.

All of this is not happenstance. This is tyranny, the tyranny of relativism. Judicial relativism naturally and inevitably leads a tyrannical Court which is incapable of issuing opinions, only ukases. Until the people themselves embrace the idea of liberty as a real, possible and desirable condition for their lives, liberty will not come. The Parker case may or may not affect that body of writing called American Constitutional Law, but the right to self-protection vis-à-vis gun ownership ultimately transcends mere positive law. However, Americans will never rise to the heights of freedom envisioned by our founders until not merely our persons are armed, but more importantly our minds.

C.T. Rossi [send him mail] is an attorney who lives in Mobile, Ala.

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Lord Polonius: What do you read, my lord?
Hamlet: Words, words, words.
Lord Polonius: What is the matter, my lord?
Hamlet: Between who?
Lord Polonius: I mean, the matter that you read, my lord.

— Hamlet, II, ii, 191—195

Perhaps the greatest crime against Americans has been the debasement of our currency — though I am not talking about fiat money. What I am talking about is the debasement of our words and ideas.

There is something about words. Essentially they are the vessels of our ideas. It was Cicero who observed that only two things separate man from the beast, ratio et oratio — reason and the ability to speak. If we are robbed of our ideas or the means to pass our ideas along to others, our intellectual economy is destroyed and with it the underpinnings of society itself.

There is something sacred about words. Christ Himself is worshipped as the logos — a Greek word infinitely richer than our word for "word." Is there any greater joy than that of a parent watching their infant progress in the development of the ability to recognize, react and speak? Is their any greater sadness than a child watching a parent descend into the foggy mists of dementia, the second childhood?

But awe-inspiring as meaningful words are, words without meaning are vampiric monsters of the mind. Nature abhors a vacuum, and these empty words tend to suck the life out of all that they encounter. The wastelands which such words naturally inhabit are the wilds of political speech. The words of politicos are crafted to be empty, like an intellectual dribble cup. They are designed to fill the belly and pacify, if not stultify, the listener. Meanwhile, the political ideas of our leaders remain shrouded behind the shield of blather.

While politicians have most certainly always been men whose stock and trade was the empty phrase, a critical eye turned to today’s political establishment shows that we have done history a turn worse. Our politicians have ceased to believe in ideas themselves, as noted by the White House aide who presciently remarked that, as the vanguard of the American Empire, the neo-cons are free to "create our own reality."

Notable intellectuals have commented on such folly. Richard Weaver charged us to remember that ideas have consequences. Fyodor Dostoevsky, in his Brothers Karamazov, explored the theme that if God does not exist, everything is permissible.

As fantastical as it may seem, the rise of the neo-con empire of self-creating reality is the latest chapter in a battle between two medieval scholastics — St. Thomas Aquinas and William of Ockham.

Without descending too deeply into the world of metaphysics (and vastly simplifying it as well), Thomas held the moderate realist position, that the idea, or form, of something is really found in the things themselves (hence the term metaphysical "realist"). William’s position was that we just give things names for the sake of convenience. William, therefore, was a nominalist.

Thomas would say that there is a quality of "treeness" found in certain objects in the world and so we call them trees. William counters that every tree is different from every other tree and so we just label them as "trees" to make things easier. Botany aside, this is not the silly little argument it may seem.

Instead of trees, let’s use the word "freedom." The followers of Thomas would look at human interactions and relationships and see if there was any common "freedomness" that could be detected, i.e. individuals being allowed control over their own minds, bodies, associations, and speech. Meanwhile, Ockhamites would say that "freedom," like every other word, is a mere linguistic convenience. If our Ockhamite was also a "patriotic" American, he might say that since America is a "free" country, "freedom" is shorthand for whatever it is that Americans do. And since it is too difficult to say what every American does, it’s even a better, more efficient shorthand to link freedom to what the American government does.

How many times have you heard the argument that Americans are free because we have elected leaders or because of "checks and balances" or because we have a Constitution? Do you ever hear that Americans are free because they may have liberty to do as they please, keep all the property that they have acquired by their own labor, and speak boldly and candidly their thoughts? The reason you never hear the second descriptors used to describe American freedom is the result of nominalists (most of our current political, intellectual, media and judicial elites) reading documents written ostensibly by realists (the Founders) — they just don’t get it.

In the current race for president, Ron Paul is the only man who speaks like a metaphysical realist. His unassuming personality takes a backseat to what he calls the "message of freedom." In his speeches he addresses those particularities of "freedomness" that are the essential elements of real freedom. What is most striking about Dr. Paul, and what makes him most dangerous to the establishment, is that he actually believes that freedom is real and that people can obtain it.

By contrast, the dominant nominalist metaphysics of the other candidates, Democrat or Republican, is apparent in their words. They talk as if reality is optional, as if it were a cake which they can prepare in their own signature style. They promise a reality where there is complete "security," a reality where property is "reallocated" from rich to poor, a reality where "money" is printed at will to "keep the economy strong." These alternative realities (impossible to really create) may sound attractive to some people but one thing is for sure — none of them bear the indicia of "freedomness." These political visions also make it clear that none of the "mainstream" candidates seem to have ever considered that freedom is anything more than an empty word — a paltry slogan.

Regardless of whether Ron Paul is successful in his bid for the White House, he has shown that most Americans are instinctually Thomistic in their belief that freedom is a real thing. He has also shown that our would-be emperors not only have no clothes, but have no idea what freedom even is.

C.T. Rossi [send him mail] is an attorney who lives in Mobile, Ala.

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Mens cujusque is est quisque.
(A man’s mind is the man himself.)
~ Cicero

Most everyone is privy to a family secret. Sometimes you may be tempted to think that you know about the family secrets of others. But the truth of the matter is that most times people tend to chatter on about second-rate peccadilloes in families, while the truly disturbing matters are left unspoken. Should the subject matter arise, it becomes the proverbial elephant in the living room that no one dare admit exists. Oddly enough, these secrets tend to get blurted on occasion and for no apparent reason.

Governments have family secrets as well. Like families, the lesser secrets, when finally exposed, are subject to over-analysis and inflated importance. But the deeper darker secrets occasionally bubble to the surface, only to be quickly brought down low again, with no one daring to comment on what was revealed. One such secret of our government is the fact that the CIA has on occasion dabbled in the kind of mind control made famous by the movie The Manchurian Candidate. The existence of this fact is not the product of a madman’s diaries but comes straight from the CIA’s own records. Since the government has only given the sketchiest of details concerning exactly what the CIA was up to, the topic of mind control runs the gamut from serious scholarly research to outlandish paranoia. However, there are thoughtful speculations being made about the scope and duration of past secret CIA programs as well as whether such programs are still on-going today.

Without delving into the shadowy world of what did or did not take place (no one will ever know for sure) and staying within the parameters of what has been officially revealed — that the CIA gave mind altering drugs to people without their knowledge or consent — there is still much that can, indeed, must be said about this foray into this ultimate evil.

What an attack on the independence of a person’s mind represents is an attack on the very principle of self-ownership. It would not be hyperbole to say that if any government went about a plan of forcibly tampering with the volitional abilities of the human person, such a government would have engendered itself with an evil beyond that of any, or indeed all, previous man-made evils. No slave-master, however cruel, could reach the deepest caverns of the mind. No slave, however coercive the duress which he suffered, was ever robbed of the ability to morally judge the actions he was forced to carry out. Without a mind, the individual person ceases to exist. Our very criminal law, however flawed it may be on occasion, respects the concept that no one is liable for an act over which their mind has no control.

While the public was repulsed to learn that one of Jeffrey Dahmer’s fantasies was to create zombie sex slaves, there is no such general gag reflex at the revelation that someone, somewhere in the bowels of our intelligence community, may have fantasized about creating government sex slaves, or government work slaves, or government war slaves. What is more disturbing is that this sick lust for total domination was not shouted down but funded and put into experimental testing.

Though we don’t have any hardcore proof about what exactly the CIA was trying to do, we can turn to film to give us some clues as to what the possibilities were. Aside from the aforementioned The Manchurian Candidate, there is Stanley Kubrick’s A Clockwork Orange. Anyone familiar with the film realizes that even under the seemingly altruistic banner of using mind control techniques to control the "anti-social," such efforts are destined to be the tools of political gamesmanship and reap unforeseen dire consequences. The dark comedy Brazil probably comes closer than any to showing the everyday application of not only mind tampering but also the traditionally "softer" versions of thought manipulation, like propaganda.

But perhaps more powerful would be to imagine how the endings of great movies would turn out if the government protagonists had the power to rape men’s minds. For one example, think of the Academy Award-winning epic Braveheart. After more than two and a half hours of following the exploits of William Wallace, the film would not end with his disemboweling by the royal authorities while letting loose with a recalcitrant cry of "FREEEEDDOOOMMM." Instead, William Wallace would have emerged after his captivity at the hands of the Crown to announce that Longshanks was misunderstood and that Scotland was better off with him overseeing it than it would ever be trying to self-govern. The film could have ended with Wallace going off to the Highlands to shill for his former adversary. You can very easily envision such unsatisfying alternate endings to Gladiator, Robin Hood, and Rob Roy. (Then again you could just watch Invasion of the Body Snatchers.)

What this thought experiment in movie endings shows is that the drama of human existence and the struggle for human freedom involve the clash of wills. It is an ancient motif — the will of the individual rising against all odds to fight for what is right. In these stories, sometimes the good guys win and sometimes not. But if governments are ever allowed to harness the ability to sap the will of the mind and soul, there will be no more drama, there will be no freedom. There will be only the dybbuks of the state where once there were men.

C.T. Rossi [send him mail] is an attorney who lives in Mobile, Ala.

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It is a misfortune that [our countrymen] do not sufficiently know the value of their constitutions, and how much happier they are rendered by them, than any other people on earth by the governments under which they live.

— Thomas Jefferson to John Adams, 1787.

At the heart of Jefferson’s admonition is that notion that the ignorant can’t be free. We live in a time when government-run and government-regulated schools have obliterated any curriculum which would engender the ability to think in a student. Gone are the centuries-old basic methods of rational inquire which began, in Western culture, with the Greeks (whose contributions have been relegated to comic book graphic novels turned movies).

How then is one supposed to learn the value of constitutions? It certainly isn’t from the type of banal civil catechism found in the INS citizenship test. It isn’t from any of the high school government class mantras about branches of government or checks and balances. Nor will one acquire such an appreciation from most law school curricula.

Our present day "study" of constitutionalism is incomplete at best. Our appreciation of the subject could stand to be jumpstarted by the four traditional questions set out by that ancient Macedonian who lived at the time of the forging of the world’s first federal government.

That small percentage of Americans who do bother to think about our form of government usually limit their inquiry to two of the four traditional questions: "what is the Constitution’s form?" and "who made it?" Of course the answer to the first question gets us back to the stultifying discussion of the most rudimentary forms and features of our federal government — the "repeat, after me, class" worship of checks, balances and separate branches. The answer to the second question has been reduced to the simple phrase "the Founding Fathers." But what about those other two questions: "what is it made from?" and "what is its purpose?"

What the Constitution was formed from is a much more exciting and difficult question — and in today’s climate of the unitary decider, one may even say subversive. The answer will bring the conscientious thinker in touch with the line of thought stretched throughout the ages that addresses the interplay between the nature of man and the nature of freedom. Jefferson himself used the succinct and elegant shorthand notation "the Laws of Nature and of Nature’s God" to describe the sources behind the American experiment. A handful of modern thinkers, such as Murray Rothbard, have sought to address how the study of freedom is essential to understanding what our Constitution is and is not.

The final question, that of the purpose of the Constitution, is perhaps the least addressed. Certainly the essential purpose of any constitution is to create a government. But the American constitution endeavors to create a specific government, a form which was believed to help maximize the liberty of those who live under it — a federal government. However, the topic of what are the essential attributes of federal government has been little studied for over a century. That timing is not coincidental.

In his 19th century inquiry into the nature of federalism, The History of Federal Government, Edward Freeman presents the basic features of a federal government as then understood. Most interestingly, Freeman notes that there have only been four true federal governments in history: the Achaian League in ancient Greece; the Swiss Cantons; the United Provinces of the Netherlands; and the United States.

Freeman’s first attribute of a federal government is that it forms one state in regard to foreign nations but consists of many states in regard to its internal governance. As a corollary to this principle, Freeman says that "it is equally unlawful for the Central Power to interfere with the purely internal legislation of the several members, and for the several members to enter into any diplomatic relations with powers." He further notes that where the central government does interfere with the internal governance of the states, they are not sovereign but their condition is mere "municipal independence." Obviously, Freeman was unfamiliar with true meaning of the Interstate Commerce Clause.

Next Freeman shows that there are two types of federal governments. In the first, federal power represents only the several governments of the union and is confined to action upon those governments. "If men or money be needed for Federal purposes, the Federal Power will demand of the several State Governments, which will raise them in such ways as each may think best." Such a federal form is called a confederacy.

Contrary to the confederacy stands the "supreme federal government." This second form of federal government is less limited as it may use its "direct power of taxation, and the other usual powers of Government; with its army, its navy, its civil service, and all the usual apparatus of a Government, all bearing directly upon every citizen of the Union without reference to the Governments of the several States."

Freeman perceptively details that the American government shifted forms from what was established under the Articles of Confederation, a confederacy, to what was wrought under the Constitution of 1787, a supreme federal government. He justifies the transition to the more centralized federal government by claiming that America "found by experience that, without the direct action of the Federal Power upon individuals, the objects of the Federal Union could not be carried out." He then draws on John Stuart Mill (who Rothbard accurately noted was a "wooly minded man of mush") to create the strawman rationale that although the states are obligated to carry out requests which do not exceed federal authority, they "will always lie under the strong temptation to disobey such requisitions, not only when they really transcend the limits of Federal authority, but also when they are simply displeasing to local interests or wishes." This whole line of reasoning dismisses the possibility that a central government would ever attempt to exceed its authority and impose a tyrannical rule over those member states which it is meant to serve. Today we know better.

Perhaps the history and nature of federalism are not studied in the country home to what is nominally the world’s greatest federal government for a reason — that reason being the discovery of how flawed the system has grown.

Today the American states live under "municipal independence." Today war, the depreciation of our currency, oppressive taxation, and the destruction of individual liberties, those lauded objects of the Federal Union, are carried out essentially unimpeded. Today, the full weight of federal power may come to bear on any citizen without recourse to the tenets of federalism. But alas, the specter of "local interests" has been vanquished, so the wooly minded may rest easy.

What Jefferson praised above was not the unitary Constitution which exists today (and is giving rise to the unitary executive) but the many constitutions of the many states. He praised the idea this idea maligned as mere "local interest” not only in a letter to Adams but in his Declaration of Independence. May we come to value what he valued — those local interests which are the only bulwark to the preservation of life, liberty, and property against those who would centralize and oppress.

C.T. Rossi [send him mail] is an attorney who lives in Mobile, Ala.

~ REO Speedwagon

What may at first blush appear to be nothing more than the puerile paranoid ponderings of a pop song may soon become the law of the land — at least as far as the trying of accused terrorists is concerned. The Bush administration is proposing what are called “modest changes” to the procedural rules of military commissions charged with trying suspected terrorists housed at Guantanamo Bay. These changes can be defined as modest in the same way that guillotining effects a modest change on one’s ability to wear a hat.

One proposed rule change would allow the use of hearsay evidence “unless it was deemed to be unreliable.” That the very category of hearsay was created due to the fact that certain types of testimonial evidence are inherently unreliable does not seem to trouble White House legal “experts.” This caliber of legal reasoning should dove-tail nicely with one of the proposed new “protective” rules which would bar the use of statements obtained by torture. But if you remember, torture has been redefined by the Bush administration as “excessive force” which is “malicious and sadistic”; however, it does not provide a blanket exclusion from “the infliction of pain” if it is not the interrogator’s “precise objective.” All this may seem dry legalese — an example might be better.

The U.S. military buys a “terror suspect” from an Afghani warlord for $5,000. The warlord assures the U.S. that the person being sold, let’s call him Abdul, is a terrorist. Abdul, needless to say, denies any sort of activity and says that he was merely tending his flock when the warlord’s men abducted him. The CIA isn’t so sure about Abdul, so they send him off to Guantanamo for interrogation. Once at Guantanamo, interrogators ask Abdul again if he is a terrorist. He assures them that he is not. The interrogators suspect that his statement that he is not a terrorist might lack reliability because a real terrorist might lie and deny he is a terrorist. Just to be sure, the interrogators decide to put a compressor hose up to Abdul’s right ear and blow out his eardrum. They don’t do this because they hate Abdul and want to hurt him — heck, they just want to get the truth out of him. Abdul still maintains that he is not a terrorist and is just a shepherd. But the interrogators still don’t know for sure and they think of the embarrassment if a real terrorist was let go on their watch — not to mention the fact that $5,000 of taxpayer money would have gone to waste. So they decide to leave him in a very uncomfortable position for a while, just to make sure. Well after a while, Abdul still maintains his innocence but he does admit that he sold some sheep to the government, back when the Taliban ruled Afghanistan. This leads the interrogators to conclude that Abdul is not with us but with the terrorists and he is shipped off for a military commission hearing.

Under the traditional rules of hearsay, the fact that an Afghani warlord said that Abdul was a terrorist would be inadmissible hearsay, and under the traditional notions of torture, Abdul would not have been mistreated but, if he were, such confessions under torture would not have been admissible. Abdul would have also had the right to be present at his trial and to face his accusers (two other rights that the new White House proposal would eliminate). At trial, Abdul could bring forth the facts that he has been sold to the U.S. by an Afghani warlord for $5,000 and that there was a biasing incentive for both the seller and the buyer not to question the transaction. If the government wanted to introduce evidence that Abdul said he sold sheep to the Taliban government, those who heard the “confession” would have to testify in court.

Under the new proposed rules, Abdul will not be allowed in court because of national security concerns. The court will hear that the “highly placed embedded operative” who handed Abdul over to U.S. authorities maintains that Abdul is a terrorist and that he confessed to collaboration with the Taliban. His “confession” could be introduced to the court by means of an official who heard from an official who was told by one of the interrogators that Abdul sold the sheep. The “torture exception” would not apply to Abdul’s testimony as it was not he intent of the interrogators to hurt him, heck they weren’t even sure whether he was a terrorist or not. What they were doing was merely utilizing a slightly older evidentiary method.

Such legal “innovations” if approved will assuredly make the old joke about the Nazi torturers and the captured Czech resistance leader relevant again. As the Nazis were torturing the Czech, they demanded to know from him the names of those people in the town who opposed the German presence. “I’ll give you the names of those who support you,” he replied, “it will take a lot less time.”

C.T. Rossi [send him mail] is an attorney who lives in Washington, D.C.

~ William Pitt

Have no fear, America! Despite the claims of alarmists, the United States is not coming underneath the type of steely totalitarian gauntlet where we need fear a knock at the door. No, your Supreme Court has eliminated that fearful scenario. Instead, there will be no knock.

In its June 15th ruling in Hudson v Michigan, the Supreme Court has basically eviscerated the requirement that there be a knock on the door by authorities before the execution of a search warrant. While the prohibition essentially remains in form, the penalty for the failure to knock has lost its major deterrent force — the exclusionary rule.

Quite simply, what the exclusionary rule did was to exclude from the available evidence at trial any evidence that was obtained from a violation of the standards for execution of a search warrant. One of these search warrant standards is (or more aptly, was) the requirement that police knock and announce themselves. While the court has formerly whittled away at this requirement through the use of certain "exigent circumstances," Hudson effectively lays the practice of knocking in a shallow grave.

While the death of the knock is in itself troubling enough, the Court’s rationale may be even more troubling. The Court, relying on the ever arbitrary and equally dubious "balancing test," weighed the "deterrence benefits" of the use of the exclusionary rule against its "social costs." Such social calculus always provides an interesting insight into the mind of the Court.

For the majority, "social costs" consist of such factors as (1) "a constant flood" of legal challenges for alleged failures to observe the knock and announce rule, (2) the risk that "officers would be inclined to wait longer than the law requires" after knocking (and we all know that SWAT team types truly tend to agonize decisions before springing into action), and (3) that the delay after knocking (in the past, three seconds has been viewed by the Court as adequate wait time) provides time for the destruction of evidence and the arming of dangerous suspects.

Conversely, the "deterrence benefits" of the exclusionary rule as a check on rampant police aggression are viewed as minimal. Rather, an aggrieved party who has been the victim of a knock and announce violation can file a civil rights law suit. But even more surreal is the Court’s contention that such law suits might not even be necessary because of the "increasing professionalism of police forces, including a new emphasis on internal police discipline." Who could argue with that?

One can almost take a perverse pleasure in watching the "originalist" and "textualist" Justice Antonin Scalia hypocritically perform the arbitrary balancing test that girds so many of the Court’s pro-State rulings. It is not explained (if explainable at all) how the supposed "constant flow" of legal challenges to the knock requirement at criminal trial is somehow more onerous to the court system than the constant flow of civil rights law suits which the Court views as a more proper remedy. Of course the real benefit to the aspiring authoritarian state is that those civil rights law suit would most likely be pursued by people in prison. A deterrent to police abuse indeed!

Likewise, the timing issue surrounding a proper knock is bizarrely treated. One is left to ask how much crack cocaine can be flushed down a toilet if the scruple-ridden cops wait 10 seconds (instead of the permissible three seconds) after knocking and is the preservation of such a paltry amount worth calling in the jack-booted thugs? Additionally, isn’t it the über-ninja style raids that send panicked suspects grabbing for their guns in the first place? What happened to the film noir scenes of the cops telling Mugsy that the jig is up, the joint is surrounded, and he better come out with his hands held high?

As an insulting coup de grâce for this injurious constitutional coup d’état, the Court assures us that law enforcement has had Original Sin exorcised at the new and improved police academy. Justice Scalia writes that concerns about police behavior may have been valid in 1980 but that now "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously." While on one level such a statement is worth a gasp and a chortle, on another level Scalia writes the truth — for as constitutional rights are stripped away by the Supreme Court, there are fewer and fewer police behaviors that are violative of the law. By legalizing thuggery, thuggish law enforcement is not only christened but encouraged.

But the heralding of contemporary law enforcement as the new Soviet man is instructive as to how the Court sees itself. There is no thought of "inalienable rights" or the 9th Amendment. The much-feared "natural law" of Clarence Thomas is not to be found. Instead, with the Hudson decision, the Supreme Court has not only laid a firm foundation for a police state, they have reminded us that we the people are the ruled and they are the rulers. They are the wise balancers of scales. They are the sole guardians of justice. They are the ultimate guarantors of our rights. So help us God.

C.T. Rossi [send him mail] is an attorney who lives in Washington, D.C.

~ Words of wisdom from Michael B. Nifong

Some look at Michael B. Nifong merely as a North Carolina district attorney. Others view him solely as a man. But he is something much more. Nifong is an avatar, a demigod. How else could Michael Nifong justify his continued persecution — er, prosecution — of those unsavory Dukie lacrossers? How great a time in which we live! What an inestimable glory has been given to us that we have been chosen to walk the earth with his Nifongness.

Rather than manifest himself through, say, turning water into wine (and what truly Divine person would use their talents in such a way as to promote sloth and drunkenness?), Nifong has soberly used his gifts to set us an example of providing swift justice and certain punishment. Nifong, whose obvious humility prevents him from performing blatant signs and miracles, chose a more subtle tack. As the handicraft of men, in the form of DNA testing, was about to fail and allow the guilty to go free — Nifong spake.

One can only assume that Nifong is at one with Truth itself. Some doubted Nifong and his unusual tactics. Some cried out that his requisition of team member DNA was illegal and unconstitutional. But this was all part of Nifong’s plan. While mere men would be dissuaded by the fact that the genetic material the lacrosse team members proved not to match, Nifong was not. But it was in this way that Nifong chose to manifest to us that he is something more than mortal. What genius on his part! How sublime! As Elijah of old humiliated the 450 prophets of Baal, so Nifong has discredited genetic testing. As science proved false, Nifong proved true.

As we crouch at his feet, Nifong has taught us that there is a lack of DNA evidence "in 75 to 80 percent of all sexual assaults." The perfidious have quipped that there is DNA evidence — evidence to the contrary — in this case. But alas, there will always be scoffers in the face of such magnificence.

While Jesus called only 12, Nifong chose 18. While the 18 were expecting only jury duty, they were instead privy to the great esoteric knowledge of Nifong — his words ringing with such grace and truth that the scales of conventional human knowledge fell from their eyes: "DNA be damned! Nifong knows!" Nifong told them that 2 of the players were guilty and that a third he would prophesy them later. And they believed.

How improbable have been the instruments of Nifong’s plan. He has raised up the lowly exotic dancer, herself a victim of man’s law and a one-time fugitive from police, and used her to smote the forces of drunken public urination.

Now we can only patiently await what Nifong will next reveal to us. Will Nifong allow a judge and jury to free the guilty in order that he may more fully display his power and wisdom? Upon acquittal might he cause the guilty to erupt in fiery all-consuming flame? And how would he treat the judge and jury upon such a miscarriage of justice? We can only hope that he will be merciful in that he has said that the judge and defense attorney bear not "the ultimate responsibility."

Until the time when Nifong chooses to display his omnipotence further we may pass the hours ruminating upon his words:

• The two absolutely essential traits . . . to possess are integrity and good judgment. People of integrity can always develop good judgment through experience, but people who lack integrity can never develop either.
• Diversity alone does not guarantee justice, but you can be sure that a lack of diversity makes the task all the more difficult.
• To deny dignity is to deny justice.
• There are, to be sure, a few monsters among us . . .

In the end everyone must agree that, aside from the accuser and the accused, there must be one who knows what happened that night. Some would place that knowledge in a God who made man in His own image — blessed with the gifts of reason and discernment. Another theory is that Nifong sees all, Nifong knows all. Could the truth be any clearer?

C.T. Rossi [send him mail] is an attorney who lives in Washington, D.C.

Providing excerpts from French Revolutionary secular "catechisms" (as well as reactionary Spanish civil versions) to early 20th century works of propaganda, Earthly Powers follows the course of the manipulation and usurpation of religious authority by the states of Europe but allows the reader to see fallacious governmental rationales for such predatory behavior that still persist to this day. The pernicious attitude of these regimes is succinctly distilled in a quote taken from a German cleric, "God is what the god-inspired people do."

The idea that virtues are merely the name we give to the behavior of those we call virtuous is the philosophical position of metaphysical nominalism. Its opposite is metaphysical realism which states that ideas, like virtue, are entities unto themselves and that a man can only be called virtuous if his life conforms to the objective standard. Richard Weaver once noted that this obscure medieval scholastic debate is what was being played out in the War to Prevent Southern Independence. Weaver viewed the Northern forces as those of the nominalists and, not surprisingly given Burleigh’s research, it was likewise the Unionists who draped themselves in trappings of religion. To this day Lincoln is the "god-inspired" leader whose actions defined presidential greatness rather than conformed to any definition of it.

A pleasant surprise for the reader of Burleigh’s work is the mention of F.A. Voigt and his prescient 1938 condemnation of European totalitarian powers, Unto Caesar — a study of secular religion which takes us beyond the timeframe of Earthly Powers to the twilight between the World Wars. Despite Voigt’s post-war "neo-toryism," his dissection of totalitarianism is masterful. In confronting the ideologies of the Marxists and Nazis, Voigt realized the both were "messianic and socialist," enthroning "the modern Caesar, collective man, the implacable enemy of the individual soul." Any intellectually honest and capable mind would have to admit that the current temperament of the American government is "messianic and socialist," either attempting to save us from ourselves or from others.

Writing in 1938, Voigt saw a world on the cusp of war and boldly proclaimed, "No government in the world has the right to declare war for a principle. The principles for which nations fight are rarely found to have any objective validity when they are examined in a critical spirit . . . Sometimes they will serve to conceal more tangible aims." So much for spreading "democracy" and "freedom" in Iraq at the point of a gun — even Voigt knows that somewhere beneath the Straussian noble lie is the "more tangible aim."

Continuing on the theme of war, Voigt further notes that the "impact of war produces profound psychological changes amongst all the belligerent peoples. War, especially modern war, releases many hidden forces and may transform whole nations in their outlook and their policies by a rapid sequence of unexpected events." As the Reichstag fire did not have as its "aim" the destruction of a mindset but a way of life, so the goal of a war, foreign or domestic, could have as its goal the destruction of the psyche of a people and the sweeping away of their way of life.

While many of the patterns and rhythms of history displayed in Earthly Powers and Unto Caesar are ominously present in today’s culture, despair is not the appropriate response. For every totalitarian or would-be-totalitarian ideology, the seeds of its own destruction are already sown within itself according to Voigt:

The Millennium of the modern secular eschatology has nothing in common with the past or the present — or with history, for its beginning is the end of history. But history cannot end save with the annihilation of mankind. That is why the Millennium is unattainable in this world, for no matter how alluring it is made to appear with the help of pseudo-religion, pseudo-philosophical, pseudo-scientific mythology; no matter how ruthless the extermination of all heresy; the suicidal nature of every secular eschatology will be made manifest in time, and men will cry "Halt" before the edge of doom is reached. The present will assert itself once more and peace will be concluded with the past. And the name of that peace is "Tradition."

All who believe in the rule of law and the freedom of the market need only be vigilant in exclaiming the truth, because noble lies cannot last forever. Indeed the Caesars should be given those denarii which they have stamped with their own image. But tradition says that man is made in the image of God and bound only by "the laws of nature and nature’s God." Because of this belief, we know that man was born to be free and no chains, whether made of iron or ideas, can hold him very long.

C.T. Rossi [send him mail] is an attorney who lives in Washington, D.C.

— Matthew 2:1—3

The above passage of Scripture will be read countless times to the faithful over the next week as Christians celebrate the ultimate miracle of the coming of God made man, but no doubt the great majority of listeners will not give this passage even a cursory hearing. However, the wisdom contained therein proves salutary for even those not of the Christian faith. The subtext of the passage show how fundamentally radical the very concept of the Christ is and how one of the shrewdest of ancient political minds, Herod, understood this before the person of Jesus had ever uttered a word.

The historian James Henry Breasted (America’s first Egyptologist) wrote a useful textbook of ancient history in the early part of the 20th century. Breasted’s basic premise is that every culture of the East eventually had a ruler who assumed the mantle of the divine, a man-made-god. With the divine ruler came an oppressive bureaucracy (because the "man-god" king knew best how to run everyone’s life) which eventually sabotaged the cultural and economic advantages which the civilization had struggled to gain. The democracy of the Greek city-states was the alternative model (Greek culture’s fall eventually coming at the hands of a Macedonian "man-god," Alexander). In Breasted’s historical survey, "The East" is synonymous with a culture of absolute despotism, be it Egyptian, Assyrian, Babylonian or Persian. Only in the West did the idea of the worth of the individual take root.

How disheartening it must have been for Herod, the non-Jewish usurper of the throne at Jerusalem and puppet of the empire of Rome, to learn that men who knew about god-making where not looking for him but an infant. Years of crafty political maneuvers, skillfully applied terror, and an immense pork barrel public works program must have seemed all for naught. Herod, who seemed well on his way to achieving the status of a "man-god" king, had lost out not to a rival politico or foreign power but a child. The fact that it was a child, who had done nothing to achieve notoriety or aggrandize himself with worldly power, is precisely what must have had him "troubled, and all Jerusalem with him." An infant worthy of worship was not one who had won the title of "man-god" but was one who was a God-man, ruling by his very nature.

Such a concept "troubled" not only Herod but the entire establishment of political hangers-on. They realized all too well the consequences of the coming of a God-man — the legitimacy of "divine" kings could no longer even be feigned. Naturally, such an innovation in the minds of men had to be stopped and the slaughter of all male children under the age of two seemed a reasonable enough price to the power-drunk. (A few short decades later Caiaphas gave counsel that it was expedient that one man be executed in what he hoped was a political powerplay.)

For the Christian, the coming of the Christ child had a myriad of eternal spiritual repercussions. Quite simply, all has changed. One of those changes, perhaps incidental in the eyes of believers, is that "man-god" kings are obsolete. Since God has condescended to become a man, it is preposterous (and sinful) for a man to set himself up as a god. It is in the light of this radical change that we are to interpret what it is that belongs to God and what to Caesar.

The Caesars continued down the path of deifying themselves. Breasted notes in his history that by the time of Diocletian, three centuries after the radical message of Christmas had been delivered, the counter-Christmas political program was complete.

The emperor thus became for the whole Roman world what he had been in Egypt — an absolute monarch with none to limit his power. The State had been completely militarized and orientalized. With the unlimited power of the oriental despot the emperor now assumed its outward symbols . . . all who came into his presence must bow down to the dust.

As a divinity, the emperor had now become the oriental Sun-god and he was officially called the "Invincible Sun." His birthday was the twenty-fifth of December . . . The inhabitants of each province might revere their particular gods, undisturbed by the government, but all were obliged as good citizens to join in the official sacrifices to the head of State as a god. With the incoming of this oriental attitude toward the emperor, the long struggle for democracy, which we have traced through so many centuries of the history of early man, ended in the triumph of oriental despotism.

The Church’s establishment the feast of the Nativity on December 25th was an outright subversion of Caesar’s claims as to who was worthy of worship. (If this truth gets out, you can forget about any more crèche scenes in public.) My prayer for all who all who hold the Christian faith this Christmas season is that they may recover the radical truth that terrified the tyrants of antiquity and that people of all faiths may join to oppose any leader who would make himself a god.

C.T. Rossi [send him mail] is an attorney who lives in Washington, D.C.

~
Thomas Jefferson writing to Nathaniel Miles, March 1801

Posse
Comitatus: the power or force of the county. The entire population
of a county above the age of fifteen, which a sheriff may summon
to his assistance in certain cases as to aid him in keeping the
peace, in pursuing and arresting felons, etc.

~ Black's Law Dictionary

Whoever,
except in cases and under circumstances expressly authorized by
the Constitution or Act of Congress, willfully uses any part of
the Army or Air Force as a posse comitatus or otherwise to execute
the laws shall be fined under this title or imprisoned not more
than two years, or both.

~
The Posse Comitatus Act, 18 U.S. Code, Section 1385

The average
American is likely to think that "posse comitatus" is
the entourage of a top rapper or NBA star. Little do they know
(or likely care to know) that The Posse Comitatus Act of 1878
has done more to preserve their liberty than any piece of legislation
since the Bill of Rights.

Born of the
abuses of the Reconstruction era and the stolen
election of 1876, the PCA prohibits the use of federal troops
(or national guardsmen under federal control) unless specifically
authorized by an act of Congress. In short, it is the main obstacle
in the path of creating an American police state. Therefore it
is not surprising that there has been an increase in "chatter"
about scrapping the law.

A trial
balloon was floated over three years ago when both Senator
Joseph Biden, who called the PCA into question as early as the
Oklahoma City bombing of 1995, and then Homeland Security Czar
Tom Ridge bandied about the idea of repealing the PCA on the Sunday
morning news programs. Apparently, the pretext of keeping Americans
safe from terrorists wasn't deemed sturdy enough to accomplish
the coup d'état. But where the stick of "national
security" was found wanting, now the carrot of "disaster
relief" may provide the cover needed to expose Americans
to the full power of centralized federal tyranny.

In the wake
of Hurricane Katrina, Senator
John Warner has asked Defense Secretary Donald Rumsfeld to
review the usefulness of the PCA given that it hinders "humanitarian
assistance" which could be provided by the feds. (Look next
for foxes to be asked their opinions on the benefits of chicken
coop doors.) Not coincidentally, President Bush has
called for "a robust discussion about the best way for
the federal government, in certain extreme circumstances, to be
able to rally assets for the good of the people."

What this
"robust discussion" will most certainly entail is a
media show trial. Congressional leaders will set up the false
dialectic between those who want to abolish the PCA and those
who think that such an abolition would be "rash and uncalled
for" when the PCA merely needs to be amended. Needless to
say, this "tweaking" will allow enough ambiguity in
the reading for the federal judiciary to eviscerate the PCA and
free the leviathan.

While there
is no appreciable amount of case law on the PCA yet formed, the
methods and tactics that a statist court will employ are already
clear. Technically, the PCA applies only to the Army and Air Force,
not the Navy and Marine Corps. The latter two armed services are
restricted only by Defense Department regulations. (Likewise,
the Coast Guard – formerly of the Department of transportation,
now with Homeland Security – is exempt.) So, under the guise of
strict textualism, a court could easily find the policing of Americans
by scores of Marines constitutional. Add to this a 1981 amendment
to the PCA which freed up the use of the military in the war on
drugs and the loopholes which can be created are multifarious.

The direction
of the existing case law on the PCA does not bode well for its
future either. Originally, the standard used for violation of
the Act was an active versus passive test wherein the military
could not actively police U.S. citizens but it could provide equipment
and supplies to law enforcement. (See United States v. Red
Feather, 392 F. Supp. 916, D.S.D. 1975). However, a new test
emerged which looks to whether "military personnel subjected
. . . citizens to the exercise of military power which was regulatory,
proscriptive, or compulsory in nature." (See United States
v. McArthur, 541 F.2d 1275, 1278, 8th Cir. 1976). Mind you,
defining who is a "citizen" and what is "regulatory,
proscriptive, or compulsory in nature" will most likely fall
under the direction of a man who has no problem with ceding
immense, unprecedented, and dangerous powers to the president.

Given that
any public discourse about the siccing of military forces on American
civilians involves the use of two Latin words, the smart money
should not be on the side of liberty. A majority of Americans
have grown apathetic and stupid as a result of big government
handouts and (mis)education. While some may have been leery to
repeal the funny sounding law in the name of terror prevention,
there will likely little resistance to "amending" the
law so that the government can "help people." Little
do they think of past "helps" from "40 acres and
a mule" up through the entire bungled Katrina relief effort.

But just
as Jefferson was prescient that the use of troops by a sitting
president could effectively rig an election (as happened in 1876),
so he also noted that "If a nation expects to be ignorant
and free, in a state of civilization, it expects what never was
and never will be."

September
28, 2005

C.T.
Rossi [send him mail]
is a recent law school graduate who lives in Washington, D.C.

Usually I
can meet stories of government snafus with a cynical chortle (there
is something inherently funny in the idea that any organization
could spend $1500 on a toilet seat) but when one realizes, in
a case such as the recent hurricane disaster, that lives are being
destroyed, the incompetence loses all tinge of humor. Two nights
ago, within the span of a half of an hour, I was barraged with
a month's worth of stultifying stories of ineptness.

My wife and
I had spent the early evening going to discount stores to find
clothing for family members, whose house was submerged from Katrina.
We returned home and plopped down on the sofa. I began to watch
the 10 o'clock news and my wife checked her e-mail. My wife was
informed by a friend that a caravan of private individuals (who
had arrived at the Astrodome with barbecue grills and their own
meat) had been turned away by the Red Cross because they lacked
"proper training." (I never knew flipping burgers was
as technical as CPR.) My wife began to check the web for news
coverage of this story.

Our local
Washington news led off with
the story of how the District had outfitted the D.C. Armory
with 400 cots to provide shelter for refugees from New Orleans.
Half-listening to the talking head, I caught only expected snippets:
"caravan of 10 busses from DC headed for New Orleans,"
" busses currently in Meridian, Mississippi" "heading
back — empty." When I heard that the busses were empty, my
head snapped up. The newsman went on to say that the caravan "couldn't
find any refugees." (How or where they searched for those
in need of shelter was never mentioned.) "But volunteers
who help set up the Armory shouldn't feel as though their effort
was wasted," the report concluded, "as refugees will
be flown into the District later."

Segueing
on the topic of flying refugees around, the broadcast cut to footage
from Tampa. The camera was trained on a giant military transport
plane with the rear ramp lowered and cowering figures slowly descending.
The voice-over told me that this flying behemoth, which looked
large enough to hold a small army, had helped in rescue efforts
by depositing
50 refugees in Tampa. Fifty?! Why so large a plane and so
small a number of people? Why was such a colossal waste of resources
being heralded as an evacuation success?

In the meantime,
my wife had been able to
hunt down a report of the über-bureaucratized Red Crossers
who turned away volunteer assistance. The anger of the truth of
the report was tempered by the fact of the dogged determination
of the private citizens. Rather than roll-over for the Red (Tape)
Cross, these folks set up their own aid station across the street.

I have always
had a respect for the Red Cross. But I now wondered if they had
gone brain-dead through coordinating too much of their efforts
with FEMA. Just as speaking of the appearing devil, the news continued
with a story of local Red Cross relief drives. Half paying attention
again, I expected just the obligatory feel-good fluff piece about
local folks giving generously in donations of various sorts. But
what I heard shocked me. The Red Cross was saying they would
not be accepting any clothes for the hurricane victims, as
clothing wasn't what was needed. Instead, money is what the Red
Cross preferred. (After all, what fun is it to play with donated
goods when you can play with other people's money?) I don't know
who in the Red Cross hierarchy decided that clothes were not welcome
but I was surprised to learn this fact as I had spent my evening
looking for clothes that I knew that my family members
needed. But then again, who am I to argue with the central planners.

While watching
the horror and travesty that occurred at the Superdome and the
New Orleans Convention Center, it was in the forefront of my mind
that the only things that can be guaranteed in the presence of
"government control" of a situation are arrogance, incompetence
and obstructionism. Caravans of empty busses and giant personnel
planes with scant human cargo reinforced those beliefs.

When confronted
with the inane behavior of the Red Cross, I remembered another
caveat: private groups that become too enmeshed and intertwined
with government agencies eventually adopt the same can't-do disposition.

September
9, 2005

C.T.
Rossi [send him mail]
is a recent law school graduate who lives in Washington, D.C.

You can begin
to hear the faint echoes of a college marching band's tattoo erupting
in your brain like a divinely inspired call. Already my e-mail
box is starting to fill with "smack talk" and "counter-smack"
from the dulia-filled faithful anxious; reminiscing about the
glories of yesterday, these e-missives must be designed to influence
the gods of football to remember past alliances and assure future
victory.

But no matter
how much paraphernalia these keepers of the gridiron faith pour
into "the football room," their bobble-headed idols
have eyes that see not and ears that hear not. The true "gods
of football" live in Indianapolis and they are angry and
spiteful deities. And so, verily, the National Collegiate Athletic
Association (NCAA) thundered earlier this month: "Thou shall
not take names in vain."

The NCAA
has declared
a ban on the use of "hostile and abusive racial/ethnic/national
origin mascots, nicknames or imagery at any of the 88 NCAA championships."
And what exactly is such a "hostile and abusive" moniker?
According to the Executive Committee, names like Seminoles, Indians,
Chippewas and Choctaws are offensive, but tags like Fighting Irish,
Quakers and a whole slew of "demons" and "devils"
are not. In defending this capriciousness, NCAA vice president
for diversity and inclusion, Charlotte
Westerhaus, stated, “We have not gotten information from any
group that represents Irish or (anyone of) Irish ancestry …
that they believe that [Fighting Irish] image is hostile and/or
abusive.” Westerhaus's comments notwithstanding, the NCAA is merely
one more organ of the
totalitarian ideology of cultural Marxism, a.k.a. political
correctness, and given its origins, this is not surprising.

The NCAA's
genesis came at the behest of the ever-meddling, proto-neocon
Theodore Roosevelt. The familiar centralization tactic of
calling for an "imperative response" to an "imminent
danger or crisis" is present. Apparently the "flying
wedge" formation was blamed for the serious injury or death
of some undisclosed number of college football players and, as
a result, certain schools were dropping their football programs.
(Even if one accepts that this crisis was real, one could safely
assume that market forces would have influenced college football
coaches to abandon the flying wedge so as to save their own jobs
from being eliminated.) Out of T.R.'s grandstanding came a centralized
rulemaking body, the Intercollegiate Athletic Association of the
United States (IAAUS), which in 1910 changed its name to the NCAA.

The next
"crisis" the NCAA faced was post-World War II recruiting
practices. As schools discovered that football was a revenue-generating
sport at the gate, they began to recruit and give scholarships
to football talent in order to draw larger crowds. The new medium
of television was also providing a fresh source of revenue. As
George Stigler could have predicted, with such a pile of loot
on the line, it was time to enlarge the NCAA from merely a rulemaking
body to a regulatory agency and create a monopoly.

There is
no reason why market forces should not be allowed in the recruitment
of college football players. Student athletes should be free to
attend and compete at any college or university whose entrance
requirements they meet. They should also be free to transfer,
without penalty, to another school at any time. Colleges and universities
should be allowed to grant as many athletic scholarships as they
find feasible. The limiting of scholarships is supposedly done
in the name of "promoting competition" but is really
anything but. (Does fairness demand that outstanding academic
schools limit the number of academic scholarships it awards because
there are not enough baby geniuses to go around?) Rather than
improving sports or the life of the college athlete in any way,
the NCAA is merely a regulatory
behemoth that serves only itself.

It should
come as no shock that where arbitrary power is concentrated, there
you will find the forces of cultural Marxism. The
president of the NCAA claims that the organization is "taking
the high road." If the high road consists of putting a politically
correct face on a monopoly designed to intimidate members and
extort student athletes, then he's right. I prefer to think of
it as the road to perdition.

August
15, 2005

C.T.
Rossi [send him mail]
is a recent law school graduate who lives in Washington, D.C.

Travel is
essential for the development of the human person. In its most
banal, materialistic and uninspired comprehension, a trip is merely
the transportation of the self from one spot to another. However,
from the literature of the ancients up to our present day, there
is a realization that travel has a higher function. In most all
of the fables of the world, someone somewhere decides that he
must go to another place and, by making this decision, the world
ultimately becomes a different place or is viewed so by the sojourner.
Without freedom of movement, how could the literature of the quest
take form? (Today, Hercules' true labor would be obtaining documentation
to get to the spots of his various chores.)

The spiritual
component of travel is integral to Western culture. Abraham was
commanded by God to travel out of the land of his fathers, while
Moses, through divine intervention, won the right of egress out
of Egypt for the Israelites. Christ was constantly on the move,
from mountaintop to valley, in and out of different districts
and lands, while St. Paul is the finest exemplar of the soul-changing
events that can happen "on the road."

Freedom to
move means freedom to conduct trade and to learn first-hand about
other cultures — a component of education once deemed essential.
The broadening of external horizons seems to lead naturally to
the broadening of internal horizons.

The antipode,
restrictions on the individual's right to move about, can logically
be assumed to retard the virtues nourished by travel. One shackled,
either figuratively or literally, to the land is one whose knowledge
is limited, whose spirit is reigned in, and whose ability to conduct
business is stifled. In the eyes of the well-traveled, a serf
is stunted almost to the level of the beast; he lacks not only
raw exposure to the outside world but, more importantly, a frame
of reference.

So important
was the right to travel to the men of medieval England that it
is found in the Magna
Carta:

It
shall be lawful to any person, for the future, to go out of our
kingdom, and to return, safely and securely, by land or by water,
saving his allegiance to us, unless it be in time of war, for
some short space, for the common good of the kingdom: excepting
prisoners and outlaws, according to the laws of the land, and
of the people of the nation at war against us, and Merchants who
shall be treated as it is said above.

The only
time that the Crown was allowed to restrict travel was during
war for "some short space." This seems to imply that
a travel restriction placed upon an enemy combatant nation for
the entire duration of the conflict was deemed as unreasonably
long and unnecessary.

These "rights
of Englishmen" rooted in the Magna Carta were intimately
understood by the Founders. Yet, over the course of this century,
the American judiciary has been steadily whittling away at the
right of travel.

There is
no express right to travel found in the Constitution, unlike the
Articles
of Confederation which provided for "free ingress and
regress to and from any other State." Taking advantage of
this omission, the Supreme Court declared, in Zemel
v. Rusk, that Congress has the power to enable the President
to restrict travel to certain countries. At issue was whether
a U.S. citizen could travel to Cuba in 1965, a country with whom
we were not at war, in order “to satisfy [his] curiosity . . .
and to make [him] a better informed citizen.” Despite the rights
granted in the Magna Carta, to which Americans are heirs via the
Common Law, the Court ruled against curiosity and a well-informed
citizenry.

However,
in 1999, the Supreme Court found it necessary to dress up a welfare
case in a "right to travel" bonnet. They did so to assure
that states' rights did include the ability to restrain the handouts
of the welfare state (see Saenz
v. Roe). Rather than look to the Articles as a founding
document of the United States (a precedent which would have been
subversive to centralized power), they plunked the right to travel
in the Privileges and Immunities clause of the 14th
Amendment — a legal "dead letter" for more than 120
years. They then proudly proclaimed, “The Court today breathes
new life into the previously dormant Privileges or Immunities
Clause of the Fourteenth Amendment…”.

The test
case against the right to free movement is now being tried, not
in the legal system, but in the court of public opinion through
the saga of the "runaway bride" Jennifer
Wilbanks. This week Wilbanks' face has been splashed across
media outlets, as she "pays off her debt to the community"
for "lying to the police."

Wilbanks
ran away four days before her pending marriage. This was not a
criminal act. Her hometown of Duluth, Georgia began a search for
her, expending more than $40,000, even though her escape plan
began with a call to a local cab service requesting a pick-up
at the local library and drop-off at the bus station (a fact that
would seem likely to emerge from preliminary police work).

Wilbanks,
on the day scheduled for her wedding, telephoned her fiancé
to give him a bogus story about how she had been abducted and
was in New Mexico. At this time, she repeated the story to the
Duluth chief of police who was with her fiancé. This was
a lie on the part of Wilbanks, but a lie that sent New Mexican
police into action, not Duluth police. Through this lie, she caused
the misappropriation of Albuquerque law enforcement resources
to search for her fictional abductors. Duluth police had been
searching prior to her lie and her story gave them no reason for
additional expenditures of manpower or resources as all the alleged,
albeit fictional, criminal parties were in New Mexico. Authorities
in Albuquerque officials decided not to prosecute; Duluth officials
did.

Her lie cost
Duluth nothing, yet she is now mowing the lawn of city hall to
"repay her debt." In a wonderful Orwellian touch, this
indentured servant to the state wears a "life is good"
ball cap as she struggles away with a lawn mower to give restitution
to a city that suffered no damage from her acts. She and, by media
extension, all of us, have now been properly reeducated that the
real crime isn't lying but not letting the government know where
you are. (This exact
same scenario is now being played out again in Salt Lake City,
where a man who legally and voluntarily decided to disappear to
Australia is now being asked to pay for a search that he did not
ask for or induce.)

There is
a word for those who are not only restricted from traveling where
they desire, but also must "check in" with an authority
before absenting themselves. That word is slave.

August
12, 2005

C.T.
Rossi [send him mail]
recent law school graduate who lives in Washington, D.C.

~
U.S. Senator Richard M. Johnson

Richard Mentor
Johnson was known as an odd man.

Johnson spoke
the above words at the opening of Congress in 1821. Today, Johnson's
statement would get him labeled a "strict constructionist."
However, in the early 19th century, Johnson was merely
a politician who held the odd (by 21st-century standards)
belief that words actually have definite meanings, and that when
you string enough of these words together, they communicate ideas
and concepts. Even stranger, perhaps, he was of the opinion that
when you arranged these ideas and concepts to form laws and covenants
(say, a constitution), that the verbiage would actually mean what
it says and, by implication, not mean what it doesn't say. How
odd a man, indeed!

Johnson's
appeal to the text of our foundational document was a preamble
for his introduction of a proposed constitutional amendment where
"in consequence of having a constitution or law of such State
questioned [by the Supreme Court], the Senate of the United States
shall have appellate jurisdiction." Unlike the legal scholars
of today, Johnson was left disquieted that the entire mechanism
of the Supreme Court's power of judicial review rests solely upon
the opinion of Chief Justice John Marshall in Marbury
v. Madison. Given the degree of recalcitrance on Johnson's
part for offering such an amendment, one is left to wonder what
kind of man would dare question the actions of a chief justice
who was merely faithfully executing his duties to the American
people — it is only incidental that Marshall's decision aggrandized
himself and the court, in perpetuam, with an immense power
not actually found in the words of the Constitution.

Richard Johnson
appears to have been a man free from that amazing credulity which
is the hallmark of the modern American mind, while his recognition
that the Supreme Court was destined to become the "most dangerous
branch" shows his logical mind and a keen understanding of
the corrosive nature of power that led him to become vice president
under Martin Van Buren. His star might have risen higher but for
his interracial
marriage, which left him persona non grata in the social
circles of the day. (Ironically, while few today would publicly
scorn him for marrying a black woman, his ideas about states'
rights and limited government would leave him exposed to brummagem
charges of racism.)

While one
may question Johnson's plan positing appellate power in the U.S.
Senate, the idea was more structurally sound before the 17th
Amendment, when senators were still the official representatives
of the states. Johnson saw the danger and attempted a solution.
But seldom, if ever, will the Leviathan state ever curb its own
power — not even in 1821.

To return
the original federalist balance to the current Constitution, it
will first be necessary to check the ukaz power of the
Supreme Court. Johnson's idea that the nullification of state
law should somehow require the consent of the several states is
central. Amendments similar to Johnson's were proposed during
the progressive era, but most had a mechanism for expedited constitutional
amendment in the face of state law invalidation rather than actual
nullification of the Supreme Court decision. However, they are
fertile ground for theorizing. In surveying these proposals, a
two-thirds concurrence of either state legislatures or state attorneys
general seems the logical mechanism for the nullification of a
Supreme Court decision.

As in Johnson's
day, the best-laid plans will come to naught unless somehow a
constitutional amendment can get passed. If Johnson failed in
binding an emerging centralized beast, little hope can be held
for passing such an amendment through Congress today. But that
is not the end of the game.

While the
standard method of constitutional amending calls for a two-thirds
approval of the measure by Congress before sending it out to the
states, Article
V provides a second method. The state legislatures may call
for conventions of the people, and a three-quarters majority of
conventions may pass an amendment, thereby completely by-passing
the feds.

While such
a plan for reformation of the Supreme Court (and federal power
in general) is, as of yet, unlikely to succeed — hope remains
in the breast of all those who love liberty. A framework for reform
exists in the words of the Constitution. To bring about reform,
one need only convince people that words are powerful and meaningful.
In the end freedom will prevail, as the words of the Constitution
do mean something — while the "implicit powers"
of tyranny are merely opinions written on the wind and swift water,
destined to pass away.

August
4, 2005

C.T.
Rossi [send him mail]
recent law school graduate who lives in Washington, D.C.

"Courage
is a quality so necessary for maintaining virtue that it is always
respected, even when it is associated with vice." — Samuel
Johnson

In the midst
of the Inauguration lockdown a certain truth emerged to me. That
truth was not to be found in the show of force designed to make
the earth quake. Neither was it in the wind of pomp and circumstance,
nor the makeshift protest fire set by protestors. Instead a small
still voice from the past came whispering to me.

It was on
June 8, 1978 that the great
jeremiad was delivered. Russian dissident Alexander Solzhenitsyn
mounted the rostrum at Harvard where he was expected to relate
the horrors of the Soviet system and, presumably, how happy he
was to be in the "free" world. But rather than deliver
a panegyric to the West, Solzhenitsyn proved to be that most troublesome
of invitees — the blatantly honest guest: the type who tells you
that the pot roast is dry, your home décor garish, and
your children poorly mannered. In short, Solzhenitsyn played Simon
Cowell while the West, despite its Diva-esque self-image, was
flatly told its singing was simply dreadful.

If only it
was that America couldn't carry a tune. What Solzhenitsyn described
was a deep-seated spiritual disease with its root in cowardice.
He stated:

A
decline in courage may be the most striking feature which an outside
observer notices in the West in our days. The Western world has
lost its civil courage, both as a whole and separately, in each
country, each government, each political party and of course in
the United Nations. Such a decline in courage is particularly
noticeable among the ruling groups and the intellectual elite,
causing an impression of loss of courage by the entire society.
Of course there are many courageous individuals but they have
no determining influence on public life. Political and intellectual
bureaucrats show depression, passivity and perplexity in their
actions and in their statements and even more so in theoretical
reflections to explain how realistic, reasonable as well as intellectually
and even morally warranted it is to base state policies on weakness
and cowardice. And decline in courage is ironically emphasized
by occasional explosions of anger and inflexibility on the part
of the same bureaucrats when dealing with weak governments and
weak countries, not supported by anyone, or with currents which
cannot offer any resistance. But they get tongue-tied and paralyzed
when they deal with powerful governments and threatening forces,
with aggressors and international terrorists.

There was
a great irony of the orgy of security seen at the Bush Inauguration.
While it would be completely reasonable for a monarchy or theocracy
to go to extreme measures to protect the "royal blood"
or the "chosen one" — democratic leaders are, by design,
expendable. The true strength of the democratic system resides
in a design where if a leader is felled, another with the requisite
talent and skill rises to take his place. Could anyone, with a
straight face, claim that George W. Bush possesses abilities that
make him irreplaceable? Then why was he cocooned in an urban assault
limo flanked by a 21st century praetorian guard? Fear.

George W.
Bush's behavior is merely the continuation of a trend. American
leaders have come to think of themselves as personally indispensable
to the nation. While this delusion of grandeur could merely be
a manifestation of megalomania, the actual root cause of the behavior
is a craven fear of death coupled with an inordinate desire for
worldly honors. In most traditional cultures, these are the signs
of spiritual sickness.

It was a
spiritual awakening that Solzhenitsyn received in a baptism of
fire through his sufferings of the Gulag. Living constantly on
the verge of death taught him the ultimate truth — man is not
God — and as such he is bound to the natural constraints of mortality.
Man's destiny is not here and now on this earth to live infinitely,
but to live well and die well. He came to believe not in the coercive
plans of Soviet bureaucrats, but the plan of Providence — with
which man can either cooperate or reject freely.

But if a
man believes that he can recreate a world anew himself (ridding
the world of tyranny), then he must ascribe the same power to
other men. As such, all those who differ with his vision become
rival gods — heretical faiths to by suppressed at any price.

So as we
bow down before the vision of our leaders, and prospective leaders,
who routinely pledge to make the blind see, the lame walk, and
bring a democratic kingdom of heaven on earth, we should ask:
what type of a true god-man is afraid of his own mortality?

January
25, 2005

C.T.
Rossi [send him mail]
is a law student in Washington, D.C.

When I came
to Washington in that fabled time called "pre-9/11,"
the city had a certain bloated, pursy quality to it, not unlike
the public officials, staffers and lobbyists who crowded the Hill.
Back then, one was still free to march up the Capitol steps and
into very bowels of the American of government. Once inside any
building of the congressional complex, like some civics-book-based
petting zoo come to life, one was allowed to observe senatorus
doltus, bureacratus abdominous or secretarious steatopygous
moving slothfully through their natural environs. On the whole
they were tame creatures, though if you caught their eye, they
possessed a specific hubris that infects all the "public
servants." There air was one of both arrogance and insecurity.
I often imagined it stemmed from the circumstance that, for whatever
the reasons, these drones were collectively a people who "never
fit in" in their home state; but now that they were about
the people's business in cosmopolitan Washington, they assumed
the haughty demeanor of those who have "arrived." Staring
too closely had the disconcerting effect of making them think
that you had pierced their mantle of faux importance and were
able to apprehend that they were still spotty-faced teens with
underwear firmly wedged up courtesy of their hometown classmates.
All in all, the demeanor of the pre-9/11 "Hill-rat"
hinted that not much separated the young staffers' backgrounds
from the equally outcast Trenchcoat Mafia of Columbine infamy
– with the notable exception that the Columbine monsters chose
a nihilistic rampage of violence and intimidation over mere power-basking
sycophancy. However, in post-9/11 Washington the distinction between
bureaucratic toady and hooligan has blurred.

The new face
of Washington is angular with a thick neck and a curled wire running
into its ear. Its presence can be caught out of the corner of
the eye like a phantasm. It is ominous and omnipresent. Like a
scene out of Animal
Farm, their brutish physical presence has allowed the
porcine members of the farm to grow bolder in their control of
the manor. This unmistakable face has even infiltrated
the ranks of groups planning acts of protest and dissent.
Though this face has slowly gained ascendancy over the past three
years, it appears that its coming out party will be this month's
Presidential Inauguration activities.

The actual
inauguration ceremony of George W. Bush is of secondary importance
— the more important event is a formal and overt display of force
designed to make the masses cower. The haute couture of the festivities,
with all due respect to the
First Lady's designer, will not be grand ball gowns nor even
"black ties and boots" but the S.W.A.T.-style assault
jumpsuits. The special guest list of "military
personnel, FBI agents in full SWAT outfitting, snipers on rooftops
and scores of bomb-detecting dogs" has also been confirmed.
Just as important as the seating arrangement and placing of name
cards is the "inspecting miles of underground Metro and sewer
tunnels, sealing manhole covers, closing streets and surveying
the more than 450 downtown buildings." Naturally, as in planning
any grand party, accommodations for out-of-towners must be made
— in this case between 1,600 and 2,500 police officers from foreign
jurisdictions and 4,000 active-duty combat forces. Finally, one
should not forget to take pictures
on the big day, so the Metropolitan Police Department will
have its Big Brother system fully ramped up. (MPD has also announced
that the spy cameras will awaken again for that most subversive
and dangerous of events — the March for Life.)

Pageantry
aside, the only joy greater than having the party that you want
is the schadenfreude of keeping what you view as the riff-raff
out of the party. Like the Neanderthal bouncers outside of chic
Hollywood nightclubs, the "security force" will decide
who gets in and who doesn't. Without "your papers,"
residents of the Shaw neighborhood will
not be allowed ingress and egress from their own homes. Other
"security" measures have had the (intended?) effect
creating such inconvenience that law-abiding
people plan to stay away.

Once upon
a time a man said that if the terrorists forced
us to change our way of life, then they will have won. But
things have changed. This means that either the terrorists are
winning or that these changes were not forced — but desired —
by our leaders.

In either
case, on Inauguration Day all of the nation will get a view of
the new Washington, D.C. — America's jack-booted debutante.

January
15, 2005

C.T.
Rossi [send him mail]
is a law student in Washington, D.C.

~
Robert Frost, Mending Wall

What it is
that doesn't love the wall has come to light. No, it isn't the
elves that Frost envisioned — gleefully reeking havoc on the labors
of men. The “it” that hates the wall — driven by a similar hatred
for the accomplishment of man's hand as Frost's elves — is the
leviathan of a government grown mad with power. The work of tearing
down walls is what this beast is about. The 9/11 Commission's
inquiry into the “wall” that formerly separated U.S. intelligence
from law enforcement operations has become a news story du
jour. The “wall” is now being built up as the strawman for
the intelligence failures of 9/11.

The media,
instinctually lemming-like, have fallen for Attorney General John
Ashcroft's sideshow
legerdemain of directing attention away from what the “wall”
is to who is responsible for the “wall.” With
the help of neocons like National Review's Mark Levin,
the Justice Department wants the “wall” portrayed as a creation
of former Clinton Adminsitration Justice Department official,
and current 9/11 Commission member, Jamie Gorelick. All of this
is a typical partisan blame game. However, the plot took a twist
when the White
House announced its displeasure with the Ashcroft decision
to post correspondence between Gorelick and Mary Jo White, then
United States attorney for the Southern District of New York.

Like the
plot of the movie Pulp
Fiction, where viewers enjoy the action surrounding a
mysterious briefcase whose contents are never revealed, the media
is more than happy to ignore what the “wall” was actually “walling
in or walling out.” Rather they have just sat back and enjoyed
the show.

While the
purpose of the “wall” does take a small bit of legal background,
it is not so complicated that it can't be efficiently explained.
So grab your legal trowel and prepare to learn the basics of the
“wall.”

In 1928 American
jurisprudence had to make a choice concerning the government's
ability to spy on its own people. While physical trespass had
always been the benchmark for needing a search warrant, in Olmstead
v. U.S.1 the Supreme Court first confronted
whether wiretapping required a warrant. Chief Justice William
Howard Taft's majority opinion stuck with the common law notion
that a physical trespass was necessary — freeing the government
to wiretap without warrants. Justices Holmes and Brandeis dissented,
Brandeis asserting that under the Constitution there exists “the
right to be let alone” which protects against “every unjustifiable
intrusion by the Government upon the privacy of the individual,
whatever the means employed.”

In Katz
v. U.S., the Court overruled Olmstead, basically relying
on Brandeis' view of privacy.2
However, the Katz decision applied the warrant
requirement only to surveillance of criminal activities. These
type of criminal surveillance warrants came to be called Title
III warrants. In a later case, the court addressed the issue of
national security spying.3 It held
that, while national security surveillance didn't need to conform
to the Title III standards, such government operations were still
limited by Fourth Amendment restrictions. The Court also thought
Congress would be wise to set up a formal system for issuing national
security warrants to control abuses. This recommendation took
shape a few years later in the form of the Foreign Surveillance
Intelligence Act (FISA).

This left
with the U.S. with two parallel warrant systems: Title III for
criminal surveillance, featuring strict Katz requirements
for issuing a warrant, and FISA for nation security surveillance,
which followed a different set of warrant standards but was still
governed by Fourth Amendment restrictions. In essence, given the
special nature of national security, FISA allowed agents to play
a little faster and a little looser with privacy laws. But there
was a trade-off. That trade-off was the “wall.”

The “wall”
was simply the rule that agents surveilling with FISA warrants
could not share what they learned with agents working on criminal
cases. Because FISA warrants were arguably easier to obtain than
Title III warrants, there was a legitimate fear that agents denied
criminal warrants would gain information through the backdoor
from their buddies working under FISA. That's it. That is the
mysterious “wall” — nothing more than a standard check and balance.

What is truly
disturbing is how John Ashcroft has approached the “wall.” It
is perhaps a mirror to his low regard for civil liberties in general.
He now intends to blame the wall procedures for 9/11 when a post-9/11
Senate
Judiciary Committee inquiry into FISA already reported that
top FBI officials were completely ignorant of basic legal standards
for the issuing of warrants.4 FBI
incompetence was much more a cause of 9/11 than legal safeguards
surrounding FISA handcuffing g-men hands.

FISA warrants
are issued by a special Foreign Surveillance Intelligence Court
(FISC). In on May 17, 2002, the FISC gave its first denial to
FISA warrant request.5 (There were
concerns that FISC was a kangaroo court, but in this instance
not even a kangaroo could agree with the over-reaching Ashcroft.)
That court voiced concerns that Ashcroft's internal policies were
not carrying out the function of a real “wall” at all. FISC speculated
what it politely called “sub rosa” criminal investigations could
be carried out under the Attorney General's procedures. Ashcroft
refused to back down.

Having been
the first Attorney General denied a FISA warrant, Ashcroft also
became the first to appeal a denial. The Foreign Surveillance
Intelligence Court of Review (FISCR), packed with brand new members
added by the USA PATRIOT Act, not only found for Ashcroft but
in a litany of bizarre proclamations declared that a “wall” never
existed, that FISA may actually offer greater protection to citizens
than Title III, that FISA protections prevail over Fourth Amendment
requirements, and that FISA warrants may not even technically
be warrants and therefore not bound to the laws concerning warrants.6
If this was not disturbing enough, the FISCR remarked in summation
that if Ashcroft's leveled version of the wall does “not meet
the minimum Fourth Amendment warrant standards,” they, like horseshoes
and hand grenades, “certainly come close.”

In the face
of those tearing down the walls of the law, we should remember
the advice about levelers given by Sir Thomas More in the Robert
Bolt's A Man For All Seasons: “Oh, and when the
last law was down and the devil turned on you where would you
hide Roper, all the laws being flat? This country is planted thick
with laws from coast to coast, man's laws not God's, and if you
cut them down — and you're just the man to do it — do you really
think that you could stand upright in the winds that would blow
then? Yes, I'd give the devil the benefit of the law, for my own
safety's sake.”

Notes

1. Olmstead
   v. United States, 277 U.S. 438, 464 (1928).

2. Katz v. United States, 389 U.S. 347, 361 (1967).

3. United States v. United States District Court, 407 U.S.
   297, 321 (1972). Also commonly referred to as Keith.

4. Senate Judiciary Committee, Interim Report on FBI Oversight
   in the 107th Congress: FISA Implementation Failures,
   Feb. 2003

5. In Re All Matters Submitted to the Foreign Intelligence Surveillance
   Court, 218 F. Supp 2d, 611 (2002).

6. In re: Sealed Case No. 02-001, 310 F. 3d 717 (2002).

May
4, 2004

C.T.
Rossi [send him mail]
is a law student in Washington, D.C.