Monthly Archives: August 2010

Jon Stewart Has Earned My Respect

I used to think that Jon Stewart was another garden variety left winger but lately, I’ve found him to be perhaps the most reasonable political commentator anywhere. Whether the issue is the controversial South Park episode featuring the prophet Mohammed, Obama’s about face on civil liberties now that he is president, or this most recent ground zero mosque controversy, Jon Stewart, a comedian is the voice of reason as many other pundits take one extreme view or the other.

In this Daily Show segment below entitled “Extremist Makeover – Homeland Edition” Stewart does something that I’ve seen very few pundits do publicly: admit he was wrong. In observing the overreactions of this mosque controversy in which many on the right want to deny freedom of speech, freedom of religion, and property rights to a religious minority out of fear, Stewart realizes that he too overreacted in the wake of the Columbine Massacre when he and others on the left condemned the NRA for going ahead with their scheduled convention in Denver (near ground zero for this tragedy). From there, Stewart plays excerpts from then NRA President Charlton Heston and admits that Heston was right and he was wrong.


If you replace ‘NRA’ with ‘Muslim community’ and ‘Second Amendment’ with ‘First Amendment’ he [Heston] is still right.

The Daily Show With Jon Stewart Mon – Thurs 11p / 10c
Extremist Makeover – Homeland Edition
Daily Show Full Episodes Political Humor Tea Party

Jon Stewart has earned my respect for his intellectual honesty even as others (*cough* Wayne Allyn Root *cough*) have lost it.

Copyright Absurdity

This story isn’t really that significant, but it’s a case in point of copyright absurdity:

Madonna is being sued for using the name “Material Girl,” a reference to her hit 80s song, in her juniors clothing line designed with her daughter Lourdes. Clothing maker LA Triumph says it’s been using the name to market clothes since 1997. LA Triumph contends it makes similar clothes for the same market and claims it’s now at “a risk of being subsumed by Madonna’s profile, obvious worldwide notoriety.” Madonna’s line launched earlier this month with Gossip Girl star Taylor Momsen as its face. The singer hasn’t commented.

As you may know, pop singer Prince found himself losing ownership of his own name when he left his record label, becoming an unpronounceable symbol and “The Artist Formerly Known As.” Comic book creator Alan Moore has had his creations made into several different films (The League of Extraordinary, From Hell, Watchmen), not one of which he has supported or even watched, according to interviews.

There’s alot of disagreement about copyright laws and I’m not sure what the consensus is at TLP, if there even is one. I’ll voice in by saying that the current copyright laws work for executives of corporations who distribute creative work and not those who actually create it.

There is an effort to combat this in the comic book industry, with a rise in “creator-owned” enterprises. A few of these include the Powers series by Marvel (written by Brian Michael Bendis), Bone by Jeff Smith and the Criminal series by Marvel (written by Ed Brubaker). DC also has its own line of creator owned series, which you may have heard of, called Vertigo.

The internet revolution has greatly reduced the concentration of power in the music industry away from the record labels, and the labels have used the artificial protection of copyright laws to try to stop change by prosecuting fans who download, artists who distribute their own music, etc. The freedom of information that the internet provides works for small time artists, but artists who sign with larger labels in hopes of obtaining wider distribution will continue to be selling their own creative rights away.

“Hallowed Ground”

A friend of mine who I worked with at a hip-hop magazine years ago was a big influence on me turning toward libertarianism. He said this on the mosque fiasco:

The next person who tells me Ground Zero is ‘hallowed’ or ‘sacred’ ground, is getting punched in the balls. If it really were special, it would be more than a hole in the ground NINE YEARS after the fact. Build the goddamn mosque. If you want to honor the people who died on 9/11, assimilate Islam and turn it into the same hollow facade every other ideology in this country is.

Also, I’m sure I’m not the only person who has become far less comfortable talking about this topic than I was years ago. The debate over Islam and America has gone beyond ideological and geopolitical terms and taken on dimensions of immigration, nationalism and assimilation.

Counterpoint: Civil Disobedience Or Not, Nullification Is Unconstitutional

In his post that started this debate, Brad Warbiany makes this point about the idea that the individual states have the power, or at least the right, to make declarations as to the Constitutionality of Federal laws:

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.


Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Taking this view of nullification, I don’t necessarily disagree with Brad on the value of state’s, and their citizens, weighing in on what they believe to be a usurpation of Federal power. After all, this is something that has a long and noble history in America. When President John Adams persuaded Congress to pass The Alien and Sedition Acts, Thomas Jefferson, who at that point was serving as Adams’s Vice-President, and James Madison worked together to draft and ensure the passage of the Kentucky and Virginia Resolutions, which were resolutions passed by the state legislatures of Virginia and Kentucky to condemn laws which Adams’s opponents viewed as both unconstitutional and near-dictatorial.

The resolutions — which you can read here, here, and here — are interesting in themselves because they contain one of the first post-ratifications statements by American leaders of what they believe the Constitution to mean, as this excerpt from the Kentucky Resolution of 1798 shows wonderfully:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes, whatsoever; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,”—therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States;’” as also the act passed by them on the 27th day of June, 1798, entitled “An Act to punish Frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish, such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people;” and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states, or the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment, by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference; and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violated either throws down the sanctuary which covers the others,—and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of Congress of the United States, passed on the 14th of July, 1798, entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States,'” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

That’s mighty strong language. Stronger, some would say, than the laws that a few states have passed since March challenging the Federal Government’s authority to require Americans to purchase health insurance. However, it’s worth noting what Madison and Jefferson were not doing, because as Madison acknowledged in his defense of the resolutions, there is no Constitutional authority granted to the states that would allow them to nullify a Federal law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

Considering that this was written by a man who was both one of the principle authors of the Constitution and one of the authors of the Resolutions, it seems to me that it is fairly persuasive evidence that, whatever else the Tenth Amendment might mean, the Founders never intended to give the individual states the power to nullify state laws.

So, basically, that leaves “nullification” (and personally I don’t like the word because of it’s historical associations with secessionists and segregationists) in the category that Brad would put it; a method by which the citizens can, through their state legislatures and the Courts if necessary, petition Congress for a redress of grievances.

However, when nullification is discussed today, it isn’t the “civil disobedience” variety that Brad favors that’s being advocated. In his new book, Nullification: How to Resist Federal Tyranny in the 21st Century Thomas Woods essentially argues for a full-throated right on the part of the states to ignore Federal laws if they choose to do so:

Nullification is Thomas Jefferson’s idea, articulated most clearly in his Kentucky Resolutions of 1798, that if the federal government passes a law that reaches beyond the powers delegated by the states, the states should refuse to enforce it. Jefferson believed that if the federal government is allowed to hold a monopoly on determining what its powers are, we have no right to be surprised when it keeps discovering new ones. If they violate the Constitution, we are “duty bound to resist,” to quote James Madison’s Virginia Resolutions of 1798.

Now this is a vast simplification of the argument that Woods makes, you can get a better idea of what he means in this interview:

I have yet to read Woods’ book, and still want to, but it’s fairly clear that his argument suffers from the fact that there just isn’t any historical support for his idea that the Constitution grants states the right to essentially break Federal law by ignoring it if they believe that it is unconstitutional. Any reliance on the Virginia and Kentucky Resolutions, for example, is easily rebutted by Madison’s own admission that the Resolutions were expressions of opinion rather than something that had the force of law.

History after the Resolutions doesn’t really provide any support for Woods’ argument either. The most notable example came during the Nullification Crisis of 1832, when South Carolina purported to declare a Federal import tariff unconstitutional and took steps to prevent Federal agents from collecting tariffs on goods entering through the Port of Charleston. Though the matter was resolved, it set the nation down a road toward secession that resulted in the bloodiest war in American history. After the Supreme Court’s decision in Brown v. Board of Education, ten Southern states used the doctrine of nullification, and the related concept of interposition, to attempt to resist efforts desegregate school and refuse to enforce the Court’s decision. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.

In other words, if nullification of the type Woods advances actually existed, we would no longer live in a Federal system, but in something more closely resembling the Articles of Confederation. Since the Constitution was written to replace the Articles, it’s clear that the Founders never intended to give the states the power to decide for themselves what the Constitution means and to randomly choose to ignore Federal laws based on that interpretation. Therefore, Woods’ nullification is little more than a professorial fantasy.

In closing, I don’t necessarily object to the kind of “civil disobedience” nullification that Brad favors. Let’s just not pretend it has the force of law.

The Fabric Of Society

What makes a prosperous, first-world, liberal society tick? How did America become the world’s great superpower? What is the fabric that keeps this together? Below are the answers as I see them, from the three main American schools of political thought.

The Progressive

The progressive believes that the fabric of society is government. He does not necessarily believe in state ownership of the means of production, but rather that the environment of strong institutions (educational/social/legal) are the underpinnings of great societies. He believes that humanity is best self-actualized when working within a regulated framework where “fairness” and “equality of opportunity” is enforced from above to at least a necessary degree. He may or may not be envious of the rich, but his desire for progressive taxation is more due to the fact that he sees society as having a big role in creating the conditions for the rich to obtain their wealth, and that it is their duty and moral responsibility to give some of that wealth back to the system to ensure that the same conditions exist for others.

To the progressive, the fabric of society tears when we shed our collective institutions for the messy profit-driven market. The market’s goal is not the common good. The progressive doesn’t believe that the market will adequately supply what the progressive defines as public goods, such as education, infrastructure, care for those who are not valuable to the market (old/disabled/etc), and a fair regulatory system protecting “tragedy of the commons” like the environment. Thus, without strong institutions to restrain the influence of the market and channel societal output in socially-responsible ways, society will be unable to achieve its peak.

The Conservative

The conservative believes that the fabric of society is the shared social and cultural norms of society. Whether or not he claims that America was founded as a Christian nation, he remembers that America was founded, by and large, by Christians who instilled in their offspring the moral framework to exist within a society. To the conservative, humans are naturally weak and prone to temptation, and the moral, social, and cultural rules that society follows are necessary to keep people on the right path. To a conservative, the power of America is borne out of the traditions of economic freedom as defined by the Constitution and the morality inherited from the Puritans who first populated America. He believes that to continue America’s greatness, we should revere and continue following those traditions as part of our shared cultural identity.

To the conservative, the fabric of society tears when those social norms are lightly disregarded. Gay marriage becomes a threat to a society based upon traditional marriage and nuclear families. Immigration becomes a threat not because immigrants are other races, but rather because they come from weaker nations without the rich tradition and morality of America, and thus may try to import their former country’s weaknesses into ours. Removing religion from the public sphere is a threat because society rests on continuance — if not of Christianity on a personal level — of the social morality underpinning that Christian faith, and thus godless hedonism calls into question the very underpinnings of society. People casting off traditions may unknowingly cast off traditions that are important to the future of society, and the world may not know it has occurred until the damage is already done.

The Libertarian

The libertarian believes that the fabric of society is freedom. He believes that humans are naturally strong yet cooperative individuals, who will work together towards shared goals when it is in their interest and will be tolerant of others’ goals so long as they don’t infringe upon him. He knows that some people are not content to leave people alone, and sees that the role of government in society to enforce negative rights from those who would meddle in freedom. He believes in the “emergent order” and the “invisible hand”, and that if people are largely left to their own devices to work for their own ends, the end result will be a common benefit to all. He sees America as a nation founded on a “light touch” of government, and attributes America’s success to letting people live, work, and earn freely.

To the libertarian, the fabric of society tears when people — rather than freely choosing cooperation — are forced into cooperation by government. He sees forced virtue as a tool to create resentment and acrimony between people who would normally be tolerant of each other, and sees income redistribution as legitimized theft. He believes that government should expand protection negative rights to those most in danger of oppression by the majority, but believes that when government creates positive rights for minorities it creates jealousy and destroys the common bonds of humanity. He believes that as the government grows more powerful, it becomes more profitable to attempt to control the government than to create value which improves the society in general. When government takes over, he sees all struggles become man vs. man, rather than humanity working individually and/or cooperatively towards improving standards of living.

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