In 1928 Republicans advanced millionaire businessman Herbert Hoover as their nominee. Shortly after Hoover’s election as President, Americans confronted the Great Depression. In 2012 Republicans will nominate the multi-millionaire Mitt Romney as their presidential candidate.


Mitt and Herbert are two peas in a pod.

Both multi-millionaires

Both businessmen

Both pledged lower taxes

Both oppose governmental involvement in business

Both anti-union

Both favor bank bailouts with public money

Both opposed using public money to house or feed the poor and the homeless.


Herbert was a Quaker and Mitt is a Mormon, neither of which is a “mainstream” religion, a fact which is irrelevant, at least to the voters who elected Hoover. Hoover’s religion is said to have provided him an ethical foundation and to have fostered his interest in charities and famine relief. Mitt has so far not embraced philanthropy.  Both men were married. Hoover’s wife worked at a job and was a successful businesswoman and author in her own right. Mitt’s wife rides expensive horses that cost more than a Ferrari.


I fear that in drawing the comparison between Mitt and Hoover that I have insulted Herbert Hoover.


First, Hoover was a mining engineer and a true entrepreneur who built businesses throughout the world. The mines he developed were not exercises in financial restructuring but were true businesses that created 175,000 real jobs. Hoover and his wife worked together in the mining fields, and Hoover and his wife authored and translated technical books in their areas of expertise. Mitt and his Bain employees (nearly 100% men) bought struggling companies, closed some, liquidated too many others and restructured a few. In the process Mitt siphoned off funds that were needed to keep his businesses afloat, and outsourced American jobs “overseas.” His financial engineering made Mitt wealthy, but he did not create a single business from scratch.


Hoover’s experiences in the mining fields gave him insight into the plight of labor, and he founded multiple successful companies from the ground up.


Second, Hoover thought independently and creatively, while Romney is hampered by cow-towing to far right money and evangelical religious interests, and sucking up to billionaires. As part of Mitt’s vast billionaire appeasement program he proposes that billionaires pay less in taxes. By comparison, while Hoover favored lower taxes he also closed tax loopholes for the wealthy. Hoover increased the top tax bracket from 25% to 63%. Romney favors lower taxes for the ultra wealthy and will defend to the death the loopholes that benefit his wealthy hedge fund friends who are in hiding in gated mansions on the back roads of Greenwich, protected by private security forces.


Third, farm subsidies to wealthy corporate farms continue to burden all attempts at a balanced budget. Hoover rejected farm subsidies, while Obama and Romney seek corporate donations from the fat pigs (political donors) that own the corporate farms. Hoover’s relationship to farmers and price controls is rather complex, but it is worth noting that he encouraged farming in order to feed starving families both in the United States and overseas.


As far as the Supreme Court goes, Hoover believed that the political make-up of the Justices should to some extent be balanced between Republicans and Democrats, and Hoover appointed jurists purely on merit. Romney has not been asked to comment on the role the Court should play, but prior Republican appointments (or rejected Republican nominees to the Court) suggest that Romney will follow the Republican party line and make further attempts to pack the Court with activist right wing hacks, who have abandoned any pretense at independent judicial/judicious thinking.


Hoover was blind to the mistreatment of blacks and used the Southern Strategy to get block votes from the South, a strategy later adopted by Democrats and now adopted by Romney and his Rovish advisors. While Hoover ignored blacks, Romney and  his Republican surrogates are aggressively trying to strip minorities (and the elderly) in the South of their right to vote. Sadly, there is no modern day Martin Luther King to expose Romney’s racism. There is no suggestion in Romney’s life that he has any interest in social justice for minorities or the poor.


Throughout his career as a sterling, money grubbing businessman, Romney has avoided philanthropy. In contrast, Hoover was widely acclaimed for his humanitarian leadership, efforts that he often undertook in opposition to Republican party leadership.


Sadly, Romney is channeling the worst aspects of Herbert Hoover, with none of  the intelligence, judgment and compassion that Hoover practiced in his public and private life. If I have insulted Herbert Hoover acolytes, then I apologize. If I have insulted Romney, then he can set the record straight and provide some facts and policies that demonstrate that he is compassionate and respects all Americans.


Howling Patriot



Yeah, Scalia, Read the Damn Healthcare Bill

Antonin Scalia is a member of the Supreme Court, appointed by a Republican President.

Scalia recently asserted that the court couldn’t pick and choose which provisions of the Affordable Care Act are constitutional. It was either all or nothing.  “Mr. Kneedler, what happened to the Eighth Amendment?” Scalia asked. “You really want us to go through these 2,700 pages? Is this not totally unrealistic? That we are going through this enormous bill item by item, and decide each one?”

Described as a conservative voice and a son of New Jersey, in the oral argument over providing affordable healthcare to all Americans we also learned that Scalia does not know how to use his staff of brilliant clerks, and is too unconcerned to read the Healthcare bill before ruling on its constitutionality.

The  Healthcare Bill is long because it addresses complex issues, having about 470 sections, and was the subject of negotiation and compromise before it was approved by Congress and signed into law. In any mid-size law firm a staff of highly paid associates could digest a bill of its complexity in 48 hours. Each Justice on the Supreme Court has two brilliant clerks, a total of 18 skilled attorneys, and there are nine Justices. So, there are 27 lawyers, each of whom would have to read 100 pages of the 2,700 page bill. Yes, Scalia, I do expect you to read 100 pages. Let’s assume that the other Justices are as flippant as Scalia, and we only have 18 brilliant clerks, each of whom has to read 150 pages. Frankly, this could be done with ease over a long weekend. Scalia, it is unrealistic to not have the clerks read the bill. The clerks went to the best law schools in the country and excelled at every level. I would bet that many of them have already read the bill and have already summarized key provisions.

Scalia’s remarks are disingenuous to the point of deserving ridicule. Attorney Kneedler was circumspect enough not to point out to Scalia that the Justice Department has already parsed the bill and has already identified key aspects of the bill which can and should stand alone. And, the Justice Department didn’t do this work in secret, but filed pleadings with lower court federal judges. All of these pleadings were available to Scalia and his clerks.  And, no I don’t expect that Scalia will personally read the Bill, but if he wants to come to theJerseyShorein June, I will meet him in Manasquan and read the Healthcare Bill to him while he lounges on the beach.

Yes, Scalia, I do expect you to read the Healthcare Bill.

It is astonishing that Scalia would so baldly proclaim that he is not going to do a competent job, and his dereliction of his judicial duties undercuts public respect for the Supreme Court.

But, let us assume that Scalia’s remark about the length of the bill was no more than a rhetorical gesture, and not actually a reflection of his work ethic. Declaring the whole Bill unconstitutional would have the following effects.

Women will milk their breasts at their desks.

The Affordable Care Act “has approximately 450 separate pieces,” many of which are currently in effect. One lower court that ruled the ACA unconstitutional also recognized that “many provisions in the Act can stand independently without the individual mandate.”  For example, there is little doubt that the provision in the Act requiring employers to provide a ‘reasonable break time’ and separate room for nursing mothers to go and express breast milk [Act § 4207] can stand separately.

Small businesses will lose tax benefits.

The Affordable Care Act provides tax credits to eligible small businesses that offer insurance to their employees, offsetting up to 35 percent of employer premium costs beginning in tax year 2010. See ACA § 1421(a). If Scalia and the other radical republican judges have their way the federal government will immediately stop these tax credits  to  small businesses.

Scalia’s approach will injure the elderly and disabled and delay Medicare claims processing.

More than 20 sections of the ACA effected changes to Medicare payment ratesfor 2011, including extensions of a number of payment adjustments (such as add-on payments and exceptions to payment caps) that pre-date the ACA. These changes have already been incorporated through notice and comment rule making into Medicare payment regulations and implemented through edits to nearly every major Medicare claims processing system.

Scalia and his interventionist brethren will increase the Deficit.

To attempt at this juncture to devise an alternative, pre-ACA rate structure for  state-owned or operated Medicare providers  would impose staggering administrative burdens, and could cause major delays and errors in the payment of the roughly 100 million Medicare claims processed each month.

Scalia’s approach will cause more Medicaid Fraud

To prevent fraud and waste in the Medicaid program, the ACA required all states,to enter into contracts with auditors, to identify incorrectly paid claims and to recoup overpayments. See ACA § 6411. Moreover, the ACA requires states to suspend Medicaid payments to providers or suppliers when fraud is suspected. Declaring the entire bill to be unconstitutional is an invitation for more fraud.

Make the States challenging the law give back the taxpayer money they received and no longer want.

Twenty-five states (all but Alaska) were two-faced and while attacking affordable healthcare also applied for and were awarded federal grants to begin to take measures to ensure that their exchanges will be operational to carry out their grant agreements. These plaintiff states should return the more than $24 million already made available to them.

Kick Sick Americans Into the Gutter

Twelve plaintiff states contracted with HHS to run federally fundedhigh-risk insurance pools (Pre-existing Condition Insurance Plan, or PCIP, programs) established pursuant to the Affordable Care Act. See ACA § 1101. These pools provide coverage to eligible Americans who have been uninsured for more than 6 months because of a pre-existing condition.

Goodbye high risk pools. Goodbye insurance.

Your college student is about to become uninsured, and will be uninsurable if she has a pre-existing condition.

In their role as employers, most states sponsor their own group health plans. Thus, they are subject to ACA provisions already in effect that, for example, generally require insurers to offer parents the option to keep children on their plans until age 26, bar insurers from placing lifetime limits on the dollar value of coverage, and prohibit insurers from rescinding coverage unexpectedly after an illness or accident because of a mistake on a application.  Declaring the entire ACA unconstitutional will deprive millions of families and children in these plans of coverage and benefits

No insurance coverage for old and sick citizens who lose their jobs!

All plaintiff states that challenged the ACA currently participate in the ACA’s Early Retiree Reinsurance Program (“ERRP”). Early retirees are often ineligible for coverage from their former employers, but are too young to qualify for Medicare and too old, or too ill, to obtain coverage in the individual market. To encourage employers to continue coverage to early retirees and their families, the Act provides for $5 billion in ERRP subsidies through 2013. These subsidies reimburse 80 percent of the costs of certain medical claims of early retirees and their family members.

If Scalia bothered to read the ACA he might discover that this provision can stand alone.

Scalia encourages abuse to women by denying coverage.

All 50 states have applied for and received funding under the ACA’s Maternal, Infant, and Early Childhood Home Visiting Program, which appropriates $1.5 billion in funding over five years for states to deliver health care and other social services — such as prenatal care and domestic violence prevention — to families in at-risk communities who lack other resources. This funding will be halted by activist Republican justices. States have continued access to grants under this program to help families at great risk of health and developmental problems, child maltreatment, and domestic violence.

Ending Support for Consumers.

Thirteen plaintiff states were awarded over $11.1 million in grants pursuant to the Act’s Consumer Assistance Program, which authorizes and appropriates funding for states to help consumers navigate the health care market by, for example, facilitating enrollment in health plans and assisting with complaints and appeals against insurers.


 Justice Scalia plans to review and determine the constitutionality of an important piece of legislation that he has not read because it is too long. Scalia’s public statement is disrespectful of the Supreme Court and the rule of law. He should apologize. Scalia’s buddies on the Third Circuit Court of Appeals should stop defending the indefensible.

For those of you not hiding under a wild mushroom, it is no surprise that the radicals on the U.S. Supreme Court have declared war on 40 million poor and uninsured Americans.

Having entered the world of no holds barred political activism, the Republican controlled Supreme Court has waived any claim to being impartial and above the fray. Having chosen polemics over reasoned argument, the right wing radical justices invite Howling Patriot to give its point of view.

The radical ring leader and chief plotter against Poor People is Mr. Scalia, now famed for his broccoli analogy, best summarized as “let them eat broccoli,” paraphrasing another unelected and infamous person who was deposed and guillotined. In embracing Scalia’s sound bite, the other radicals gave the proverbial finger(ling) potato to poor Americans, many of whom are minorities or poor white trash with no political pull.

Why pick on Scalia. Well, Scalia is a very smart man, so he undoubtedly knew that his broccoli analogy was at best misleading, certainly wrong and did no more than  waste the time set aside for oral argument. Personally, I doubt Scalia has any interest in broccoli. From his girth we can reasonably assume that he is interested in food but is probably not eating enough vegetables. Not being able to put Scalia on the scales, we cannot be sure if he is obese, but let’s assume that since he is wearing two judicial robes stitched together that he meets a poor person’s definition of obese.

How would Scalia and his radical friends feel about waiting 12 hours in the emergency room to receive their basic healthcare? How will Scalia feel if his health insurance rates rise because he is obese and not eating enough broccoli?

How will Scalia feel if he has to self-fund his gastric bypass surgery? Oh, wait. We taxpayers are paying Scalia’s health insurance premiums and we will be on the hook for his obesity drugs and surgery.

Scalia has put the full weight of his specious arguments on the scales of justice, trying to tip the public discussion in a way that favors a radical agenda that ignores 200 years of constitutional precedent. Scalia also favors dismembering the portions of federal law that require hospitals to admit patients in financial need, rather than leaving them on the emergency room steps to die. Like his insensitive, male, radical brethren, Scalia has forgotten core American values like the pursuit of life, liberty and happiness. Once poor people are cutoff from access to healthcare, I expect that Scalia will want to stop the federal government from regulating cigarettes. If poor people smoke more and die sooner, then those deaths will relieve the pressures on the social security system so that Scalia can continue his attacks on a just and fair society by killing Social Security.

Scalia in his shiny robe is disassociated from
Americans who work hard, like the farmers who work in  fields cutting broccoli, or the uninsured looking for jobs which don’t exist because the government chose to bail out banks and fat financial cats . Scalia gets the full benefit of a government salary, government healthcare and government retirement benefits. He is getting fat on the hog. He should live a week on food stamps before he wanders down the path of stripping health insurance from Poor People.

Post Script: An ad hominem attack on Scalia avoids the merits of Obamacare, but is a fair riposte because Scalia’s approach also avoids the merits.

Mitt Romney’s detractors accuse him of destroying jobs or creating low paying jobs. Mitt’s defenders argue that he brought free market discipline to the companies that he and Bain Capital purchased and that by restructuring these companies he saved jobs and created new ones.

Lost in the political jousting is a discussion of the complex business of restructuring and refinancing failing businesses. Business begin to fail because they mistime investments, deploy capital unwisely, misjudge markets, fail to adapt to changing markets and demand and because they are undercapitalized. Management is too often inadequate and too frequently overpaid. Structural costs weigh down profit potential.

Every job in a failing business is at risk if the business cannot be turned around.

Mitt was and is a turnaround expert, skilled in analyzing whether distressed companies can be saved. He brought management savvy and fresh capital needed for essential investments, like technology needed to make companies efficient and competitive.

Of course, underperforming and redundant employees were fired because their very presence made the company unprofitable.  Other employees got clearly defined job responsibilities and a chance to prosper as the reorganized business prospered. So, some were fired and others were hired. Big deal. Anyone running a small business knows the drill.

Mitt’s critics conveniently ignore that he and his partners at Bain Capital provided new risk capital to rescue and restructure the businesses that they purchased. By providing essential capital that preserved the jobs worth preserving they created the opportunity for new jobs filled by new employees with appropriate skills. It is perhaps understandable that politicians used to filling jobs with unqualified cronies and family members are stupiefied by Mitt’s business like approach to job creation.

Restructure or Die

A financially distressed business that is unable to change or obtain adequate working capital in the financial markets has few choices: restructure in an out of court workout; restructure by swapping debt for equity or new debt; and restructure in Chapter 11. None of the restructuring options are viable without new capital, and none work without drastic changes to how the business has been run. Companies that do not restructure are liquidated.

Management changes, union concessions, revisions of contracts always take place in a restructuring—just look at the chapter 11 cases of GM and Chrysler. Mitt criticized and still criticizes the secured loans to GM and Chrysler on philosophical grounds because the loans were made by theUSA. As a distressed debt guy, Mitt may feel a tad jealous that he and his private equity friends did not have enough capital to make the $100 billion of profitable secured loans to GM and Chrysler that got priority in repayment in the bankruptcy court proceeding. In predicting the failure of the government loan package, Mitt missed the business point which was that GM and Chrysler (and their employees) were able to change and that they could be reorganized with the right lender. And, Mitt missed the point that hundreds of thousands of decent jobs inAmerica’s heartland were at stake.

By sticking to his guns during his campaign, Mitt appears to lack concern for workers in America’s core manufacturing industries.


Mitt also argues that using the bankruptcy courts was inappropriate and that the holders of the bonds (many his friends in the world of private equity and restructuring) were treated unfairly. Mitt is naïve. His finance friends surely know that in every Chapter 11 case the lender making a dominant secured loan that has a first priority lien on all the assets of a Chapter 11 company like GM, has considerable influence and control on how the company is reorganized and who and how creditors are paid. GM’s sophisticated bondholders knew the bankruptcy strategies; this time they were outmaneuvered, so they should stop Mitt from his surrogate whining about the result. Putting aside the legal jargon and jockeying for priority, bankruptcy laws are a framework for settlement of disputes, and Mitt’s insistence on some non-existent principle of bankruptcy law makes him look inexperienced. If Mitt and his advisors can’t understand the bankruptcy laws, how will they possibly be able to lead the country in the next decade in solving far more complex matters of finance and social conscience?

It is time for Mitt to admit that his abstract principles were worth formulating, but that he was wrong about the practical merits of lending money to Chrysler and GM.



As a restructuring expert Mitt had to be smart, intuitive and decisive, and he had to make hard decisions. As a leader at Bain he needed to be well-informed and forward thinking. Our next President will be restructuring the military, restructuring Social Security and trying to reorganize Congress so that our elected officials stop acting like packs of snarling wolves. Maybe the country needs a restructuring expert like Mitt?

Michele Bachmann is a meteor of misinformation who is flaming on an atmosphere of facts. In some respects she is a good, calculating politician who has found the limelight by acting as a Tea Party spokesperson. She does a good job on TV, understands that the message of her party needs props and has a lawyer’s skill in staying on point. She understands that once on TV she can repeat her points, and just like all politicians is free to ignore the actual questions she is asked. However, she is a hypocrite and her hypocrisy will not play well on the national political stage

Michele grew up living off state supported  education and got a job with the federal government enforcing federal tax laws. Bachmann’s socialist leanings are transparent if inconsistent. She and her family are on the public dole, having taken over $210,000 of federal farm subsidies, while she opposes use of federal tax dollars for hospitals. Taking farm welfare payments may be commonplace in Minnesota and Iowa, but she will have a hard time defending these welfare payments.

Bachmann is a Tea Party Sympathizer

Michele’s embrace of the Tea Party is robotic. Like a good socialist follower she hews to tea party ideology, never wavering from the party line, mechanically repeating ad nauseum rhetorical slogans and ignoring facts. Our Congress of cowardly lionesses has no shame. Bachmann is allowed to stand at the podium, blue eyes shaded by dark lids, and spout endless nonsense—a true party member, never  showing independent thought. If Joseph McCarthy still held the floor, his inquisition would hold Bachmann in contempt for refusing to answer questions, and sentence her to life as a commentator on Fox News interviewing Sarah Palin.

Michele has cleverly infiltrated our democratic government by disguising herself as a Tea Party sympathizer. The voters of Minnesota miscast votes for her. Now Michele will start cutting their benefits, while she rolls in federal tax welfare to enrich herself. Let’s hope she balances the budget by reducing farm subsidies, restoring the free market to agriculture. Fat chance. Meanwhile socialist Michele is feeding out of the government trough of wages and free healthcare. Paying Bachmann her Congressman’s salary is like continuing to pay Bernie Madoff for investment advice. At least Sarah Palin is an American who is earning her own keep.  Bachmann’s greedy grasping at federal handouts shows she lacks the American virtue of independence.

Bachmann is a Meteor of Misinformation flaming out on an atmosphere of facts. If you do a survey of which Republicans comment on which subjects, you have to conclude that Bachmann is being misused by her party. Senior male politicians get to pontificate on important issues like Libya, foreign policy and provide analysis and debate over serious issues like funding entitlements. Michele is given the sad task of going on various “news” programs and spouting nonsense facts about clever Obama misleading Republicans, assertions that make her look uninformed and manipulative. I struggle to understand why Bachmann allows herself to be manipulated and sidelined, when she is smart enough to actually make an informed contribution to important public policy debates. The Supreme Court says that Michele can say whatever she wants, and the media will pounce happily on her ignorance. If Bachmann wants to be taken seriously outside of Minniowa, then she needs to be serious and participate in the public debate of the serious issues confronting the Untied States.

Howling Patriot

After my father’s second heart attack, while he was close to death in the hospital, he confided a secret that shows that President Barack Obama was not born in Hawaii. 

After his service in the Pacific, my dad moved to Hawaii, where he was stationed in Honolulu, working at Pearl Harbor, the Naval Air Station. His main job was keeping the naval base radar up and running, and updating the equipment. He pulled a lot of night duty, and since he was pretty senior, he could select his staff from civilians or sailors, and let’s just say he liked blonde employees who wore dresses. On slow nights he would delegate control of the radar unit and take some of his blonde employees on submarine watching exercises.

Anyway, one dark night they were at the beach “submarine watching”, when he heard a crying baby. Still being a responsible officer he decided to explore and waded into the surf where he found a native outrigger canoe with three adults and a baby swadled in a cloth and resting on palm fronds at the bottom of the outrigger. He said he spoke to the men who said they had been on the seas, starting from Micronesia, and had been caught in a storm. After resting on an atoll in the Pacific they used the stars to find Hawaii, where they had relatives. At Pearl Harbor in 1961 there were serious concerns about Russian spies, but arresting illegals was simply too much trouble. Plus, my dad had a lot of native girlfriends, so he didn’t much care where the adults and the newborn baby had come from.

 Anyway, he still had his diary showing that he met these immigrants and their baby on the night of August 3,1961. The next day, August 4, 1961, the birth of Barack Obama was recorded in Honolulu. While baby Barack was not born on the actual island of Hawaii, perhaps Barack was born within 2 miles of the coast, which is close enough for me to recognize him as a legitimate President.

After he died, I searched for my dad’s diary, and inquired of the Navy about his service record and whether he was even on duty the night in question. The response was that there were no detailed records, but it was confirmed that he served in the Night Radar Unit at Pearl Harbor.

  Jesus Christ was born in  a manager and Barack Obama was born in  a native canoe  under the Pacific stars. God Bless the President of the United States, even if he is an illegal immigrant born under celestial stars.

Howling Patriot

Oprah said  ”I truly believe that a woman can have anything she wants—if she is willing to do the hard work it takes to get it.”Howling Patriot thinks that 2011 is the time for Ms. Palin to do some hard work on the issues

Our view is that if she is not running for President in 2012, then Ms. Palin has  time to take positions on both domestic problems and foreign affairs. However, her current silence on issues and solutions lets pundits and oracles take her less seriously. Of course, putting forward solutions, particularly detailed reasoned approaches to national problems, generates both comments and criticism—sometimes constructive criticism, sometimes not.  Some areas where Palin could take reasoned positions include:

How to control spending on entitlements like social security, Medicare and Medicaid. Is it necessary to raise the age for social security benefits, and should any increase be automatic, a function of need, economic growth or some other measure. What is fair? 

How to control spending on other entitlements—farm subsidies for sugar and other commodities, for example?

Should there be a flat tax for individuals. Should deductibility of mortgage interest be phased out? Should  a flat tax have some progression in tax rates?

Should the federal government ever lend money to states? Are such loans a practical solution to a current problem or prohibited by doctrinaire federalism principles?

How does Palin feel about the bank bailouts and the ongoing failure of improper bank reporting of financial condition?

Given that the federal government has forced down interest rates and the ability of retirees to earn income, should interest and dividends to retirees over 62 be tax free? Should states tax income from retirees who are struggling to make ends meet?

On foreign affairs, a position on theft of intellectual property by China should be easy to formulate.

On the Middle East, what would be her long term policies and goals for that region? What is Ms. Palin’s position on the use of the armed services for overseas humanitarian purposes?

These are just a few of the difficult issues and problems on which Ms. Palin can take aim, do the “hard work” referred to by Oprah, formulate a white paper and claim a leadership role.  A reasoned discussion would also show that Ms. Palin is thoughtful, has good advisors and is flexible—all good qualities for someone aspiring to high political office.

-Howling Patriot

Judge Vinson’s Florida decision to declare the Affordable Healthcare Act unconstitutional primarily relies on his view that the mandate that individuals purchase healthcare insurance is not an activity that Congress can regulate under the Commerce Clause of the Constitution. There is no plain meaning or simple explanation of the Commerce Clause, which has itself been subject to varying interpretations.

Vinson’s approach  was to selectively review cases interpreting the Commerce Clause, while making little attempt to put the past decisions of the Supreme Court in historical and political context. It is not surprising that Vinson seems puzzled in his analysis since he is not the first federal judge (or Supreme Court Justice) to flail at understanding the Commerce Clause or to find selective meaning from prior decisions.

Felix Frankfurter, a noted jurist, lectured about the Commerce Clause before he joined the Supreme Court. His lectures were later published in a book, “The Commerce Clause Under Marshall, Taney and Waite.”One consistent theme is the deference of the Justices to political decisions by Congress.

Of Justice Waite he says, “Waite was governed by his general attitude in leaving to Congress, rather than in assuming for the Court, the accommodation of the commercial interests of state and nation.”

Frankfurter is fond of Harvard Law Professor James Bradley Thayer, and a quote he selected from Thayer is quite apt to today’s heated discussion and polemics, which obscure the legal issues. Although Thayer wrote in 1899, his comments are equally apt in 2011.

Thayer said:

“In considering this matter of constitutional power, it is necessary, in view of what we are reading in the newspapers nowadays, to discriminate a little. Our papers and magazines and even the discourses of distinguished public men, are sometimes a little confused. We must disentangle views of political theory, political morals, constitutional policy, and doctrines as to that convenient refuge for loose thinking which is vaguely called the “spirit” of the Constitution, from doctrines of Constitutional law. Very often this is not carefully and consistently done.”

Today in 2011 we can read commentators telling us that Judge Vinson’s decision is going to destroy state government because of his purported ignorance of the Constitution, as well as other commentators who seem not to have the slightest grasp of the scope and limitations of his decision—the Sky is Falling commentators on the web being the most egregious offenders.

Thayer recalls that it was, in the past, seriously argued that it was unconstitutional to issue paper money and make it legal tender, arguments often voiced with vehemence. Thayer observed that:
”The trouble has been, then and now, that men imputed to our fundamental law their own too narrow construction of it, their own theory of its purposes and its spirit, and sought thus, when the question was one of mere power, to restrict it great liberty.”

Of the Constitution, Justice Thayer said:

“As it survives fierce controversies from age to age, it is forever silently bearing witness to the wisdom that went in to its composition, by showing itself suited to the purposes of a great people under circumstances that no one of its makers could have foreseen.”

Thayer also said: “Petty judicial interpretations (of the Constitution) have always been, are now, and always will be, a very serious danger to the country.”

Judge Vinson, by inserting local politics into his decision and by pandering to the Tea Party in his analysis of the Constitution, has done a grievous wrong to the drafters of the Constitution as well as an injustice to the lower court judges who undertake serious analysis of difficult issues. Vinson, like many judges before him, has insidiously inserted petty politics and polemics into a serious issue of Constitutional interpretation. Thayer might well consider Vinson to be a danger to the country.

Palin Has Earned Respect

February 17, 2011

Sarah Palin has proven to be an athletic, powerful, astute, photogenic and wealthy woman. Since her selection as a vice-presidential candidate in 2008 and her loss, she has  capitalized on her national recognition and visibility to create a media personality and earn millions of dollars.

Despite her success, her achievements as a businesswoman/politico have been criticized or ignored by both Republicans and Democrats. A bigger issue is why women generally have not celebrated her success. It is understandable that fat, old media men are befuddled by her use of power, and the ilk of Matthews, Beck and O’Reilly are understandably threatened by an attractive, aggressive woman who has amassed wealth and power without asking for or needing their blessing.

Ms. Palin is everything these media men are not. She knows how to start a snowmobile and feed sled dogs. She actually enjoys going on long hikes on cold snow days, and carries her own pack. She uses guile, brains and talent, yet Ms. Palin is subjected to snide criticism from pundits for both parties. Perhaps the TV media folks feel unloved, since they need Palin more than she needs them.

The politico media entertainers are so used to manipulating their guests by scripting fake conflicts and soliciting polarizing comments, that a real personality that is beyond their control puts them off guard. It is worth observing that there are few women commentators doing political entertainment on TV, perhaps because the supercilious male media moguls controlling content won’t deign to put an intelligent woman journalist in prime time. Rachel Maddow may be an exception, but  her anti-Palin jibes seem so unfair and inconsistent with what feminists claim to want. Sadly, Maddow’s entertainment hour needs thoughtless, manufactured polarity to get entertainment kudos and advertiser bucks from the old men who run her program

Like CNBC TV, Fox “News” is a misnomer. Fox News is a  pure entertainment show, just like CNBC. None of the hosts purport to be journalists or to have any interest in facts or objectivity. The concept of “fair and balanced” ( a calculated suggestion of objectivity) is not allowed in the studios, and to suggest otherwise is a sick joke on real journalists who try to be objective.

Sometimes Glenn Beck’s rabid rants are entertaining, with a rare fact thrown in as news so that it can be meanly distorted. What is curious is that both Fox and CNBC ignore Palin’s credentials and success. Where are the feminists who too often support candidates that are wealthy philanderers. Why are feminists such harsh critics of Ms. Palin, who has been remarkably successful in using her talents to amass prestige and wealth and power, goals that feminists espouse for women.

Ms. Palin has used her success to support other women running for office, and surely in the long run it will be better to have more women in office running the country, rather than serving tea and crumpets  to unfit, lazy men.

Ms. Palin is young and has plenty of time to decide whether and when to re-launch her political career. In the meantime we should give her the same recognition and applause that we would give to a man with similar achievements