Category Archives: Law and Politics

#309: Racially Discriminatory Ticketing

This is mark Joseph “young” blog entry #309, on the subject of Racially Discriminatory Ticketing.

A music festival in Detroit aimed at a black audience openly advertised that tickets for white people (“non-persons-of-color”) would cost twice what the same tickets would cost for “persons of color”.  This clearly racially discriminatory policy had a justification, which we will address, but the justification was just as discriminatory.

Praise goes to Jillian Graham, who goes by the stage name Tiny Jag, a rapper who withdrew from the concert when she learned of this discriminatory policy, and informed her fans concerning the reason for her withdrawal.  Prejudice is just as ugly when reversed, and this was a case of reverse discrimination.

Afrofuture Youth, Detroit-based sponsors of Afrofuture Fest, explained their policy:

OUR TICKET STRUCTURE WAS BUILT TO INSURE (sic) THAT THE MOST MARGINALIZED COMMUNITIES (PEOPLE OF COLOR) ARE PROVIDED WITH AN EQUITABLE CHANCE AT ENJOYING EVENTS IN THEIR OWN COMMUNITY(BLACK DETROIT).

AFFORDING JOY AND PLEASURE IS UNFORTUNATELY STILL A PRIVILEGE IN OUR SOCIETY FOR POC AND WE BELIEVE EVERYONE SHOULD HAVE ACCESS TO RECEIVING SUCH.

WE’VE SEEN TOO MANY TIMES ORGASMIC EVENTS HAPPENING IN DETROIT AND OTHER POC POPULATED CITIES AND WHAT CONSISTENTLY HAPPENS IS PEOPLE OUTSIDE OF THE COMMUNITY BENEFITING MOST FROM AFFORDABLE TICKET PRICES BECAUSE OF THEIR PROXIMITY TO WEALTH.

THIS CYCLE DISPROPORTIONATELY DISPLACES BLACK AND BROWN PEOPLE FROM ENJOYING ENTERTAINMENT IN THEIR OWN COMMUNITIES.

The prejudice is obvious here:  Afrofest attaches wealth absolutely to color, that all white people are wealthy and all non-white people are impoverished.  That’s not only not how it works, that’s a set of stereotypes damaging to everyone.

I can assure you that Thomas Sowell, Justice Thomas, Barrack Obama, and Beyoncé Knowles are all “persons of color” and all have considerably more money than I have.  I suspect that at least some of them have more money than most of my readers, black, white, or other.  Were I better versed in people I could probably list hundreds of “persons of color” who are among the wealthy, from entertainment, sports, business, politics, medicine, and law.  But I suspect the reverse is similarly true.  AfroFuture wants to serve the poor of Detroit, but mistakenly assumes that there are no poor white people in the city.  Certainly the deep metropolitan areas of Detroit are predominantly black–but demographic statistics shows a not-negligible caucasion contingent.  Do they live in the wealthy Detroit neighborhoods?  I think there are no more of those.

AfroFest’s goals of ensuring access to entertainment for the impoverished in Detroit are admirable; their methodology is deplorable.

They could have achieved much the same goal by selling discounted tickets not to people of color, but to people with proof of residency:  create a set of tickets for Detroit residents, possibly including immediate suburbs similarly blighted, and require that anyone over a certain age presenting such a ticket at the gate also present proof of address.  That way people from the impoverished neighborhoods get the discount without reference to whether they happen to be black or hispanic or Asian or poor whites.  That would be a considerably less prejudicial way of discriminating, that is, of catering to poor people and making wealthier people pay more, instead of selling cheap tickets to wealthy blacks and making poor whites pay extra for theirs.

Of course, if AfroFest is correct that there are no wealthy blacks or poor whites in the Greater Detroit metropolitan area, they get the same result–and they don’t have to use racial profiling to do so.

#308: Assembly Candidate Edward Durr Interview

This is mark Joseph “young” blog entry #308, on the subject of Assembly Candidate Edward Durr Interview.

I received a letter from Edward Durr, seeking my support for his candidacy for New Jersey State Assembly in the 3rd Assembly District.  It was one of those fortuitous mistakes–he was contacting churches, and Google Maps somehow has determined that there is a church at my address.  Yet as Chaplain of the Christian Gamers Guild I am in a real sense clergy, and TheExaminer never, to my knowledge, revoked my title as Newark Political Buzz Examiner, even though I no longer write for them–I simply don’t submit articles, and since I don’t do that I don’t get paid for them.  However, as I sent Mr. Durr an e-mail to explain the mistake, I recalled that in 2015 I published interviews with several New Jersey candidates for House of Representatives.  Although I am not actively going to attempt to contact all the candidates for State Assembly in this election cycle (with eighty seats and two party candidates plus some number of independents for each, there must be near two hundred of them), I will commit to interviewing any candidate for state office who contacts me.  Mr. Durr was pleased to do so, and I sent questions within a couple days which he answered promptly.

Thank you, Mr. Durr, for taking the time to answer a few questions.

First I want to thank you for taking the time to do this and provide me the chance to share with your readers my position.

Next I want to take this time to wish you and yours and Happy 4th & may it be safe.

You are running on the Republican ticket for New Jersey State Assemblyman in the 3rd Assembly District.  Looking at the map (correct me if I’m mistaken), it appears that this includes all of Salem County and parts of Gloucester and Cumberland Counties including the cities of Glassboro and Bridgeton. I’m assuming you live in the district; have you lived here all your life, or when and why did you come here?

Yes you are correct about the counties and district.  Yes I live in the district however I grew up just a little north of where I live. I was born and raised in NJ and grew up in Gloucester city where I lived til I was 18 when my parents moved where they live now in Logan [T]wp.

Two years ago you ran for that seat as an independent, and did fairly well for an independent in a heavily party-oriented state, drawing about one half of one percent of the vote.  As far as I can tell you have no other political experience.  What prompted you to run this time?

I ran as Independent in 2017 because I jump[ed] into it after primary so I was made to list that way.  I decided to run again because I still believe NJ can be turned around.  Yes it is true I have no political experience but I do not think that should be considered a negative.  So I approached the NJGOP end of last year letting it know I wanted to run again and they welcomed me in giving me full endorsement.

Although in national politics district 3 has been something of a swing vote (supported Trump in 2016, Obama in 2012), Democrats have rather solidly held the Assembly seats for quite a while.  One of your incumbent opponents has been in the Assembly since 2001, and the other has been there since he was appointed to replace a predecessor in 2015.  In 2017 the incumbent Democrats defeated their Republican opponents by a three-to-two margin, and while incumbency certainly has a lot to do with that, an unknown Republican candidate has an uphill battle here.  What prompted you to run as a Republican?

I am conservative so only natural for me to run as [R]epublican.  I believe in fiscal responsibility I am firm believer in the constitution and all it entails including the right of self defense including the owning and bearing of firearms.  Yes I am fighting an uphill battle but I believe my fight is needed.

Online information suggests that you have worked as a carpenter and a truck driver, but is a bit sketchy otherwise. What about your experience do you think qualifies you to serve in the State Assembly?

I have had a number of jobs over my life.  It is true I am not a lawyer or doctor or have a PHD but I do not think that is needed to understand that our state is in trouble.  Look at all the lawyers and doctors and executives in Trenton and consider the job they have done I think maybe we should not worry about degrees so much.

I’m going to ask you about three issues you listed on Ballotpedia as your top priorities.  The first is cutting taxes, which appears primarily to mean reducing property tax rates.  As I understand it, the State spends every penny it collects and is not permitted to borrow money without approval by the voters.  That means to reduce taxes you have to reduce spending.  Do you have any specific ideas on how to do that?

Yes I believe we need to cut taxes.  I believe home owners are in desperate need of tax relief.  Yes we have many pork items in the spending and should be cut.  Lets go with first no legal aid for illegal aliens or free college aid.  I also do not think we should be funding Plan Parenthood.  Tax payer money should not be used for abortions when as a society we are split on issue.  [It w]ould be like funding the NRA when many citizens are not in favor of guns.

Second on your list is concealed carry for law abiding citizens.  Our State has quite a few locations in which gun violence is a problem, and it is growing–I recently read that there was a drive-by shooting in so small a city as Vineland.  Why should we permit concealed carry?

I believe the 2nd amendment says it all[:]  “the right of the people to keep and bear Arms, shall not be infringed”.  The constitution is for all 50 states, name me another amendment that we need to pay to exercise or be told from state to state what we are allowed.  No man has the right to tell me how I should defend myself, my family or my property.  It is not why we should allow, we already have the natural right of self defense by any means, spelled out in the 2nd amendment.  It is why we should stop infringing upon people[‘]s rights.

Perhaps the most controversial of your positions is support for a Heartbeat Bill, which has passed in some of the more conservative states, essentially saying that an unborn child is a person protected by law as soon as there is a detectable heartbeat.  If my information on fetal development is correct, that is generally about the twenty-fourth day of pregnancy, which would make abortion for practical purposes impossible, save for methods which prevent implantation.  Do you think this position has popular support?

Yes the topic of abortions is very controversial but that does not mean we should not discuss it.  The states that have passed the #HeartBeatBill use the guide lines between 8 & 12 weeks the heart is detectable.  I feel this allows those who are against abortion the comfort of curbing abortion while not outlawing it altogether. Abortion is not healthcare.  I do think the democratic party [] went too far with abortion so I do feel my stand on having a #HeartBeatBill is reasonable and would have support.  When Roe v Wade was passed it was intended for 1st trimester which is about 12 weeks I believe and rare after that.

Perhaps connected to that, you were contacting churches in the area for support for your candidacy.  Some would say that churches, as non-profit organizations, should not support or endorse political candidates; others would say that to have a voice in the political world Christians need to be politically organized, and their churches are the best starting points for that.  How do you view this disjunction between church and state?

First I want to say that people always go to separation of church and state.  That statement was taken from Thomas Jefferson and what he was actually intending was that he wanted government to stay out of people’s religion.  If you recall in England Henry VIII created the church of England when he could not get his way with the pope.

Plus no one seems to have issue with non profits like Plan[ned] Parenthood or SPLC or AARP pushing their political interest.  So yes I think churches do need to start getting involved.  They have every right just like others to make their voices heard.

What else do you think the voters should know about you, personally, or your positions politically?

I believe things need to change in Trenton and the only way that can happen is if the voters make the change.  People talk all the time about “term limits” yet they continue to vote the same people in year after year.  What is the definition of Insanity:  [“]Doing the same thing over and over and expecting a different result”.  I want the voters to know I am not looking to be a ruler, I want to be a voice for the people.  And I promise I will work hard for every one to make NJ better.

You appear to be running alongside someone named Beth Sawyer, about whom there is even less online information than about you.  She slightly outpolled you in the Republican Primary, but has no other reported political experience.  Do you know her or know anything about her that you would share with the readers?

Yes I have met Beth and she is a nice person.  I did not know her before the primary, I really can not tell you anything about her except I know she is in real estate.

If readers want to know more about you or want to contact or support you, what are the best means to do this?

They can find me on all sorts of social media.  My web page is http://www.3D4NJ.com  Twitter @edwarddurr1  Instagram edward.durr.9  Facebook.com/ED4NJ/ and email is edward_durr@yahoo.com.

Thank you for your time.

I thank you for this opportunity and hope to hear from you again.

Thank You.

As previously said, I am not seeking candidates, but will gladly interview any candidate for state office who contacts me.  Facebook is the most efficient means of doing so.

#305: The Cross Case: Supreme Court Sours on Lemon

This is mark Joseph “young” blog entry #305, on the subject of The Cross Case:  Supreme Court Sours on Lemon.

I have been watching for this case since it hit the circuit court, and so was pleased to see that the Supreme Court had decided it.  It seems on one hand to be a simple question:  is a century-old war memorial in the shape of a forty-foot cross originally built by private citizens but for half a century maintained on public land at public expense a violation of the “establishment” clause, that is, a constitutionally impermissible promotion of a particular religion by the government?  That’s the question; yes or no?

So imagine my surprise to discover that although Justice Alito managed to write a seven-to-two majority opinion that said no (that is, the cross can stay), there were five concurring opinions (a concurring opinion is one that agrees with the conclusion but not with all the reasoning) plus a dissent.  So how is there so much confusion over so simple a question?

At the time of this writing, I was unable to find the official Supreme Court PDF online; however, Justia has it in an easy-to-access form.  The Court combined two cases into one, so the title reads

THE AMERICAN LEGION, et al., PETITIONERS

v.

AMERICAN HUMANIST ASSOCIATION, et al.; and

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER

v.

AMERICAN HUMANIST ASSOCIATION, et al.

A lot of the trouble revolves around what’s been called the Lemon Test, named for Lemon v. Kurtzman, 403 U.S. 602 (1971), in which the court articulated a three-part test for whether something violated the establishment clause.  The short version is:

  1. Does the action/activity have a secular purpose?
  2. Is the principle or primary effect one that neither advances nor inhibits religion?
  3. Does it avoid fostering an excessive government entanglement with religion?

By these three questions all such cases were supposed to be answered.

Let’s get some backstory.

Just after World War I, a citizens group in Bladensburg, Maryland wanted to honor the forty-nine men from their community who died in that conflict.  Quite a few of the fallen in that war were never returned, and more were never identified.  The monument would serve as a surrogate grave for them, for their families to visit, and as a recognition of the service of so many others.  They hired an architect/sculptor, who designed a large Latin Cross, modeled on the crosses that had been used as temporary grave markers for the over one hundred thousand Americans buried in European graveyards.  (The Star of David was also used for such markers, but only about five percent of American casualties were Jewish, so crosses dominated the photos that came home and were emblazoned in the minds of the mourners.)  The citizens group raised money through donations, but ran out before completing the work, so the American Legion took over, adding their emblem to the cross, finishing the work, and maintaining it at their own expense into the early 1960s.  At that time, actions were taken to transfer the ownership of the property to the Maryland Parks Department, in part because the road around the monument had become a major traffic problem, in part because the American Legion was no longer able to afford it, and in part because the State wanted to expand the surrounding area into a memorial park with monuments for all the other wars.  Since then the monument has been maintained by state funds.  However, a few years back the American Humanist Association filed suit claiming that the cross was offensive and an impermissible endorsement of the Christian religion.  They wanted it removed, or demolished, or at the very least stripped of the crosspiece so it would be an obelisk instead of a cross.

The Federal District Court applied the Lemon test and sided with the park service, stating that the primary purpose of the cross was to honor the dead of World War I, and there was no evidence that any religious purpose was intended in its design or its present maintenance; any impartial observer who knew the history of the monument would conclude that it was not about promoting Christian faith, but about honoring the war casualties.  A three-judge panel of the Circuit Court, however, disagreed in a split decision, again applying the Lemon test but asserting that the cross was so tied to Christian belief that anyone seeing it would think it was an emblem promoting that religion.  The full court declined to review the case en banc (that is, all the judges), and the Supreme Court granted certiorari (or cert., agreeing to hear it).

Justice Alito wrote that there were many problems with applying Lemon, and that since the the test has a lot to do with motivations and intentions it is particularly difficult to apply the case to situations with deep historic roots.  It can’t be said that those who originally erected the monument had a religious purpose in view.  He cites other situations in which crosses are used as an emblem that do not have a religious purpose, notably among them the International Red Cross, whose red cross on a white field was designed to call to mind the white cross on a red field that was the flag of the neutral country Switzerland, and so marking the deliverers of medical care as neutral.  So, too, the crosses that dotted graveyards throughout Europe had become an image of the fallen in that war, popularized alongside the poppy even more by the poem In Flander’s Field.  Shortly after the war the same emblem became the basis for the national congressional medals known as the Distinguished Cross and the Navy Cross.  There was no reason to suppose that the original designers of the cross intended it to have any greater religious significance than that which is attached to any grave marker.  Indeed, one of the members of the committee which began the work and approved the design was Jewish.  Further, there is no evidence of bias or prejudice, sectarian or otherwise.  At the dedication ceremony, a Catholic Priest opened with an invocation, a politician gave the keynote address, and a Baptist minister gave the closing benediction.  Although racial tensions were high in the country and the Ku Klux Klan held a rally within ten miles of the site within a month of the dedication, black and white soldiers were listed together on the plaque.  To claim that the original intention was religious is to read our own ideas into their situation; we cannot do that.  Further, he argued, the fact that the monument has been there for almost a century means it has taken many other significances, historical and cultural.  We might think there is a religious significance to it as well, but it is a relatively small part of a memorial that has been part of the community for so long.  Besides, to destroy or deface it would appear to be an act against religion, not an act furthering religious neutrality.

The opinion did not overturn Lemon; it simply said that in dealing with matters steeped in history, it was generally impossible to know the motivations of those who made the original decisions, and so Lemon was rendered useless in such cases.

Justice Gorsuch in the main agreed, but went further.  Lemon, he said, was useless as a test.  Case law demonstrates that a court using the test can reach any conclusion it wants.  More pointedly, the notion of the response of a reasonable observer (whether a reasonable observer would think that the purpose was primarily religious) has created an “offended observer” status, that someone can file suit against an action on the grounds that it offends him.  This, Gorsuch argues, is not real injury and the Constitution gives no basis for anyone to sue without real injury.  Overturning Lemon and getting rid of its test would resolve much of the confusion in the courts and mean in the future cases like this, in which someone claims to be offended by the sight of a supposedly religious object, would be dismissed perfunctorily.

Justice Thomas agreed with that, but went further.  The Establishment Clause, he observed, begins “Congress shall make no law”.  He explains what kinds of laws had existed that were eliminated, but asserts that the protection has nothing to do with actions that are not based on laws made by Congress.  He suggests that one might apply the I Amendment to the States by virtue of the XIV Amendment, but even so the original purpose of the Establishment Clause was to forbid legislative actions compelling citizens to support a specific church or denomination.  Local creches, non-sectarian thanksgiving services, opening invocations and closing benedictions, and memorials to the dead are not covered by this, as they are not compulsory and in the main are not legislative acts.  Lemon, he asserts, should be overturned because it goes far beyond what is Constitutional.

Justice Kagan also wrote a concurring opinion, agreeing with nearly all of Justice Alito’s opinion but for two sections.  The important disagreement is that she asserts that Lemon, with its focus on purposes and effects, is still very valuable even though it does not resolve every Establishment Clause problem, and she would retain it.  Her lesser disagreement is that Justice Alito suggested that history would play an important part in Establishment Clause analysis, which she does not reject entirely but does not wish to see embraced as a principle of law.  She agrees, though, that it might be important to consider whether long-standing monuments, symbols, and practices reflect respect for different views and tolerance, with an honest effort to achieve non-discrimination and inclusivity, and a recognition of the important role that religion plays in many American lives.

Justice Kagan also agrees with the concurrence written by Justice Breyer, who has long said that no one test works for all Establishment Clause cases, but that in each case the court has to consider the purposes of the clause, “assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its “separate spher[e]”.  He says that the majority opinion is correct that there is no significant religious importance to the Bladensburg Cross, and that its removal or destruction would signal a hostility toward religion against the Establishment Clause traditions.  However, he objects to any sort of “history and tradition test” that might permit religiously-biased memorials on public lands in the future.

That, apparently, is a suggestion in Justice Kavanaugh’s concurrence.  He fully joins the majority opinion, but emphasizes the importance of reviewing history and tradition in such cases.  He suggests that the Lemon test has proven useless and is never really used by the Supreme Court.  He also expresses sympathy for those, particularly Jews, who feel alienated by the cross, which he says must be recognized as a religious emblem.  The fact that it is a religious emblem does not mean the government cannot maintain it–but the government does not have to do so, and other branches of the government could take action to remove the cross or transfer its ownership and care to a non-governmental entity.  The objectors do have recourse to the political process if they wish to pursue this; what they don’t have is a court decision declaring that the cross cannot be maintained by the State.

Which leaves Justice Ginsberg’s dissent, joined by Justice Sotomayor.

Ginsberg maintains that the Latin Cross, defined as one in which the lower upright is longer than the other three branches, has always been recognized as a Christian symbol, and has never had a secular meaning or application.  (This in contrast to the Greek Cross, in which the four branches are equal.)  The Bladensburg “Peace Cross” is thus offensive to anyone of any other religion or of no religion.  Marshaling evidence that even in the aftermath of World War I the cross was identified by the government as a sectarian symbol to be put on the graves of all Christians and of any persons not known not to be Christian (in case they were), with Stars of David placed on all graves of soldiers known to be Jewish.  (Those who were known not to be either could, at the family’s request, have a plain stone, be transported home, or be interred in a private cemetery overseas with a headstone of their choice.)  There has never been a case in which a Latin Cross was identified as a non-sectarian emblem of death, and historically it has been regarded as conveying the message that Christians are saved and all others are damned–an offensive message to all those others.

While Ginsberg’s claim is well-supported, it is not clear that the modern cultural view of crosses as memorials perceives them as specifically Christian.  It comes to me that many graves of pets are marked with crosses, but no Christian denomination of which I am aware supports the theological belief that animals can be Christian, The Vicar of Dibbley notwithstanding.  (The eternal destiny of animals is not something the Bible tells us, which makes sense, as C. S. Lewis would have said, because it’s not actually something we need to know.)  Crosses are also frequently used in decorative graveyards such as in Halloween displays.  To many, the cross says “grave marker” much more than it says “Christian”.

I can’t say that everyone perceives such memorials as non-sectarian, but I do think that over time they have become more so.  It appears that the Court, in the main, agrees with that:  memorials using crosses in their imagery have become non-sectarian by their use over time, and the Bladensburg Cross far more represents the fallen of World War I and, since its rededication in 1985, all the American casualties of all our wars.  Lemon has not been overturned, but it has been significantly limited in its application in the future.

The Peace Cross stands.

#301: The Song “Holocaust”

This is mark Joseph “young” blog entry #301, on the subject of The Song “Holocaust”.

On my recent trip to Nashville for The Objective Session it was recommended to me that I start my own publishing company, and so publish my own songs.

That would be excellent advice for anyone with a knack for business.  I have more than once proven than I have no such ability, and so I will add that to the list of good advice I hopefully wisely did not take.

However, I am going to publish my songs, so consider me self-published.

The plan is this:  I have mostly poor recordings of perhaps sixty of the hundreds of songs I have composed over the decades.  In anticipation of the aforementioned Objective Session I selected thirty-some of these for consideration in inclusion in a package of materials to be submitted to Nashville professionals, and ultimately gave them copies of the top three.  I am now going to give those songs to you, my readers/fans, beginning with those same three, continuing through the list of thirty-some others, and adding a few that I have since been told ought to have been included.

There are other songs that ought to have been recorded which never were, or which were long ago on tapes no longer in existence.  If there is enough support through the Patreon and PayPal me links (at the top of the page) I’ll obtain new recording software and work on laying tracks for some of them.  (The old software, Record Producer Plus, was actually rather good, but Turtle Beach decided not to support it when I attempted to reinstall it after a computer crash, so I recommend avoiding anything from them because they are unreliable in terms of future support for older products.)

In compiling this list, I went through all my recordings and eliminated a few for specific reasons–a couple of them because they are part of a nearly finished opera from which very few songs have been recorded (I will remedy that if I get the software), a few because the recordings I have of them are more severely flawed than I can reasonably permit myself to release publicly (although with the caveat that some of the recordings I am releasing are seriously flawed).  I used a pocket digital recorder to record, live with an acoustic guitar, a few more songs I thought should be included which I could manage that way.  I then made two copies of the list of songs I had compiled, one listing them in what it my opinion were best to worst songs, music and lyrics, the other listing them in what in my opinion were best to worst recordings, performance and technical.  I averaged these and also asked a bunch of people (family, mostly) to comment on the list, and one, my son Tristan, responded, selecting eighteen of the songs which he thought definitely should be included, divided into the four best, the next four, the next four, the next two, and the final four.  I averaged his opinion in with mine, and that gave me the list I am using.

The first song on his list was the first song on my list of best songs, although it was only fifth on the list of quality of recordings.  It is entitled

Holocaust.

I suppose it makes sense that the song both I and my third son list as the best would already have appeared on the web.  My wife included part of the lyrics on a site (a long time ago, one of the GeoCities web sites), and I put the lyrics up in a section of this site dedicated to the songs of a defunct late 90s band called Cardiac Output (who never actually did the song, although TerraNova did back in the mid 80s), and also gave a rather detailed recollection of the process of composing it in connection with the history of the band Collision.

It may be the most powerful and is probably the most poetic of my songs (which I must again mention is co-written with my wife Janet Young and our friend Robert Leo Weston) despite its frequent disregard of rhyme and meter.  Its double meaning metaphor carries through the sung portion of the song and is cemented with the spoken poem at the end.  It was written as a duet, and in the places where both voices are singing each is regarded its own melody, neither a harmony of the other.

This recording was made using Record Producer Plus with a Soundblaster sound card; the instruments are all programmed midis, and I sang both voices.  Here are the words:

Reality has come over me as I slip away from myself.
The people I know can’t tell the truth,
And I don’t think I even care.
I can see the face of a thousand people passing by on a train.
The silence of a world as they pass on by still resounds in my brain.

Shed a tear (shed a tear) for all the earth (for all the earth),
For she has closed her eyes to all the pain!
What will you do when it comes to you?
Will you run or will you hide?
I can hear the screaming–

Lambs to the slaughter, they open not their mouth.
A sacrifice displeasing to their God
(The innocent must die).
Smoke is rising from eternal fire.
The one we would expect
Would be there to protect
Now breaks his vow and deals the fatal blow.

Shed a tear (shed a tear) for all the earth (for all the earth),
For she has closed her eyes to all the pain!
What will you do when it comes to you?
Will you run or will you hide?
I can hear the screaming–

I was dumb when they took my neighbor
(I hear those footsteps getting closer),
Held my tongue when they took my friend
(Oh, my heart, no need to be afraid).
I was still when they took my brother
(They’ll never take me).
Who will speak up for me?

The sacred dream is ended in the silent scream!
The breath of life is stifled by the surgeon’s knife!

A holocaust inevitably comes
To those who place themselves too high,
To those who teach themselves the lie
That life and death is in their hand–

Mere men!  Too small to understand
The truth, the value of one soul.
And so their wisdom takes its toll
In infants shattered on the rock–

Such pain!  And yet it does not shock
Our hardened hearts, our souls of ash–
We throw their bodies in the trash
And tell ourselves, it’s for the best.

And that is how we treat the rest–
The useless crippled, and the old.
With every death our heart grows cold
‘Til someone puts us in our tomb.

The gift of God comes in a maiden’s womb.

I can only hope you benefit from the song in some way.  I will continue with additional songs in the future.

#298: Taxing Corporations

This is mark Joseph “young” blog entry #298, on the subject of Taxing Corporations.

Periodically we will read that some particular major corporation paid no federal income tax, and many of us react in horror.  Here we are surrendering large chunks of our hard-earned wages while these companies who pull in millions of dollars get to keep it all.  Those corporations ought to be paying their share; they ought to be paying our share, with how much money they have.

But beneath this there is another problem, a question of whether corporations should be paying income tax at all, and when we look deeply at that problem we hit problems of double taxation and equitable treatment.

There are a lot of ways in which the law treats corporations as if they were people.  They can sue and be sued; they have to obey laws, and they can own property.  But they aren’t people, and the law has to recognize this as well.  A corporation is fundamentally a piece of property that is owned by a lot of people–the shareholders.  When the corporation makes money, that money quite literally belongs to those people, even though they don’t have it.  They can get it.  If they want, they can vote to dissolve the corporation, sell its assets, and divide the money among the shareholders.  If they can’t agree to that, any one of them can sell his share in the company and take his money that way.  Periodically most corporations decide to take some of their income and pay it to their shareholders as “dividends”, giving everyone who owns the company a portion of the income they made.

So when we say that the corporation made a billion dollars, we don’t really mean that there is this person called a corporation who earned that income.  We mean that the people, maybe hundreds of thousands of people, who own that corporation jointly made a billion dollars.  So if we tax the corporation, as a corporation, we’re really taxing all those individuals who own the corporation.  So maybe I own one share of this corporation, and my share is worth twenty dollars, and the government takes ten percent of the value of the corporation.  That means that the government took two dollars from me.  That’s fine–the government is allowed to tax my income.  But then, if I get money from the corporation–money that has already been taxed as corporate income–the government is going to tax that money again as my income.  But I already paid tax on that income, because whatever the corporation does with its money is something I and many other people did with that money.

It would be something like the government taking money out of your paycheck before your employer gives it to you, and then taxing you again when you cash the check to take money from your bank.  You would be livid if they taxed the same money twice.  Yet that is exactly what happens to shareholders when the government taxes a corporation and then taxes stockholder income from the corporation.  It is exactly as if you were taxed on your wages before they went into your bank account and again on the same money when you withdrew it from the bank.

Oh, but that’s all right, because only rich people own stock, right?

Wrong.

A great deal of stock is owned by banks, retirement accounts, pension plans, and other financial programs that are part of the finances of ordinary people.  If you have an interest-bearing bank account, or a company or government pension plan, or an investment account, or an insurance policy, it is almost certain that you, indirectly, own stock and are dependent on the income of probably quite a few corporations to make your money “grow”.  So that “corporate income” you want to tax is your own income, your pensions, your interest, your insurance.

Of course, corporations do pay income tax.  So why do some of them pay none?  We covered this quite a few years ago in our discussion of Taxation:  that they received billions in income doesn’t mean they turned a profit.  They probably payed billions in payroll, not to mention rent and mortgages, property taxes, utilities, and other expenses of production.  On top of this, they can probably deduct monies invested in advertising, in repairs to equipment and purchases of new equipment, in insurance premiums.  In some cases the costs involved in ensuring future income are deductible–research and development, new product testing, exploration for new resources.  At the end of the day it’s quite possible for a corporation to spend more than it made, just trying to make the money–and if your job cost you more than your paycheck delivered, you would expect your tax bill to be considerably lower.  We do let employees deduct from their taxable income expenses for specialized clothing, work-related transportation, job equipment, and other costs of earning the income.  We let corporations do the same thing.

So next time you hear that some corporation paid no income tax, don’t think they got away with something.  It might be because at the end of the year they spent more trying to make that money than they actually made.

#295: Does China Pay Tariffs?

This is mark Joseph “young” blog entry #295, on the subject of Does China Pay Tariffs?

In trade disputes with China, President Trump has been raising tariffs.  Critics claim that such tariffs are not paid by China, but by the American Consumer, and they are right–sort of.

A tariff, of course, is a tax on imported goods.  According to sources, Trump has recently raised them from 10% to 25%.  A ten percent tariff means that if a computer comes into San Francisco harbor from China with a factory price of one thousand dollars, the shipper has to pay one hundred dollars to offload it onto the dock.  When the wholesaler comes to pick up the computer, the shipper will charge him the one thousand dollars for the computer, plus the one hundred dollars for the tax, plus whatever the price of shipping is said to be.  That means the wholesaler paid one thousand one hundred dollars plus shipping, and the retailer will have to pay that much plus the wholesaler markup, and the customer has to pay all of that plus the retailer’s markup.  So a computer that might cost a thousand dollars in China costs considerably more in the United States.

When we increase that tariff to twenty-five percent, the tax to offload the computer goes from one hundred dollars to two hundred fifty dollars.  This then gets passed through the same hands so that the retail shelf price of that same computer is now one hundred fifty dollars more than it was–and the person who wants to buy the computer pays that money.

So in that sense the critics are correct:  China does not pay the tariffs, Americans who buy Chinese-made computers pay the price.

That’s not how tariffs punish foreign nations.

Because American workers demand and receive (and in fairness need) higher wages than Chinese workers, and American businesses have to pay higher costs for environmental concerns and raw materials and even real estate, American products cost more to produce than Chinese products–and generally by enough that it is cheaper to buy products in China and ship them here than to make them here.  What tariffs do is raise the end user cost of foreign-made products so that they are more expensive to buy.  Yes, that means that a consumer can’t buy a computer as cheaply as before, because to get the same cheap Chinese-made computer he has to pay an extra one hundred fifty dollars–but that increase does not apply to computers made in America.  Therefore as the price of Chinese computers rises, American computer prices become more competitive, and more people decide that the American computer is a good choice, putting money in the pockets of American computer manufacturers and American workers.  The number of computers delivered from China declines, and China suffers from reduced sales of its manufactured goods.  This impacts the Chinese economy reducing manufacturing output, employment, and tax revenue.

Additionally, the tax money that is still collected on imported Chinese goods helps reduce the national debt at least a bit, which is good for our economy.  Further, a tariff against Chinese goods does not have any effect on computers made in Taiwan or Japan or Singapore or elsewhere in the world, so cheaper computers are still available–only the Chinese computer market is affected directly.  Demand on these other computers might increase retail prices some, but not nearly as much as the increased price from the tariff.

So it is true that tariffs increase consumer costs in America, but that doesn’t mean that China doesn’t pay.  They pay in their lost retail market, the fact that it now costs more for consumers to obtain their goods and so demand for them decreases.  And the benefits to America are found in increased sales of American-made goods (labor likes tariffs, in the main) and more tax money in the government coffers.

Does that mean that all tariffs are good?  Certainly not.  Import tariffs ultimately do increase consumer prices (just as export tariffs depress overseas sales).  Foreign countries usually retaliate with their own tariffs against American goods, which makes it harder to sell our products overseas.  There is a valid argument against tariffs.  But simply saying that China doesn’t pay them misunderstands exactly how they penalize China.

#289: Stifling Lozman’s Protected Speech

This is mark Joseph “young” blog entry #289, on the subject of Stifling Lozman’s Protected Speech.

From one perspective, the most interesting thing about Fane Lozman’s recent victory at the United States Supreme Court is that it is the second time this ordinary citizen has taken a case to that court, and the second time he has won.  It really does happen in these United States, although in fairness he solicited aid from a law school and a group of pro bono attorneys.

The reason it is of interest to us is that this second win is an Amendment I Freedom of Expression case, a subject we follow with some interest.

The previous case is only of passing interest to us, more as background to the second.  Lozman built a floating house, which he had towed to various places until he docked it at a marina in Riviera Beach, in Palm Beach County, Florida.  The city wanted to exercise eminent domain over the marina to seize it, tear it down, and put it in the hands of a commercial developer.  Lozman objected, and brought a lawsuit against the city for improper procedure when they attempted to pass the measure a day before a Florida state law went into effect making such use of eminent domain illegal.  He won that suit.  However, while he was involved in this, the city declared that his house was a “vessel” under maritime law, and seized it.  Lozman fought this, stating that his house was not a “vessel” under the definitions provided in the law, and therefore not subject to seizure under that law.  In Lozman v. City of Riviera Beach, Florida, 568 U.S. 115 (2013), the Supreme Court agreed.  The house was not designed to be a mode of transportation, and for this and several lesser reasons the court concluded 7 to 2 (Sotameyer and Kennedy dissenting) that maritime jurisdiction was inappropriate, and the city owed Lozman a lot of money to replace his home.

In the midst of these battles, Lozman showed up at a City Council meeting, and during the public comments time stepped forward and began calmly talking about political corruption.  It is said that he spoke for about fifteen seconds when one of the Councilmen instructed the police officer who was present for the purpose of maintaining order to remove him from the room.  He was handcuffed and charged, but the charges were dropped.  However, he filed suit claiming that his Amendment I right to free speech was violated.

In Fane Lozman, Petitioner v. City of Riviera Beach Florida, 585 U.S. ___ (2018), the Supreme court in an 8 to 1 decision said that it was–but noted that there were special circumstances that made it so.

At the head of those special circumstances, Lozman had presented evidence to the effect that the City Council had previously adopted an official policy of intimidation against him and others who had spoken out against them, and asserted that his arrest was executing that policy.  The evidence included a transcript of a closed Council meeting in which Councilmember Elizabeth Wade suggested that the city use its resources to “intimidate” Lozman and others who had filed lawsuits against the city.  At a later point in the meeting, one of the other councilmembers asked whether there was “a consensus of what Ms. Wade is saying,” and this was affirmed by others present.  Lozman asserts that these remarks formed an official plan to intimidate him.

The lower courts held that because there was probable cause to arrest Lozman at the meeting (on the very minor charge that he did not stop speaking when asked to do so, and thus was considered disruptive to the meeting) he could not claim the arrest was retaliatory.  However, the Supreme Court decided that if a jury might believe that the closed door meeting comments created an official policy of retaliation, and if the arrest at the later meeting was an implementation of that policy, Lozman would prevail.

It does not mean that all cases in which people are arrested for trying to speak at public meetings and so disrupting the meeting involve violations of Amendment I free speech rights, but only those in which there is evidence that the arrest is part of a government policy of intimidation against the person arrested.

Justice Thomas dissents, stating that the rule propounded by the majority is too convoluted and might never apply in any case including the present one, and that the previous rule in essence said that if probable cause was present no case for retaliatory arrest could stand, even if it involved freedom of speech.

Justice Thomas is right:  it is a bad decision.  It allows governments to harrass citizens exercizing their freedom of speech at meetings as long as there isn’t a paper trail suggesting that they agreed to do this.  Lozman probably wins (and I think that when Justice Kennedy writes that a reasonable juror would have to be able to believe that the statements at the closed meeting created a policy and that the action at the open meeting implemented it he believes that they would) because the idea of intimidating him was discussed on the record at a meeting.  If the Committeemembers had discussed this at a coffeeshop or cocktail party and agreed informally to do this, he would have no case–but his rights would have been just as impinged.

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Meanwhile, the dissent’s probable cause test is worse.  I once was discussing a law that deprived anyone who had been convicted of a felony of certain rights, and commented that felonies were generally rather serious crimes.  I was informed that legislatures had taken to defining more and more crimes of lesser and lesser severity as “felonies” in order to enforce stricter penalties against them.  In the present case, it seems initially Lozman did not believe there was probable cause for an arrest, and there was some doubt as to whether there was probable cause for the charges initially brought.  He was charged with disorderly conduct and resisting arrest without violence–the former because he stepped up to the podium to raise issues at a public meeting, the latter because he refused to relinquish the podium when asked.  The District Court found that as a matter of law there was insufficient evidence to support probable cause for either of those charges.  However, the city dug up another statute prohibiting interruptions or disturbances in schools, churches, or other public assemblies–a charge never mentioned prior to the trial–and maintained that there was probable cause to arrest Lozman on that charge; Lozman conceded that there was probable cause for that.  That, though, shows that if the authorities want to arrest someone, they can probably find probable cause to do so if they look hard enough.

What was needed was a looser rule, one that permitted evidence of a pattern of intimidation to stand as proof of an intention of intimidation.  Lozman’s case adduced many incidents of arbitrary official actions taken against him; the stifling of his right to speak at the public meeting was the most egregious because it impinged his Amendment I freedom of speech.

The claim that Lozman’s speech was off-topic was insupportable.  In the first fifteen seconds he spoke of two government officials in other jurisdictions that were arrested for corruption.  That could be the preamble to any of a dozen on-topic speeches.  For the committee to have claimed he was speaking about something outside the parameters of the meeting is not defensible.

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Congratulations to Lozman for winning twice at the Supreme Court (and winning several lower court cases along the way).  However, this decision is going to have to be modified by future ones before it is at all useful in the defense of free speech.

#287: They Can’t Take Your Car

This is mark Joseph “young” blog entry #287, on the subject of They Can’t Take Your Car.

I think most of us became aware of the criminal civil forfeiture rules from the original Miami Vice television series.  The narcotics division seemed to have an unbelievable budget, covering expensive sports cars, helicopters, mansions, and so much more.  What we learned was that the State of Florida had a law that permitted the seizure from criminals of any property used to facilitate the commission of a crime, and so our star detectives were outfitted and equipped with everything that had belonged to the major drug dealers they had arrested.  The program worked so well, about half the states in the Union adopted a similar program, enabling them to fund ongoing law enforcement operations from seized cash and property taken from those successfully convicted.

The programs work so well, they are often used against minor offenders, that is, persons committing minor offenses, when there is valuable or useful property coveted by local law enforcement officers.  The United States Supreme Court has now dealt that practice a significant setback, although it has not entirely eliminated it.

The case is Tyson Timbs v. Indiana, 586 U.S. ____ (2019).

Having pled guilty to dealing in a controlled substance and conspiracy to commit theft, Timbs was sentenced to one year home detention and five years probation including a court-supervised addiction treatment program.  He was also ordered to pay fines and court costs totaling one thousand two hundred three dollars ($1203.00).  However, at the time of his arrest he was driving a Land Rover sport utility vehicle which he had purchased for forty-two thousand dollars ($42,000.00); it was established as a fact that the money for the SUV came from a life insurance policy payout upon the death of his father, and not from any criminal enterprise.  Asserting that the vehicle had been used to transport heroin, the state filed a claim for forfeiture in civil court.

The trial court denied the claim.  It observed that the maximum fine assessible against Timbs for the crimes for which he was convicted was ten thousand dollars ($10,000.00), and the value of the vehicle was over four times that amount not long before it was seized.  Citing the VIII Amendment prohibition against excessive fines (appropriately dubbed the Excessive Fines Clause), it maintained that such a forfeiture was a penalty disproportionate to the crime, and thus unconstitutional.

The Court of Appeals of Indiana agreed, but the Indiana Supreme Court reversed, stating that the Excessive Fines Clause did not apply to the states.

Justice Ginsberg wrote that the Indiana court was wrong.  The entire court agreed with that decision, although Justice Thomas wrote a concurring opinion reaching the same conclusion on a different basis and Justice Gorsuch wrote a concurring opinion noting that Thomas might be correct.

As originally passed, the Bill of Rights applied only to the Federal Government.  The passage of the XIV Amendment following the Civil War has been understood to cause nearly all the rights protected in it to apply equally against the States, with very few exceptions.  (The one exception noted by Ginsburg is the requirement that jury decisions must be unanimous, which apparently does not apply to the state courts.)  Ginsberg argues that the protection against unreasonable fines, like other VIII amendment protections such as excessive bail and cruel and unusual punishment, is “fundamental to our scheme of ordered liberty”, and thus applies as they do.

Justice Gorsuch agrees, with the quibble that it perhaps is not the Due Process clause of the XIV amendment but that amendment’s Privileges or Immunities clause that brings the VIII amendment to bear against the states, but agrees that this is not a significant matter in the present case.  That quibble is the basis of Justice Thomas’ concurrence.  He maintains that the concept of “due process” has been stretched beyond any reference to any process due to the citizen to cover exactly those privileges and immunities that were intended to have been covered by the other clause.

The bulk of both the majority opinion and Thomas’ concurrence consists of the history of the right against excessive fines, ranging from Magna Carta through the post Civil War passage of the XIV amendment, and is informative and interesting but not otherwise of consequence here.

The question, then, is what does the decision mean?

It does not mean that asset forfeiture has been swept away in all cases.  Rather, it means that the Indiana trial court was right:  the value of objects seized by law enforcement must be reasonable to the nature of the crime and the assets of the criminal.  Had Timbs transported the heroin in a three thousand dollar used car on which he was paying installments, we would not be having this discussion.  It remains to be seen whether Miami’s narcotics division will be able to argue that the nature of the crimes and the assets of the criminals in their war against drugs are high enough to justify seizing those assets for use in the fight, but they will have to be prepared to make that argument the next time they seize such assets.  The temptation for governments to fund their operations through fines rather than taxes has been dealt a setback, a limitation to which abused citizens can appeal in the future.  The protection of citizens against arbitrary seizure of property has been reinforced.

#285: An Expression of Gratitude

This is mark Joseph “young” blog entry #285, on the subject of An Expression of Gratitude.

I need to thank a lot of people.

The complications include that I do not know who you all are, and I’m not sure of the propriety either of naming those whose names I have or contacting you personally.

Thus I am thanking you all, however many of you there are, through this web log post.

This arises from the fact that I recently had a myocardial infarction–a heart attack–which put me in the hospital.  I posted that in this Facebook post, and somewhere about twenty responses down I posted again with news of the Friday and Monday procedures, and my Tuesday discharge and such.

Many of you sent what I guess would be called “good wishes”, that is, comments, messages, whatever, hoping that I would get better.  Thank you.  I have done so to a significant degree, although I am still a bit weak and officially convalescing (and my wife has already scolded me for overworking once she knew how much I did yesterday, the day after my discharge, but someone had to get the boys to work and someone had to pick up my prescriptions, and more often than not I find that someone is me, particularly when she is working a string of night shifts, driving herself for the first time since her broken hip, and needing to sleep during the day).  So I am not fully recovered, but I am back at work.

Many of you prayed, and for this I am particularly grateful.  You have, of course, obligated me to let you know about the answers to your prayers so that many of you can give thanks to God for the grace extended through the prayers of many of you (cf. II Corinthians 1:11).  I have largely done that in the Facebook post.  I am not out of the woods entirely–I have a bag of new medications (and of all things the pharmacy couldn’t fill the “aspirin” prescription (chewable baby aspirin–how could they not have that?), so someone has to go back for it today), and I have two appointments for a cardiac stress test and a followup to decide what the test results mean.  Those are in the second week of March.

At least two of you made a point of spreading the word of my debilitation, and of encouraging people who at least know who I am to support me financially during this time.  That has resulted in a few gifts of significant amounts through my PayPal.me account–the first real activity there since it opened, and enough to pay for this bag of prescriptions and a bit more.  I have not seen any new Patreon patrons yet, but Patreon’s notification system is sometimes wonky so I’m going to include mention of that–because I am grateful to those of you who have made an effort to keep me going, and thankful to God that you are there, to those who contributed and to those who encouraged others to do so.

I’ll extend these thanks to those who have been meaning to send a bit of help my direction and simply haven’t yet done so; I know what that’s like, as there are often times when I have something I need to do soon that goes for days or weeks or even months before I manage it.  So thank you for the prayers and support you are going to send in the future.  You really do make a difference.

As the picture says, thank you.

#282: The Fragility of Unborn Life Argument

This is mark Joseph “young” blog entry #282, on the subject of The Fragility of Unborn Life Argument.

Sometime during the explosion of legal news surrounding the Supreme Court session (much of which still awaits my attention) I somewhere encountered the notion that aborting the unborn is permissible because so many of them die anyway.  Unborn children have such a high mortality rate, why would killing one be a big deal?

Talk about kicking a man when he’s down, this seems so wrong on so many levels.

I certainly recognize the fragility of unborn life.  We went through enough miscarriages that pregnancies became an occasion more for dread than hope.  Yet the fact that someone might die, even has a good chance of dying, is not ordinarily a good argument for killing him.

Consider baby seals.  People get all upset about other people killing them, when it is obvious that baby seals are a primary food source for sharks.  Seriously, what is the life expectancy of a baby seal?  O.K., part of the objection is that the methods used by seal hunters are perceived as particularly cruel, so maybe that’s not the best example.  I don’t know that being clubbed to death is more painful than being torn apart by a shark, but I understand the objection.

However, children also have a high mortality rate.  We have lowered the rates of infant mortality significantly in western countries, but they are still high in third world countries.  Should we say that the killing of children in undeveloped nations is not a big deal because they were likely to die anyway?  Indeed, how likely to die would be enough to put someone in this category?  Obviously unborn children do not all die, and apart from abortion a great number of them survive to be born–more now than ever before, again because we have improved our ability to keep people alive.

After all, fragility is relative.  People die all the time.  Many die suddenly of heart attacks, anaphylactic shock, strokes, traumatic accidents, often with no warning.  If a person is having a heart attack and can’t get medical attention, there is a high probability that he will die.  Does that make it O.K. to kill him?  If a person is struggling to escape from a burning vehicle and not likely to succeed, can I shoot him?

Seriously, what chance of death meets the minimum requirement for killing someone?  Is it thirty percent?  Is it sixty percent?  I am sure that the mortality rate of unborn children does not reach eighty percent, but would that be high enough?

It is one hundred percent likely that you will die.  After all, everyone does, eventually.  It probably won’t happen for a while–many years, if you’re lucky, but is that a long time?  You are unlikely to live to one hundred years.  Does that mean that killing you is not a big deal, because you were going to die soon enough anyway?  If the world were run by artificially intelligent machines, we mere humans would be short-lived beings probably perceived as wastes of resources–we die, and everything we have learned is lost.  To them, we are not better than insects, brief lives of limited ability who are going to die.  They might as well kill us now, because we are likely to die fairly soon anyway.

Why should that argument apply to the unborn, and not to you?

My Judeo-Christian scriptures tell me to protect the weak.  I see none weaker than these.  If someone wants to kill the weak, I am obligated to defend them.  Yet apart from this, I see that it is in my own self-interest to do so.  Dietrich Bonhoeffer, Lutheran minister and writer arrested by Adolph Hitler in World War II, said (perhaps paraphrasing–I cannot find the original quote),

When they came for the Federalists, I didn’t speak up because I wasn’t a Federalist.  When they came for the Jews, I didn’t speak up because I was not a Jew.  When they came for the Catholics, I didn’t speak up because I was not a Catholic.  When they came for me, there was no one left to speak up.

You are also among the weak who are likely to die anyway, so why should society not be able to kill you?

Be careful of your judgements.