AN ETHICAL PRESIDENT? OBAMA, LINCOLN AND THE HEALTH CARE VICTORY

AN ESSAY

While the moment is fresh, I must write a few words about the monumental health care reform bill that passed Congress this week. It is really quite a surprising--and inspiring--development. I had to temper my usual cynicism when I realized that the United States actually took a serious step toward reforming its health insurance system. Although President Obama always said he wanted to change health care, I gradually lost faith that he could penetrate furious Republican resistance. But against all prognostications, he did penetrate the resistance. He may have won only by a small margin. Nonetheless, Obama's principled win over private health insurance companies is unprecedented in modern American history.

Still, I am not writing about the health care bill today per se. I am not going to exhaustively discuss its intricacies, loopholes or missed opportunities. True, it is not fundamental reform. It does not create a European-style "single-payer" government-run health insurance program that guarantees coverage to every citizen as a matter of right. Nonetheless, as President Obama noted, it is "major" reform. It regulates private health insurance companies in significant ways. It prevents them from refusing to cover people with "pre-existing medical conditions" (ie, "most people"). And it mandates that everyone obtain health insurance. Uninsured Americans (including me) will benefit because the legislation provides extremely low-priced coverage from a "high-risk, government-supported" insurance company. In other words, health care won't be free for uninsured people. But it will be close to it.

For almost a century, no President has achieved such meaningful reform to American health care. And it is not just the legislation's substance that bears mention. In my view, the most memorable thing about Obama's health care victory is the ethical manner in which he conducted himself throughout the debate.

Public faith in American politicians is virtually nonexistent. People expect them to lie, hoodwink, steal, gladhand and enrich themselves at public expense. They expect politicians to sacrifice all their principles to save their jobs. When a politician says something, the natural response is to assume that he will do the opposite. In short, most people think that ethics is completely foreign to Washington politics. Promises mean nothing. People expect politicians to break them as soon as the water gets hot. In a word, people are extremely cynical about politicians in America.

But then along came Obama. In 2008, he won a landslide victory by promising "change we can believe in." He seemed a breath of fresh air in the noxious political marshland, a man who did not seem ready to engage in backroom dealing or pork barreling. He talked about principles and truth. He was a "white knight;" he was an uncorrupted soul. Although cynical Americans always have a hard time dropping their natural suspicion about politicians, they did when they elected Obama. They really thought that Obama meant what he said. They thought he would hold to his promises. He promised to reform health care.

In 2009, President Obama began the push for health care reform. Despite his good intentions, mean-spirited Republican resistance undermined his popularity. As the year wore on--and as the economy continued to falter--even Democrats began to question whether Obama could get anything done. They wondered whether all his campaign promises had just been rhetorical fluff. Republicans caricatured Obama as a "law professor," a man who thought too much and did too little. Critics castigated him for being "too polite for Washington." They blamed him for giving too much deference to opposing arguments. In other words, he was too weak to survive Washington's ruthless, dog-eat-dog political atmosphere.

Yet President Obama stayed true to his heart. He did not turn into a conniving Washington technocrat. No, he stood by his promises. He swore to push through health reform no matter the political cost. He did not care whether his commitment to his word would cost him a second term. He said he would fight for health reform. So he kept fighting. And he did not become an ogre in the process, either. He retained his composed decorum, even as Republicans hyperventilated around him and spread outrageous horror stories about "Obamacare."

Obama's fidelity to his own word paid off this week. Despite all the tempests and scares in Congress over the past few months, both the House and Senate passed a substantial reform bill. Although every vote along the way split sharply down party lines, the reform effort pressed forward. Something larger was at work beyond mere politics. Obama's commitment to his word seemed to vault Congress past its stifling political slavishness. What was it? It was the power of ethics.

It is no surprise that Obama quoted Abraham Lincoln the day before the House voted on health care reform. Obama quoted: "I am not bound to win, but I am bound to be true. I am not bound to succeed, but I am bound to live up to what light I have." Put another way, it is always more important to do right than it is to worry about your political future. And there are deeper rewards to be gained from ethical fulfillment than mere reelection. No words could have encapsulated Obama's extraordinary commitment to ethics in Washington more poignantly.

Abraham Lincoln is the most inspiring President in American history because he was the most ethical President. He took office as the Nation faced its single worst crisis. He then transformed a War for Union into a crusade to end slavery in the United States. He did this because slavery was simply "wrong" as an ethical matter. His decision was politically unpopular. Someone assassinated him for it. But he did it because it was the ethically right thing to do. Lincoln had no personal interest in freeing the slaves. Politically, it was unnecessary. Yet he did it because he did not just care about "winning." He cared about being "true" and "living up to the light he had." That meant following ethics in his heart, not the politics that raged outside him.

Almost no President has dared to jeopardize his political future to "do the right thing." While health reform may not be as significant as ending slavery in America, President Obama nonetheless followed in Lincoln's footsteps by committing himself to an unpopular cause and risking everything to realize it. That is inspiring. And it is almost shocking, because it contradicts the comfortable cynicism most people adopt when thinking about Washington politicians. After all, can you believe what you just heard? A President is willing to risk everything to reform health care because he promised to risk everything to reform health care? You mean he actually takes his word that seriously? Can't be!

But it is, and that's what is so moving about Obama's victory. It was not just a technical victory over unfairness in health care. It was a victory of ethics over politics. It was a victory of principle over expediency. Obama pushed health care because he said he would. That is almost unprecedented in modern American political history. And it is even more inspiring that he did not let the "turkeys get him down" along the way. He kept his composure. He maintained his respect and dignity. He remained a "law professor," no matter how much people ridiculed him for it.

He didn't just care about winning. Rather, he was "bound to be true." And suddenly I find myself with an anomaly: Ethics just prevailed in Washington. That makes it harder for me to scowl and wax cynical about America.

Now, I'm actually inclined to smile. I feel strangely justified today. I love it when ethical people prevail, even if just for a day.

As I have always said, there is more to life than winning games.

TEA PARTY PRESIDENTS WILL NOT BE LAW PROFESSORS : CAN LAW GOVERN WAR?

AN ESSAY

Last week, Sarah Palin delivered a speech to the first annual "Tea Party" convention in Nashville. Many listened very closely to her remarks because everyone wants to know what she plans to do with her political future. Love her or hate her, she has found a niche: Semi-factually orating to the semi-intelligent, nativist, government-hating "silent majority" that would not mind seeing President Obama lying in a pool of blood.

Apparently, this "silent majority" has launched a "counter-revolution" called the "Tea Party Movement." From what I understand, its adherents believe that all government is bad. They take their name from the American patriots who revolted against English taxation by destroying royal property in 1773. I suppose that these 21st Century "patriots" share the same hatred for taxation as their 18th Century "brethren."

But that's about all they share. Patriots in the 18th Century fought against legitimate wrongs. They sought to establish a Republic of laws against foreign autocracy. By contrast, these 21st Century "patriots" are not rebelling against a foreign monarch to establish a "more perfect Union." No, they are rebelling against their own government in order to pay fewer taxes and to exclude undesirable immigrants from American shores. They don't want to establish a new government to provide for Justice and "Domestic Tranquility." They basically want to abolish all government so that private business can do whatever the hell it wants.

I don't think James Madison or Thomas Jefferson would have joined this "Tea Party." Their talk about "the Rights of Man" and "equal human dignity" would not have gone over too well with this wetback-hating crowd. And they certainly would not have gone far with arguments about a Constitution. No, Palin's "Tea Party" adherents just want unlimited business license, not an enlightened Bill of Rights.

In sum, then, I gather that the "Tea Party" wants something just above anarchy. They want a "minimalist" government that does not interfere with private wealth or property ownership. They don't want health or welfare regulations, nor do they want intrusive "civil rights" legislation that blocks business opportunity. They want government to maintain an army, protect the borders, guard foreign trade interests, vindicate private contract rights and to prosecute domestic criminals. Beyond that, they do not want government to play a role in public life.

So these are the folks to whom Sarah Palin directed her remarks last week. And what did she say? Not surprisingly, she took vicious swipes at President Obama, who represents everything the "Tea Party" is not: A big-government minority intellectual who eschews military strength and supports high taxes. She lambasted him for failing to keep America safe from terrorism. To make her point, she attacked his intellectual spirit: "To win [this] war, we need a Commander-in-Chief, not a Professor of Law."

In other words, law professors ruminate and dawdle over legal intricacies while Commanders-in-Chief ignore the law and just kick ass. "Tea Party" members don't want the law. They want swashbuckling, extralegal ass kickers.

As much as I personally disagree with Palin's simplistic reasoning on this point, I cannot ignore that she illuminates a popular distinction: She equates law with weakness in war. There are "law professors" and there are "Commanders-in-Chief." Law professors are vacillating cowards who waste time worrying about the law. By contrast, Commanders-in-Chief kick down doors and get the job done, the law be damned.

Sadly, there is a widespread public belief that anyone who follows the law cannot protect the country from terrorism. The "Tea Party" fully endorses this belief. It asserts that the President cannot protect Americans if he insists on following the law--and the Constitution. Rather, according to the "Tea Party," a "strong President"--namely, a "Commander-in-Chief"--will gladly ignore the Constitution in order to "kick terrorist ass."

This is a stunning admission of the law's weakness. After all, if ignoring the law is the only way to win wars, what does that say about the law? Why even bother with it? Wars test States in the harshest possible ways. Yet law is supposed to guide a State through everything. If the law cannot handle war, it cannot handle anything. If the public believes that law is insufficient to win wars, then it rejects law completely. No one trusts weakness; and the "Tea Party" associates law with weakness. In that light, it is no wonder that Palin pejoratively labels President Obama a "law professor." That is the same as calling him a "Professor of Weakness."

But what is the alternative? Who is the fabled "Commander-in-Chief"? What does the "Tea Party" want in a President? Do they want a man who tears up the Constitution and tramples on their rights as citizens? Do they want a man who ignores international treaties and indefinitely imprisons people without cause or charge? Do they want a man who tortures others? Do they want a military State? Well, that is the opposite of law. And if law is weakness, maybe they do. After all, terrorists exploit weakness. It's better to be strong than weak, no matter how much liberty you must surrender, right?

I say no. It is dangerous to associate law with weakness because our law exists to govern all contingencies, including war. Our Constitution creates the term "Commander-in-Chief." See U.S. Const., Art. II § 2, cl. 1. There is no fanciful distinction between "law professors" and "Commanders-in-Chief." If anything, the "Commander-in-Chief" owes his existence to the Constitution--and the Constitution symbolizes life under law. In this sense, "Commander-in-Chief" is a legal term. The "Commander-in-Chief" plays a specific constitutional role under law. According to the Constitution, the President manages war within the law. He even takes an oath to support the Constitution. See Art. II § 1, cl. 8. Textually speaking, then, the President's first duty is to the law, not to kicking ass.

Ms. Palin did not know that. But then again, she does not know a lot of things.

Law is not weakness. If anything, it symbolizes our strength as a State. In the United States, law stands for something better than mere brute force. We enshrine our deepest values in law. Through law, we guarantee personal liberties and rights. Through law, we define the parameters by which government acts. We insist on law because the law protects us. If war suddenly entitles government to ignore the law, we have lost our protection. And it is no accident that our Constitution provides for war. Our Framers knew that war often provides an excuse to ignore law. That is why they demanded that the law remain intact, even in war. By defending law even in war, we affirm ourselves our own strength as a State--and our own rights as individuals.

Yet the "Tea Party" would have us believe that war trumps law. It even mocks a President who commits himself to following the law to govern war. This is extremely troubling. After all, the President has an institutional duty to follow the Constitution. By observing the law, the President is not betraying the people; he is doing his constitutional job. This is not weakness. If anything, it is strength.

Still, it is hard for the semi-intelligent (and sub-intelligent) masses to understand the value in defending law. To them, kicking ass seems a much more satisfying governmental option than according Due Process rights to prisoners and fretting over procedures. But if they only knew that fretting over procedures keeps everyone free. Perhaps then they would understand that there is value in defending law. After all, once the law falls in one case, everyone is vulnerable, not just the ne'er-do-wells rotting at Guantanamo Prison.

For my part, I feel safer knowing a law professor is guarding the Constitution than some "Tea Party" fanatic who would gladly take a dump on my rights simply because he says there's a "war on" somewhere.

But I'm unusual. Most Americans don't mind when authorities shit on their rights, as long as they can keep shopping in peace. That's why they might join the "Tea Party," and I won't.

STARE DECISIS, SHMARE DECISIS : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 2

Yesterday I wrote to explain how the Supreme Court erred in its recent decision granting corporations unlimited freedom to make "independent expenditures" that advocate for Federal election candidates: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). I confined my analysis to the assertion that Congress had good reason to restrict corporations' ability to distort public debate by buying up all the airtime around elections. See, e.g., 2 U.S.C. § 441(b). I noted that according full First Amendment protection to corporations makes it difficult for individuals to voice their First Amendment rights. I also lamented the Court's decision to overrule an earlier case that concluded the same things: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

Today I continue my analysis on a new point: The Court's utterly hypocritical "commitment" to the legal doctrine "stare decisis." In my view, the Court overrules prior cases when its membership changes, not because monumental social changes render prior decisions "unworkable" or "anachronistic." Citizens United affirms my cynicism on this issue: The fact that both men (Republicans) who voted against Austin in 1990 now vote to overrule it in 2010 says it clearly enough. This is not about policy. It is about politics.

Stare decisis is a judicial custom in common law countries like Great Britain and the United States. In Latin, it means "stand by the decision." Its technical legal meaning does not differ much. It admonishes judges to decide cases according to principles announced in similar past cases. When an older case provides an answer to a question, stare decisis obligates judges to provide the same answer in a case raising the same question. In practice, stare decisis reinforces respect for the judicial system because it informs citizens how judges will rule in particular circumstances. It also reinforces respect for the so-called "rule of law" in society: The idea that power flows from neutral legal principles, not men's individual caprice.

Yet everyone agrees that stare decisis is not the right policy in every circumstance. It makes no sense to follow ancient cases to resolve modern dilemmas. After all, if judges strictly observed stare decisis in every case, we would still live under cases like Plessy v. Ferguson, 163 U.S. 537 (1896), the infamous decision that permitted legal racial segregation in 1896. Everyone knows that Brown v. Board of Education, 347 U.S. 483 (1954), overruled Plessy in 1954. The Supreme Court refused to follow stare decisis in that case; and for good reason. Plessy did not make sense any more. It could not be reconciled with constitutional liberty and equality principles. And society had changed in fundamental ways between 1896 and 1954. Those considerations all warranted abandoning stare decisis to overrule the past decision: By 1954, Plessy had degenerated into a pernicious historical "anachronism."

But the Court wanders into extremely dangerous territory when it overrules cases on less compelling grounds. Stare decisis is the rule, not the exception. And when the Supreme Court overrules cases every few years simply because its membership changes, it inflicts the damage that stare decisis is intended to avoid: The cynical public perception that the Court is not committed to law and constitutional principle, but rather to politics and raw power.

Politics and raw power certainly won the day in Citizens United. I have long been cynical about the Supreme Court and its increasingly mordant, political tone. I have long known that its current conservative majority will not "stand by decisions" it does not like. Yet it will certainly "stand by decisions" that match its political colors. That is why it does not surprise me that it lightly overruled Austin on the corporate election funding question, even though people do not view that question much differently today than they did in 1990. If anything, the reasons that justified Austin's hostility toward corporate political power are more compelling today than they were then.

Justice Kennedy knows this all too well. After all, none other than Justice Kennedy sang a sweeping ode to stare decisis just eighteen years ago in the case that saved abortion rights: Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). It was Justice Kennedy who signed on to this formula for stare decisis: "[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Id. at 854-855. Sounds like he takes stare decisis pretty seriously, doesn't it?

You have no idea how seriously. Justice Kennedy even approved four detailed factors to determine whether it would "undermine the rule of law" to overrule a prior constitutional case: "[W]e may ask whether (1) the rule has proved intolerable simply in defying practical workability, whether (2) the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether (3) related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether (4) facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification." Casey, 505 U.S. 833, 855 (enumeration and emphasis added).

In Casey, the Court spent many painstaking pages applying the four stare decisis factors. Justice Kennedy joined the analysis in full. He thought it would "undermine the rule of law" to overrule Roe v. Wade, 410 U.S. 110 (1973), just nineteen years after the Court decided it. In sum, Justice Kennedy doggedly defended stare decisis in Casey. He voted to "stand by" the decision.

But where was that doggedness in Citizens United? And what happened to the delicate, detailed stare decisis factors that guided Justice Kennedy's analysis in Casey? They are nowhere to be found. Rather, Justice Kennedy employs a much more nebulous stare decisis test in Citizens United: "Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned." Citizens United, 558 U.S. __ (slip op. at 47)(emphasis added).

What the hell does "well reasoned" mean? What possible objective guidance does that factor provide? It is no surprise that the Court in Casey did not employ a "well reasoned" test in deciding whether to overrule Roe v. Wade. If it had, it would have merely invited the Justices to import their own political sensibilities to determine whether to overrule it. Yet that is Justice Kennedy's test in deciding whether to overrule a 20-year-old precedent about the integrity of American democracy. And with a standard like "well reasoned," you know how it came out.

I find it significant that Justice Kennedy changed his own standards to overrule Austin. After all, if he had applied the painstaking stare decisis factors he endorsed in Casey, he would not have reached the same conclusion. In Austin, the Court held that restrictions on corporate "independent expenditures" advocating Federal candidates were justified in order to curb "corruption and the appearance of corruption," as well as to curtail the disproportionate influence that "immense aggregations of wealth" wield upon the American political process. Austin, 494 U.S. 659-660.

Under the Casey standard for stare decisis, I do not see how this rule has become "unworkable." For generations now, corporations have learned to cope with campaign financing restrictions. They know they have to create "political action committees" in order to advertise for candidates they like. This satisfies Casey's "practical workability" factor.

Second, the American public has placed reliance on Austin's rule. Americans understand that corporations project enormous power in government; and most Americans rightly worry that corporations' financial advantages grant them unfair political leverage. Congress' corporate campaign funding restrictions assured the American people that the law acts to "prevent corruption" in the political process and to curtail the "corrosive" effects of "immense aggregations of wealth" on elections. In this sense, Austin's rule satisfies Casey's "reliance" factor.

Third, the law has not substantially changed on the corporate political speech question since 1990. Not much can happen in constitutional law over such a short period. Constitutional developments take decades. Historically, they coincide with social upheaval. Social changes in American society rewrote the law when the Court overruled Plessy v. Ferguson in 1954. Sixty years, two world wars, a Depression and an atomic bomb had intervened to completely change the way Americans viewed the world. Against that backdrop, it is not surprising that the Court changed the law to keep up.

It is facetious to argue that such monumental social and legal changes have occurred in American society since 1990. In fact, Americans expect government to act against corporate overreaching. By overruling Austin's rule on this point, the Court completely ignores Casey's third factor concerning "fundamental legal change." That is why Justice Kennedy did not even mention this factor in his opinion. See Citizens United, 558 U.S. __(2010)(slip op. at 47).

Fourth, all the facts that supported Austin remain as true today as they did in 1990. Austin posited that restrictions on corporate speech were necessary to prevent corruption and unfairness in the American political process engendered by "massive aggregations of corporate wealth." Those facts formed the basis for the decision. Congress proceeded on those facts when it enacted the corporate campaign finance law.

If anything, those facts are even more true today. There is a rampant public perception that corporate wealth skews political transparency. Cynicism dominates rhetoric about corporate interference in politics. Austin fulfilled Casey's fourth factor on this point: Facts about corporate political spending have not "so changed or become so different as to have robbed [Austin's] rule of significant application or justification." Casey, 505 U.S. 833, 855. Put succinctly, those facts have not changed at all.

Again, it is hardly surprising that Justice Kennedy did not list the "factual change" factor in his Citizens United analysis. Instead, he merely invents a new standard: Whether the prior case was "well reasoned." See Citizens United, 558 U.S. __(2010)(slip op. 47). After all, if he had applied his own test from 1992, he could not in good faith have argued that "facts about corporate influence on politics" have significantly changed in twenty years. So he just ignored what he said in 1992 and made up something else.

See how easy it is to be a Supreme Court justice? You don't even have to stick to what you said before. You can just make things up as you go--as long as you get five votes on it.

But this is all very sad. After all, stare decisis exists to preserve public faith in our Judiciary. If the public sees--as it must now--that the Court willingly discards recent precedent simply because Republicans have more seats than Democrats, it will conclude that the Court is no better than Congress. Yet the Court is supposed to be our "independent branch," an erudite institution that rules on lasting constitutional principle, not casual politics. When the Court coarsely disregards recent precedent--especially on explosive political issues like election control--it sullies itself in ways that are difficult to repair. When the Court acts like this, it invites the same dismissive cynicism that the public usually reserves for elected officials. Principle means nothing. The Court just devolves into another political battleground.

And shame on Justice Kennedy. His hypocrisy has reached epic levels. He does not even apply his own lofty rhetoric about stare decisis. Rather, he abandons it the moment he encounters a case with which he "disagrees." He dissented in Austin twenty years ago. Then he joined an opinion that passionately defended stare decisis two years later. On that basis, one might think he would think twice about lightly overruling recent cases. But instead he overruled Austin without even using the grandiose stare decisis test he so forcefully advocated in Casey. This time, he did not even spend three pages dismissing stare decisis.

He really must not have liked Austin.

Apparently, our Constitution now functions according to a new test: Whether Justice Kennedy likes a case. Thankfully for him, he has four guys who will stand with him in most situations. And all you need is five.

CITIZENS UNITED v. FEC : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 1

Perhaps against my better judgment, I passed several hours this weekend working through the Supreme Court's recent campaign spending case: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). In brief, the case invalidates a Congressional Act that restricts corporations from making "independent expenditures" or issuing "electioneering communications" that expressly "advocate the election or defeat of a particular Federal candidate" within 30 days of a Federal election. 2 U.S.C. §§ 441(b), 434(f)(3)(A). The Court said that the Act violated "all corporations' right to political speech" under the First Amendment. In the process, the Court overruled a 20-year old precedent that upheld the same law on the State level: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

I reacted with surprise when I learned what the Court had done. After all, it made perfect sense to me why Congress would want to restrict corporations' ability to spend money advocating particular Federal candidates: To prevent massive, wealthy businesses from deluging the public with their views, foreclosing fair debate in an election. Money buys influence. Even if corporations do not use money to literally "buy off" a candidate, they can easily use it to buy up all the airtime and essentially tilt the playing field to favor candidates they like--namely, guys who support corporations and their agendas.

In 1990, the Supreme Court said as much. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Court--speaking through a 6-3 majority--concluded that restrictions on corporate "independent expenditures" during elections did not violate the First Amendment. True, such restrictions impacted corporations' "freedom to speak." But the Court found the State's interest in preventing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form" justified restrictions on corporate political speech. Id. at 660. The Court further reasoned that a State could restrict corporate spending on elections in order to curb "corruption or the appearance of corruption." Id. at 659.

In other words, the Court recognized in 1990 that corporations hold disproportionate political influence in America because they have so much more money than individual voters. That was true 20 years ago. It is even more true today. Corporations are getting bigger and bigger. Traditional competitors merge with each other. Their treasuries grow. And they can use that money to dominate the airwaves before elections in ways that individuals cannot.

But now the Court overrules Austin. Writing for the new conservative majority, Justice Anthony Kennedy called Austin "poorly reasoned," even though six justices voted for it just 20 years ago. So I guess that means a case is "poorly reasoned" when it tells the truth about corporations. It is no accident that Kennedy did not vote for Austin back in 1990. Today he gets his revenge, thanks in large part to right-wing help from Bush appointees Clarence Thomas, John G. Roberts and Samuel A. Alito. Those guys weren't around in 1990. Now they're calling the constitutional shots: They think Austin was "poorly reasoned," so they overruled it.

Why did they think Austin was "poorly reasoned?" After all, doesn't it seem obvious that Congress should take steps to prevent massive corporations from dominating news cycles at election time? I think so. But I'm not on the Supreme Court.

Much to my amazement, the conservatives actually phrase the debate in "liberty" terms. They think that corporations are exactly the same as private individuals when it comes to First Amendment rights. Applying that legal fiction, they think that corporations--like individual guys on soapboxes--have the right to unlimited free speech. And they are outraged that "poor little corporations" might face criminal prosecution under the law if they spend money supporting a Federal candidate before an election.

To be clear, the Federal law in this case does not bar corporations from spending money on elections. It merely requires them to set up separate entities for political purposes--so-called "Political Action Committees" (PACs). If a corporation wants to spend money advocating for a candidate, it has to spend through the PAC, and the PAC must report its funding sources. This allows the public to see who is paying for the corporate messages. PACs must also keep a treasurer and records. Yes, corporations have to endure some bureaucracy before exercising their First Amendment rights under the law. But it is not as if they cannot speak: They must merely follow a few more administrative steps than private individuals.

Yet the conservatives scream bloody murder about these administrative steps. How unjust and unfair, they say, that corporations must form new entities and pay some paperwork expenses in order to influence Federal elections! Justice Kennedy paints a doomsday scenario in which he claims that "poor little corporations" cannot afford to comply with these "administrative steps" prior to speaking on an election. He says nothing about the mammoth corporations that have the time and resources to comply with the law. No, it's all about the "little corporations--" the poor, wronged little corporations and small family businesses.

In truth, it is extremely easy for small businesses to circumvent the law here. Assuming that small businesses even have the capital needed to advertise for major Federal elections, they could avoid problems with the law merely by creating a PAC or by speaking as individuals. The law only applies to corporations, so a "little" corporation could sidestep it by refraining from speaking as a corporation. If a "little" corporation only has two members, they could speak as individuals "with connections to small business." They do not need a PAC. They still have their individual First Amendment rights. When the law involves fictions like "corporate people," it is easy to be imaginative in thwarting those fictions.

In this light, it is foolish for the conservatives to crusade for the "poor, wronged little corporations." By standing up for the "little corporations" in Citizens United, they actually abolished restrictions on the big corporations--and they were the ones who caused the problem in the first place. They threw the baby out with the bathwater. But that was probably what they intended all along.

And what glib reasoning the Court used to reach its corporate-friendly conclusions. While I might find it obvious that "immense aggregations of corporate wealth" have a "corrosive and distorting influence" on Federal elections, the Court resolved that quandary easily enough. On this point, Justice Kennedy merely says: "We conclude that independent expenditures made by corporations do not give rise to corruption or the appearance of corruption." Citizens United, 558 U.S. __ (2010)(slip. op. at p. 42).

Oh, all right. I'll just take your word for it. When I see a corporation funneling $140 million to advocate a Republican candidate for Senate, I won't assume any corruption. Corporations, after all, are selfless and would never do anything underhanded.

Let us even imagine that corruption--or the appearance of corruption--does not flow from corporate expenditures on behalf of a candidate. Even then, the fact that a corporation spends massive amounts to elect a corporate-friendly candidate creates popular perception that the corporation "bought" the candidate.

But Justice Kennedy resolves this issue easily enough: "The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy." Citizens United, 558 U.S. __(2010)(slip op. at 44).

Of course not, Justice Kennedy. How could I lose faith in our democracy when major corporations outspend their ideological opponents by millions to get pro-business Senators, Representatives and Presidents elected? How could I lose faith in our democracy when major corporations buy up all the airtime to get their guys in office? After all, I have to respect corporations' First Amendment rights, too, don't I?

According to Justice Kennedy, indeed I do--even if respecting a corporation's First Amendment rights makes it almost impossible to effectively exercise my own.

At this point, we begin to see the real problem with the conservatives' philosophy about corporate free speech rights. After all, when a powerful person--or a powerful group--exercises his free speech rights, he makes it more difficult for less powerful individuals to voice theirs. It is elementary that money translates into political influence. People with more money can speak more loudly on issues than those with less. By definition, corporations have far more money than even powerful private individuals.

Under this reasoning, it is easy to see how corporations can drown out debate simply by exercising their First Amendment rights. They can overwhelm private opposition by spending massive sums on ubiquitous advertising. That is the "corrosive and distorting influence" that the Court described in Austin. And corporate power to exert "corrosive and distorting influence" is the reason why Congress imposed limitations on the their ability to exercise their speech rights in the first place. Put simply, when corporations exercise their speech rights, they make it progressively more difficult for individuals to exercise theirs.

That is the real meaning of the conservative "corporate liberty" argument: By freeing corporations to speak, everyone else has to shut up and listen to them. In my view, that is not what the First Amendment is about. The First Amendment is about individual rights, not corporate rights. If corporate free speech rights make it difficult for individual free speech rights to survive, I have little problem regulating corporate free speech rights.

But Justice Kennedy does not acknowledge any of this. He does not see the obvious--and disturbing--practical implications behind his reasoning. Rather, he seems to dwell in some ethereal place in which corporate liberty is the same as individual liberty. As such, he sees the corporation as the victim. He even ascribes wisdom to corporations, as if corporate speech could actually enlighten the population: "Corporations do not have monolithic views. On certain topics, they may possess valuable expertise, leaving them best equipped to point out errors and fallacies in speech of all sorts, including the speech of candidates and elected officials." Citizens United, 558 U.S. __(2010)(slip. op. at 48-49).

Contrary to this rhetoric, corporations do have monolithic views on many issues. When it comes to profitability and shareholder enrichment, all corporations are the same: They want to make as much money as possible. That is a "monolithic view." In that sense, corporations will always say the same thing: Namely, whatever will benefit the corporation in the circumstances. In political speech, that means a corporation will always say things to support candidates who will make them richer. Given that, it is ridiculous to think that corporations will somehow "enlighten the public" with their "diverse viewpoints" on life. Corporate political speech is all the same: It is calculated to get people elected who will make them richer. End of story, Justice Kennedy.

In sum, this case disgusts me. I have other objections about it that I will raise in a later post. But for now, it is enough for me to say that the conservatives' view about "corporate liberty" eviscerates the First Amendment's focus on individual expression. Congress understood that corporations had to cede some expressive liberty in order to protect everyone else's relative ability to engage in political speech. Now that the Court has abolished those restrictions, it has opened the door to even greater corporate control over government.

Corporate control over government was already bad before this case. Now it will get even worse. As I suggested in a satire a while back, we might as well just rename the country the "United States of America, Inc." because that's exactly where we're headed. Or maybe we're already there.

IF PALIN WINS, OESTERHOUDT EMIGRATES

I CAN PROMISE YOU THIS...

I just read an article in the New York Times detailing Sarah Palin's increasing political influence. It mentioned that she is positioning herself for future elections and that she even is "educating" herself about relevant events so she can better compete with her opponents. She has walled off her home and turned it into a "compound" for conservative patrons. She makes daily Twitter broadcasts to millions outlining her "rogue" approach to American government, namely, that there should basically be no government--beyond a police department and prison system, of course. You know, to lock up undesirables, communists and the like.

I guess that's what they mean by "The Tea Party Movement."

Well, no matter what they mean by it, today I am making a promise:

I, Balthazar Oesterhoudt, author of that certain online periodical entitled "Reason, Commerce, Justice & Free Beer," published in the GREAT REPUBLIC of the UNITED STATES OF AMERICA, do hereby promise and commit to LEAVE this GREAT REPUBLIC of the UNITED STATES OF AMERICA if--and on the express condition that--SARAH PALIN is elected President of the UNITED STATES OF AMERICA.

That's my promise. If Palin wins, Oesterhoudt emigrates. That's all there is to it.

So, if Palin takes the White House, Oesterhoudt is taking Berlin. End of story.

I usually don't write on the weekends. But the sheer potential horror of a Palin government moved me to write this morning. I don't have a complicated message today. All I want to say is that if the American people really elect Palin, I have no place among them. It's no answer to just cower among my fellow radicals in New York. If Palin wins, it symbolizes a much larger problem than mere sectional differences between Americans. It symbolizes the victory of foolishness over reason, ignorance over learning and backwardness over tolerance.

So again, if Palin wins, ich bin ja raus hier... I'm outta here !

OUR SHAMELESS, DISGUSTING SUPREME COURT

OESTERHOUDT STRIKES

Today I am reading the Supreme Court's decision about corporate funding in Federal election campaigns: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(No. 08-205 slip op.). I have already heard horror stories about this case. But I am always careful to judge Supreme Court cases without actually reading them. The press usually distorts what Supreme Court cases actually say. Sometimes they exaggerate. Other times they leave out disturbing (or encouraging) nuances. If my legal education taught me anything, it was always to read a text carefully before saying anything about it. And you really have to do that in order to understand a Supreme Court case.

That is not to say that magic lies within Supreme Court cases. Far from it. In most cases, Supreme Court decisions represent nothing more than gross political prejudice masquerading as erudite legal science. Justices make up their minds about the political issues at stake in a constitutional question. Then they instruct their law clerks to dress up their prejudices in neat legal rhetoric for the presses. Principle rarely plays a role in this process. It's just power and political judgment operating as law.

In law school, I read old Supreme Court cases and marveled at them. In the 1950s and 1960s, the Court actually seemed to want to find justice in American law. I even dreamed about becoming a justice myself: It seemed that they could actually do some good in the world. Men like William J. Brennan, Jr., Thurgood Marshall and William O. Douglas became my intellectual heroes because they spoke out against entrenched American injustice. And they bent positive law in order to achieve justice: They knew that positive law could legally create injustice just as easily as a mob could inflict injustice without law.

But those days are long, long gone. Supreme Court justices today do not fight the good fight. They are tired, uninspiring, lukewarm political actionaries who do less to enlarge individual rights than to stamp out what few liberties Americans still have. Worse, the current five-member conservative alliance is far more concerned with corporate freedom than individual rights. Under Chief Justice John G. Roberts, Jr., the Constitution stands for corporations, not people.

That is not inspiring. It is just disgusting.

It is doubly disgusting because justices today actually reference Supreme Court precedent enlarging individual freedom to defend massive corporations. I have only made it through the first 12 pages in Citizens United v. Federal Election Commission, and already Justice Kennedy cited two cases in which Chief Justice Roberts referenced cases from the liberal 1960s to argue that "corporations need freedom, too." This is like the KKK using Brown v. Board of Education, 347 U.S. 483 (1954) to argue that "murderous white bigots are people, too." This sheer dishonesty--and ignorant contempt for American history--makes my jaw drop.

First, Chief Justice Roberts cited New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, arch-liberal justice William J. Brennan, Jr., concluded that newspapers could not be sued for libel when publishing stories about "public figures" and "matters of public concern." The case stands as a testament to individual free speech rights. It established a principle that the people can speak freely about the powerful without substantial legal worry under the First Amendment. It reinforced the idea that the First Amendment is the people's check on the powerful: They have a right to speak no matter how exulted their target.

But now comes Chief Justice Roberts. He rips Sullivan's hopeful constitutional language from its context to support a conclusion that the First Amendment "must give the benefit of any doubt to protecting rather than stifling speech." Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007)(opinion of Roberts, C.J.).

Justice Brennan wrote those words to promote public speech by individuals against powerful interests. They made sense in that context. But now Chief Justice Roberts shamelessly co-opts them to promote corporate speech designed to influence elections and ram corporate messages down people's throats. This is the ultimate misuse of Sullivan. Justice Brennan would have been horrified to see his language warped for this purpose.

Chief Justice Roberts does not end here. He uses another classic liberal First Amendment standard from the 1960s to support neoconservative corporate license in the 2010s: NAACP v. Button, 371 U.S. 415 (1963). In that case, the Court struck down segregationist Virginia laws that banned black political agitators from promoting civil rights. Justice Brennan--the liberal champion--again wrote the opinion, remarking: "First Amendment freedoms need breathing room to survive." Id. at 433.

Chief Justice Roberts used the same sentence to defend the corporate freedom to ram political advertisements down people's throats. Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 468-469 (2007).

This is so outrageous it is almost satirical. To even imagine that a Republican Chief Justice would steal language from a symbolically liberal free speech case to aggrandize corporate power is so shocking that it prompts disbelieving laughter. But Chief Justice Roberts did exactly that: He used a 1960s civil rights case about the First Amendment's importance in the individual's arsenal against injustice to bolster a corporation's power to maintain its strength over individuals.

That is almost as inappropriate as prying random words from a Hitler speech to commend Jewish freedom.

Sadly, this is how the Supreme Court operates these days. It has no respect for principle, no respect for American history and no respect for consensus. It ignores the fact that the Constitution should provide guiding unity on major principles, not an excuse for discord. On hot-button issues, its members dig in their heels and act like children--or Congressmen. They cannot agree on anything except their own base prejudices, which they enshroud in law as soon as they get a fifth vote--just like Congressmen.

Maybe this is just how any human being would behave in the circumstances. But these are Supreme Court justices; we should hold them to a higher standard. They say they are not politicians. They say they rule "on the law and nothing else."

But I see through the charade. It's all nonsense. It's all just crude power play. And it's disgusting because it's so dishonest. If a Chief Justice can corrupt hopeful language from 1960s civil rights cases to enlarge corporate power today, it is obvious that the Supreme Court has no shame at all. Just like any political group, it will use whatever means at its disposal to achieve particular results.

Yet the Constitution is more concerned with means than ends. The People adopted the Constitution because they demanded respect for individual rights against the government and larger powers. While corporations may not have been as powerful in 1787 as they are today, it is indisputable that they now wield enormous influence over American lives. Corporations can dominate debate about public issues in a way the Framers could scarcely have imagined. That is dangerous for individual First Amendment rights.

Apparently, this Supreme Court does not understand that. Now I'm afraid to continue reading the case. Who knows what terrors lurk in its later pages.

On the other hand, I might get a few guffaws along the way--and more ideas for satire.

I can't write the shit Supreme Court justices come up with.

READING DAY AND A WORD ON WASHINGTON GRIDLOCK

I found some really interesting stuff to read today. I spent the better part of the morning paging through another book on ethics. Then I had some phone calls to make. To be blunt, it cut straight into my writing time.

But that doesn't matter. I grow when I read. I stock up on ideas. When I sit down to write tomorrow morning, I'm sure my inspiration will be flowing at full speed.

In the meantime, thanks for checking in. And don't forget to check out my archives!

I started looking through everything I've written so far about Barack Obama. I'm amazed that my satires have partially proven correct. Last year at this time, I never would have thought that my jokes about stubborn Republican opposition to Obama would have proven true. But oh how they did: Painfully so. In fact, the Republicans have succeeded in completely intimidating Obama simply by digging in their heels, crossing their arms and saying the word "no."

Democrats have not done much better. They refuse to stand up to the Republicans even though they have massive Congressional majorities. But whenever they pass something, the Republicans start screaming "tyranny by the majority." Now most Americans think Obama caused all the problems that originated more than 10 years ago. It's just hopeless.

Who'd a thunk that would have happened on February 3, 2009? I know I didn't. On the other hand, perhaps we all expected just a little too much from the Washington political system. I don't blame Obama as much as I blame the entire wretched two-party system with its identical, wealthy members. There really is no difference between Republicans and Democrats. They all come from the same social class. They just debate each other for show. In the end, nothing changes. Nothing at all.

But at least it gives me something to satirize. I guess that's the saving grace for me. There is abiding truth to the old Russian adage that "laughter through tears" is the best kind of laughter.

Oesterhoudt

IF YOU RUN FOR SENATE, I DEMAND IMPECCABLE GRAMMAR FROM YOU : THE SENATE IS NO ARISTOCRACY

AN ESSAY

New York prepares for an extremely nasty Senate race. For the second time in a decade, an out-of-Stater has taken residence in New York in order to run for Federal office. Eleven years ago, Illinois-born Arkansasan Hillary Clinton bought a house in Westchester County so she could run for Senate. Now, Tennessee native Harold Ford, Jr. has moved to Manhattan in order to battle Democrat Kirsten Gillibrand for her Senate seat.

Technically, there is nothing wrong with out-of-State people moving to New York to run for Senate. It's not like everyone can run for Senate. After all, the American constitutional system is no democracy; as a practical matter, you need to be "part of the club" to run for Senate--the most hallowed clique in the United States. You can't be a plumber from Queens to run for Senate. You can't be a drug dealer or even a university professor with modest savings. No, you need to be in the political elite. You don't need to be an "elite person" from an ethical or moral perspective. You just need to be bred for the job. Generally, that means coming from an extremely wealthy, well-connected family. That's what "elite" means in American political discourse.

Harold Ford meets the criteria. He comes from money. He has served five terms in the United States House of Representatives as a Tennessee delegate. He has sufficient political and economic connections to qualify for Senate membership. In essence, he is "elite." He has the backing and pedigree to join the club.

But unlike Hillary Clinton, Harold Ford's political philosophy does not find an easy home in New York. New York is a famously liberal State. That is why few people had a problem with Hillary Clinton when she waltzed into Westchester to run for Senate. Her political views matched most New Yorkers' views. They elected her by a wide majority, even though some Republicans squawked about "carpetbagging." They thought New York offices should be for New Yorkers, not transplanted former First Ladies from Arkansas.

Harold Ford votes like a southern Republican. New Yorkers like to think that they are nothing like southern Republicans. Yet the same Republicans who complained about Hillary Clinton "carpetbagging" to New York in 2000 now say nothing about Mr. Tennessee.

Who is Harold Ford? New Yorkers should ask that question. They did not have to ask the same question about Hillary Clinton. She was a household name long before her election to the Senate. Everyone knew where she stood on major political issues. Most New Yorkers liked her long before she moved to New York. But what about Ford? Most New Yorkers know nothing about him. He's not even 40. He served ten years in the House. What's so special about that? Unlike Hillary Clinton, he is nothing close to an internationally-recognized celebrity politician.

Ford wrote a brief article yesterday in the New York Post to inform New Yorkers about his candidacy for the Senate. He struggled to deflect early Democratic criticism that he is a "right-wing nut" who opposes abortion and gun control. After all, according to the critics, New Yorkers strongly support both abortion rights and gun control; it would be anomalous if their Senator opposed these things.

I do not know what to think about Ford. I can only speculate based on experience and intuition. Applying my experience, I can say that most representatives from Tennessee would not have their jobs if they supported abortion rights or gun control. Folks from Tennessee don't care much for abortion, and they certainly don't tolerate no Yankees taking away their guns for no thang, no how. Despite Ford's contention that he supports both abortion rights and gun control, I have trouble believing that he could have won five terms in Tennessee with that position. I mean no disrespect to Tennessee when I say that the State is not known for its grand liberalism. That reputation informs my intuition about any politician who serves there.

I know the Civil War has been over for a long time. But former Confederate States are still former Confederate States. Some things survive the generations. Just talk to a drunk Southerner to find out what I mean.

Ford wrote in his article: "I am pro-choice--have always been since I entered politics almost 15 years ago." N.Y. Post, Ford: I'm gearing up for Senate race, Jan. 12, 2010 at 5. But immediately below his article, another blurb disclosed that in 2006 he said to MSNBC's Tucker Carlson: "I'm pro-life, Tucker…I don't run from that." N.Y. Post, Obama elects to stick with Gillibrand, Jan. 12, 2010 at 5.

In lawyer-talk, this is called "impeachment." You're the jury. You decide which statement you want to believe.

No matter what Harold Ford actually thinks about political issues, I insist that he write clear, grammatical English. If someone wants to join America's most elite legislative club, he or she had better know how to write well. Unfortunately, Ford's article reveals that he does not.

First, Ford does not grasp the magical rhetorical art of the semicolon. On terrorism, he says: "Defeating terror isn't a talking point in New York, (sic) it's a way of life." N.Y. Post, Ford: I'm gearing up for Senate Race, Jan. 12, 2010 at 5. Whenever two sentences can stand on their own and they depend on each other for rhetorical effect, commas do not suffice to connect them. Only a semicolon can achieve the desired impact. First-year law students learn this very quickly under pain of academic chastisement. Ford apparently never learned his grammar lesson. He proves it in the next paragraph when he writes: "Rebuilding an economy isn't an item on an issue checklist, (sic) it is what New York does--and must do." Id.

Oops. Same boo boo. Aren't Senators supposed to be rhetorical wizards? This guy doesn't even get his grammar right.

But Ford's grammatical woes do not end with semicolons. He also has a problem with run-on sentences. Try this one on for size: "And New Yorkers want an honest and serious debate about how to grow our economy, create new jobs downstate and upstate and keep New York state (sic) and our country safe." Id.

Whew! Talk about trying to cram too many ideas into a single breath. Let's try to unpack this linguistic crate: Ford thinks that New Yorkers want honest debate about the economy, jobs and safety. He also thinks they want serious debate on the same subjects. He further thinks New Yorkers want both "honest and serious" debate about those issues from an upstate/downstate perspective, not to mention a State/Federal perspective. That 's a lot of debate from a lot of perspectives. It took me a good four sentences to mention all the ideas he squeezed into one. Needless to say, you can't effectively communicate so many things in one line. Multiple adjectives and conjunctions do not make the reader's job any easier.

Some will inevitably label me petty for criticizing Ford's grammar. After all, we all make grammatical blunders from time to time. But I respond that anyone who wants to be a United States Senator must adhere to a higher linguistic standard. I could forgive a college freshman's incessant run-ons and semicolon misuse. But I can't forgive the same foibles in a man who wants to join America's most elite legislative club.

On the other hand, perhaps I demand too much. Ford fits the bill for membership in the Senate. He's wealthy, he comes from a political family, he has connections and he has powerful friends. He comes from the right social class to get in the door. Sadly, that's all you really need to hold high office in the United States. If you happen to be intelligent and eloquent, that's great; but it's not required. In this sense, we see once again that America is neither a democracy nor an aristocracy.

In the original constitutional understanding, the Senate was supposed to be America's "aristocrats' club." It was supposed to comprise the "excellent" people from across the land. Yet as Ford's case shows, Senators need not be intellectually "excellent." They need only fit the property and pedigree requirements for membership. Quality is irrelevant.

I wish quality were more relevant in American government. The word "aristocracy" has a dirty meaning in American discourse because Americans allegedly believe that everyone is equal. They also associate "aristocracy" with the arrogant British nobility that led the colonies to revolt from England.

But in the Aristotelean sense, it is no insult to call someone an "aristocrat." To the contrary, it is the best thing a politician can be. A true "aristocrat" is a person with naturally excellent moral, intellectual and ethical characteristics. Aristocracy implies inequality; not everyone can be "excellent." Yet this is not a bad thing, because it is only prudent that "naturally excellent, unselfish" people rule the State.

Ford's case shows that American Senators are not aristocrats. They are oligarchs. Oligarchy means rule by a few, irrespective of personal excellence. To be a Senator, you don't need to be excellent. You just need to be part of the "few" who are eligible for the job. In that sense, it is incorrect to call Senators "aristocrats." If they were truly aristocrats, there would never be any scandal, corruption or acrimony in the Senate. But a quick glance at congressional history reveals that scandal is the rule, not the exception.

Instead, we have an oligarchy. Oligarchs don't need to be excellent. Far from it: They don't even need to know how to use semicolons.

OBAMA RESIGNS; TURNS POWER OVER TO MCCAIN

OBAMA OUT ; REPUBLICANS IN

NEWS FLASH

WASHINGTON, D.C.--In a mildly surprising development, President Barack Hussein Obama resigned the Presidency at 8:03 AM today, shortly after learning that the United States Senate passed health care reform.

"This Christmas, I have decided to put America first," Mr. Obama explained. "The fact of the matter is that the Republicans don't like me. They say they have better ideas for the country. They even show up to my Presidential appearances with guns. I get the message. I'm listening. You guys have better ideas than I do. Rush Limbaugh even says I have no idea what I'm doing. He knows what he's talking about. For those reasons, I hereby cede the Presidency to Senator John McCain of Arizona."

Democrats protested President Obama's decision. Secretary of State Hillary Clinton begged the Chief Executive to stay the course. She pointed out that President Obama commanded substantial majorities in the House and Senate. She also said that the country overwhelmingly voted for his message of hope in 2008. She pointed out that Hollywood celebrities and even Oprah Winfrey adored him. "People love you," she said.

President Obama disagreed. He cited several FOX News channel polls showing that most Americans did not approve of the way he was leading the country. He also referenced a Mission Statement from the Tea Party Association of America claiming that he was "worse than Hitler" because he supported health care reform, executive compensation caps and postal service wage increases. "It is apparent to me that most people do not like the way I am doing the job. If I'm worse than Hitler, it would be best for the country if I simply step down and let bygones be bygones."

Concerning Oprah Winfrey, President Obama said: "I am grateful for Ms. Winfrey's steadfast support. But the Republicans have Rush Limbaugh. More people listen to Rush than Oprah, and more Rush listeners have rifles than Oprah listeners. I am prudent enough to know who's more important."

Senate majority leader Harry Reid (D-NV) told the President: "We outnumber the Republicans 60 to 39. We outnumber them in the House. We have an opportunity to bring real change to America. We just passed health care reform. We can do anything we want in Congress."

President Obama thanked Mr. Reid for his efforts in the Senate. "It's great that you passed health care reform," he said. "But Orrin Hatch said the bill was 'mortally flawed.' All 39 Republicans voted against it. I have to listen to them. They say I am destroying the country and that I am turning the United States into a Soviet Republic. Sarah Palin even said that I am going to kill her grandparents and pets. Given these cogent criticisms, I have no choice but to resign and allow the Republicans to lead America. They obviously have a much better vision--and a stronger grasp on reality--than I do."

Treasury Secretary Timothy Geithner called the President's decision "premature." In a phone call, Mr. Geithner asked the President to reconsider. "You must give financial reform more time. We have only begun implementing regulations on Wall Street that will make the financial industry more accountable. As you recall, unregulated securities and lending markets created the financial crisis. If we let the Republicans back into power, we could see the whole process repeat itself."

"Tim, I appreciate your concern," Mr. Obama responded. "But Bill O'Reilly called my attempts to reform the financial industry 'ludicrous.' Shepard Smith called me a 'bloodthirsty communist determined to abolish private property.' And Rush Limbaugh said I deserved to be lynched for redistributing hard-earned Wall Street money to Hurricane Katrina victims. How can I ignore these complaints? They are too intelligent for me to ignore. I obviously made the wrong decision to target runaway banks and predatory lending houses. After all, they have a right to the American dream, too. I am man enough to admit I was wrong to pursue justice."

President Obama also explained that there was no practical point in resisting the Republicans. "The bottom line is that you can't disagree with Rush, Bill O'Reilly or Greta van Susteren. And you certainly can't disagree with Lindsey Graham, John Cornyn or Kay Bailey Hutchinson. When Republicans make up their minds, there's nothing you can say to convince them otherwise. It doesn't matter that they only hold a minority in Congress; they know what they are talking about--and they have lots of guns. I have tried to introduce collegiality and bipartisanship into American government. But it is a hopeless crusade. Every time I try to extend my hand, they label me a rabble-rousing negro socialist magician. Religious leaders even call me a godless tyrant. I'm a lawyer by trade. How can I hold a reasoned dialogue with these voices? It's just no use. It is easier just to give up and let John McCain handle our problems."

"I am not afraid to listen to Republicans," President Obama said. "I have listened carefully to them. They said that my Middle East tour was 'useless play-acting.' They called my commitment to troop reductions in Iraq 'Muslim treason.' They said it was 'hypocritical' for me to increase our military presence in Afghanistan. And they called my attendance at the Copenhagen Climate Conference an 'active stance against private property in the United States.' They repeatedly point out that I live in a fantasy land, that I misunderstand the facts and that I am not really an American citizen. They claim I am all talk and no substance, and that all I can really do is give a speech and pardon turkeys."

"Put simply, I must listen to these compelling complaints. Neither the country nor I get anywhere when we ignore the Republicans. Like it or not, the Republicans speak reason and sense. True, America voted against the Republicans in 2006 and 2008. But listen to them now. They say everything that is wrong with America is my fault. People believe them. Now the American people blame me for the financial crisis and the War in Iraq. They are angry that they still can't find a job. The Republicans understand that anger; and they channel it right at me. Well, it worked. I'm done."

President Obama expressed confidence that his successors would solve all the problems he could not. "I have little doubt that John McCain will easily overcome the financial crisis and create jobs for America. As long as John listens closely to Bill O'Reilly and Rush Limbaugh, there is no way he can do wrong. Sure, he might draw criticism from Wolf Blitzer and Anderson Cooper…but a lot of good their praise did me. People like Rush and Bill because they are men's men. Wolf and Anderson are, well, a little too froofy for the average American."

"America, we tried," Mr. Obama said. "Last year, I said 'Yes We Can.' But it turns out that the Republicans can, not us. It’s time to let them put their successful ideas into practice. It is the right thing to do for America."

President Obama continued: "I have always believed in democracy. When the people want unregulated markets, inaccessible health care, torture, foreign wars, reduced civil liberty, gross class disparities, merciless credit exploitation, cultural intolerance and irresponsible corporate government, I say let them have it."

Reacting to President Obama's announcement, Sarah Palin was overjoyed: "Is this the best Christmas present a mom from Alaska could wish for? Oh, you betcha! It's a great day in America when a person like Hitler gives up. Now we can get to work and get this tea party on the road."

DEMOCRACY : AN AMERICAN MYTH

AN ESSAY

Americans learn to revere the word "democracy." In public school, they learn that the American government is "democratic." They take pride in "democracy" because "democracy" is a "free" form of government that is "better" than other governments. After all, when students learn about the American Revolution, they inevitably hear that our Framers established a "democracy." And "democracy" is "better" than the unjust "monarchy" that led them to revolt. Applying these indoctrinated ideals, Americans claim that they never believe in "family distinctions," "aristocracy" or other "elitism" based on inherited titles.

I venture that this is all nonsense. The United States is not--and certainly never was--a democracy. And Americans believe in aristocracy far more than they like to publicly admit: The truth is that both democracy and equality are American myths.

I first doubted the rhetoric about American democracy when I read history books about ancient Greece. In those books, I learned that pure "democracy" imposed no limitation on a person's participation in government. Every voice was equal. Everyone could vote and every decision required majority approval by all. There was no "representative body" that made decisions "in the people's name." No, in pure democracy, the people rule--literally. Everyone has an equal say in policy, from the richest landowner to the lowliest beggar.

Democracy sounds like a wonderful idea. After all, don't we all want to be equal to one another? Should we not all have an equal right to decide on important public questions? Isn't it somehow reassuring to know that the government works for you, and that you have a real chance to influence it? Of course it sounds great. Democracy is idealistic. It lends itself to myths. And like all myths, it does not really exist.

Lately, I've been re-reading Aristotle's Politics. As the world's first real political scientist, he presaged almost every significant political debate that came after him. By categorizing governmental forms, he created the vocabulary of modern political discussion. And Aristotle's text gives me immense support for my contention that the United States is no democracy--not even close. Rather, the United States is an oligarchy.

In criticizing Plato's Laws, Aristotle makes some cogent observations about voting. Americans learn that "democracy" is all about voting. They learn that "going to the polls" proves that "everybody means something" in our political system. There is a theme in American voting rhetoric about equality and dignity. Because we all can supposedly vote, that makes us all equally powerful and worthy. But Aristotle says: "The practice of selection by lot from a number chosen by election is common to both oligarchy and democracy; but to impose upon the richer citizens, and upon them only, the obligation to be members of the Assembly, to vote for office-bearers and do any other duty that falls upon a citizen--that is oligarchical." The Politics, Book II, ch. vi, § 1266a5.

In early America, only white men with sufficient landholdings could vote for representatives. In other words, the "obligation to be members of the Assembly" and "vote for office-bearers" fell solely upon the "richer citizens." Women, slaves and the vast majority of white men had no say whatsoever in government. They could not even go to the polls. Although voting restrictions have certainly diminished over time, it is still no easy thing to vote in the United States. State laws impose numerous handicaps on citizens' right to vote. And in a good year, we're lucky if 50% of the eligible voters actually show up to cast their ballots. Other State laws completely disable people from voting. For example, if you commit a felony--even a relatively minor one, like writing a bad check--you might lose the right to vote for the rest of your life.

In this light, America has historically been far more "oligarchical" than "democratic." If this were a true democracy, everyone would have been able to actively participate in government from the outset. We know this is not the case. Americans have never actively participated in their government. Rather, they elect "particularly distinguished people" from "particular social strata" to rule for them. This, too, is oligarchical. Think about where the Representatives and Senators come from. They are all generally wealthy, white and well-educated. They do not represent a fair cross-section of American society. If anything, they resemble the "richer citizens" Aristotle mentions in The Politics. Just look at Congress. These are not typical Americans: They are 535 people who are far more powerful and wealthy than the people who elected them. And for over a century in this country, they were exclusively landed white males.

Aristotle provides further support for the conclusion that the United States has been--and in many ways, still is--an oligarchy. Concerning oligarchy, he writes: "So also is the attempt to secure that a majority of the office-holders should come from among the wealthy, and that highest offices should be filled by those from the highest property-classes." The Politics, Book II, ch. vi § 1266a5.

What a striking insight. It is as if Aristotle predicted what the United States government would look like 2000 years later. Think about the "majority of the office-holders" in American government. What social class do they represent? You guessed it: They largely come from the "highest property-classes," or at least act like they do. Even President Obama made quite a bit of money as a lawyer and law professor before diving into politics. The fact that there are only two political parties reinforces the oligarchical nature of American government. Unlike European parliamentary systems, Americans have only two choices: Liberal rich guy #1 (the Democrat) or Conservative rich guy #2 (the Republican). There are no "Greens," "Socialists," "Labor Men," "Women for Animals' Rights" or "Christian Theologues." In the American system, every "high office holder" is basically the same: A wealthy believer in free market capitalism who owns significant amounts of property. That is oligarchy.

In the final analysis, it is clear that people from the "highest property-classes" run the American government. They always have, and they always will. Let's just be honest about our terminology: This is an oligarchy, not a democracy. It is simply false to call our system a "democracy," no matter how many people can technically vote. Despite this, it works in the government's favor to identify itself as a "democracy." After all, "democracy" has a magical ring to it. It conjures all kinds of hopeful ideals. It also fools the people into believing that they actually have a say in policy. History shows that people revolt when they feel they are powerless. But when they think their government actually speaks for them, they refrain from revolution. In that sense, calling America a "democracy" maintains social control, even if it is untrue. Calling America a "democracy" keeps things quiet. And that's just how oligarchs like it: It lets them continue to hold all the power.

Oligarchy proceeds on the premise that only a few hold political power. It implies inequality. Democracy, on the other hand, proceeds on the premise that everyone holds political power. It implies equality. Yet a quick look at inequalities in the American political system beginning in 1787 reveals just how absurd it is to call the United States a "democracy." And a quick look at the "kind of people" who have held high office in the United States over the years--Presidents, Senators, Supreme Court justices--merely confirms Aristotle's analysis: These guys (well, almost all guys) all came from the "highest property-classes."

In this light, it is simply disingenuous to delude our children into thinking that they live in a democracy. If they do not come from "high property-classes," they stand a much lower chance to ever influence government. That does not mean that they cannot rise into a "high property-class." It simply means that they must first obtain wealth before even thinking about politics. After all, it wouldn't be an oligarchy if poor folks suddenly held all the high government jobs.

In truth, no country can ever be fully democratic. Could a country in good faith entrust its most pressing concerns to half-fed beggars, idiots and wage laborers? Certainly not. It is reasonable to put political power into "competent" hands. And generally the wealthy are those most competent to administer the State. I simply believe we must be honest in the way we think about our government. That means dropping all aspirations to "equality" and "dignity." The sad fact is that perfect equality is a very bad idea when it comes to government. It would be better if we simply acknowledged that and stopped perpetuating myths that "everyone is equal" in American society. That is not the goal, nor can it ever be. Yet even the oligarchs in power circulate meaningless rhetoric about democratic opportunity and equality for all in America.

We are oligarchs; why not just admit it? Let's at least stop lying to our children about democracy.

ALTERNATIVE HEALTH REFORM PROPOSALS : LETTING EVERY VOICE BE HEARD

PERSPECTIVES ON THE HEALTH CARE DEBATE

For over a year now, our country has grappled with "the health care problem." At every level of government--and even at every level of our society--we have debated the moral, ethical, practical and financial ramifications that will flow from health reform. For the most part, we hear two sides. One side says that the United States has a "moral responsibility" to care for its citizens' health, even if it costs an astronomical amount and inhibits private commerce. The other side says that private health care more than sufficiently provides medical services to the American people. It also says that any government foray into health care will lead to crushing taxes and bureaucratic interference in private health care decisions. The other side says that the private system--despite its flaws--maintains the classic American spirit of free enterprise that yields beneficial scientific discovery. Without an economic incentive to pursue medicine, according to these voices, such discoveries would wither away.

Our Nation cares deeply about these questions. Congress has ferociously debated health care for months. Our citizens have come to blows over the issue in town hall meetings from Maine to Malibu. Many Americans see the health care debate as a symbolic battle for the country's soul. For them, health care represents sacred ground: If the government trespasses on it, every American's liberty will cease to exist. Some even think that State-run health care will result in "Death Panels" that decide whether elderly citizens live or die.

Here at Reason, Commerce, Justice and Free Beer, we take no position on the health care debate. We merely provide a forum in which Americans--and even foreigners--can candidly offer their opinions about this very important issue. Nonetheless, we find it regrettable that the debate has broken down along traditional political lines. We believe that democracy can only work when every voice is heard. And in the health care debate, it seems we only hear two voices: One Democratic, the other Republican.

As a serious news outlet committed to robust public debate, we believe that the American public has a right to hear alternative proposals for health reform. In that light, we are proud to share our readers' suggestions about how to solve the health care mess in the United States. These suggestions do not fall into the traditional conservative/liberal dichotomy. Rather, they express the compelling variety that makes America such a great Nation. We believe it is time to let every voice be heard on the health care question. Silence benefits no one. Our democracy can only survive when we allow everyone to speak, even those with whose perspectives we may disagree.

SUGGESTION #1: THE ARCHITECTURAL SOLUTION

Dear Sirs,

I am sick and tired of the Democrat-Republican back-and-forth over health care. As a working civil contractor with mouths to feed, I would like to suggest an architectural solution to our health care problems.

Health care takes place in buildings. It costs money to maintain buildings. In fact, the more square footage you have, the more it costs to pay for a building. Now, we could save so much money in the health care system if we simply tightened our belts and knocked down one wall per room in every health care establishment. Think about it. Every room in every hospital, clinic and doctor's office has four walls. If we just sacrificed one wall in every room that provides health care in America, we would reduce health care expenses by 25%. That money could be used for research, charity and providing care for the uninsured, all without governmental interference. We just need to do without one wall per room.

We can do it. We just need to tell ourselves that four walls is too many. I'm ready to make sacrifices. Are you? As a contractor, I know that most walls are unnecessary; we can get rid of a few. And when we do, we'll be amazed how much money we'll save.

Yours truly,

Bill McCloskey, Contractor, Omaha, Neb.

SUGGESTION # 2 : THE PRODUCTIVITY SOLUTION

Liebe Mitleser (Dear Readers),

In 1934, the new government in Germany declared: "God cannot have wished that a deformed baby live." We believe that statement can help America solve its health care problem.

America spends untold amounts caring for malformed children. It spends even more keeping people alive who would not have survived in nature. These people force up costs for everyone else who needs health care. And caring for them yields no increase in production. After all, caring for a deaf-mute with deformed arms for 40 years will not transform him into a Nobel winner or a successful grain wholesaler. Rather, he remains a muted cripple--and a money pit.

We believe, as the new government in Germany believed in 1934, that it makes no sense spending national treasure preserving worthless life. America could save countless dollars if it simply euthanized crippled children and hopelessly injured adults. These vegetables represent the single-most expensive item on the health care menu. Caring for them results in massive financial wastage without any hope of return. This is simply not good financial management.

We propose a final solution to the health care problem. By neutralizing high-priced cripples, mentally-defective children and brain-dead accident victims, we will flush the system with money, as well as free hospital beds for productive citizens who actually stand a chance to recover. We must be pragamtic. We must care for those for whom care will actually make a difference, not those who will never pay tax, never serve in the army and never invent anything worthwhile for society.

If we wish to reform health care in America, let us provide care only to those who can contribute something for the investment we make in them.

Sincerely,

E. Fritz Goebbels, Insurance Broker, Lansing, Mich.

SUGGESTION # 3 : THE CULINARY SOLUTION

Americans fail to understand just how expensive hospital food is. Every year, the health care system spends over $450 billion on low-quality entrees--including pudding--to feed patients. Although this is a shocking fact, I believe we can turn it to our advantage.

I have worked in the St. Luke's Milwaukee Critical Care Unit for over twenty years as Patient Diet Supervisor. During that time, I have seen first-hand how much money we waste on bad hospital food. True, we have nourished patients under our care. But they all complain about the food and many say they would rather eat their shoes than another foil-wrapped Chicken a la King.

I think we can meaningfully reform the health care system in America if we simply stopped serving food at hospitals. Patients don't like it anyway. Plus it costs over $450 billion per year. By dispensing with daily meals, we would free up funds that could be used to perform surgery, set splints, buy medication and open new wards.

Naturally the objection follows: So what will the patients eat? Simple: Anything they want. Nothing is stopping them from ordering their own meals or--God forbid--cooking themselves. Responsible citizens manage their own diets. Just because they are in the hospital should not make them think they can't cook for themselves anymore. If they want KFC, they can order it. If they want to cook a four-course Italian banquet complete with wine and cannoli, let them. This is about personal and financial responsibility.

Some patients might be too sick or injured to order their own meals. In that case, relatives can cook or order for them. It might be difficult for a relative to insert a chicken wing into the mouth of an intubated child, but no one said health reform would be easy. If some patients die because they cannot eat outside food, that's the price we pay. On the other hand, we will happily provide feeding tubes for patients who do not feed themselves. We simply leave it to the relatives to fill those tubes with milkshakes or other liquid meals.

It is amazing how much money we'll save by closing down hospital food services. Plus we'll encourage individual responsibility and healthy eating choices among the patients.

Yours very truly,

Julie M. Wakaska, Patient Diet Coordinator, Milwaukee, Wisc.