Beyond the Cusp

February 24, 2016

FBI Makes Hating Apple Hard to Do

 

Apple is going to take their case to a higher source and they may need to appeal to an even higher intervention as the court has joined the FBI (Federal Bureau of Investigation) ordering Apple to provide what they refer to as a ‘key’ which the FBI could use to defeat the security encryption system which allows users to encrypt their data keeping it private only available to somebody who knows the security code. The encryption has the added feature that it makes the time before another code can be entered longer and longer as incorrect codes are entered and erases all the information after a number of wrong guesses have been entered. Let me admit right up front that I have avoided Apple products in favor of LG whose phone and pad I use while our proof-reader does love her antique i-phone which does not have the encryption option as the hardware only was installed starting with the newer units, we won’t say which as we ought not anger the proof-reader. Still, we both agree with Apple that they should not be forced to give the FBI a generalized code or any method which could be utilized on any other i-phone but there will be almost as many arguments as there are people and that is something right down our alley, taking a side and then defending it.

 

The first thing we need to take a look at is who the judge is in this case. Sheri Pym was originally a United States District Court for the Central District of California who was then appointed to sit as a United States Magistrate Judge on April 15, 2011. The duties of Magistrate Judges include conducting preliminary proceedings in criminal cases, the trial and disposition of misdemeanor cases, conducting discovery and various other pretrial hearings in civil cases, the trial and disposition of civil cases upon consent of the litigants, and other matters as may be assigned. Magistrate Judges are appointed for a term of eight years, and can be reappointed to additional terms. This is a Judgeship as part of the United States District Judge which appears to have been a position where the court system itself recommends who they believe is capable and meets a set of criteria to become this particular level of District Court Judge. Judge Pym prior to her appointment served as an Assistant United States Attorney and Chief of the Riverside branch office of the United States Attorney’s Office, doing mostly criminal prosecution work. Prior to joining the U.S. Attorney’s Office, she was an associate at Milberg Weiss LLP in San Diego, where she represented plaintiffs in class actions involving consumer fraud, wage and hour violations, securities fraud, and tobacco litigation, and also worked in the firm’s appellate department. From what we have been able to ascertain this position is one where the appointment is more of a promotion than it is an appointment the President would necessarily take the time to review anything more than the recommendation of the office promotion recommendations and sign off and the United States Senate would receive this as likely a group of such appointments and routinely sign off, yes that requires their voting on the appointment, more than they would labor and debate possibly calling Judge Pym to appear in Washington D. C. for hearings as they would an appointment to the Federal Court of appeals. If anybody has additional information preferably with links and sustaining documentations we would very much appreciate such information made in the comments below and we thank our readership for any such assistance they can provide.

 

Now to the case itself and what we could discern as the reasoning. Where it is understandable that the FBI would really love to have access to every last bit of information they can get their hands on in any and every case, especially those where they have a target and need to find a case to present; it is also understandable that they really would like to get into the cell phone with the minimal hassle and time invested of anyone suspected of being attached to a criminal enterprise which in this instance includes terrorist activity. The FBI also has previously run into instances where i-phones have been encrypted and they likely lost vital information and time attempting to get past the Apple encryption system and also after making several attempts to get past the encryption lock had the phone wire and destroy any information the i-phone may have had within including the all-important phone logs including phone numbers which might break other cases or cement their current investigation. In this instance the iPhone 5c was a work phone used by Syed Farook, who along with his wife, Tashfeen Malik, murdered fourteen people in San Bernardino, California last December. This is a solid reason for desiring to get past the encryption without erasing the very data the FBI seeks in this case, which considering the terrorists were killed, means seeking deeper contacts and potential ties with terror cells or other links which the FBI may already be investigating. There is not known information contained in the i-phone so this is not the ticking time-bomb situation though our bet is this was part of the FBI argument that they might in the future have just such a situation and going through having Apple gain entry into the i-phone might take longer than they would have.

 

 

This July 27, 2014 photo provided by U.S. Customs and Border Protection shows Tashfeen Malik, and Syed Farook as they passed through O'Hare International Airport in Chicago

This July 27, 2014 photo provided by U.S. Customs and Border Protection
shows Tashfeen Malik, and Syed Farook as they passed through
O’Hare International Airport in Chicago

 

 

This leads to a simple question, what was the critical piece of law, writ, judgement, precedent or other critical information on which this case is relying for its reasoning and/or precedent. According to the information we found, the particular was the All Writs Act, a law stretching back over two centuries. All Writs Act of 1789 (United States Code › Title 28 › Part V › Chapter 111 › § 1651) reads:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

When reading the notes and supplemental information we believe we found the specific application utilized by Judge Sheri Pym to back her decision and granting her the power to require Apple to comply. It reads as follows:

“The Supreme Court and the district courts shall have power to issue writs of scire facias. The Supreme Court, the circuit courts of appeals, and the district courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law.”

 

This reads, if we are not mistaken, such that a judge can pretty much make up their own precedent by simply not being capable of finding any ruling or law pertaining to the case before them. Something tells us that this reasoning is not going to stand upon further review and that this case will be appealed by either side until the Supreme Court has decided or refused allowing the decision of the lower court to stand, in this case the Ninth Circuit Court of Appeals (oft referred to as the Ninth Circus due to loopy decisions overturned subsequently by the Supreme Court, particularly in recent history). The fact that this law stretches back almost to if not actually to antiquity when it comes to United States law and is likely enacted to give cover to judges to use sparingly, and since it was referred to regularly as the “judge invoked a little-know law,” we feel comfortable thinking that this one is on the chopping-block when it reaches the Supreme Court in Washington D. C. which is where numerous old laws either came to die or received a supercharging and left Washington D. C. with a whole new set of super powers. We can only hope this little known law receives the death penalty and is quickly executed. Allowing a judge, any judge, to make things up on the fly is far too dangerous a power. Just because there is no law applicable to a situation should never be the reason empowering a judge to invent powers to a law, or are these super powers, just to make their decision they would like to make applicable in a case. Do not get me wrong, Apple is one company among a list of companies which I would support almost any reasonable, key word here, reasonable, judgment with which to knock them down a peg, but even I cannot fathom allowing this power to be resurrected and allowed to stand in a society as litigious as the United States or we will have United States District Judges all over the nation adding turbochargers and then superchargers to what they see as underpowered laws which need heavier application which they just want so bad they can taste it. We can taste that too; and it is called tyranny, a tyranny, warned about by the Greek philosopher Alontesquieu who cautioned, “There is no tyranny, than that which is perpetrated under the shield of law and in the name of justice.” This should be written on a nicely framed gavel holder which includes and amply sized gavel even for the most insecure or overbearing judge may require or feel the need with this inscription placed under a strong and shatter-proof glass on every judge’s dais so they may read it every time they raise that gavel.

 

 

Greek philosopher Alontesquieu who cautioned; “There is no tyranny, than that which is perpetrated under the shield of law and in the name of justice.”

Greek philosopher Alontesquieu who cautioned;
“There is no tyranny, than that which is perpetrated
under the shield of law and in the name of justice.”

 

 

What this case will eventually fall under is the letter of the law and not how far out of shape such law can be twisted, folded, bent, widened or supercharged and it will likely be found as falling in antithesis to Amendment IV of the Bill of Rights. Amendment IV reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So, where do cellphone data fall on this lovely right deemed so important to the safety and protection from government run wild with a hunger for absolute power came for protection? That requires deciphering what information a cellphone may contain and where such items might belong by seeking their earlier non-digital age counterpart. Our cellphones keep our phone numbers, e-mail addresses, potentially actual addresses and other pertinent and deemed quickly recoverable information on each entry we place in the cellphone. The complexity and depth of information may vary, but generally this replaces our personal phonebooks which most definitely are protected as being both papers and effects thus requiring a warrant for any law enforcement officer, even an FBI agent, to acquire before accessing such information. The argument that both Tashfeen Malik and Syed Farook are currently deceased (never underestimate the ever increasing power of medical science) and thus do not have the right to such protection and as they obviously had perpetrated a heinous crime of murdering fourteen innocent victims, there should be no great hurry requiring any urgent access. This is even more obvious as the FBI has had possession of their cellphones likely for close to two months, so instant access is not required here. The FBI could take the cellphone(s) in question down the road to Apple and have them access all the data in the cellphone(s) and leave them fully open and with the encryption access decommissioned permitting easy access to all the information within the cellphone(s) available to the investigators as they proceed with their case investigations. The ‘key’ the FBI is requesting could be utilized on any i-phone which is encrypted to gain access nearly instantly and thus be able to take anyone’s i-phone 5 or better running iOS 8 or later version software and gain full and complete access to the information on such a device, i-phone or i-pad. Giving the FBI such a tool would subsequently be demanded by every Federal Agency in order to supplement their investigative arms in accessing i-phones or i-pads including the personal devices of their employees. Once again they would not need to have any pressing need for the information requiring such easy access but they would still desire having such power.

 

Imagine how quickly they could run down that entry on-line which a supervisor found insulting or out of line and desired to know from whose i-phone such a post was sent. The reasoning excuses would be endless. Then State Police, city police, county police, homeowners associations, who knows where such would stop, the leader of a quilting society, who knows. This judgment will have far reaching implementations galore if it is allowed to stand. Apple should even be granted protection from having to divulge this key until the final appeal date has been passed or the Supreme Court has ruled or lower court decision allowed to stand simply to protect this proprietary information from being compromised. I am sure it would irreparably damage i-phone should this ‘key’ become available to hackers as this would quite possibly give them access to records which may include a person’s passcodes for their every account on-line or at the ATM or wherever they kept user name and password information, vital information. So, we have established the fact that this is a phonebook on steroids, but still a phonebook. What else do we keep stored on our phones, especially i-phones or i-pads? Well, there are the photographs, though they are now called images. Well, our yearbooks, photo albums and the like are definitely papers and effects. We keep our schedule and any alarm settings such as your not so friendly wake-up your phone provides every day, in the case of i-phones every day needed or not, with a wake-up alarm of your choosing, mine is a lullaby. These too are amongst your effects. If your home security system is linked to your i-phone or i-pad that counts as giving them access to your house, another little pesky item so very protected by Amendment IV.

 

All the items kept on our phones, tablets and any other mobile electronic devices and the access they provide to items requiring a passcode or possible entry to our homes and vehicles (oops, vehicles are not protected and by a decision ruling that because they are mobile and could be used to conceal items pertinent to the case at hand and as they could be used to take evidence beyond jurisdiction of the law enforcement at hand, they can be broken into even without our permission, but they would not require our phone or tablet to pry open the trunk of our vehicle) safety boxes with electronic locks, safes, refrigerator (some of us have wives assisting with our diets, who me?, no, I’m just cuddly plump) and whatever else requires a passcode or electronic key which our phone or tablet provide. All of these items are things which require an individual warrant to gain entry and so should our electronic devices. There are reasons that would actually go into areas under Amendment V which does not allow for law enforcement to force us to incriminate ourselves. This comes in to play as say the police have a warrant to search your home for a stolen watch, a Rolex just to make it grand theft Rolex (maybe there is a game in there somewhere and maybe a movie series with a future Rolex which is also a time machine) and they have a warrant to search for that item and they find your slightly less than legal cable set up stealing your neighbor’s signal. Technically they cannot arrest you and use that evidence as it was not included in the warrant, though you would be wise to ‘repair’ that little hook-up and fast because there may be another warrant or an angry cable enforcement officer (like they have such things) visiting you and your neighbor real soon. The law is not made to trap the average person for minor transgressions, which falls under peer pressure to keep one within acceptable bounds. We could call that the oral code as versus the written code which is the police’s domain. Anything on your i-phone or i-pad is protected under Amendment IV and thus entries usually requires a warrant which requires probable cause and a whole host of other information and are about as difficult to attain as an ice cream sundae. For a warrant you fill out the form and submit it to a judge whose position is to review and approve or deny the law enforcement a warrant while an ice cream sundae requires one to visit an establishment, order one (fill out the required forms) and wait for it with a requirement that you will pay for the ice cream sundae before leaving or there may be a warrant in your not too distant future.

 

In conclusion, the FBI is requesting a general tool to gain data in a particular investigation where they have another option of having the lock removed on the particular item which they desire to inspect its contents. The item is locked not unsimilar to a safe in ones purse or pocket (pretty neat or at least we thought so). This electronic lock can be bypassed by the company which makes the items in question. The contents of the locked item all come under the qualities and qualifications legally as being persons, papers and effects as defined by Amendment IV giving them Constitutional protection. Where a specific entry is possible and Apple would and has provided such assistance in the past but this has proven for too laborious for the FBI to pick up the phone and make an appointment, often so far in the future as to resemble, ‘How long would it take you to get here or would you prefer our technician to come to your location in case you have any other difficulties, officer sir’ kind of laborious efforts. So, instead of going through almost five easy peasy chocolate smoothie steps, the FBI is asking that the courts demand for Apple to give them the ‘key’ which could then be used on any i-phone or i-pad using iOS 8 or later version software and gain full and complete access to the information on such a device. Sure, and here are the electronic ‘keys’ to the ICBM missile silos, are there any other items we could grant you today officer, Sir? So, the judges in the case, Judge Sheri Pym, researched the books, had her clerks research and find some two-hundred-twenty-seven year old statue and blow a century and a half off the records as it has not been used in a while, finding the All Writs Act on which to base her decision. The All Writs Act says, in synopsis, that if a judge cannot find an actual law but finds instead some Federal Code or Law which has yet to be defined as they wish to twist and otherwise mutilate, spindle, bend and otherwise slice and dice and rearrange the letters to finally produce something which they can use, then go for it, you go judge. Judge Sheri Pym made just such a leap of legalistic gymnastics to order Apple to sacrifice one of their selling points by handing over to the FBI a key which can be used to circumvent the passcode effects of both erasing all information thus protected after a set number of incorrect entries and remove the ever lengthening delay before one can enter their next guess so that the FBI can use a password entry device which inputs passcodes at a blindingly mind-numbing speed thus being capable of, if left at its fastest speed and all other limiting or defeating software or hardware limitations probably defeat any code or password of up to twelve characters in under two minutes. As they are describing their request, all they want is to be able to use this code breaking machine on any i-phone or i-pad using iOS 8 or better as it would be so helpful in this case they are currently working on. Never mind that they could have had Apple open the device for them without any muss or fuss but no, they want the power, the power to defeat everybody’s Apple product on the planet as they are the all and powerful Oz, sorry, only the FBI so we are dealing with the little man behind the curtains already and he wants the power for Oz, where Oz is the great and powerful Federal Government and it had 535 little men and women standing behind the curtains called the Capital Dome on picture taking day. Let us hope that this decision gets flamed at the next level and that hold all the way to the top even if that top is the Supreme Court and may we live to read about that case. Remember, it should end up under Amendment IV with a possible assist from Amendment V and Apple should win. Drat!

 

Beyond the Cusp

 

October 11, 2015

In Israel America is Still That Gleaming Land of Greatness

 

The statements in this article are formed from the Israelis I have met and is hopefully something which continues to hold truthful as my experiences broaden. The vast majority of Israelis, particularly young Israelis, have an idealized view of the United States. They believe that in the United States opportunities exist like nowhere else on Earth. They see the United States as being capable of achieving just about anything they decide to put the efforts towards. This is not to say that they approve of everything the United States does or does not do that concerns the Israelis. Despite their love affair with the United States, that love affair sours rather rapidly when one takes stock in how Israeli feel about the United States governance. There many Israelis have more difficulty understanding as they see the United States as capable of doing unbelievable good if only the government would allow the people to take care of things themselves. You see, where one’s initial observation would be that the average Israeli has a view of the United States which is unrealistic, as you delve deeper you realize that they are not seeing the United States as perfect or they believe that things in the United States are perfect. What one sees is that the average Israeli loves Americans and their forms of governance and have just as jaundiced a view of the government as the most conservative Tea Party individual. Rumor says that this belief does not extend to much of one large city where their views match closer to Boston, New York, Los Angeles or most other large cities in the United States. Thus far I have avoided visiting this one city as I like the idealized view of the United States, well, more so the views of the average American citizen.

 

This view of America, as that is the real love, is that ideal America that went to the moon in less than a decade after deciding they were to meet that challenge. They love the concepts of full equality of opportunity and the spirit which made America great and is still there as a creative spark which is inside every human being but stifled more everywhere else outside America. The America most Israelis have experienced has been through the eyes of those who have visited the United States and seen the great potential which exists in the United States and these people have not stayed in the United States sufficiently long enough for the bad shortcomings to become just as easily witnessed thus bringing even the most devoted Israeli to see that there are places where the United States falls well short of the mark. Ask the average Israeli what they think of the United States and you get the feeling they believe that America can do no wrong. Dig a little deeper and you see a people whose idealized view is of the average American and their can do attitude becomes more of a could have been attitude which is more in line with reality.

 

One looks a little deeper and one begins to understand where the average Israeli gets their views on the United States and things begin to make sense. The average Israeli forms their views of the United States on the relatively small number of Americans they meet. Here in Israel most of the people get a small sample size and have only met Americans who have afforded not only trips to Israel but many have also an apartment that they own and plan on retiring and living in said apartment, so obviously the Americans they have met are the more wealthy and additionally their sampling consists solely of American Jews who are also Zionist and tend to be more conservative. Many of these Americans have completed college and are by and large physicians with many also being surgeons. So, their sample size is rather small and more indicative of the wealthier Americans and often include other than those in the medical fields, Americans who have some form of engineering or other scientific degrees and again often post graduate work with many having gotten their doctoral degree. So, again their sampling is skewed to successful Zionists which mean that they have again met mostly conservative people who have often also formed their own companies and many also hold a MBA degree to go along with their doctoral degree. To point out these are highly motivated people who would have succeeded in almost every nation in the Western world would be an understatement. If one speaks with the Americans who reside now in Israel after holding a successful career in the United States, many also fulfilled their required service in Israel as well. The sample size keeps being refined down to a very motivated and brilliant people who are driven and who meet very high criteria in education and accomplishments to their credit. These people tend to be conservative but still often voted as a good social liberal though they often had a very simple and basic filter which was dependent on one issue. Would their preferred candidate support Israel with almost a blind zeal bordering on fanaticism.

 

If one would make a list answering the question, ‘What is right about America?’ you would probably get a definition of the attitude of many of the Americans one meets in Israel. Giving even more validity to the assessment of the average American Jew who at some point after quite an impressive career decided to live in Israel and sufficient numbers of these people also gave half of their career time to working in Israel, there is an overwhelming number of the American Jews residing or regularly visiting Israel that have a less than admirable view of the current holder of the White House. As many of these people have what is called dual citizenship and are eligible to vote in the State they last resided in and do cast absentee ballots, their choices are easily researched and the story is quite telling; where in the United States President Obama won over seventy percent of the Jewish vote in both of his election victories, the Israeli Americans voted in the opposite direction with the 2008 votes exceeded three-quarters voting against President Obama and in 2012 an even higher percentage voted against his return to the White House. The consensus amongst the Americans here was obviously that President Obama was bad for Israel and the overt actions during the last Gaza war on Hamas and Islamic Jihad. They viewed President Obama directly for the closing off of Ben Gurion International Airport due to the terror threat which could have resulted in downed aircraft, something the United States had not done in Syria during the five year war continuing to rage nor have done in Lebanon, Libya or any of the nations struck by violence as a result of the Arab Spring turned into an Arab Winter despite some of the most vicious threats to flights in or out of their countries. In some of these cases the airlines themselves refused to provide service to these nations. Then there was the channeling the resupply of arms which the United States was obliged to automatically approve with the military itself charged with authorizing and supplying replacements keeping Israel provided with the means for her defense through the State Department with their withholding approval until Israel had presumably buckled to the demand to cease their hostilities in Gaza and returned control of Gaza to its ‘duly elected government’ which is the same as saying Hamas as it is their people who rule in Gaza. The White House was fully aware of this situation and the obligation of the United States which they modified so as to make their obligation into a wanted dead or dead poster on Israel, and that is not a Freudian slip, dead or dead was exactly what the White House was aiming to produce by withholding the resupply which was an agreement included in a defense treaty making it the law to make such resupply in a timely manner.

 

 

Stronger Together Enforcing Similar Ethos

Israel and America Stronger Together Enforcing Similar Ethos

 

 

This treaty was entered into for the Nixon Administration doing exactly the same withholding of the resupply to force Israel to comply with their demands that they simply cease fighting in defense against the invading forces of Syria and Egypt during the Yom Kippur War which caught Israel at her most vulnerable time with three-quarters of her military personnel in synagogues across Israel and not carrying any electronics and thus forcing the IDF to send personnel to as many Synagogues as possible and to send vehicles announcing the emergency call-up using loudspeakers and driving through one city after another. This withholding of resupply was advised by then Secretary of State Henry Kissinger, a Jew but apparently only by birth. The reasoning Secretary Kissinger gave for refusing to meet the Israeli request for resupply was that by refusing to send the arms Israel would be more vulnerable and thus far more easily forced to meet the demands which the State Department was pushing for President Nixon to demand of the Israelis. Fortunately the resupply was held a dangerous two to three days and Israel had begun to run low on some vital armaments which would have threatened their ability to defend their country had resupply not reached them in time. This was the reason a treaty was signed by the Nixon Administration after the Senate overwhelmingly approved the agreement. If one has seen a potential viewpoint against all things Israel coming from the State Department, please allow us to also point out that the State Department very strenuously objected to the decision by President Truman to recognize Israel as a new nation in May of 1948, May 15th to be exact. The State Department has been more stridently anti-Israel and anti-Zionist from their objection to the aims of forming the British Mandate in order to form a homeland for the Jews after World War I as part of the San Remo Conference which set up the French and British Mandates.

 

Fortunately most young Israelis know very little about the dastardly designs of the State Department which by their actions have proven to desire the death of the Jewish State by any and all means available. Fortunate for Israel that this is beyond the ability for the State Department to pull-off but they will apparently continue to try. The love affair which Israelis appear to have with the United States is actually more with America and the American People and independent of the government of the United States. What makes this all the more rewarding a relationship is the fact that large majorities of Americans love the Israelis as well, as has been proven in poll after poll. This is likely due to a love of freedom and a shared morality in many ways. The Israeli government often appears to take their cues from the Constitution of the United States or at least the Bill of Rights, the first ten amendments required by a number of the signatory states as a condition for their signing onto the Constitution. That is most likely the glue holding these two peoples in mutual support and admiration and it would be wonderful if their relationship continues and those values prove to be the perfect glue which both societies use as their moral guide throughout their histories. It would be quite sad should they not remain as the constant rock mooring both ships of state.

 

Beyond the Cusp

 

March 7, 2015

The United States Lost Republic to Democracy

 

While a complete democracy is neither desirable nor practical, yet the United States has irrevocably moved steadily closer and closer to outright democracy since the first days of her founding under the present Constitution. The Bill of Rights, the first ten amendments which were debated and selected from an original thirteen and sliced down to a nice round number, ten, gave the first step in that direction by delineating the rights which were included in those guaranteed the people as they were gifts from the creator mentioned so specifically in the Declaration of Independence which many of the Founding Fathers believed was a part of the founding documents which defined the society and its governance just as much as the Constitution. As time progressed the Federal Government gathered unto itself more and more powers stealing them either from the States respectively, or from the people. This was from the government which supposedly was restricted by Amendment X which read, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Founding Fathers were divided into two groups, the Federalists and, of course, the anti-Federalists with one group desiring to balance the governance in favor of the most local governance as possible while the others believed that centralized powers were required in order for the governance to rule the entire nation. The first attempt to fashion a weak central governance over the newly liberated English colonies, the Federated States of America, was a dismal failure as without any powers to raise money and left at the mercies of the charity of the individual States the government very soon ran aground and became high, dry and out of funds. So, the United States of America’s Constitution was America 2.0 and made with powers given the central government unconscionable the first time around. Had the Federal Government continued to be restrained and restricted to its original powers then the United States would probably be in better shape and the European powers would still have militaries of sufficient size and capabilities that they would not be dependent upon the United States to be the sole determining force of NATO and the European Union would have died long before the Euro became the bane of Greece and the lucrative coinage for Germany. But the changes that put the final knife into the Constitution slashing it and tearing it and signaling the end of that Amendment X and the State’s rights it presumably protected came in along with the end of many individual rights for the individual American just before World War I began on July 28, 1914.

 

Earlier in that fateful year Amendment XVI established the income tax with the promise from the politicians that it would only tax the most wealthy one percent of the population and would never be permitted to become a burden on the average person and on that promise likely being the clinching argument allowed it to be ratified into law on February 3, 1913. As any American will attest, the income tax became far more than burdensome on the average person but also grew to such a point and the IRS which it founded gathered such information that the government through provisions and added regulations eventually could tell the average person their expenditures throughout the year and was rumored jokingly that the IRS could look up the color of the guest towels hanging in your bathroom. Now the Federal Government can tell you a whole lot more than the colors of items you have purchased, the extent and particulars of your every investment and virtually anything anyone might care to know about your life, your purchasing habits, your diet where you go on weekends for fun, where you vacationed the last ten years, the make and mileage on your vehicles and just about any other detail imaginable, and people worry about their privacy. Privacy in this world died a long time ago somewhere right before data mining and agreements between governments arranging for each to spy on the other’s citizens and then provide the information upon anybody that the other requested which eventually led to the decisions to forget the middle-man and simply for each nation to spy on their own citizens making everything so much easier and less complicated.

 

A short time later the Amendment XVII was ratified on April 8, 1913 establishing for the direct election of each State’s Senators instead of allowing each State to decide the methods their Senators were chosen. Previous to this Amendment to the Constitution most States chose their Senators in a various number of procedures with the two most used being the Governor choosing the Senator as each came up for election and possibly having to present them to the State’s legislature or higher branch of the legislative branches to have them approve the selection with some States requiring a larger vote for approval than a simple majority. The other method was for the Senator to be selected by the legislative branch of the State government and in most cases have them approved by the Governor under the same rules as legislation was passed or vetoed by the Governor. This Amendment took away the individual State’s ability to have their voices heard in the Federal Government making the Senate simply a less populous House of Representatives having both wings of the bicameral legislative governance chosen directly by the people. The reasoning presented was that the people were more knowledgeable as a group or mass intelligence than any combination of State Governors or legislatures in choosing the Senators. There was also the claim that State level politicians were too corrupt which was laughable as the majority of Federal legislative politicians were simply the most competent of the people in State governance. This was amidst the populace movement where the average citizen was presumed to have better sense when the whole was allowed to speak as through elections. What was completely ignored was that the Founding Fathers had planned for the Senate to be the legislative branch representing the States’ governance such that the Senate would guard over State’s rights and protect the powers of the State and limit the influence the Federal Government could have over them. This change brought on the slaughtering of the States individually and collectively such that they have long ago seen their powers slowly but inexorably misappropriated, stolen even, by the Federal Government which now faced no opposition from the individual States. This also allowed the Federal Government to control the individual States by demanding that the State acquiesce to the demands and whims of the Federal Government in order to receive funding such as requiring that the States meet caloric and vitamin requirements and curtail the choices offered the children otherwise not receive a large amount of Federal school funding which is earmarked for the lunch and other food programs. Further, the Federal Government has come up with this wonderful manner in which to place onerous demands on the States through unfunded mandates. These are programs that each and every State is required to carry out according to Federal regulations or even actual laws but for which the Federal Government no longer funds the program dumping the entire mess upon the States to finance. The numbers of these programs increases every year and this is partially due to the Federal government attempting to release itself from onerous financial obligations which were laid out in legislation for some program every State is required to carry out and funds were set aside for the first so many number of years and were presumed to be funded further by the Federal Government but somehow down the road the Federal funding ceased but the mandate continued and the States found themselves on the hook to finance program after program as the Federal Government cut off the flow but did not cut out the requirements.

 

Both of these Amendments to the United States Constitution were ratified but under suspicions of fraud. One was found to have received the final ratification a few weeks or a couple of months beyond the set time allotted for ratification to be permitted, Congress claimed that somehow this had been covered by some extension despite no such allowance stipulated as possible by the Constitution and the other was not ratified by sufficient States falling a couple short. Well, World War I struck on July 28, 1914 and the RMS Lusitania on May 7, 1915 was sunk by a German U-boat and American lives were lost as a result. There has been debate ever since the sinking as to whether the RMS Lusitania carried weapons or explosives for use in the war which was vehemently denied by Britain and the United States as well as the other allied powers and the debate has persisted and apparently will continue forward. Meanwhile, President Wilson argued against joining the war while simultaneously demanding that the U-boat attacks not target indiscriminately and especially avoid any further attacks upon civilian craft like the RMS Lusitania. Wilson was already stoking the public to allow an American effort join the efforts while also campaigning on a platform that he kept the United States out of the war. United States President Woodrow Wilson finally demanded a Declaration of War and the Congress responded giving him his desired declaration of war on April 6, 1917. As the initial Declaration of War identified only Germany as the nation the United States had declared war upon, this proved to be untenable; so after President Wilson again requested a Declaration of War and Congress did comply as they declared war on Austria-Hungary on December 17, 1917. The United States never actually declared war against all of the forces fighting against the allies who also consisted of the Central Powers, Bulgaria and the Ottoman Empire. World War I came to an end on November 11, 1918 and by this date the horrific pandemic known as the Spanish Flu had broken out and some of the troops brought the virus home with them which caused the pandemic to break out and spread across the United States. By this time the two Constitutional Amendments numbers sixteen and seventeen were faint memories pretty much lost in the fog of the decade which followed them with the war and the flu who had time to be concerned about the potential of inconvenience of two little Amendments. Unfortunately, as was learned many years later these two little Amendments proved to be anything but minor little legislative additions to the Constitution but rather major changes in the breadth of Government powers and the depth of their effect to be felt years later. These two Amendments may have been the most influential pair of legislative action ever passed and ratified since the Bill of Rights was passed. These Amendments laid the framework by which power became centralized in the Federal Government and provided the funding through direct taxation of the people and stripping the States of choosing their own representatives within the central government thus liberating the Federal Government from any limitations by the States nor could they protest directly the absorption of the powers which had previously been within the control of the individual States and subjugating the States beneath the Federal Government’s heel without recourse.

 

The change in how Senators were to be elected directly by the people simply made the Senators nothing more than super representatives with two permitted per state. Now the United States had entered the point of no return sliding almost completely into democracy and definitively no longer a republic. Benjamin Franklin was queried as he left Independence Hall on the final day of deliberation, “Doctor, what have we got—a Republic or a Monarchy?” and Benjamin Franklin answered bluntly and directly to the heart of the query stating, “A Republic, if you can keep it.” Never in the history of founding of nations has the situation been so accurately assessed nor has the problem been predicted as how the Governance will be altered eventually unraveling the delicate balance between the individual States and the Federal Government. It is said that one can assess any Governance by a simple measure; just determine which side is the more fearful of the other and should the Government be more fearful of the people than are they of the Government, then you have freedom but if the people are fearful of their government than the government is of them, then you have tyranny. With all the branches which are appointed to make the general rules and stipulations and requirements from the people now directly elected with the exception of the President, the United States is teetering on the edge and about to fall beyond the cusp and into the electing of the President directly ending any vestige of a republic. The direct election of Presidents has been proposed and one of the most dangerous legislative suggestions which recently was rejected for yet another time by the Oklahoma Legislature which would have demanded that the Electoral representatives for the State vote for the winner of the popular vote by the entire nation while ignoring the will and votes of the citizens in their own state. Should that legislative effort win in sufficient states which would provide an electoral victory then all any candidate would need do is campaign in the cities and areas with the greatest concentration of people to assure himself victory in the popular vote and completely ignore the less populated areas such as Alaska, Hawaii, Wyoming, Maine and all of the rural areas in every state. This idea is simply the latest manner to circumvent the Constitution and make the Electoral College an abstract and ancient methodology to be forgotten except by those few who major in ancient manners for electing leaders in city-states and nations; a major just slightly more useful than Indo-Chinese Love Sonnets of the Ming Dynasty.

 

So, as we can see the United States has slowly but inescapably moved towards a total democracy. There have been calls in the last couple of decades as computers have made this possible for the United States government, as a final act, provide everybody over the age of eighteen a voting tablet which is dedicated to one function and only one function, listing the legislative issues and bills currently up for voting and tallying every citizen’s vote. Each citizen of voting age would be permitted to cast their vote on anything plus they could present legislation they desired to see placed before the people and seek a qualifying number within a reasonable time to continue to be eligible to remain on the list of proposed legislation. This number would slowly rise over at most two months and at that predetermined time, if the proposed legislation has attained the highest level of approvals it would qualify as a piece of general interest and the suggestion would be listed as a Bill and then have two weeks for everyone to vote. Should a Bill be passed it wound be passed on to the President much as things work today. Do not expect such to occur soon as it would require career politicians to vote such into law and thus make their chosen profession obsolete.

 

Still, the United States today is much closer to being a democracy than it is to the republic envisioned by the Founding Fathers and once those populists on the extreme left or the Federalists on the extreme right get their way, then even the President will be selected by straight majority voting. All it would probably take is for a popular candidate which one side felt was undeniably the best choice to win the popular vote but lose the election. Then another ridiculous exhibition of populist insanity would boil over and press through some version of directly electing the President and the United States will have completely been transformed into a democracy. Nothing happens in a bubble and everything has its originating source. The movement to a democracy rather than a republic is that with a democracy it is possible and made more likely for government to become a case for mob rule in which the mob would be the more populous states which is those with the most cities, the most megalopolises. When the cities are given the rule, then what happens to the needs of rural America? We are seeing the effect of cities ruling as the most dominant force in government in California where the water allotments were made over the years to favor the cities over the farmers. Now there are stretches of farmlands which are just acre upon acre of brown dusty soil with dead crops which simply were not provided with the necessary irrigation water at the most critical growing part of the season and these crops and lands are now almost worthless. The family farms will cease to exist due to not being able to pay for their last seeds which never had a chance to grow and will be forced fiscally to sell their lands to the mega-farm industry. This all because the people in the city pressed their allotment of water over that of the less populous farmers were able to and the farmers simply lost their last crop and now are finished. This was a sad example of how straight democracies can destroy an entire segment of the population simply by pressing the mob’s desire for green lawns, full swimming pools, green parks and water amusement parks and a myriad of other needs for water in the big city. The farmers had a similar need but lacked the muscle to lobby the government either at the State or Federal levels and thus lost their crops and many will lose their farms. Once the industrial farm corporations gain ownership of enough of the farmlands, then they will have the lobbyists and they will have the clout to get the irrigations water turned back on and limit the lawn watering city dweller to only be permitted to water their precious lawns on Tuesday, Thursday and Sunday. They may scream bloody murder but at least the farms will return to producing food and not just dusty soil. This entire water battle has and will play out across the United States over time and perhaps teach some of us the values of indirect governance over straight mob rule democracy.

 

Beyond the Cusp

 

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