2019-03-05 15:00:00

Three academics conducted what they call a “grievance studies” experiment. They wrote fake papers on ridiculous subjects and submitted them to prominent academic journals in fields that study gender, race, and sexuality.

They did this to “expose a political corruption that has taken hold of the universities,” say the hoaxers in a video which documented the process.

John Stossel interviewed James Lindsay and Peter Boghossian who, along with Helen Pluckrose, sent so-called research papers to 20 journals.

They were surprised when seven papers were accepted. One claimed that “dog humping incidents at dog parks” can be taken as “evidence of rape culture.” It was honored as “excellent scholarship.”

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What if…?
Roger Sayles/Flickr

What if the Declaration of Independence states that the purpose of government is to protect our natural rights? What if natural rights are the freedoms we enjoy without neighbors or strangers or government interfering? What if those freedoms are listed in part in the Bill of Rights? What if the government is supposed to keep its hands off those freedoms because they are ours, we have not surrendered them and we have hired the government to protect them?

What if the reason some of our rights are listed in the Bill of Rights was the fear the colonists had after the American Revolution that the new government here might become as destructive of freedom as the British king and Parliament — whose government they had just kicked out — were before the Revolution? What if it is impossible to list completely the freedoms that all people enjoy by reason of our humanity? What if the Framers — who wrote the Constitution and the Bill of Rights — understood that?

What if, in order to address the impossibility of listing all rights, the Framers ratified the Ninth Amendment? What if the Ninth Amendment declares that the enumeration of certain rights in the Constitution shall not be construed to deny or disparage other rights retained by the people? What if this amendment was the Framers’ way of recognizing the inherent attachment of our personal liberties to our individual humanity?

What if the government is supposed to protect those liberties — the ones that are enumerated in the Bill of Rights and the others that are too numerous to enumerate and are covered by the Ninth Amendment?

What if the government — no matter which party controls the White House or Congress — always claims that it is protecting personal freedoms? What if this is just an empty boast? What if there is a government within the government that never changes, never shrinks, answers only to itself, hates and fears personal freedoms, and is largely unrecognized by the Constitution?

What if that government, because of its secrecy, is largely unaccountable to the voters? What if it resides in the Federal Reserve, the military, federal law enforcement and intelligence establishments, and an enormous federal bureaucracy that regulates and spends in secret to a greater extent every year, no matter which party is in control?

What if the secret government commands the loyalty of the elected government by sharing secrets with it? What if the law requires those shared secrets to be kept secret? What if the elected government knows what the secret government is up to but cannot legally reveal it?

What if members of Congress know why Hillary Clinton was not indicted but they learned it in secret and so cannot legally reveal it? What if members of Congress know the extent of the Donald Trump financial shell game but they learned that in secret and so cannot reveal it?

What if some personal courage has broken this mold? What if Edward Snowden revealed massive secret government spying on all Americans after the government had denied it? What if Sen. Dianne Feinstein revealed horrific torture by the federal government after the government had denied it? What if the elected government knew about the spying and the torture but was legally prevented from revealing it? What if Hillary Clinton was largely right when she said politicians have a public persona and a private persona? What if President Barack Obama has demonstrated his two sides by killing people in secret, with his undeclared wars, and denying it in public?

What if the interest rate you pay on your home mortgage or car loan is not established by the free market — or even reached by bankers looking for your business — but is fixed in private by the secret government? What if the secret government has decided that it prefers Clinton to succeed President Obama and so its agents in law enforcement will overlook all evidence of Clinton’s lawbreaking in order to bring that about? What if the secret government has given Trump an enormous pass on his financial behavior, a pass unavailable to the average voter, and it needs to keep that secret?

What if government has no interest in personal freedom, except perhaps as a catchy phrase around which to rally support? What if government nurtures having foreign adversaries — real and imagined — so that it has an excuse, in repelling or resisting those enemies, to exercise unlawful powers?

What if the presidential election this year has become a beauty contest — devoid of intellectual substance, without serious debate over the limited duties of government in a constitutional democracy, rolling in the gutter and largely motivated by hate and fear? What if both Clinton and Trump recognize the paradox that government is essentially the negation of personal liberty? What if whoever wins will largely use it for that purpose?

What if liberty really is attached to humanity? What if all rational people yearn for personal freedom? What if the government — in order to stay in power — has detached liberty from humanity and made it a gift of the state instead of a gift of God? What if government knows that by restricting and then expanding liberty, it can command loyalty?

What if there is a sense of hopelessness in the land? What if this hopelessness is bred by a government that kills, lies, steals, conceals, and denies? What if that hopelessness is furthered by a rational fear that things will only get worse, no matter who wins the presidential election? What do we do about it?

COPYRIGHT 2016 ANDREW P. NAPOLITANO|DISTRIBUTED BY CREATORS.COM

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2019-03-06 05:01:00

If you are an American college professor, the way you get a raise or tenure is by getting papers published in “academic journals.”

The stupidity of these journals says a lot about what’s taught at colleges today.

Recently, three people sent in intentionally ridiculous “research” to prominent journals of women studies, gender studies, race studies, sexuality studies, obesity studies, and queer studies.

“The scholarship in these disciplines is utterly corrupted,” says Dr. Peter Boghossian of Portland State University. “They have placed an agenda before the truth.”

To show that, hoaxer and mathematician James Lindsay says, “We rewrote a section of Mein Kampf as intersectional feminism” and got it published in Affilia: Journal of Women and Social Work.

For another paper, they claimed to have “closely” examined genitals of 10,000 dogs in dog parks to learn about “rape culture and queer performativity.”

Boghossian had assumed, “There’s no way they’re gonna believe that we did this!”

But the journal Gender, Place & Culture did, calling the paper “excellent scholarship.”

Seven journals accepted the absurd papers, as I show in my latest video.

Hoaxers Boghossian, Lindsay, and Areo magazine editor Helen Pluckrose explain the reason for their trick.

“We think studying topics like gender, race and sexuality is worthwhile and getting it right is extremely important,” says Lindsay

But researchers of these topics have gotten lazy and political, they say. “A culture has developed in which only certain conclusions are allowed—like those that make whiteness and masculinity problematic,” Lindsay says.

Reach politically “correct” conclusions and you can get most anything published.

“Kind of a last straw happened,” says Lindsay. “There was this paper well-funded by the National Science Foundation that studied ‘feminist glaciology.’ It said glacier science is sexist.”

As a glaciologist giving a TED Talk put it, “the majority of glaciological knowledge that we have today stems from knowledge created by men about men within existing masculinist stories.”

What?

One paper suggested the solution to sexism in glacier science is “feminist paintings of glaciers and feminist art projects,” says Lindsay. They praised art projects like one where they “hooked up a phone line to a glacier so you could call the glacier on the phone and listen to it.” That was “the last straw” for him.

Lindsay adds, “What appears beyond dispute is that making absurd and horrible ideas sufficiently politically fashionable can get them validated at the highest levels of academic grievance studies.”

The hoaxers didn’t get to finish their experiment because The Wall Street Journal‘s Jillian Kay Melchior noticed the absurdity of the paper on dog humping. She exposed the hoax before all 20 journals weighed in.

What upsets me most is what happened—or rather, didn’t happen—next.

No university said it would stop using those journals, and no journal editor publicly said, “We must raise our standards.”

“Think about if you did this to civil engineers with bridge building,” says Boghossian. “They would’ve thanked us, right? Because they’re driving over the bridges with their families, so they don’t want the bridges to collapse.”

But the journal editors, instead of admitting that they sometimes publish nonsense, attacked the hoaxers. They accused them of doing “unethical research.”

A dozen of Boghossian’s colleagues at Portland State University criticized him anonymously in the school newspaper, which depicted him as a clown. He’s become a pariah at his own school.

“I’ve been spat on…physically threatened,” he says.

Instead of applauding him for exposing nonsense, Portland State threatened him.

I called the school asking for an interview, but it declined.

How can a college criticize the hoaxers but revere ridiculous journals that publish nonsense?

“When you live in these tight ecosystems, this stuff makes total sense,” says Boghossian. For people in the tiny bubble of academic thinking, “there’s a pervading rape culture; men are bad—the whole ball of wax.”

It’s been going on for some time. A physicist once submitted a nonsense paper claiming gravity is just a “social construct.” The journal Social Text published it. That embarrassed the journal, but 20 years later, it is still going strong.

At universities, “scholarship” has gotten even crazier.

The real “hoax” is on students who pay thousands of dollars for useless degrees in fields that end in “studies.”

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I had intended to use this final column before the presidential election to explain at length why I cannot vote for either Hillary Clinton or Donald Trump and plan to vote for Gary Johnson for president. In a nutshell, big government is our biggest problem. It thrives on more debt, more taxes, more regulations, more war, a secretive deep state and less personal freedom. Both Clinton and Trump would grow the government. Only Johnson would shrink it.

One of the most dangerous tendencies of big government is the generation of a police state—wherein laws, rules and procedures are primarily written and can often be bent to aid law enforcement when it is encroaching on our personal freedoms. We saw a terrifying example of that last week when FBI Director James Comey behaved as if he were his most infamous predecessor, J. Edgar Hoover.

Here is the back story.

Late last week, in an effort to redeem himself from the consequences of having ignored a mountain of evidence of guilt against former Secretary of State Hillary Clinton last summer, Comey told Congress in a cryptic letter that the FBI would resume investigating her emails based upon the belief that more of them may be located in the laptop of disgraced former Rep. Anthony Weiner (D-NY). Weiner is the alleged sexual predator who remains the estranged husband of Huma Abedin, one of Clinton’s closest aides. Abedin backed up all her emails onto the laptop that she and her husband shared.

At the time he sent his Friday letter, Comey had not yet seen the contents of the Weiner laptop because the search warrant authorizing FBI agents to access its contents was not signed until Sunday. If he saw something incriminating before he wrote his letter, he saw it unlawfully; yet his duty was to bring what he saw to the Department of Justice (DOJ), for which he works, not to hint about it publicly to Congress.

Comey’s progress report to Congress is prohibited by the internal regulations of the DOJ and the FBI—and by the canons of legal ethics that regulate lawyers. Comey had no obligation to send the letter at any time; moreover, sending it last week was a direct violation of DOJ and FBI rules that prohibit all public announcements about candidates for public office within 60 days of Election Day.

Comey told FBI staffers early this week that he sent the letter because he felt duty-bound to members of a congressional committee to whom he had given a promise that he would keep them informed of the status of the email investigation. That was a troublesome promise because its compliance violated other duties imposed upon Comey. Worse than making a promise and not keeping it is making a promise that should not be kept.

The genesis of all this was Comey’s unprecedented news conference on July 5, at which he announced that no charges would be filed against Clinton because no prosecutor would take the case. That was not an announcement for him to make. The FBI’s job is to gather facts and present them to the DOJ, not to make legal evaluations. He made his announcement when he did to head off the behavior of some of his agents who were seeking Clinton’s medical records, unlawfully, from the National Security Agency to ascertain the gravity of her head injury—an injury she posited during her FBI interrogation as the reason for her professed memory loss.

I have argued that Comey’s July 5 decision was dead wrong; there is a mountain of evidence with which to indict and convict Clinton on espionage charges. Yet it should have been presented to a grand jury—it was not—rather than at a news conference. The July 5 announcement was bizarre in that it not only exonerated Clinton but also described the quantity and quality of the evidence against her. This insulted the agents who worked on the case and produced the lowest collective FBI morale since Watergate. If Comey sent his Friday letter to address the problems he caused by his July 5 announcement, he did the wrong thing for the wrong reasons.

But perhaps the gravest of Comey’s violations is that of the constitutional guarantee of due process. The essence of due process is notice and fairness. How exquisitely unfair of Comey to say, in effect, “We have something that warrants investigation of you, yet we don’t know its significance, so we can’t say what it is.” This is reminiscent of Franz Kafka’s The Trial, in which the lead character is being pursued for a year on unnamed charges, against which he cannot defend himself.

In his play A Man for All Seasons, Robert Bolt shows Sir Thomas More arguing with William Roper, a colleague, who suggests that government lawbreaking can be justified for the greater good, particularly if the target is the devil (which Trump has called Clinton). More demolishes that argument in a few now iconic lines: “And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down, and you’re just the man to do it, d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

To my friends who have rejoiced in James Comey’s letter, please take warning that, as More accurately predicted, the tables can be turned. If there is any moral lesson in all this, it is that the history of human freedom consists of paying careful attention to constitutional guarantees and legal protections, no matter the reputation of the accused.

COPYRIGHT 2016 ANDREW P. NAPOLITANO

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2019-03-12 16:00:00

On 60 Minutes, Rep. Alexandria Ocasio-Cortez (D–N.Y.) recently said “people are going to have to start paying their fair share in taxes.”

Anderson Cooper then asked her what a “fair share” would be.

Ocasio-Cortez responded that in the past, “Sometimes you see tax rates as high as 60-70 percent.”

Soon, that became the progressive plan.

But economic historian Phil Magness, of the American Institute for Economic Research, says that progressives miss an important fact: The high tax rates that America had in the past actually didn’t bring in much revenue.

When rates were at 70 percent, Magness tells John Stossel, “A millionaire on average would pay 41 percent.”

That’s because rich people find loopholes. When America had its highest top tax rates, newspapers ran ads like “Cruise for free…$2,499 value.”

Magness explains: “Basically [you could] take a vacation around the Caribbean, but while you’re onboard the ship, you attend, say, an investing seminar or a real estate seminar—then write off the [whole] trip.”

Stossel says that deductions became so complex that rich people, instead of investing in, say, a precursor to the iPhone, hired accountants and tax lawyers to study the tax code. Some also worked less.

This led President Ronald Reagan, with bipartisan support from Democrats, to lower rates and remove deductions. That began the path to the 37 percent top rate that rates that we have today.

Despite the lower rates, federal government revenue—as a percentage of the economy—is still about the same as it was when the top rate was 70 percent. It’s even about the same as it was when the rate was 90 percent.

Stossel asks Magness about the claim that “the government will collect more and do good things.”

“You’re asking for an economic disaster,” Magness replies. More money will be wasted in the hands of government. “Do we leave it in the private sector where the market decides? Or do we subject it to corrupt politicians?”

Stossel says: Let the market decide, even though that means some get really rich, because economic growth benefits everyone.

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How do we sleep while our flags are burning?
Daniel Raustadt/Dreamstime.com

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.” — U.S. Supreme Court Justice Robert H. Jackson

Is flag burning protected speech? This old issue returned front and center earlier this week after President-Elect Donald Trump tweeted that he found it so reprehensible, it should be criminal. He even suggested a punishment — loss of citizenship or one year in jail. Is the president-elect correct? Can the government punish acts that accompany the expression of opinions because the government, or the public generally, hates or fears the opinions?

Here is the backstory.

Last weekend, in a series of continued emotional responses to the election of Donald Trump as president of the United States, and prodded by the death of Fidel Castro — the long-time, brutal, profoundly anti-American dictator of Cuba — students on a few American college campuses publicly burned American flags. These acts regenerated the generation-old debate about the lawfulness of this practice, with the president-elect decidedly on the side of those who condemn it.

For the sake of this analysis, like the U.S. Supreme Court, which has addressed this twice in the past 17 years, I am addressing whether you can burn your own American flag. The short answer is: Yes. You can burn your flag and I can burn mine, so long as public safety is not impaired by the fires. But you cannot burn my flag against my will, nor can you burn a flag owned by the government.

Before the Supreme Court ruled that burning your own flag in public is lawful, federal law and numerous state laws had made it criminal to do so. In analyzing those laws before it declared them to be unconstitutional, the Court looked at the original public understanding of those laws and concluded that they were intended not as fire safety regulations — the same statutes permitted other public fires — but rather as prophylactics intended to coerce reverence for the American flag by criminalizing the burning of privately owned pieces of cloth that were recognizable as American flags.

That is where the former statutes ran into trouble. Had they banned all public fires in given locations, for public safety sake, they probably would have withstood a constitutional challenge. But since these statutes were intended to suppress the ideas manifested by the public flag burning, by making the public expression of those ideas criminal, the statutes ran afoul of the First Amendment.

The First Amendment, which prohibits Congress from enacting laws infringing upon the freedom of speech, has consistently been interpreted in the modern era so as to insulate the public manifestation of political ideas from any government interference, whether the manifestation is by word or deed or both. This protection applies even to ideas that are hateful, offensive, unorthodox, and outright un-American. Not a few judges and constitutional scholars have argued that the First Amendment was written for the very purpose of protecting the expression of hateful ideas, as lovable or popular ideas need no protection.

The Amendment was also written for two additional purposes. One was, as Justice Jackson wrote as quoted above, to keep the government out of the business of passing judgment on ideas and deciding what we may read, speak about or otherwise express in public. The corollary to this is that individuals should decide for themselves what ideas to embrace or reject, free from government interference.

In the colonial era, the Founding Fathers had endured a British system of law enforcement that punished ideas that the King thought dangerous. As much as we revere the Declaration of Independence for its elevation of personal liberty over governmental orthodoxy, we are free today to reject those ideas. The Declaration and its values were surely rejected by King George III, who would have hanged its author, Thomas Jefferson, and its signers had they lost the American Revolutionary War. Thank God they won.

Justice Jackson also warned that a government strong enough to suppress ideas that it hates or fears was powerful enough to suppress debate that inconveniences it, and that suppression would destroy the purposes of the First Amendment. The Jacksonian warning is directly related to the Amendment’s remaining understood purpose — to encourage and protect open, wide, robust debate about any aspect of government.

All these values were addressed by the Supreme Court in 1989 and again in 1990 when it laid to rest the flag burning controversies by invalidating all statutes aimed at suppressing opinions.

Even though he personally condemned flag burning, the late Justice Antonin Scalia joined the majority in both cases and actively defended both decisions. At a public forum sponsored by Brooklyn Law School in 2015, I asked him how he would re-write the flag burning laws, if he could do so. He jumped at the opportunity to say that if he were the king, flag burners would go to jail. Yet, he hastened to remind his audience that he was not the king, that in America we don’t have a king, that there is no political orthodoxy here, and that the Constitution, which is the supreme law of the land, leaves freedom of expression to individual choices, not government mandates.

The American flag is revered because it is a universally recognizable symbol of the human sacrifice of some for the human freedom of many. Justice Scalia recognized that flag burning is deeply offensive to many people — this writer among them — yet he, like Justice Jackson before him, knew that banning it dilutes the very freedoms that make the flag worth revering.

COPYRIGHT 2016 ANDREW P. NAPOLITANO|DISTRIBUTED BY CREATORS.COM

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2019-03-13 04:01:00

Do you pay enough taxes? What is enough?

When asked on 60 Minutes, Rep. Alexandria Ocasio-Cortez didn’t seem to have a specific tax rate in mind, but then she said, “back in the ’60s…you see tax rates as high as 60 or 70 percent.”

Suddenly, 70 percent tax rates are a progressive plan, although Rep. Ilhan Omar added, “We’ve had it as high as 90 percent.”

She’s right.

That was the top tax rate when I was a kid, and today, many Democrats say if we’d just raise rates on rich people, government would have plenty of money to pay for our wonderful programs.

But it’s a myth. What progressives don’t say, perhaps because they don’t know it, is what economic historian Dr. Phillip Magness explains in my new video: “No one actually paid anywhere close to those rates.”

For more than a decade, Magness has researched old taxes.

He discovered that America’s 90 percent tax bracket didn’t bring in much extra money. That’s because rich people found loopholes.

Then, because of that, and because the high tax rates discouraged work, President Kennedy backed a bill that lowered the top rate to 70 percent.

But it turned out that the 70 percent rate wasn’t very real either.

“A millionaire on average would pay 41 percent,” says Magness, because of “all these deductions and exemptions and carve-outs that are intentionally baked into the tax code.”

If you look at newspapers of that time, you see ads promoting things like free $2,499 ocean cruises.

“(B)asically take a vacation around the Caribbean,” explains Magness, “but while you’re onboard the ship you attend, say, an investing seminar or a real estate seminar, and then write off the trip.”

Some rich people bought musical instruments for their kids and deducted the cost because, say, a clarinet would supposedly provide “therapeutic treatment.”

Instead of investing in ideas that might create real wealth, rich people hired accountants to study the tax code.

“Who can afford the best accountants? It’s always the wealthy,” says Magness.

Today, our top tax rate is 37 percent. A dozen years after President Kennedy’s tax cuts, Ronald Reagan proposed reducing the 70 percent rate, saying, “Our tax system could only be described as un-American.”

“Democrats actually agree with him,” recounts Magness. “Reagan goes to the table and says, ‘Let’s make a deal…cut the rates…and in exchange, we’ll consolidate the tax code.”

They did.

Surprise—the lower rates brought in just as much money.

It turns out that tax revenue as a percentage of gross domestic product stays about the same no matter what the top bracket is. Higher tax rates don’t necessarily get rich people to pay more taxes.

“They’ll change where they earn their income,” economist Art Laffer told me about what he’d once said to President Reagan. “They’ll change how they earn their income. They’ll change how much they earn, when they receive the income. They’ll change all of those things to minimize taxes.”

President Trump, who in some years paid zero income tax, understands that. Before he became president, I asked him about a proposed tax hike. “Look, the rich people are going to leave—and other people are going to leave!” he told me. “You are going to end up with lots of people that don’t produce. And then, that’s the spiral. That’s the end.”

That happened in Europe, recounts Magness: “France attempted a massive tax on its wealthiest earners…the business people left in a mass exodus from the country.”

But today’s progressives are selective when they look at history. On TV, Ocasio-Cortez said, “Under Republican administration…Dwight Eisenhower, we had 90 percent marginal tax rate.”

I asked Magness what would happen if the U.S. were to return to those rates—while also eliminating the deductions that came with them.

“You’re asking for an economic disaster,” he answered. “I ask the question: Do we leave (wealth) in the private sector where the market decides? Or do we subject it to corrupt politicians?”

Please, let’s leave most of America’s wealth in private hands.

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Donald Trump and Sanctuary Cities
Americanspirit/Dreamstime.com

Last week, President-elect Donald Trump re-emphasized the approach he will take in enforcing the nation’s immigration laws, which is much different from the manner of enforcement utilized by President Barack Obama. The latter pointedly declined to deport the five million undocumented immigrants in the United States who are the parents of children born here — children who, by virtue of birth, are American citizens. Trump has made known his intention to deport all undocumented people, irrespective of family relationships, starting with those who have committed crimes.

In response to Trump’s stated intentions, many cities — including New York, Chicago, Los Angeles, and San Francisco — have offered sanctuary to those whose presence has been jeopardized by the president-elect’s plan. Can they do this?

Here is the back story.

Under the Constitution, the president is the chief federal law enforcement officer in the land. Though the president’s job is to enforce all federal laws, as a practical matter, the federal government lacks the resources to do that. As well, the president is vested with what is known as prosecutorial discretion. That enables him to place priority on the enforcement of certain federal laws and put the enforcement of others on the back burner.

Over time — and with more than 4,000 criminal laws in the United States Code — Congress and the courts have simply deferred to the president and permitted him to enforce what he wants and not enforce what he doesn’t want. Until now.

Earlier this year, two federal courts enjoined President Obama — and the Supreme Court, in a tie vote, declined to interfere with those injunctions — from establishing a formal program whereby undocumented people who are the parents of natural-born citizens may lawfully remain here. It is one thing, the courts ruled, for the president to prioritize federal law enforcement; it is quite another for him to attempt to rewrite the laws and put them at odds with what Congress has written. It is one thing for the president, for humanitarian reasons or because of a lack of resources, to look the other way in the face of unenforced federal law. It is another for him to claim that by doing so, he may constitutionally change federal law.

Trump brilliantly seized upon this — and the electorate’s general below-the-radar-screen disenchantment with it — during his successful presidential campaign by promising to deport all 13 million undocumented immigrants currently in the United States, though he later reduced that promise so as to cover only the two million among them who have been convicted in the United States of violating state or federal laws.

Enter the sanctuary cities. These are places where there are large immigrant populations, among which many are undocumented, yet where there is apparently not a little public sentiment and local governmental support for sheltering the undocumented from federal reach. Trump has argued that these cities are required to comply with federal law by actively assisting the feds — or at least not aggressively resisting them.

Thus the question: Are state and local governments required to help the feds enforce federal law? In a word: No.

The term “sanctuary cities” is not a legal term, but it has been applied by those in government and the media to describe municipalities that offer expanded social services to the undocumented and decline to help the feds find them — including the case of Chicago’s offering undocumented immigrants money for legal fees to resist federal deportation. As unwise as these expenditures may be by cities that are essentially bankrupt and rely on federal largesse in order to remain in the black, they are not unlawful. Cities and towns are free to expand the availability of social services however they please, taking into account the local political climate.

Enter the Supreme Court. It has required the states — and thus the municipalities in them — to make social services available to everyone resident within them, irrespective of citizenry or lawful or unlawful immigration status. This is so because the constitutional command to the states of equal protection applies to all persons, not just to citizens. So the states and municipalities may not deny basic social services to anyone based on nationality or immigration status.

The high court has also prohibited the federal government from “commandeering” the states by forcing them to work for the feds at their own expense by actively enforcing federal law. As Ronald Reagan reminded us in his first inaugural address, the states formed the federal government, not the other way around. They did so by ceding 16 discrete powers to the federal government and retaining to themselves all powers not ceded.

If this constitutional truism were not recognized or enforced by the courts, the federal government could effectively eradicate the sovereignty of the states or even bankrupt them by forcing them to spend their tax dollars enforcing federal law or paying for federal programs.

Thus the Trump dilemma. He must follow the Constitution, or the courts will enjoin him as they have his predecessor. He cannot use a stick to bend the governments of sanctuary cities to his will, but he can use a carrot. He can ask Congress for legislative grants of funds to cities conditioned upon their compliance with certain federal immigration laws.

All of this is part of our constitutional republic. By dividing powers between the feds and the states — and by separating federal powers among the president, Congress, and the courts — our system intentionally makes the exercise of governmental power cumbersome by diffusing it. And since government is essentially the negation of freedom, the diffusion of governmental powers helps to maximize personal liberty.

COPYRIGHT 2016 ANDREW P. NAPOLITANO|DISTRIBUTED BY CREATORS.COM

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2019-03-19 13:00:00

Seven academic journals recently published papers that were actually hoaxes designed to show the absurdity found in such academic fields as gender studies, race studies, and queer studies. The hoaxers intentionally submitted papers that were ridiculous. One included gibberish about rape culture in dog parks. Another was a section of Hitler’s Mein Kampf re-written with feminist buzzwords.

Six journal editors would not talk to Stossel, but one—Roberto Refinetti, editor in chief of Sexuality and Culture—agreed to an interview.

He condemns what the hoaxers did: “You’re deceiving people without much of a reason.”

Stossel says he thinks the hoaxers had good reason not to go to the review board first. “Their hoax woke us up to the fact that some academic journals publish nonsense,” he says.

Click here for full text and downloadable versions.

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Hackers or leakers?
Benoit Daoust/Dreamstime.com

Earlier this week, leaders of the Democratic National Committee and former officials of Hillary Clinton’s presidential campaign made the startling allegation that the Russian government hacked into Clinton’s colleagues’ email accounts to tilt the presidential election toward Donald Trump. They even pointed to statements made by CIA officials backing their allegations.

President-elect Trump has characterized these claims as “ridiculous” and just an “excuse” to justify the Clinton defeat, saying they’re also intended to undermine the legitimacy of his election. He pointed to FBI conclusions that the CIA is wrong. Who’s right?

Here is the back story.

The American intelligence community rarely speaks with one voice. The members of its 17 publicly known intelligence agencies — God only knows the number of secret agencies — have the same biases, prejudices, jealousies, intellectual shortcomings, and ideological underpinnings as the public at large.

The raw data these agencies examine is the same. Today America’s spies rarely do their own spying; rather, they rely on the work done by the National Security Agency. We know that from the Edward Snowden revelations. We also know from Snowden that the NSA can monitor and identify all digital communications within the United States, coming into the United States and leaving the United States. Hence, it would be foolhardy and wasteful to duplicate that work. There is quite simply no fiber-optic cable anywhere in the country transmitting digital data to which the NSA does not have full-time and unfettered access.

I have often argued that this is profoundly unconstitutional because the Fourth Amendment requires a judicially issued search warrant specifically describing the place to be searched or the thing to be seized before the government may lawfully invade privacy, and these warrants must be based on probable cause of criminal behavior on the part of the person whose privacy the government seeks to invade.
Instead of these probable cause-based, judicially issued search warrants, the government obtains what the Fourth Amendment was written to prohibit — general warrants. General warrants are not based on evidence of probable cause of criminal behavior; rather, they are based on government “need.” This is an unconstitutional and absurd standard because the government will always claim that what it wants, it needs.

General warrants do not specifically describe the place to be searched or the thing to be seized; rather, they authorize the bearer to search where he wishes and seize whatever he finds. This is the mindset of the NSA — search everyone, all the time, everywhere — whose data forms the basis for analysis by the other agencies in the intelligence community.

In the case at hand, the CIA and the FBI looked at the same NSA-generated raw data and came to opposite conclusions. Needless to say, I have not seen this data, but I have spoken to those who have, and they are of the view that though there is evidence of leaking, there is no evidence whatsoever of hacking.

Leaking is the theft of private data and its revelation to those not entitled or intended to see it. Hacking is remotely accessing an operational system and altering its contents — for example, removing money from a bank account or contact information from an address book or vote totals from a candidate’s tally. When Trump characterized the CIA claim that the Russians hacked the DNC and Clinton campaign emails intending to affect the outcome of the election as ridiculous, this is what he meant: There is no evidence of anyone’s altering the contents of operational systems, but there is evidence — plenty of it — of leaking.

If hackers wanted to affect the outcome of the election, they would have needed to alter the operational systems of those who register voters and count votes, not those who seek votes.

During the final five weeks of the presidential campaign, WikiLeaks released tens of thousands of DNC and Clinton campaign emails to the public. WikiLeaks denies that its source was the Russian government, yet for the purposes of the DNC and Clinton campaign claims, that is irrelevant because whoever accessed these emails did not alter the operational systems of any of the targets; the accessor just exposed what was found.

We do not know what data the president-elect examined. Yet in six weeks, he will be the chief intelligence officer of the U.S., and he’ll be able to assimilate data as he wishes and reveal what he wants. He should be given the benefit of the doubt because constitutionally, the intelligence community works for him — not for Congress or the American people.

Who did the leaking to WikiLeaks? Who had an incentive to defeat Clinton? Whose agents’ safety and lives did she jeopardize when she was extremely careless — as the FBI stated — with many state secrets, including the identity and whereabouts of U.S. intelligence agents and resources?

The answer is obvious: It was the same intelligence community that cannot agree on the meaning of the raw data it has analyzed.

Someone leaked the Democrats’ and the Clinton campaign’s private work, and the government has a duty to find the person or entity that did so, even if it was one of the government’s own. Though the truthful revelation of private facts may have altered some voters’ attitudes, there is no evidence that it altered ballot totals. The law guarantees fair elections, not perfect ones.

Did the Russians hack Hillary Clinton? No. No one did. But some American intelligence agents helped WikiLeaks to expose much dirty laundry.

COPYRIGHT 2016 ANDREW P. NAPOLITANO|DISTRIBUTED BY CREATORS.COM

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