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Posts Tagged ‘Constitution’

One of the big challenges for libertarians is that we understand “public choice theory.” In other words, we know that people attracted to government will have both the incentive and the power to do bad things, so our quandary is how to give government the authority to provide so-called public goods without sowing the seeds for an oppressive Leviathan state.

Our Founding Fathers thought they solved this problem by drafting and ratifying a constitution that placed firm limits on the power of government. Sadly, that system largely broke down in the 1930s and 1940s as the Supreme Court ceded its role of protecting economic liberty (with John Roberts a few years ago providing the icing on the cake of untrammeled government power).

That’s the bad news.

The good news is that the judicial branch has done a somewhat better job of protecting personal liberty. Indeed, with the courts leading the way on certain issues (such as whether governments can persecute people for being gay), we may even have more personal liberty than the Founders intended.

Speaking of personal liberty, one of the thorniest challenges is that we want government to fight crime, but we also want to make sure that it doesn’t have the power and authority to trample individual rights.

That’s one of the reasons the Founding Fathers gave us a Bill of Rights that protects our right to a speedy trial, protects us from double jeopardy, and gives us the right to remain silent. And the Bill of Rights also protects us by requiring governments to get judicial approval (search warrants) before snooping into out private property. And that’s the focus of today’s column.

And the case study for our discussion will be the way government is seeking to access electronic data without following proper procedures. Veronique de Rugy provides the background in her column for Reason.

The Electronic Communications Privacy Act was passed in 1986, when data storage was considerably more expensive and primitive. At the time, it was not common for data to be kept online for very long. As such, the ECPA considers emails held online by a third party for more than 180 days to be abandoned and thus open to access by law enforcement without a normal warrant. …Now that free online email hosts are commonplace and terabytes of cloud storage are available at little cost, the ECPA is a troubling anachronism. Today’s internet users expect their data to be protected from prying government eyes for as long as they choose to store it.

Amazingly, some politicians actually want to fix this problem.

There is a bill making its way through Congress that attempts to address these issues. It’s the International Communications Privacy Act. The bipartisan bill—introduced by Sens. Orrin Hatch, R-Utah, Chris Coons, D-Del., and Dean Heller, R-Nev.—…would codify into law a simple and clear standard: A warrant should always be required to access private information from a third party. The reforms in the ICPA would move us away from the current ’80s drama. It also seems that the package could even move through Congress during a contentious election season because it safeguards consumer data while also acknowledging that there must be legitimate and accessible law enforcement tools to pursue digital evidence across borders.

By the way, this has become an issue in part because the courts have intervened to slap down overzealous law enforcement in a cross-border investigation,

…the 2nd U.S. Circuit Court of Appeals rebuked the Justice Department after a three-year legal battle with Microsoft, which hosted data for an Irish citizen being pursued by U.S. authorities. The data was being kept in a server located in Ireland, yet the U.S. government insisted it had jurisdiction to demand access just because the company that held it is a subsidiary of Microsoft, an American corporation. …ECPA…provides no authority for access to data held overseas. The government officials most likely made this overreach rather than go through the mutual legal assistance treaty, or MLAT, process—which would have enabled them to work with the appropriate overseas authority—because of the fact that MLAT procedures are also cumbersome and outdated.

The Hatch-Coons-Heller legislation deals with these issues by both requiring warrants but also improving the MLAT process, which is a win-win situation. Innocent people have their rights protected and governments have a better system for investigating potential bad guys.

Which helps to explain why a coalition of taxpayer organizations and free-market groups have embraced the proposed legislation.

The bill contains provisions that would protect the privacy of American citizens, promote cross-border data flow, provide adequate tools for law enforcement, and enhance the nation’s global trade agenda. …S. 2986/H.R. 5323 would require U.S. law enforcement agencies to obtain a warrant for the content of electronic communications stored with electronic communications service providers and remote computing service providers.  The legal framework will allow authorities to obtain the electronic communications of U.S. persons, regardless of where those communications are located.  …S. 2986/H.R. 5323 reforms the MLAT process and provides greater accessibility, transparency, and accountability by requiring the attorney general to create an online docketing system for MLAT requests and publish new statistics on the number of such requests. …ICPA strikes the right balance between the legitimate needs of law enforcement and the privacy of American citizens, while enhancing international agreements.

Having looked at a specific example of how to enable effective law enforcement while also protecting civil liberties, let’s now zoom out and consider the big picture.

One of the problems in our system is that there are too many laws. Not just too many laws, but laws that are capricious and impossible to understand.

This is why Harvey Silverglate wrote Three Felonies a Day to describe how normal, law-abiding people unintentionally commit crimes (that shouldn’t be crimes).

Here’s a video interview from Reason with Mr. Silverglate.

The bottom line is that when you mix capricious and impossible-to-understand laws with capricious and vindictive bureaucrats, you get horrifying examples of government thuggery.

We can start by getting rid of drug laws, anti-money laundering laws, and civil asset forfeiture laws.

Remember, if we want to fight genuine crime, it’s a good idea to have just laws.

P.S. And if we have fewer bad and needless laws, we’ll have less police abuse.

P.P.S. To close on a humorous note, President Obama’s approach to the Bill of Rights leaves much to be desired.

P.P.P.S. In reference to the public-goods/Leviathan-state quandary discussed at the start of this column, the anarcho-capitalists say the solution is to abolish all government and to allow markets to provide public goods. I’m glad there are scholars pushing this idea (and I certainly had lots of interesting discussions about this concept while in grad school), but given what’s been happening over the past 100 years, I doubt this will be a practical option in my lifetime.

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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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Once again, I threw myself on a proverbial grenade. Yes, that means I watched politicians last night as part of the Cato Institute’s live-tweeting about issues that were raised (or not raised) in the CNN Townhall featuring Bernie Sanders and Hillary Clinton.

Although painful, this exercise enabled me to share my thoughts on topics such as corporate inversions, Planned Parenthood, government-run healthcare, Obamanomics, and the morality (or lack thereof) of government-coerced redistribution.

But one issue I neglected was campaign finance, which was an oversight since both Sanders and Clinton made a big deal about the ostensibly corrupting mix of money and politics.

I confess that their arguments were somewhat seductive. After all, corrupt ethanol handouts and the cronyist Export-Import Bank only exist because politicians easily can raise tens of thousands of dollars by voting yes for these boondoggles.

Moreover, a law professor from the University of Minnesota made “The Conservative Case for Campaign-Finance Reform” yesterday in the New York Times. Here’s some of what Richard Painter wrote.

…big money in politics encourages big government. Campaign contributions drive spending on earmarks and other wasteful programs — bridges to nowhere, contracts for equipment the military does not need, solar energy companies that go bankrupt on the government’s dime… When politicians are dependent on campaign money from contractors and lobbyists, they’re incapable of holding spending programs to account. Campaign contributions also breed more regulation. Companies in heavily regulated industries such as banking, health care and energy are among the largest contributors. Such companies donate with the hope of winning narrowly tailored exceptions to regulations that help them and disadvantage their competitors. …conservatives…need to drive the big spenders out of the temples of our democracy.

I have no idea if Mr. Painter actually is a conservative, but he makes a superficially compelling case.

But then I remind myself of a very important point. The sun doesn’t rise because roosters crow. It’s the other way around. What Mr. Painter fails to understand is that there’s a lot of money in politics for the simple reason that government has massive powers to tax, spend, and regulate.

Politicians in Washington every year redistribute more than $4 trillion, so interest groups have an incentive to “invest” money in campaigns so they can get some of that loot. Those politicians have created a 75,000-page tax code that is a Byzantine web of special preferences, so interest groups have an incentive to “invest” money in campaigns so they get favorable treatment. And the politicians also have created a massive regulatory morass, so interest groups have an incentive to “invest” so that red tape can be used to create an unlevel playing field for their advantage.

By the way, I’m not saying that campaign contributions are improper, or even necessarily bad.

After all, political speech (and the money that makes it meaningful) is protected by the 1st Amendment. Moreover, some people give money simply for reasons of self defense. They’re not looking for handouts of favoritism, but rather are giving money in hopes that politicians will leave them alone.

Instead, I’m simply making the point that big government is what encourages unseemly and/or corrupt political contributions.

If I’m allowed to shift to a new metaphor, Sanders and Clinton make the mistake of putting the cart of campaign finance in front of the horse of big government.

There’s a great column in today’s Wall Street Journal on this topic. It’s motivated by corruption scandals in New York, but the lessons apply equally to Washington. Here’s some of what Tom Shanahan wrote.

…whenever a public official is found guilty of wrongdoing, there’s a call for new laws. Logic cannot explain the impulse. …If they’re not obeying the laws we already have, what makes anyone believe new statutes will change that? …a host of “good government” groups, such the New York Public Interest Research Group, proposed making the legislature a “full-time job” by limiting outside income.

Mr. Shanahan suspect these reforms will backfire.

That’s a major problem for limiting the size of government. An analysis of “The Length of Legislative Sessions and the Growth of Government” byMwangi S. Kimenyi and Robert D. Tollison, in a 1995 article in Rationality and Society, demonstrated that the more time Congress spent in session, the more bills were enacted, and the more expensive government grew. …A legislator with other work also has a better understanding of the economic conditions confronting the public than one who subsists on a government check. …Legislators with outside incomes are less susceptible to the pay-to-play temptation of campaign contributions. When your sole source of income is the public office you hold, the incentive is far greater to do anything necessary to get re-elected.

So here’s the bottom line is that there’s no reason to think new laws will reduce corruption. Indeed, more rules will probably lead to more sleaze since politicians will have an even greater incentive to exploit their positions of power.

The people who will get hurt, however, are the ordinary citizens who already lose out from the current system.

New York continues to suffer a net migration of citizens to other states, as people flee a growing tax burden. The last thing the state needs is a legislature working full time to spend even more taxpayer money.

By the way, I’m not under the illusion that “money in politics” is a solution. I’m simply saying that new rules about campaign finance and ethics won’t have any impact on sleaze and corruption.

Which is my message in this video from the Center for Freedom and Prosperity.

Allow me to make one final point on this issue. I think the proponents of further regulation and control in some cases have good intentions, but they are being extremely naive. Why would anybody think that politicians would approve rules unless the net effect was to increase the powers of incumbency?

Since I shared my video on the topic, I’ll close by strongly recommending that you watch this George Will video.

P.S. I warned last month that governments were engaged in a war on cash. Well, the Germans are planning a Blitzkrieg.

The German government is considering introducing a limit of 5,000 euros ($5,450) on cash transactions in an effort to combat money laundering and financing of terrorism. Deputy finance minister Michael Meister said Wednesday that…there’s “…we also have the problem of how to clear up money-laundering offenses properly” when large transactions are conducted anonymously. …Opposition Green Party lawmaker Konstantin von Notz tweeted that trying to limit cash payments “is a new fundamental attack on data protection and privacy.”

Since criminals will be modestly inconvenienced – at best – by such an initiative, it’s important to understand the real goal is easier tax collection. Indeed, I suspect Herr von Notz will change his tune once he realizes that the German government will get more money to waste if cash is restricted.

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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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