Yesterday’s column was about the referendum for a new leftist constitution in Chile.
Fortunately, Chilean voters overwhelmingly rejected that awful plan (a surprisingly positive outcome since those same voters were foolish enough to vote for a leftist president last December).
Today, we’re going to look at potential constitutional changes in the United States. But our focus won’t be on how the Constitution should (or should not) be changed, but rather on the process.
This is something that is allowed by the Constitution, so long as it has support from 34 states. Here’s a map showing what’s happened to date.
The map comes from an article that Grace Panetta and Brent Griffithswrote for Business Insider.
They have a good description of how the process works.
Article V to the US Constitution provides two ways to amend the nation’s organizing document… The first is for a two-thirds majority of Congress to propose an amendment, with three-fourths of states ratifying it. This is how all 27 of the current amendments to the Constitution were added… The second method — never before accomplished — involves two-thirds of US states to call a convention. …two-thirds of the state legislatures are needed to call a convention and three-fourths must vote to ratify any amendments. …Conservatives and liberals alike say this requirement would doom hyperpartisan or plain loony amendments.
Conservatives are the main proponents of a constitutional convention.
The December 2021 ALEC meeting represents a flashpoint in a movement spearheaded by powerful conservative interests…to alter the nation’s bedrock legal text since 1788. It’s an effort that has largely taken place out of public view. But interviews with a dozen people involved in the constitutional convention movement, along with documents and audio recordings reviewed by Insider, reveal a sprawling, well-funded…and impassioned campaign taking root across multiple states. …Rob Natelson, a constitutional scholar and senior fellow at the Independence Institute who closely studies Article V of the Constitution, predicted to Insider there’s a 50% chance that the United States will witness a constitutional convention in the next five years.
Some folks on the left also like the idea.
The right isn’t alone in pursuing a convention. On the left, Cenk Uygur, a progressive commentator, founded Wolf PAC… Five Democratic states passed Wolf PAC’s call for a campaign finance reform-focused convention: California, New Jersey, Illinois, Vermont, and Rhode Island.
Now the issue is getting more attention.
Writing for the New York Times yesterday, Carl Hulse reports on the campaign for a new constitutional convention.
Elements on the right have for years been waging a quiet but concerted campaign to convene a gathering to consider changes to the Constitution. They hope to take advantage of a never-used aspect of Article V, which says in part that Congress, “on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments.” …backers of the convention idea now hope to harness the power of Republican-controlled state legislatures to…strip away power from Washington and impose new fiscal restraints, at a minimum. …leading proponents of the convention idea come from the right and include representatives of the Tea Party movement, the Federalist Society, grass-roots right-wing activists… And some liberals have welcomed the idea of a convention as a way to modernize the Constitution and win changes in the makeup and power of the Supreme Court, ensure abortion rights, impose campaign finance limits and find ways to approach 21st-century problems such as climate change.
I have two comments regarding this effort.
First, much of the impetus comes from prudent people who are disturbed by the reckless profligacy in Washington. These folks are right to be concerned, but I have been telling them that they need to pursue a spending limit amendment (like the Swiss “Debt Brake” or Article 107 of Hong Kong’s Basic Law) rather than a balanced budget requirement.
Second, I wonder whether any sort of constitutional change can get the necessary support from 3/4ths of the states. I doubt left-wing states like California, New Jersey, and Illinois would ratify a good amendment to control spending, just like right-wing states like Texas, South Dakota, and Utah presumably would reject a leftist amendment to do something like restrict political speech.
We’ll start with a story for the New York Times by Jack Nicas, which explains what is happening today.
Voters in Chile on Sunday could transform what has long been one of Latin America’s most conservative countries into one of the world’s most left-leaning societies. In a single ballot, Chileans will decide whether they want…universal public health care; gender parity in government; empowered labor unions; …rights for animals and nature; and constitutional rights to housing, education, retirement benefits, internet access, clean air, water, sanitation and care “from birth to death.” …If voters approve the text, Chile…would suddenly have more rights enshrined in its constitution than any other nation. …The 170-page text would make the Chilean state, which has long had a limited role in its citizens’ lives, the guarantor of more than 100 rights… In addition to housing, health care and education, the new constitution would enshrine the right to…free time, physical activity, sex education, cybersecurity, the protection of personal data and “free and full legal advice” for anyone “who cannot obtain it.” …implementing the new constitution would cost the government 9 percent to 14 percent of Chile’s gross domestic product.
Now that we have the basics, let’s look at whether the new constitution is a good idea.
Writing for National Review, Daniel Di Martino condemns the document.
Chileans…will vote on whether to adopt or reject a proposed constitution written by a socialist-controlled assembly. The document, consisting of 388 articles, would create an unequal justice system and grant more rights for those who claim indigenous ancestry. It would effectively end private health care and education, and it would allow the congress to confiscate Chileans’ pension savings. …The proposed Chilean constitution reads like a longer, more woke, and even more socialist version of Venezuela’s constitution. …It’s a socialist policy wish list. …The proposed constitution would abolish the free-market protections that enabled Chile to become so prosperous. …The proposal prohibits any for-profit educational enterprise at every level, with the result that many private schools would close. …The proposed new law of the land would authorize the government to confiscate accumulated private retirement savings… Chileans have a choice to make in September. Will they vote no on the proposed constitution and keep Chile free and prosperous, or will they vote yes and follow the socialist path of Venezuela?
In case you think Di Martino is exaggerating, a Washington Postreport by John Bartlett and Samantha Schmidt reaches the same conclusion, albeit without the criticism.
Chile’s new constitution, a 388-article charter that envisions a progressive, feminist future for the South American nation. …The constitution is one of the first in the world to be drafted in the context of a climate crisis, and to be written by a convention with gender parity. …It’s a woke constitution propelled by left-leaning millennials and built for a modern nation led by one. …One section…would make the government responsible for preventing, adapting to, and mitigating the effects of climate change. …The charter would make the governmentresponsible for providing free higher education, health care and many other services. It would guarantee a right to housing, and to leisure time. It would requirethat at least half of all members of government and congress, and employees of public and public-private companies, be women.
As you might expect, Mary Anastasia O’Grady of the Wall Street Journalis not a fan.
The document removes the certainty of personal choice—including in healthcare, pensions and education—weakens property rights, increases the role of the state in the economy and moves the country away from representative democracy and toward mob rule. …the high-performing Chilean economy of the past three decades could be headed to a level of mediocrity similar to that of its neighbors Bolivia and Argentina. …The U.S. Constitution has been successful, in large part, because it constrains government power. Conversely, turning a constitution into a laundry list that mistakes entitlements for rights, and promises to guarantee those rights by empowering the state, is a ticket to poverty and tyranny.
Daniel Raisbeck of Reason wrote about the superiority of the current system last month.
Chile’s current, pro-free market constitution…has served the country well, bringing staggering economic success by Latin American and even global standards. But in an October 2020 referendum, 78 percent of Chilean voters chose to ditch the constitution… It seemingly mattered little to voters that, for years, Chile has had one of the region’s highest per capita GDP. …Poverty…decreased from 45 percent in 1982 to a mere 8 percent in 2014… Not bad for a nation whose economy between 1950 and 1970 was, according to a Library of Congress country study, “the poorest among Latin America’s large and medium-sized countries.”
It’s no surprise that conservatives and libertarians oppose the draft constitution.
But the document is so radical and impractical that the left-leaning Economist opined against the pact.
The document is far less…growth-friendly than the current constitution. It gives trade unions the sole right to represent workers, guarantees them a say in corporate decision-making and allows them to strike for any reason… It says that everyone has the “right to work” and that “all forms of job insecurity are prohibited”. That could make it rather hard to fire anyone. Landowners, such as farmers, could potentially lose the property rights to water on their land. Compensation for expropriated land would not be at a market price but at whatever Congress deems a “just” one. The draft creates a portfolio of socioeconomic rights that could blow up the budget. It requires the establishment of several new bodies, such as an integrated national health system, and cradle-to-grave care, without giving much thought to how they would be funded. The state would oversee the provision of housing, to which it says every person has a right. …Rather than scrapping the old constitution, Chileans should scrap the new one.
And even the Washington Posteditorialized against it.
Opponents of the new constitution…worry that uncertainty will hinder investment while a new congress tries to translate new constitutional provisions on mining and other natural resources into legislation. Then there is the complexity of a document that consists of 54,000 words, 388 articles and 178 pages — including a provision on the state’s duty to “promote the culinary and gastronomic heritage of the country.”
But the hard left is mobilized and supportive.
Indeed, David Adler wrote in the U.K.-based Guardian that Chile’s leftist constitution should be a model for all nations.
…a visionary document that would not only update, expand and advance Chileans’ basic rights – to health, housing, abortion, decent work and a habitable planet – but also set a new standard for democratic renewal in the 21st century. …a document that responds directly to the escalating crises of inequality, insecurity and a changing climate. The constitution establishes new universal public services for health, education, and clean water. It endows nature with rights…it finally turns Chile into a full democracy, with gender parity in public institutions, self-determination for Indigenous peoples, collective bargaining for all workers… Chile has shown the way to a new constitutional order – rich with rights.
What makes Adler’s analysis so foolish is that there’s compelling research showing that economic liberty produces the outcomes associated with so-called positive rights.
John Stossel has added to his collection of great videos. His latest releases asks whether the Constitution should be amended.
If you watch carefully, you’ll see that I made an appearance toward the end.
My clip lasts only about five seconds, but I used that short segment to say that the main goal should be enforcing the Constitution as currently written.
To be more specific, I want the Supreme Court to limit the powers of Congress to the “enumerated powers” listed in Article 1, Section 8 of the Constitution.
Term limits – I don’t like career politicians, so kicking them out of office after a dozen years is a good idea. Though maybe this satirical idea for just two terms would be even better.
Gift clause – I’m not familiar with the “gift clause” provision in some state constitutions, which was mentioned by Christina Sandefur. But it would be great if politicians no longer could provide special subsidies to their cronies.
P.S. I mentioned the horrid Wickard V. Filburn case. The Obamacare decision may be even worse.
P.P.S. As Walter Williams noted, maybe we need another president like Grover Cleveland.
Now that a socialist has been elected (with open support from the Communist Party), what comes next for Chile?
Lots of bad policy, for sure, but Axel Kaiser warns that the left also wants to replace the country’s pro-liberty constitution.
Axel, who is President of Fundación para El Progreso and also a Senior Fellow for the Atlas Center for Latin America, just scratches the surface in this short video. He told me that there are many other desirable provisions, including school choice.
So it shouldn’t be surprising that the left in Chile is so determined to replace it with a document that empowers politicians.
I wrote about this issue last year, citing experts (including folks on the left) who all agreed that giving politicians new powers over the economy was the clear purpose of a new constitution.
By the way, there’s research showing that a society based on liberties is the best way of generating the prosperity needed for higher living standards (i.e., the access to goods and service that proponents of positive rights claim to support).
By contrast, there’s a much better track record – especially for ordinary people – in countries where government plays a smaller role.
It’s tragic that Chilean voters chose the redistribution approach in Sunday’s election. If they opt for a new constitution next year, the nation will be doomed.
P.S. By the way, here are some excerpts from today’s Wall Street Journal‘s editorial about the election.
Latin America, or much of it, is moving to the populist left, and Chile became the latest example by electing socialist Gabriel Boric… He’s the most leftist politician to win in Chile since Salvador Allende in the 1970s. His major theme was reducing economic inequality, which he proposes to do through state power. Mr. Boric wants to raise taxes, eliminate the country’s highly successful private pension system and increase government spending and regulation. He supports the constituent assembly now rewriting the constitution, and his goal is to give government more control over just about everything. …Foreign investors and Chileans with money and property are nervous. From the end of 2019—when the left launched riots demanding a new social contract—until August 2021, Chile’s central bank says some $50 billion (15% of Chilean GDP) fled the country. About half was investment capital and half from businesses and households. …on Monday the Chilean peso fell 2% against the U.S. dollar while the broader stock market plunged 10%. …The world is watching closely to see if the new president will…take Chile in the direction of such failing Latin states as Argentina or Peru, or worse.
Amen.
The best case scenario is that Chile is copying Argentina. The worst case is that it is copying Venezuela.
P.P.S. There was a president in the United States who wanted to remake society on the basis of “positive rights.” Fortunately, he did not succeed.
Back in 2012, I shared a video clip of Ice-T defending the 2nd Amendment, but that video is now dead, so I’m glad to see that Prager University has added his comments as a prologue to this defense of gun rights by Prof. Eugene Volokh.
Ice-T and Prof. Volokh make for a good combination, one dispensing common sense and the other sharing academic analysis.
In the case of Prof. Volokh, he walks through the language of the Constitution and succinctly explains why the 2nd Amendment clearly was designed to protect the individual right to keep and bear arms.
And that’s the view that consistent with the liberty-focused attitude of the Founding Fathers, who correctly saw government as a potential source of tyranny.
But there’s another part of the video that also deserves attention. Shortly before the 4:00 mark of the video, Volokh explains that the Founders gave people – through their legislators – the option of amending the Constitution (the great Thomas Sowell has made the same point).
P.S. A British writer argued that defending gun rights was akin to defending slavery. In reality, the 2nd Amendment has been especially valuable for blacks.
I’m (unfortunately) not a rich person, but that doesn’t stop me from opposing punitive taxes on successful entrepreneurs, investors, and small business owners.
Likewise, I’m not a gun aficionado, but that doesn’t stop me from opposing efforts to restrict the rights of law-abiding people to own and bear arms.
In part, my views on guns are driven by cost-benefit analysis. Simply stated, the evidence is fairly clear that there is less crime when bad people have to worry that potential victims have the ability to defend themselves.
Interestingly, it seems that more folks on the left are coming to their senses on the issue of gun control, generally for practical reasons rather than philosophical reasons.
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.
In 2015, I shared a column by Jamelle Bouie in Slate, who addressed the left’s fixation on trying to ban so-called assault weapons and explains that such policies are meaningless.
More recently, in 2017, Leah Libresco wrote in the Washington Post that advocates of gun control are driven by emotion rather empirical research and evidence.
Last but not least, Alex Kingsbury in 2019 acknowledged the futility of gun control in a column for the New York Times.
Today, we’re going to add to the collection.
Charles Blow of the New York Times recently wrote about how he has become more understanding of why fellow blacks want to own guns.
Growing up in rural northern Louisiana, everyone I knew, at least every household, seemed to have guns. …Gun ownership was the norm in those parts, including in the Black community. It was not associated with danger but with safety. …Indeed, one could argue that the right to bear arms in this country has never been so brazenly and openly abridged as it has against Black people. Many state codes prohibited Black gun ownership before the Civil War and allowed for the disarmament of Black people after. …When I moved north, first to Detroit and then to New York, I moved into a mental space of more stringent gun control. …city dwellers simply didn’t have the same need for weapons as the people in the rural community where I was raised… I, like many, were convinced that fewer guns in the Black community would make it safer. But, for many Black people, that sentiment has turned. …gun sales to Black people are surging. …I, as much as anyone, would like to live in a society in which all citizens felt safe without the need of personal firearms. America could have created such a society. However, it chose not to. …many Black people feel the need to defend themselves from their own country.
To be sure, Mr. Blow can’t be considered a full convert to the 2nd Amendment. That being said, I think it’s nonetheless remarkable that even a committed, hard-core leftist has (partially) seen the light.
Though I can’t resist quibbling with one point in his column. He wrote, “America could have created” a society where gun control would be desirable because no guns would be needed, but “it chose not to.”
I would replace “it chose not to” with “our government is not sufficiently competent.”
Heck, I would probably add “or trustworthy” as well. Given the unsavory history of gun control, Mr. Blow should be among the first to appreciate that argument.
P.S. In 2018, I shared the story of Ryan Moore, another leftist who changed his mind on gun control. But since he also evolved away from being a leftist, I don’t include him
Today, in honor of Bill of Rights Day, let’s change the focus and celebrate the ratification of the 2nd Amendment. It was on this day, back in 1791, that the right to keep and bear arms was added to the Constitution.
To celebrate that freedom, here are some wise observations by some of America’s Founders. We’ll start with Thomas Jefferson.
Next is Samuel Adams.
Here’s what George Mason had to say.
Thomas Paine had the right perspective.
And we’ll finish up by sharing some wisdom from James Madison.
P.S. I feel quite confident that all of these quotes are genuine (not an easy task when perusing the Internet).
P.P.S. Maybe I’m being a Pollyanna, but it does seem that more folks on the left are coming to their senses on the issue of gun control.
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.
In 2015, I shared a column by Jamelle Bouie in Slate, who addressed the left’s fixation on trying to ban so-called assault weapons and explains that such policies are meaningless.
More recently, in 2017, Leah Libresco wrote in the Washington Post that advocates of gun control are driven by emotion rather empirical research and evidence.
Last but not least, Alex Kingsbury in 2019 acknowledged the futility of gun control in a column for the New York Times.
Moreover, there’s always a risk that those few governments with reasonably good policy will veer in the wrong direction.
I worry that’s happening in Hong Kong, and I fear it may happen today in Chile if voters make the wrong choice in a national referendum.
In a column for Quillette, Axel Kaiser from Chile’s Adolfo Ibaniez University analyzes what is happening.
In an extraordinary development, Chileans are deciding whether they want to create an entirely new constitution from scratch or preserve the existing one. …Chileans will also vote on whether the new constitution will be drafted by a mixed constitutional convention of politicians and elected representatives from the citizenry, or a constitutional assembly composed entirely of citizens. In either case, decisions by the body would require a two-thirds majority, and its deliberations must be completed within a year. …the new process portends a period of political instability, and the specter of open-ended conflicts and stand-offs between different branches of government. …To many outside Chile, it may seem strange that what has been arguably the most stable and prosperous country in Latin America would circumvent its institutions in this way… But in fact, the creation of an entirely new constitutional order has long been an ambition of the Chilean Left. …Revolutionary efforts to upend existing constitutional schemes have been a common feature in Latin America since the 19th century. …The idea that a new constitution will provide Chile with an instant solution…various forms of social conflict has become an attractive delusion. Yet the more likely scenario is that it will simply legally encode the unrealistic ideological demands that brought Chile to this point in the first place. ……many voters seem…swayed by extravagant promises of the future benefits they will enjoy under a new (and as yet undrafted) constitution. …56 percent of Chileans believe that a new constitution would lead to higher pensions, better education, and superior health care, among a long list of other improvements.
And he also explains why voters should be big fans of the current constitution.
Under the period covered by the current constitution, inflation—which had peaked at over 500 percent in 1973—fell below five percent by the 2000s. Between 1980 and 2015, per-capita income in Chile quadrupled to $23,000—the highest growth rate in Latin America. More importantly, life expectancy rose from 69 to 79, and levels of housing overcrowding fell to one-quarter of its pre-1980 levels. The middle class, as that category is defined by the World Bank, grew from 24 percent of the population in 1990 to 64 percent in 2015. Extreme poverty fell from 34 percent to less than three percent. Between 1990 and 2015, the income of the richest 10th of the population grew a total of 30 percent, while the income of the poorest 10th saw an increase of 145 percent. The Gini index, a widely used statistic that measures income inequality, fell from 52 in 1990 to about 48 in 2015. Chile also held the highest position among Latin American nations in the 2019 UN Human Development Index.
Mary Anastasia O’Grady, in her Wall Street Journalcolumn, is concerned that Chileans may be poised to make a big mistake.
Chile is on the cusp of collective political and economic suicide… On Oct. 25 Chileans will vote on whether the country needs a new constitution. Polls indicate that the “yes” vote will prevail even as the process of rewriting the highest law in the land is shaping up to be a disaster.A new constitution is likely to put at risk the model of democratic capitalism that brought Chilean poverty to below 10% in 2018, from nearly 70% in 1990. Chile also had the highest social mobility in a 2018 Organization of Economic Cooperation and Development study of 16 member countries. …Many Chileans seem to believe that a new constitution will make things right, à la Hugo Chávez’s Venezuela circa early 2000s. …Referendum backers say it is a “democratic” process. It is certainly majoritarian. But Chileans are bound to be disappointed if higher living standards and greater opportunity are the goal. The nation will be lucky if it finishes the exercise on par with the impoverished Argentine welfare state. …expect a document that reads like a litany of unattainable aspirations.
Some people favor majoritarianism, of course, especially if the result is a new set of “positive rights” to other people’s money.
In a column for the New York Times, Professor Michael Albertus hopes a new constitution will incorporate statist economic policy.
Chileans will vote to reject or approve the start of creating a new constitution. The citizens of more countries should do the same. The country’s current Constitution…has protected conservative interests and the military and has suppressed political dissent for 40 years. …The vote to convene a constitutional assembly in Chile could lead to a new document that brings the leadership closer to the people… It could also enshrine greater rights for labor unions, establish health care and education as fundamental rights… Most of Chile’s protesters and their supporters are largely motivated by bread and butter issues like higher pay, gender equity, improved health care access and quality medical care, pension reform, more rights for Indigenous peoples, access to affordable public transportation and free public education. …Protesters view a new constitution as key to delivering on these demands.
So why might Chileans be willing to gamble with their nation’s prosperity?
Early this year, Axel Kaiser offered some insight in a column in the Wall Street Journal.
He blames a left-leaning former government for creating economic malaise.
The economic pain started with the antimarket reforms of the previous government under Socialist President Michelle Bachelet, from 2014-18. Ms. Bachelet increased corporate taxes by 30%; signed a law banning the replacement of workers on strike, thereby dramatically increasing the costs of labor; increased public spending at three times the economic growth rate; and unleashed armies of regulatory bureaucrats on the private sector. Capital investment fell in each year of her term. Such a consistent reduction in investment hasn’t happened since data was first collected, in the 1960s. Economic growth collapsed from an annual average of 5.3% under the previous government of Mr. Piñera (2010-14) to 1.7% under Ms. Bachelet. Real wage growth took a 50% hit.
By the way, I take no pleasure in having predicted that Ms. Bachelet’s tenure would yield bad results.
But let’s not focus on her mistakes.
Indeed, Mr. Kaiser thinks her bad policies (and the anemic Bush/Macri/Sarkozy-type approach of the current government) are largely a reflection of a bigger problem.
The policies result from a profoundly false narrative Chilean elites tell themselves about the country. Over the past 20 years, intellectuals, media personalities, business leaders, politicians and celebrities in this Latin American nation have marketed the myth that Chile is an extreme case of injustice and abuse. It began at the universities, where progressive ideologues spread the idea that there was nothing to feel proud about when it came to Chile’s social and economic record. …Ms. Bachelet’s second term and her social justice-driven agenda were the inevitable result. …The free market didn’t fail Chile… The central problem is that a large proportion of the elites who run key institutions—especially the media, the National Congress and the judiciary—no longer believe in the principles that made the country successful. The result is a full-blown economic and political crisis. Other nations should take note: This is what elite self-hatred can do for you.
I wonder if Alex is referring to the United States when warning other nations about the danger of “elite self-hatred.”
It’s certainly true that many elites in America are quite disdainful of the nation’s economic system. Which has always mystified me since that system enabled their success – or the success of their parents, which allows them to lead very comfortable (albeit guilt-ridden) lives.
More important, it enabled ever-higher living standards for ordinary people, which should please folks on the left, at least if we believe their rhetoric (though I fear many of them are more motivated by hostility to the rich rather than love for the poor).
But let’s not digress. I want to close by noting that poor people have been the biggest winners from Chile’s free-market reforms.
This tweet from Professor Daniel Lacalle is a perfect example. It shows how poverty has plummeted, regardless of which measure is used.
P.S. I’ve already written that the most important referendum for 2020 is the upcoming vote whether to retain the Illinois flat tax. Perhaps I should have listed today’s vote in Chile?
July 29, 2021 Addendum: This chart is further evidence that Chile should not reverse the reforms that have done so much to promote prosperity.
Notice how growth exploded after reforms were implemented in the 1980s.
A pure democracy, where 51 percent of the people have the right to do anything they want, is not a desirable form of government. It means tyranny of the majority.
Some pundits and some lawmakers in Washington either don’t understand this part of American history or they want to pretend it doesn’t exist.
Fortunately, Senator Lee of Utah is not one of those people, as illustrated by this recent tweet.
This elementary observation rubbed some people the wrong way.
Indeed, it even generated a hostile article by Nathaniel Zelinsky in the Bulwark, an anti-Trump site operated by former Republicans.
This message fits a growing and disturbing trend. Among the conservative intelligentsia, especially in certain legal circles, it has become stylish to view self-governance as nothing more than a means to a very particular set of ends. And should “conservative” policies lose out in the democratic process, then liberal democracy itself should go. …Among Federalist Society members, a group once defined by a commitment to judicial restraint to protect democracy, one today hears about “active judging”—the notion that life-tenured jurists shouldn’t hesitate to strike down popularly enacted legislation. …these tendencies share a common endpoint: Upset the delicate bargain of American democracy and impose a narrow set of preferences on the rest of us. And it’s exactly this vein of illiberalism that Senator Lee tapped into. …Yes, the Founders crafted a constitutional structure that prevents the majority from easily imposing itself on a minority and places some hard limits on the government’s powers. But Senator Lee’s attack on “rank democracy”…leaves little room for…collective self-government.
At the risk of understatement, Mr. Zelinsky’s attack on Senator Lee is completely incoherent.
The Utah Senator was celebrating the “classical liberalism” of America’s founding principles. Senator Lee was extolling a system that protects individual rights.
That’s the opposite of “illiberalism.”
To be sure, there are some folks on the right who don’t embrace those values. But Senator Lee isn’t one of them.
This isn’t a new controversy, by the way. Writing last year for the U.K.-based Guardian, Quinn Slobodian accused “neoliberals” of favoring economic freedom over democracy (in Europe, they often use “neoliberal” as a term for libertarians).
The ideal world described by these indexes is one where property rights and security of contract are the highest values, inflation is the chief enemy of liberty, capital flight is a human right and democratic elections may work actively against the maintenance of economic freedom. …The definition of freedom they used meant that democracy was a moot point, monetary stability was paramount and any expansion of social services would lead to a fall in the rankings. Taxation was theft, pure and simple, and austerity was the only path to the top. …Pinochet, Thatcher and Reagan may be dead. But economic freedom indexes carry the neoliberal banner by deeming the goals of social justice forever illegitimate…the indexes help perpetuate the idea that economics must be protected from the excesses of politics – to the point that an authoritarian government that protects free markets is preferable to a democratic one that redesigns them.
Unlike the Zelinsky piece, Slobodian’s column is actually coherent.
He wants untrammeled majoritarianism, at least when he thinks it will result in bigger government.
And he’s correct that classical liberals reject that approach.
But we have good reasons for that skepticism. Writing earlier this year for the Foundation for Economic Education, Professor Gary Galles explained why it’s better to rely on “market democracy” rather than “political democracy.”
In a political democracy, a majority can also force its preferences on others in any issue. That is why our founders adopted constraints on majority abuse, such as limited, delegated powers and the Bill of Rights. However, those constraints have largely been undermined. In contrast to political democracy, free-market capitalism, which reflects democratic self-government, represents a far better ideal. Its system of exclusively voluntary cooperation based on self-ownership requires that property rights be respected; no majority can violate owners’ rights. …a superior form of democracy is to remove virtually all decisions and policies that we need not share in common (almost all of them, beyond the mutual protection of our property rights) from government dictation, even if they are “democratic,” and let people exercise self-government through their own voluntary arrangements, protected by their inalienable rights.
Pure democracy is simply another way of saying untrammeled majoritarianism.
And that system of government is a threat the rights of minorities – whether you’re talking about religious minorities, ethnic minorities, sexual minorities, political minorities, or any other subset of the population that may be unpopular at some point with mass opinion.
P.P.S. On the 150th anniversary of the Declaration of Independence, Calvin Coolidge correctly summarized the meaning of the American experiment.
P.P.P.S. If you want a horrifying example of majoritarianism in action, see Venezuela.
P.P.P.P.S. To be fair, Switzerland is a very successful example of a nation based not only on majoritarianism, but also direct democracy (my two cents is that the nation’s decentralization is the real reason for its success).
Some of my right-wing friends complain about “judicial activism,” which seems to mean that they want courts to defer to other branches of government.
Since I’m opposed to majoritarianism and because I want courts to defend and protect all parts of the Constitution, I put together this visual to illustrate why I think they’ve picked the wrong goal.
This handful of examples is designed to make clear that “activism” is sometimes appropriate.
But not always, which is why constitutionalism should be the right goal.
In a column for Reason, Damon Root gives a good example of what this means.
In 1938 the Supreme Court concocted a bifurcated approach to judicial review that treats some constitutional rights as more equal than others. If a law or regulation infringes on a right that the Court has deemed fundamental (such as freedom of speech or the right to vote), the Court said in United States v. Carolene Products Co., the judiciary should presume that law or regulation to be unconstitutional and subject it to “more exacting judicial scrutiny.” By contrast, in cases dealing with “regulatory legislation affecting ordinary commercial transactions,” Carolene Products stated, “the existence of facts supporting the legislative judgment is to be presumed.” In other words, judges are supposed to tip the scales in favor of lawmakers when economic liberty might be at stake. Now known as the rational-basis test, this rubber stamp approach has led to some truly dreadful judgments. …the rational-basis standard…runs counter to the text and history of the 14th Amendment, which was written, ratified, and originally understood to protect (among other rights) the right to economic liberty. In the words of Rep. John Bingham (R), the Ohio congressman who served as the principal author of Section One of the 14th Amendment in 1866, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” includes “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.”
Sounds like United States v. Carolene Products Co. ranks up there with Wickard v. Filburn as one of the Supreme Court’s worst decisions.
George Will shares some thoughts on the proper role of the judiciary in his Washington Postcolumn.
For every American, a courtroom should be a level playing field, with the law blind to the “identity, power, and resources of the litigants.” This is not, however, the reality when an individual challenges a statute’s constitutionality. The tilted field favors the government — meaning legislative majorities — because federal jurisprudence invented, and…states have reflexively adopted, the presumption of constitutionality. …In Federalist No. 78, Alexander Hamilton wrote that “the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” However, the presumption of statutory constitutionality has this practical consequence: Although the members of all three branches of government swear constitutional oaths, legislatures enjoy practical primacy. …Clark Neily notes that between 1954 and 2002, the U.S. Supreme Court invalidated 0.65 percent of the laws Congress passed (103 of 15,817), 0.5 percent of federal regulations and less than 0.05 percent of state laws. Those who praise such judicial passivity must implausibly assume, as Neily says, that government “hits the constitutional strike zone” at least 99.5 percent of the time. How likely is this? Judicial passivity has been encouraged by decades of reflexive conservative denunciations of “judicial activism.” These denunciations have been paired with celebrations of “judicial deference” to legislative majoritarianism.
Mr. Will has made a strong argument that we could use a bit more “activism” and a bit less “deference.” Properly defined, of course.
Properly defined, of course. Looking at the image to the right, I want an activist judiciary when the tree is outside the fence and a deferential judiciary when the tree is inside the fence.
And that doesn’t necessarily mean libertarian policy.
For instance, the Constitution does include a postal service as one of the enumerated powers. That doesn’t mean the federal government is obliged to set up post offices, but they certainly have that right.
P.S. You won’t be surprised to learn that E.J. Dionne is against the right kind of judicial activism.
P.P.S. Several people have messaged me over the years to ask about abortion and the Constitution. That’s not my area of expertise, but I’ll simply observe that it won’t make much difference if Roe vs. Wade is overturned. All that would happen is that legislatures would be in charge and many states would allow abortion on demand.
P.P.P.S. I also get asked about the advisability of a balanced budget amendment. That might be better than nothing, but a spending cap provision (similar to what exists in Switzerland, Hong Kong, and Colorado) would be far preferable.
In this interview from last March, I groused that the Supreme Court – largely thanks to statist Justices appointed by one of America’s worst presidents – basically decided, starting in the 1930s, that it would no longer be bound by the Constitution’s provisions that protect economic liberty.
I’m not a lawyer, much less an expert on the Constitution, but I know how to read.
The Constitution very clearly is a document to constrain rather than enable government. It was designed to produce what I’ve referred to as Madisonian constitutionalism.
When Justices ignore their responsibility to protect our rights, however, they’re basically acting like this satirical image of President Obama.
Let’s look at two very tragic legal cases from that era.
Professor John McGinnis, writing for Law & Liberty, discusses the wretched Supreme Court case that undermined the Constitution’s Contract Clause.
…the Contract Clause…was the most litigated provision of the Federal Constitution in the 19th century, but today it has become a shadow of its former self because the Court has abandoned its original meaning. …The Contract Clause provides: “No State shall… pass any… Law impairing the Obligation of Contracts.” …in The Federalist, Madison argued that the Clause was a “bulwark in favor of… private rights.” …It is designed to protect an important aspect of the rule of law: a prohibition on the government changing specific plans that autonomous individuals have made. …For the 19th and early 20th centuries, the Supreme Court was relatively faithful in interpreting the Clause. In Home Building & Loan Association v. Blaisdell, however, the Court departed from its role as a faithful agent of the Constitution. …influenced by the Depression and the growing discontent with the jurisprudence of substantive due process with which it confused the clear command of the Contract Clause, the Court upheld the law. It is true that times were hard, but as Justice George Sutherland’s dissent noted, legislation protecting debtors against creditors is passed precisely at such times, and yet such legislation was exactly the kind of evil which the Clause was designed to prohibit. The case is striking as an example of one of the most express rejections of originalism. Chief Justice Hughes stated explicitly that the Court was not bound by the original understanding of the Clause.
Writing for FEE, Professors Antony Davies and James Harrigan explain the terrible 1942 decision by the Supreme Court to remove any meaningful restriction on the power of the central government.
They start by pointing out that the 18th Amendment (imposing prohibition) was an example of how to expand the power of government in the proper way.
The Constitution creates a government of enumerated powers, which means the federal government is only authorized to do things that are specifically listed in the Constitution. And that list is relatively short. The list appears in Article One, Section Eight and enumerates the proper objects of congressional legislation. …Consider the United States’ ill-advised flirtation with Prohibition—which was enacted almost exactly 100 years ago. Nowhere in the Article One, Section Eight powers does one see the authority to “ban the manufacture, transport, or sales of alcohol within the United States.” When Americans decided that they wanted a coast-to-coast ban on alcohol, they amended the Constitution to give the federal government this authority. Fourteen dry years later, Americans came to their senses and revoked this authority by amending the Constitution again.
Alcohol prohibition was a mistake, of course, just like today’s drug prohibition, and the American people went through the proper process of adopting the 21st Amendment (to repeal the 18th Amendment).
Davies and Harrigan then explain that it was about that time that the Supreme Court decided that it would no longer uphold the Constitution’s restrictions on the powers of the central government.
As of 1933, when the 21st Amendment was ratified, Americans still had a constitutionally limited federal government and what Justice Louis Brandeis famously called “laboratories of democracy” in the states. …But who ended up being tasked with deciding what Article One, Section Eight actually meant? Herein lies the wrinkle that enables all manner of constitutional mischief in the United States. The institution that ended up deciding what the federal government is empowered to do is itself a branch of the federal government. And it should come as no surprise that when push comes to shove, the Supreme Court routinely finds in favor of empowering the federal government.
One of the most horrifying examples of judicial failure occurred in 1942.
In 1942, the Supreme Court decided a case, Wickard v. Filburn, in which farmer Roscoe Filburn ran afoul of a federal law that limited how much wheat he was allowed to grow. …A careful reader might, and should, ask where the federal government’s right to legislate the wheat market is to be found—because the word “wheat” is nowhere to be found in the Constitution. …The Agricultural Adjustment Act of 1938 put an upper limit on how much wheat farmers were allowed to grow, which would serve to keep prices high by limiting supply. Roscoe Filburn had grown 12 more acres of wheat than the law allowed. But not only did he not sell the excess wheat outside of his home state, but he also didn’t sell it at all. He used the wheat from those 12 acres to feed his cattle. …yet the Supreme Court found (unanimously) that because Congress had the authority to regulate interstate commerce, Congress also had the authority to prohibit Filburn from growing those 12 acres of wheat for his own use. …Filburn’s non-commercial activity was, according to the Supreme Court, interstate commerce. …Filburn’s non-commercial activity was, according to the Supreme Court, interstate commerce.
And here’s the result.
A century ago, we amended the Constitution when we wanted the federal government to exercise a new authority—that of banning alcohol. Today, we allow Congress to exercise almost any authority it likes. …We have progressed so far down the path of reinterpreting the Constitution as a document that empowers government, rather than one that limits it… The sad result has been a government nearly limitless in its power.
Though I don’t want to be too glum. The good news is that the Supreme Court occasionally does defend economic liberty, as the Wall Street Journal recently opined.
One goal of the U.S. Constitution was to form a union that allowed interstate commerce unencumbered by state protectionism. The Supreme Court reinforced that principle on Wednesday by striking down a two-year residency requirement to get a liquor license in Tennessee. …a business lobby known as Tennessee Wine and Spirits Retailers Association argued that the 21st Amendment that repealed Prohibition also gave the states broad authority to regulate alcohol. The association knows that if people can move to a state and open up liquor stores, it means more potential competition for those who already have licenses. The law is commercial protectionism and thus violates the Constitution’s Commerce Clause, the High Court ruled in Tennessee Wine and Spirits Retailers Assn. v. Thomas. “Because Tennessee’s 2-year residency requirement for retail license applicants blatantly favors the State’s residents and has little relationship to public health and safety, it is unconstitutional,” wrote Justice Samuel Alito for a 7-2 majority… the 21st Amendment doesn’t override the rest of the Constitution’s principles. As recently as 2005 (Granholm v. Heald), the Court ruled that New York state couldn’t discriminate against out-of-state wineries.
Some judges resent any protections against government power.
In an article for Reason, Damon Root properly castigates a judge for objecting to the economic liberties guaranteed by the 14th Amendment.
Does the U.S. Constitution protect economic liberty, such as the right to work in an occupation of one’s choosing free from unreasonable government regulation? Pennsylvania Supreme Court Justice David Wecht thinks not. …in Ladd v. Real Estate Commission of the Commonwealth of Pennsylvania, Wecht faulted his colleagues in the majority for their “judicial intrusion into the realm of legislative value judgments” after that court allowed a legal challenge to proceed against a state occupational licensing scheme. “I cannot endorse a constitutional standard that encourages courts,” he declared, “to second-guess the wisdom, need, or appropriateness” of duly enacted economic regulations. …”For many years, and under the pretext of protecting ‘economic liberty’ and ‘freedom of contract,’ the Supreme Court routinely struck down laws that a majority of the Court deemed unwise or improvident,” Wecht wrote of Lochner and several related cases. …I would encourage Justice Wecht to read some more legal history. …Rep. John Bingham (R–Ohio)…served as the principal author of Section One of the 14th Amendment… As Bingham told the House of Representatives, “the provisions of the Constitution guaranteeing rights, privileges, and immunities” includes “the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.” …even those who opposed the passage of the 14th Amendment agreed that it was designed to protect economic liberty from overreaching state regulation… The “right to contract” was of course later secured by the Supreme Court in Lochner.
Let’s close by detouring into the world of fantasy and contemplating how we should amend the Constitution today?
Rory Magraf lists five ideas in a piece for the Foundation for Economic Education, one of which I find especially tempting.
…the conversation always gets the cerebral juices flowing for legal enthusiasts; the idea of amending the US Constitution, something done only twenty-seven times in history, is about as close as one will get to actually sitting among the Founders in Philadelphia. With that in mind, here are some ideas.
The Sixteenth Amendment to the Constitution of the United States is hereby repealed.
In short, abolish the income tax. This is usually a crowd-pleaser among libertarians and probably a handful of Republicans during an election year, but it is also a bit of a challenge, on the same level as chasing the moon. Still, it would be worthwhile to have the conversation.
Since I’m definitely not a fan of the income tax, I certainly endorse this notion.
However, I think we would need much stronger language. The key 1895 case that struck down the income tax was decided by a the narrow margin of 5-4, and that was back when Justices presumably cared more about the Constitution.
I fear that a similar case today would not lead to the right result (which is one of the reasons I’m skeptical of a national sales tax).
This is because the Commonwealth has had a dull profile. It doesn’t have a track record of notably good policies, such as Florida and Texas, and it doesn’t have a track record of notably bad policies, such as Illinois or New Jersey.
But that’s changed now that Democrats have total control of government and are trying to restrict Second Amendment rights.
Here are excerpts from a report immediately after last November’s elections.
Virginia Gov. Ralph Northam on Wednesday said he will reintroduce gun control measures in the upcoming legislative sessions now that Democrats have taken control “…These are common-sense pieces of legislation,” he told CNN’s John Berman on “New Day.” “I will introduce those again in January. And I’m convinced, with the majority now in the House and the Senate, they’ll become law…”Northam and Democrats will now have an advantage in the assembly to pursue gun control measures that Republicans have pushed against and blocked. …A ban on assault weapons and high-capacity magazines and reinstating Virginia’s one-handgun-a-month law were among eight policy proposals Northam introduced ahead of the session.
From a policy perspective, Northam and his allies are misguided.
In a tweet,Stephen Gutowski debunks some of the Governor’s demagoguery.
The FBI reported Virginia had 297 murders involving a firearm in 2018. Rifles, of which the AR-15s Governor Northam has supported confiscating are only a subset, were involved in 8 murders. https://t.co/jb5XzL8kQXhttps://t.co/IQEUP0mpHJ
Democrats, who just took control of the Virginia state legislature, are about to pass a law that will dramatically limit the ability of people with concealed handgun permits from other states to carry in Virginia. …Currently, Virginia recognizes concealed handgun permits issued by all other states. Out-of-state permit holders can carry in Virginia as long as they follow local laws and carry photo identification. …If state Democrats and Henning get their way, criminals will only need to look for an out of state license plates to know who to attack. …There’s no good reason not to issue permits much more generously. Permit holders are extremely law-abiding… Police rarely commit crimes… But permit holders are even more law-abiding, facing a conviction rate that is just one-tenth as often. …there is a reason that over 86% of police chiefs and sheriffs support national reciprocity. And over 90 percent of street officers support concealed handgun laws. These are the people who see first-hand how reciprocity and concealed carry works. Overwhelmingly academic research finds that letting people carry concealed handguns reduces crime.
But this isn’t just an issue of bad policy (I strongly recommend this column if you want to learn more about the senselessness of proposals to impose gun control).
It’s also an example of how ordinary citizens can – and should – engage in civil disobedience.
The Wall Street Journal recently opined on how counties are voting to become sanctuaries for the Second Amendment.
Eighty-six of Virginia’s 95 counties have passed…sanctuary measures opposing restrictions on the right to keep and bear arms. They suggest that the counties might not enforce new state laws limiting gun rights. …Democratic Gov. Ralph Northam has made gun control a priority… Senate Majority Leader Dick Saslaw would make it a felony to sell, manufacture, purchase or possess so-called assault weapons and large-capacity magazines. …one state representative wants to call in the National Guard to enforce gun laws, and another has introduced a bill that requires firing police officers who don’t enforce a gun statute. …But the sanctuary movement has a point about the Constitution. The Supreme Court confirmed in its landmark Heller ruling that individuals have the right to bear arms, but politicians have often ignored it. …Sanctuary counties that decline to enforce Virginia laws are endorsing lawlessness. But it is no less lawless when the courts or politicians ignore Supreme Court decisions.
And the Washington Examinerreports on protests from citizens across the state.
Some 100,000 Virginia gun owners who have rallied at county and town meetings for “gun sanctuaries”…the Virginia Citizens Defense League, which is leading the gun sanctuary movement…issued an “alert” to supporters to start lobbying lawmakers in Richmond against gun control. He said that the new anti-gun laws from Democrats are “pouring in like a waterfall.” …Van Cleave’s group and another organization, Gun Owners of America, have helped to spark a pro-gun movement in Virginia that did not exist before Democrats swept the November 2019 elections. In the two months since, they led the sanctuary movement that has won approval in 94% of the state. …“Virginia had been a very free state for a long time. This is where freedom started…people are looking at Virginia, saying our freedom started here and … we’ll be damned if it ends here,” he added.
Indeed, there’s a big protest planned in Richmond for January 20.
And the Governor is quite nervous, as reported by NPR.
Fearing potential violence, Virginia Gov. Ralph Northam is declaring a state of emergency and is banning firearms and other weapons on the Capitol grounds in Richmond ahead of a gun rights demonstration… The event, hosted by Virginia Citizens Defense League, is expected to draw thousands of armed demonstrators, some from out of state. …On a Facebook page organizing the gun rights demonstration hosted by the Virginia Citizens Defense League, several commenters expressed frustration at Northam’s move to restrict guns from the Capitol grounds. One wrote, “This is simply a move to infringe on not only our 2nd Amendment rights but our 1st Amendment rights as well.”
By the way, there are sanctuary movements and other forms of civil disobedience all across the nation.
I’ve already written about such efforts in Colorado and Connecticut, and the Wall Street Journalreports on what’s now happening in New Mexico and Illinois.
…in New Mexico, 30 of 33 county sheriffs have signed a letter pledging to not help enforce several gun-control measures supported by Democrats in Santa Fe, according to the state’s sheriff association. The sheriffs, who are elected, say they are heeding the wishes of voters in the counties they serve. More than two dozen counties in the state have enacted “sanctuary” resolutions backing the sheriffs and affirming that no tax dollars in their jurisdictions should go to enforcing the proposed laws. …Elsewhere, about 60 counties in Illinois have approved—some by ballot measures—pro-Second Amendment resolutions, according to the Illinois State Rifle Association. …More than half of Washington’s sheriffs have denounced a gun-control package…as an unconstitutional and unenforceable step toward banning semiautomatic weapons. …In 2013, Colorado sheriffs joined a lawsuit in protest of expanded background checks and restrictions on higher-capacity ammunition magazines… Colorado sheriffs have very rarely charged anyone with violations, according to Dave Kopel, an attorney and scholar who represented the plaintiffs.
The article cites a law professor who explains that there is a downside to civil disobedience.
Norman Williams, a Willamette University law professor…drew a distinction between prosecutorial discretion and a categorical refusal to enforce a law. The latter undermines the rule of law, he said.
That’s a very fair point. But I also agree with the Wall Street Journal‘s argument that it is also “lawless when the courts or politicians ignore Supreme Court decisions.”
And that’s a perfect description of the actions of Northam and the rest of the anti-gun crowd.
Let’s close with a map showing the widespread resistance to the Virginia Governor’s anti-Second Amendment efforts.
Hopefully, more green has been added to this map over the past two weeks (though keep in mind that a big chunk of the state’s population lives in the handful of localities – Richmond, Northern Virginia, etc – that have not joined the resistance).
P.S. As noted above, civil disobedience is not the ideal way to deal with bad government policy. But when laws are immoral, despicable, and/or unconstitutional (everything from wretched Jim Crow laws to predatorytraffic cameras), then I fully understand why ordinary citizens choose not to comply.
P.P.S. On a related note, citizens can also resist bad law by engaging in “jury nullification.”
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).
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.
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.
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.
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.
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.
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.
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.
…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.
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.
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: LibertarianReddit).
The most cogent warning about majoritarianism comes from the great Thomas Sowell.
"In the modern welfare state, a vote becomes a license to take what others create — and these others include generations yet unborn."
The following day, your blood boils when you learn the government stole somebody’s property.
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 Journalopined 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!
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.
If you claim to be for small government, but supported Trump when he broke the spending caps, you’re not a Reaganite.
If you claim to be for small government, but no longer care about entitlements because Trump opposes reform, you’re not a Reaganite.
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 Journalopines 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.
But I sometimes come across an incident that challenges these principles.
Let’s look at a horrible story from Michigan about girls being genitally mutilated.
Dr. Jumana Nagarwala was arrested in April 2017 and accused of leading a criminal conspiracy that involved multiple doctors and resulted in the mutilation of nine girls over the course of twelve years. The practice, which is universally recognized as a gross violation of human rights, is traditional among the Dawoodi Bohra, the Muslim sect to which Nagarwala and his co-conspirators belong.
My visceral instinct is for some tit-for-tat justice. The so-called doctors should receive equivalent treatment, without the benefit of anesthesia.
Since that’s not an option, a very lengthy prison sentence could be the next-best alternative.
But something very unusual happened. The barbaric doctors had been charged by the federal government based on a federal law against genital mutilation, and a judge decided that the statute exceeded the proper powers of the federal government.
A federal judge dismissed charges Tuesday against several Michigan doctors accused of mutilating the genitals of numerous underage girls, ruling that the federal prohibition against the practice is unconstitutional. U.S. District Judge Bernard Friedman argued that the 22-year-old federal law prohibiting female genital mutilation (FGM), which went unused until last year, constitutes federal overreach. …the judge’s ruling entirely clears four defendants in the case, including three mothers who allegedly handed their underage daughters over to Nagarwala to be mutilated.
This is a quandary.
I want the “doctors” to be thrown under the jail, yet part of me is very happy that a federal judge actually acknowledges that the Constitution imposes some limits on federal power.
Too bad Judge Friedman wasn’t sitting in for Justice John Roberts when the Obamacare case was (wrongly) decided.
Anyhow, here’s what has since happened.
In response to the case, Michigan governor Rick Snyder signed new laws prohibiting the practice of FGM, but as those laws applied only to future violations, the defendants in this case were charged under the old federal statute. Twenty-three other states, however, do not have laws banning the practice, leading critics of the judge’s ruling to suggest that parents intent on mutilating their daughters for religious purposes will simply travel to states where they can do so legally.
I have a couple of concluding thoughts.
First, I imagine that all 50 states – even crazy California – will pass laws against this barbaric ritual. So there’s no reason to relax my strong support for federalism.
Second, I hope Michigan authorities figure out how to charge the so-called doctors under existing state laws against assault, kidnapping, and anything else that might work.
In conclusion, I’m not under the illusion that any system will deliver perfect justice. But I do think we would get the best-possible outcomes if we adhered to constitutional principles and restricted the size and scope of the federal government.
To keep with tradition, it’s time to expand my collection of 4th-of-July columns.
In 2010, I contemplated the issue of libertarians and patriotism. My view, for what it’s worth, is captured by this t-shirt.
In 2011, I pondered research about the partisan implications of patriotism and also created a satirical Declaration of Dependency for my left-wing friends.
In 2012, I shared an inspirational video about freedom and individualism from Ronald Reagan.
In 2013, I discussed the proper meaning of patriotism in the aftermath of revelations about NSA snooping.
In 2014, I decided on a humorous approach with one a Remy video about government being “up in your grill.”
In 2015, I waded into the controversial topic of what happens when flag burning meets the modern regulatory state.
In 2016, I looked at how government has increased the cost of celebrating Independence Day.
In 2017, I explained the difference between the statist vision of “positive liberty” and the libertarian vision of “negative liberty.”
In 1926, Calvin Coolidge spoke on the 150th anniversary of the signing of the Declaration of Independence. Here’s some of what he said.
When we come to examine the action of the Continental Congress in adopting the Declaration of Independence in the light of what was set out in that great document and in the light of succeeding events, we can not escape the conclusion that it had a much broader and deeper significance than a mere secession of territory and the establishment of a new nation. …It was not because it was proposed to establish a new nation, but because it was proposed to establish a nation on new principles, that July 4, 1776, has come to be regarded as one of the greatest days in history. …In its main features the Declaration of Independence is a great spiritual document. It is a declaration not of material but of spiritual conceptions. Equality, liberty, popular sovereignty, the rights of man — these are not elements which we can see and touch. They are ideals. …It was in the contemplation of these truths that the fathers made their declaration and adopted their Constitution. It was to establish a free government, which must not be permitted to degenerate into the unrestrained authority of a mere majority or the unbridled weight of a mere influential few. …These are our guaranties of liberty. As a result of these methods enterprise has been duly protected from confiscation, the people have been free from oppression.
If you have the time, click on the link and read the entire speech. But if you don’t have time, I hope the passages I excerpted reveal Coolidge’s appreciation for the philosophy of American independence.
I also like how he links those principles to economics, which is nicely captured in the last sentence.
Sadly, the Supreme Court no longer protects our economic liberties (John Roberts providing the most recent example), but it was nice while it lasted.
For what it’s worth, my favorite part of the conversation is about how markets are mutually beneficial, whereas government is a zero-sum, or negative-sum game.
Let’s close with a celebration of the great American tradition of civil disobedience against the state.
Sadly, with the likely exception of gun owners, we no longer seem to have the same ornery attitude as our ancestors. Though Charles Murray has a plan to recreate a culture of civil disobedience.
In 2015, Jamelle Bouie poured cold water on Obama’s gun control agenda.
Last year, Leah Libresco confessed that gun control simply doesn’t work.
Now it’s time to look at another person who has changed his mind.
Here are some excerpts from a column in the Des Moines Register written by a long-time supporter of gun control.
I was 14 years old when John Lennon was killed — it affected me deeply and it was the biggest event that led to my anti-gun feelings. As I got older, my heroes were JFK, RFK and MLK, which furthered my anti-gun sentiments. …I thought the Second Amendment was not relevant to our modern-day society and it should be repealed. …In 2012 I tweeted: “@BarackObama please repeal the 2nd amendment and stop the @nra.” …I was a lifelong Democrat. In the 2016 presidential debates I watched…Hillary Clinton… I voted for her. …I was a little turned off by…the NRA.
But he began to change his mind as the election was happening.
I decided to leave San Francisco and to build a house in Washington. …as my house was being built I started wondering what I would do in the event of a home invasion. I knew right away becoming a gun owner was going to be the best way to defend myself.
Sounds like he’s part of the 22 percent in my poll who support the 2nd Amendment because of concerns about crime.
But he also enjoyed the process of becoming proficient.
I gave it a lot of thought and decided I was going to purchase a gun and learn to shoot… I started going to the range and discovered that I really enjoyed target shooting.
His philosophical shift apparently wasn’t because he was convinced by the NRA, but rather because he grew increasingly concerned about the left’s radical opposition to private firearms (something I’ve noticed as well).
I gradually came around to see how extremely anti-gun, anti-Second Amendment the left was. For a large portion of them, their ultimate goal is a full gun ban and to repeal the Second Amendment — I know I was one of them.
And even though he no longer considers himself on the left, he doesn’t want his friends on that side of the debate to misinterpret his views.
To my easily confused friends on the left — no, I am not calling for violence; no, I am not a terrorist, no, I am not racist. Peace.
Since the author’s overall perspective has changed, I guess he doesn’t belong on my “honest leftists” page, but his shift on gun rights is nonetheless worth noting.
Hopefully he’s now sufficiently “woke” on guns that he would be part of the resistance if his former fellow travelers on the left ever tried a gun ban.
To close on a humorous note. Here’s the visual version of my IQ test on guns.
Like many libertarians, I’ve always assumed that Thomas Jefferson was one of the best Founding Fathers.
He certainly was an advocate of liberty and I’ve cited him several times (see here, here, here, here, here, and here) over the years.
But maybe being quotable is not enough.
There’s a fascinating article in the latest issue of Cayman Financial Review that looks at the emergence of economic liberty in the Anglo-Saxon world and it makes a persuasive argument that Alexander Hamilton was a more effective advocate of free markets.
Written by a Washington-area economist who uses a nom de plume because of his position in government, the article starts by explaining that England’s Whig Revolution in the early 1700s helped create the conditions for astounding British prosperity. Notwithstanding resistance from the landed elites.
In England, the Whig Revolution was a series of events – the successful invasion of William of Orange to dethrone James II in 1688, the selection of George I to succeed Queen Anne in 1714, and the selection of Robert Walpole as the first Prime Minister in 1721 – that created the Westminster parliamentary system… Most important, the Whig Revolution also created the institutional and legal framework that transformed England into a modern capitalist economy and sparked the Industrial Revolution. The adoption of Dutch commercial law, the creation of the Bank of England, and the circulation of its bank notes monetized the English economy. English courts abandoned the medieval “just price” doctrine, which let judges nullify contracts after the fact based on the concept that all goods and services had an objective value and any deviation from this just price should therefore be unlawful. …Traditional guilds collapsed. Entrepreneurs were free to create new firms, determine output and prices, borrow from banks, and issue stock. New manufacturing firms lured workers away from the estates of the landed gentry to rapidly growing English cities with wages paid in paper currency. …Rapid economic, political, and social change inevitably produced a reaction led by the arch-Tory Henry St. John, the First Viscount Bolingbroke. …To Bolingbroke, the Whig Revolution corrupted England… Bolingbroke rejected the legal and political reforms that created a modern capitalist economy. …But he failed to turn back the clock.
The same battle occurred on the other side of the ocean. albeit several decades later.
And most of America’s Founders apparently were not on the right side.
The Whig Revolution, which had allowed England to develop a modern capitalist economy, did not immediately cross the Atlantic. …In the 1770s, colonial legislatures still regulated the prices for many goods and services and forbade arbitrage and speculation. Colonial courts still accepted “just price” doctrine, allowing judges, all whom were members of a small oligarchy, to overturn contracts when market prices moved against colonial elites. And when crops failed or prices fell, colonial legislatures frequently declared “debt holidays” to prevent creditors from seizing the property of the colonial oligarchs. …Most of the America’s founders were from the small, wealthy elite in the colonies. Identifying with the English gentry rather than the rising middle class, Bolingbroke greatly influenced most of the founders’ views of economics and politics. Most founders, especially Thomas Jefferson and James Madison, agreed with Bolingbroke about the primacy of agriculture, shared his fears of banks and a paper currency, and dreaded industrialization. Most founders accepted Bolingbroke’s policy recommendations.
But Alexander Hamilton had a more enlightened outlook.
Alexander Hamilton was different than other founders. …Hamilton immigrated to America in 1773. Serving as General George Washington’s aide-de-camp, Hamilton observed how a weak Continental Congress imperiled the war effort. …Hamilton had a very different prospective from other founders with the notable exceptions of Washington and John Marshall. Hamilton wanted America to become a dynamic meritocracy. …Hamilton wanted poor, but talented individuals like himself to have avenues other than land ownership to earn wealth. Moreover, Hamilton rejected slavery because it prevented slaves from their full economic potential and made masters indolent and lazy. Moreover, Hamilton rejected racism. “The contempt we have been taught to entertain for the blacks, makes us fancy many things that are founded neither in reason nor experience.” During the Revolution, Hamilton proposed emancipating slaves that agreed to fight in Continental Army. Later Hamilton founded the New York Society for the Manumission of Slaves. Instead of Bolingbroke, Hamilton embraced the Whig Revolution and wanted to bring its economic benefits to the United States. …Moreover, Hamilton was staunch defender of property rights even when it was politically costly to him. As a lawyer in New York City, he successfully argued for the restoration of property of Englishmen and Loyalists that had been seized after the Revolutionary War in violation of the Treaty of Paris and the law of nations.
What about Hamilton’s protectionism?
He’s semi-guilty, but the author explains that Hamilton was mostly looking for a way of funding a modest-sized government.
While some future policymakers misused Hamilton to justify their protectionism, Hamilton was not a protectionist in the modern sense. …In a world in which income and value-added taxes had not been invented, …Hamilton favored a revenue tariff that averaged about 10 percent over a property tax to fund the federal government. Hamilton sought to maximize the federal government’s revenue and provide a modest margin of protection to domestic manufacturers rather than to block imports. Indeed, Hamilton argued: “It is a signal advantage of tax on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed – that is an extension of the revenue.”
I’m not fully convinced that Alexander Hamilton is a libertarian hero (that would entail support for free banking rather than his version of central banking), but I’m looking at him much more favorably after reading this article.
And I’m now significantly less sympathetic to Thomas Jefferson.
I’ll close on a wonky note. In my column about the would-be nation of Liberland, I cited some research on the relationship between “state capacity” and economic prosperity. The notion is that an economy won’t prosper unless a government is both strong enough and effective enough to deter aggression and to provide rule of law (while otherwise leaving the private sector unmolested).
I’m certainly no expert on the Founding Fathers, but it seems that Hamilton had that point of view.
I don’t own an AR-15. I’m not a “gun person,” whatever that means. I hardly ever shoot. And I never hunt.
But I’m nonetheless a big supporter of private gun ownership. In part, this is because I have a libertarian belief in civil liberties. In other words, my default assumption is that people should have freedom (the notion of “negative liberty“), whereas many folks on the left have a default assumption for that the state should determine what’s allowed.
I’m sometimes asked, though, whether supporters of the 2nd Amendment are too rigid. Shouldn’t the NRA and other groups support proposals for “common-sense gun safety”?
Some of these gun-control ideas may even sound reasonable, but they all suffer from a common flaw. None of them would disarm criminals or reduce gun crime. And I’ve detected a very troubling pattern, namely that when you explain why these schemes won’t work, the knee-jerk response from the anti-gun crowd is that we then need greater levels of control. Indeed, if you press them on the issue, they’ll often admit that their real goal is gun confiscation.
Though most folks in leadership positions on the left are crafty enough that they try to hide this extreme view.
So that’s why – in a perverse way – I want to applaud John Paul Stevens, the former Supreme Court Justice, for his column in the New York Times that openly and explicitly argues for the repeal of the 2nd Amendment.
…demonstrators should…demand a repeal of the Second Amendment. …that amendment…is a relic of the 18th century. …to get rid of the Second Amendment would be simple and would do more to weaken the N.R.A.’s ability to stymie legislative debate and block constructive gun control legislation than any other available option. …That simple but dramatic action would…eliminate the only legal rule that protects sellers of firearms in the United States.
The reason I’m semi-applauding Stevens is that he’s an honest leftist. He’s bluntly urging that we jettison part of the Bill of Rights.
Many – if not most – people on the left want that outcome. And a growing number of the are coming out of the pro-confiscation closet. In an article for Commentary, Noah Rothman links to several articles urging repeal of the 2nd Amendment.
They’re talking about repealing the Second Amendment. It started with former Supreme Court Justice John Paul Stevens and George Washington University Law Professor Jonathan Turley. …Turley and Stevens were joined this week by op-ed writers in the pages of Esquire and the Seattle Times. Democratic candidates for federal office have even enlisted in the ranksvvvvvvvv of those calling for an amendment to curtail the freedoms in the Bill of Rights. …anti-Second Amendment themes…have been expressed unashamedly for years, from liberal activists like Michael Moore to conservative opinion writers at the New York Times. Those calling for the repeal of the right to bear arms today are only echoing similar calls made years ago in venues ranging from Rolling Stone, MSNBC, and Vanity Fair to the Jesuit publication America Magazine.
But others on the left prefer to hide their views on the issue.
Indeed, they even want to hide the views of their fellow travelers. Chris Cuomo, who has a show on MSNBC, preposterously asserted that nobody supports repeal of the 2nd Amendment.
this is a lot of bunk. no one calling for 2A repeal. stop with the bogeymen. we need to stop the shootings and have a rational conversation about what can be done. https://t.co/P2MYoY4EtO
It’s also worth noting that Justice Stevens got scolded by a gun-control advocate at the Washington Post.
One of the biggest threats to the recovery of the Democratic Party these days is overreach. …But rarely do we see such an unhelpful, untimely and fanciful idea as the one put forward by retired Supreme Court justice John Paul Stevens. …Stevens calls for a repeal of the Second Amendment. The move might as well be considered an in-kind contribution to the National Rifle Association, to Republicans’ efforts to keep the House and Senate in 2018, and to President Trump’s 2020 reelection bid. In one fell swoop, Stevens has lent credence to the talking point that the left really just wants to get rid of gun ownership. …This is exactly the kind of thing that motivates the right and signals to working-class swing voters that perhaps the Democratic Party and the political left doesn’t really get them.
The bottom line is that the left’s ultimate goal is gutting the 2nd Amendment. Not much doubt of that, even if some leftists are politically savvy enough to understand that their extremist policy is politically suicidal.
But let’s set aside the politics and look at the legal issues. There’s another reason why I’m perversely happy about the Stevens oped. Even though he was on the wrong side of the case, he effectively admits that the 2008 Heller decision enshrined and upheld the individual right to own firearms.
And the five Justices who out-voted Stevens made the right decision. I’m not a legal expert, so I’ll simply cite some people who are very competent to discuss the issue. Starting with what Damon Root wrote for Reason.
One problem with Stevens’ position is that he is dead wrong about the legal history. …For example, consider how the Second Amendment was treated in St. George Tucker’s 1803 View of the Constitution of the United States, which was the first extended analysis and commentary published about the Constitution. For generations of law students, lawyers, and judges, Tucker’s View served as a go-to con-law textbook. …He observed the debates over the ratification of the Constitution and the Bill of Rights as they happened. And he had no doubt that the Second Amendment secured an individual right of the “nonmilitary” type. “This may be considered as the true palladium of liberty,” Tucker wrote of the Second Amendment. “The right of self-defense is the first law of nature.” In other words, the Heller majority’s view of the Second Amendment is as old and venerable as the amendment itself.
Well stated.
Though the real hero of this story is probably Joyce Lee Malcolm, the scholar whose work was instrumental in producing the Heller decision. John Miller explains for National Review.
Malcolm looks nothing like a hardened veteran of the gun-control wars. Small, slender, and bookish, she’s a wisp of a woman who enjoys plunging into archives and sitting through panel discussions at academic conferences. Her favorite topic is 17th- and 18th-century Anglo-American history… She doesn’t belong to the National Rifle Association, nor does she hunt. …She is also the lady who saved the Second Amendment — a scholar whose work helped make possible the Supreme Court’s landmark Heller decision, which in 2008 recognized an individual right to possess a firearm.
Ms. Malcolm started as a traditional academic.
For her dissertation, she moved to Oxford and Cambridge, with children in tow. …Malcolm’s doctoral dissertation focused on King Charles I and the problem of loyalty in the 1640s… The Royal Historical Society published her first book.
But her subsequent research uncovered some fascinating insights about the right to keep and bear arms.
At a time when armies were marching around England, ordinary people became anxious about surrendering guns. Then, in 1689, the English Bill of Rights responded by granting Protestants the right to “have Arms for their Defence.” Malcolm wasn’t the first person to notice this, of course, but as an American who had studied political loyalty in England, she approached the topic from a fresh angle. “The English felt a need to put this in writing because the king had been disarming his political opponents,” she says. “This is the origin of our Second Amendment. It’s an individual right.” …Fellowships allowed her to pursue her interest in how the right to bear arms migrated across the ocean and took root in colonial America. “The subject hadn’t been done from the English side because it’s an American question, and American constitutional scholars didn’t know the English material very well,” she says. …The Second Amendment, she insisted, recognizes an individual right to gun ownership as an essential feature of limited government. In her book’s preface, she called this the “least understood of those liberties secured by Englishmen and bequeathed to their American colonists.”
And it turns out that careful scholarship can produce profound results.
…in 2008, came Heller, arguably the most important gun-rights case in U.S. history. A 5–4 decision written by Scalia and citing Malcolm three times, it swept away the claims of gun-control theorists and declared that Americans enjoy an individual right to gun ownership. “…it gave us this substantial right.” She remembers a thought from the day the Court ruled: “If I have done nothing else my whole life, I have accomplished something important.” …the right to bear arms will not be infringed — thanks in part to the pioneering scholarship of Joyce Lee Malcolm.
Let’s close with a video from Prager University, narrated by Eugene Volokh, a law professor at UCLA. He explains the legal and historical meaning of the 2nd Amendment.
In other words, the bottom line is that the Justice Stevens and other honest leftists are right. The 2nd Amendment would need to be repealed in order to impose meaningful gun control.
And I suppose it’s also worth mentioning that it won’t be easy to ban and confiscate guns if they ever succeeded in weakening the Bill of Rights. But hopefully we’ll never get to that stage.
We’ll start with this humorous image from Reddit‘s libertarian page that actually does a good job of showing that gun control is pointless because criminals don’t care about laws.
This next image, also from Reddit, resonates with me because I’ve had many conversations with leftists who genuinely think a “semi-automatic rifle” is the same as a machine gun.
Or that “assault weapons” are somehow more lethal hunting rifles.
Though the gun-control crowd doesn’t seem to care even when you point out that their talking points are nonsense.
This next image arrived in my inbox a few days ago. I imagine the women calling the cops also failed this IQ test.
Next we have an apparently genuine sign from one of the student protests against civil liberties. Astoundingly, this girl doesn’t realize that she has everything wrong. The White House is filled with armed personnel and her school is the gun-free zone.
And we know from this cartoon whether bad people prefer unarmed victims. I guess we’ll call the student Exhibit A in the case against government-run schools.
This next item isn’t humorous, but I’m including it solely because I hope it’s a true story rather than an urban legend. If anybody knows, please share details in the comments section.
I like this next item because libertarians seem to be the only ones who value both the 1st Amendment and 2nd Amendment.
Given how California has drifted so far to the left, this next joke my turn into reality at some point. Well, even they’re not that foolish, but I can’t help but hope it might happen.
Last but not least, this item from Reddit‘s libertarian page does make me wonder about my left-wing friends. They despise Trump, yet they want to citizens to be disarmed.
Leah Libresco confesses that gun control simply doesn’t work.
A columnist for Vox also is honest. Dylan Matthews starts by acknowledging that the standard agenda of the anti-gun movement is pointless.
Congress’s decision not to pass background checks is not what’s keeping the US from European gun violence levels. The expiration of the assault weapons ban is not behind the gap.
But don’t get your hopes up that Matthews is on the right side.
His problem with the incremental ideas is that they don’t go far enough.
What’s behind the gap, plenty of research indicates, is that Americans have more guns. …Realistically, a gun control plan that has any hope of getting us down to European levels of violence is going to mean taking a huge number of guns away from a huge number of gun owners. …And here’s the truth: Even the most ardent gun control advocates aren’t pushing measures that could close the gap. Not even close. …Obama’s plan to tackle gun violence focused on universal background checks for gun sales, banning assault weapons again, and increasing criminal penalties for illicit gun traffickers. That’s nowhere near as dramatic as taking…America’s guns off the street.
I obviously disagree, but I give him credit for honesty. Unlike other leftists who privately share the same ideology, Matthews is open and honest about his desire to eviscerate civil liberties.
Even if he understands it’s not going to happen any time soon.
…large-scale confiscation look like easily the most promising approach… Large-scale confiscation is not going to happen. That’s no reason to stop advocating it.
I think they’re all profoundly misguided, but that’s a separate issue.
Now let’s briefly contemplate what would be necessary for Mr. Matthews to get his wish of total gun confiscation.
Reason produced a mocking “five-step” video on the near-impossible actions that would be needed to achieve that goal.
But the first three steps in that video were about how difficult it is to amend the Constitution and I don’t think that’s what the left has in mind. If they ever get to the point of trying to ban guns, presumably it will be after a leftist President has put a sufficient number of doctrinaire Ruth Bader Ginsburg clones on he Supreme Court. In which case, they will simply pretend the 2nd Amendment doesn’t say what it says.
And if that happens, then presumably it will be easy to envision the fourth step, which is legislation prohibiting private ownership of firearms. After all, does anybody doubt that this is what Chuck Schumer and Nancy Pelosi actually would prefer?
But I fully agree that the fifth and final step – actually confiscating guns – would be extremely difficult.
There was a poll on this issue back in 2013 and it’s worth noting that respondents, by a 3-1 margin, said they would defy such a law.
I oscillate between being proud about the result and being disappointed that the margin isn’t 10-1 in favor of defiance.
Regardless, the takeaway from this result is that there would be pervasive and ubiquitous civil disobedience.
Moreover, it goes without saying that the people who obeyed such a fascist law would not be the criminals. So the net effect of such legislation would be an unfortunate shift in the ratio of good gun owners and bad gun owners.
It’s been several weeks since the awful tragedy in Parkland, FL, where 17 students were killed by an evil loser. Since I written several times about the utter impracticality of gun control, and since a growing number of honest liberals (see here, here, here, and here) also acknowledge that such laws are ill-advised, I didn’t think another column would be necessary.
However, the controversy isn’t going away. Left-wing groups are using some of the students as props in a campaign to push restrictions on private gun ownership.
So I decided to take part in a four-person debate on the issue for France 24. Needless to say, I was the only pro-Second Amendment person on the show (it was 4-1 against me if you include the moderator). You can watch the entire 45 minutes by clicking here, but you can get a good idea of the one-sided nature by simply watching this excerpt from the introduction.
Here’s the first question I fielded, which gave me a chance to knock our unprincipled President.
But more importantly, I noted that gun control doesn’t succeed because ordinary Americans are very diligent about protecting their constitutional rights.
This next segment gave me an opportunity to make several points.
The silliness of banning “scary looking” rifles when there are hundreds of millions of other weapons that work the same way.
Democrats have rallied behind truly radical legislation targeting all semi-automatic weapons (knowing that non-gun people don’t know what that term means, I used “non-revolver” as a synonym, but I admit that probably isn’t any better).
Gun bans are especially absurd in a world with 3D printers.
Censorship would probably be effective in reducing mass shooters, but I don’t want to repeal the First Amendment.
Rising levels of gun ownership are correlated with lower levels of crime.
By the way, none of the other guests ever tried to refute any of my points. Check the full video if you doubt me.
I also was asked about private companies restricting gun sales.
And you’ll notice I took another shot at our unprincipled president. Our Constitution is not a pick-and-choose document.
So what’s the practical impact of all this?
Gun-control proposals generally fall into two categories. Some politicians go after the “military-style” weapons, which is empty posturing that will no (positive) impact on crime. I wrote about this issue in the past, and you can click here and here for added info on the failed 1994 ban.
Or they go for sweeping gun bans and confiscation. Which, if ever enacted, would lead to widespread civil disobedience.
So we know that’s not the answer.
But what is the right approach? As I noted in the interview, there probably is no complete solution.
That being said, let’s dig into the issue of whether teachers and other school personnel should be allowed to carry concealed weapons are a last line of defense of nutjobs.
Teachers could soon be carrying concealed guns inside schools in Pike County under a proposal that was preliminarily approved Monday evening by the Pike County School Board. The unanimous decision…was prompted by multiple school shootings in recent weeks… Schools Superintendent Reed Adkins said he hopes the board will give final approval within two to three weeks, and to have armed staff in schools by fall, if not sooner. …State Sen. John Schickel, R- Union, has introduced Senate Resolution 172 that would urge boards of education to allow teachers and other school personnel to carry firearms for their own protection. …Multiple mothers of Pike County students urged quick action Monday to provide schools with some type of security, saying their children have been scared to attend school.
One of the first school districts in the state of Colorado to implement such a policy was in eastern El Paso County… A decision made in hopes of preventing another school shooting here at home and more than a year later, most people are grateful this was put into place. “Our school’s pretty much a model for school safety,” Terry Siewiyumptewa, a parent said. …”Our staff members, it could be 100 percent, are armed and are here to protect and keep our students safe,” Dr. Grant Schmidt, Superintendent for Hanover School District 28 said. Now, teachers, administrators, custodians and even bus drivers can all volunteer to conceal carry in school… “We need safe schools and our school is providing us what we’ve asked for,” Siewiyumptewa said. …”The only way to stop a bad guy with a gun, is a good guy with a gun,” she said. …Students we spoke with say it has added an extra level of comfort. …Dr. Schmidt says he’s been getting calls from other school districts across the country all year, wanting to know how they put this into place, asking for guidance, research and other documents to use as a model.
…at Argyle High School, the..teachers are packing handguns. A sign outside campus warns: “Please be aware that the staff at Argyle [Independent School District] are armed and may use whatever force is necessary to protect our students.” …In about two dozen states, including California, schools can allow staff to carry guns on campus, although some require concealed-carry licenses, according to the National Conference of State Legislatures. …Officials at Argyle and other districts say the policies deter shooters and provide peace of mind, and that other schools should follow their lead. Scores of Texas school districts allow teachers to carry arms. …”It’s essential to keep us safe,” said Lizzie Dagg, 18, Argyle senior class president, who spent part of lunch Thursday signing a banner expressing sympathy to Parkland students. …history teacher Sharon Romero…said. “I feel safer coming to work than a lot of other teachers in this country do.” …Argyle High Principal James Hill, who has three children in the school system, was skeptical about the policy when he was hired in 2015, but said, “Now I’m a believer.” …he said of school shootings. “… I want to give our kids a fighting chance.”
Here are two maps from the article, showing who is allowed to have guns in a school. Here’s the map for the general public.
And here’s the map for government employees.
Amazingly, there is an outpost of common sense in California.
One California school district has voted to allow staff members to carry guns on campus. The district says the policy was put in place to ensure the safety of students in case there is an active shooter situation. …Kingsburg High School District, near Fresno, is just the second district in the state to allow concealed weapons at school buildings.
Even the New York Timeshas noticed this growing trend.
For all the outcry, though, hundreds of school districts across the country, most of them small and rural, already have. Officials…do not see the weaponry scattered through their schools as a political statement, but as a practical response to a potent threat. …At least 10 states allow staff members to possess or have access to a firearm on school grounds, according to an analysis by the Education Commission of the States. And local districts have varied their approach to arming educators — in Ohio, guns are kept in safes; in Texas, they can be worn in holsters or kept in safes within immediate reach. …In Texas, some public school systems have been quietly arming teachers and administrators for more than a decade.
This part of the story is very powerful.
Sidney City Schools was shaken by the slaughter of 20 first graders and six staff members at Sandy Hook in 2012. In the following days, Sheriff Lenhart presented Mr. Scheu with an equation: Every 17 seconds after the first shots are fired and the first 911 call is made, somebody gets hurt or dies. “Even in the best-case scenario, we could get here in four to five minutes,” Sheriff Lenhart said. “You do the math.” …Sheriff Lenhart…led what he calls a “layered” approach to school security and a “conservative” approach to arming teachers in the 3,400-student school district. The district spent about $70,000 on safes, bulletproof vests, cameras, guns, radios and ammunition…negligible costs for a school district with a $36 million budget… there’s a secret group of 40 educators — teachers, principals, custodians, secretaries — called a “first responder team” that can retrieve firearms in under a minute.
Bureaucrats weren’t happy about this development, but guess who is pleased?
The measures here met some opposition at first, from the town’s teachers union and police chief, who were concerned about gun safety. …Nicki New, the parent of three students in Sidney City Schools, said she felt safer dropping off her children knowing there were staff members equipped to respond to a parent’s worst nightmare.
Does that guarantee safety? Nope. Is it possible a teacher might shoot an innocent person in the stress and chaos of an active-shooter situation? Yup. There are no sure-fire, cost-free solutions to this horrible problem. It’s all about the policies that will improve the odds of good outcomes and reduce the likelihood of bad outcomes.
But here’s my bottom line. If my kids were still young and some miserable excuse for a human being came into one of their schools and started shooting, there’s no question that I would want some of the teachers to be armed.
Moreover, ask yourself whether a nutjob shooter is more likely or less likely to target a school with armed teachers. Like other mass shooters, they almost universally wreak their havoc in so-called gun-free zones.
I’ll close with one final observation. Teacher unions are controlled by leftist ideologues and claim that it’s a bad idea to allow armed teachers. They’re wrong, but the really preposterous part of their argument is that teachers shouldn’t be forced to carry guns.
But nobody is suggesting that. Instead, it’s an option for teachers who are prefer fighting to cowering in a corner waiting to be shot.
And lots of teachers don’t like the latter option, as indicated by this story in the Washington Examiner.
A sheriff in Ohio has already started the process of training school personnel on how to carry a concealed weapon, and predicted on Friday that hundreds would soon be trained and ready. …”While our gov still debates what 2 do we will have trained over 100 school personnel by Saturday,” he added. …Sheriff Jones said his offer to train teachers has been met with an overwhelming response. On Tuesday, he said he cut off requests at 300.
Makes me proud of America’s teachers. Their union stinks, but three cheers for the rank and file.
P.S. Since I’m a fiscal wonk, I rarely get to publicly pontificate on gun rights. Here’s my only other interview on the topic.
I wrote two days ago about a jury correctly voting to acquit a Swiss banker who was being prosecuted (and persecuted) by the government. The jury presumably recognized that it’s not the responsibility of foreign national living in outside the U.S. to enforce our bad tax law.
Instead, I was motivated by the principle that borders should limit the power and reach of government. And this principle is a two-way street. I also don’t want foreign governments to have carte blanche to impose their laws inside the United States.
I’m impressed that ordinary jurors apparently understood that principle better than policy makers in Washington.
But that’s not the only evidence for the wisdom of jurors.
A jury delivered an extraordinary blow to the government in a long-running battle over the use of public lands when it acquitted all seven defendants involved in the armed occupation of a national wildlife refuge in rural southeastern Oregon. …The Portland jury acquitted Bundy, his brother Ryan Bundy and five others of conspiring to impede federal workers from their jobs at the Malheur National Wildlife Refuge, 300 miles southeast of Portland. …Even attorneys for the defendants were surprised by the acquittals. …Federal prosecutors took two weeks to present their case, finishing with a display of more than 30 guns seized after the standoff.
But that was just the start because another trial was scheduled for Nevada.
U.S. District Judge Anna Brown said she could not release Bundy because he still faces charges in Nevada stemming from an armed standoff at his father Cliven Bundy’s ranch two years ago. …Daniel Hill, attorney for Ammon Bundy in the Nevada case, said he believed the acquittal in Oregon bodes well for his client and the other defendants facing felony weapon, conspiracy and other charges.
And what happened at that second trial?
Hold off on that question for a moment, bucause some of Bundy’s allies were given their day in court. The Las Vegas Sunreported on another outbreak of jury nullification.
A federal jury in Las Vegas refused Tuesday to convict four defendants who were retried on accusations that they threatened and assaulted federal agents by wielding assault weapons in a 2014 confrontation to stop a cattle roundup near the Nevada ranch of states’ rights figure Cliven Bundy. In a stunning setback to federal prosecutors planning to try the Bundy family patriarch and two adult sons later this year, the jury acquitted Ricky Lovelien and Steven Stewart of all 10 charges, and delivered not-guilty findings on most charges against Scott Drexler and Eric Parker. …”Random people off the streets, these jurors, they told the government again that we’re not going to put up with tyranny,” said a John Lamb, a Montana resident who attended almost all the five weeks of trial, which began with jury selection July 10. …The current jury deliberated four full days after more than 20 days of testimony.
So how did the government respond?
The second Bundy trial won’t even take place. As David French explained in a column for National Review, an Obama appointee threw out the case, thus saving a jury from another chance for nullification.
…a federal judge, Obama appointee Gloria Navarro, dismissed the federal government’s criminal case against Bundy and two of his sons on the basis that the government was guilty of “flagrant misconduct” in the trial. Its conduct was so “outrageous” that “no lesser remedy” than dismissal with prejudice “is sufficient.”
And why did the Judge make that decision?
In this case, evidence shows that a federal agency motivated by ego, anger, and prejudice launched the most militaristic and aggressive campaign possible against a rancher whom federal officials had deemed to be likely peaceful. There is evidence they abused that rancher’s son, ringed his property with snipers, and intended to “kick [him] in the mouth and take his cattle.” Then, when it came time to prosecute that same rancher, they withheld the truth and portrayed his accurate claims about federal misconduct as criminal deceptions designed to inflame public outrage. …The judge, however, understood her legal obligations. Who is the greater threat to public peace and the rule of law? A rancher and his sons angry that the government is destroying his livelihood in part through political favoritism and vindictiveness? Or a government that acts as if might makes right, abuses its citizens, and uses maximum force when far less intrusion and risk would accomplish its lawful purposes? Bundy’s case teaches a number of valuable lessons. We cannot presume the government’s virtue. Sometimes even wild tales are true. And every American — from the angriest antifa activist to the leader of “Y’all Qaeda” — is entitled to the full protection of the United States Constitution.
Jim Bovard, in a column for USA Today, opines on the broader implications.
…federal judge Gloria Navarro declared a mistrial in the case against Nevada rancher Cliven Bundy and others after prosecutors were caught withholding massive amounts of evidence undermining federal charges. This is the latest in a long series of federal law enforcement debacles that have spurred vast distrust of Washington. …The Bundys have long claimed the feds were on a vendetta against them, and 3,300 pages of documents the Justice Department wrongfully concealed from their lawyers provides smoking guns that buttress their case. …In the Bundy case, Judge Navarro slammed the FBI for withholding key evidence. …Until the feds cease wrongfully abusing their targets, there will be no rebound in trust in Washington. If the Trump administration cannot rein in renegade federal prosecutors, the president should cease-and-desist any and all claptrap about “draining the swamp.”
In other words, so long as there are some bad apples in the world of law enforcement (and, more broadly, in positions of power in government), jury nullification is a bulwark against abuse by the state.
Incidentally, I’m not implying Bundy and his pals are heroes. Yes, they’ve been mistreated, but they also seem to think they have a right to treat government land as their land. Which is why I think the real solution is privatization of the excessive government holdings of land.
Let’s now zoom out and look at three good pieces about jury nullification in Reason, starting with a column by J.D. Tuccille.
…jury nullification—acquittals of defendants who jurors believe did violate the law but don’t deserve punishment, either because of specifics of the case or because jurors oppose the law in question—isn’t always obvious. …But, as with much of what jurors do, nullification is important and potentially powerful. …Given the fury that judges and other officials display toward independent jurors, including occasional contempt of court and jury tampering charges, …Jurors who go about their business without revealing their motivations are immune to punishment, so keeping your mouth shut is just smart, even if it leaves the rest of us in the dark.
He provides an example of a jury slapping down an absurd prosecution.
…it’s more common to see cases like the rapid acquittal of an Ohio machinist who was arrested for making what Bureau of Alcohol, Tobacco, Firearms, and Explosives agents claimed were firearms noise suppressors (so-called “silencers”) without a license. …He claimed his products were actually unregulated muzzle brakes and that the government’s “expert” had no idea what he was talking about. Whether the jury believed the machinist, or whether they thought it was ridiculous to threaten a man with producing items that can easily be made on a home workbench and that lawmakers at the state and federal level are considering deregulating, is something we’ll probably never know. …Either way, they likely concluded that they were carrying out their responsibility to do justice and protect defendants from government overreach. Because, ultimately, jury nullification is just an extension of the jury’s role as a check on the state—whether prosecutors are applying law badly, or just applying bad law.
It’s not surprising to learn that the government does not like jury nullification.
But what is shocking is that the state is willing to imprison people for exercising their rights to free speech by informing potential jurors about nullification.
…a Michigan judge sentenced a local activist to eight weekends in jail, plus $545 in fines, 120 hours of community service, and six months of probation, for passing out jury nullification pamphlets in front of the Mecosta County courthouse. Keith Wood, a former pastor and father of eight, was arrested in November 2015 and convicted last month of jury tampering, a misdemeanor punishable by up to a year in jail. …Wood’s lawyer, David Kallman, who plans to appeal the conviction, argued that distributing the pamphlets, which contained general information about jurors’ rights, was protected by the First Amendment. He emphasized that Wood never discussed Yoder’s case with passers-by at the courthouse. …After Wood’s arrest, Mecosta County Prosecutor Brian Thiede said the FIJA pamphlet is dangerous because “we would have a lawless nation if people were to vote their conscience.”
The last sentence is the key. Notwithstanding the fevered statement of Mr. Thiede, we would not have a “lawless nation.” Jurors have no problem convicting those who assault, harm, kill, steal, and rape.
Nullification is a check on bad laws and/or bad actions by government. And that’s a good thing.
Let’s close with another piece by Tuccille, which has two very encouraging examples. We’ll start in Texas.
…El Paso, Texas, Police Chief Greg Allen turned out to be a surprise defender of bypassing the usual criminal justice rigmarole of booking, mug shots, and jails. While careful to emphasize that he’s no fan of drug legalization, Allen says it’s a waste of his officers’ time to put hours into an “an arrest that has no end result of a conviction because of jury nullification.” This is only the latest evidence that rebellious jurors are putting limits on how badly government officials can treat the rest of us. …”Jury nullification, though still rare, appears to be on the rise in drug cases that reach the trial stage,” wrote Rice University’s Prof. William Martin… But jurors are…doing just that often enough that the El Paso Police Chief sees no point to making arrests that have “no end result of a conviction because of jury nullification.”
And finish with Georgia.
In Laurens County, Antonio Willis faced up to five years in prison for selling the equivalent of a few joints to an undercover cop. The cop, “who switched into an exaggerated Hispanic accent straight out of Cheech and Chong when dealing with suspects,” according to Bill Torpy of the Atlanta Journal-Constitution, kept pestering Willis for drugs while promising to hook the unemployed man up with a construction job. …the jury acquitted after just 18 minutes of deliberations. “A jury in Middle Georgia returned a Not Guilty verdict in a marijuana sale case despite the evidence,” retired sheriff’s deputy Tom McCain, now executive director of Peachtree NORML, approvingly commented after the trial. “The verdict can be nothing other than Jury Nullification.”
The moral of the story is not that jury nullification is a great thing. It’s only a second-best solution to the real problem of bad laws (exacerbated occasionally by bad prosecutors or bad cops).
But so long as bad laws (or incomprehensible laws) exist and government officials sometimes act dishonorably, we should support juries being the last line of defense for persecuted citizens. Remember, a tough-on-crime policy is only good if laws are just.
The libertarian approach to crime is both simple and sensible.
First, only activities that harm other people should be against the law. So get rid of laws against drugs, gambling, cash deposits, and other victimless crimes.
Second, make sure that government behaves properly and respects constitutional rights while investigating and prosecuting criminality.
Third, impose appropriate punishment on those properly convicted of harming other people.
And I should consider adding a fourth principle, which is that laws shouldn’t be a way for governments to pad their budgets with unfair fines and other cash penalties.
With this in mind, let’s explore a practical example of why it’s a good idea to make sure governments respect due process and civil liberties. I wrote last year about how the Justice Department wrongly asserted that it has the right, without following due process, to reach outside America’s borders to obtain personal information.
In part, the bureaucrats at DOJ are exploiting old law that doesn’t provide clear guidance on how to deal with modern electronic communication and data storage. Fortunately, that’s something that should be easy to fix.
Veronique de Rugy of the Mercatus Center correctly identifies the key issue in a column for Reason., starting with the fact that courts fortunately are not giving the feds a blank check.
…the Justice Department…asserted that a U.S. search warrant should carry jurisdiction over the data of an Irish citizen being stored on a server in Ireland simply because it is owned by Microsoft, an American corporation. Thank goodness the federal appeals court has now rejected the government’s attempt… The outcome affirms a landmark defense of privacy rights against law enforcement overreach and clearly establishes that the U.S. government does not have jurisdiction over the entire world. It also removes a major threat to the competitiveness of U.S.-based multinational companies, which must operate under the privacy rules of the countries in which they operate. Many of those countries unsurprisingly take a dim view of U.S. government efforts to pry into the lives of their citizens.
But it would be good if lawmakers modified the law so that it reflects today’s world.
Members of Congress, however, shouldn’t count on either the courts or the Trump administration. Instead, they could address the fundamental issue. The root of the problem is a common one. A law—the Electronic Communications Privacy Act—was enacted in 1986 to address issues raised by the technology at the time, and Congress never bothered to update it despite significant advancements in the decades since. …This has also resulted in massive privacy blind spots—such as the ECPA’s considering emails held by a third party for over 180 days to be abandoned, allowing them to be accessed with a simple subpoena instead of a judge-issued warrant. Also of concern is that the process for working with foreign governments when investigations cross jurisdictions—through mutual legal assistance treaties, or MLATs—has been seen by officials as too cumbersome to pursue. Excessive bureaucratic red tape, in other words, has encouraged investigators to engage in a troubling power grab.
And there was legislation last Congress to address these problems, with a new version already introduced in the new Congress.
…a bill, the International Communications Privacy Act, that sought to resolve both of these issues. It would have updated privacy rules to acknowledge modern technological reality by doing away with such silly provisions as the 180-day rule. It also would have streamlined MLAT procedures to make international cooperation more practical. Another bill, the Email Privacy Act, was just reintroduced in the current Congress and would also update the ECPA.
Amazing the House already has approved the legislation.
The House of Representatives today approved by voice vote the Email Privacy Act (H.R. 387) to protect Americans’ privacy and public safety in the digital age. …a statement from House Judiciary Committee Chairman Bob Goodlatte (R-Va.) applauding passage of the bill. …“The U.S. Constitution protects Americans’ property from unreasonable searches and seizures and we must ensure that this principle continues to thrive in the digital age. …As technology has far-outpaced the Electronic Communications Privacy Act of 1986, the Email Privacy Act modernizes this decades-old law to establish a uniform warrant requirement to acquire stored electronic communications in criminal investigations. These updates to the law will better safeguard Americans’ constitutional rights while also protecting law enforcement’s ability to fight crime. As the House again has overwhelmingly approved this bill, it’s time for the Senate to take up this bipartisan legislation and send it to the President’s desk to become law.”
The tech community is happy about this progress, though it’s also concerned the Senate once again will be the stumbling block.
…the reintroduced Email Privacy Act easily passed the House via a voice vote, showing that our Congressional Members still recognize how important this is. Of course, now it gets to go back to the Senate, and we saw how well that worked last year. And then we have to believe that President Trump will sign the bill. …It’s great that Rep. Kevin Yoder, along with Reps. Jared Polis, Bob Goodlatte, John Conyers, Ted Poe, Suzan DelBene, Will Hurd, Jerry Nadler, Doug Collins and Judy Chu keep pushing this bill. …the fact that they’re willing to support basic 4th Amendment concepts for email is worthy of recognition. Now, hopefully, the Senate won’t try to muck it up again.
I guess we’ll see whether there’s progress this year or next year.
In the meantime, let’s hope that lawmakers are guided by the three principles of good criminal justice policy.
P.P.S. Since courts almost always grant search warrants, I’ve never understood why law enforcement officials want to get around this constitutional principle. Moreover, I’ve never seen any evidence that the fight against real crime somehow is compromised by having to comply with the 4th Amendment. So now, perhaps, you’ll understand why I’m willing (albeit only on one occasion) to side with Ruth Bader Ginsburg over Clarence Thomas.
P.P.P.S. If there was a prize for undermining the Bill of Rights, Obama probably would have it on his mantelpiece.
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.
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.
This is how all 27 of the current amendments to the Constitution were added… The second method — never before accomplished — involves two-thirds of US states to call a convention. …two-thirds of the state legislatures are needed to call a convention and three-fourths must vote to ratify any amendments. …Conservatives and liberals alike say this requirement would doom hyperpartisan or plain loony amendments.
…backers of the convention idea now hope to harness the power of Republican-controlled state legislatures to…strip away power from Washington and impose new fiscal restraints, at a minimum. …leading proponents of the convention idea come from the right and include representatives of the Tea Party movement, the Federalist Society, grass-roots right-wing activists… And some liberals have welcomed the idea of a convention as a way to modernize the Constitution and win changes in the makeup and power of the Supreme Court, ensure abortion rights, impose campaign finance limits and find ways to approach 21st-century problems such as climate change.
International Liberty 