Archive for June, 2010
The Court Restores a Fundamental Right
Today is a big victory for gun rights and a bigger one for liberty. The Supreme Court has correctly decided that state actions violating the right to keep and bear arms are no more valid than those taken by the federal government.
It could not have been otherwise: the Fourteenth Amendment, coming on the heels of the Civil War, says clearly that never again would the Constitution tolerate state oppressions, and that all individuals possess certain fundamental rights. It is equally clear that the right to keep and bear arms is one of those deeply rooted fundamental rights, not least because the Framers thought so highly of it as to enumerate it in the Second Amendment.
Still, Justice Alito’s plurality opinion leaves a lot to be desired, in that his ultimately correct conclusion rests on a dog’s breakfast of Substantive Due Process “incorporation” doctrine that arose only because the Privileges or Immunities Clause was strangled in its crib by an 1870s Supreme Court that refused to reconcile itself to the changes in constitutional structure wrought by the Fourteenth Amendment. Justice Thomas’s response to this tortured attempt to fit a square fundamental right into a round procedural guarantee is the right one: “I cannot accept a theory of constitutional interpretation that rests on such tenuous footing.”
Only Justice Thomas grapples with the original meaning of the Fourteenth Amendment, surveying the rich history of the terms “privileges” and “immunities” to find that the right to defend oneself is part and parcel of the inalienable rights we all possess—and indeed it is “essential to the preservation of liberty.” The Framers of the Fourteenth Amendment—the most important “Framers” in this context—plainly deemed this right “necessary to include in the minimum baseline of federal rights that the Privileges or Immunities Clause established in the wake of the War over slavery.” All arguments to the contrary lack legal, historical and even philosophical basis.
And so it is a very good thing, again for liberty, that the Court needs Thomas’s fifth vote to rule as it does: while the plurality declines to reconsider the old and discredited Privileges or Immunities precedent, Thomas’s clarion call for a libertarian originalism provides a step on which to build in future.
Finally, as we celebrate the belated recognition of a precious right—the one that allows us to protect all the others—we must be shocked and saddened to see four justices (including Sonia Sotomayor, who at her confirmation hearings suggested she would do otherwise) standing for the proposition that states can violate this right at will, checked by nothing more than the political process. This is a nation of laws, not men—a republic, not a pure democracy—and thus it is disconcerting to see, as we do time and time again with this Court, that the only thing separating us from rule by a crude majoritarian impulse is one vote. Thank God that, in this case, that vote was Justice Thomas’s.
Anderson: “Opposition to ObamaCare Is Rock-Solid”
The Washington Post‘s Ezra Klein looks at the May/June polling data from Pollster.com (below) and concludes ObamaCare is “getting more, not less, popular.”
At The Weekly Standard, Jeffrey H. Anderson explains how that changing trendline reflects not a shift in public sentiment, but the fact that the polls conducted in May and June are fewer and less reliable.
Robert Byrd and the Constitution
Senator Robert C. Byrd, who died today at age 92, had a long and varied career. Unlike most senators, Senator Byrd remembered that the Constitution delegates the power to make law and the power to make war to Congress, not the president. He often held up the Cato Institute’s pocket edition of the Constitution as he made that vital point in Senate debate. I have several emails from colleagues over the years reading “Senator Byrd is waving the Cato Constitution on the Senate floor right now.” Alas, if he really took the Constitution seriously, he would have realized that the limited powers it gives the federal government wouldn’t include many of the New Deal and Great Society programs that opened up whole new vistas for pork in West Virginia.
Justin has already used the photo of Senator Byrd wielding the Cato Constitution to make a point on Meet the Press in 2004. At right, at a Capitol Hill press conference in 1998 after the Supreme Court rejected the line-item veto, Sens. Carl Levin (D-MI) and Byrd cite their pocket Constitutions as Sen. Pat Moynihan (D-NY) looks on. For more examples of senators and other public figures displaying the Cato pocket Constitution, see this Cato Policy Report (pdf) article.
To purchase copies of the Cato pocket edition of the Constitution, which also includes the Declaration of Independence and an introduction by Roger Pilon, click here.
Let us hope that some other senator takes up Senator Byrd’s vigilance about the powers of Congress and the imperial presidency.
RIP Robert C. Byrd, the Last Defender of Congress
On the occasion of the death of Sen. Robert C. Byrd, libertarians will rightly think about the senator’s flamboyant defense of federal largesse rained down on West Virginia and the garish and unseemly tendency to name things purchased with this largesse after the senator. No doubt his membership in the Ku Klux Klan will be a centerpiece of the remembrance as well.
What hopefully will not go unremembered are a few additional facts. As Adam Clymer’s obituary observes, Byrd was a jealous defender of the rights of Congress against imperial presidentialism, likely the last of a breed. You probably could count on one hand the younger senators or congressmen who take as seriously as did Byrd their duty as members of the American legislature. Byrd frequently was seen wagging his copy of the Cato Institute reprint of the Declaration of Independence and U.S. Constitution in the face of his fellow legislators. (If I recall correctly, my colleague Roger Pilon, who wrote the introduction to the reprint, wondered aloud whether Byrd had read it, given his view that the Treasury could rightly be used as West Virginia’s piggybank.)
Byrd was also a man who turned dripping contempt into a high art form. You could see this in any number of his speeches, but in particular this attribute was on display during the Iraq War debate. Byrd, to his great credit, seemed to smell a rat from the outset, and he repeatedly and unsuccessfully spoke out against both the war and the executive deference that surrounded the debate. (Those supporters of the Iraq War who condemn Byrd’s porcine tendencies should ask themselves how many West Virginia bridges could have been purchased with the hundreds of billions and thousands of American lives we have poured into that disgraceful enterprise. And at least we could drive across them.)
The man had a sense of history, as well. Byrd’s anti-presidentialism, opposition to Iraq, and historical grounding were all on display in this characteristic clip from the Iraq War debate in 2002, in which Byrd had some thoughts on appeals to legislators’ duty to the “Commander in Chief.”
I will not miss the Senator’s penchant for pork, but I will certainly miss his lifelong defense of the prerogatives of the legislature. Rest in peace.
Technology vs. Tyranny
The Wall Street Journal reports Saturday that Turkey and Pakistan are blocking, monitoring, and threatening such websites as Google, YouTube, Facebook, Yahoo, and Amazon. At least you’ve got to give them credit for going after the big guys! The Journal notes, “A number of countries in the Islamic world, including Iran and Saudi Arabia, have banned Internet content in the past for being sacrilegious. But those countries have authoritarian governments that closely monitor the Internet and the media.” Of course, it’s not just Islamic countries that try to protect their citizens — or subjects — from dissenting thoughts. China has been involved in well-publicized battles with Google, Rupert Murdoch’s Star TV, and other media companies.
But it’s hard to make your country a part of the world economy and keep it closed to outside thoughts and images. North Korea may be able to do it — though recent stories suggest that even the benighted people of the world’s most closed society know more about the world than we have previously thought. Countries that don’t want to be North Korea have a harder time. The latest example: Thomas Erdbrink reports in the Washington Post that Murdoch’s Farsi1 satellite station is
pulling in Iranian viewers with sizzling soaps and sitcoms but has incensed the Islamic republic’s clerics and state television executives.
Unlike dozens of other foreign-based satellite channels here, Farsi1 broadcasts popular Korean, Colombian and U.S. shows and also dubs them in Iran’s national language, Farsi, rather than using subtitles, making them more broadly accessible. Its popularity has soared since its launch in August….
Satellite receivers are illegal in Iran but widely available. Officials acknowledge that they jam many foreign channels using radio waves, but Farsi1, which operates out of the Hong Kong-based headquarters of Star TV, a subsidiary of Murdoch’s News Corp., is still on the air in Tehran.
Viewers are increasingly deserting the six channels operated by Iranian state television, with its political, ideological and religious constraints, for Farsi1′s more daring fare, including the U.S. series “Prison Break,” “24″ and “Dharma and Greg.”
Those who want to build a wall around the minds of the Iranian people denounce Murdoch and his temptations:
Some critics here hold Murdoch responsible for what they see as this new infestation of corrupt Western culture. The prominent hard-line magazine Panjereh, or Window, devoted its most recent issue to Farsi1, featuring on the cover a digitally altered version of an evil-looking Murdoch sporting a button in the channel’s signature pink and white colors. “Murdoch is a secret Jew trying to control the world’s media, and [he] promotes Farsi1,” the magazine declared.
“Farsi1′s shows might be accepted in Western culture . . . but this is the first time that such things are being shown and offered so directly, completely and with ulterior motives to Iranian society. Does anybody hear alarm bells?” wrote Morteza Najafi, a regular Panjereh contributor.
The Iranian state — Akbar Ganji calls it a “sultanate” in Weberian terms — has tried to block access to Farsi1. It jams foreign channels, it sends police out to confiscate satellite dishes, but it can’t seem to prevent many citizens from tuning in to officially banned broadcasts.
Way back in 1979, David Ramsay Steele of the Libertarian Alliance in Great Britain wrote about the changes beginning in China. He quoted authors in the official Beijing Review who were explaining that China would adopt the good aspects of the West — technology, innovation, entrepreneurship — without adopting its liberal values. “We should do better than the Japanese,” the authors wrote. “They have learnt from the United States not only computer science but also strip-tease. For us it is a matter of acquiring the best of the developed capitalist countries while rejecting their philosophy.” But, Steele replied, countries like China have a choice. “You play the game of catallaxy, or you do not play it. If you do not play it, you remain wretched. But if you play it, you must play it. You want computer science? Then you have to put up with striptease.”
North Korea and Burma choose to “remain wretched.” That’s not the future Iran’s leaders want. But they too will find it difficult to keep their citizens in an information straitjacket while participating in a global economy.
Footnote: In all this discussion of how authoritarian governments try to protect their citizens from offensive images, alternative ideas, and what’s going on in the rest of the world, I am for some reason reminded of the “30 Rock” episode in which NBC executive Jack Donaghy (Alec Baldwin) is trying to figure out how to deal with a high-strung performer. Another actress tells him, ”You’ve got to lie to her, coddle her, protect her from the real world.” Jack replies,”I get it — treat her like the New York Times treats its readers.”
This Week in Government Failure
Over at Downsizing Government, we focused on the following issues this week:
- Why a taxpayer gift to a wealthy Indian tribe in Connecticut isn’t any more egregious than the billions of dollars of other subsidies handed out by the U.S. Department of Agriculture.
- Protectionism at the Department of Commerce is helping 200 workers at an ironing board manufacturing plant in Indiana. However, it’s hurting millions of U.S. consumers by forcing them to pay higher prices for ironing boards.
- Pigs still can’t fly: More concerns for the Federal Aviation Administration’s next-generation air traffic control system.
- The evidence is more than anecdotal: Businesses are reluctant to invest or hire because they’re concerned that the president’s big government agenda will mean higher taxes and more onerous regulations.
Take Our Jobs, Please
Check out this invitation from the United Farm Workers:
There are two issues facing our nation—high unemployment and undocumented people in the workforce—that many Americans believe are related.
Missing from the debate on both issues is an honest recognition that the food we all eat—at home, in restaurants and workplace cafeterias (including those in the Capitol)—comes to us from the labor of undocumented farm workers.
Agriculture in the United States is dependent on an immigrant workforce. Three-quarters of all crop workers working in American agriculture were born outside the United States. According to government statistics, since the late 1990s, at least 50% of the crop workers have not been authorized to work legally in the United States.
We are a nation in denial about our food supply. As a result the UFW has initiated the “Take Our Jobs” campaign.
Farm workers are ready to train citizens and legal residents who wish to replace them in the field, we will use our knowledge and staff to help connect the unemployed with farm employers. Just fill out the form to the right and continue on to the request for job application.
Perhaps some U.S. citizens really will work these jobs. Somehow I doubt there will be very many.
It’s too bad I learned about this site only just after my most recent piece at the Washington Examiner Opinion Zone, in which I talked about how so much of the American economy now depends on the benign neglect of our immigration laws.
I almost wish we could see the consequences of having an America free of illegal immigrants. Based on past precedent, it wouldn’t make much difference in stopping terrorism. But it would really, really hurt American agriculture and business.
More Questions for Kagan
Building on Tim’s post about George Will’s latest column, and under the category of great minds thinking alike—at least with respect to what we need to see at the Kagan hearings next week—I also have an article proposing lines of questioning for the Supreme Court nominee.
Several of my issue areas overlap with Will’s, and then I conclude:
Of course, Kagan will attempt to deflect these queries—or give a law professor’s explanation without providing her own views (which caused Sen. Arlen Specter to vote against her nomination to be solicitor general).
But the role of a justice is different from that of the solicitor general, who merely uses existing law to argue the government’s case. Moreover, as a leading scholar argued in an influential 1995 article, “the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.”
That scholar? Elena Kagan.
She continues: “The critical inquiry as to any individual similarly concerns the votes she would cast, the perspective she would add, and the direction in which she would move the institution.”
If senators ask tough questions about the scope of government power, and Kagan refuses to answer, Kagan will have failed the Kagan standard.
Read the whole thing (which I’m told has been published in several papers around the country this week). Josh Blackman also has an interesting series of questions.
Reaping What We’ve Sown in Europe
Josef Joffe famously referred to the U.S. presence in Western Europe as “Europe’s pacifier.” The idea was that you stick the American pacifier in there and the *cough* recurring problem emanating from Europe goes away.
After the Cold War ended, and the official reason for the NATO alliance blew away as if in the wind, we never considered letting the alliance go with it. That tells you something. Instead of coming home, we pushed NATO “out of area” rather than allowing it to go “out of business.” Christopher Layne argues that this was all by design. U.S. policymakers never intended to allow Europe to establish its autonomy and worked diligently to ensure that efforts at autonomous European defense would fail. They succeeded.
In February, Defense Secretary Robert Gates was whining about the “demilitarization of Europe” and how the Europeans have grown “averse to military force.” I responded by pointing out that this was dumb. Mancur Olson’s logic and the history of American policy on the European continent that Layne documents show that we were as much to blame for this state of affairs as the Euros themselves.
And now here’s the Wall Street Journal pointing out that the Euros are slashing their defense budgets further still.
EPA on Guard against Spills
Well, at least of the dairy kind:
New Environmental Protection Agency regulations treat spilled milk like oil, requiring farmers to build extra storage tanks and form emergency spill plans….
The EPA regulations state that “milk typically contains a percentage of animal fat, which is a non-petroleum oil. Thus, containers storing milk are subject to the Oil Spill Prevention, Control and Countermeasure Program rule when they meet the applicability criteria.”
Peter Daining of the Holland Sentinel (Holland, MI) has a report, including predictions that smaller dairy producers could be driven out of business by the cost of the containment rules.
The G-20 Fiscal Fight: A Pox on Both Their Houses
Barack Obama and Angela Merkel are the two main characters in what is being portrayed as a fight between American “stimulus” and European “austerity” at the G-20 summit meeting in Canada. My immediate instinct is to cheer for the Europeans. After all, “austerity” presumably means cutting back on wasteful government spending. Obama’s definition of “stimulus,” by contrast, is borrowing money from China and distributing it to various Democratic-leaning special-interest groups.
But appearances can be deceiving. Austerity, in the European context, means budget balance rather than spending reduction. As such, David Cameron’s proposal to boost the U.K.’s value-added tax from 17.5 percent to 20 percent is supposedly a sign of austerity even though his Chancellor of the Exchequer said a higher tax burden would generate “13 billion pounds we don’t have to find from extra spending cuts.”
Raising taxes to finance a bloated government, to be sure, is not the same as Obama’s strategy of borrowing money to finance a bloated government. But proponents of limited government and economic freedom understandably are underwhelmed by the choice of two big-government approaches.
What matters most, from a fiscal policy perspective, is shrinking the burden of government spending relative to economic output. Europe needs smaller government, not budget balance. According to OECD data, government spending in eurozone nations consumes nearly 51 percent of gross domestic product, almost 10 percentage points higher than the burden of government spending in the United States.
Unfortunately, I suspect that the “austerity” plans of Merkel, Cameron, Sarkozy, et al, will leave the overall burden of government relatively unchanged. That may be good news if the alternative is for government budgets to consume even-larger shares of economic output, but it is far from what is needed.
Unfortunately, the United States no longer offers a competing vision to the European welfare state. Under the big-government policies of Bush and Obama, the share of GDP consumed by government spending has jumped by nearly 8-percentage points in the past 10 years. And with Obama proposing and/or implementing higher income taxes, higher death taxes, higher capital gains taxes, higher payroll taxes, higher dividend taxes, and higher business taxes, it appears that American-style big-government “stimulus” will soon be matched by European-style big-government “austerity.”
Here’s a blurb from the Christian Science Monitor about the Potemkin Village fiscal fight in Canada:
This weekend’s G-20 summit is shaping up as an economic clash of civilizations – or at least a clash of EU and US economic views. EU officials led by German chancellor Angela Merkel are on a national “austerity” budget cutting offensive as the wisest policy for economic health, ahead of the Toronto summit of 20 large-economy nations. Ms. Merkel Thursday said Germany will continue with $100 billion in cuts that will join similar giant ax strokes in the UK, Italy, France, Spain, and Greece. EU officials say budget austerity promotes the stability and market confidence that are prerequisites for their role in overall recovery. Yet EU pro-austerity statements in the past 48 hours are also defensive – a reaction to public statements from US President Barack Obama and G-20 chairman Lee Myung-bak, South Korea’s president, that the overall effect of national austerity in the EU will harm recovery. They are joined by US Treasury Secretary Tim Geithner, investor George Soros, and Nobel laureate and columnist Paul Krugman, among others, arguing that austerity works against growth, and may lead to a recessionary spiral.
Why Involve a Public School?
In a New York Times story about a Hebrew language charter school – a school the article says has not “ventured into politically sensitive territory” — First Amendment Center scholar Charles Haynes asks incredulously:
Israelis themselves have a hard time around the question of whether Israel is a Jewish state or a democracy. Why would we want to involve a public school here in that question?
I think I have a possible answer: Because private Hebrew schooling would require parents first to pay taxes for public schools they don’t want, then a second time for the education they do.
I wonder what we could do to remedy the situation…
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