The president is counting on an ineffectual congress.


A new tool is urgently needed to restrain the illegal and/or unconstitutional exercise of power by the president.  Beyond the major policies at issue, the very relevancy of the legislative branch is at stake.  This article outlines a new legal weapon (more properly a shield) that will actually work.  At the moment, congressional leadership seems caught between ineffective grand gestures and a politically perilous strategy of relying exclusively on the power of the purse. In this proposal, the Congress would enact a streamlined response path for the Federal Court of Appeals to invalidate specific Executive Orders (or directives tantamount to Executive Orders) that violate federal law, the Constitution, or both.


Jay B Gaskill, Attorney at Law

December 4, 2014


The full article needs to be read by all key House and Senate leaders.


Here are the links:



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9-11-2012 The Dream

On not forgetting WHY we are Americans —

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This article was also published on the Dot 2 Dot Blog and is available at —–

The Policy Think Site –




A Labor-Day


By Jay B Gaskill, Attorney at Law



“The $787 billion stimulus package in 2009 wasn’t nearly big enough.”


This was a pull quote from a piece in Sunday’s San Francisco Chronicle’s Business Section by Andrew W Ross, “Mistakes on economy make Obama vulnerable.”


Mistakes on economy make Obama vulnerable

Andrew S. Ross

Updated 6:11 p.m., Saturday, September 1, 2012


Consider this gem from the same piece:


“…Obama has offered lots of plans, including most recently his American Jobs Act, which analysts said could create 1.9 million jobs and add two points to the GDP. But, like most of Obama’s other plans, it was shot down by opponents determined, as Senate Minority Leader Mitch McConnell (R-Ky) openly admitted right after Obama was elected, to deny him a second term at whatever cost – including, it turned out, a near U.S. debt default. Would a more accommodating – some might say patriotic – opposition have helped the economy more? We’ll never know. A more robust, less accommodating response by Obama might at least have chipped holes in the “party of no” stonewall and given him more room to operate.”


“The party of no”?


 “[A]nalysts said [that Obama’s latest plan] could create 1.9 million jobs and add two points to the GDP???


I’ve struggled how to insert the missing elements in this flawed logic as simply as possible. I hereby invite you to join me in this exercise. {My email is below.} Try this as a start:


Politically allocated public moneys are supposed to be appropriated for “public purposes” (think constituency feeding here), which in the case of the failed $ .787 trillion consisted mostly of “shovel ready” projects to be done by local governments. Like the make-work WPA projects in the depth of the depression, these projects were not new, profit making business entities. They had the virtue of keeping some workers busy, but did not themselves spawn any new, money making projects.


These efforts are being promoted as “stimulus” measures. This sleight of hand works only because of two unchallenged assumptions, to wit: That the measures will stimulate “consumption” by “putting more money in the hands” of those who “have less” (while servicing one’s voting constituencies); and that increasing consumption (by hopefully increasing some consumer purchases) will stimulate American production and hiring.


The .787 trillion dollar, debt-financed “stimulus” expenditure was doomed to fail from the outset, and it was a failure in fact.  This was not because of the sum of money expended, but in spite of that sum.  In times when we have a critical mass of unemployed adults, including the much larger number of men and women who underemployed or frightened of becoming unemployed, neither temporary public jobs nor a little bit more money in general circulation will overcome the general tendency to hold back spending in favor or debt repayment or saving.


More to the point: Any uptick in consumer confidence and in actual buying will have a very small effect on employment numbers in such a situation because, aside from our locally provided food, water and electricity, the additional purchases tend to support foreign producers, not American ones.


Visit Wal-Mart, any hardware store, appliance or electronic store.  Start looking for the “made in the USA tags.” I gave up after an hour.  Consumption-driven stimulus, to the extent that it works at all, does very little more than to stimulate our purchases of Chinese and other non-USA manufactured goods.


 The days of consumer-driven stimulus are over.


But what about all our sales people, the Wal-Mart greeters, the advertising agencies, the pizza sales? For that matter, what about all the other “spin off” jobs from our consumption activities?


In the long term, we cannot survive as a “service industry” economy if we are just serving ourselves.


If you doubt this, consider this little thought experiment:


Assume a country (We’ll call it NoMaKeSoMuchNow), a prosperous principality in decline that makes no cars, almost no machinery and virtually no other tangible, fungible goods – except for food, water and electricity, all of which are locally made and locally consumed.


The government of NoMaKeSoMuchNow sends a one-time gift of 1,000 Chips (the local currency equivalent of a dollar) to each family.  Suddenly many families have some discretionary money to spend.  Of course, almost all of the new discretionary spending will go to foreign suppliers, who will want to be paid in currency that buys something they want. But NoMaKeSoMuchNow has very little to sell; and therefore its currency exchanges at 3,000 chips to the dollar.  The one time gift of 1,000 Chips to the good citizens of NoMaKeSoMuchNow ends up being worth 30 cents US.


Every iPhone in the USA is made in China.  The specifically US components of any smart phone consist mostly of the designs, the concepts, the original idea-contents – these are its intellectual property components.  This is our problem writ small.  Consider that all the movies, songs, video games, patented drugs and processes, and other intellectual property assets in the entire US inventory cannot by themselves support the rest of the economy. Nor can these innovations support their own respective industries if our intellectual property rights are not protected abroad.


The restoration of productive, profitable USA based businesses that sell real goods and valuable services to the USA and to the world at large is the indispensable key to our economic recovery.  Those as-yet-not-started businesses will be the engines on which continuing American prosperity is based.  Without them, our decline into some version of NoMaKeSoMuchNow is inevitable.


Our current political leaders-in-charge, the economic advisors who are in agreement with the cited Chronicle piece above, and the other apologists for consumption-driven recovery theory, all remain clueless about the essential difference between public, politically driven spending, and private, profit-seeking investments.


A general cultural hostility to economic success is toxic, because resentment for individual achievements inevitably poisons the well for the collection of private achievements on which public prosperity is ultimately based.


The genius of the private investment model, when conducted on a level legal and financial playing field that is sufficiently free of political meddling, is that enterprise-failure is contained mostly to the investors, while success is communicated to the larger economy via commercial stimulus.


In the government investment model, failure is subsidized by the entire economy via taxation and/or the consequences of public borrowing, while success (if it takes place) usually becomes part a political feedback-reward relationship that tends to freeze out new competitors.


Yes, the foregoing was a simplification but not an oversimplification.


The early success of the early 2oth century Ford Motor Company benefitted the USA as a whole, but the failure of its horse and buggy and steam engine competitors did not hurt the USA as a whole. The recent bankruptcy of several federally subsidized solar power ventures has so far benefitted no one in real terms, and the considerable venture costs are being born by the country as a whole. The success of any single preferentially subsidized enterprise benefits that company at the expense of competitors without ever sufficiently compensating the public fisc that provided its original subsidy.  All too often, in the crony capitalism model, the investors that “play ball” with politicians are rewarded for reasons unconnected to the performance of their respective enterprises.


This is why politics and commerce mix as poorly (and with many of the same malign consequences) as do the institutions of church and state. The incentive of making a profit and the discipline of bearing a possible loss, together encourage wiser private investment decisions than those made by government bureaus.  Public, politically-driven ventures fail all of the time, but their architects, immune from malfeasance or malpractice lawsuits, just quietly change jobs.


Obama’s American Jobs Act was “shot down” by elected members of Congress (including conservatives, moderates and some thinking liberals) not because it was going to work, but because throwing good money after other good money to be ineffectually spent on an outmoded and discredited stimulus theory was going to fail…again.

The administration proposed to spend another .447 trillion dollars to fund some payroll taxes, pay for more local government programs, fund high speed wireless, and punish employers whose hiring practices discriminate against the long term unemployed.  Aside from the perverse result of that last provision (experts warned that it would delay any hiring), the entire American Jobs Act was another attempt to move money into the hands of people who were expected to spend it on consumption, without creating any lasting incentives to start new profit-making businesses in an uncertain economy.

Most Americans polled over the last 19 months want a “change of direction”.  Those of us who understand the new economic reality have an obligation to make clear what that that change really entails…manifestly not more of the same, but a sharp reversal of course back to the future – a robust business system based on risk and reward.


Copyright © 2012 by Jay B Gaskill, Attorney at Law

As always, forwards, links and quotations with attribution are welcome and encouraged.  For everything else, contact the author by email at < >.

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Gay Marriage, Part Two


PART TWO: The “WHAT?”  Questions 

In the previous post, TIME OUT PLEASE, I objected to the injection of the marital status of our lesbian and gay friends into the current presidential debate.  And I concluded with this observation: “I believe that gayness is not a genetic accident but a specific adaptation that has added a small, but valuable cohort of innate spiritual peacemakers to the human population.  That perspective changes everything…”


Politics aside, there should be room for an authentic dialogue on the gay marriage issue, and an equally important dialogue about the role of government in all of this. The marriage issue and the equal benefits for cohabiting couples issue are not the same argument at all; the legal, moral, religious and the public policy aspects of these issues do not always lead reasonable minds to identical outcomes.  As we lawyers say, this is a matter about which reasonable minds can disagree.


The “WHAT?”  Questions


How is gayness defined and distinguished?


For purposes of this thread, I intend to limit my main discussion to male homosexuality.


A gay male is one who, as an adult, evidences an unambiguous and persistent predisposition to prefer and engage in male-male sexual and romantic attachments, as opposed to the male-female variety.  Situational male homosexual behavior – as occurs in male prison populations for example – is distinguished, as are the cases of adolescent experimentation.


The term “gay” applies, interestingly enough, only to male homosexuals, not to lesbians.  Stereotypical gays are more lighthearted than stereotypical lesbians. [This will not be a politically correct discussion.] Because the state of actual research is crippled by political correctness, identity politics and fundamentalist dogma, we won’t know for some time whether and to what extent some of the obvious stereotypes actually correlate to statistical patterns.  But I am willing to bet that some of the major stereotypes will be validated at least as an approximation.


What is the percentage of gay males in the general population?


It is well known than gay males tend to migrate to gay-friendly social environments and that certain cities and neighborhoods have an atypically high percentage of gay inhabitants (thinking of the Castro District in San Francisco, for example) and that gay hostile environments have an atypically small “admitted” gay population (as a knowledgeable acquaintance put it recently, “there are NO gays in Nigeria).  Having read the literature, I am personally persuaded that the core, non-reproducing, strongly gay subpopulation is not more than 2% of the overall world population.


As the current Wikipedia article puts it, “The exact proportion of the population that is homosexual is difficult to estimate reliably, but most recent studies place it at 2–7%.”


Among the studies cited were these:


  • ACSF Investigators (1992). AIDS and sexual behaviour inFrance. Nature, 360, 407–409.
  • Billy, J. O. G., Tanfer, K., Grady, W. R., & Klepinger, D. H. (1993). The sexual behavior of men in theUnited States. Family Planning Perspectives, 25, 52–60.
  • Binson, D., Michaels, S., Stall, R., Coates, T. J., Gagnon, &Catania, J. A. (1995). Prevalence and social distribution of men who have sex with men:United Statesand its urban centers. Journal of Sex Research, 32, 245–254.
  • Bogaert, A. F. (2004). The prevalence of male homosexuality: The effect of fraternal birth order and variation in family size. Journal of Theoretical Biology, 230, 33–37.
  • Fay, R. E., Turner, C. F., Klassen, A. D., & Gagnon, J. H. (1989). Prevalence and patterns of same-gender sexual contact among men. Science, 243, 338–348.
  • Johnson, A. M.,Wadsworth, J., Wellings, K., Bradshaw, S., & Field, J. (1992). Sexual lifestyles and HIV risk. Nature, 360, 410–412.
  • Laumann, E. O., Gagnon, J. H., Michael, R. T., & Michaels, S. (1994). The social organization of sexuality: Sexual practices in theUnited States.Chicago:UniversityofChicagoPress.
  • Sell, R. L., Wells, J. A., & Wypij, D. (1995). The prevalence of homosexual behavior in theUnited States, theUnited KingdomandFrance: Results of national population-based samples. Archives of Sexual Behavior, 24, 235–248.
  • Wellings, K., Field, J., Johnson, A., &Wadsworth, J. (1994). Sexual behavior inBritain: The national survey of sexual attitudes and lifestyles.London,UK: Penguin Books.

Is gayness the result of a genetic predisposition?


I am a left handed heterosexual male.  My first grade teacher tried mightily to “turn” me into a right handed male.  Like many southpaws, I’m a more ambidextrous than most right-handers.  Conceivably, Miss Nix might have succeeded in converting me to a right handed male — assuming I came equipped with a weaker resistance to authority.  But I am certain that no mere grade school teacher could ever have made me REJECT the sexual favors of girls in favor of boys!  Similarly, there are a number of strongly right handed males for whom “crossing over” to the left handed world would take nothing less than amputation. My own life experience as both child and parent confirms that we inherit a number of predispositions, some of which are more “hard wired” than others.


Many biologists tend to assert strongly that human behavioral patterns are not inherited.  That is far too simplistic.  Left handedness, musical aptitude and any number of temperamental characteristics manifest well in advance of socialization.  Clearly, while our specific behaviors are not genetically predetermined, many of our behavioral tendencies are the result of our “wiring” (metaphorically speaking).


A tendency not to affiliate reproductively with members of the opposite gender – when consistently carried out – amounts to genetic suicide. Moreover, male homosexuality runs against the prevalent social grain.  Manifestly, biology is at work.


We therefore have a prima facie case for a set of inherited biochemical features that can trigger or predispose some males to manifest a gay orientation at some point in their adolescent development.  Of course, whether this orientation actually results in specific sexual behaviors is a separate question, just as whether predispositions to temper outbursts, irritability or to amiability and generosity result in specific social behaviors.


One’s inner predispositions are now much harder to conceal from scientific testing. Polygraphs and brain activity scan monitors can detect sexual arousal even when the subject is trying hard to hide it. The accumulating evidence makes it very likely that there is a biological predisposition to gay behavior.


For example, brain scan studies of gay males confirm a different neurological attraction response to other males than measured for non-gay males.  Even the pheromone responses appear to be different.


We can grant that biological differences can be acquired or triggered by environmental conditions, but it is almost impossible to escape the inference that there exists a set of inheritable traits that make some males much more likely to develop a strong same-gender attraction.  We don’t have to agree with the genetic determinist point of view to agree that inherited abilities and tendencies can strongly affect childhood development and later behaviors.


This is a delicate area for a political discussion to say the very least, but in the interests of an intelligent and human policy discussion, I think we benefit from the further exploration of the inherited tendency aspect of “gayness” question.  For reasons that I will develop in the next installment, I have become fully persuaded that gayness is the product of an inherited predisposition; that it is NOT some birth defect; and that therefore it has an advantageous purpose, at least in the larger mix of occasionally manifested human traits.


None of this necessarily leads to a particular position on the gay marriage issue, however, because equal treatment of different situations may or may not entail using the same name for a status, or require that the government mandate all of the elements of the imitated or parallel situation. For example, not all domestic partner laws are the same, not all marriages are established with community property rights, and not all divorce laws are the same.  State-to-state variation is a given.


I’ll address some of the implications in Part THREE


Stay tuned.




Copyright © 2012 by Jay B Gaskill


First published on the Policy Think Site and hosted blogs.

As always, links, forwards and attributed quotes are welcome and encouraged.  For everything else, please contact the author by email


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The Martian in the White House

A Political Meditation by

Jay B Gaskill

Attorney at Law


The Acton and Dystel agency distributed an Obama biographical description in a booklet in connection with Barry’s forthcoming book – Journeys in Black and White. The booklet begins with this line –

Barack Obama, the first African-American president of the Harvard Law Review, was born in Kenya and raised in Indonesia and Hawaii.”

Andrew Breitbart and the affiliated journalists at did not and do not believe that Barry Obama was born in Kenya, just that he claimed to be.  From the Breitbart website –

Andrew Breitbart was never a “Birther,” and Breitbart News is a site that has never advocated the narrative of “Birtherism.” In fact, Andrew believed, as we do, that President Barack Obama was born in Honolulu, Hawaii, on August 4, 1961.

The point of interest for them and me is Obama’s ever fluctuating image of himself. 


The Policy Think Site —

The Dot 2 Dot Blog —–

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On Not Exploiting the “Gay” Issue, Part One in a series


I strongly object to the injection of the marital status of our lesbian and gay friends into the current presidential debate.  Nothing good will come of it.  In the larger, real-world context where bad policies kill innocent people and risk whole civilizations, social issues like this one need to proceed gradually, culturally, bottom-up in the territory of hearts and minds, not the overheated arena of wedge issue politics and fundraising.

Let me begin with the end.  Cultural history is not linear.  There is no particular guarantee that what the “decent” people consider to be social progress will continue in a straight line or even continue at all during the lifetimes of the current crop of adults.  This is particularly true of sexual mores. Particular cultures tend to go though “sex cycles”, if you will, from libertine to prudish and back again.  There are cultural limits imposed on our humor at the moment, for example. Our politically correct nannies seek to impose what amounts to a form of neo-prudish repression of expression.


Not only does cultural history stubbornly defy predictions along a timeline, it always plays out differently in different places.  Inevitably there are cultural bubbles, zones defined by a sort of encapsulated cultural consensus like that surrounding San Francisco. Bubble inhabitants tend to misunderstand the rest of the world.


The Gay and Lesbian civil rights struggle has been won as far as most people who live in the “outside-the-bubble USA” are concerned. Within the bubble, gay and lesbian civil rights are still seen through the lens of oppression.  In the larger world, the issue of homosexual marriage is considered a boutique issue, one of marginal concern at best, affecting a tiny fragment of the larger population in a world torn by real repression, terror, plagues and brutal poverty. I believe that gayness is not a genetic accident but a specific adaptation that has added a small, but valuable cohort of innate spiritual peacemakers to the human population.  That perspective changes everything…


Copyright 2012 by Jay B Gaskill

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Copyright © 2010, 2011, 2012 by Jay B. Gaskill, all rights reserved….

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Politics, Polity and Progress Reexamined

Liberalism and conservatism are such ancient parts of us that we have lost a sense of what they really represent in the human condition.  They are so embedded in our minds that we forget who they are:  They are the enduring and valuable voices within our own personalities.


We all came equipped with an inner conservative; this is our inner advocate for conservation – of our most cherished values, relationships, the elements of stability without which life descends into chaos.


And we all were each issued an inner liberal; this is our interior advocate for liberation – from all restraints, our parents, traditions, from all of those annoying boundaries.  In childhood, the inner liberal voice is often dangerous, leading littleAliceto touch the hot stove and adult Steve to touch little Alice.


Life’s follies consist of the periods when silence one of our inner voices, lose the dialogue and with it, our balance.  Whatever your personal situation-of-the moment, a simple glance at the world outside is a picture of a culture that has lost its balance.


We all came equipped with an inner philosopher, although we rarely allow that sage to wake up and look around.  In the deep background, we all form a world view that emerges from our life choices, a working philosophy of life, more often than not, an unexamined one.   So I am asking you to wake your inner philosopher for a moment with a question.  What do liberalism and conservatism really represent at their most general and universal?


Liberalism is our innate tendency to challenge boundaries, social, political and economic, while conservatism is our equally innate tendency to defend the very same boundaries. 


History is the perspective supplied by an understanding of how things were before we were born.


For example, the Republican President, Abe Lincoln was a conservative who abhorred the violation of human dignity inherent in the long standing, traditional institution called slavery (well tolerated in the time of Jesus).  But Lincoln also valued the American union as a bastion of ordered liberty and was deeply reluctant to ignite a brutal war that could easily result in its dissolution, not to mention the deaths of millions. Lincoln internalized a dialogue between the liberal voice, the conservative voice and, in his case, the divine voice.


The Democratic President Harry Truman was a liberal who was thrust into national leadership in the midst of a war that threatened the foundations of Western civilization.  He integrated backs and whites in the military, supported the foundation ofIsraelas a refuge state pushing against some Republican isolationists and anti-Semites from his own party.  Truman pushed hard for social welfare programs and helped end World War II by preempting an invasion of Japanthat would have killed two million Japanese and Americans by authorizing atomic bomb attacks on two Japanese cites.  As a liberal he opposed communism because he saw it for what it was – a profound threat to liberal values.


In the present day, Truman is considered a conservative and Lincoln a liberal.


Now let’s take a snapshot of the attitudes that prevailed in academia as recently as 2000.  Conservatives were still backed into a corner as the last-ditch defenders of privilege and intolerance, relegated to the backwaters of royalty and its modern equivalent, the uber-wealthy.  And liberals still occupied their unchallenged position as the vanguard of progressive social evolution, seen as leading a reluctant humanity to the ultimate equalization of the stations of all people – at least in the social and economic realms (but not necessarily in the political elites, because, after all, the masses sometimes have to be led to enlightenment).


Enter Dr. Jonathan Haidt, professor of social psychology at theUniversity ofVirginia.  At the annual conference of the Society for Personality and Social Psychology, he asked for a show of hands.


[The article about this ran today in the New York Times Science section, cited below.]


“Dr. Haidt estimated that liberals made up 80 percent of the 1,000 psychologists in the ballroom. When he asked for centrists and libertarians, he spotted fewer than three dozen hands. And then, when he asked for conservatives, he counted a grand total of three.

“This is a statistically impossible lack of diversity,” Dr. Haidt concluded, noting polls showing that 40 percent of Americans are conservative and 20 percent are liberal.”


Then, “Dr. Haidt argued that social psychologists are a ‘tribal-moral community’ united by ‘sacred values’ that hinder research and damage their credibility — and blind them to the hostile climate they’ve created for non-liberals.


“’If a group circles around sacred values, they will evolve into a tribal-moral community,’ he said. ‘They’ll embrace science whenever it supports their sacred values, but they’ll ditch it or distort it as soon as it threatens a sacred value.’ It’s easy for social scientists to observe this process in other communities, like the fundamentalist Christians who embrace ‘intelligent design’ while rejecting Darwinism. But academics can be selective, too, as [Democratic Senator] Daniel Patrick Moynihan found in 1965 when he warned about the rise of unmarried parenthood and welfare dependency among blacks — violating the taboo against criticizing victims of racism.


“’Moynihan was shunned by many of his colleagues at Harvard as racist,’ Dr. Haidt said. ‘Open-minded inquiry into the problems of the black family was shut down for decades, precisely the decades in which it was most urgently needed. Only in the last few years have liberal sociologists begun to acknowledge that Moynihan was right all along.”’


“Can social scientists open up to outsiders’ ideas? Dr. Haidt was optimistic enough to title his speech ‘The Bright Future of Post-Partisan Social Psychology,’ urging his colleagues to focus on shared science rather than shared moral values. To overcome taboos, he advised them to subscribe to National Review and to read Thomas Sowell’s ‘A Conflict of Visions.’”




Dr. Haist’s proposal is a good start, but we should to heed a caution here.  Hitler’s architect and Reich minister was Albert Speer.  He was, by all accounts a cultivated man, not a thug…at least until he fell under Hitler’s spell.  As a war criminal writing from Spandauprison, Speer described how the Nazi regime exploited the amoral enthusiasms of the technicians and scientists. “Basically, I exploited the phenomenon of the technician’s often blind devotion to his task. Because of what seems to be the moral neutrality of technology, these people were without scruples about their activities.” (Albert Speer. (Inside The Third Reich, Simon & Schuster 1970).


The Nazis demonstrated that even physicians could be persuaded to devise ways to more effectively kill people, especially when they were freed of the moral constraints that got in the way of useful experiments that required live subjects.  Speer might have added that the scientists and technicians who proved most useful to the Reich were blind to the reality of evil.


So the caution is a simple one.  Science, as such, does not contain moral values.  When scientists are divorced from morality – or rendered morally incompetent – science itself can be appropriated for evil purposes.  Dr. Haidt might have pressed a related point; it would have been a harder sell, perhaps, but more apt:  Neither a closed bubble of liberals nor one of conservatives holds all of the moral wisdom necessary to resolve the most difficult and important moral challenges we face.


Is there a larger moral scheme? Is there an overarching perspective that tempers and enlarges both liberalism and conservatism?  Yes.  I’ve introduced that topic in an article, Creativity and Survival, and I am developing its political and policy implications in a forthcoming study to be released in March.  The Creativity and Survival article can be downloaded as a PDF file at this LINK:


Here’s a thumbnail summary of the core idea:


Long term human survival will depend on our ability to nurture and protect major centers of constructive creative activity everywhere feasible.  This will require the conservation of the life-affirming moral order, because creative innovation, when it is untethered from all morality, can and will be misappropriated by the next generation of tyrants.  It will also require the conservation of the institutions that protect and foster general conditions of freedom.  All creative enterprises require this, whether they are artistic or technological. As it happens, the American experiment was and is the single most important exemplar and model of a creative civilization that has emerged to date.


Stay Tuned.




To read Creativity and Survival on-line, use the HTM link:



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