Thursday, July 5, 2018

Cursory Remarks About Congressional Oversight & Oversile

Dictionaries define "oversight" as "watchful care," and this approach has proven to be one of the most effective techniques that Congress has adopted to influence the executive branch.  Congressional oversight prevents waste and fraud; protects civil liberties and individual rights; ensures executive compliance with the law; gathers information for making laws and educating the public; and evaluates executive performance.  It applies to cabinet departments, executive agencies, regulatory commissions, and the presidency.

               Source: U.S. Dept. of State 

The Oxford English Dictionary (OED) gives two completely different definitions for the word oversight:

1.  The action of overseeing or overlooking; supervision, superintendence, inspection, charge care, management, control.

2.  The act of passing over without seeing; omission or failure to see or notice, inadvertence.

The first definition of oversight defines how Congress should oversee the actions of the executive branch.

The second definition of oversight defines how Congress is actually overseeing the executive branch.  It has cast a blind eye to the recent actions of the executive branch.  In essence, Congress has abdicated its responsibility to use its oversight powers to protect civil liberties and to ensure that the executive branch is complying with the law.

The forced separation of immigrant families comes to mind.  What is Congress doing about it?

Then there are the tariffs Trump has placed on Canada and other countries for "security reasons," a flagrant stretch of the laws concerning Trade.  Has Congress abdicated its responsibilities to regulate Trade as well?

There is no definition of oversight to describe the actions of the House of Representatives to interfere in an ongoing investigation, namely to smear the Mueller Probe.   But there is a word that fits the situation.  And it is the very next word in the OED after the word oversight.  That word is oversile.

The OED provides three definitions for the word oversile, an obsolete Scottish word used before the 1700s, that rhymes with the word beguile:

1.  To cover over; to conceal, hide. 

2.  To obscure or dim the physical or mental sight; hence, to blind mentally, delude, beguile.

3.  To overtop, exceed, surpass.

Here are the definitions of the word oversile as expressed in an older Scottish tongue. The third definition says it all:

Saturday, February 24, 2018

How Paul Fussell and Samuel Johnson Helped Me Write a Review of Michael Wolff's Book, Fire and Fury

When I review a book, the words sometimes seem to flow onto the page directly from my mind.  That was not the case with Michael Wolff's Fire and Fury:  Inside the Trump White House.  The words for my review of this book literally came to me from the writings of Paul Fussell and Samuel Johnson.

The original idea of Michael Wolff's book was to provide an account of the first one hundred days of the Trump Presidency, as seen through the eyes of the people closest to Trump.  And Wolff had open access to the White House––in his words, "something quite close to a fly on the wall."  The events Wolff describes are based on conversations he reportedly had with members of Trump's family and his White House staff.  Wolff himself readily admits that some of the accounts of what happened in the Trump White House are in conflict with each other.  But Wolff reasoned that he would let the readers judge for themselves.

When I finished reading Wolff's book, I sat in front of my computer, and contemplated what to say in my review about the book.  Believe me, I believed every word that was written!  But, at the moment, I was at a temporary loss of words to emphasize that the dastardly things "he said-she said" really could have happened in the White House of the United States of America.  So I put Fire and Fury aside for the time being.

A few days later, I was researching the web on some unrelated matter and came across Paul Fussell's January 1982 Harper's Magazine article, My War:  How I got irony in the infantry –– I will wait here if you want to read his article now; or you can read it later...

After reading his article, I wanted to read more by Paul Fussell.  So I went to Abebooks.  And that's when I discovered that Paul Fussell wrote a book about Samuel Johnson:  Samuel Johnson and the Life of Writing.  Being a Samuel Johnson collector, I immediately ordered a copy of Fussell's book.

And when I received it, and got to page 12 of the book, the idea of the review of Michael Wolff's book, Fire and Fury, was staring at me smack in the face.  Fussell was talking about Johnson's writing and was referring to Samuel Johnson's Preface to Father Jerome Lobo's Voyage to Abyssinia, first published in 1735Johnson translated this book from the French.  But both Fussell and Johnson could have been talking about Michael Wolff's book, Fire and Fury:  Inside the Trump White House.

That first marked sentence is all the more relevant and powerful when it is written in its entirety––as it was first written by Samuel Johnson in 1735:

The Portuguese traveler, contrary to the general vein of his countrymen, has amused his readers with no romantic absurdities or incredible fictions; whatever he relates, whether true or not, is at least probable; and he who tells nothing exceeding the bounds of probability has a right to demand that they believe him who cannot contradict him.

Judging by the leaks that came out almost daily from the White House,  Micheal Wolff's account of what went on in the White House is all the more believable....

Friday, November 10, 2017

Revisiting the Interpretation of the Second Amendment

In the landmark Second Amendment court case,  District of Columbia v Heller, decided on June 26, 2008, the Supreme Court held:

   1. The Second Amendment protects an individual right to possess a firearm unconnected with service in the militia, and to use that firearm for traditionally lawful purposes, such as self-defense within a home.

   2.  Like most rights, the Second Amendment right is not unlimited.  It is not a right to keep and carry any weapon whatsoever and for whatever purpose:  for example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.  The court's opinion shall not be taken to cast doubt on longstanding prohibitions on the possession of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.  Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

   3.  The handgun ban and trigger-lock requirement (as applied to self-defense) violate the Second Amendment.  The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense.  Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition––in the place where the importance of the lawful defense of self, family, and property is most acute––would fail constitutional muster.  Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional.

The above three paragraphs were copied from the syllabus of the case.  Justice Antonin Scalia gave the majority opinion in the 5-4 case.  Justice Stephen Breyer, in his dissenting opinion, gave an ominous warning of things to come:
Far more important are the unfortunate consequences that today's decision is likely to spawn. Not least of these, as I have said, is the fact that the decision threatens to throw into doubt the constitutionality of gun laws throughout the United States. I can find no legal sound basis for launching the courts on so formidable and potentially dangerous a mission. In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in crime-ridden urban areas.

The italics are mine.  Gun rights advocates firmly believe that the words of the Second Amendment,  shall not be infringed,  means that their Second Amendment right to bear arms is unlimited.  And even though the Heller decision pertained to handguns and other guns "in common use," that untouchable constitutional right now appears to cover everything from the carrying and use of military assault weapons to bump stocks as well.

In May 2013, I wrote about gun control and the Second Amendment in an article titled, A Well-Lobbied Government:  How the NRA Won the Battle Over the Second Amendment.  Republicans turned deaf ears to the parents of the children who were killed in the Sandy Hook Elementary School shooting and killed the bill for background checks. Why?  The NRA owns them lock, bump stock, and barrel.  Republican members of Congress are worried that the NRA will put them in their crosshairs and vote them out of office if they even dream of bringing a gun control measure to the floors of Congress.

Since Sandy Hook, there has been mass shooting after mass shooting after mass shooting.  Yet Congress has taken no action whatsoever to protect the people.  It is time, if necessary, to vote them out of office.  And it is time to revisit the current interpretation of the wording of the Second Amendment.

In the closing remarks of his Opinion of the Court, Justice Scalia said:
Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.
Justice Scalia was correct in stating that it was not the role of the Supreme Court to pronounce the Second Amendment extinct.  The amendment would have to be repealed by another constitutional amendment; eg. the Twenty-First Amendment was passed to repeal the Eighteenth Amendment.

But think about it for a minute.   Maybe the Second Amendment really is extinct....   From the adoption of the Constitution in 1789 to 2008,  the  interpretation of the Second Amendment was that it pertained solely to a well-regulated militia.  The citizen had an individual right to bear arms in order to fulfill his militia obligations.  Nowhere in the Second Amendment  was the phrase "and for self-defense"  included as a reason for the individual to bear arms.

And when you get down to it,  the creation of the National Guard in the early 1900s effectively made the Second Amendment extinct.  Individuals were no longer required to bear arms to fulfill their civic duties; the government provided the arms.

People do have a natural right––sometimes called a common law right––to bear arms for self-defense.  This right, however, is limited by laws enacted by federal, state, and local legislatures.  Laws, which in the judgement of the legislators, are required for life-saving or safety-related interests.   (Justice Breyer used those very words in italics in his dissenting opinion in District of Columbia v Heller).

The origin of the original law that brought about District of Columbia v Heller is worth revisiting.  Edward D. Jones III, a former FBI agent, wrote an article which appeared in the May 1981 issue of The Annals of the American Academy of Political and Social Science.  His article was titled, "The District of Columbia's 'Firearms Control Regulations Act of 1975': The Toughest Handgun Control Law in the United States –– Or Is It?"  His article is the primary source
for my information provided below:

In 1973, Congress passed the District of Columbia Home Rule Act, and President Richard Nixon signed the bill into law on December 24, 1973.  This law provided for a measure of home rule for the District of Columbia.  A Mayor would be elected and a Council of the District of Columbia would be elected. Congress, however, retained the authority to block any law passed by the D. C. Council.  Moreover, the Home Rule Act limited the legislative power of the Council in nine specific areas, including a four-year prohibition on the enactment of criminal laws.

On June 29, 1976, in an attempt to reduce the district's crime and save lives, the Council of the District of Columbia voted 12 to 1 to pass the Firearms Control Regulations Act of 1975.  This act restricted city residents from owning handguns that were not registered at the time the law was enacted.  Moreover, handguns that were not restricted by the law had to be kept unloaded and either disassembled or bound by a trigger lock or similar device.  Mayor Walter Washington signed the bill on July 23, 1976.  And then the bill went to Congress for a 30-legislative day review.  The Council claimed that this act was a revision of the district's police regulations, and not related to criminal laws,

Congress had several options:  It could declare the Firearms Control Regulations Act null and void by simply ruling it be a flagrant disregard of the four-year limitation on the enactment of criminal laws; it could pass a Resolution of Disapproval overturning the act; or it could take no action and the act would become law after the review period expired.

Consideration of handgun control legislation was a hot potato in 1976; it was an election year.  The Democrats controlled both the House and the Senate (66 seats in the Senate), but they were extremely mindful of placing any undue or unnecessary restrictions on firearms acquired for personal protection as stated in Section 101 of the Gun Control Act of 1968:

At the same time, the Democrats did not want to have to publicly disapprove a gun control measure that the District Council, in its judgment, believed was required for public safety.  So Congress attempted to punt! It passed an amendment to the District of Columbia Home Rule Act to extend the four-year prohibition on the Council's enactment of criminal laws another two years to 1979.  President Gerald Ford signed the bill into law on September 7, 1976.

Unfortunately,  the Library of Congress Congressional Research Service advised Congress afterwards that the amendment to the Home Rule Act had no legal effect on the District's Firearm Control Regulation Act:  The District's act had been enacted before the amendment was passed.  Moreover, the amendment did not contain a retroactive clause.   Consequently, Congress took no further action. It did not declare the act a violation of the prohibition on enacting criminal laws.  And it did not pass a Resolution of Disapproval.  The measure simply died in committee. And the act became law when the review period expired. has a copy of the Committee Hearing on the Firearms Control Regulations Act of 1975.   Committee members and witnesses provided  interesting viewpoints on the purpose of the Council's Firearm Control Regulations Act.

There's a Chronology of the act's passage in the pamphlet's appendix and I've posted it below.  Notice the Committee meetings postponed because no quorum was present?

A June 26, 2008 Washington Post article provides a History of the D. C. Gun Ban.  It would take 30 years, more congressional inaction, and several court cases, but the Firearms Control Regulation Act finally made it to the Supreme Court.  And you know the rest.

If you haven't already read it, now is the time to read Justice Scalia's Opinion of the Court in District of Columbia v Heller.  And go ahead and read the dissenting opinions.  Then think about all the mass shootings we have had.  Now tell me why the right to bear arms needs to be an untouchable right.

We, the People, need to hold our legislators' feet to the fire.  We need to demand that legislators enact laws that provide for the safety of our citizens, while allowing for the reasonable carrying and use of guns by law-abiding citizens.  And they need to do it now!

Wednesday, October 18, 2017

The Sad Proof Truth About My Your President

Donald Trump says he did not say to the wife of the fallen soldier:

"he knew what he signed up for."

Fox & Friends

But a Congresswoman who was in the car says different:

N.Y. Times

The woman who raised the fallen soldier heard those words too:


Who is disrespecting our soldiers and their families now?

You said it, Donald Trump: "Sad!"

Saturday, September 30, 2017

The Reckless Gamble in Our Electoral System

This post originally began as a review of a book by James Michener about our Electoral System.  But it is too timely not to copied verbatim from my Contemplations of Moibibliomaniac blog and posted here as well.

The results of the 2016 Presidential election were still weighing heavily on my mind when I first saw this book a few months ago. It was in the storage unit containing the remaining stock of books belonging to my friend George Spiero, who was finally retiring from the book business.   The first paragraph on the front flap of the dust jacket immediately attracted my attention:
   This book is essential reading for any United States citizen who wants to understand our present system of choosing a President and a Vice-President, the dangers inherent in it, and what urgently needs to be done to improve it.

James Michener wrote this book in 1969 after serving as an elector of the Pennsylvania Electoral College for the 1968 Presidential election between Richard Nixon, Hubert Humphrey and George Wallace.  Michener believed that Wallace would win the South and all its electoral votes.  And if neither Nixon or Humphrey attained 270 electoral votes, the election would go to the House of Representatives.  Or not.

Wallace had other ideas.  In what he called "a solemn covenant," Wallace intended to offer Nixon and Humphrey his electoral votes in exchange for certain concessions, one of which surely would be "abandonment of any type of civil rights legislation."

But Michener had an alternative plan.  If neither Nixon or Humphrey attained 270 electoral votes,  and if Humphrey won Pennsylvania, he was going to suggest to the other Pennsylvania delegates that they vote for Nixon instead, thus hopefully enabling Nixon to attain the 270 votes needed.

If, however, the Pennsylvania electoral votes weren't enough to make Nixon the President, the election would then have to go to the House.  But Michener was going to talk the New York delegation into casting their votes for Nelson Rockefeller, making him the third candidate to be considered by the House instead of Wallace.  And if necessary, Michener believed he could convince his Pennsylvania delegates to join the New York delegates in voting for Rockefeller. All these electoral concoctions, by the way, are perfectly legal under the Constitution.  But they surely would have been challenged in the Supreme Court, thus delaying the election of a President.

As it was, Richard Nixon won the 1968 election with 309 electoral votes, and what might have been never did happen.  But the fact that the electoral scenario could have happened so disturbed Michener that he researched the history of the Electoral System and wrote a book about it.  The book, btw, was reprinted by the Dial Press, an affiliate  of Penguin Random House, in 2014, 2015, and in 2016 before the last election.

If you think the Electoral College maneuverings were a mess,  the House system would have been a quagmire.  The three candidates with the highest electoral votes would have moved to the House.  And the House could have chosen anyone of the candidates to be the next President of the United States!  Each of the 50 states had but one vote.  And Michener points out a gross imbalance:  Alaska, Nevada, Wyoming, and Vermont, with a total population of 1,467,000, according to 1968 estimates, would have four votes in choosing the President, and would outvote California, New York, and Pennsylvania, with a population of more than 49 million, but with only three votes (27).

In his book,  Michener tells us about the genesis of the Electoral System and some its flaws that became apparent  as time went on.  The system, according to Michener, was a compromise between large states and small states.  One of the reasons the Founding Fathers had ruled out election solely by popular vote was because, as Eldridge Gerry of Massachusetts said, "The people are uninformed and would be led by a few designing men."  There would still be a "popular vote," but the President would be elected, not by the total of the popular vote but by the vote of men in the electoral vote process who were knowledgable of the credentials of the candidates.  Another reason (which Michener doesn't explicitly state in his book) that the Founding Fathers were against the popular vote was because smaller states were afraid that the larger states would elect their "favorite son."

Michener himself was involved in the election process in 1944 while stationed on Espiritu Santa, an island south of Guadalcanal.  His commander received a directive from President Roosevelt's office that a proper election was to be held, and his commander appointed Michener to organize the vote on the island.  Michener enlisted the aid of commercial artists and plastered the island with signs such as "Your Vote  Is Your Freedom.  Use It."  Prior to the election, a representative from Washington visited the island and observed the voting preparations.  The representative was visibly upset when he saw all the voting signs!  "We want everyone to have the right to vote," he explained slowly.  But we don't want them to vote."  He didn't believe that the military troops on the island knew enough about the issues or the candidates to render knowledgeable votes.  And he directed Michener to take down all the signs.  Afterwards, the representative expressed his political philosophy to Michener, ending with the following statement:

He concluded with a statement I have never forgotten.  'I believe totally in democracy but I want to see great crowds at the polls in only one condition.  When they are filled with blind fury at the mismanagement of the country and are determined to throw the bastards out.  For the rest of the time I think you leave politics to those of us who really care."

Of the Electoral Plan of our Founding Fathers, James Michener had this to say:
I am surprised that this group of keen politicians and social philosophers should have failed to anticipate the two rocks on which their plan would founder.  First, they did not foresee the rise of political parties or the way in which they would destroy the effectiveness of the electors.  Second, they did not guess that the election by the House would work so poorly.  This blindness on the part of the best leadership this nation has ever produced should give one pause if he thinks that in the next few years our current leadership will be able to come up with corrections that will end past abuses without introducing new.  There could well be unforeseen weaknesses in  our plans that would produce results just as unexpected as those which overtook the first great plan (72).                                                                                                                         
Michener went on to say that "men of high principle" no longer met to decide who should lead the country.  Instead, almost all of them voted the party line, with "winner take all."

Michener noted that  polls taken in the 1960s showed that the general public was in favor of direct popular voting: 1966-63%; 1967-65%; 1968, before the election-79%; 1968, after the election-81%.

There were three times, prior to the publication of Michener's book, when a candidate won the popular vote, yet lost the election: 1824, 1876 and 1888.  I will briefly address the 1876 election because it had the most radical effect on our nation.

Samuel J. Tilden was the Democratic candidate in the 1876 Presidential election.  And his Republican opponent was Rutherford B. Hayes.  Tilden won the popular vote by 251,746 votes, and reportedly won the electoral vote 204 to 165, with only 185 votes needed to win. But the Republicans questioned the validity of the electoral votes of four states:  Florida 4, Louisiana 8, South Carolina 7, and Oregon 1(Oregon had three votes, but two votes cast for Hayes were unopposed).  Two sets of electoral vote returns were submitted to Congress for each state, with some of the returns obviously fraudulent.  As an aside, I'm not surprised that Florida had something to do with a stolen election....
A divided Congress, with the House ruled by Democrats and the Senate by Republicans, could not agree on how to go about electing a President under these circumstances.  So they created an Electoral Commission consisting of members of the House, the Senate, and the Supreme Court. To make a long story short, the Democrats bungled the proceedings and the Commission chose Hayes to be the next President of the United States.  The House, however, which rightfully held its own election as per the Constitution, had declared Tilden to be the President, and was prepared to nullify the vote of the Electoral Commission.  But a compromise was reached:  Hayes would be recognized as the winner of the 1876 election.  In return, he would end Reconstruction governments in South Carolina and Louisiana and federal troops would be removed from all parts of the South.

This electoral compromise had a profound effect on the recent emancipation of the black population.  Southern states were once again permitted to rule themselves. And the South rose again, with the Ku Klux Klan putting the black man back in his place, and glorifying the efforts of Confederate generals with monuments heralding their place in Southern Society.

In his book, Michener offers four proposals on how to improve our electoral system:  the Automatic Plan, the District Plan, the Proportional Plan, and the Direct Popular Vote.  All four proposals would require  approval of a constitutional amendment: two-thirds of the House and Senate, and ratification by three-fourths of the States.

Under the Automatic Plan, the Electoral College would be abolished.  The electoral votes would be counted the same as usual but would be sent directly to the Senate.  Under several variations of the plan, House elections might be avoided.  A candidate could win with 40% of the Electoral Vote under one plan, and in a run-off election in another.

Under the District Plan,  the Electoral College would be retained.  The electoral votes would be awarded by the popular vote in each district. eg.  If a state had 38 districts, there would be 38 separate district electoral votes and not a winner-take-all electoral vote.  If no candidate obtained 270 electoral votes,   a joint session of Congress would elect the winner from the three top candidates.  All Congressional members would have one vote.

Under the Proportional Plan,  the Electoral College would be abolished.  Electoral votes would be allocated, not by the winner-take-all system, but by allocating the proportional vote gained by each candidate.  The winner would need 40% of the electoral votes, or a joint session of Congress would elect the winner from the top two candidates.

Under the Direct Popular Vote, the Electoral College would be abolished,  electoral votes would not be allocated, and election by the House would not be necessary.  The winner would be the candidate who won the most popular votes cast in the entire nation.

Michener provided appendixes displaying the relevant numbers for each electoral plan.  But his last paragraph regarding the procedures of the electoral process as of 1969 still holds true today, 48 years later:
They must be abolished.  They must be abolished now.  They must be abolished before they wreck our democracy.

Heaven help us.  The Electoral College was never abolished. And the winner of the 2016 Presidential Election is wrecking our democracy.

Donald J. Trump lost the popular vote by 2,865,075 votes, yet, by hook or by crook, he won the election because he had more electoral votes than Hillary Clinton.  Recent events show that he is not "draining the swamp," or guiding our country through his great leadership–the greatest ever–in his opinion.  Instead, he is making a mockery of the Presidency.

Yes.  Our Founding Fathers were wary of the majority choosing a "favorite son." But they were also wary of the actions of factions.

By a faction, I understand a number of citizens, whether amounting to a  majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent or aggregate interests of the community.
                     James Madison The Federalist No. 10
Trump's faction essentially hijacked the Republican Party. And by hook or by crook (Russian interference in our election, voter suppression, etc.),  it gained enough electoral votes to win the election.  One by one, Trump is tossing President Obama's achievements for the good of mankind out the window.  And he is mismanaging our government.
If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat the sinister views by regular vote.  It may clog the administration, it may convulse the society, but it will be unable to execute and mask its violence under the forms of the Constitution.

                        James Madison, The Federalist No. 10

Unfortunately, the present forms of the Constitution have allowed a minority to exert its will over the majority, and to elect a President who clogs the administration with unqualified members of his administration,  and who convulses the society every time he tweets.  And that is the least of it!

If Michener were alive today, he would say, "it is time to amend our Constitution."  And he would add,  "it is time to throw the bastards out!"