Election rejection

November 10, 2018:-  Unless there is a stray Amherst ballot-box or two lurking in a broom-closet somewhere in Broward County, Florida, brim-full of Vickery votes, I am not going to become a Town Councillor.* Such is life.

I am grateful to the people who voted for me, and very grateful to those who put out yard signs and the few kind souls who contributed money. Many thanks to my dear wife, Meg, who endured yet another campaign, to our children for their words of encouragement, and to my stalwart and inspiring treasurer, Hope (now there’s an aptronym), who puts her all into holding open the Overton window.

It brings me deep joy to live life as a citizen of a self-governing republic of free people, with the right to speak my mind without fear of government goons showing up in the middle of the night to drag me off to the cells for a bit of re-education. It is different in many other countries, Daniel Ortega’s Nicaragua for one. Although from time to time in the US a few local officials and even the occasional president, may exhibit authoritarian tendencies, e.g. spying on members of Congress and jailing awkward dissidents, those are the exceptions to the rule. Because we continue to flout the express wishes of tho bien pensant celebs who tell us that we should emulate Venezuela, we do not have anything like the SEBIN.

All that is reason enough to be joyful. It even brings me joy that people voted against me because of what I said and how I voted in Amherst Town Meeting on the issues of impeachment and the enforcement of the Immigration and Nationality Act. This is how elections are supposed to work and will continue to work for so long as each and every one of us can choose not to live like the greengrocer in Vaclav Havel’s Power of the Powerless. Let’s hope it stays this way.

— Peter Vickery

*  Obviously the sole cause of my defeat was Russian meddling, but I have no current plans to protest, stage a one-man riot, or demand that the Town’s lawyers investigate possible collusion between the victorious candidates and Vladimir Putin.  My effort to initiate a Twitter campaign collapsed when I was unable to take a selfie showing “#NOT MY COUNCIL” written on my forehead; it kept coming out “LICNUOC YM TON#,” for which I blame the mirror. And have you noticed that the supporters of certain candidates are customers of Florence Savings Bank? Well I noticed and consider it very interesting that the bank’s initials, FSB, are exactly the same as those of the Federal’naya Sluzhba Besopasnosti, Putin’s secret intelligence service. Coincidence? I think not.


Khizr Khan’s travel privileges: ID of person reviewing them finally revealed

March 16, 2017:- Ten days ago Khizr Khan claimed that his “travel privileges” were being reviewed. “I have not been given any reason as to why,” he wrote, but did not say what he meant by “travel privileges,” or who was reviewing them. For my previous post on this dubious claim, click here.

Last Saturday, Attorney Khan spoke at a CAIR event in Iowa and a reporter from the Cedar Rapids Gazette asked him about his allegation:

“In an interview with The Gazette, Khan said he has heard with concern accounts of American citizens being detained at U.S. borders and made to share their phone passwords and asked about their religious beliefs, including reports from late February that Muhammad Ali Jr. and his mother were detained at a Florida airport. Asked if he had heard that he specifically would be targeted for such action or if he was concerned in general, he declined to comment.

If Attorney Khan’s claim that his “travel privileges” (whatever they are) were being reviewed by somebody who was refusing to tell him the reason, why would he decline to comment? A generalized concern based on the claims of Muhammad Ali, Jr., is one thing, but it is quite another thing to assert that your own “travel privileges” are being reviewed by someone who will not tell you why.

To digress briefly on the subject of Muhammad Ali, Jr. On February 24, Attorney Chris Mancini, who represents Mr. Ali,  claimed that on February 7 (weeks earlier) US Customs & Border Protection officials at Fort Lauderdale, Florida, repeatedly asked Mr. Ali whether he was a Muslim. Here is the voice of Attorney Mancini telling the Canadian broadcaster CBC the story. Mr. Ali confirmed Attorney Mancini’s account soon afterwards in an interview on CBS and while testifying before Congress. According to Mr. Ali’s testimony, when he stated that he was a Muslim the customs official did not believe him (0.40-0.46 on the video).

Let us pause there for a moment. A man whose first name is Muhammad and last name is Ali states that he is a Muslim, and his questioner’s response is disbelief?  If disbelief is what you are experiencing, join the club.

But getting back to Attorney Khan, when the Gazette asked about his own very specific allegation (the one he made March 6) he referred to the story about Muhammad Ali, Jr., which had gained media attention the previous weekend. When asked, again, about his own claim, he declined to comment.

STOP PRESS: My anonymous deep-state sources have divulged the identity of the person reviewing Attorney Khan’s travel privileges. In a Rachel Maddowesque scoop I can now reveal the individual’s name. It is Krentist: Krentist the Dentist.


Khizr Khan’s “travel privileges.” Still not fake news?

March 12, 2017:- Last week, Attorney Khizr Khan stated that he was unable to go to Canada because his “travel privileges” were “being reviewed.” On social media the predictable Two Minutes Hate ensued. Over at the Daily Kos the equally predictable conclusion was “we’re way down the road to fascism.” And that was after noting that Attorney Khan is a U.S. citizen and U.S. citizens have rights, not “travel privileges.”

But sensible journalists were leery from the outset because–as the Daily Kos noted–American citizens have no travel privileges to review. Real journalists know this, and they know that any attorney knows this, especially an attorney with a law degree from Harvard and an office on Madison Avenue, the sort of attorney who has been “responsible for numerous large electronic discovery projects in complex litigation, mergers and acquisitions, US Dept. of Justice and Federal and State regulatory agencies’ investigations, on behalf of the global business enterprise clients.”

Attorney Khan’s refusal to answer questions as to what he meant by “travel privileges” and who was supposedly reviewing them, prompted even the Washington Post to note, with unctuous delicacy, that the claim “may be unraveling.” Under the headline “The Curious case of Khizr Khan’s ‘travel privileges,'” the Atlantic stated that “until Khan himself chooses to clarify the claims made in his name, it may be impossible to tell what actually led to the cancellation of the Toronto event.”

Curiosity was in short supply in Iowa, where Attorney Khan gave two speeches yesterday, first in Des Moines the second in Cedar Rapids. The Des Moines Register coverage makes no mention of Khan’s “travel privileges” claim or of his repeated failure to back it up. ABC‘s interviewer does not raise the matter either.

Here is how the edit to the Daily Kos story put it, without rescinding the statement that Khan’s transparently false claim is evidence that “we’re way down the road to fascism.”

On Edit: As commenters have pointed out, this story is thinly sourced at this point.  But I think RawStory and TheWeek are both generally reliable.  Mr. Khan is certainly no shrinking violet, so if he doesn’t confirm this, at some point the allegation will need to be discounted.  But I don’t think this qualifies as “fake news.”

Thinly sourced? If you are going back to the pot to stir it a little, how about tossing in a smidgen of that scarce commodity known as accuracy and describe the claim as unsourced? Or , better still, how about treating the claim as if the claimant were a conservative? Instead, the Daily Kos writers are engaging in what the 11th edition of Orwell’s Dictionary of Newspeak called “reality control,” treating a palpably false statement as if it might be true.

In an apparent concession to reason, the Daily Kos announced that “at some point the allegation will need to be discounted.” Are you at that point yet?



IMF to the rescue!

February 25, 2017:- Regular readers of Vox Vickery may have been worried about my absence. Sorry, but I have had a lot on my plate recently, what with corrupt bank officials, massages, and non-governmental prostates, and those gosh-darned courier companies, etc. Thank goodness for Mr. Lee of the International Monetary Fund, whose email arrived this morning.


( I.M.F ) Head Office
Senior Resident Representative
9 Hon. Justice Mohammed Bello St.
Asokoro Abuja
E-mail: RR-NG@imf.org

Attention; Fund Beneficiary,

This is to intimate you of a very important information which will be of a great help to redeem you from all the difficulties you have been experiencing in getting your long over due payment, due to excessive demand for money from you by both corrupt Bank officials and Courier Companies after which your fund remain unpaid to you.

You don’t mean the bank opposite the library on Amity Street, kitty-corner to the American Legion, do you? Courier companies not been bothering me at all, actually. Re. assurance of redemption: Cheers.

I am Mr. John Lee, a highly placed official of the International Monetary Fund (IMF). It may interest you to know that reports have reached our office by so many correspondences on the uneasy way which people like you are treated by Various Banks and Courier Companies/ Diplomat across Europe to Africa and Asia /London Uk. We have decided to put a stop to that and that is why I was appointed to handle your transaction here in Nigeria.

Great. Just wondering what you mean by “people like me” exactly.  What have the correspondences been telling you?

All Governmental and Non-Governmental prostates, NGOs, Finance Companies, Banks, Security Companies and Courier companies which have been in contact with you of late have been instructed to back off from your transaction and you have been advised NOT to respond to them anymore since the International Monetary Fund (IMF) is now directly in charge of your payment.

No contact with prostates, thank you, governmental or otherwise. Shall definitely refrain from responding courier companies.  No wish to reward their uneasy treatment of people like me. Reminder: Would appreciate clarity on the “people like me” thing.

Your name appeared in our payment schedule list of beneficiaries that will receive their funds in this first quarter payment of the year because we only transfer fund twice in a year according to our banking regulation. We apologize for the delay of your payment and please stop communicating with any office now and attention to our office payment accordingly.

You bet, and apology accepted.

Now your new Payment, United nation Approval No; UN5685P, White House Approved No: WH44CV, Reference No.-35460021, Allocation No: 674632 Password No: 339331, Pin Code No: 55674 and your Certificate of Merit Payment No: 103, Released Code No: 0763; Immediate (IMF) Telex confirmation No: -1114433; Secret Code No: XXTN013.

And it’s about time. I earned that Certificate of Merit in 1976. For 50 yards breast-stroke, if memory serves. Did you say White House Approved?

Your part payment inheritance fund is USD$10.7Million.

That’s definitely more than I was expecting. 

Having received these vital payment numbers, therefore you are qualified now to received and confirm your payment with the International Monetary Fund (IMF) African Region immediately within the next 168hrs.

OK, but I have to take the Prius in for an oil-change on Monday. Could you make it 172 hours?

We assure you that your payment will get to you as long as you follow my directives and instructions. We have decided to give you a CODE, THE CODE IS: 601. Please, any time you receive a mail with the name Mr.John Lee, check if there is CODE (601) if the code is not written, please delete the massage from your box!

Re. massage: To which box are you referring? 

You are hereby advised NOT to remit further payment to any institutions with respect to your transaction as your fund will be transferred to you directly from our source. I hope this is clear.

As a bell. Don’t want to be a noodge, but please do follow up on “people like me” clarification request.

Any action contrary to this instruction is at your own risk. Respond to this e-mail on (leemrjohn599@gmail.com) with immediate effect and we shall give you further details on how your fund will be released. Also call me as soon as you send the e-mail so that you will be given an immediate response:Direct Hot-line: Call:+234-802-934-1610


Mr. John Lee (I.M.F).

Fourteen years on: vive memor leti

December 21, 2016:- At this time of year I honor the memory of Sergeant Steven Checo of the 504th Parachute Infantry Regiment, whose name I first read in the newspaper around Christmas 2002. I was 36, which is about the age he would have been now had he lived.

But Sgt. Checo lost his life on December 21, 2002, after a firefight in southeastern Afghanistan, the sixteenth US serviceman to die in combat in that war.  As I sat in New Hampshire, safe, warm, comfortable, and surrounded by my loved ones, I wrote his name in a notebook and promised not to forget him. At that point, Christmastime 2002, America was committed to defeating the enemy that had attacked us on 9/11.

Fourteen years on, we hardly dare refer to the enemy as the enemy, still less give it its name. It has a name, and it is not “violent extremism.” Our enemy is the armed doctrine of Islamic supremacism, whose practitioners are burning, butchering, and blasting their way across West Asia, North Africa, Europe, and North America. In Afghanistan, we started to fight back. That is why Sgt. Steven Checo was there.

But in December 2009 President Obama announced that in 2011 we would start “transitioning” (i.e. pulling out) of Afghanistan. Addressing those who questioned the wisdom of telling the enemy exactly when we would be leaving he said that his questioning opponents “would commit us to a nation-building project of up to a decade. I reject this course because it sets goals that are beyond what can be achieved at a reasonable cost, and what we need to achieve to secure our interests.” Understandably, our enemies took that to mean that the United States considered one decade too long a commitment.

Whatever President Obama meant by the words “goals that are beyond what can be achieved at a reasonable cost, and what we need to achieve to secure our interests,” there can be no doubt as to how the other side construed them: America is leaving the field of battle before victory, which equals surrender. And rather than sitting and waiting for our troops to leave, they got busy. More American servicemen and women have been killed in Afghanistan in the seven years since the President’s announcement (approximately 1,900) than in the eight years before it (approximately 1,500).

On June 22, 2011, two years after announcing when our withdrawal would begin, President Obama announced when it would end. He declared that the pullout from Afghanistan would be complete by 2014. Then, referring to both Afghanistan and Iraq, he added, “We take comfort that the tide of war is receding.”

Is it receding in Iraq, which – according to the President in 2011 – we left in a “stable, sovereign, self-reliant” condition? The question seems too macabre to pose, even rhetorically. But, for the sake of clarity, the answer is no. Nor is the tide of war receding in Afghanistan. It is not even starting to ebb. During the course of 2011 approximately 3,000 Afghan civilians died in the war. The figure for 2015 was closer to 3,500, the overwhelming majority at the hands of the adherents of Islamic supremacism.

In Europe too, the war flows on. That is why the words Bataclan, Nice, Saint Étienne-de-Rouvray, Nantes, Brussels, and now Breitscheidplatz bring to mind the carnage of a battlefield.

A similar word association affects us over here: Boston Marathon, Chattanooga, San Bernardino, Orlando, Ohio State. When we hear or read those place names nowadays we remember them as the sites of Islamist attacks. In 2013 bombers murdered four people at the Boston Marathon, including 8-year old Martin William Richard; in July 2015, a jihadist murdered four U.S. Marines in Chattanooga, Tennessee, among them Gunnery Sergeant Thomas K. Sullivan of Springfield, Massachusetts; five months later, two jihadists slaughtered 14 people in San Bernardino, California; and in June 2016 a jihadist ended 49 lives, turning the Pulse nightclub in Orlando, Florida, into a charnel house. The only reason the life of the crash-and-slash attacker at Ohio State University in November 2016 ended before he managed to take anyone else’s was the serendipitous presence of an armed campus police officer who happened to be nearby responding to reports of a gas leak.

Obviously the tide of war is not receding, nor can it. War cannot “recede.” The tidal metaphor is fundamentally inapt. War is not – nor does it resemble – a force of nature dependent on the gravities and movements of the Sun, Moon, and Earth. It is a uniquely human activity, and it goes on and on until one side succumbs or surrenders.

Fourteen years ago, Sgt. Steven Checo gave his life for this country and for the cause of freedom, fighting an enemy that despises both, at the outset of a war that continues to this day. As President Obama said in 2013, “This war, like all wars, must end.” True enough. But as another leader put it in 1940, “Wars are not won by evacuations.”

It is time to end the war against Islamic supremacism. Not by evacuations, but by winning.


Hold the deceivers accountable, says the AG

How hot was February 2016? Very, according to the National Oceanic and Atmospheric Administration (NOAA) and Maura Healey, Attorney General of the Commonwealth of Massachusetts.

NOAA tells us that “the combined average temperature over global land and ocean surfaces for February 2016 was the highest for February in the 137-year period of record, at 1.21ºC (2.18ºF) above the 20th century average of 12.1ºC (53.9ºF).”  NOAA Global Analysis – February 2016 (emphasis added).

According to my arithmetic (12.1 + 1.21 = 13.31) the temperature in February 2016 was 13.31ºC.  This made it “likely the hottest month in thousands of years,” said Attorney General Healey at a press conference in New York on March 29, 2016.

Quite a claim. Not just the hottest in the 137 years NOAA refers to, but the hottest in thousands of years. For “thousands of years” no month has likely topped February’s 13.31ºC, according to Healey who is one of several attorneys general (all Democrats) calling themselves “AGs United for Clean Power” investigating ExxonMobil and other corporations for fraud. On what do they base their investigations? Healey explains:

“[I]t appears that certain companies may not have told the whole story, leading many to doubt whether climate change is real, and to misunderstand the catastrophic nature of its impacts.  Fossil fuel companies that deceived investors and consumers about the dangers of climate change should be held accountable.”

Quite right too, now that we know that at a record-breaking 13.31ºC February 2016 was “likely the hottest month in thousands of years.”

And there was I thinking that February 2000 had been hotter, just because the temperature back then was 14.45 ºC.  With my pre-Common Core arithmetic and my dime-store calculator I thought 14.45 was higher than 13.31 and, therefore, that the temperature of 14.45 ºC made the month of February in the year 2000 hotter than the month of February in the year 2016 when it was 13.31 ºC.

Because in February 2000 the temperature was, in fact, 14.45 ºC.  Or rather, in 2008 the temperature in February 2000 was 14.45ºC.  Today, in contrast, the temperature in February 2000 was lower. Yes, February 2000 is cooler this year than February 2000 was in 2008.  My foundation for the foregoing (admittedly perplexing) statement is NOAA, which only a few years ago had this to say about February 2000:

“[T]he average global temperature for land and ocean surfaces combined was 0.55C above the 1880-1999 long-term mean in February, the 4th warmest such month since 1880.” Source: NOAA National Centers for Environmental Information, State of the Climate: Global Analysis for February 2000, published online March 2000, retrieved on May 19, 2016 from http://www.ncdc.noaa.gov/sotc/global/200002.

If the temperature in February 2000 was 0.55ºC above the 1880-1999 long-term mean of 13.9 ºC, then it was 14.45ºC (13.9 + 0.55 = 14.45).  To my simple mind 14.45 ºC appears to be higher than 13.31 ºC.

But, as readers will note from the text in bold near the top of the page, the 20th century average is now a chilly 12.1º, not the balmy 13.9ºC of yesteryear.

If, like me, you have been paying attention to global warming since the mid-2000s, perhaps after watching Al Gore’s An Inconvenient Truth, you may remember the days when the 20th century average was 13.9 ºC.  That was the figure way, way back in 2008.  But the following year, an odd thing happened to the 20th century average: It dropped from 13.9ºC to 12.1ºC.  So in the first decade of the 21st century, the 20th century got colder by 1.8ºC.

Obviously, the 20th century average temperature itself did not change. That would require time travel or magic. No, it was not the temperature but the way NOAA calculated the temperature that changed. To its credit, NOAA provides a clear caveat for its pre-2009 figures.  For example, if you visit NOAA’s website to look up the temperature for 1997 you will read this:

“Please note: the estimate for the baseline global temperature used in this study differed, and was warmer than, the baseline estimate (Jones et al., 1999) used currently. This report has been superseded by subsequent analyses. However, as with all climate monitoring reports, it is left online as it was written at the time.”

After that anodyne disclaimer comes this:

“The global average temperature of 62.45 degrees Fahrenheit for 1997 was the warmest year on record, surpassing the previous record set in 1995 by 0.15 degrees Fahrenheit. The chart reflects variations from the 30-year average (1961-1990) of the combined land and sea surface temperatures.”

Source: NOAA National Centers for Environmental Information, State of the Climate: Global Analysis for Annual 1997, published online January 1998, retrieved on May 19, 2016 from http://www.ncdc.noaa.gov/sotc/global/199713.

In 1997 the temperature was 16.91ºC (62.45 ºF), according to the settled science at the time, making it the “warmest year on record.”  Today’s settled science puts the temperature for the second month of this year at 13.31ºC, a figure 3.6 ºC lower than the temperature for 1997 but (according to climate-science expert Maura Healey) “likely the hottest month in thousands of years.”

But remember, before rushing to accuse the public employees at NOAA of not telling the whole story and deceiving the public (something only people in the private sector do, especially those who work for fossil fuel companies) the agency does warn us about its 1997 report having been “superseded by subsequent analyses” Similarly, for 1998 NOAA tells its online visitors:

“PLEASE NOTE: The ranks and temperature anomalies in this report represent the values known at the time the report was issued. The actual ranks will change as subsequent years are added to the dataset. The anomalies themselves may change slightly as missing or erroneous data is resolved. Also, in 2009, NCDC switched to ERSST version 3b (from version 2) as a component of its global surface temperature dataset. Because the versions have slightly different methodologies, the calculated temperature anomalies will differ slightly. For more information about this switch please see the Global Surface Temperature Anomalies FAQ.”

Source: NOAA National Centers for Environmental Information, State of the Climate: Global Analysis for Annual 1998, published online January 1999, retrieved on May 19, 2016 from http://www.ncdc.noaa.gov/sotc/global/199813.

After seeing a similar warning for the 2004 numbers, NOAA visitors will learn that in February of that year the temperature was 1.08°C above the 20th century average, i.e. 14.98ºC (13.9 + 1.08 = 14.98). Source: NOAA National Centers for Environmental Information, State of the Climate: Global Analysis for February 2004, published online March 2004, retrieved on May 19, 2016 from http://www.ncdc.noaa.gov/sotc/global/200402.

To recap, according to NOAA’s pre-2009 assertions, the average combined global surface and ocean temperature in the year 1997 was 16.91ºC; in February 2000 it was 14.45 ºC; in February 2004 it was 14.98ºC; and (according to the post-2009 methodology) in February 2016 it was 13.31 ºC.

Based on the figure that NOAA used in 2008, February 2016 was almost two degrees cooler than February 2004 and more than three degrees cooler than 1997.  Nevertheless, Attorney General Healey asserts that “February 2016 was likely the hottest month in thousands of years.”  And she is investigating other people for not telling the whole story and deceiving the public about climate change.

Forgive me for repeating myself to drive the point home. As recently as 2008, the official 20th century average temperature was 13.9 ºC and today the official figure for the same period is 12.1ºC.  The new figure diverges from the old figure by almost two degrees. Anyone tempted to brand their opponents with the D for Denier and treat them as criminals should ponder that fact, or risk committing the only sin that modern liberalism seems to recognize, namely hypocrisy.

In stating, prior to 2009, that the 20th century average global combined ocean and surface temperature was 13.9ºC when it was really 12.1ºC, did NOAA deliberately deceive the public?  Should it be “held accountable,” as Attorney General Healey demands those allegedly deceitful fossil fuel companies should be held accountable? Should the states’ attorneys general and maybe the federal Department of Justice open up criminal investigations?

No, of course not. The science surrounding the climate’s sensitivity to CO2 is complex, and the scientists who study it make mistakes (as do all other humans), mistakes they and other scientists eventually discover and endeavor to correct using the scientific method.

The politicians in “AGs United for Clean Power” must know this. And that knowledge makes their conduct all the more loathsome. Because while NOAA is merely chilling temperature records, the AGs are chilling speech. You may not shed a tear for the officers, directors, shareholders, and employees of ExxonMobil but consider the underlying message that the politicians are sending with their criminal investigations. Look, they are telling us, look at what we do to powerful transnational corporations that dissent from the climate orthodoxy; now imagine how we will treat you, the ordinary citizen, should you ask awkward questions. More bluntly their message is this: “Keep your head down and your mouth shut.”

George Orwell’s Winston Smith wrote in his secret journal that freedom is the freedom to say two plus two make four. Today freedom is, in part, the freedom to say that 13.31ºC is lower than 16.91ºC. Nothing can guarantee the survival of that freedom, not even our top law-enforcement officials. To the contrary, Maura Healy and other attorneys general – elected by the people to uphold our liberty under the law – are demonstrating their contempt for it.

Climate change in Amherst, or the perils of terraforming

Elevated levels of uncombusted natural gas (methane/CH4) would contribute to global climate change, says the EPA. The extremely unelevated level of natural gas in Amherst is certainly changing the local climate; the business climate, that is.

Last year Berkshire Gas announced a moratorium on new connections in Amherst and Hadley, as the Springfield Republican reported. Some people claim the moratorium is nothing more than a wretched ruse to intimidate locals into submitting to Kinder Morgan’s proposed pipeline expansion, putting us in a choke-hold until we cry “uncle.”  One aggrieved customer is suing the gas company and, according to the Amherst Bulletin, looking for proof of the plot via the discovery process.

Plot or not, without natural gas new restaurants will not open and existing ones cannot expand in Amherst’s downtown area, where there is no space for propane tanks. The same goes for any other enterprise that needs natural gas. Unless and until Berkshire Gas lifts its moratorium, businesses will have to adapt to Amherst’s nongaseous climate. So business owners would likely find it helpful if the Town government chose to make that climate a tad more (not less) stable and predictable.

I have no doubt that our Planning Board hopes to do just that with its proposal to define with greater precision the term “mixed use” in the Town’s building standards. Encouraging mixed use development is one of the goals in Amherst’s Master Plan (see 2.5 D; 3.2; and LU.2C) and the Planning Board’s hope is consistent with that goal. Whether the proposal is consistent with that goal is another matter altogether. After all, if you wish to deter an activity, burden it with complicated regulations that require expensive legal advice to ensure compliance.

For example, the current building standards do not dictate how much of a mix constitutes mixed use (hence the urge to redefine the term), whereas the proposed new standards would prohibit residential purposes from taking up more than 40% of the gross floor area of the main floor of a mixed use building, including amenities, service areas, and stair/elevator towers, and bar more than 25% of the residential units in any one building from having four or more bedrooms. Why 40%, why 25%, and would a developer need a lawyer in order to comply?  I don’t know, I don’t know, and I should coco.

Drafters run the risk of defining a term to death, and I fear this definition will leave mixed use fighting for breath in Amherst, particularly after Town Meeting has had its way with the proposal.

All of which brings to mind NASA’s definition of terraforming, i.e. “the process of transforming a hostile environment into one suitable for human life,” which in turn reminds me that, all too often, well-intentioned efforts to engineer a favorable business climate in Amherst end up looking like Matt Damon doing this.

It’s my anniversary

February 11, 2016:- It was 14 years ago today that I renounced my loyalty to Her Britannic Majesty, swore true faith and allegiance to the Constitution of the United States, and became a naturalized citizen. I was then, and am now, immensely and intensely proud to be an American.  Among the many reasons for that pride I offer you this one: To acquire citizenship I did not have to pledge fealty to an individual, an idol, or an “ism,” but had to ascribe to a set of legal principles that define and disperse political power, i.e. the Constitution.

With citizenship of this free, self-governing republic came the right to vote and run for office.  With one party poised to nominate for the presidency a vaudeville barker with poujadiste tendencies, and the other party offering a choice between a mendacious kleptocrat and a socialist who detects a causal connection between childhood poverty and the abundant range of under-arm deodorants, this may seem an odd moment to relish the franchise. But having a share in the responsibility for electing the next head of state — and commander in chief of a country against which the most depraved collection of misogynistic, anti-semitic homophobes is waging jihad — is an honor.  So particularly in these often dolorous days, I rejoice in my membership of a society worth fighting for, and sign off with a quote from John Stuart Mill:

War is an ugly thing, but not the ugliest of things: the decayed and degraded state of moral and patriotic feeling which thinks that nothing is worth a war, is much worse… A man who has nothing which he is willing to fight for, nothing which he cares more about than he does about his personal safety, is a miserable creature who has no chance of being free, unless made and kept so by the exertions of better men than himself. As long as justice and injustice have not terminated their ever-renewing fight for ascendancy in the affairs of mankind, human beings must be willing, when need is, to do battle for the one against the other.


Forget ye not Magna Carta (or George Cony, short-lived martyr)

June 15, 2015:- “Forget not after all these years the Charter signed at Runnymede,” as Rudyard Kipling urged in his epopee to Magna Carta, the document to which King John affixed his seal 800 years ago today. Among the reasons for forgetting not Magna Carta after all these years — and for wishing it a happy birthday — is the provision that underpins our modern notion of due process:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his peers or by the law of the land.

The observance of due process sends a strong signal that a society rests on the rule of law. Conversely, the absence of due process is compelling evidence of a society living under tyranny. So this notion, first announced in Magna Carta, still matters, as does another principle that had its roots in Magna Carta, that only the legislature — not the executive — may levy taxes.

Some 440 years after its adoption, in the period that followed the English Civil War, a merchant by the name of George Cony relied on this principle when he got his tax bill. After Oliver Cromwell had persuaded Parliament to enact the Instrument of Government, a written constitution that made him Lord Protector, Cromwell and his Council set about collecting customs duties.  Article 27 of the Instrument of Government expressly allowed the Protector and Council to do so.  George Cony refused to pay customs duty on the grounds that the Cromwell and his Council had imposed the tax without the consent of Parliament.  Although the Instrument of Government might permit them to do so, Magna Carta did not, in Cony’s opinion.

Cromwell did not think much of Cony’s constitutional contention and threw him in jail. When Cony’s three attorneys appeared before the Council to argue for his release, Cromwell threw them in jail as well.  For an account of Cony’s case I am indebted to Stephen F. Black’s 1976 article about the judiciary under Cromwell.*  According to Mr. Black, what seemed to really nettle Cromwell was the lawyers’  bringing up Magna Carta.

Cromwell, irked, referred to Magna Carta as “Magna Farta,” evidence that the notoriously dour Protector had a schoolboyish sense of humor (so I suspect that in his days as a cavalry general he would probably have yearned for this talented horse under his saddle). Cromwell told Cony’s lawyers that if “they would have Magna Farta, they must put on a helmet and troope [i.e. march] for it.”  So off to the Tower the barristers marched, nudged along by big men bearing swords and pikes, and remained there for about a fortnight.  But, as Mr. Black explained, “Cromwell quickly recognized the danger of alienating the entire legal profession by incarcerating three of its leading members solely for their impassioned advocacy of a client’s cause.” So out of the Tower they trudged, thanks to political calculation trumping protectoral pique rather than to any observance of due process. And after two weeks in confinement staring at the 15-feet thick walls, they might not have concurred with Mr. Black’s choice of the adverb “quickly.”

Perhaps Cony hoped that his freshly-sprung attorneys  would persuade an appellate court to order his release. But Cromwell’s next step made that outcome extremely unlikely, to put it mildly. To the old adage “if you can’t argue the facts argue the law, and if you can’t argue the law argue the facts,” Cromwell added “and if you can’t argue either, pack the court.”  He replaced the awkwardly scrupulous chief justice, Henry Rolle, with John Glynne, a judge who had learned the possible advantages of becoming a pliant ally of the new regime during his own stint in the Tower. Glynne’s appointment seems to have prompted Cony to realize that any appeal would be futile. He could remain in jail indefinitely, a martyr for the cause of an important constitutional principle, or he could pay up and go home.  Cony chose the second option, and who can blame him.

Today, on the 800th anniversary of Magna Carta, what can we learn from George Cony’s 360-year old case? One significant lesson, I believe. Without an independent judiciary and the rule of law, liberty withers. The trappings of legality that decorated Cromwell’s regime made no difference to George Cony and his lawyers when they had the gall to remind the Lord Protector what it was that he was supposed to be protecting, namely liberty under law.  Before and during the Civil War, Cromwell and his fellow parliamentarians made much of the King’s derogations from Magna Carta, but when he became king in all but name Cromwell himself ignored one of Magna Carta’s most important provisions: due process.  Although the Instrument of Government with its apparent checks and balances supposedly constrained Cromwell, his power to tax without the consent of the legislature left the liberties of the people as brittle as the parchment of Magna Carta.

* Black, S. “Coram Protectore: The Judges of Westminster Hall under the Protectorate of Oliver Cromwell,” American Journal of Legal History 20(1) pp. 32-64.

Original Sins

May the Massachusetts Senate use the budget process to change the state income tax?  If so, why: if not, why not?

This is not a bar exam question, but in future maybe the commonwealth’s law schools should include it in their curricula together with the answer. First, of course, we need to find out what the answer is. I think I know, so when the Supreme Judicial Court (SJC) looks at the amicus briefs it received in response to its call, somewhere in the pile will be mine.

The question is on the SJC’s docket because the House of Representatives put it there, in the form of a request for an advisory opinion. Unlike the Supreme Court of the United States, which can decide only case and controversies – meaning litigation between opposing parties – the SJC has the authority to issue opinions as to whether a proposed piece of legislation would pass constitutional muster, a sort of pre-clearance. It is only the House, the Senate, and the Governor and Council that have the right to request advisory opinions, and then only “upon important questions of law, and upon solemn occasions,” i.e. not upon questions relating to the court’s favorite color.

To know why the House is asking the SJC to opine on the Senate’s ability to vary the tax rate via the budget bill, a précis of the historical background may prove helpful.

Almost 100 years ago, the people of Massachusetts elected a Constitutional Convention, which recommended a series of constitutional amendments. In 1917-18, the voters ratified 22 of them including Article 63, which prescribes the budget-making process. Under Article 63, the Governor recommends to the Legislature a budget containing “all proposed expenditures of the commonwealth for the fiscal year.”  The Legislature then incorporates “all appropriations based upon the budget to be paid from taxes or revenues… into a single bill which shall be called the general appropriation bill,” and has the right to “increase, decrease, add or omit items in the budget.”  After the Legislature has passed the appropriations bill, the Governor may choose to “disapprove or reduce items or parts of items,” a power commonly known as the line-item veto.

As is the norm, earlier this year the incoming Governor, Charlie Baker, filed his budget bill with the Legislature. The House of Representatives sent its general appropriations bill to the Senate. Then something unusual happened. The Senate replaced a section of the bill with its own section, one that would fix the personal income tax at 5.15%. This, claims the Speaker of the House, violates the origination clause, the part of the State Constitution that says, “All money bills shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.” No, replies the President of the Senate, it does not violate the origination clause, because the House bill you sent up contained a couple of tax measures thereby rendering it a money bill.

So is it a straight appropriations bill, or a tax measure trapped in the body of an appropriations bill? It has to be one or the other: the statute book has markedly fewer identity options than Facebook’s current tally of 58.

Those of you following the Obamacare litigation will be familiar with the federal origination clause, which provides: “All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose or concur with amendments as on other bills.” U.S. Const., art. I, s. 7, cl. 1.  At issue in the latest Obamacare case is the extent of Senate’s power to amend revenue bills that it receives from the House.  Does the prerogative of proposing or concurring with amendments as on other bills give the Senate carte blanche?

By way of an analogy, I ask that you imagine settling down with your youngest for a bedtime story. You turn off the overhead, switch on the lamp, make sure teddy is comfy, and read the words, “In the great green room there was a telephone and a red balloon and,” (turn page) “the wealth of those societies in which the capitalist mode of production prevails presents itself as an immense accumulation of commodities.” You pause, skip ahead, and find more such dross. Where you expect a reference to a cow jumping over the moon you read “just as in the simple circulation of commodities the double change of place of the same piece of money effects its passage from one hand into another, so here the double change of place of the same commodity brings about the reflux of the money to its point of departure.”

Soporific, yes, but not what you had in mind for your little pumpkin’s nightly nudge toward the Land of Nod. And then realization dawns, and you think to yourself: Darn, someone has gone and replaced all but the first few words of Goodnight Moon with Das Kapital.  And that, according to the Pacific Legal Foundation, the organization representing the plaintiff in Sissel v. U.S. Department of Health & Human Services, is pretty much what the United States Senate did with the House bill that became the Affordable Care Act (ACA).

The House passed H.R. 3590, a seven-page measure titled “a bill to amend the Internal Revenue Code of 1986 to modify the first-time home buyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes,” of which the Senate retained the first 19 words (“be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled”) deleted everything else (all that stuff about service members and veterans, etc.) and inserted the 1,500-page Affordable Care Act. For a visual demonstration of that substitution, performed by the Rep. Louie Gohmert (R-TX, 1st District), click here and start watching at minute 4:20.  For extra fun, hit mute and try to discern from Rep. Gohmert’s facial expressions and gestures whether he (a) approves or (b) disapproves.

The Pacific Legal Foundation argues that the Senate’s cut-and-paste job violated the origination clause. It says that there is a difference between, on the one hand, amending and, on the other, complete substitution. Likewise, here in Massachusetts the Speaker of the House contends that the Senate went too far when it took a section from the House bill relating to tax credits and replaced it with a section that would freeze the income tax rate at 5.15% (rather than let it decline in accordance with the wishes of the voters, a clear majority of whom endorsed the measure on the 2000 statewide ballot to roll back the income tax to 5%). This complete substitution goes beyond the scope of the term “propose or concur with amendments, as on other bills,” suggests the Speaker.

While the Senate’s wish to flout the will of the voters and keep the income tax at 5.15% reflects about as much economic wisdom as the ACA, my opinion, which I hope the justices of the SJC will find persuasive (or, more realistically, at least ask one of the junior clerks or interns to skim), is that complete substitution is constitutional. The merit of the proposed tax hike – or tax-reduction pause, to be more neutral – is not relevant to the question of whether it comports with the Constitution. Similarly, the efficacy of the ACA has no bearing on whether its enactment conformed to the requirements of the origination clause.

If the federal origination clause said “the Senate may propose or concur with amendments as on other bills so long as the amendments are germane,” the outcome should be different. But it says no such thing. Adding those words involves amending the Constitution, and the route is via Article 5 not the judiciary.