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Archive for the ‘Constitution’ Category

It sounds arcane and pedantic, but the United States has a democratic system of government but is not (or at least was not) designed to be a democracy.

A democracy implies that 51 percent of the people have the power to elect a government with unlimited powers to exploit 49 percent of the people.

The United States instead is a constitutional republic. That means very clear limits on the power of government. And very clear limits, as George Will has properly explained and E.J. Dionne never learned, on democracy.

The bad news is that constitutional limits on the size and power of government have been eroding. The drift in the wrong direction began with Woodrow Wilson and the so-called progressives, accelerated during the New Deal (ratified by the horrible Supreme Court decision in Wickard v. Filburn), and has intermittently continued in the post-World War II era.

The laughable news (in a sad way) is that some politicians are willing to openly display their ignorance on these matters.

The Washington Examiner reports on (what has to be) the year’s most remarkable example of historical and legal illiteracy.

A House Democrat said Wednesday that it “really bothers me” when people claim the U.S. Constitution was designed to limit the federal government’s power. …Rep. Jerrold Nadler, D-N.Y., said the founding document of the U.S. was designed for the “opposite” purpose. …”The Constitution was enacted to strengthen government power to enable central government to lay taxes and to function effectively…” said Nadler.

Wow.

Talk about claiming that night is day and up is down.

Let’s look at the actual document. Article II of the Constitution makes the President the nation’s Commander-in-Chief, which obviously is important, but otherwise limits the office to an administrator role.

All law-making power is granted to Congress.

And if you read Article 1 of the Constitution, specifically the enumerated powers in Section 8, you’ll see the areas where Congress has the right to make laws. You get a very clear view that the Founding Fathers wanted very firm limits on the central government.

Those “enumerated powers” include fewer than 20 specific items, such as “coin money” and “maintain a navy.”

There’s nothing in there about a Department of Housing and Urban Development. Nothing about Medicaid.

And, notwithstanding the elastic anti-constitutional gymnastics of Chief Justice John Roberts, nothing about mandating the purchase of government-approved health insurance.

To be fair, there’s a tiny sliver of truth to Congressman Nadler’s argument.

Compared to the Articles of Confederation (in effect from 1781-1789), the Constitution did give more power to the central government.

But that simply meant that the central government had a very small amount of power compared to a tiny amount of power.

Since I’m a thoughtful and helpful guy, here’s something I created to help Congressman Nadler understand constitutional restraints on the power of government.

This is just a back-of-the-envelope estimate, so I openly admit that I don’t know where to place the current system on this spectrum. We’ve unfortunately traveled a long way on the path to untrammeled majoritarianism in the United States. But voters and politicians haven’t chosen to translate their ability into an all-powerful central government.

In other words, majoritarianism can lead to pervasive statism (i.e., voluntarily electing a communist or fascist government).

But there also are majoritarian systems such as Switzerland where people vote to limit government.

Likewise, monarchies can be benign, such as in the United Kingdom or the Netherlands. Or they can be forms of absolute rule akin to communism and fascism.

For purposes of today’s discussion, though, all that really matters is that both the Articles of Confederation and the Constitution were explicitly designed to limit the powers of the central government.

And while it may upset people in Washington, that means the federal government should be much smaller than it is today. Not only fewer departments, agencies, and programs, but also no involvement in underwear, college football, Major League Baseball, condoms, birth control, or the National Football League.

P.S. Yes, the 16th Amendment (sadly) gave Congress broad powers to tax, but that’s not the same as giving the federal government broad powers to spend.

P.P.S. Republicans have actually endorsed language implying that most of the federal government should be dismantled. I wish they were serious.

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The Constitution and Bill of Rights exist to protect our civil liberties from government. And that’s true whether the attack on our rights is legislative or bureaucratic. For instance:

  • Our 1st Amendment rights to participate in the political process are – or at least should be – inviolate, even if some politicians think they can magically legislate away our rights to political speech.
  • Our 2nd Amendment right to keep and bear arms is – or at least should be – inviolate, even though many politicians want to curtail our ability to defend ourselves.
  • Our 4th Amendment right to block the government from spying on us without a search warrant is – or at least should be – inviolate, even though it has been unfortunately narrowed.
  • Our 5th Amendment rights against the government taking our life, liberty, and property without due process are – or at least should be – inviolate, notwithstanding politicians who want more power for government.

As a lawyer, Hillary Clinton should these simple facts about the Bill of Rights.

But if this tweet is any indication, she must have slept through those lectures while at law school.

Yup, her position is that you lose your constitutional rights if some bureaucrat puts you on a secret list. Sort of like the Department of PreCrime from Minority Report.

If you wonder why this matters, check out Congressman Trey Gowdy’s brilliant evisceration of one of Obama’s political appointees.

Though it’s important to note that this isn’t – or shouldn’t be – a partisan or ideological issue. There are some honest folks on the left who very much support the right to due process and are very critical of the White House’s agenda.

For what it’s worth, at least some pro-gun control politicians admit that the Constitution is an obstacle.

As reported by the Washington Examiner, Senator Manchin of West Virginia is honest about his desire to run roughshod over the Bill of Rights.

Sen. Joe Manchin, D-W.Va., said Thursday that due process is one of the “big problems” standing in the way of lawmakers passing legislation that would keep suspected terrorists from purchasing firearms, and argued that the Fifth Amendment is “killing us right now.” “The problem we have, and really the firewall we have right now, is due process. It’s all due process,” he said Thursday on MSNBC’s “Morning Joe.”

Then again, if Hillary and her supporters think that merely being a suspect of wrongdoing is sufficient to take away people’s rights, then perhaps this sarcastic response to Mrs. Clinton should be a serious proposal.

By the way, the Orlando terrorist apparently wasn’t on the no-fly list, according to Bloomberg, so Obama, Clinton, and others don’t even have a factual basis for this latest assault on the Bill of Rights.

Interestingly, the White House admitted late last year that no mass shootings would have been stopped by any of the Administration’s anti-gun proposals, and it appears that is still the case today.

Now let’s look at the practical case against more gun control, especially with regards to the campaign against so-called assault weapons (which, other than some cosmetic features, are the same as traditional rifles).

John Lott and Larry Correia already have produced very powerful evidence in defense of these weapons.

Now here’s a video on the topic from a former Navy Seal.

The Wall Street Journal also is appropriately dismissive of calls for additional gun control.

Hillary Clinton and other Democrats have called for reinstating Bill Clinton’s ban on “assault weapons.” If her version works as well as her husband’s did, the terrorists will have won. From 1994 to 2002 Congress barred the sale of 18 types of rifles and shotguns that had “military style” attributes. This definition was purely political…the ban had a negligible impact on gun crime. So-called assault rifles accounted for about 2% of gun crimes prior to the ban, and the percentage of murders committed with rifles today (2% in 2014) is less than the 3% in the last year of the ban. …numerous studies, including one commissioned by the Department of Justice, …found no link to the ban and reduced crime.

For what it’s worth, places with lots of gun control (such as Europe) don’t get good results.

The media this week are full of stories about gun-death rates, without bothering to note that most of the surge is occurring in cities like Chicago that have the strictest gun laws. …As for stopping terrorism, California is among the states that continued to ban assault weapons after the federal version expired. But that didn’t stop the San Bernardino killers, who used modified rifles that violated the law. France’s strict gun laws also didn’t stop the Paris assailants.

Also writing for the Wall Street Journal, a lawyer from Florida, Ms. Ashley Lukis, is understandably irked by those who want to use terrorism as an excuse for gun control.

Instead of blaming the perverse militants who have formed a “caliphate” in Iraq and Syria, who are burning people alive, who are raping and murdering women and children, and who are engaging in an aggressive global propaganda campaign to encourage precisely the murderous behavior that we saw in Orlando, in San Bernardino, in Brussels and in Paris—many Americans are attacking other law-abiding citizens who happen to hold a different interpretation of the Constitution. …We are dealing with terrorism. We are talking about evil individuals who will happily strap bombs to their bodies or hijack a commercial airliner or set off homemade explosives in the middle of a crowded street. And the best solution you can come up with is domestic gun control? …The solution to terrorism is not to pass imperfect laws that will palliate the masses until next time. Nor is the solution to look inward, to make speeches, to tweet about your grief or start a hashtag. The solution to terrorism is not to blame the gun lobby.

Amen.

But let’s not stop there, because there are some people who deserve to be blamed.

Kevin Williamson’s National Review column is must reading. He starts by dismissing the left’s proposals.

The Democrats’…proposal — having police agencies compile secret lists of possible subversives and revoking their legal rights with nothing resembling due process — is plainly unconstitutional, and wouldn’t withstand five minutes’ legal examination. …they’re talking about: keeping a list of people who have been identified by police agencies as possible threats, but who never have been charged with, much less convicted of, any crime, and rescinding their ordinary constitutional rights without so much as a court hearing. We cannot prohibit people from buying guns with no due process for the same reason we cannot subject them to arbitrary incarceration or hunt them for sport. …Study after study after study has shown that the assault-weapon ban had zero effect on violent crime when it was in effect, and it almost certainly wouldn’t have one now, either. …Democrats keep saying that they don’t want to take away our guns, but that is, in fact, what this policy would demand.

But what we can do – but don’t – is actually enforce existing laws.

Such as those against “straw buyers.”

These cases are lots of work and generally don’t ensnare big-time criminals, but rather the idiot nephews, girlfriends, and grandmothers of big-time criminals. Putting those people in federal penitentiaries for ten years isn’t going to win anybody any friends. But they are the people who render our current background-check laws ineffective against the criminals who have turned parts of Chicago into a free-fire zone. Putting a few dozen of them away for a few dozen years might provide a strong disincentive for other would-be straw buyers, particularly those who (as is not uncommon) engage in straw buying as a commercial endeavor.

Or when the government botches the background check.

In tens of thousands of cases each year, the FBI discovers, after the fact, that the sale should not have proceeded. At this point, it issues an alert to the ATF, which in most cases then . . . does nothing at all. In a study of the 2000 data, there were about 45,000 sales that the FBI wrongly allowed to proceed, and in about 38,000 of those cases, no effort was made to recover the firearm. …Picking up wrongly sold guns isn’t that big a chore. In fact, since most of these prohibited buyers have committed a serious crime in buying a gun (though many of them may not have known it — otherwise, why go to a licensed dealer?) a strongly worded letter (“Return your gun to the dealer or go to federal prison”) and a bit of follow-up ought to do the trick.

And that gets us to Kevin’s main point.

The government does a crappy job of stopping bad guys for the simple reason that government does a crappy job of doing anything.

…killers and future killers are on the street committing their crimes because our criminal-justice system, with its vast resources, does not do its job. The police, the prosecutors, the jailers, and the parole-and-probation authorities all must answer for the fact that such a large share of our murders are committed by people already well known to law enforcement. …a fair number of crimes that could be prevented, if the people we pay to prevent them were willing to do the old-fashioned police work necessary: running down criminals, prosecuting unglamorous cases, properly managing parolees. But those jobs are entrusted to government employees, whose unions are irreplaceable benefactors of Democratic political campaigns. …expecting the generously compensated and gorgeously pensioned employees of the public sector to do their goddamned jobs…is, if you’re a scheming, opportunistic lowlife like Chuck Schumer, unthinkable.

Exactly. As Mark Steyn has noted, what’s the point of having a bloated and sclerotic public sector if it doesn’t even do the small handful of things that are legitimate functions of government?

No wonder researchers have found that small government is more efficient.

P.S. In addition to the gentleman cited above, there are other honest folks on the left.

In 2012, I shared some important observations from Jeffrey Goldberg, a left-leaning writer for The Atlantic. In his column, he basically admitted his side was wrong about gun control.

Then, in 2013, I wrote about a column by Justin Cronin in the New York Times. He self-identified as a liberal, but explained how real-world events have led him to become a supporter of private gun ownership.

P.P.S. If you like pro-Second Amendment videos, here’s a great collection.

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I almost feel sorry for the gun-control crowd.

They keep trying to convince themselves that people are on their side, but schemes to restrict the 2nd Amendment keep getting defeated on Capitol Hill.

And when a handful of state governments go against the trend and try to trample on constitutional rights to gun ownership, politicians get tossed out of office and gun owners engage in massive civil disobedience.

Now we get to the icing on the cake.

The New York Times just released polling data showing that a majority of Americans are against banning so-called assault weapons. Look at the bottom line and see how the numbers have dramatically moved in the right direction.

These results are especially remarkable because many non-gun owners probably think “assault weapon” refers to a machine gun.

In reality, the types of guns that some politicians want to ban operate the same as other rifles (one bullet fired when the trigger is pulled), and they’re actually less powerful than ordinary hunting rifles. I imagine if people had that information, support for these weapons would be even higher than what we see in the poll.

Another reason I almost feel sorry for our leftist friends is that they must be going crazy that terrorist attacks and mass shootings aren’t swaying public opinion in their direction.

But they’re underestimating the wisdom of the American people. Most Americans may not have strongly held philosophical views on gun issues, but they’re smart enough to realize that bad people almost certainly will be able to obtains guns, even if they have to do so illegally (as is the case in Europe).

So the net result of gun-free zones and gun control is more danger to the public since evil people will have greater confidence that victims will be disarmed. And that rubs people the wrong way because they’re smart enough to pass the IQ test that causes such angst for our left-wing friends.

Moreover, I think folks are getting tired of the dishonest propaganda from the White House.

Normally the establishment media is a willing co-conspirator with the Administration, but – as you can see from this footage from a White House press briefing (h/t: Michelle Malkin) – one reporter actually committed an act of journalism and the net result is that the White House’s spin doctor was forced to confess that 1) none of Obama’s proposed policies would have stopped a single mass shooter from getting weapons, and 2) not a single mass shooter is on the Administration’s no-fly list or terrorist watch list. Enjoy.

You can tell, by the way, that the White House has done some polling on how to sell its approach, referring over and over again to buzz phrases such as “common sense” and “gun safety.”

Yet if common sense actually guided policy,the Obama Administration would be trying to make it easier for law-abiding people to get guns.

Now let’s look at another video.

You may remember that I wrote last week about the White House’s attempt to deny 2nd-amendment rights to people who get unilaterally placed on the no-fly list without any due process legal rights.

Well, that topic came up at a hearing held by the House Committee on Oversight and Government Reform. Congressman Trey Gowdy took the opportunity to ask one of Obama’s appointees whether they intend to preemptively infringe on other freedoms in the Bill of Rights.

On one level, this video is very amusing. The Obama official is like a deer in the headlights and eventually confesses that she doesn’t have an answer.

But if you think about the issue more deeply, it’s really worrisome that we have a president and an administration that treat the Constitution and Bill of Rights as something that can be cavalierly discarded whenever there’s a conflicting short-term political objective.

Makes me think the humorous image I shared back in 2012 wasn’t a joke after all.

So let’s make something completely clear. The 5th Amendment constitutionally guarantees that American citizens can’t be deprived of their rights in the absence of some sort of legal process.

Which is precisely the point that Congressman Gowdy was making. The Obama Administration wants to preemptively curtail 2nd Amendment freedoms based on the arbitrary whims of bureaucrats.

Here’s the relevant language.

So the bottom line is that the White House is so ideologically rigid on guns that it is willing to run roughshod over the Constitution even though it admits that its gun control proposals would not have stopped a single mass shooter.

But I guess you have to give them credit for being consistent.

Though I guess this is where I confess to once again feeling sorry for statists. Imagine having to defend this approach!

Let’s close with some humor.

Here’s a very clever video featuring a burglar’s perspective on gun control.

P.S. Here’s my collection of other humorous videos mocking the gun grabbers.

P.P.S. Last but not least, I’ll share an amusing joke.

Participating in a gun buy-back program because you think that criminals have too many guns is like having yourself castrated because you think your neighbors have too many kids.

And if you want even more gun control humor, click here.

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In 2012, I shared some important observations from Jeffrey Goldberg, a left-leaning writer for The Atlantic. In his column, he basically admitted his side was wrong about gun control.

Then, in 2013, I wrote about a column by Justin Cronin in the New York Times. He self-identified as a liberal, but explained how real-world events have led him to become a supporter of private gun ownership.

Kudos to both gentlemen for putting accuracy ahead of ideology (just like I applauded the honest liberal who wrote how government programs subsidize dependency).

Well, we can add another person to our list of honest liberals. Jamelle Bouie, chief political correspondent for Slate, just authored a piece that says it is downright silly to fixate on so-called assault weapons and to try to deny people their 2nd-Amendment rights based on the TSA’s no-fly list.

Although well-meaning—supporters genuinely want to keep military-style weapons “off the streets” and guns out of the hands of suspected threats—both measures are wrongheaded.

Here’s some of what he wrote about scary-looking rifles.

 assault weapons—there’s no official definition for the term, which makes identifying them for prohibition difficult, if not impossible—are scary to many Americans, especially with their presence in high-profile shootings like the massacre at Sandy Hook Elementary in Newtown, Connecticut, or the theater killings in Aurora, Colorado. But out of 73 mass killers from 1982 to 2015, just 25 used rifles of any kind, including military-style weapons. Most used revolvers, shotguns, and semi-automatic handguns. Which gets to a related point: We might feel safer if we ban “assault weapons,” but we won’t be safer. Of the 43,000 Americans killed with guns since 2010, just a fraction—3.5 percent—were killed with rifles.

Mr. Bouie points out that almost all murders are with handguns, but – to his credit – he says you can’t try to confiscate those weapons because “A ban would be unconstitutional.”

He then addresses the use of the no-fly list as a means of imposing gun control.

…civil libertarians—and liberals, at least during the Bush administration—think it’s constitutionally dubious. They’re right. …If you’re on these lists, you’re presumed guilty until proven innocent, with no due process and little recourse. The list is conceptually flawed, and using it to deny gun ownership is wrong on its face. Add racial and religious profiling to the mix—the people on the list, including Americans, are disproportionately Arab or from Muslim countires—and you have an anti-gun measure with deep disparate impact.

Bouie isn’t actually a supporter of gun rights, as you can see from some of his concluding thoughts, but he at least recognizes that much of what we’re getting from Barack Obama and Hillary Clinton is empty posturing.

The sooner Democrats abandon ineffectual gun control measures, the sooner they can turn their attention to ideas that would actually limit gun accidents, suicides, and murders. …In all of this, however, gun control supporters should keep one fact in mind: The United States is saturated with guns, and barring confiscation or mandatory buybacks, there’s no way to end mass shootings. …You can read that as futility, but it’s not. It’s a recognition of reality and a plea for perspective.

I wonder if “a recognition of reality” is the first step on the path to being libertarian.

By the way, I can’t resist adding my two cents on the topic of Obama wanting to deny constitutional rights to folks who wind up on a list.

I recognize that there are plenty of people who should not be allowed on planes (and since I have to fly a lot, I have an interest in keeping nutjobs on the ground), but government lists leave a lot to be desired.

Consider, for instance, this tidbit from an article in the Washington Free Beacon.

Rep. Stephen Lynch (D., Mass.) disclosed that a congressional investigation recently found that at least 72 people working at DHS also “were on the terrorist watch list.”

Does this mean the federal government is so brain-dead that it has terrorists on the payroll?

Maybe, but another item from an editorial in the New York Times should make us wonder about the quality of these lists.

A 2007 audit found that more than half of the 71,000 names then on the no-fly list were wrongly included.

And I remember several years ago when – on multiple occasions – I wasn’t allowed back in the country until bureaucrats had taken me into windowless room for interrogation.

I never learned why this happened. Was there another Dan Mitchell with a sketchy pattern of behavior? Did the bureaucrats actually target me for unknown reasons?

More important, what if I had bitched and whined during one of these episodes and some spiteful bureaucrat decided to put me on one of the government’s lists?

And most important of all, can any of us trust that President Obama (or perhaps a President Hillary Clinton) wouldn’t misuse and/or expand these lists to arbitrarily deny constitutional rights?

By the way, Reason exposes some dishonest and hypocritical leftists.

Even though the ACLU opposes the no-fly list—and is suing the federal government for violating the due process rights of several people on it—the civil liberties advocacy group is theoretically okay with depriving people on the list of their gun rights.

But I’m digressing. Today’s topic is supposed to be how some honest liberals acknowledge the silliness of gun control efforts.

P.S. Let’s close with some good news on guns. It’s from a liberal who is reflexively hostile to the 2nd Amendment, but is quasi honest in that she’s willing to discuss polling data she dislikes.

Here’s some of what Catherine Rampell wrote in the Washington Post.

…millennials seem to have neither the desire nor the willpower to pressure our political leaders… Which does not bode well for liberals hoping that the arc of history will eventually bend toward greater gun control. …statements about protecting gun rights generally elicit at least as much support from younger Americans as from older ones. …This is a bit puzzling, given that younger Americans are less Republican in their political leanings than older people are and are also less likely to own a gun — two factors that are usually strong predictors of opposition to gun restrictions. These survey data suggest, then, that younger people might be especially predisposed to oppose gun-control measures, after controlling for these variables. …for the most part, young people reveal themselves to be at least as pro-gun-rights as their elders, if not more so.

I’m a skeptic of polling on this issue, largely because the questions often seem designed to elicit pro-gun control answers.

That being said, it’s good to see young people being more rational. Particularly since – as explained in this video – millennials have been at times hopelessly naive about the downside of bigger government.

P.P.S. If you want good news about public opinion and gun rights, click here, here, and here.

P.P.P.S. The best polls are the ones on election days.

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I feel compelled to comment on the Supreme Court’s latest Obamacare decision, though I could sum up my reaction with one word: disgust.

  • I’m disgusted that we had politicians who decided in 2009 and 2010 to further screw up the healthcare system with Obamacare.
  • I’m disgusted the IRS then decided to arbitrarily change the law in order to provide subsidies to people getting insurance through the federal exchange, even though the law explicitly says those handouts were only supposed to go to those getting policies through state exchanges (as the oily Jonathan Gruber openly admitted).
  • I’m disgusted that the lawyers at the Justice Department and the Office of White House Counsel didn’t have the integrity to say that handouts could only be given to people using state exchanges.
  • But most of all, I’m disgusted that the Supreme Court once again has decided to put politics above the Constitution.

In theory, the courts play a valuable role in America’s separation-of-powers system. They supposedly protect our freedoms from majoritarianism. And they ostensibly preserve our system of checks and balances by preventing other branches of the federal government from exceeding their powers.

To be sure, the courts – including and especially the Supreme Court – have not done a good job in some areas. Ever since the 1930s, for instance, they’ve completely failed to limit the federal government to the enumerated powers in Article 1, Section 8, of the Constitution.

The Supreme Court’s first Obamacare decision back in 2012 then took that negligence to a higher level.

Now we have a second Obamacare decision. And this one may be even more outrageous because the Supreme Court decided to act as a pseudo-legislature by arbitrarily re-writing Obamacare.

Here’s what George Will wrote about the decision.

The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally. …The decision also resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scalia, dissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging. …Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences. We are, says William R. Maurer of the Institute for Justice, becoming “a country in which all the branches of government work in tandem to achieve policy outcomes, instead of checking one another to protect individual rights.

Here’s the bottom line, from Will’s perspective.

The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power.

Here’s how my Cato colleagues reacted, starting with Michael Cannon, our healthcare expert whose heroic efforts at least got the case to the Supreme Court.

…the Supreme Court allowed itself to be intimidated. …the Court rewrote ObamaCare to save it—again. In doing so, the Court has sent a dangerous message to future administrations… The Court today validated President Obama’s massive power grab, allowing him to tax, borrow, and spend $700 billion that no Congress ever authorized. This establishes a precedent that could let any president modify, amend, or suspend any enacted law at his or her whim.

Now let’s look at the responses of two of Cato’s constitutional scholars. Roger Pilon is less than impressed, explaining that the Roberts’ decision is a bizarre combination of improper deference and imprudent activism.

With Chief Justice Roberts’s opinion for the Court, therefore, we have a perverse blend of the opposing positions of the judicial restraint and activist schools that reigned a few decades ago. To a fault, the Court today is deferential to the political branches, much as conservatives in the mold of Alexander Bickel and Robert Bork urged, against the activism of the Warren and Burger Courts. But its deference manifests itself in the liberal activism of a Justice Brennan, rewriting the law to save Congress from itself. As Scalia writes, “the Court forgets that ours is a government of laws and not of men.”

And Ilya Shapiro also unloads on this horrible decision.

Chief Justice Roberts…admits, as he did three years ago in the individual-mandate case, that those challenging the administration are correct on the law. Nevertheless, again as he did before, Roberts contorts himself to eviscerate that “natural meaning” and rewrite Congress’s inartfully concocted scheme, this time such that “exchange established by the state” means “any old exchange.” Scalia rightly calls this novel interpretation “absurd.” …as Justice Scalia put it, “normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.” …like three years ago, we have a horrendous bit of word play that violates all applicable canons of statutory interpretation to preserve the operation of a unpopular program that has done untold damage to the economy and health care system.

Now I’ll add my two cents, at least above and beyond expressing disgust. But I won’t comment on the legal issues since that’s not my area of expertise.

Instead I’ll have a semi-optimistic spin. I wrote in 2013 that we should be optimistic about repealing Obamacare and fixing the government-caused dysfunctionalism (I don’t think that’s a word, but it nonetheless seems appropriate) of our healthcare system.

This latest decision from the Supreme Court, while disappointing, doesn’t change a single word of what I wrote two years ago.

P.S. Since today’s topic (other than my conclusion) was very depressing, let’s close by looking at something cheerful.

I’ve commented before that America has a big advantage over Europe because of a greater belief in self-reliance and a greater suspicion of big government.

Well, now we have further evidence. Here’s some polling data from AEI’s most recent Political Report. As you can see, there’s a much stronger belief in self-sufficiency in the United States than there is in either Germany or Italy.

Polling data like this is yet another sign of America’s superior social capital.

And so long as Americans continue to value freedom over dependency, then there’s a chance of fixing the mess in Washington. Not just Obamacare, but the entire decrepit welfare state.

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If you want to go to a Presbyterian church instead of a Baptist church, should the government be able to interfere with that choice? Even if, for some bizarre reason, 95 percent of the population doesn’t like Presbyterians?

If you want to march up and down the sidewalk in front of City Hall with a sign that says the Mayor is an idiot, should the government be able to throw you in jail? Even if 95 percent of the population somehow has decided the Mayor is a genius?

Most Americans instinctively understand that the answer to all these question is no. Not just no, a big emphatic NO!

That’s because certain rights are guaranteed by our Constitution, regardless of whether an overwhelming majority of our fellow citizens feel otherwise.

And that’s what makes us a republic rather than a democracy.

But the bad news is that many of our rights in the Constitution no longer are protected.

For instance, Article I, Section 8, specifically enumerates (what are supposed to be) the very limited powers of Congress.

Our Founding Fathers thought it was okay for Congress to have the power to create courts, to coin money, to fund an army, and to have the authority to do a few other things.

But here are some things that are not on that list of enumerated powers (and certainly not included in the list of presidential powers either):

And the list could go on for several pages. The point is that the entire modern Washington-based welfare state, with all its redistribution and so-called social insurance, is inconsistent with the limited-government republic created by America’s Founders.

These programs exist today because the Supreme Court put ideology above the Constitution during the New Deal and, at least in the economic sphere, turned the nation from a constitutional republic into a democracy based on unconstrained majoritarianism.

Here’s some of Walter Williams wrote on the topic.

Like the founders of our nation, I find democracy and majority rule a contemptible form of government. …James Madison, in Federalist Paper No. 10, said that in a pure democracy, “there is nothing to check the inducement to sacrifice the weaker party or the obnoxious individual.” …John Adams said, “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There was never a democracy yet that did not commit suicide.” …The word “democracy” appears nowhere in the two most fundamental documents of our nation — the Declaration of Independence and the U.S. Constitution. …the Constitution’s First Amendment doesn’t say Congress shall grant us freedom of speech, the press and religion. It says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” …In a democracy, the majority rules either directly or through its elected representatives. …Laws do not represent reason. They represent force. The restraint is upon the individual instead of government. Unlike that envisioned under a republican form of government, rights are seen as privileges and permissions that are granted by government and can be rescinded by government. …ask yourself how many decisions in your life would you like to be made democratically. How about what car you drive, where you live, whom you marry, whether you have turkey or ham for Thanksgiving dinner?

And click here for a video that explains in greater detail why majoritarianism is a bad idea.

But perhaps these cartoons will make it even easier to understand why 51 percent of the population shouldn’t be allowed to rape and pillage 49 percent of the population.

We’ll start with this depiction of modern elections, which was featured on a friend’s Facebook page.

And here’s one that I’ve shared before.

It highlights the dangers of majoritarianism, particularly if you happen to be a minority.

P.S. George Will has explained that the Supreme Court’s job is to protect Americans from democracy.

P.P.S. Here’s more analysis of the issue from Walter Williams.

P.P.P.S. Some leftists are totally oblivious about America’s system of government.

P.P.P.P.S. Though Republicans also don’t really understand what the Constitution requires.

P.P.P.P.P.S. Looking at the mess in the Middle East, I’ve argued we would be in much better shape if we promoted liberty instead of democracy.

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If I had to pick a government policy that would be most upsetting to our Founding Fathers, I’d be tempted to pick the income tax. Or maybe some useless agency, such as the Department of Housing and Urban Development.

After all, surely the Founders didn’t envision – or want – today’s Leviathan government in Washington.

But I also know I’m biased since I work on fiscal policy issues.

So upon further reflection, I think the policy that would be most horrifying to the Founding Fathers is so-called civil asset forfeiture, a.k.a., theft by government.

You may think I’m joking or exaggerating, but theft is the right word when you look at how citizens (such as the Dehko family and Lyndon McClellan) have had their bank accounts seized even though they were never even charged with a crime, much less ever committed a crime.

And now we have a new example that would have the Founders rolling in their graves, but also should get every decent person angry.

Reason has a report with the odious details.

…the Drug Enforcement Administration (DEA), is snatching the life savings of a young black male for the crime of being alone on a train. The man, Joseph Rivers, 22, was traveling from Michigan to Los Angeles by train with $18,000 in cash to pay for a music video. In Albuquerque, DEA agents boarded the train and started asking people questions. They got to Rivers, who told him he was going to shoot a music video and agreed to let them search his stuff.

Now put yourself in the mind of Mr. Rivers. You’re not committing a crime. You’re not in possession of any drugs or other illicit substances.

Agents ask to search your stuff as part of their snooping on the train and you figure being cooperative is the best way of allaying suspicion (regardless of whether the DEA used profiling).

And what’s your reward for being cooperative?

The Reason report then shares some very ugly passages from a story in the Albuquerque Journal.

Rivers was the only passenger singled out for a search by DEA agents – and the only black person on his portion of the train… In one of the bags, the agent found the cash, still in the Michigan bank envelope.

Mr. Rivers explained why he had the money, but it didn’t do any good.

“I even allowed him to call my mother, a military veteran and (hospital) coordinator, to corroborate my story,” Rivers said. “Even with all of this, the officers decided to take my money because he stated that he believed that the money was involved in some type of narcotic activity.” Rivers was left penniless.

Here’s perhaps the most disturbing part of the story is the way government bureaucrats openly admit that they can take money without any criminal charges, much less a conviction for any crime.

“We don’t have to prove that the person is guilty,” Waite said. “It’s that the money is presumed to be guilty.”

Just imagine how the Founding Fathers, if they were still around, would react to the statements of this bureaucrat?

Imagine what they would think of a policy that gave bureaucrats arbitrary powers to take money from citizens?

By the way, I’m not asking these rhetorical questions because I have some inside knowledge that Mr. Rivers is a stand-up guy. Maybe his story was fake and he actually was going to buy illegal drugs.

So what?

I’m tempted to point out at this point the foolishness of the Drug War, but that’s the point I want to make today. Heck, we can assume he had $18,000 because he intended to commit a real crime. Perhaps he was going to pay a hit man to kill someone.

At the risk of being repetitive, so what?

Our Constitution was set up to constrain the powers of government and protect citizens from abuse by government. We have a 4th Amendment to protect us from unreasonable search and seizure and we have the presumption of innocence so that we can’t be punished unless that’s the outcome of a proper legal proceeding.

Needless to say, allowing agents to steal money from train passengers is not what the Founding Fathers had in mind.

In a just society, there shouldn’t be shortcuts which trample people’s rights. Real police work should be used to amass evidence of real crimes, which then should be used in real courts where a jury can decide on guilt.

Let’s close with a few more passages from the Albuquerque story.

Rivers, 22, wasn’t detained and has not been charged with any crime since his money was taken last month. That doesn’t matter. Under a federal law enforcement tool called civil asset forfeiture, he need never be arrested or convicted of a crime for the government to take away his cash, cars or property – and keep it. Agencies like the DEA can confiscate money or property if they have a hunch, a suspicion, a notion that maybe, possibly, perhaps the items are connected with narcotics. Or something else illegal.Or maybe the fact that the person holding a bunch of cash is a young black man is good enough. …Meanwhile, Rivers is back in Michigan, dreaming, praying. “He’s handed this over to God,” his attorney said. Which seems infinitely safer than handing over anything further to government agents.

Amen.

I’ll make one final point.

In the absence of some evidence to the contrary, I’m not going to accuse the DEA agents of racial profiling. After all, government agents have stolen money from plenty of white people.

But I strongly suspect there was economic profiling. If Mr. Rivers was a 50-year old white guy in a business suit, the DEA probably wouldn’t have confiscated the money.

That doesn’t mean, by the way, that 50-year old white guys should rest easy. When government bureaucrats get away with stealing money from young people without power and connections, it’s probably just a matter of time before others get victimized as well.

Just keep in mind that slippery slopes are very slippery when government is involved.

P.S. Also keep in mind that asset forfeiture has become such an abusive nightmare that the first two heads of that division of the Justice Department now say the policy should be abolished.

P.P.S. I don’t know what’s riskier, riding trains while black or banking while Russian?

P.P.P.S. On a separate matter, the good people at the Competitive Enterprise Institute periodically measure the overall cost of regulation and red tape on the American economy. Their latest version of Ten Thousand Commandments was just released and it is very depressing reading.

Here are two charts (out of many) from the study. The first looks at the annual cost of federal rules.

The second chart looks at how the regulatory burden has grown over time.

As I said, very depressing. No wonder Santa Claus wasn’t happy with the end-of-year gifts he received last year from the Obama Administration.

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