Thursday, April 09, 2009


The Missouri State Senate has passed – with only one Nay – a State constitutional amendment to be presented to the voters in November.

The amendment wants to allow retroactive laws in the matter of sex offenders. Previously, retroactive laws for criminal offenses had been forbidden by the State (and the US) constitution.

The US Constitution still forbids retroactive laws; you cannot be punished for breaking a law that was passed after your crime, nor can you be additionally punished by such a law. Congress and the Supreme Court have gotten around that little hurdle. Congress piously intones that its intent is not ‘punitive’ but simply regulatory, like keeping a national database of drivers licenses or accredited doctors, and also – anyway – it’s an ‘emergency’. The Supreme Court has so far managed to agree (the link here is to the case of Smith v. Doe), a feat achieved by refusing to take note of the world outside the doors of their hallowed hall and with a sly mulishness refusing to take official ‘notice’ of reputable studies – including those done by the Department of Justice – that indicate the ‘sex offender’ class of offense has almost without exception a lower recidivism rate than any other crime category.

After all, if the Court ‘noticed’ that the aggregate sum of all pains attached to the ‘sex offender’ classification adds up to something rather close to wearing a colored star on one’s clothing, or if the Court ‘noticed’ that there is not at all as great a danger to ‘public safety’ as has been asserted by various ‘advocates’, then the whole upside-down pyramid would collapse like a Ponzi scheme.

The Missouri Senate, alas, had a problem similar to being the town nearest the first crack in a shoddy levee: the Missouri Supreme Court recently declared that the ‘sex offense’ schemes were indeed ‘punitive’, and therefore could not be applied retroactively (i.e., to persons whose convictions or pleas ante-dated the passage of the first Registration laws in the State). So there would be the devil to pay if a very large chunk of the entire sex-offense scheme was breaking loose; who knew if that might not start a flood of more careful looking at just how useful or just these laws were in the first place? Part of the sweeping and sudden popularity (not to say 'success') of these laws is that 'due to the emergency' nobody has really kicked the tires.

You would think that a body of legislators, faced with a Decision declaring one of their laws not only unconstitutional but in violation of one of the most important safeguards erected against tyranny (either by monarch or mob) … you'd think then that they’d retire for some sustained contemplation, perhaps with at least a shred of sackcloth and a pinch of ashes. But no.

Instead they whomped up the above-mentioned proposed amendment to the State’s constitution. Henceforth, the Constitutional protections carved into stone in court-houses all over the State and the entire nation would apply to all citizens – except sex-offenders. Although who can be sure that even that limitation might not be overridden at some point? History shows that once governments have gotten the taste of that sort of blood …

I think this is a remarkably revealing bit of behavior, and that its revelation extends beyond Missouri to all of Our assorted legislators and legislatures, State and Federal.

The bad news is that a body of legislators would pass a law that would be so profoundly liable to a finding of unconstitutionality to begin with. Do they even think about these laws before they pass them? Do they even care any longer?

The good news is that a State Supreme Court (and it’s not the first; Alaska’s Supreme Court was, although the US Supreme Court in Smith v. Doe slapped them down with a hash of the above-noted ‘reasoning’) decided that its responsibility to protect and preserve the State constitution overrode the mania to pretend to protect citizens (yes, even ‘the children’) by diluting the constitution. The Missouri Justices are to be commended.

The bad news is that a bunch of legislators at any level would allow themselves to get mired in such a lose-lose situation: nobody is really protected in the short-term, and through the dilution of constitutional integrity the entire common weal is endangered in the long run.

But this is a classic example of what has happened to American politics in the past forty years. Not even at the height of McCarthyism, when the Russkies had the Bomb and Mao had China and spies were thought to be everywhere – not even then was there a concerted push by legislators to officially and permanently dilute the Constitution. Hell, the whole idea was that the American way of politics and justice was so superior to Communism that the Americans didn’t need to resort to such rotten Red tactics. Of course, that was before Bush, Cheney and their posse of darkness insisted that chasing terrorists was “a tough, mean, dirty, nasty business” that required (the words spoken with a macho flourish) ‘getting our hands dirty’ and “walking on the dark side”.

But Bush, Cheney and the posse of darkness were preceded by several decades of ‘revolutionary emergency’, during which a Constitution put together by a posse of ‘dead white males’ was suddenly declared to be oppressing huge numbers of ‘victims’ and had to be ignored forthwith for the sake of ‘justice’ or ‘equality’ or whatever nice-sounding word this or that ‘advocacy’ cared to come up with.

And the Democrats were the ones who opened the door to such a vampiric assault, in their either witless or cynical desperation to win new ‘voting demographics’ to their side. It was Tip O’Neill who devised the strategy of abandoning the old New Deal ‘base’ of workers and families, then pandering to the demands of the new ‘demographics’ without asking any questions while quietly collecting cash from the corporations through O’Neill’s invented PACs.

Figuring that they could play the same game, the Republicans got aboard in Reagan’s first administration, pandering to their own ‘base demographics’ while collecting cash from corporations.

They figured, maybe, that they could go on like this forever: letting this or that Identity’s ‘advocates’ tear whatever chunks they wanted out of law and social policy and even the Constitution, while raking in the PAC dough in exchange for gutting regulatory laws and – essentially – the New Deal’s supervisory structure.

But History, like battle, is not a one-variable affair, let alone a static game. Pandering to demands but seeking ‘cover’ for what they were doing, pols at all levels welcomed ‘pain’ stories: for whatever ‘demand’ they were about to give in to, the pols could point to a passel of well-drilled persons-in-pain just outside the door; how could you expect an upright legislator to ignore that pain? How could you expect an upright legislator to allow something as ‘abstract’ as ‘law’ or ‘principle’ to slow down the pols’ dashing ride to the rescue?

But after a while the pols became trapped by their own game: once they had permitted ‘pain’ to trump any other consideration, then whoever claimed ‘pain’ had them all by – you should pardon the expression – the short hairs.

And if those ‘in pain’ demanded that constitutional protections be removed from those who were – or were at least perceived to be – causing the pain, then any pol who said Whoa was risking a gaggle of ‘pained’ demonstrators out in front of the office, with TV cameras and mikes.

And so ‘pain’ came to trump law and jurisprudence and even the Constitution. (And when 9-11 ‘happened’, Bush Cheney and the posse of darkness instantly declared themselves ready to deploy the military to alleviate the pain of loss and humiliation … and you know how the rest of it goes.) . So now the pols are caught in this trap of being unable to say No to a 'victim demand' or a 'public safety emergency'; like Soviet era-era 'delegates', none of whom wanted to be seen being the first one to stop applauding after a speech by Stalin (so the applause simply went on and on - Stalin is said to have enjoyed standing at the podium, letting the time roll on, watching the increasingly desperate 'law-makers' as their arms got tired and they kept looking around to see if somebody else had been the first one to stop clapping and let them all off the hook).

Nor were the media – once known as ‘the free press’ – any help. Inveigled into ‘advocacy journalism’ back forty years before, they had completely debased themselves through selective ‘noticing’ and ‘reporting’ (for what else is ‘advocacy’ except a highly focused selectivity?). And having done it for the Democrats, then as the Republicans began to generate their own dynamics in response to the ‘demands’ of the ‘pain’ that their own bases felt, there was nothing the press and media could do except hide behind ‘balance’: simply stenographize whatever one or the other side put out and let the citizens make of the mess what they could.

Nor, for that matter, are the lawyers completely innocent; for decades now many of them have been indoctrinated in law schools to the filthy concept that ‘law’ cannot be neutral, but must be an ‘advocate’ for this or that group, and ruthlessly so – allowing no ‘quaint’ Constitutional principles to stand in the way (and that, sportsfans, is where the total dimbulb Alberto Gonzalez got the idea). What else, I ask, was any Fascist or Communist judge but ‘not-neutral’, and an ‘advocate’ for whatever the government felt was ‘good’ for the people?

But fortunately, We haven’t yet reached that point.

So Missouri. Its Justices, its pols, its people.

The bad news might be that the state pols are so ‘committed’ to the ‘pain’ that they are going to actually start dismantling the most fundamental and historic constitutional principles and protections. I can’t say that it’s an impossible scenario – not anymore.

The good news, though, might be that they want ‘out’, but without having to be photographed or recorded saying No to ‘pain’. So they’re going to fob the problem off onto the People of the Great State of Missourah. If the voters approve the amendment, then it’s going to take a rip-snortin’ Supreme Court Justice to continue defending the ‘quaint’ Constitutional principles.

And if the voters turn it down, then the pols are off the hook and can piously bleat that they are simply following the popular will (so please go away from in front of the office and take the cameras and your posters with you).

I don’t know: is it better to have a bunch of pols who are willing to gut their constitution? Or a bunch of pandering, gutless sleaze-balls who are willing to shirk their duty (for which they are nicely paid) and let the voters do the heavy-lifting?

But the voters of that Great State need to understand: this is not about ‘sex offenders’. What they are facing in November is the first (as far as I know) instance of the most basic Constitutional principles being abridged in the service of that ‘pain’ which has been the cat’s-paw of decades of domestic assault on the entire American political vision, on the American Experiment itself.

After decades of domestic ‘war’ – on this, on that – We have become used to living in a ‘state of emergency’ where ‘pain’ must be addressed immediately, and no ‘law’ can stand in the way. That was precisely the justification given by Lenin and Hitler in their ‘revolutions’; although Hitler, more apposite in a way to Our present situation, saw that the best avenue of assault is to subvert democracy ‘legally’ and put your own people into the government and the courts – no decent German citizen could take heart from seeing uniformed Brownshirts ‘elected’ to the Reichstag, climbing those marble steps in a jackbooted gaggle to take up their seats and ‘vote’ the Republic away under the guise of ‘saving’ it from pain.

Clearly the Missouri pols don’t grasp the unique Gift to world history and to the world’s peoples that was the Founding Vision of the United States, duly erected into a plan of self-government in the Constitution. But then, not only do their ‘bases’ not have a grasp of that sterling illumination, but many of them – especially on the ideological feminist Left – are actually committed to denying that historical reality root and branch, and ‘reforming’ it; what ‘good’, after all, can come from patriarchy, males, and whiteness? Oy. Nobody – not ‘victims’, not ‘oppressors’, not men, not women, not children – will benefit from the loss of the Constitutional structure. We are headed down a fatal path.

A house that divided, as Lincoln and Scripture observed, cannot stand.


The 'LA Times' reports today that a former federal prosecutor and now-Congressman from California is proposing a "national arsonist registry" because he claims that if there was such a Registry then some of the Southwest wildfires could be prevented or the arsonists who set some of them more easily tracked and caught. I am not at all making light of the genuine awfulness of wildfires (any more than I make light of the suffering of genuine victims of sexual assaults). But I point out how the 'registration' concept is starting, as so often in this sort of thing, to 'migrate', to 'creep', to 'bleed over' into other areas of law enforcement concern.

I propose this mental exerise at this point: imagine such an arsonist 'registry', and further, imagine 'community notification'. Especially in the lower South and in the Southwest, if a wildfire breaks out and homes are destroyed, consider the position of someone who has gotten onto a widely-defined ' and internet-accessible arson registry' (perhaps as a kid you once set fire to an outhouse or a trash-barrel in a local park) ... you see where things could go.

And suppose that the California Senate decided to amend the State constitution to the effect that traditional constitutional protections apply to all Californians except registered arsonists ... and you see where things can go.

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Anonymous Anonymous said...

Yep, Nazi-ism has been resurrected. This time in America.

10:41 PM  
Blogger publion said...

The tendency to a fascist mode of governance lies deep down in all people, I think. When the always-hungry government reaches for power and manages to incite the 'mob mentality' in the citizenry, then that country will take on a fascist complexion, a fascist tone. This is something the Founders feared, and why they built such a clunky 'machine', so full of 'speed-bumps' - so that such a terrible synergy could not develop.

But it was precisely the 'emergency' mentality that enabled Hitler to undermine the German government, and he did it by inflaming enough (though never all) of the German citizenry.

The 'emergency' was soooo great, Hitler and Goebbels said, that 'democracy' was too inefficient and slow to meet the 'emergency'. Civil rights and increased arbitrary police power were introduced, and far too many Germans figured that it was all OK because there was such a 'threat' (from the Jews,from the Czechs, from the Poles, from the French).

The same dynamics, and now the same legal maneuvers and 'reforms' are showing up over here.

And this 'fascist' sort of conducting domestic affairs has bled over into foreign affairs: the citizens stampeded into a preventive and invasive war and occupation of a country on false pretenses.

Folks need to speak up and remind the Beltway that there is still a People in this town.

2:30 PM  
Blogger ZMan! said...

Very well done. I posted it on my blog as well, hope you do not mind?

4:11 PM  
Blogger Triedbyconscience said...

*chuckles* If they can get an exemption for one class, no class is safe. They're not just diluting the ex post facto, but also the attainder clause.

Sadly, this action was inevitable. Retrospective laws, retroactive laws, and laws directly appertaining to a class were the first things to watch out for in tyranny.

This is the reason why we were a representative constitutional republic, and not a democracy.

"Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure. There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States."

Federalist 51, Friday, February 8, 1788.

4:23 PM  
Blogger publion said...

I just want to say that anytime anyone finds something in these Posts that they think might be useful, please feel free to move those ideas along by whatever means you think best. Let Us continyuh, as LBJ used to say.

11:50 AM  

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