I have decided to offer my services as an attorney to any of the health care workers from Presbyterian for free for what I regard as an unconstitutional violation of their liberty without due process of law. If anyone knows any of them, have them call or text message me at 214-336-7440 and I will go down to the Northern District of Texas Federal court today and try to get a temporary restraining order regarding the travel ban that has been imposed on them by the state. I think this is a Section 1983 civil rights case.
http://www.usatoday.com/story/news/nation/2014/10/17/texas-ebola-health-care-workers-travel-ban/17424465/
Category: Law
Law and Jurisprudence
“I need wider powers!”
In her novel Atlas Shrugged, the socialist villains get together after their numerous attempts to control and plan the economy have resulted in wider and wider disasters. Rather than undoing what they have already done to cause the problem, the lead government bureaucrat, Wesley Mouch declares: “I need wider powers!” A similar spectacle could be seen today with respect to the Ebola outbreak that occurred in my home city of Dallas. It has been revealed that the second nurse from Presbyterian hospital to be infected by “patient zero” reported to the CDC that she had a slight fever. She was planning to fly by plane to Ohio, but she requested guidance from CDC on the matter. Their response was typical of a government bureaucracy:
“Vinson told the CDC her temperature was 99.5 Fahrenheit (37.5 Celsius). Since that was below the CDC’s temperature threshold of 100.4F (38C) ‘she was not told not to fly,’ the source said. The news was first reported by CNN.” http://www.reuters.com/article/2014/10/16/us-health-ebola-usa-idUSKCN0I40UE20141016
Note the double negative here. This is the kind of “weasel language” you would expect from a government bureaucrat trying to cover himself. Instead of saying: “We told her to fly,” which is what really happened, the CDC says: “she was not told not to fly,” in the hopes that they can deflect blame.
As a result this woman flew form Ohio to Dallas, while she was symptomatic. This is significant because ebola only becomes contagious when a person has begun to show symptoms, such as a fever. The CDC, whose alleged purpose is to protect the public from the spread of infectious disease told someone they knew to be symptomatic to board an airplane and fly, thereby potentially spreading the virus throughout the country.
The CDC’s response to the fact that they failed to advise this woman not to fly, which, from every indication, she would have voluntarily agreed to if they had simply asked her?:
“The Centers for Disease Control and Prevention is considering adding the names of health care workers being monitored for the Ebola virus to the government’s no-fly list…” http://www.foxnews.com/politics/2014/10/16/cdc-considers-adding-names-people-monitored-for-ebola-to-no-fly-list/
In other words, the very people that our nations hospitals are depending on to treat patients -doctors and nurses- are going to be placed on the same list as suspected terrorists and told that their right to travel is being restricted without due process of law. The issue of whether and when someone can be restricted in their liberty by virtue of having a dangerous communicable disease is a complicated issue. There may be times when it is justified -but it should never, under any circumstances, occur without that individual being given notice and a hearing in front of a judge. Yet, these people are apparently going to be arbitrarily placed on a no-fly list with no hearing at all.
The CDC’s response to their failure is to whine like the villain Wesley Mouch: “I need wider powers!”
This is the essential problem with all government. Government sets rules that are (ultimately) enforced by the barrel of a gun. The CDC bureaucrats only act if there is a rule telling them to act -which is as it should be. So, its no surprise that when this nurse was under the temperature threshold for their no-fly rule, no one at the CDC was going to “stick their neck out” and recommend that she not fly. A bureaucracy doesn’t reward incentive by its employees like a for-profit business -so there would only be “downside” if a CDC employee took initiative. Now the CDC response is to claim they need arbitrary power to put people on a no-fly list without due process of law. The real solution is to recognize that “government funded science” is a contradiction in terms, and end the CDC and income taxes so that private individuals can voluntarily work towards real solutions to the world’s problems.
The Epistemology of Originalism
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[1]Dan Lacy, The Meaning of the American Revolution, Chapter 1, “The Eighteenth Century World” and Chapter 11, “The Federal Solution”. New York: Mentor Books (1964).
[2]Id.
[3] District of Columbia v. Heller, 554 U.S. 570 (2008)
[4]Randy Barnet, “News Flash: The Constitution Means What It Says.” http://www.cato.org/publications/commentary/news-flash-constitution-means-what-it-says
[5] M. Mbugua, “Justice Scalia says ’originalism’ protects American liberty.” http://www.udel.edu/PR/UDaily/2007/apr/scalia043007.html
[6] J. Senior “In Conversation: Antonin Scalia.” http://nymag.com/news/features/antonin-scalia-2013-10/
[7]Merriam-Webster, Merriam-Webster’s Collegiate Dictionary, 11th Edition (Kindle ed.), Merriam-Webster, Inc. (2009).
[8]E.C. Moore, American Pragmatism: Peirce, James, and Dewey. New York: Columbia University Press (1961), quoting DeWulf, M. Catholic Encyclopedia, XI, “Nominalism, Realism and Conceptualism”(1909).
[9]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).
[10]E.C. Moore, American Pragmatism: Peirce, James, and Dewey, Chapter 2, “Theory of Knowledge”. New York: Columbia University Press (1961).
[11]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).
[12]E.C. Moore, American Pragmatism: Peirce, James, and Dewey, Chapter 2, “Theory of Knowledge”. New York: Columbia University Press (1961).
[13]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., “Forward to the First Edition”. New York:Meridian (1990).
[14]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 5. New York:Meridian (1990).
[15]Id.
[16]Id.
[17]Ayn Rand, The Virtue of Selfishness “The Objectivist Ethics.” New York: Signet Penguin Books (1961).
[18]Id.
[19]Id.
[20]This will be, at best, a brief sketch of my best understanding of some of the key concepts set forth in Introduction to Objectivist Epistemology, and the reader should consult that book for a better and definitive presentation of Rand’s position on the matter. See: Ayn Rand, Introduction to Objectivist Epistemology 2nd Ed. New York: Meridian (1990).
[21]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1: Cognition and Measurement. New York:Meridian (1990).
[22]Id.
[23]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[24] Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1: “Cognition and Measurement”. New York:Meridian (1990).
[25]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[26]Id.
[27]Id.
[28]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[29]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[30]Ayn Rand Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[31]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 1, “Cognition and Measurement”. New York:Meridian (1990).
[32]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[33]Id.
[34]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[35]It is also seems possible that someone, given their own particular observations and life-purposes might conceptualize wolves, dogs, and coyotes together as one concept initially, and then subdivide later as the need arose. Rand discusses “borderline cases” in Chapter 7 of Introduction to Objectivist Epistemology.
[36]Ayn Rand, Introduction to Objectivist Epistemology, 2nd Ed., Chapter 2, “Concept-Formation”. New York:Meridian (1990).
[37]Id.
[38]Antonin Scalia and Amy Gutmann, “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws” in A Matter of Interpretation: Federal Courts and the Law: Federal Courts and the Law (Kindle Ed.) Princeton University Press (1998).
[39]Leonard Peikoff, “The Analytic Synthetic Dichotomy.” In: Rand, A. Introduction to Objectivist Epistemology, 2nd Ed.” New York:Meridian (1990).
[40] Id.
[41]Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts, “Preface”. St. Paul: Thompson/West Publishing (2010).
[42]“Speech Before the American Bar Association”, Washington, D.C., July 9, 1985, Attorney General Edwin Meese, III. In: Antonin Scalia, Originalism: A Quarter-Century of Debate (Kindle Ed.) Perseus Books Group (2007).
[43] “Speech at the University of San Diego Law School” November 18, 1985, Judge Robert H. Bork. In: Antonin Scalia, Originalism: A Quarter-Century of Debate (Kindle Ed.) Perseus Books Group (2007).
[44] McDonald v. Chicago, 561 US 3025 (2010), emphasis added.
[45] Section 70, “The false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted”. In: Antonin Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts, St. Paul: Thompson/West Publishing (2010).
[46] McDonald v. Chicago, 561 US 3025 (2010).
[47]Leonard Peikoff, “The Analytic Synthetic Dichotomy.” In: Rand, A. Introduction to Objectivist Epistemology, 2nd Ed. New York: Meridian (1990).
Frontline’s “United States of Secrets”
Last night I watched this 2-part special on Frontline. Overall, I thought it was a decent presentation on an important topic. I somewhat question one of the premises of part 2, “Privacy Lost”. In that episode, they basically said that since Google uses an automatic system to scan your emails for keywords and then present advertisements to you automatically -without any person ever actually knowing the content of your email- then that opened the door for the government to scan your email without a warrant, because courts wouldn’t be able to make the distinction.
But, to me, this is like saying: because I allow a maintenance man into my apartment to repair something, then I have somehow given permission to the police to enter my apartment at any time and search it from top to to bottom. You should be able to agree by contract to allow someone to have access to something that is private without it meaning that you have granted permission to everyone else in the world to view it. I think you can also grant someone access to something with the understanding that they are to keep knowledge of that thing confidential, absent a warrant or subpoena issued by a court.
http://www.pbs.org/wgbh/pages/frontline/united-states-of-secrets/
We Don’t Need Gun Control We Need a Philosophy of Individual Rights
France has extensive gun control laws. The civilian ownership of most semi-automatic firearms, handguns, and automatic firearms is prohibited. http://www.gunpolicy.org/firearms/region/france Despite this, a Muslim Jihadist was able to kill three people and wound one with an AK-47. http://www.bloomberg.com/news/2014-06-01/jewish-museum-murder-suspect-arrested-in-france-hollande-says.html
Mass shootings like this have nothing to do with the ease or difficulty of obtaining such weapons, as this killing in Belgium demonstrates, and everything to do with the existence of societies filled with people who no longer take personal responsibility for their own wellbeing and for the wellbeing of their loved ones. It is a result of a Western Culture of Individualism that is so far in decline that people join various cults and groups that advocate the subordination of individual lives and happiness to a god or a tribal group. It is a result of people who no longer use their own minds to search for the truth, but instead depend on some collective or religious authority to tell them what is right and wrong. It is a result of schools, journalists, and politicians that encourage envy and hatred of others by claiming that there is something wrong with those who do choose to pursue their individual, secular happiness in a free market system.
If too many people reject individualism and their own secular happiness in favor of some sort of collective ethnic group or afterlife, then they will violently turn on those that are not of their “tribe” or don’t worship their god, and we will see a relapse to the sort of perpetual warfare that hasn’t been seen in Europe since the Middle Ages. If too many people listen to left-leaning politicians and their politics of envy, then more mentally unstable people will find a rationalization for indulging their own feelings of envy and hatred of others with violence -such as the 2007 Virginia Tech mass-murderer who espoused his desire to kill “rich kids” in his suicide note.
The Western World doesn’t need gun control, it needs to rediscover a philosophy that advocates the pursuit of individual happiness in this life, and reason as the cardinal means of achieving that happiness. It needs governments that respect and protect individual rights to life, liberty, and the pursuit of happiness.
Greg Abbott Is Opposed To the Second Amendment
Greg Abbott: No friend of the Second amendment
“The state of Texas, arguing against the challenge, noted that three-quarters of the states have laws requiring a person to be at least 21 to get a license to carry a gun. The state’s attorney general, Greg Abbott, was in the uncomfortable position of defending the law…”
http://www.nbcnews.com/news/crime-courts/court-passes-challenges-restricting-handguns-young-adults-n37196
Legal Paternalism
The “Assault Weapon” Ban
“…no reason civilians need to own assault weapons and high-capacity magazines…” http://abcnews.go.com/US/wireStory/us-judge-bring-back-federal-assault-weapons-ban-18040037#.UNc95onjk1c
1) The “assault weapons” ban basically banned certain cosmetic features on some semi-automatic firearms (guns that fire one bullet for every pull of the trigger), that had nothing to do with the function of the weapon.
2) The only major change in the functionality of semi-automatic weapons that the assault weapons ban affected was the limitation of the magazine to 10 rounds. Does anyone really think that limiting magazine capacity to 10 rounds will stop someone from going on a shooting spree?
3) The only way such a magazine capacity limitation might affect a shooting spree is to require the shooter to carry multiple guns or multiple magazines. Is Diane Feinstein seriously saying that her “solution” is for civilians at the scene of a shooting spree to tackle a gunman while he is reloading his 10-round magazine? If civilians are going to be asked by Diane Feinstein to take personal responsibility for their own self-defense (a worthy goal), then why does she want to make it more difficult for civilians to own guns?
4) High capacity magazines do have a civilian use: In the Los Angeles riots in the early 1990’s, civilian business owners used AK-47’s and other semi-automatic firearms to defend themselves and their property from large numbers of rioters who wanted to harm them and destroy their life’s work. These civilian business owners were abandoned by the police and the local authorities, and they took personal responsibility for their own lives and the security of their community.
Teacher Convicted of Consensual Sex with 18-year-olds
Hopefully this case will now be appealed. I believe this statute violates the right to privacy of teachers who have consensual sexual intercourse with persons who are over the age of consent. Something that should be considered by her attorney is the fact that the statute makes it an affirmative defense if the teacher is married to the student. In other words, the State of Texas is saying it’s a crime only because the two people involved were unmarried.
Does the Oil Spill Matter?
Imagine a hypothetical scenario: a valuable substance is discovered on the moon. This substance is so valuable that corporations are willing to spend billions of dollars traveling to the moon to extract it and bring it back to Earth. These corporations institute procedures and guidelines for the safe extraction of this substance from the moon, because it will affect their profits if any of it were accidentally spilled on the lunar surface. However, since human beings are neither omniscient, nor infallible, it is possible that accidents will occasionally happen despite everyone’s best effort to avoid them. When this happens, some of this valuable hypothetical substance would be lost. Since we are talking about the moon, and there is nobody living on the moon, there is no property damage, and there is no danger to human life. Would there be reason to complain when such a “lunar spill” occurs? If human life is your standard of what is important, then the answer is no. Human life and human property is not endangered. The only tragedy when such a hypothetical lunar spill occurs is the loss of this valuable hypothetical substance.
Now imagine a second hypothetical scenario, back here on Earth: If your neighbor negligently released a flammable, black viscous substance onto your property, and it substantially interfered with your use or enjoyment of your land, what would you do? Under the property laws of most American states you could likely file suit against your neighbor in court. The specific cause of action might vary from jurisdiction to jurisdiction, but it would typically be called something like “private nuisance” or “trespass”. The right to private property includes the right to the reasonable use and enjoyment of that property, and the law can and should protect it.
Now consider a current, and very real, event: An oil well in the Gulf of Mexico recently suffered a catastrophic explosion, and is releasing oil into the water. The primary tragedy here is the loss of human life from the explosion. This obviously was not an intentional act on the part of the owners or management of the oil company, but it did happen, either because people were negligent, or just because of a bad set of random circumstances beyond anybody’s control. This is not the first time an industrial accident has occurred, and it will not be the last. As long as human beings continue to be human beings, such events will occur –although I contend that such events are rare in a free society, made up of mostly reasonable people. To the extent that there is a causal connection between the negligent acts of any person or persons, and the loss of human life resulting from this industrial accident, and to the extent that that causal connection can be proven in a court of law, then there is, and there should be, legal liability for the person or persons responsible. In other words, to the extent that the oil spill in the Gulf of Mexico is like the second hypothetical scenario that I set forth above, then the law can and should be brought into play.
However, the oil being spilled into the water, as opposed to the preceding explosion that resulted in a direct loss of human life, seems to have a lesser impact on the lives or property of human beings. The only two industries that are obviously affected by the spill are the fishing and recreational tourism industries in the Gulf region. “Recreational tourism” would primarily mean the beaches in the states of Florida, Alabama, Mississippi, Louisiana, and Texas. The legal solution to this problem is easy. Since the beaches are presumably owned by someone, they should have a legal right to go to court, and file suit against any person(s) who were negligent in causing the oil spill. This is exactly like the second hypothetical scenario I outlined above. With regard to the fishing industry, the legal solution seems a little bit more complicated for the simple reason that nobody owns the ocean. While fishermen should have a right to extract whatever aquatic life they want from the ocean, they have no property rights to the ocean itself. Perhaps it is time for property rights in the ocean to be defined and protected by government, but they appear not to be at present. Nobody can currently claim a right to an oil-free ocean, anymore than people could claim a right to the surface of the moon in my first hypothetical example.
Excepting the recreational tourism and the fishing industries, no other persons are damaged by the oil spill in the Gulf of Mexico, because no other person’s property rights have been infringed. The oil spill matters no more than if someone were to spill a hypothetical substance on the surface of the moon.
There is a common sentiment that would take exception with me when I claim that, aside from the recreational tourism and fishing industries, nobody should care about oil spilled into the Gulf of Mexico. In fact this is more than just a “sentiment”, it is an ideology. That ideology is typically referred to as “environmentalism”. This ideology asserts that the oceans, non-human organisms, rivers, the land, and the air have a value apart from their service to human life and needs: “It is a belief in biocentrism, that life of the Earth comes first…” Earth First!. Web. 6-7-2010. http://www.earthfirst.org/about.htm This ideology asserts that human beings should, at the very least, return to pre-industrial technology levels. The fact that current human population levels could not be sustained by living at this level of technology means that this ideology, put into practice, would cause large numbers of human beings to die of starvation and disease. Indeed, wiping out humanity is the true goal of this ideology. Environmentalists with more of a conscience talk about government-forced birth control: “…cut the birth rate to one child per couple, for a few generations at least. The population would dwindle by about 5 billion people over the next century…” Engber, Daniel. Global Swarming Is it time for Americans to start cutting our baby emissions?. Slate.com. 9-10-2007. Web. 6-7-2010. http://www.slate.com/id/2173458 The more consistent adherents of this ideology talk about human extinction. The goal of human extinction is consistent with environmentalism because it holds that the Earth comes first. This ideology is far more dangerous than any industrial accident because it attacks the very root of human survival –technological progress, and the fact that humans should come first.
It doesn’t matter if most people who call themselves “environmentalists” don’t know that this ideology is opposed to human life. The majority of people who called themselves socialists during the cold war didn’t know that the logic of their ideology led to the gulags of Soviet Russia, and still probably don’t know it today, but that was the logical result of an ideology that holds that individuals must sacrifice their lives to the collective. Legitimate pollution problems can be solved with technological progress and the application of the laws of private property, such as the common law cause of action for private nuisance. Such problems cannot be solved by means of an ideology that opposes human happiness and progress.