My prediction has already come true

On January 1, one week ago, I predicted in our annual exercise that someone would propose amending the Constitution to allow Barack Obama to serve a third term.   It has already happened:

Democratic New York Rep. Jose Serrano reintroduced a bill in Congress Friday to repeal the 22nd Amendment, which places term limits on the U.S. presidency.

The bill, which has been referred to committee, would allow Barack President Obama to become the first president since Franklin Roosevelt to seek a third term in office.

H.J. Res. 15 proposes “an amendment to the Constitution of the United States to repeal the twenty-second article of amendment, thereby removing the limitation on the number of terms an individual may serve as President.”

via New York congressman introduces bill to abolish presidential term limits | The Daily Caller.

Should we abolish the Constitution?

Louis Michael Seidman, a Georgetown professor of Constitutional Law, no less, argues in the New York Times that we should do away with the Constitution.

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

As someone who has taught constitutional law for almost 40 years, I am ashamed it took me so long to see how bizarre all this is. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination? . . .

This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.

Nor should we have a debate about, for instance, how long the president’s term should last or whether Congress should consist of two houses. Some matters are better left settled, even if not in exactly the way we favor. Nor, finally, should we have an all-powerful president free to do whatever he wants. Even without constitutional fealty, the president would still be checked by Congress and by the states. There is even something to be said for an elite body like the Supreme Court with the power to impose its views of political morality on the country.

What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief. Congress might well retain the power of the purse, but this power would have to be defended on contemporary policy grounds, not abstruse constitutional doctrine. The Supreme Court could stop pretending that its decisions protecting same-sex intimacy or limiting affirmative action were rooted in constitutional text.

The deep-seated fear that such disobedience would unravel our social fabric is mere superstition. As we have seen, the country has successfully survived numerous examples of constitutional infidelity. And as we see now, the failure of the Congress and the White House to agree has already destabilized the country. Countries like Britain and New Zealand have systems of parliamentary supremacy and no written constitution, but are held together by longstanding traditions, accepted modes of procedure and engaged citizens. We, too, could draw on these resources.

What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are one nation and must work out our differences.

via Let’s Give Up on the Constitution – NYTimes.com.

But why would we even have a Congress, a Senate, a President, and a Supreme Court and how would we know how long their terms are without a foundational, authoritative plan of government?  How would we protect free speech without some kind of supreme law?  Which would be a constitution?  Yes, Great Britain and members of the Commonwealth do without a written constitution, instead following an unwritten collection of traditional principles.  But for that to work, you would need to have a respect for tradition, which Prof. Steidman, with its dismissal of the “white propertied men” of the 18th century, is hardly encouraging.

Besides, as pointed out by David T. Koyzis (to whom I tip my hat for putting me onto this piece) respect for the Constitution and the consequent rule of law that it makes possible is one of the “enduring traditions and habits of thought” that Seidman wants to replace it with.  (First Thoughts of December 31 has posted three critiques of Seidman’s column.)

Obamacare supports gun rights

So will the NRA rally support for Obamacare?

The words were tucked deep into the sprawling text of President Obama’s signature health-care overhaul. Under the headline “Protection of Second Amendment Gun Rights” was a brief provision restricting the ability of doctors to gather data about their patients’ gun use — a largely overlooked but significant challenge to a movement in American medicine to treat firearms as a matter of public health.

The language, pushed by the National Rifle Association in the final weeks of the 2010 debate over health care and discovered only in recent days by some lawmakers and medical groups, is drawing criticism in the wake of this month’s schoolhouse massacre of 20 children and six educators in Newtown, Conn. Some public health advocates, worried that the measure will hinder research and medical care, are calling on the White House to amend the language as it prepares to launch a gun-control initiative in January.

NRA officials say they requested the provision out of concern that insurance companies could use such data to raise premiums on gun owners. The measure’s supporters in the Senate say they did not intend to interfere with the work of doctors or researchers.

via NRA fingerprints in landmark health-care law – The Washington Post.

For me, the telling part of this story is “discovered only in recent days.”  Has NOBODY read the 124-page  bill all the way through?  What else might be in there?  (If you want to give it a go at reading the thing, here is the bill.)

Good news/bad news on abortifacient mandate

An appeals courts has given a victory to Christian colleges suing over Obamacare’s requirement that they provide free contraceptives and morning-after pills.  But another appeals court has upheld the requirement for Christian-owned businesses.

A federal appeals court on Tuesday sided with Wheaton College and Belmont Abbey College in a decision related to the ongoing court challenges to the Obama administration’s birth control mandate. The court said it would hold the Obama administration to its promise to never implement the current birth control mandate and to create a new rule by August, as part of the court decision.

The U.S. Court of Appeals for the D.C. Circuit ordered Health and Human Services Secretary Kathleen Sebelius to give it updates every 60 days, beginning in February, until a new rule is issued in August. The lawsuits will be held in abeyance until that time.

“There will, the government said, be a different rule for entities like the appellants,” the court wrote, “and we take that as a binding commitment. The government further represented that it would publish a Notice of Proposed Rulemaking for the new rule in the first quarter of 2013 and would issue a new Final Rule before August 2013. We take the government at its word and will hold it to it.”

Sebelius first issued the rule in January. As part of the Affordable Care Act, or “Obamacare,” she ruled that employers must cover contraception, sterilization and some abortifacient drugs in their health care insurance for employees. There is a religious exemption, but the exemption is so narrow that most religious employers, including religious schools, are not exempt. There have been about 40 lawsuits related to the mandate.

via Christian Colleges Score Win: Court Orders Rewrite of Birth Control Mandate.

No such good news for Hobby Lobby, whose owners are devout pro-life Christians:

A federal appeals court on Thursday refused to shield Hobby Lobby Stores from the Obama administration’s contraception mandate — and the fines that come with it for not complying — in a blow to the largest employer to challenge the ObamaCare rule.

In response, the Christian-owned company vowed to appeal the case to the Supreme Court.

CEO David Green, who had taken his case to the appeals court after losing in a lower-court ruling, had argued that his family would have to either “violate their faith by covering abortion-causing drugs or be exposed to severe penalties.”

The mandate requires businesses and organizations, with some exceptions, to provide access to contraception coverage — Hobby Lobby was most concerned about coverage for the morning-after pill, which some consider tantamount to an abortion-causing drug. Hobby Lobby has refused to comply, while saying the fines could add up to $1.3 million a day. . . .

There are currently more than 40 cases pending against that rule, though the Supreme Court has not yet stepped into the fray.

In its ruling, the 10th Circuit Court of Appeals said the company did not prove the rule would “substantially burden” its religious freedom. Though the mandate has exemptions for religious entities like churches, the lower court ruled that Hobby Lobby is not a religious group.

The French case against gay marriage

 

France is also fighting a battle against gay marriage.  But religion and politics are not really entering into it.

For Patrick Laplace, the mayor of this trim little town, the Socialist government’s decision to legalize same-sex marriage in France is a colossal mistake.

Laplace has not taken his stand for political reasons. He belongs to the Radical Party, a loyal ally of the majority Socialist Party in Parliament. Nor has he decided for religious reasons. Laplace has faith in God but puts no stock in the organized church. His opposition, he said, arises from a rational analysis defining marriage as the union of a man and a woman for family and filiation.

“And I’ve heard no one here in Blerancourt who disagrees with me,” Laplace, a 59-year-old former banking executive, said in his ornate town hall rising from the flatlands 75 miles northeast of Paris.

As President Francois Hollande’s government prepares to have its comfortable majority vote gay marriage into law, probably late next month, thousands of mayors, deputy mayors and other small-town officials across France have risen up to voice their opposition.

The movement largely ignores political and religious lines, according to its organizers. Instead, they say, it dramatizes another line, one that divides Paris, with its trends and politics, from the countless smaller communities around France where most people remain attached to timeless values in a tradition-heavy society with deep Christian roots. . . .

Here in France, the battle over gay marriage is being fought in the street and in the media, not in the courts. France being France, it is a battle that revolves around ideas and philosophy, not legalities.

via Local officials in France voice opposition to gay marriage – The Washington Post.

Marriage is already a  secular affair under the Napoleonic Code, with these mayors performing virtually all weddings, which then can be solemnized in a church.  Would that Americans could address the issue in terms of ideas and philosophy!

But there is also a cultural divide between a sophisticated elite that assumes it can just change whatever it doesn’t like and ordinary folks who constitute traditional society.

If you have a big estate, die or give it away by January 1

Income taxes for everyone are not the only taxes that will jump up, should we jump off the fiscal cliff.  The estate and gift taxes will also soar dramatically. George Will is sardonic about it:

If you have worked hard for five decades, made pots of money and now want to squander it all in Las Vegas on wine, women and baccarat, go ahead. If, however, you harbor the antisocial desire — stigmatized as such by America’s judgmental tax code — to bequeath your wealth to your children, this would be an excellent month to die. Absent a congressional fix before Jan. 1, the death tax, which is 35 percent on estates above $5 million, reverts to 55 percent on those above $1 million.

via George F. Will: Fixing the tax code at the cliff’s edge – The Washington Post.

Rather than dying, many wealthy folks are giving their money away to their heirs, something else that will be heavily taxed after January 1.  From CNN Money:

Currently gifts and estates of up to $5.12 million are exempt from taxes, but as part of the fiscal cliff, any portion of a bequest that exceeds $1 million will be taxed next year — and at a 55% rate (currently, the rate is 35%). That will kick in unless Congress and the president agree to extend the current exemption or agree on a new one. Many older Americans are not waiting to see if that happens.

“It’s crazy,” said Richard Behrendt, Director of Estate Planning for Baird’s Private Wealth Management. “I bet more wealth is transferred this year than in the past 10 years combined.”
Jonathan Blattmachr, a principal of Eagle River Advisors in New York who has lectured groups of estate planners about the expiring exemption, said the amount given away in 2012 will be three or four times that of any other year.

The drop to a $1 million exemption means that the tax bill on gifts or estates of $5.12 million will go from zero this year to $2.266 million next year, according to Blattmachr.

What do you think about the estate tax?  One strain of puritanism has always disapproved of the “idle rich,” such as those trust fund kids on Lifestyles of the Rich and Famous jetting to Monaco and other of the world’s playgrounds.  The thought is, people should earn their wealth by hard work, not just live off of the hard work of their forebears.

Then again, inheritance is related to the unity of the family across generations.  Also, those with inherited wealth are not necessarily “idle,” since they usually have to keep the family business in good working order.

The inheritance tax is often devastating to farmers and owners of small businesses.  Farmers are often cash poor, but land rich.  That is, the soaring price of land makes them wealthy on paper, in terms of assets, but they don’t necessarily have much actual money.  Frequently, when the landowner dies, the farm has to be sold to pay the estate taxes.  The heirs don’t have that kind of money even if they want to continue the family farm.  The same can hold true for small businesses, which often have to be dissolved upon the death of the owner when the heirs can’t come up with the cash to pay the inheritance tax.


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