Archive for November, 2009
Heller Counsel Argues for an Originalist Revolution
Alan Gura, who successfully defended the individual right to keep and bear arms under Second Amendment in District of Columbia v. Heller has now filed his brief in the case that seeks to apply that right to the states, McDonald v. City of Chicago. (Cato earlier filed a brief supporting Alan’s cert petition, the background to which you can read about here.)
The question presented in this case is: Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses. Remarkably, only 7 of the brief’s 73 pages are devoted to the Due Process Clause, which is the constitutional provision by which almost all the the Bill of Rights has been “incorporated” against the states. Indeed, the brief argues that the Due Process Clause “has incorporated virtually all other enumerated rights” and so there is no reason to make the Second Amendment an exception.
The rest of the brief is far more interesting, arguing for overturning the ill-fated Slaughter-House Cases, which eviscerated the Priviliges or Immunities Clause in 1873. Slaughter-House forced the Court to start protecting natural rights and fundamental liberties under the oddly named “substantive due process” doctrine — and it remains a bugaboo for legal scholars of all ideological stripes. Overturning it would potentially open the door to challenges against legislation that violates a host of unenumerated rights, such as the right to enter into contract or to earn an honest living.
Understandably, libertarians are excited at the prospect of Privileges or Immunities’ revival. But so too are liberals, at the thought of potentially filling an empty constitutional vessel with positive rights (to health care, education, pensions, etc.). I believe this to be an overstated threat from the perspective of constitutional interpretation — as opposed to legislation – and have an article coming out with Josh Blackman in the Georgetown Journal of Law and Public Policy in January making this point. (The article, titled “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” will shortly be up on SSRN, but for now you can read the abstract/introduction here.)
In any event, P or I (as it’s known) is a vastly superior way of giving people in the states the right to keep and bear arms for self-defense. But it’s ambitious to argue this way rather than settle for the traditional jurisprudence. As Orin Kerr says at the Volokh Conspiracy, “It’s certainly an attention-getting way to brief the case. It’s not just arguing for a win: It’s arguing for a revolution.”
For further discussion of Alan’s McDonald brief — which Cato will be supporting with an amicus brief next week – see Lyle Deniston’s write-up at SCOTUSblog.
The Constitutionality of the Individual Mandate
Ezra Klein defends an individual healthcare mandate against charges that it’s unconstitutional, and what’s striking to me is that the argument seems awfully wobbly even if you’re on board with a lot of the post–New Deal jurisprudence about the scope of federal power. Sez Ez:
The summary is that you can look at the individual mandate as a tax, which is constitutional, or as a regulation forcing private actors to engage in a certain transaction, much like the minimum wage, which is also constitutional. I’ve also heard scholars mention auto insurance, which is an obvious analogue, and the Americans With Disabilities Act, which proved that the government can order businesses to install ramps, despite the fact that the constitution doesn’t explicitly give the federal government jurisdiction over entryways.
This doesn’t seem like the right level of analysis. Some taxes and regulations are within the ambit of federal powers; that doesn’t mean anything capable of being so described is. Some things not explicitly and specifically mentioned in Article I are nevertheless necessarily implicit in the enumerated powers; that doesn’t mean anything is. Auto insurance seems like a poor analogue because it’s a condition of access to government-maintained roadways. Ezra also mentions Massachusetts’ individual mandate, which seems rather beside the point in a discussion of the scope of Congress’ Article I powers. But bracket that. Even if you think the federal commerce power legitimately extends to legislation like the ADA, there’s intuitively a world of difference between saying that a commercial enterprise providing services to the public must provide them in such-and-such a fashion and insisting that private persons have to engage in a specified type of transaction just by dint of being alive. I don’t think the best reading of the Commerce Clause encompasses either, but it’s not that hard to conceive a reading that extends to the former but not the latter. I stress this just because I don’t think you have to be a libertarian or have a very restrictive view of the legitimate scope of federal power to believe there’s a genuine question here. The real form of the argument here looks an awful lot like: “Look, we’ve stretched commerce…between the several states so absurdly already, why are we even pretending it might be found to exclude anything?”
Taking Over Everything (2)
“My critics say that I’m taking over every sector of the economy,” President Obama complained to George Stephanopoulos back in September. And I responded:
Not every sector. Just
And now check out the lead story in Sunday’s Washington Post:
Federal Oversight of Subways Proposed
The Obama administration will propose that the federal government take over safety regulation of the nation’s subway and light-rail systems, responding to what it says is haphazard and ineffective oversight by state agencies.
Not everything. But more and more. So much that even the growing opposition can’t keep up with it all.
A Handy PATRIOT Act Cheat Sheet
While there are a slew of USA PATRIOT Act reform bills buzzing about Capitol Hill, the focus in Congress is now on two chief contenders, reported out by the House and Senate judiciary committees respectively. The very very short version is that the Senate version renews expiring PATRIOT powers with very few modifications, and that the House version includes an array of moderately more robust civil liberties safeguards. As Kevin Bankston of the Electronic Frontier Foundation has argued cogently, these differences are really far less important than the need to reform the FISA Amendments Act, which vastly expanded the surveillance powers of the National Security Agency, in effect permitting the Bush administration’s program of warrantless wiretapping to proceed with some cosmetic trappings of oversight. Still, the House bill does go some ways toward restoring the quaint notion that government should pry in to the private records of its citizens only when some evidence exists to provide grounds for individualized suspicion.
The Obama administration, alas, has decided to back the Senate’s bill, though the Justice Department also expressed “concerns” about the handful of actually-substantive checks on government spying power, and made clear that it intends to continue “working with the Committee” to gut those before the bill reaches the floor. For those with a taste for the gory details, Wired points to CDT’s handy dandy cheat sheet comparing the main provisions of the two bills.
Fed Ed Snow Job
When you get to the top of a mountain, what do you find? Other than maybe a mountain goat, or the frozen remains of an ill-fated previous climber, snow, that’s what. That’s why it’s almost appropriate that the Obama administration’s Race to the The Top Fund, as I have written before and write again in this new op-ed, is essentially a snow job. And it seems to be a particularly blinding one.
To qualify for Fund dollars, states have to make hardly any meaningful changes to their education systems. For the most part they just have to submit plans for how they could conceivably do good stuff. Moreover, the same “stimulus” that furnished the $4.35 billion for Race to The Top supplied roughly 20 times that amount to protect the abysmal, obese education status quo from recessionary pressures. Nonetheless, many conservatives, including former House Speaker Newt Gingrich, are going out of their way to lionize Obama & co. for their reform efforts.
Why the cross-spectrum adulation? One problem is certainly that some conservatives have given up on real reform — universal school choice and getting the feds out of education — in favor of being seen as “doing something” from Washington. Probably more important, though, is that Race to the Top is constantly being festooned in brash, combative rhetoric about pushing what are actually relatively minor — but still disliked by teacher union — improvements such as linking educator pay to student performance and increasing charter schools. (For a taste of the hyperbole, check out Secretary of Education Arne Duncan’s opening commentary from Sunday’s Meet the Press.) That Race to the Top falls far short of actually doing even these very limited things seems not to matter.
That leads to a very familiar, but nonetheless dispiriting, conclusion: in education, a blizzard of rhetoric is all it takes to blind people to reality.
Cuban Blogger Yoani Sanchez Keeps Speaking Truth to Power
It’s the 490th anniversary of Havana today and the Cuban government has arranged for celebratory activities. Ordinary residents of Havana and all Cubans who cherish their civil and human rights have less to celebrate, however, as Cuban blogger Yoani Sanchez regularly reminds us. Sanchez has become a major irritant of the regime because of her penetrating posts about the absurdities and injustices of everyday life in communist Cuba. You can see her blog in Spanish here, and in English here.
Just over a week ago, in an incident that was widely reported in the international press and that reveals the threat to the Cuban regime of the growing Cuban blogger movement, Sanchez was assaulted in Havana by plain-clothed government agents. Though she was forcefully beaten, she and her friends managed to fight back and get away. More than that, they took pictures of their assailants and of the incident for posting on the blog, prompting the government thugs to leave the scene. One photo of an agent features the caption “She is covering her face…Perhaps afraid of the future.” Another photo features Sanchez pursuing her assailants with the caption: “They have watched us for decades. Now we are watching them.” Very smart.
As it happens, last week we posted a beautifully written paper by Sanchez (in Spanish) on Cato’s Spanish-language web page, www.elcato.org. (The paper just won a prize in an essay contest in Mexico organized by TV Azteca at which my Cato colleague Juan Carlos Hidalgo was a judge.) Her essay, “Liberty as a Form of Payment,” describes the fraudulent deal that Castro promised when he came to power. In exchange for liberty, Cubans would be better off culturally, economically, and in other ways. Sanchez describes the reality of social control under communist Cuba in which the real exchanges occur as a consequence of the power relationship. Access to housing, jobs, new goods, and the possibility of minor improvements in life, all depend on a well documented support of the revolution through attendance of mass meetings and membership in the communist party, for example.
Or through personal relationships with those in power. Sanchez describes how young women long ago began prostituting themselves to high ministry or military officials in exchange for non-monetary goods or privileges. Such “courtesans of socialism” later turned to traditional prostitution with the arrival of currency convertibility in Cuba. Sanchez also optimistically describes the role that technology, especially the internet, is playing in creating spaces of liberty. In a country where people increasingly feel the regime’s days are numbered, such exercises of personal freedom can be powerful.
Even Obama’s Make-Believe Jobs Are Not Real
The White House recently began claiming that the “Recovery Act” had “created or saved” 640,000-plus jobs. This turns out to have been a political mistake, in part because even sympathetic reporters understand that the “jobs saved” measure allows for creative accounting. But the White House also erred by providing (supposed) details about the jobs that were created. This made it very easy for reporters and other curious people to do a bit of fact checking, which has generated a spate of stories showing that the White House’s numbers are wrong, even using make-believe methodology. The Washington Examiner has put together a very useful interactive map which links to many of the news reports debunking the Administration’s fraudulent numbers.
The New Threats to Free Speech
In a new Policy Analysis, Cato Research Fellow Jason Kuznicki examines the ongoing threats to free speech both at home and around the world, from hate-speech laws in the United Kingdom and Canada and university speech codes in the United States, to the Cairo Declaration on Human Rights in Islam:
The result is not more happiness, but a race to the bottom, in which aggrieved groups compete endlessly with one another for a slice of government power. Philosopher Robert Nozick once observed that utilitarianism is hard-pressed to banish what he termed utility monsters—that is, individuals who take inordinate satisfaction from acts that displease others. Arguing about who hurt whose feelings worse, and about who needs more soothing than whom, seems designed to discover—or create—utility monsters. We must not allow this to happen.
Instead, liberal governments have traditionally relied on a particular bargain, in which freedom of expression is maintained for all, and in which emotional satisfaction is a private pursuit, not a public guarantee. This bargain can extend equally to all people, and it forms the basis for an enduring and diverse society, one in which differences may be aired without fear of reprisal. Although world cultures increasingly mix with one another, and although our powers of expression are greater than ever before, these are not sound reasons to abandon the liberal bargain. Restrictions on free expression do not make societies happier or more tolerant, but instead make them more fractious and censorious.
Monday Links
- Report: New threats to free speech.
- The politics behind the health care overhaul.
- Mass corruption in Afghanistan. Malou Innocent: “Washington has already surged into Afghanistan once this year. The United States should not spend more American blood and more of its ever-diminishing financial resources to prop up Karzai’s ineffectual regime.”
- A government takeover of health care is not pro-choice — for anyone: “Whatever your views on abortion, the fight over abortion in the Obama health plan illustrates perfectly why government should stay out of health care. When the government subsidizes health care, anything you do with that money becomes the voters’ business. And rather than allow for choice between different ways of doing things, the government typically imposes the preferences of the majority — or sometimes, a vocal minority — on everybody.”
- Podcast: “A Proposed Beat Down for Banks“
Dollar Crisis
Over the weekend, Liu Mingkang, a senior Chinese official, blasted the economic policies of the Obama Administration. He identified low interest rates in the U.S. as the cause of “massive speculation” that was inflating asset bubbles around the world. The U.S. dollar is being used in what is known as a carry trade and is borrowed cheaply to finance the purchase of real estate in Asian cities like Hong Kong and Singapore. The easy money policies of the Fed are also fueling a boom in commodity prices.
The ordinary American, if not the political class, recognizes that neither the Fed’s monetary actions nor the trillions in spending have helped them. Unemployment is in double digits. Former senior Bush economic adviser Larry Lindsey is reported to have estimated that Americans’ net worth has dropped $13 trillion since the beginning of the recession in December 2007. Americans suffer while speculators profit.
We are on the cusp of a dollar crisis. President Jimmy Carter faced a similar crisis in his presidency. Carter ousted his own choice for Chairman of the Fed and appointed Paul Volcker to that position. Volcker recognized that the dollar crisis needed to be ended and instituted painful but necessary sound money policies. President Reagan re-appointed Volcker and together they restored American prosperity. Volcker advises President Obama and can explain to the president why he must act now.
The High Cost of European Union Bureaucracy
The clever folks at the Taxpayers Alliance in the United Kingdom have a new video documenting some of the wasteful European Union programs that are imposing a heavy burden on average people.
How Is Sotomayor Doing?
I was one of those who opposed the nomination of Sonia Sotomayor to the Supreme Court, mainly because the pick was based on race and gender rather than merit and she was disingenuous and obfuscatory at her confirmation hearings. Well, the Court still hasn’t decided any cases argued with Justice Sotomayor on the bench — and the first term isn’t always indicative of the kind of jurist a new justice will be – but we do have some early statistics about her performance.
It turns out that, unlike her next most junior colleague, Justice Alito — who hung back early in his tenure while learning the rhythms of the Court – Justice Sotomayor has not been a shrinking violet in her questioning of advocates. Indeed, according to a National Law Journal tally, during the 13 November arguments that just concluded, she asked 146 questions (or 11.2 per case), which is even ahead of where Chief Justice Roberts was at this point in his career. And, because Sotomayor speaks more often than her more reserved predecessor, Justice Souter, she has made a “hot” bench even hotter.
By another indicator, however, Sotomayor ranks at the bottom of the Supreme Court table: Apparently her questioning has not yet generated a single laugh (as measured by such indications in the argument transcript). Not surprisingly, Justice Scalia leads in that department — as he long has, both in absolute and per-question terms – with the Chief being the only other justice in double figures. Joining Sotomayor with a goose-egg so far this year are Justices Ginsburg and Thomas (who hasn’t asked a question since 2006). If you’re curious about last year’s final standings, see here.
For what it’s worth, all this accords with the sense I’ve gotten from the handful of times I’ve been to the Court for oral argument so far this term. To my mind, Sotomayor is still acting as a Court of Appeals judge — or maybe even a district judge – asking simpler questions about the factual record or procedural history rather than the broader issues the Court tends to grapple with. And therefore I’ll go out on a counterintuitive limb here to predict that, as Sotomayor settles into her new role, her questioning will become less frequent but more substantive.
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