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Archive for the ‘Constitution’ Category

I wrote a three-part series (here, here, and here) about “jury nullification,” which is the notion that jurors can declare defendants not guilty if they think the underlying law is unjust or immoral.

We have an example of this happening in New Orleans, though it occurred even before a trial.

All New Orleans prosecutors had to do was convince six people that a waiter at a famed French Quarter restaurant was guilty of a felony marijuana charge. But as it turned out, there weren’t enough people willing to consider that possibility on Tuesday. Potential jurors who said they don’t think marijuana should be illegal helped scotch the planned trial of Antoine’s server Jabar Kensey before he could face the music. …Call it a sign of the times. Ad hoc Criminal District Court Judge Dennis Waldron halted the selection process after 20 of 25 potential jurors were dropped and no more jurors remained in the day’s pool. …The right of jurors to voice their objections to criminal laws stretches back centuries, according to Texas defense attorney Clay Conrad. He said the courts have upheld the power of jurors to “nullify” charges with acquittals, despite overwhelming evidence of a defendant’s guilt, if they object to the underlying law.

It’s also been happening in Georgia, as J.D. Tuccille explains for Reason.

On July 12, a jury in Laurens County, Georgia, found Bernard’s client, Javonnie Mondrea McCoy, “not guilty” of the manufacture of marijuana and of possession of drug-related objects, despite his open admission that he had, in fact, grown the much-demonized plant. That follows on a similar victory last year in the case of Antonio Willis, who was lured into selling the equivalent of a few joints by an undercover cop. In both cases, Bernard emphasized the humanity of the defendants, of their roles as fallible, but decent people who didn’t deserve to be ground up by the wheels of the penal system. …”Hey, what’s going on here?” she wants jurors to ask themselves. “Does it reflect my values?” What Bernard doesn’t do is explicitly ask jurors to “nullify” the laws under which her clients are charged. …Instead, she emphasizes the role of the juror, which she describes as a “powerful and awesome position.” She insists that the very idea of jurors implicitly contains the idea of nullification, and she tries to help them realize how empowered they are.

In a column for the Foundation for Economic Education, Brittany Hunter cites the same heroic Georgia lawyer and examines some broader implications.

Jury Nullification has deep roots in our American legal system and allows jurors to “nullify” a law if they believe it to be unjust. While it is protected under the United States Constitution, it is also explicitly protected under Georgia law as well. Under Article 1, Section 1, Paragraph XI of the Georgia State Constitution, it reads, “the jury shall be the judges of the law and the facts.” …At the heart of jury nullification rests the belief that individuals and their unique circumstances should be taken into account before one is sentenced under an arbitrary or unjust law. And given the state of our criminal justice system, this right is absolutely important. …jury nullification would go on to be used in several important cases in American history. It was used when jurors refused to convict those charged with violating the Fugitive Slave Act and it was also responsible for bringing justice to Vietnam War protesters in the case of United States v. Moylan. Jury nullification was also largely responsible for ending alcohol prohibition.

To conclude, Kirsten Tynan of the Fully Informed Jury Association opines on the issue and highlights America’s long tradition of liberty-minded jurors.

Each year on September 5, we celebrate Jury Rights Day as our signature day of education. Jury Rights Day commemorates the 1670 trial of William Penn, which helped lay a solid foundation for jurors’ right of conscience acquittal by jury nullification. We also celebrate Constitution Day on September 17. …Though conscientious acquittal has roots in civil liberties such as freedoms of religion, speech, and association, did you know that it is also closely tied, in the history of the United States, to economic liberty? …British colonists in America did not simply grumble and then capitulate by paying their taxes. Often they actively resisted by breaking laws in order to evade taxes. It was difficult for the Crown to secure convictions when resisters were judged by juries composed of their sympathetic and similarly oppressed neighbors—many willing to vote not guilty despite the law having been broken.

In an ideal world, of course, we wouldn’t need rogue jurors.

There would be very few laws, and they would be designed to protect life, liberty, and property. And cops and prosecutors would all be fair and honest.

Needless to say, we don’t live in that world.

And since I doubt that ideal scenario will ever materialize, I’m glad many Americans still have a rebellious streak.

So the next time you get called for jury duty, you know what to do if the government is persecuting someone for owning a gun, doing drugs, selling sex, gambling, or anything else that doesn’t involve an actual victim.

If all of us stop convicting people for victimless crimes, maybe politicians will jettison bad laws (yes, I’m fantasizing, but let me enjoy the moment).

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I was delighted to learn in 2013 that an overwhelming majority of Americans would disobey if politicians passed laws to confiscate private firearms.

And we have firsthand evidence from Colorado and Connecticut that gun owners engage in widespread civil disobedience.

But people elsewhere in the world also have a bit of rebelliousness. Here are some excerpts from a column in Reason about what’s been happening in New Zealand.

New Zealand’s government—which also stepped up censorship and domestic surveillance after bloody attacks on two Christchurch mosques earlier this year—is running into stiff resistance to new gun rules from firearms owners who are slow to surrender now-prohibited weapons and will probably never turn them in. Officials should have seen it coming. …As of last week, only around 700 weapons had been turned over. There are an estimated 1.5 million guns—with an unknown number subject to the new prohibition on semiautomatic firearms—in the country overall. Traditionally relaxed in its approach to firearms regulation, and enjoying a low crime rate, New Zealand has no firearms registration rule. That means authorities have no easy way of knowing what guns are in circulation or who owns them. “These weapons are unlikely to be confiscated by police because they don’t know of their existence,” Philippa Yasbek of Gun Control NZ admitted. “These will become black-market weapons if their owners choose not to comply with the law and become criminals instead.”

Congrats to the Kiwis.

The spirit of civil disobedience exists throughout the Antipodes.

That gun owners would, in large numbers, defy restrictions should have been anticipated by anybody who…glanced across the Tasman Sea to Australia. “In Australia it is estimated that only about 20% of all banned self-loading rifles have been given up to the authorities,” wrote Franz Csaszar, professor of criminology at the University of Vienna, after Australia’s 1996 compensated confiscation of firearms following a mass murder in Port Arthur, Tasmania. Csaszar put the number of illegally retained arms in Australia at between two and five million. “Many members of the community still possess grey-market firearms because they did not surrender these during the 1996–97 gun buyback,” the Australian Criminal Intelligence Commission conceded in a 2016 report. “The Australian Criminal Intelligence Commission continues to conservatively estimate that there are more than 260,000 firearms in the illicit firearms market.”

Congrats to the Aussies.

For what it’s worth, the Australian government hasn’t undertaken a big effort to round up guns. And I also don’t think the New Zealand government will mount a big campaign. Maybe they’ve watched this Reason video?

I’ll close with examples of noncompliance in America.

The Old West desert town of Needles, California,…is gaining notoriety… Leaders have declared it a “sanctuary city” for people who believe California’s strict gun laws have encroached too much on their constitutional right to keep and bear arms. The City Council in the town of 5,000 that borders Arizona and is a few miles from the southern tip of Nevada last month unanimously declared Needles a “2nd Amendment Sanctuary City.” …This effort is part of a national trend of officials in more conservative areas resisting tougher state gun laws. In New Mexico, more than two dozen sheriffs in predominantly rural areas vowed to avoid enforcement, equipped with supportive “Second Amendment Sanctuaries” resolutions from county commissions. In Washington, sheriffs in a dozen counties said earlier this year that they won’t enforce the state’s sweeping new restrictions on semi-automatic rifles until the courts decide whether they are constitutional.

P.S. I also shared encouraging polling data on public attitudes about gun control in 2015.

P.P.S. And this polling data from cops in 2013 also gives me a reason to be optimistic.

P.P.P.S. Last but not least, don’t forget that jury nullification is another way for individual Americans to fight bad laws.

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For my annual Independence Day columns, I sometimes try to make serious points, such as last year when I shared the very wise words of Calvin Coolidge, who is probably America’s most-underappreciated president.

Or when I wrote about the proper meaning of patriotism, as I did in 2010 and 2014.

Other years, I celebrate July 4 with some humor, such as my sarcastic Declaration of Dependency in 2011.

Or some cartoons about Obamacare vs. American principles the following year.

For 2019, let’s mix seriousness and satire.

We’ll start with the former. John Stossel’s column for Reason explains what Americans should be celebrating.

We have reason to celebrate. The Fourth honors the founding of America. It’s the anniversary of the day in 1776 that the Declaration of Independence was approved. The Declaration was important. It didn’t say that America would be the best country because it would have the biggest military, toughest leaders, most government giveaways, or tightest borders. The great innovation that day in Philadelphia was the declaration that the United States would have a limited government, rooted in the idea that every individual has inalienable rights. …It was America’s emphasis on limited government—wanting to make sure no one in government would ever again wield power like that of the British king—that made our revolution the greatest and most lasting success of recent centuries. …France created revolutionary committees that murdered dissenters. Russia replaced its czar with a communist police state that confiscated farms, killing millions. …America happened—and continues to happen—spontaneously, when its leaders are smart enough to just stay out of our way. America will do best if we remember that the Declaration of Independence talks about limited government and reminds us that every individual has inalienable rights.

Amen.

Reminds me of what Reagan said.

One of the key takeaways is that American ideals are inspiring, but government policies often leave much to be desired.

Harry Stewart, one of the famed Tuskegee Airmen, has a great essay in the Wall Street Journal on patriotism even when your government is flawed.

On June 27, 1944, I graduated from Tuskegee Army Flying School, established in Alabama shortly before America’s entry into World War II to train young African-American men as Army combat pilots. …The train ride down South was eye-opening for a teenager who’d never traveled far from New York. When the train crossed the Mason-Dixon Line, the conductor came by and pointed at me: “Move to the colored car.” It was disconcerting, but I saw it as an unavoidable hurdle to earning my wings. I swallowed hard and kept going. …You weren’t just learning to fly; you were serving your country, and you were going to fight. …I flew 43 combat missions with the 332nd Fighter Group… Our commander was the legendary Benjamin O. Davis Jr., who had endured four years of the silent treatment from white cadets at West Point but nevertheless managed to graduate 35th out of a class of 276. …His convictions were encapsulated in his statement: “The privileges of being an American belong to those brave enough to fight for them.” …I am proud that I contributed to the cause. We called it winning the Double V, victory against totalitarianism abroad and institutional racism at home. July 4 is my birthday, but I celebrate my country’s birthday too. America was not perfect in the 1940s and is not perfect today, yet I fought for it then and would do so again.

There’s a lesson in those words for Colin Kaepernick.

Now let’s enjoy some satire, though combined with a serious message.

Bryan Riley of the National Taxpayers Union has a July 4th-themed column on Trump’s destructive trade taxes.

…the next round of tariffs symbolizes just how un-American this trade war has become. …on $300 billion in imports, would include tariffs on tea and fireworks. They might as well be considering a tax on bald eagles. …the 1773 Boston Tea Party was a response to England’s 3 pence per pound tariff on tea imported from China. As President John F. Kennedy observed, “When the people of Boston in 1773 threw cargoes of tea into the harbor, the American Revolution was in effect under way, symbolized by this revolution against a tariff–a tariff which meant taxation without representation.” …As we celebrate our country’s 243rd birthday, let’s also celebrate the American patriots who are following in the footsteps of our country’s founders by opposing costly new tariffs. …As we celebrate our country’s 243rd birthday, let’s also celebrate the American patriots who are following in the footsteps of our country’s founders by opposing costly new tariffs.

Reminds me of the clever AAF visual on how government makes it more expensive to celebrate today.

Last but not least, here’s an alien learning about the long-term consequences of America’s fight for independence, which began as a tax revolt.

Taxation without representation wasn’t very appealing, but the cartoon makes a very good point about the downside of taxation with representation.

Which is a good opportunity to remind everyone why America’s Founders were wise to create a republic rather than a majoritarian democracy.

Too bad the Supreme Court, most recently with Obamacare, has failed in its job to protect economic liberty.

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Two days ago, I wrote about how the Constitution was designed, in large part, to protect Americans from majoritarianism.

The Supreme Court is doing a reasonably good job of protecting some of our liberties (or, in the Heller case, restoring our liberties), but I point out in this clip from a recent interview that the Justices have failed to protect our property rights.

But since I’m now a lawyer, let’s focus instead on what legal scholars have written on this issue.

The late Professor Bernard Siegan authored a great book, Economic Liberties and the Constitution. If you care about these issues, you should buy it.

In the meantime, here are some excerpts from an article he wrote for Chapman Law Review.

The original Constitution of 1787 granted limited powers to each of the three branches of government… The federal government was limited in power so that it could not deprive citizens of their privileges and immunities… The Constitution was passed by delegates who had lived under and were steeped in the common law. Most terms and provisions of the Constitution are of common law origin and cannot fully be understood without reference to the common law. Thus, although there were no specific protections for the right of property or economic activity or press and speech, the United States government was given no power in the Constitution to deprive people of these common law rights.

Siegan explains some of the thinking that motivated James Madison.

The most influential Framer of both the United States Constitution and the Bill of Rights was James Madison, a delegate to the Constitutional Convention from Virginia… He spent considerable time preparing for the Convention by studying the writings of leading authorities on government, particularly the Scottish philosopher and historian David Hume, who advocated freedom for commerce as essential to the viability and progress of a nation. As a result of his…extensive review of literature on the subject of government, Madison concluded that for a nation to be politically and economically successful considerable limitation of government powers was required, enabling the productive, inventive, and competitive talents of the people to flourish. He believed that the welfare of a nation mandated the creation of a commercial republic that would depend on freedom of the markets and not on the authority of the state.

There’s also an excellent book, The Dirty Dozen, written by Robert Levy and William Mellor, which outlines twelve terrible Supreme Court decisions that expanded the power of government (including Wickard v. Filburn and Kelo v City of New London).

Here are some excerpts from remarks by Levy.

The Tenth Amendment says quite clearly that the federal government is authorized to exercise only certain enumerated powers, the ones that are listed there and that are specifically delegated to the national government. The Tenth Amendment goes on to say, if the power is not listed there, if it’s not enumerated and delegated to the national government, then it is reserved to the states or, depending on the provisions of state constitutions and state laws, to the people. …No matter how worthwhile the goal, no matter how much Congress thinks that it has identified a really important problem, and no matter how sure Congress is that it knows how to fix the problem, if there’s no constitutional authority to pursue it, then the federal government has to step aside and leave the matter to the states or private parties.

In other words, the Founders weren’t joking when they listed the enumerated powers.

They even included an amendment as part of the Bill of Rights to reinforce those limitations on the power of government.

Speaking of amendments, advocates of bigger government could have used that approach to expand the power of Washington. But, as Levy points out, they didn’t need to follow the rules because the Supreme Court decided to no longer protect economic liberty.

…the Supreme Court has accomplished through the back door what the states and the Congress could not have accomplished through the prescribed amendment process. Regrettably, I think, the modern court has lost its compass… Much of the court’s enduring mischief…started during the New Deal and continues today.

Last but not least, Professor Richard Epstein (my former debating partner) has a great book entitled The Classical Liberal Constitution. It also belongs in your library (and will help underscore the differences between classical liberalism and today’s statist version of liberalism).

Until then, here are excerpts from one of his articles.

…the Constitution…does offer broad and specific protections to private property through the Takings Clause (“nor shall private property be taken for public use without just compensation”4×4. U.S. Const. amend. V. ) and through the Due Processes Clauses of the Fifth and the Fourteenth Amendments (providing that neither the federal government nor the states may deprive any person of “life, liberty or property, without due process of law”5×5. Id.; id. amend. XIV. ). …a unified conceptual framework should apply to what are called economic and personal liberties, even if it were possible to articulate some hard-edged separation between them. The analytical origin of this position is that voluntary contracting, whether for the transfer of goods and services or the formation of long-term associations, works as well in the one domain as in the other.

Epstein points out that there was a spirited debate when the Constitution was drafted and adopted, but both sides in that debate would oppose the expansion of government power that largely began in the 1930s.

…there were many differences between the Federalists and Antifederalists, but anyone would be hard pressed to find a single point of contention that could be cashed out to support the hallmark legislation of the New Deal. …the Contracts Clause imposes limitations on how the state could regulate ot only existing contracts, but also those contracts that had not yet been made. And whatever doubts that existed were largely removed by the adoption of the Fourteenth Amendment, where the correct reading of the Privileges or Immunities, Due Process, and Equal Protection Clauses all place powerful limitation on the scope of state power to regulate economic and noneconomic matters alike. …neither the Federalists nor the Antifederalists in the ratification debates supported such massive federal schemes as the National Labor Relations Act.

Let’s close with this clever image someone posted on Facebook.

P.S. Here’s some satire about Obama and the Bill of Rights.

P.P.S. And here’s what Professor Epstein said about his interactions with Obama at the University of Chicago.

P.P.P.S. I image Levy/Mellor book would be re-titled The Dirty Thirteen if it was updated to include the horrific Obamacare decision.

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While she’s mostly known for radical proposals such as confiscatory tax rates and the Green New Deal, Alexandria Ocasio-Cortez also made waves with recent comments about imposing “democracy” on the economy.

In a discussion last year at Ponoma College in California, I explained why majoritarianism is misguided.

For all intents and purposes, unchecked democracy gives 51 percent of the people a right to rape and pillage 49 percent of the people.

Thankfully, America’s Founders realized that approach was incompatible with individual liberty.

They drafted a Constitution that explicitly limited the power of politicians (and thus also limited the power of people who vote for politicians).

Why? Because they understood history.

Professor Victor Davis Hanson explains how they recognized the dangers of majoritarianism.

The half-millennia success of the stable Roman republican system inspired later French and British Enlightenment thinkers. Their abstract tripartite system of constitutional government stirred the Founding Fathers to concrete action. Americans originally were terrified of what 51 percent of the people in an unchecked democracy might do on any given day—and knew that ancient democracies had always become more not less radical and thus more unstable. For all the squabbles between Adams, Jefferson, Hamilton, and Madison, they agreed that a republic, not a direct democracy, was a far safer and stable choice of governance. …We often think that a Bill of Rights was designed to protect Americans from monarchs and dictators. It certainly was. But the Founders were just as terrified of what that the majority of elected representatives without restraint might legally do on any given day to an individual citizen. …All consensual governments are prone to scary wild swings of mob-like emotion—and to demagogues who can almost rein in or goad the dêmos. But the Founders sought to make American government immune to Athenian-style craziness through a system of checks and balances that vented popular frenzies without a great deal of damage.

In a column for the Foundation for Economic Education, Professor Gary Galles explains the difference between liberty and democracy.

…far too little attention seems to be given to the differences between democracy—the process by which we select members of government—and liberty—the key to good government. …our Constitution and Bill of Rights…put some things beyond majority determination… Unfortunately, democracy…is entirely consistent with choices that destroy liberty…the growing reach of government makes our exercise of democracy an increasing threat to liberty, defending that liberty requires understanding the limits of democratic determination.

George Will, citing the work of Professor Randy Barnett, explains that the fight is – or should be – between statist majoritarians and libertarian constitutionalists.

Regarding jurisprudence, Democrats are merely results-oriented, interested in…expanding government’s power… Republicans…have grown lazily comfortable with rhetorical boilerplate in praise of “judicial restraint.” …all progressives are Hobbesians in that they say America is dedicated to a process — majoritarian decision-making that legitimates the government power it endorses. Not all Lockeans are libertarians, but all libertarians are Lockeans in that they say America is dedicated to a condition — liberty. …Lockeans favor rigorous judicial protection of certain individual rights — especially private property and freedom of contract — that define and protect the zone of sovereignty within which people are free to act as they please. Hobbesians say the American principle is the right of the majority to have its way. …Lockeans say the Constitution, properly construed and enforced by the judiciary, circumscribes the majoritarian principle by protecting all rights that are crucial to individual sovereignty. …Barnett says, yes, the Constitution — “the law that governs those who govern us” — is libertarian. And a Lockean president would nominate justices who would capaciously define and vigorously defend, against abuses by majoritarian government.

You don’t have to be a Randian to heartily endorse and embrace this sentiment (h/t: Libertarian Reddit).

The most cogent warning about majoritarianism comes from the great Thomas Sowell.

To emphasize the dangers of majoritarianism, I’ll close by simply citing Brazil in the past and Venezuela today.

P.S. Though I must admit that the Swiss are an example of how majoritarianism can lead to good outcomes.

P.P.S. I strongly encourage you to read what Walter Williams wrote on this topic.

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It’s not easy being a libertarian. Thanks to senseless and harmful government policies, you run the risk of being perpetually outraged.

Well, we have some good news about that final example.

In a unanimous decision, the Supreme Court has chipped away at the odious practice of civil asset forfeiture.

Professor Ilya Somin, from George Mason University’s Law School, explains the legal issues.

The decision is potentially a major victory for property rights and civil liberties. The key questions before the Court are whether the Excessive Fines Clause of the Eighth Amendment is “incorporated” against state governments and, if so, whether at least some state civil asset forfeitures violate the Clause. The justices answered both questions with a unanimous and emphatic “yes.” As a result, the ruling could help curb abusive asset forfeitures, which enable law enforcement agencies to seize property that they suspect might have been used in a crime – including in many cases where the owner has never been convicted of anything, or even charged. Abusive forfeitures are a a widespread problem that often victimizes innocent people and particularly harms the poor. …the Court…previously ruled that the Fourteenth Amendment incorporates nearly all of the rest of the Bill of Rights against the states, including the Excessive Bail and Cruel and Unusual Punishment Clauses of the very same amendment. Justice Ruth Bader Ginsburg’s majority opinion offers a good explanation of why incorporation of the Clause is easily justified under the Court’s precedents.

This morning, the Wall Street Journal opined favorably on the ruling.

Police and prosecutors around America have long used asset forfeiture as a cash cow, but a unanimous Supreme Court ruling Wednesday should make them think twice. The Bill of Rights keeps paying dividends even after 228 years. …Justices left and right agree. In her opinion for the Court, Justice Ruth Bader Ginsburg held that the safeguard on excessive fines, quoting earlier cases, is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” …the Court’s ruling in Timbs v. Indiana puts states and cities on notice. Some police departments have set annual targets for asset seizures, and a limiting legal principle has been nowhere to be found. During oral argument, Indiana’s solicitor general said that if a driver in a Ferrari was going five miles over the speed limit, that could be grounds for police to take the car. …defendants trying to protect their property against unjust state seizure will now have the Constitution firmly on their side.

While this decision is good news, let’s not get too excited.

What we really need is for the Supreme Court to rule that the entire practice of civil asset forfeiture is unconstitutional.

Unlike criminal asset forfeiture, there’s no finding of illegal behavior in cases of civil asset forfeiture. Indeed, in many cases, the government steals the property of people who aren’t even charged with a crime!

That’s why it is so outrageous and immoral.

Here’s a short video on the topic from the Institute for Justice (which, incidentally, deserves credit for the victory at the Supreme Court).

P.S. It’s worth noting that the first two people to lead the Justice Department’s asset forfeiture division have repented their sins and say the racket should be ended. Too bad Trump is on the wrong side.

P.P.S. Given the human misery it has caused, we shouldn’t laugh about asset forfeiture, but this bit of humor is very entertaining.

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One of the interesting games in Washington is deciding who on the right (however defined) is a “Trumpie” and who is a “Reaganite.”

Here are a few indicators.

But, given the huge gap in their views, trade is probably the biggest way of separating the Trumpies from the Reaganites.

And if you want a clear dividing line for Members of Congress, just see whether they support the “Reciprocal Trade Act” or the “Congressional Trade Authority Act.”

The former is sponsored by Congressman Sean Duffy of Wisconsin and would empower Trump to impose more taxes on trade.

Bryan Riley of the National Taxpayers Union is wisely skeptical.

…treating our trading partners as allies rather than adversaries has paid enormous dividends for Americans. Just since 1990, world tariffs fell by nearly two-thirds as U.S. exports more than doubled, even after adjusting for inflation. …The Reciprocal Trade Act would turn this successful approach to trade on its head. …proponents who endorse this approach often argue that tariff reciprocity is needed to as a lever to reduce foreign trade barriers. But the White House’s own case studies show this is untrue. …Trump wants to replace a successful post-World War II policy based on the understanding that trade is win-win with one that is likely to encourage foreign governments to retaliate against Americans. …History shows trade policy is more likely to succeed if it is based on the Golden Rule instead of on hostile eye-for-an eye reciprocity. It turns out that the United States benefits when we treat our trading partners the way we would like them to treat us. …Princeton University’s Robert Keohane described how countries benefit from this “sequential reciprocity”… The goal of the Trump administration’s trade policy should be to promote reciprocal trade, not reciprocal taxes.

Here’s a chart from Bryan’s study that shows how trade liberalization in recent decades has been very successful.

In an article for National Interest, Clark Packard also pours cold water on the Reciprocal Trade Act.

The United States Reciprocal Trade Act, which will soon be introduced by Rep. Sean Duffy (R-Wis.), would expand the president’s already enormous unilateral authority to impose tariffs and other import restrictions. …the Reciprocal Trade Act would grant the president the authority to match the tariff applied to any given product by a trading partner. To use one of the administration’s favorite examples, the Europe Union applies a 10 percent tariff on imported automobiles, while the United States levies a 2.5 percent tariff on its imports. The Reciprocal Trade Act would allow the president unilaterally to raise the tariff to 10 percent on European cars as leverage for further negotiations.

He lists some of the reasons why the proposed law is bad policy.

The bill is enormously flawed and should be a nonstarter for myriad reasons. …violates U.S. commitments to the WTO’s Most-Favored Nation (MFN) principle of nondiscrimination. …The bill also would violate U.S. commitments under Article II of GATT. …the effect of the law would be that countries would retaliate against American exports and ensnare unrelated industries in a tit-for-tat. …The United States has been successful in getting other countries to lower tariffs and other trade barriers through negotiations. …the Reciprocal Trade Act would jeopardize this American-led system that has paid enormous dividends.

All of his points are accurate, though I don’t expect the president’s supporters would care about violating WTO obligations since they presumably would cheer if Trump pulled the U.S. out of the the agreement – even though it has been very beneficial for the United States.

Now let’s look at the Congressional Trade Authority Act, which would restrict rather than expand the ability of the executive branch to impose higher taxes on trade.

Adam Brandon of FreedomWorks explains the principles at stake.

…the Bicameral Congressional Trade Authority Act would ensure that all tariffs imposed by the executive branch in the name of national security must first be approved by Congress. Article I, Section 8 of the Constitution establishes that Congress “shall have the power to lay and collect taxes, duties, imposts, and excises.” The framers, in their wisdom, made this the very first power they delegated specifically to the legislative branch of the United States. Tariffs are taxes, and they adversely impact American consumers. Such measures should be enacted only after thoughtful debate by the elected representatives most accountable to the people of the United States. They should not be handed down unilaterally from the White House. …it’s time for Congress to reclaim their enumerated Article I power over trade. …FreedomWorks agrees with Rep. Gallagher and Sen. Toomey on the need to respect our Constitution and ensure Congress has full control over its Article I authority.

The Wall Street Journal opines favorably about Senator Toomey’s legislation.

…some on Capitol Hill are trying again to rein in the President’s tariff powers. …the Pennsylvania Republican…Mr. Toomey’s bill would require Congress’s blessing. Once a tariff is proposed, lawmakers have 60 days to pass a privileged resolution—no Senate filibuster to block consideration—authorizing it. No approval, no tariff.This is a serious reassertion of the Article I trade powers that Congress has long shirked. Since the bill is retroactive, President Trump would have to convince Congress that his tariffs on steel and aluminum are necessary. If lawmakers didn’t agree, the tariffs would end. …But that’s not all. The Commerce Secretary is now responsible for declaring that an import endangers national security. This bill would give the task, sensibly, to the Defense Secretary.

I like what Senator Toomey is trying to achieve. And I like it, not only because I don’t want politicians interfering with trade, but also because I support the Constitution.

America’s Founders deliberately set up a system based on Separation of Powers because they understood that unilateral power was a recipe for government abuse.

Interestingly, many Trumpies also claim to support the Constitution. Indeed, they are some of the biggest critics of the “administrative state,” which developed as federal agencies began to exercise legislative powers.

Which gives me an opportunity to contribute something to this discussion. I’m a great admirer of the American Enterprise Institute’s Mark Perry, in part because of his very clever hypocrisy-exposing Venn Diagrams (taxation and incentives, the War on Drugs, minimum wage, Food and Drug Administration, and consenting adults).

So, in hopes of showing Trumpies the error of their ways, here’s my humble attempt to copy Mark.

P.S. Even though open trade is very beneficial for American prosperity, I would not want a future president to assert unilateral power to eliminate tariffs. Yes, I want better policy, but I also support the Constitution and the rule of law.

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