Making little rocks out of Big Rocks

Making Little Rocks out of Big Rocks

By John (circa 1980’s)

            Back in the earlier period in this country, when it was still a free country, especially in the West, when a person was convicted of a crime, the level of punishment was just that, punishment.  If the crime was severe enough such as stealing a horse or murdering the wrong person, the punishment usually involved a rope and the nearest tree, whether or not he got a jury trial.  If the crime was something less severe that involved incarceration, the convicted criminal was locked up, his property taken temporarily, and he was punished.  The punishment often involved making little rocks out of big rocks with a sledge hammer, or some other equally physically strenuous labor.  The food was not the best and was usually less than nutritious such as bread and water.  But, when the criminal served his time, was punished sufficiently, he was deemed to have paid his debt to society.  His horse, saddle and guns were returned to him and he was released back into free American to find his own way.  The person/former criminal was not branded for life and could, and most often did, become productive members of the society.  While there may be somewhat of a stigma initially upon return to his origin, with good work and deeds over a period of time, that stigma eroded into nothing.

            But, that was in a free country.  As the crime system began to evolve, people convicted of crime, even petty or nothing crimes, became branded with a “criminal record.”  And, if that level of criminal records was a felony, the person now loses his rights as a citizen and in some cases cannot vote, possess a weapon even for self defense, and other sometimes more severe stigma such as placing signs in your front yard that brands you as a sexual pervert, or require one to blow into a machine merely to start his car.  So, a person convicted of a crime is branded for life as a criminal.

            To make matters worse, the social “do gooders” got further involved and the idea of punish was changed to “rehabilitation,” a form of brain washing.  Once rehabilitated, the criminal, even thought branded as such for a lifetime, was supposed to see the error of his ways and return to be a productive member of society.  But rather than rehabilitate, the jails have turned into large training camps for further criminal conduct thereby exacerbating the whole process.

            As has been demonstrated throughout history, punishment works.

Iraq War Summary 2007

IT’S NOT ROCKET SCIENCE

(or)  Why the United States is in Iraq in 2007

By John

October, 2007

            Saddam Hussein invaded Kuwait, dropped bombs on Saudi Arabia and other places, amongst other misdeeds in the early 90’s, which generated the first Gulf War.  A brilliant move by the Commanding General Norman Schwarzkopf, former Vietnam line officer, encircled the Iraq army, but was stopped short of closing the door by the first President Bush who wanted to make it a 100 hour war.  The Iraq Army escaped.  But, Saddam agreed to do certain things in exchange for the cessation of hostilities.

            Almost immediately Saddam started breaking the agreements.  He kicked out the weapons inspectors, shot at planes in the no-fly zone, to name but a few miscreant acts.  President Bill Clinton sent scud missiles and dropped some bombs during Monica’s time, all, he said, in an effort to make Saddam live up to his commitments.

            George W. Bush was elected President.  9/11 happened.  Terrorist camps were invaded in Afghanistan and the Taliban removed in short order despite the same region previously being the Soviet Union’s “Vietnam.”  Bush started asking permission from Congress and the UN to do something about Saddam’s breaking the agreements.  Both the UN and Congress gave Bush authority to invade Iraq and enforce the agreements.  Time passed without much happening other than coalition building to the largest ever.

            Democrats and liberal media starting their anti-war/anti Bush chirping and ankle biting, complained that Bush needed the authority to invade Iraq renewed.  So, Bush went back to Congress and asked them to renew the authority to invade Iraq.  Most of the Democrats, although continuing to chirp, along with the majority Republicans, voted to give him authority, a second time.

            Iraq was finally invaded and, in record time, led by General Tommy Franks (another earlier Vietnam line officer), Saddam removed, his sons killed, the war declared ended, Saddam captured and occupation began.  Anti-war (anti-occupation????) Democrats and liberal media stuck up their heads again, started the chants of Bush lied/kids died and it’s all about the oil mantra, and complained about Bush errors made in Iraq.  Nevertheless, the Iraqi people conducted not just one, but three elections under a new Constitution.

            Memo to Democrats and limp spine Republicans:  In War and subsequent occupation, the Plan can never be followed to the letter.  After all, the other guy, the enemy, has a say in the battle/occupation.  That doesn’t make the plan an error or errors.  After all, Americans are noted for creativity and flexibility, especially in war.

            Al Qaeda then tried to incite a Civil War between the two major religious factions initially by blowing up a Mosque followed up by randomly blowing up civilians.  With apparent American success limited, the anti-war Democrats became emboldened and tried to fan an anti-war movement.  They questioned Bush’s authority to go into Iraq DESPITE not once, but twice having securing authority from Congress to say nothing of the countless resolutions from the UN and the 65 nation coalition.  They say Bush lied, yet at the time, each and every one of them in position saw the same intelligence and threats including WMD’s.  Nevertheless, these folks tried, seriously tried, to undermine the Iraq war/occupation effort.

            Demo’s Problem:  During the 60’s, the anti-war folks developed a different type of coalition, one with the draft eligible male youth, those who were most probable to go fight the war.  They were successful in fanning that fire.  Today, in 2007, there is no draft.  College students have no fear of being forced to serve in the military and go fight a war.  They evaluate the war as current history being made and discuss Iraq objectively.  They have no personal interest, generally, unless they know someone serving in the military, since they are not in line to be called to involuntarily join the Army or Marines.  Not the same thing as the Vietnam era.

            So, the anti-war/anti-occupation folks, and their allies in the print and television media, despite over four years of nightly propaganda against President Bush and his war, have failed to ignite any real anti-war sentiment at home.

            Then, in September, 2007, General Petraeus unanimously confirmed by the Senate to command the effort some several months before, testified in Congress that there was some great inroads being made to neutralize the fighting and establish internal security in most of Iraq.  Suddenly, the American population, realizing the main stream media had been lying to them, started again supporting the mission in Iraq.  Seeing this, the Democrats started reversing their position, only with the exception of the very far out fringe left.  And now, even Democrat Presidential wannabees acknowledge America’s place in Iraq, even after Bush leaves office in 2009.

            So, President George W. Bush’s war is moving to successful culmination in the tradition of an American war effort.

          Geography question:  What geo-politico country that needs surrounding lies between Afghanistan and Iraq?

          Besides: The whole point of American military presence in the middle-east is to provide a target for terrorist on their own soil and thereby keep the concept of terrorism in the middle-east, and not in mid-America.

Tort Reform, Where is the Constitutional Basis?

By John (January 2011)

            We’ve seen in my essay on abortion (The Good, The Bad and The Ugly) that the arguments asserting abortion as not being a right specifically granted in the United States Constitution are species at best.  The right to personal privacy is God granted and was merely being protected by specific provisions in the United States Constitution.  God granted man rights, not government.  The states may draw limits on man’s activities, but the State can overstep their authority in which case the federal government under the 14^th Amendment case law step in and preserve to the individual person God given rights.  

So, how about tort reform?  Specifically, we start with the proposition that the Constitution was created by the States.  The States met through delegates in Philadelphia and began the creation of the United States of America culminating in final form in 1787.  It did not exist up until that time, even on paper, until it was draw and then over a period of time, ratified by the requisite number of states.  Prior to that time, the States were merely a loose confederation.  Only at the point of final ratification did the federal government as we now know it come into existence.

Before the creation of the federal government, each state had its own property laws, contract laws, criminal laws, and tort laws, each integrated into the fabric of a system of laws for each individual State.  Granted, they were mostly grounded in English Common law.  To the extent they had differences those differences had to do with geography, culture, people, economic base (agricultural, mining, industry, etc) amongst other differing underlying support system, including the thinking in their respective state legislatures.  There was no federal property system, or contract system, or criminal system, or tort system provided for under the United States Constitution.  Each state was going to, and did, retain its own laws and legal system.  Today, for example, there are eight states which have community property systems growing out of Spanish influence, affecting all other areas of the law within the State including tort law.  Each has a particular geography, people, culture, and some would even argue, language, again albeit based loosely on English.  Texas is different from California which is different from New Mexico which is different from Colorado which is different from,,,,,,, point made.  Again, it affects not only the property system, but the contract law, the family law, the criminal law and tort law.

All jurisdictions in the United States with the sole exception of Louisiana are directly influenced by the English Common law.  Louisiana has a legal system based on the Napoleonic Code.  The French influence is different from any of the other 49 jurisdictions whether in property law, contract law, or tort law.  Again, there is a distinct Louisiana culture, language, etc, with a history influenced more by France than any other European country.

Despite the trend over the last 40 plus years within the states and their liberal law schools to create “uniform” model codes for adoption in all states and thereby attempt to make uniform a body of law all throughout the United States, the fact is that each state continues to retain their own system of laws in property, contract, criminal, family, and tort.  Many jurisdictions, especially Texas, have never adopted a uniform model without substantial change being made by the Texas legislature to adapt the law to the character, culture and history of Texas.*  The Uniform Commercial Code is a good example where Texas made a number of major changes to accommodate their oil and gas history as well as their large cattle industry.**

            So, the question ultimately presented to those who wish to legislate tort reform on the federal level is, “where in the United States Constitution does it provide that the Congress may pass laws changing, or even effecting, state tort law?  The Conservatives and many Republicans would ask us to make a federal law, tort reform, whatever form it may take, and change the substantive tort law in all fifty states.  One would think that such a power on the part of Congress must be granted in Article One.***  After all, again all federal power is granted by the States specifically in the Constitution.

What does our search reveal?  It’s not there.  It’s not granted.  It’s not express.  It’s not implied.  Folks, it just isn’t there.  And it shouldn’t be based on the very general outline of the history of the Constitution as set forth above.  Tort law is all State law existing in each State. Should Congress do it just because the liability insurance companies want it?****  That would be a total affront to the dignity which is, or at least was, the United States Constitution.

____________________________

*The author still agonizes over the Bowie knife model criminal code being adopted in Texas without regard to the history of Jim Bowie and the Alamo.

**There are prepared and lobbied uniform codes in virtually every area of the law, such as family law, criminal law, and commercial law, and in some areas that test the bounds of sanity such as conflicts of laws.  And although there are only two areas specified in the Constitution, there are literally thousands of federal crimes (see essay on Federal Crimes).

***Would they argue 1-8-3 the commerce clause allows the federal government to change State substantive law?  In the case of tort reform, one would think this would be more of a stretch than Obama Care.

****Of course, the Republican Party has become a lap dog for the liability insurance industry (not the Tea Party part).