THE DONALD AND THE FRANCIS

If Donald Trump laps the field in South Carolina, he will have Pope Francis to thank. On the very eve of the debate in the Palmetto State, the Pontiff opined that it is better to build bridges than walls, and that people who are obsessed with building walls aren’t very Christian.

Bingo! The Donald is in command of another news cycle.

I have no doubt that Phil Pullella, the Reuters reporter who asked Pope Francis the question that started the fuss, was hell bent on hurting the Trump campaign. Here is what he tweeted:

“POPE SAYS U.S. PRESIDENTIAL CANDIDATE TRUMP IS "NOT CHRISTIAN" BECAUSE OF HIS VIEWS ON IMMIGRATION”  Bit of an exaggeration, I’d say.

Here is the transcript of the interview:

Phil Pullella, Reuters: Today, you spoke very eloquently about the problems of immigration. On the other side of the border, there is a very tough electoral battle. One of the candidates for the White House, Republican Donald Trump, in an interview recently said that you are a political man and he even said that you are a pawn, an instrument of the Mexican government for migration politics. Trump said that if he’s elected, he wants to build 2,500 kilometers of wall along the border. He wants to deport 11 million illegal immigrants, separating families, etcetera. I would like to ask you, what do you think of these accusations against you and if a North American Catholic can vote for a person like this?

Pope Francis: Thank God he said I was a politician because Aristotle defined the human person as 'animal politicus.' At least I am a human person. As to whether I am a pawn, well, maybe, I don't know. I'll leave that up to your judgment and that of the people. And then, a person who thinks only about building walls, wherever they may be, and not building bridges, is not Christian. This is not in the Gospel. As far as what you said about whether I would advise to vote or not to vote, I am not going to get involved in that. I say only that this man is not Christian if he has said things like that. We must see if he said things in that way and in this I give the benefit of the doubt.

I wrote a blog about Mr. Trump’s wall last September. I said that walls are for prisons and dictators. Obviously, we are talking here about images, not real walls. My house has walls and so does my church. They’re good things. They hold up the roof.

The issue here is the symbolism of walls. A wall suggests separation. A wall divides the ins from the outs. As a symbol, a wall is the exact opposite of the symbolism associated with the Statue of Liberty.

The political impact of a wall between the U.S. and Mexico is to convince the people who are concerned about illegal immigration that the candidate who wants to build a wall really wants to keep illegal immigrants out of the country.

Whether a wall would actually keep many people out is doubtful. Ladders are cheaper than  bulldozers, and tunnels are easier to build than walls. Human ingenuity being what it is, where there is a will, there is a way. The Berlin wall didn’t keep everyone in East Germany, even when bolstered by machine guns.

And there are lots of people on this side of the border who welcome the illegals; help them, house them, hire them. 

From a political standpoint, it doesn’t matter. By the time the wall is built and experience tells us it doesn’t work, the folks who got elected by promising to build it will have retired.

PARADOX

The great paradox of American politics is this: why does Congress enjoy a mere eight percent approval rating by the American people, and yet almost all members of Congress are repeatedly reelected? Putting it another way, why do people who are adamantly opposed to career politicians regard seniority in Congress as a reason to vote for an incumbent?

In 1992, columnist George Will wrote a book entitled “Restoration.” It was and is a forceful argument for term limits.

His first proposition is generic. He argues that Congress has a bad image and that term limits would make it more popular. That may be true to an extent. Congress doesn’t want term limits and if the public somehow rises up and forces them to accept term limits, there would surely be, for a while at least, a general public sentiment that the tiger has been tamed and the miscreants brought to account.

But what really would be changed?

A principal complaint against career politicians is that they get too cozy with lobbyists. The fact is that political campaigns cost money. Lots of money. Members of Congress are continually in fund raising mode. The people who are most likely to support an incumbent financially are those whose economic interests are affected by what the member does or does not do.

The plain truth is that there is a river of dollars flowing from K Street, where  many lobbyists have their offices, to the nation’s capital. The plain truth is that the longer a Member serves, the more seniority he or she has, the greater their ‘clout’ and the easier it is to raise money.

That river, and the corruption of representative government it carries, is a very real failing of our current system. Its tributaries feed the spirit of partisanship, foster the expansion of bureaucracy, and irrigate a vast field of omnibus legislation replete with subsidies, exemptions, and exclusions that are the price of campaign support.

But I would like to ask George Will this question: What will Congressional term limits do about it? Obviously, a term limited Congressman will not be raising money for reelection during his last term; but he or she may very well be raising money to run for another office, so the K Street River may well continue to flow into his campaign fund.

Certainly the term limited politician will have to be looking for a safe harbor somewhere. Will he or she apply to corporations that have been benefitted by their efforts in Congress? When you are looking for a job, it’s nice to have friends.

And what exactly do you suppose the corporate interests will do about the Congressional seat that is about to be vacated due to term limits? Obviously, they will be looking for a replacement, who, having been recruited and financed by the client, will happily take over just where their predecessor left off.

And then what? The new term limited Member immediately begins paddling down the K Street River. Nothing has changed. The new office holder will immediately begin raising money for his or her re-election.

The fact that term limits force a turn over in Congressional office is undeniable and is generally a good thing. But I have compared it to taking cough drops to treat lung cancer.

The real cause of the K Street River is the size of the Congressional districts. The Constitution provides that Representatives shall be apportioned among the States according to their respective numbers. The Founders expected that the House of Representatives would grow with the country. It hasn’t.

The Congress has frozen the size of the House at 435 people. The result is that every ten years the constituencies get larger. Members of Congress now represent an average of nearly a million people. Which is why campaigns are expensive. Which is why challengers have so much difficulty unseating incumbents.

Nothing is more preposterous or indefensible than the idea that the number of representatives to which the American people are entitled is limited by the size of the chamber or the number of desks we have. Modern technology makes communication simple. There is no reason why representatives have to gather in one room. 

More than term limits, we need a bigger House of Representatives.

SCALIA VACANCY: TIME TO FIX THE SYSTEM

As the nation mourns the passing of Antonin Scalia, the senior Justice on the United States Supreme Court, the people of our great nation are poised to witness the sorry effect of one of the greatest flaws in our sacred Constitution.

Article 2 of the United States Constitution provides that the President shall nominate, and with the Advice and Consent of the Senate, shall appoint Judges of the Supreme Court.

Republicans are already hollering that President Obama should not nominate a successor to Justice Scalia, but should leave it to the next President to fill the vacancy.

And, guess what, Democrats are urging and expecting the President to get on with his duty to fill the vacancy post haste.

Everybody knows what is at stake. Scalia was the leader of the conservative wing of the Court, which in recent years, has been able to muster a tenuous majority.

I doubt that any of the Founders of our nation had any idea how partisan the Supreme Court would become, or how the dichotomy between activist and traditionalist decision making would define the work of the Justices.

Because the Court has become such a significant player in the establishment of national public policy, its role is now widely understood to be political. What the Constitution describes as judicial power is now raw political power, and because it is, there will be a prolonged, nasty, partisan political battle over the appointment of Justice Scalia’s successor.

I was an admirer of Justice Scalia. I agreed with his philosophy and with most of his opinions. I grieve for our nation at his death, and I would certainly prefer to see another jurist of his bent seated in his chair.

But I don’t like or approve of what I think is about to happen. I smell a nasty battle already brewing in the United States Senate. It is the sworn duty of the President of the United States to nominate a candidate to succeed Justice Scalia. And the Republican controlled Senate is poised to pounce on whoever he sends.

I know he will nominate a liberal. We all know it. That’s his philosophy and that’s his prerogative. I don’t like it. I don’t think Justices of the Supreme Court should be political appointments chosen to advance the agenda of the Presidents who appoint them.

But that is what our system permits, and that is what Presidents of both parties do. And that is what controls the decision of the Senate as they go about the sticky business of advising and consenting.

It’s all politics. Partisan politics. It does no honor to the memory of Justice Scalia or to the history and prestige of the Supreme Court, but the morning line will give long odds that the confirmation process will not hang fire until 2017.

That means the third branch of our federal government will be effectively shut down for eleven months.

It doesn’t have to be that way. It shouldn’t be that way. Our constitution should provide a method of non partisan nomination of Supreme Court Justices. Senator Sam Ervin of North Carolina – a Democrat, by the way – advanced the proposition that Supreme Court Justices should be appointed from a list of nominees presented by the Chief Justices of the fifty State Supreme Courts.

The Congress isn’t about to provide for a non partisan court. They are all partisans, and their partisanship trumps their citizenship every time. Even when the other guys are in the majority, the partisans on the short side of the aisle salivate about some day having their turn to rule the roost.

Of course, there is nothing to prevent the President of the United States from inviting the fifty State Chief Justices to suggest a panel of nominees for his consideration in filling the Scalia vacancy.

Barack Obama could do that with one phone call and assure himself of a favorable legacy by setting a precedent of non partisan appointments to the high court. They might even send him a name that Justice Kagan would applaud.

RUN AWAY, SCHMUN AWAY

Now that the Brennan Center and the John Birch Society have joined to wring their hands in terror over the possibility of an Article V Amendatory Constitutional Convention, it appears that the danger of a “Run Away” convention rivals the specter of an ISIS invasion on the list of horrors that should be keeping us all awake at night.

We are invited, nay, encouraged, to fret over the possibility that the ’special interests’ the super PACs, Wall Street and whatever other political bugaboo lights your worry lamp will surely take over the convention and use the occasion to wipe out what little may remain of our treasured life, liberty and pursuit of happiness.

The truly sad part of all this is the fact that a good many intelligent and well meaning Americans, despite being convinced of the need for sundry constitutional reforms, are persuaded that the convention opponents are right, and so they whittle down their convention demands to accommodate the nay sayers.

What we have then – unhappily-- is a bevy of busy activists scurrying about, trying to sell the state legislatures on a smorgasbord of one issue petitions.

The strangest thing of all is the fact that these good people, although they are competing for a convention, have eschewed the rhetoric of competitors and have adopted the argument that what America really needs is not a convention to propose amendments (in the plural, as written in the constitution)  but a whole series of conventions, each one charged with proposing one and only one amendment.

I have to confess that they do compete in one respect. They each have a plan to protect the American people from the admittedly real, however remote, possibility that even their ‘one issue’ assembly might, just possibly, get out of hand, and try to accomplish more good work than the proponents wanted.

It is possible. Even a one issue, one amendment, one day, one vote, ‘quickie’ convention might just go bananas and start trying to fix the whole government. A convention is, after all, a room full of people – human beings – and we all know how unpredictable human beings can be.

So now we have state legislatures, even before there is any probability of a convention in the near term, adopting complex, punitive statutes threatening convention delegates with imprisonment if they commit the crime of actually deliberating in common with other delegates.

The argument advanced by amendment proponents in the state capitals is that the state legislatures, in petitioning for a convention, actually control the whole convention process. They argue that the states founded the nation, the states adopted the constitution and the states are in charge of amending it.

Wrong. The states didn’t adopt the constitution. The people did. Certainly, the people who wrote and adopted the constitution were the people of the States. Until the constitution was adopted, there were no “people of the United States of America.” But once the constitution was ratified, the people of the States became ALSO,  the people of the United States of America.

That’s what dual sovereignty, dual citizenship entails. We are the people of Texas, and Tennessee, Kansas and Kentucky, but we are also the people of the United States of America. 

An Article V convention must represent the people of each State and the people of the United States. If it truly does, the people are not going to run away from themselves.

BRENNAN V BRENNAN

In 1970, when I was Chief Justice of Michigan, I met President Richard Nixon at a seminar in Colorado. He looked at my name tag, and asked me if I was related to Mr. Justice William Brennan of the United States Supreme Court.

“No, Mr. President,” I answered. “I am not related to Justice Brennan by consanguinity, affinity or philosophy.” Nixon gave me a warm handshake and a big smile.

William J. Brennan was an effective leader of the activist, progressive wing of the nation’s highest court. After he died, his devotees created the Brennan Center for Justice at New York University. The Center is an avowed advocate of judicial activism. Its web site says it this way:

“we lead an ambitious new initiative to develop and articulate a compelling progressive jurisprudence for the 21st century”. 

Furthering this goal, the Brennan Center has joined with Common Cause, and several other activist and progressive organizations to rail against the idea of an Article V Amendatory Constitutional Convention.

Like their antithesis at the other end of the political spectrum, the John Birch Society and The Eagle Forum, the Brennan Center and their liberal cohorts paint a scary picture of a dictatorial cadre of constitutional spoilers hell bent on depriving Americans of their God given and constitutionally recognized rights.   

So there it is. Both sides of the aisle. All the opinion makers, the think tankers, the Rightees and the Leftees. They all love our wonderful constitution. They call it sacred. They honor it. The support it, Nay, they literally worship the paper it is written on.

All except Article V. All except the notion of letting the people of the United States, who wrote and ratified the Constitution, assemble in convention and propose amendments.

The people are not to be trusted, they say. Shop keepers, truck drivers, housewives, students, for heaven’s sake, what do they know about the principles and powers of government which “to them shall seem most likely to effect their safety and happiness” as Thomas Jefferson wrote.

They insist that the Declaration of Independence and the Constitution, were written by giants, prophets, geniuses, saints, and they claim that there is no one living today smart enough, good enough, wise enough, prescient enough to even discuss amending the constitution, much less actually propose an amendment. 

The ramrod argument of the nay sayers always comes down to something like this: The constitution doesn’t tell us how the convention is to be organized. Who will be the delegates? How will they be chosen? Who will make the convention rules? Who will decide on the agenda?

And that always leads to criticism of the various initiatives seeking to get Congress to call a convention. Who are they? Who’s really behind it? What are they up to? Which, of course, then segues over to a chorus of insinuations, speculations and accusations.

Politics as usual.

In the midst of it all, I confess to being the lesser Justice Brennan, neither conservative nor liberal. Just an old fashioned American populist who believes that a free people are competent to govern themselves, and that our Constitution is the Peoples Charter. The people wrote it and adopted it. The people are competent to amend it.

Which is why I founded Convention USA. Which Is why I have spent countless hours and dollars creating a real live, honest-to-God assembly of representatives of the American People on the Internet. Six thousand one hundred sixty-six delegates, one for every 50,000 people in the nation, drawn from every county in the fifty states and chosen in non partisan elections.
The establishment folks, the professional, academic, political, corporate and organizational elite can ignore us. They can ridicule and they can laugh. But they can’t stop patriotic citizens from registering as delegates at:

www.conventionusa.org

TAXES AND DEATH

They say that the only two certainties are taxes and death. You know you are still alive when you file the annual return with the Internal Revenue Service.

An encouraging thought at my age. Couple years ago, a friend put me on to TurboTax. Used to be I would spread cancelled checks, receipts, tax forms and yellow legal pads all over the dining room table and ensconce myself in a chair for a fortnight to determine how much I owed to Uncle Sam.

Turbo Tax condenses all of that into a tidy session in front of the computer.

All of which leaves me time enough to contemplate the meaning of taxation and how it fits into our beloved system of constitutional governance.

The United States of America is the only nation on the planet which boasts – or tolerates – dual sovereignty and dual citizenship. We are citizens of states and citizens of a nation. Both entities are sovereign.

Sovereignty is a rather simple concept. It means complete power over a place including, of course, the power to tax. Taxation, at the bottom, is nothing more nor less that stealing. The government takes money from the people, if need be, at the point of a gun or under penalty of incarceration.

Since we Americans are subject to two sovereignties – state and national – the question arises whether both governments have full and absolute power to tax us.

It’s a question many of us ask – rhetorically at least – every year: is there any limit to taxation? Is there such a thing as a maximum tax, or a limit beyond which government cannot reach the property of the citizens?

It seems to me that in a republic, the answer to that question is ‘yes.’ There is a limit to taxation. It is not spelled out in the constitution, nor can it be defined in mathematical terms. It is rather, a function of politics. Taxation is limited by the consent, or tolerance of the governed.

At the far end, excessive taxation results in civil disobedience, revolt and ultimately revolution. In the normal course, however, the sovereign authority of the people is expressed at the ballot box.

From which I think it fair to conclude that, in light of continuing deficit spending and increased borrowing by the national government, the income tax rates currently in place represent the maximum tax rates which will be tolerated by the citizenry.

Which is to say that 39.6% is theoretically as big a bite as government can take.

How then, are we to factor in the state income tax? If we just add the state tax to the federal tax, obviously the effective rate is higher than 39.6%.

Of course, under our current law, state income taxes are deducible from the income which is taxed by the federal government, so the federal tax is reduced by the federal tax on the amount of the state tax.

This is a delicious mathematical puzzle to roll around in your head. If you suppose that both the federal and the state governments impose a 100% tax, you wouldn’t have to pay 200% of your income to the governments. The state tax would preempt the federal tax, and you would pay only state tax.

Currently, the highest state income tax rate is California’s 13.3%. You have to wonder what would happen if the several states were to boost their income tax rates so as to be comparable to those imposed by the national government.

Unfortunately, because Uncle Sam has preempted the income tax arena, the states are left to pander to the politicians in Washington in the hopes of getting some of their taxpayers’ money back.

Frankly, I believe, and most folks agree, that money spent closest to home is most wisely distributed. Certainly the national government has to be adequately supported to maintain our national defense and our prestige around the world, but the vast bulk of social programs and discretionary spending should be at the state level. 

Which is why I insist that state taxes should be a credit against federal taxes, and not just a deduction against taxable income.