The Great Subterranean Termite Scam

I'll try to make this quick because you're probably not interested, unless you found this post by Googling "subterranean termites," "termite rip-off" or "Terminix bait stations."

Two years ago some icky little bugs gnawed a hole in a wall of my Southern California house and, to make a long story short, they were subterranean termites.

Three exterminator companies came out to do inspections and estimates. Two of them wanted to drill holes at intervals around the perimeter of the house and pump liquid poison into the ground. One of these also wanted to inject the pesticide inside the interior walls of the house. The third company, Terminix, pitched a bait-station plan that would put cylinders of poison into the ground for termites to find, eat, and bring back to their nests to share with their friends and family.

The price for each of the plans was close to two thousand dollars. We chose the Terminix baiting system.

Every three months, a Terminix employee would come to the house and inspect the seventeen bait stations. Over the course of two years, one single cylinder of bait, far away from the original infestation, appeared to be consumed. The rest were untouched.

The reason for this, Terminix employees told me at various times, was that ants in the ground had killed all the subterranean termites. Oddly, the Terminix representatives didn't mention that ants kill termites when they tried to sell me a contract to kill all the ants.

A year after the first infestation, swarmer termites popped up again in the same wall, emerging from a window track. Terminix sent someone out with a special foaming pesticide spray, but the company told me Windex would have worked exactly as well, because the special foaming pesticide spray only kills termites on contact, and so does window cleaner. They also said the swarmer termites die in a few days even if you don't do anything.

Two years ago, when the exterminator company representatives were trying to close the deal, they spoke in frightening terms about termites eating a pound of wood a day. They warned darkly that subterranean termite colonies are much larger than drywood termite colonies (which can be wiped out by fumigating).

But after the contract was signed, the urgency was gone. "It will take them seventy-five years to eat your house," Terminix employees told me.

Now Terminix has informed me that they are abandoning the bait stations system because of questions about its effectiveness. The liquid works better, they've decided, so instead of the $390 annual renewal for the bait stations, they want to charge me $599 for an annual renewal that includes drilling holes around the perimeter of the house and pumping poison into the ground.

In this consumer's opinion, Terminix charged nearly two thousand dollars, plus a second-year renewal fee, for a termite baiting system that was completely unnecessary and, by their own admission, ineffective. Instead of an apology and a refund, they are offering a sales pitch for the equally unnecessary liquid treatment they disparaged two years ago ("Liquid only kills on contact," they said then. "Our slow-acting bait kills the whole colony.")

An inspection of the house has revealed no termite infestation, so I would like to thank the ants for all their hard work, and I would like to warn you, if you ever find out that you have subterranean termites, that your best bet is to buy an ant farm and smash it on the ground next to your house. Put the two thousand dollars in a money market account and use it to replace the studs in your wall in case you ever remodel and happen to see an obese termite smirking at you. Don't forget the Windex.


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Condi's nice try

Secretary of State Condoleezza Rice said Thursday that she may refuse to testify before the House Oversight and Government Reform Committee, despite the subpoena that the House just issued to her.

She said she has already answered the committee's questions about the administration's claims that Saddam Hussein tried to buy uranium in Africa. "This is an issue that has been answered and answered and answered," she said.

Secretary Rice was, at the time, President Bush's national security adviser, and this, she contends, exempts her from the need to comply with a congressional subpoena.

"There is a constitutional principle," the secretary of state explained. "There is a separation of powers and advisers to the president under that constitutional principle are not generally required to go and testify in Congress."

Unfortunately for the Bush administration, the "constitutional principle" they cite is at odds with the Constitution, which gives the U.S. Congress the power to impeach the president, the vice president, and all civil officers of the United States.

The Constitution also gives Congress all the powers that are "necessary and proper" to carry out the powers delegated to it by the Constitution.

By any reasonable interpretation, it is both necessary and proper to investigate in order to determine if impeachment should go forward.

The power of investigation, therefore, is implicit in the power of impeachment.

The "principle" that advisers to the president are "not generally required to go and testify in Congress" is non-existent. The potential targets of an impeachment cannot have some unwritten constitutional power to stymie a congressional investigation by refusing to testify or provide documents.

Nice try, though.

Copyright 2007

Editor's note: You might be interested in the 1974 book, Executive Privilege: A Constitutional Myth, by the late Harvard law professor Raoul Berger. You might also like to read the earlier post, "Fred Fielding's bad day."

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How the Supreme Court killed downtown Los Angeles

U.S. District Judge Dean D. Pregerson ruled Wednesday that some of the tactics used by Los Angeles police to clean up Skid Row are unconstitutional. LAPD officers have been patrolling the streets, asking people if they are on parole or probation and sometimes searching them, without any evidence that they have committed a crime.

The judge ordered the police to change their tactics. He made his ruling in a lawsuit filed by the American Civil Liberties Union.

If you don't live in Los Angeles, you may not know that city officials have spent decades and fortunes trying to redevelop downtown Los Angeles, an area the L.A. Times gently describes as "once-blighted." Picture thousands of people camping on the streets with no bathroom facilities except the sidewalk, picture an open-air drug market that extends for blocks in all directions, picture thieves and thugs with guns and knives, and you can see that it hasn't been all that easy to persuade Barnes & Noble or Macaroni Grill to sign a downtown lease.

But then skyrocketing real estate values and hideous traffic congestion helped downtown developers turn old office and commercial buildings into trendy new loft condominiums, and a new political constituency brought pressure on the city to restore the sidewalks to their intended purpose. In the last six months, the Times reports, the LAPD made 6,000 arrests and cut the downtown crime rate by 35 percent. In September, city officials counted 1,800 people sleeping on the streets. Last week the number was 750.

The Central City East Association, which represents downtown businesses and merchants, praised the crackdown by police. "The LAPD is saving lives by the work they are doing here," executive director Estela Lopez told the Times. "There's fewer people exposed to the violence, ensnared in daily drug markets and the inhumanity of the streets that exposes them to the elements."

Of course, and there's no sarcasm intended here, none of that matters if the police are violating an individual's constitutional rights.

But are they?

The answer you get to that question today is very different than the one you would have had prior to June 27, 1949. That's when the U.S. Supreme Court ruled 6-3 that "the security of one's privacy against arbitrary intrusion by the police -- which is at the core of the Fourth Amendment -- is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause [of the Fourteenth Amendment]."

This was an earth-shaking change in the law. Until that moment, the Fourth Amendment's restrictions against unreasonable searches and seizures applied only to the federal government, not to the states.

The Supreme Court's decision in the 1949 case of Wolf v. Colorado meant that the states, which had always controlled their own police procedures under their own state constitutions, were now subject to second-guessing by the federal courts.

You might think that's a very good idea, but you should know that this fundamental change in the constitutional division of power was never approved by Congress, the state legislatures, the state courts, or any of the voters in any jurisdiction.

The U.S. Supreme Court made this change, all by itself, by a vote of six to three.

And today the elected leaders of the City of Los Angeles were told that the law enforcement procedures they approved are not acceptable to the federal courts.

Now city officials will have to ask: What procedures are acceptable to the federal courts?

They will get the same answer from the courts that they would get from a Magic 8-Ball: "Ask again later."

In other words, whatever they do, city officials can be hauled into federal court and forced to prove that their laws and procedures are reasonable and necessary and narrowly tailored to achieve a permissible purpose. That's the balancing test the Supreme Court uses to decide when a "fundamental right" can be infringed by a state or local government.

But this is all made up out of the air. The people of the United States never agreed to have the federal courts supervise the administration of state and local laws. When the Fourteenth Amendment was ratified in 1868, its equal protection clause required all states to apply the laws equally to all individuals regardless of race, and its due process clause meant that everyone was entitled to the procedures of law, as opposed to the exercise of arbitrary power. No one who debated or ratified the Fourteenth Amendment ever thought it meant the Bill of Rights suddenly and for the first time restricted the states in the same way it restricted the federal government.

That's why the Supreme Court had to wait until everyone who ratified the Fourteenth Amendment was dead before they could reinterpret it.

Now, thanks to the Supreme Court's reinterpretation, state and local officials often find their hands tied by federal court rulings when they try to pass or enforce laws that once were entirely within their own powers.

One year, or two years, or five years from now, when you hear that the redevelopment of downtown Los Angeles is dead, don't bother hiring a city planning consultant to find out what went wrong. Don't blame Mayor Antonio Villaraigosa. Don't blame Police Chief William J. Bratton. Don't blame the private developers.

The date of death is June 27, 1949. The cause of death is the United States Supreme Court, and good intentions.


Copyright 2007

Editor's note: For more information and complete source notes, please see the appendix to The 37th Amendment: A Novel, "How the First Amendment Came to Protect Topless Dancing: A History of the Incorporation of the Bill of Rights into the Fourteenth Amendment, Why It's a Problem, and How to Fix It," online at www.ExtremeInk.com/appendix.htm.

You might also be interested in the earlier post, "The cat, the bag, and Justice Scalia."

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A vacancy sign behind the eyes

Senator Joe Biden spoke at Al Sharpton's National Action Network conference in New York on Friday and drew a comparison between the massacre at Virginia Tech, the genocide in Darfur, and the remark by Don Imus about the Rutgers women's basketball team.

According to the Associated Press report, Biden complained that Republicans had "wallowed in the politics of polarization." Then the U.S. Senator from Delaware said this:

"I would argue, since 1994 with the Gingrich revolution, just take a look at Iraq, Venezuela, Katrina, what's gone down at Virginia Tech, Darfur, Imus. Take a look. This didn't happen accidentally, all these things."

There, in three sentences, you can witness the final, fiery crash of Joe Biden's presidential hopes.

It's too hard to follow the logic that blames Newt Gingrich for the Iraq war, a socialist regime in Venezuela, a hurricane, a South Korean madman, a Sudanese bloodbath and an idiotic racial insult by a radio host who thought he was kidding around.

It's easier to say that Senator Biden's lights are on, but nobody's home.

A minute before Senator Biden started blaming all the world's ills on "the politics of polarization," he was pitching his plan for a three-way partition of Iraq, with patrolled borders keeping the ethnic groups permanently separated.

There is some good news for Senator Biden. Eventually he'll be able to pay off his campaign debts by renting out the space behind his eyes.



Copyright 2007

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The Democrats' bad week

It's only Wednesday and already this week the Democrats have been forced to speak up in favor of gun control and partial-birth abortion, two stands that are certain to cost them their chance at the White House in the 2008 election.

Then again, it may not make any difference. When you look closely at the the current crop of Democratic presidential candidates, it seems increasingly likely that the Republicans would have to nominate Jerry Falwell to lose to any of them.

Today the Supreme Court upheld the federal Partial Birth Abortion Ban Act by a vote of five to four, a decision Justice Ruth Bader Ginsburg called "alarming." The Court's decision, she wrote, "cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court."

If you've read The 37th Amendment: A Novel (and the included essay, "How the First Amendment Came to Protect Topless Dancing"), you already know that a right "declared" by the Supreme Court is no substitute for a right written in the plain language of the Constitution, no matter how long the Court has upheld it or ignored it.

In 1938, for example, the Supreme Court overturned a case that had been the law of the land since 1842. The Court said it was "an unconstitutional assumption of powers by the Courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct."

In an eerie echo of that ruling, Justice Clarence Thomas and Justice Antonin Scalia wrote a separate concurring opinion today to make clear their view that "the Court's abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution."

It is true that the right to privacy in the United States rests on a 1965 hallucination by Justice William O. Douglas, who believed he saw it emanating from a penumbra of the Bill of Rights. He saw a right to marital privacy that was so fundamental to human liberty that a Connecticut law banning birth control could not be allowed to stand.

While no court had ever seen this right before, many saw it afterwards.

But Americans who want constitutional rights do not have to rely on the sprightly imaginations of aging justices. Article V of the U.S. Constitution gives the people of the United States the power to amend the Constitution to say anything they want it to say.

Anything.

Anything that can win the approval of three-quarters of the state legislatures.

Would you like to have a constitutional right to privacy, a genuine right that can't be repealed by Congress or revoked by a five-to-four vote of the U.S. Supreme Court?

Read "Why There is No Constitutional Right to Privacy, and How to Get One" at www.SusanShelley.com.


Copyright 2007

Source note: The 1842 Swift v. Tyson (40 U.S. [16 Pet.] 1) decision was overturned by the Supreme Court in the 1938 case of Erie Railroad Company v. Tompkins (304 U.S. 64). For more information, see Charles Fairman, American Constitutional Decisions, Revised Edition, (New York, Henry Holt and Company, 1950).

The 1965 privacy-rights case is Griswold v. Connecticut (381 U.S. 479).


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Don Imus: meal ticket

No one will accept Don Imus' apology.

Why not, you wonder?

Because show business is so hard.

Ya think it's easy to get a TV or radio show?

Well, it's not. And if you get a TV or radio show, it's not easy to keep it.

You have to deliver an audience. A big audience. A growing audience. A loyal audience that buys stuff they don't need from companies that advertise on your show.

That's why radio shows are not hosted by people who say just the right thing in just the right way. If that drew an audience, radio shows would be hosted by Hallmark cards.

And they're not.

So if you want a radio or TV show and you can't draw an audience, there's only one other thing to do.

Find an incendiary racial grievance, demand something impossible as the price of your forgiveness, and then settle for having your show broadcast on the offending radio stations and cable networks.

Exhibit A: Jesse Jackson was interviewed over the telephone Monday by NBC News White House correspondent David Gregory, who was filling in for Chris Matthews on MSNBC's Hardball. After a suitable amount of tsk-tsking over Don Imus, Jackson berated Gregory over the absence of African-American hosts on MSNBC's schedule.

Gregory reminded Jackson that the Emmy Award-winning Alison Stewart, host of MSNBC's The Most, is African-American.

Jackson responded that "hosts" have writers and producers, and evening time slots. He said, in essence, that Alison Stewart was not what he had in mind.

Ya don't say.

Gee, Rev. Jackson, didn't you once have a show on CNN? Whatever happened over there? Wouldn't you like to host a prime time hour on MSNBC? Would that be all right? Would you forgive us then?

Glad Wrap is less transparent.

Then there's Al Sharpton. On Monday he dragged Don Imus into the studio where he broadcasts his own syndicated radio program, "The Al Sharpton Show."

Reverend Sharpton, whose ethics are beyond question (unless you Google "Al Sharpton, Tawana Brawley" or "Al Sharpton, Federal Election Commission"), called for regulating hateful speech on broadcast radio and television.

Of course, speech can't be regulated without running afoul of that First Amendment, another dastardly creation of those slave-owning Virginians. Blast it all. Well, if regulating hate speech is going to create legal problems, there's only one thing to do.

Pick up Al Sharpton's radio show on all the CBS Radio stations that carry Imus!

Fair is fair, right?

Wrong.

If fair was fair, the same terminology that is considered perfectly fine when used by African-American entertainers would not be career-ending when used by Caucasian entertainers.

This is not to defend the use of offensive racial insults. The question is fairness, and proportionality. It is irrational and unreasonable to believe that the identical words merit either financial ruin or an NAACP Image Award, depending on the race of the speaker.

By coincidence, Al Sharpton's interview with Don Imus and Jesse Jackson's interview with David Gregory happened on the very same day that Illinois Senator Barack Obama was interviewed by David Letterman. Senator Obama, who just barely trails Democratic presidential frontrunner Hillary Clinton in national polls and fund-raising, was asked in all seriousness if he would consider putting Senator Clinton on his ticket as vice president.

If you are Al Sharpton or Jesse Jackson, the rise of Barack Obama is a frightening thing.

Senator Obama has arrived on the national political scene without wrapping himself in the unassailable robes of the clergy. He ran for statewide office, he asked for votes, and he got them.

It is possible that Barack Obama will win the Democratic nomination for president in 2008.

And if he does, the racial shakedown business is going to take quite a hit.

How do you argue that compensation must be paid because America is a completely racist country after a major political party nominates an African-American for president? (Actually, he's half African and half Caucasian, but people who think race is a dealbreaker don't typically consider that an improvement.)

And if you can't win compensation for the racism woven into the fabric of America, how are you going to pay your bills and support your lifestyle?

You'll have to earn your money, like everybody else does.

If you're a preacher, or an entertainer, you'll have to draw an audience. A big audience.

Don't call Don Imus for advice. He doesn't owe you anything.


Copyright 2007


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