Update no.454

Update from the Heartland

No.454

23.8.10 – 29.8.10

Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- It seems we have another clot in the churn. On Monday, a Federal district judge issued a preliminary injunction against the National Institutes of Health (NIH) prohibiting the expenditure of Federal funds for embryonic stem cell research [146 et al] – Sherley v. Sebelius (see review below).

“Far from Ground Zero, other plans for mosques run into vehement opposition”
by Annie Gowen
Washington Post
Published: Monday, August 23, 2010
http://link.email.washingtonpost.com/r/AADB45/WLL23B/LQSTCC/PC32P6/O8ZI7/6C/h
No one asked for my opinion, but Annie’s reportage on the mosque issue along with the incessant Press coverage of the well-known Ground Zero mosque kerfuffle pushed me over the edge. In the context of the on-going War against Islamic Fascism, the specific topic as well as the broader concern for the freedom and rights of American citizens of the Islamic faith. We tend to fear what we do not understand. This apparent anti-Muslim rhetoric is hardly worthy of American ideals. We have a reasonable public requirement for building architecture consistent with the community. However, the attempts of a few vocal citizens to deny permission for an Islamic center and mosque near Ground Zero is contrary to the essential and vital principles upon which this Grand Republic was founded two plus centuries ago. Surely we can find balance in this debate. Lastly, is our faith that weak and fragile that it cannot endure public debate and challenge? Are we that fearful of those not like us? I believe we are much stronger than this debate and this issue suggests.

I am reticent to give any religiously motivated bigotry anymore words than the Press already does; however, the Gainesville, Florida, former hotel manager cum minister of the Dove World Outreach Center – Terry Jones, 58 – demands my condemnation. This is the yayhoo who attracted national and international attention when he announced his intention to burn copies of the Islamic sacred book Quran. Book burnings seem to be a popular activity for hate-filled folks who cannot tolerate anyone not like them. This latest despicable example is quite akin to perhaps the most infamous such event on the evening of 10.May.1933 in Berlin, Germany. Freedom means people like Terry Jones can be as idiotic as they wish. Regrettably, such idiots are illuminated by the Press, and radical Muslims see only what they want to see to fuel the fires of their equally irrational rage. And so it goes.

With the mosque debate expanding exponentially by the day, I note this opinion article:
“The last refuge of a liberal”
by Charles Krauthammer
Washington Post
Published: Friday, August 27, 2010; page A21
http://link.email.washingtonpost.com/r/F490YD/S33A3Y/S3U055/HTSL57/8QBJL/SN/h
Charles gave us an interesting admonition.
“[P]romiscuous charges of bigotry are precisely how our current rulers and their vast media auxiliary react to an obstreperous citizenry that insists on incorrect thinking.
“-- Resistance to the vast expansion of government power, intrusiveness and debt, as represented by the Tea Party movement? Why, racist resentment toward a black president.
“-- Disgust and alarm with the federal government's unwillingness to curb illegal immigration, as crystallized in the Arizona law? Nativism.
“-- Opposition to the most radical redefinition of marriage in human history, as expressed in Proposition 8 in California? Homophobia.
“-- Opposition to a 15-story Islamic center and mosque near Ground Zero? Islamophobia.”
Such pronouncements play to the faction of our citizenry who see American culture and society in very binary terms and shun those not like them. I am also struck again by the contrast. Apparently, the new definition of “big government” is what the other guys are doing when they have control, while my definition of “big government” is involvement beyond the Constitution, i.e., intrusion into the private lives and choices of citizens (that cause no harm). Webster’s Dictionary defines bigotry as “regarding or treating members of a group with hatred and intolerance.” So, if the shoe fits . . .

U.S. District Chief Judge Royce C. Lamberth of the District of Columbia issued a preliminary injunction against spending by the National Institutes of Health on embryonic stem cell research – Sherley v. Sebelius [USDC DC civ. no. 1:09-cv-1575 (RCL) (2010)]. Plaintiffs in this case are Doctors James L. Sherley and Theresa Deisher, Nightlight Christian Adoptions, Embryos, Shayne and Tina Nelson, William and Patricia Flynn, and Christian Medical Association; they are also researchers in the arena of Adult Stem Cell (ASC) research. Plaintiffs allege the Federal government violates the Dickey-Wicker Amendment, which was enacted as § 128 of the Balanced Budget Downpayment Act (of 1996) [PL 104-099] that prohibits any funds being used for:
(1) the creation of a human embryo or embryos for research purposes; or
(2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research under applicable Federal regulations.
According to the court’s document, the Dickey-Wicker Amendment has been included in every Health and Human Services (HHS) appropriation since 1996 without substantive alteration, up to and including the most recent bill prior to this case – Omnibus Appropriations Act of 2009 [PL 111-008] [378]. As a side note observation, why is it that so many socially significant (and this case scientifically important) laws are buried in massive government appropriations bills? They imbed massive earmark spending pet projects and highly intrusive social enforcement programs in legislation they know the President is not likely to veto. We get to pay the bills and suffer further erosion of our most fundamental freedoms. Anyway, back to the current topic. Two days prior to signing the 2009 HHS appropriations bill into law, President Obama issued Executive Order 13505 titled “Removing Barriers to Responsible Scientific Research Involving Human Stem Cells,” which rescinded President Bush’s 9.August.2001 policy statement and his Executive Order 13435, titled “Expanding Approved Stem Cell Lines in Ethically Responsible Ways” of 20.June.2007. A month after the President signed the order, the NIH issued its “Guidelines for Human Stem Cell Research.” Surprisingly, the claims in this case were not about the ethics of Embryonic Stem Cell (ESC) research rather the issue was money. The judge acknowledged, “Plaintiffs are researchers who work exclusively with ASCs,” and “The Guidelines, by allowing federal funding of ESC research, increases competition for NIH’s limited resources. This increased competition for limited funds is an actual, imminent injury.” For all the judicial pronouncements I have read over the years, this one has now taken over infamous primacy for shallow, obviously biased, and dramatically injurious judicial pronouncements. Like the Hornbeck injunction [445], the consequences and collateral damage vastly exceed the very narrow protections. Beyond my disappointment in the Sherley ruling, the political and ethical dimensions remain. So, I ask, what does “embryos . . . are destroyed” mean? Does a cell or cells known as an embryo exist outside the uterus? If the cells are replicated ad infinitum, are they destroyed? To allow such important questions to be sidelined by money is just flat wrong. I trust the government will energetically appeal this terrible injunction. Let us debate the issues associated with embryonic stem cell research vigorously in the bright illumination of Debater’s Corner.

“International adoption: From a broken bond to an instant bond”
by Michael Gerson
Washington Post
Published: Friday, August 27, 2010
http://link.email.washingtonpost.com/r/F490YD/S33A3Y/S3U055/HTSL57/HUATZ/SN/h
After reading through the Sherley ruling (above) and then reading Gerson’s opinion article, the juxtaposition struck me like a 2x4 up’side the head. Yes, absolutely, without equivocation, Gerson is spot on. The generosity and dedication of American families who expend extraordinary effort to adopt unwanted children from other countries is glorious testament to their magnanimity . . . and to a certain extent offer validation of the essential principles of this Grand Republic. Yet, what strikes me is the contrast. The abortion issue has so colored, polarized, clouded, divided and corroded reasonable political intercourse that some of us turn to international children when we have a bountiful supply of needy children right here. Some of us seek the power of the State to take possession of every woman’s uterus. Some of us want the State to prohibit every form of birth control. Some of us want to confine sex to only adult, heterosexual, monogamous marriage for procreation only, and pretend sex does not and should not exist for any other reason for anyone else. We expend far more energy trying to control the lives of other citizens than we do helping children in need. I join Gerson in praising those who open their hearts, homes and families to children in need from other countries; however, once again, I urge Congress to create a national adoption trust to help Americans to find American children in need.

One month after United States v. Strandlof [USDC CO 1:09-cr-00497-REB (2010)] [450], the 9th Circuit Court of Appeals added its opinion regarding the constitutionality of the Stolen Valor Act of 2005 [PL 109-437] – another false claim of military honors case. In 2007, Xavier Alvarez won a seat on the Board of Directors of the Three Valleys Municipal Water District [eastern Los Angeles County, California]. On July 23, 2007, Alvarez arose and introduced himself, stating “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” As the appeals panel unanimously noted, the only element of truth in his public statement was he was alive. Circuit Judge Milan Dale Smith, Jr. delivered the ruling of the 2-1 panel in United States v. Alvarez [9CCA no.08-50345 (2010)]. This ruling deals with the legal protections afforded knowingly made “false statements of fact.” The majority places the threshold to the liberal side of margins. They take a far broader position of protection, limiting vulnerability to only defamatory or fraudulent false statements. Our common law does NOT protect speech that is lewd and obscene, profane, libelous, insulting or ‘fighting’ words – the very utterance may inflict injury or tend to incite an immediate breach of the peace – or other forms of speech are considered to have such low value speech that they are afforded little if any protection including: “insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business.” The court decided false claims of receiving military medals of combat valor in violation of the Stolen Valor Act was not worthy of being prosecuted and being added to the list of unprotected speech under the 1st Amendment. The court concluded, “[G]iven our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment. The government has not rebutted that presumption here because the Act is not sufficiently analogous to traditional permissible restrictions on false speech.” Some of this particular debate depends upon the weight or value we, as a society, place upon combat valor medals – Medal of Honor, Navy Cross, Silver Star, Purple Heart, et al. If we see them as simple artifacts of past events, rather than their symbolic recognition for courageous action under enemy fire, then perhaps Judge Smith is correct. The majority rationalizes protection for such false statements based on the capability that the facts can be readily checked, using the “Congressional Medal of Honor Society, Recipients, http://www.cmohs.org (last accessed Mar. 31, 2010); Congressional Medal of Honor Foundation, http://www.cmohfoundation.org (last accessed Mar. 31, 2010).” He does not mention how folks are to check recipients of other applicable medals; I guess that was not important to these judges. Circuit Judge Jay Scott Bybee dissected the majority’s opinion in his dissent. He noted, “[T]he majority’s principle rests on a line of reasoning that I cannot endorse: that our jurisprudence should rest on what we think the Supreme Court ‘means’ rather than what it actually says.” Bybee went on to say, “The likelihood of a ‘bona fide harm’ has nothing to do with whether a category of speech loses First Amendment protection.” He concluded, “[T]he better interpretation of the Supreme Court’s cases and those of our court is that false statements of fact— as a general category—fall outside of First Amendment protection except in certain contexts where such protection is necessary ‘to protect speech that matters.’” Bybee’s conclusion was that Alvarez’s bald-faced lie was not “speech that matters.” I emphatically agree with Judge Bybee. It is against numerous laws in every state of the Union to impersonate a doctor, a lawyer, or a police officer. What is the difference with a decorated combat warrior? We place restrictions on commercial speech; companies cannot mislead the public. So, what is the difference? Why does someone claim to be a Medal of Honor or Navy Cross recipient and combat veteran? Is “bona fide harm” only tangible harm or does it include the intangible, i.e., a vote cast or business given as a result of the false claim – influence rather than monies or assets? Is it harm if a community puts a person like Alvarez in a leadership position, expecting comparable courage as he has falsely claimed; is that harm? We restricted obscenity because it has a “recognizable harm,” which is patently not true – it is perceived or intangible harm at best. So, the court’s august judgment obscenity causes harm but a false claim of being awarded the Medal of Honor for conspicuous gallantry in combat service to this Grand Republic does not cause harm. Interesting! I think the Alvarez and Strandlof rulings say more about the lack of sufficient value the associated judges place on military valor medals, despite the fact that Congress and the President have made that value statement in fact and substance. If the issue at hand was simply a citizen telling a lie, I would agree with the court. If the case was about the government dictating acceptable speech, then I would agree with the court. Despite the court’s myopia, military honors are NOT speech. They are NOT self-existing or self-generating. They cannot be bought, acquired, traded, or otherwise amplified or altered. They are solemn recognition on behalf of a grateful nation for valor in combat or for specific services rendered to this Grand Republic. Xavier Alvarez knowingly, purposefully and blatantly violated a specific, direct, narrow law, and deserves to be punished for his transgression. The 10th Circuit has not yet weighed in on the appeal of Strandlof. I would expect one, both, or any other cases to reach the Supremes. I trust the Court will make this right. Sooner the better from my perspective!

News from the economic front:
-- The National Association of Realtors reported existing home sales decreased in July to an annual rate of 3.83 million – down 27.2% – the lowest level in 15 years, a record period decline and nearly twice as much as analysts had expected. Inventories rose to 12.5 months from 8.9 months in June – the highest level in more than a decade – further pressuring already depressed home prices. I think we all knew the correction was coming, but that does not make it easier to endure.
-- The Commerce Department reported new home sales fell in July to a seasonally adjusted annual sales pace of 276,000 – down 12.4% from the prior month – the slowest pace on record dating back to 1963.
-- The U.S. GDP rose at a seasonally adjusted annual rate of 1.6%, less than the 2.4% growth initially estimated. In the first quarter, the economy expanded 3.7%.
-- Perhaps understating the obvious, Federal Reserve Chairman Ben Bernanke said the pace of the nation's economic growth “recently appears somewhat less vigorous” than expected. He suggested the U.S. economy is on track to continue growing, and the central bank was prepared to intercede, but would only take new action if conditions worsen further.

Comments and contributions from Update no.453:
Comment to the Blog:
“I'll skip the legal side of the Proposition 8 discussion; I'm not qualified and I doubt that this is the important part of the debate. I will, however, note that Edwin Meese and many others have made lucrative careers since the Reagan administration by espousing any conservative position whatever, regardless of legitimacy. We may reasonably hope for their retirements to begin within about five years.
“You and I are both old enough to remember Vietnam. That included a very similar attempt to disentangle US combat troops. As I recall, it failed.
“As far as the Wikileaks issue, we have discussed undeclared (and, in this case, untargeted) wars before. Most likely, that absence of such a declaration under Bush will come back to bite the current administration. The speed with which the apparently spurious rape charges were withdrawn seems to indicate an even less capable Plumbers unit than Nixon's.”
My reply to the Blog:
Like so many social conservatives, they know precisely how everyone else should live their lives, and they are quite comfortable using the law to dictate morals and private conduct to all citizens. Yet, the truly sad element common to virtually of these moral projection issues is a denial of freedom of choice to other citizens not like them.
I suppose it is a worthy topic of debate whether Nixon’s disentanglement from Vietnam failed.
Yes, we have discussed the absence of a formal declaration of war. We have also discussed the legal meaning of the Authorization(s). The WikiLeaks case is far from over, and the consequences could affect our national security for decades if not generations.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)