[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Strap yourselves in, because this is a long one.  But hey, Rule 5 is in effect!

So on March 20, Terry Jones, a pastor in Florida, burnt a Koran had a Koran burned after finding it guilty of being an evil book that promotes violence.  The burning of the Koran in condemnation for its alleged violence then prompted three days of rioting and several people killed since last Friday by people incapable of recognizing irony or the simple fact that they were making his point.  I thought that everyone would understand who was and was not responsible for that, but apparently not.

Now let me start by saying that any person who doesn’t burn a Koran and don’t want others to burn a Koran because they consider it rude and they are nice people and they don’t like to do that sort of thing, more power to you.  But everyone who says, “don’t burn the Koran because those nutty Muslims might kill people” are getting it profoundly wrong, starting with Joe Klein:

Jones has a right to burn the Koran. And Rick Warren has a right–no, more than a right: a moral responsibly–to blast Jones for the nitwit bigot he is, and to rally mainstream evangelicals against this profoundly disgusting, and extremely dangerous, act. Warren tries to stay out of the political spotlight and he is to be admired for that. But this is different and, as David Petraeus warned last time Jones threatened this sort of unChristian behavior, not just the lives of unarmed UN and other aid workers, but also of American troops, are at stake.

But there should be no confusion about this: Jones’s act was murderous as any suicide bomber’s. If there is a hell, he’s just guaranteed himself an afterlifetime membership.

And we had Harry Reid declare for some reason that there should maybe should be hearings on the matter:

We’ll– we’ll take a look at this, of course. John Kerry, the chairman of the Foreign Relations Committee, has been on top of this. He’s made many trips to Afghanistan.  And I think we’ll take a look at this as to whether we need hearings or not, I don’t know.

And in the same program Sen. Lindsay Graham said:

You know I wish we could find some way to– to– to hold people accountable. Free speech is a great idea but we’re in a war. During World War II, you had limits on what you could say if it would inspire the enemy. So burning a Koran is a terrible thing. But it doesn’t justify killing someone. Burning a bible would be a terrible thing but it doesn’t justify murder. But having said that, any time we can push back here in America against actions like this that put our troops at risk we ought to do it. So I look forward to working with Senator Kerry and Reid and others to condemn this, condemn violence all over the world based in the name of religion. But General Petraeus understands better than anybody else in America what happens when something like this is done in our country. And he was right to condemn it. And I think Congress would be right to reinforce what General Petraeus said.

Graham later doubled down:

I don’t believe that killing someone is an appropriate reaction to burning the Koran, the Bible, or anything else, like I said Sunday; but those who believe that free speech allows you to burn the flag, I disagree. Those who want free speech to allow you to go to a funeral and picket a family, and giving more misery to their lives than they have already suffered, I disagree. And if I could do something about behavior that puts our troops at risk, I would. But in this case, you probably can’t. It’s not about the Koran; it’s about putting our troops at risk. And I think all of us owe the troops the support we’re capable of giving.

So he doesn’t think he can ban it, but he would if he thought the law would let him.

The logic is very simple.  Everyone knew that if he did this thing that violence would erupt, therefore he is responsible for the violence, right?

Well, with surprising frequency, we can cite Abraham Lincoln as guidance as indeed he faced a very similar situation.  In 1860, long before he was the Republican nominee for President, he confronted fears that this union would break if the nation dared elect a Republican president, addressing his remarks to the South:

But you will not abide the election of a Republican president! In that supposed event, you say, you will destroy the Union; and then, you say, the great crime of having destroyed it will be upon us! That is [clever]. A highwayman holds a pistol to my ear, and mutters through his teeth, “[Give me your money], or I shall kill you, and then you will be a murderer!”

To be sure, what the robber demanded of me – my money – was my own; and I had a clear right to keep it; but it was no more my own than my vote is my own; and the threat of death to me, to extort my money, and the threat of destruction to the Union, to extort my vote, can scarcely be distinguished in principle.

(Old-timey slang replaced with modern language.)  The metaphor works perfectly.  What the robber demanded of Lincoln—his money—was his own and he had a clear right to keep it.  But it was no more his own than my God-given right to freedom of speech and freedom of religion is my own, and the threat of death to extort Lincoln’s money, and the threat of death to strangers to extort my silence, can scarcely be distinguished in principle.

A more thoughtful response, meanwhile, comes from James Taranto of the Wall St. Journal.  He confronted this excellent argument by Mollie Hemmingway:

Basically, no matter how short the skirt the girl’s wearing, she doesn’t deserve to be raped. I always thought it was also wise to dress modestly but that wasn’t the point. The point was that the rapist is responsible for the rape, not the victim or society.

Murdering people who have nothing to do with the Koran burning is another animal from rape entirely, but it is still surprising to me to see how the media suggests that the pastor who oversaw the Koran burning–Terry Jones–is responsible for murders he didn’t commit. . . . Clearly the media is focused on the “short skirt” angle to this case.

And this is how he responded:

There are two big problems with this analogy. First, burning a Koran is an offense against Muslims, just as burning an American flag is an offense against Americans. It is not merely imprudent but morally objectionable. That does not justify a violent reaction, but it does make the provocation different in kind from that of a rape victim’s wearing a short skirt. A better analogy might be to an adulterous wife who is murdered by her cuckolded husband. He is guilty of a serious crime, but it is also true that she wronged him.

I’ll get to the second difference in a moment, but let’s tear apart that first one.  James, in case you haven’t been paying attention for the last…  thirty years, everything is an offense against radical Muslims.  This is an offense:

So is this:

Indeed, even this is:

So does drinking.  So does seeing eye dogs.  So does Piglet.  Indeed, opposing laws that would impose death for blasphemy apparently can result in death.  In case you missed it, for the radicals, it’s the religion of perpetual outrage and offense.  Everything pisses them off, James, including you, me, and anyone else not being a Muslim.

The fact is Terry Jones didn’t hurt a soul.  No actual people were burnt along with that Koran, unlike the girls in a Saudi school who burned to death because they were not allowed to leave the building in an “indecent” state.  And to assign blame to Jones, validates their psychosis.  They are told that not only is this considered normal behavior, but it gets results.  Not that they are likely to know or care about what you or I say, but they are likely to notice Senators Reid and Graham.

And that brings me to James the second point:

Second, Terry Jones is not a victim. He is safe in Florida; the people who were killed in retaliation for his offense–including, according to Agence France-Presse, “four Nepalese, one Swedish, one Norwegian and one Romanian worker”–had nothing to do with it.

Okay, then James, you have to tell us that you believe in socialism.  Or the kitten gets it:

(more…)

On accident:

Hahahahahahahahahahahaha.

Via William Jacobson.

This was pretty much a done deal a year ago, but now it is fully official:

Attorney General Eric Holder today will announce that self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammad will be tried in a military commission, the CBS News Investigative Unit has learned. A source says the commission will be held at the Guantanamo Bay prison.

Via Hot Air.

Since the Administration has always based this decision on politics and not the law, I guess they have come to see that politics demands this. The fact that it is the proper venue anyway is secondary.

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

You might remember a statement from Obama that I labeled this The Most Offensive Line in the State of the Union:

The bipartisan Fiscal Commission I created last year made this crystal clear. I don’t agree with all their proposals, but they made important progress. And their conclusion is that the only way to tackle our deficit is to cut excessive spending wherever we find it – in domestic spending, defense spending, health care spending, and spending through tax breaks and loopholes.

(emphasis added.)  And I had this reaction at the time:

You got that?  When you are allowed to keep your money, that is considered “spending” by the Federal Government.  Because in reality all of the fruits of your labor belong to us, the government.

And prior to that the Ninth Circuit tried to codify this principle into law in Arizona Christian School Tuition Organization v. Winn.  I ignored the “all your money is belong to us” angle to the story, but Althouse dragged it out a bit, asking “[i]f the government gives tax credits for donations that may go to religion, is that essentially the same as government spending on religion.”  I, on the other hand, pointed out that even if Judge Reinhardt and the 9th Circuit were right on that question (big if), and we treat this as a government expenditure, it’s still basically the same issue as a voucher, which has already been declared constitutional.

Well, today the Supreme Court announced its decision in that case and interestingly enough, they kept the issue to standing only and specifically stated that allowing people to keep more of their own money in taxes is not the same as spending:

It is easy to see that tax credits  and governmental expenditures can have similar  economic consequences, at least for beneficiaries whose tax liability is sufficiently  large to take full advantage of the credit.  Yet tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities….  The distinction between governmental expenditures and tax credits refutes respondents’ assertion of standing. When Arizona taxpayers choose to contribute to STOs, they spend their own money, not money the State has collected from respondents or from other taxpayers.

And of course, shock of shocks, the four horsepersons of the left disagreed:

The majority reaches a contrary decision by distinguishing between two methods of financing religion: A taxpayer has standing to challenge state subsidies to religion, the Court announces, when the mechanism used is an appropriation, but not when the mechanism is a  targeted tax break, otherwise called a “tax expenditure.”¹

And that footnote reference at the end leads here:

¹“Tax expenditures” are monetary subsidies the government bestows on particular  individuals or organizations by granting them preferential tax treatment.   The co-chairmen of the National  Commission on Fiscal Responsibility and Reform recently referred to these tax breaks as “the various deductions, credits and loopholes that are just spending by another name.”  Washington Post, Feb. 20, 2011, p. A19, col. 3; see also 2 U. S. C. §622(3) (defining “tax expenditures,” for purposes of the Federal Government’s budgetary process, as “those  revenue losses attributable to provisions of the . . . tax laws which allow a special exclusion, exemption, or deduction from gross income or which provide a special credit, a preferential rate of tax, or a deferral of tax liability”) S. Surrey & P. McDaniel, Tax Expenditures 3 (1985) (explaining that tax expenditures “represent government spending for favored activities or groups, effected through the tax system rather than through direct grants, loans, or other forms of government assistance”).

Thankfully that reasoning was rejected.  But besides the smile of schadenfruede that this opinion brings, it occurs to me that in reading our tea leaves on Obamacare that this might be a sign.  There is a metaphorical similarity between arguing that the government allowing you to keep your money is the same as the government giving you money, and saying that refusing to engage in economic activity is economic activity.  Of course nothing can be set in stone, but it seems that Justice Kennedy, who wrote the majority opinion, is rejecting these attempts to manipulate the language to a fit a totalizing trend.

[Posted and authored by Aaron Worthing.]

One of the great things about the Internet is that a blogger with a decent-sized audience can tap the collective wisdom of his readers. This is important because, no matter how smart a blogger thinks he is, collectively, his readers are smarter.

Meaning that, if you’re willing to listen, you can learn something.

In the last 24 hours I learned from my commenters that I have been hoodwinked regarding the constitutionality of a recent bill passed by House Republicans.

Yesterday I engaged in a no-holds-barred rant about the bill, declaring the following language clearly unconstitutional — and anyone who disagreed a moron or a dishonest blind partisan (!):

If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011, the provisions of H.R. 1, as passed by the House on February 19, 2011, are hereby enacted into law.

My problem with it was that I thought it purported to enact a law without the participation of the Senate or President. Any bill that purports to do that would, of course, be blatantly unconstitutional. And so I ranted and raved about the 221 House Republicans who voted (or so I claimed) for a bill that says the House can make a law on its own, without its being passed by the Senate or signed by the president.

The only problem is, as pointed out by my commenter Milhouse, it actually doesn’t say that.

When Milhouse pointed that out, I went through a three-step stage in reaction:

1. NONSENSE!
2. Hmmmmm…
3. I think you’re right.

Given my initial total contempt for the maneuver I believed was being pulled, it was hard for me to get to Step 3. But I’m there, with the help of Milhouse and others.

Here is the best way I can explain it. We all know that, absent a veto override, a bill must be passed by the House and Senate and signed by the president to become law.* But the final language must read as though it is a law — because, once it goes through the process, it will be. So there is nothing odd at all about a bill having language to the effect “is hereby enacted into law.”

Once you realize that, the next step is to realize that a second bill can incorporate an earlier one by reference — which, when you read this bill closely, is what seems to be happening here (“the provisions of H.R. 1, as passed by the House on February 19, 2011, are hereby enacted into law”).

But has the House ever tried to incorporate another bill by reference and claim it is “hereby enacted into law”? As it turns out, the answer to that question is a resounding “yes.” It has happened — quite often. Confirming this is an excellent blog post by another insightful commenter, MI, who has gathered no fewer than 13 examples. Here are a couple:

There is hereby enacted into law H.R. 3750, as introduced in the House of Representatives on December 11, 1987.

And:

Section 423 of H.R. 1361, as passed the House of Representatives on May 9, 1995, is hereby enacted into law.

Huh.

MI supplements that post with a comment that sets forth case law that authorizes incorporation by reference using the “hereby enacted into law” language:

The “hereby enacted into law” language has been deemed permissible under the Presentment Clause. See Hershey Foods Corp. v. USDA, 158 F. Supp. 2d 37, 41 (D.D.C. 2001) (“Congress may incorporate by cross-reference in its bills if it chooses to legislate in that manner. Nothing in the Presentment Clause, or elsewhere in the Constitution, demands otherwise.”), aff’d, 293 F.3d 520 (D.C. Cir. 2002). More generally, as noted in a recent GAO letter report, “[l]egislative incorporation by reference is well founded historically and the Supreme Court has accepted it as a legislative tool without objection.” U.S. GOV’T ACCOUNTABILITY OFFICE, B-316010, CONSOLIDATED APPROPRIATIONS ACT, 2008—INCORPORATION BY REFERENCE 9 (2008).

But, but, but … they said the Senate doesn’t have to vote and the president doesn’t have to sign! Except, as Milhouse points out, they didn’t. There is no specific provision in this bill that says the roles of the Senate and president are to be discarded. The only basis for saying this is that “hereby enacted into law” language — language that, again, is commonly used in bills — and which makes sense if you view this as a bill incorporating another bill, whose provisions will indeed be enacted into law if the Senate approves the bill and the president signs it.

Milhouse’s killer point, I think, is this: the bill opens with the traditional language of every bill: “Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled.” That sounds like a bill whose language requires it to follow the normal process to be enacted into law.

Another objection I initially had was shared by Beldar: why re-enact H.R. 1 when it was already enacted? Isn’t Congress assumed not to engage in superfluous acts? And what is the deal with this deadline triggering the bill?

Milhouse had good responses, I thought, in the comments to my previous post. As a political body, the House may have decided to say: if the Senate does not come up with a counter-proposal by a certain date, we are resubmitting our budget. Just to make it crystal clear that WE want to see a budget passed.

Milhouse is right. The House can do that.

Beldar wrote a couple of posts, here and here, arguing that the floor debate shows many Democrats raising the objection I initially raised, that the bill purports to make law without the assent of the Senate and president. Beldar says that, in his view, Republicans did not persuasively rebut these arguments. Beldar put a lot of time into those posts, and they make for interesting reading. After fully considering Beldar’s posts, I have two responses.

First, as quoted at Beldar’s second link, one of the Congressmen did make the exact point that Milhouse and others made here:

There is no deeming in this bill. This bill says one thing and one thing only about H.R. 1, and that is, that if the Senate cannot act, we are going to give the Senate some cover. If the Senate doesn’t want to commit to H.R. 1 for the remainder of the year, we give them the opportunity to incorporate the language of H.R. 1 into this bill, send it to the President’s desk for his signature, make it the law of the land, while we continue to work to sort out our budget differences.

Look at what he is saying. The Senate will still have to pass this bill. The president will still have to sign it. There is nothing unconstitutional about that.

Beldar complains that the same Congressman mushes up the clarity of this point with other confusing language. Maybe so . . . but that leads me to my second and more important point.

More fundamentally, the constitutionality of the bill cannot depend upon the persuasiveness of the arguments made in floor debates. In fact, as I have argued before, floor debates (and other extrinsic evidence) revealing the subjective intent of legislators cannot be properly used to determine the meaning of a law. I subscribe to Justice Scalia’s view that all such extrinsic evidence must be entirely discounted, leaving the proper interpretation of a law to an analysis of the text, and what that text would mean to a reasonable audience. The subjective intent of any legislator or group of legislators cannot decide the proper interpretation of a law unless that intent is made manifest in the text of the law. Anything else is the rule of man and not the rule of law.

I realize that the above analysis in support of the constitutionality of this bill looks like desperate spinning at first blush. All I can say is: that’s what I thought too. This bill confused a number of lawyers — me, Beldar, and others — I think in part because of the unusual triggering language. Even with my new understanding of the bill, it is difficult to interpret what it says.

Difficult, but not impossible.

So, in less than 24 hours, I have done a complete 180-degree spin in how I view this bill. I retract my previous comments about the Republicans who voted for it, and apologize to them. I thank Milhouse and MI (and others) for their thoughtful analyses — and Beldar for all his thoughtful work and argument, whether he ultimately agrees with me or not. (I admit to being very interested to know whether he will!)

I will also be sending this post to those who shared my previous position — Ed Morrissey, Simon Dodd, and Jonathan Adler at Volokh — to see if I can convince them that my current reading is correct.

SUCCESS! KIND OF: Adler updates to say I have made a strong case for the bill’s constitutionality. He now seems to take issue only with the wisdom of the measure.

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Obama has his first real campaign ad out today and… well, let’s watch it and discuss:

Oy, that is weak.  For starters, they begin with shots of small town America, which immediately makes me remember that “bitter clingers” comment.  Then we have one person saying to get Obama reelected we have to talk about the changes we have made.  You know, like unemployment that kept “unexpectedly” rising.  Debt and deficit numbers which also unexpectedly rose, with little to show for it.  A health care law that no one wanted and is likely to be declared unconstitutional.  And we are no longer in two wars.  We are in three!  Including one which the President willfully violated his oath of office in starting.  Change!

And then we get the young kid talking about hope.  Except the word really, isn’t hope.  It’s wishful thinking.  Seriously read the link, read Stephen Den Beste’s argument and then ask yourself how it applies.  It certainly does to our foreign policy under this President.  He said Gdaffy must go, but he has no idea how to make it happen.  It’s the Underpants Gnome theory of warfare:

Step 1: Enforce a No-Fly Zone

Step 2: ?

Step 3: Regime Change!

He obviously thought that if he called for Gdaffy to step down it would pretty much happen on its own.

And then finally you get the guy in the ad saying he doesn’t agree with everything Obama has said and done, but he respects and trusts the man.  Which has to be the most maddening part of the ad.  Now, first, I didn’t see any part of the ad claiming that these were not paid actors, so I presume that this line was written by an someone else.  And even if he said this honestly and spontaneously, this is not raw video.  They edited this to choose the best messages.  And this is the best message, in their minds. Sure, you don’t agree with the guy, but just put that aside and trust the man.  Don’t think for yourself, or at least let your own opinions change how you will vote.  Just vote for the guy.

Does that even make sense in the context of reelection?  That, according to this man, there is no one the GOP could nominate that he would respect and trust more than the President, who might even agree with him more often?  It is an open pitch for slavish following, and unsuited for the leader of a free republic.

It’s only the first salvo, I know, but oy vey, that is weak.

[Posted and authored by Aaron Worthing.]

[Guest post by Lee Stranahan]

The Huffington Post has an ominous headline about 10 American industries that are dying. (This shows that the ominous headline industry is doing just fine, but I digress.)

It’s a simple enough piece, but I think it demonstrates the poor thinking in politically motivated business writing that will actually help to prolong our countries economic problems. The short article starts with a paragraph that seems innocuous. It’s almost a cookie-cutter of what passes for mainstream conventional wisdom in business journalism articles.

The recession has caused the failure of some formidable companies, Lehman Brothers and Circuit City among them. Not only individual businesses have suffered, however. The economic woes of the last decade have preyed upon entire industries.

This is just fundamentally bad analysis. It’s a doom and gloom business scenario that plays into some people’s political agendas but is factually false. Let’s break down that paragraph to see how many untruths Huffington Post’s Harry Bradford was able to pack into one paragraph because it’s actually kind of impressive.

It begins by blaming the recession for the failure of Lehman Brothers and Circuit City; Lehman’s problem was being overleveraged, not "recession". Arguably, it caused the recession. Circuit City’s problem was a convoluted checkout process that made it much easier to shop at places like Best Buy or Amazon.com or any of a dozen other online high-tech retailers.

So both examples in the first sentence are wrong and that’s just the set up.

The payoff is that the entire industries are on the verge of collapse due to “economic woes.” As Count Floyd used to say, "Scary stuff, kids!" But looking at the actual list is revealing.

Of the ten "dying industries" on the list, six and a half of them are related to communications and media. The six that are directly related are video postproduction, DVD game and video rental, newspaper publishing, wired telecommunications carriers, photofinishing, and record stores. The one that is half related is the milling industry, which includes paper mills which relate to physical packaging and production of items like newspapers, photographs and CDs.

Looking at that list my first thought is “good riddance.” There’s not a single item in there that hasn’t been replaced by something that gives consumers a lot more choice, much better options and a significantly improved the vetting process.

And that’s what did these industries in – progress and competition. Not one of them was killed by economic woes. For example, take an area that I’ve worked in professionally; video postproduction. Just 10 years ago – about halfway through the digital video revolution – the process of editing video, creating titles and graphics, and adding animation was still out of reach for the average person. Today, any $500 computer is fast enough to do video editing and the software has gotten inexpensive and relatively easy to use.

Practically, that meant that 10 years ago if you wanted to get the word out about your product or service or opinion through video… you really couldn’t do it without spending a few thousand dollars and working with other people. Today… well, you know. Regular people can see an event unfold and get information or a :30 second commercial up on YouTube is available to the world in a matter of minutes.

So while the video postproduction industry is dying, more people than ever can do video postproduction.

And running down the rest of the list, you find similar leaps and bounds that caused these industries not to die exactly but to morph, change and advance into something new and better. Except in many cases what was lost was "jobs."

And jobs are an issue. The problem is that backwards economic analysis is a poor starting place to solve the job problem. Flawed thought like this implies that once the economic woes are over and recovery happens, that somehow those industries might come back from the dead and then the jobs well reappear as well.

And that’s not going to happen for the same reason the jobs in the buggy whip industry won’t be returning. Those industries I mentioned aren’t in a slowdown, they are gone forever because they’ve been replaced with something better.

So when is any politician going to start dealing with that reality?

Let me add one thing here that I didn’t put on my blog post to my own site LeeStranahan.com. Today is April 4^th. the anniversary of Martin Luther King’s assassination. Across the country, it’s been commemorated with union rallies based on the battle in Wisconsin over collective bargaining rights for public service sector employees.

I’m not antiunion but I view this as a tremendous use of time energy and resources that only distracts from the actual issue about how the digital computing revolution has fundamentally changed certain industries. One of the industries that this affected most is education, where the abject failure of our educational system is on full display. I don’t believe this is just the public school system; the whole structure from kindergarten to college has fundamental structural flaws because it was designed for an entirely different economy.

Here’s another section of my interview with best-selling author Seth Godin that discusses some of these educational issues.

So when I see the hubbub about public school teachers and what percentage of their pension they should or should not be paying, I think it entirely misses the point about how that entire institutions foundation no longer make sense. It’s a loud drum circle version of rearranging deck chairs on the Titanic.

– Lee Stranahan