Archive for February, 2011
Who’s Afraid of an Amendments Convention?
Those of us who are upset at how “constitutional law” has gotten far away from the text of the Constitution have more options than just hoping the judiciary tosses us an occasional bone and otherwise writing law review articles and op-eds. We can also amend the Constitution!
Indeed, the Framers provided a method of constitutional amendment that is easy to understand (if not to execute, at least not since the New Deal Congress and FDR began de facto amending the Constitution without bothering to amend it de jure). Article V says that an amendment can be sent to the states for ratification upon approval by two thirds of both houses of Congress. In the alternative, two thirds of the state legislatures can call for an amending convention. Either way, the resulting proposed amendments must be ratified by three quarters of the states to take effect.
Hand-in-hand with the recent resurgence in limited-government ideas, various amendments have been floated — by Tea Party activists, politicians, academics, and policy analysts. Randy Barnett’s “repeal amendment” — that a vote by two thirds of states can repeal federal law – is one. The balanced budget amendment is another.
Congress is unlikely to ever amass a two-thirds majority in favor of limiting its own power, however, so the state-called convention idea looks attractive. The problem is that many conservatives and libertarians are afraid of a so-called “runaway” convention, with amendments that would eviscerate the Constitution in a way Congress and the courts haven’t yet managed. Insert your own nightmare scenario: nationalization of industry, required gay marriage, prohibition of private schools, Keith Olbermann as NFL-Commissioner-for-Life – you name it, somebody has invoked it to argue against amending conventions.
These fears have always seemed overblown to me. I mean, if the American people can propose and ratify amendments that constitutionalize socialism (or whatever), then we’ve lost the political culture ballgame already and might as well go seasteading in Galt’s Gulch.
And now I have backup for my instincts! Our friends at the Goldwater Institute, in the course of a grand project masterminded by Nick Dranias (the director of their center for constitutional government), are publishing a series of articles by Robert G. Natelson (retired from the University of Montana Law School) regarding constitutional amendments via convention. The first two are available online and the third one will be there soon.
Here are the key points:
- An amendments convention is the ultimate guarantor of state sovereignty. History and law support states limiting the convention to specific topics. Delegates to the convention are bound as agents of the states to stay within the scope of the applications that trigger it. And 38 states must ratify whatever the convention generates as a proposed amendment. In short, the states initiate the process, the states control its subject matter, and the states ratify its product.
- The amendments convention concept is not radical. Washington, Madison, Jefferson and Hamilton all agreed that states should use the Article V process to correct errors in the Constitution and rein in the federal government if it oversteps its bounds. Madison even intervened during the nullification debates of the 1830s to chide the states that they should be invoking the Article V process to regain control over the federal government.
- The convention will not run away. Any proposed constitutional amendment yielded by the convention requires ratification by 38 states. During the constitutional convention of 1787 the Founders rejected language that would have allowed Article V to establish a foundational convention, substituting language that requires any convention to operate within existing constitutional limits.
- There is nothing to lose from an amendments convention because no matter which party controls Congress, the status quo is a runaway federal government.
Break Out of Those February Blahs!
…by attending one of my public events this month. Here’s what I currently have scheduled (those sponsored by Federalist Society marked with an asterisk):
- Feb.7 at 4pm — Comparative Constitutionalism, Rule of Law, and Lessons from Iraq – NYU Law School*
- Feb.8 at 1pm – Panel on Judicial Activism (American Constitution Society conference on “Federal Courts, Inc.?”) – NYU Law School
- Feb.9 at 1pm – Debate on the Constitutionality of Obamacare – Brooklyn Law School*
- Feb.10 at 10:45am – Debate on the Constitutionality of Obamacare – AMA Advocacy Conference at the Grand Hyatt, Washington, DC
- Feb.15 at noon – Is Dodd-Frank Constitutional? – Cato Policy Forum
- Feb.16 at 12:15pm — Debate on the Constitutionality of Obamacare – University of Akron Law School*
- Feb.16 or 17 – TBD — possible event(s) at Case Western and/or Cleveland State Law Schools*
- Feb.20 at 10:45 — “Are There Any Limits on Federal Power?” — Students for Liberty International Conference, George Washington University Marvin Center, Washington, DC
- Feb.22 at noon — Debate on Constitutionality of Obamacare — University of Arkansas Law School*
- Feb.23 at 12:20 — TBD — Southern Methodist University, Dallas*
As always, if you attend any of these events, please come up and introduce yourself. You can also follow my travels and travelogues on Twitter at @ishapiro.
Chutzpah in the Bailout Nation
Bloomberg reporter Andrew Frye plays it deadpan here. I don’t think I need to comment, either, except to note that the taxpayers’ commitment to AIG peaked at $182 billion:
American International Group Inc.’s mortgage insurer does more business in Republican-leaning states as it signs up more reliable customers than those in “more liberal” areas, Chief Executive Officer Robert Benmosche said.
“All of the states where we’re a leader, where we’re the No. 1 insurer, are red states, all of the states where we’re at the bottom are blue states,” Benmosche, 66, said yesterday at a conference in Washington. “Part of what we found out is that our model is about culture and it’s about the attitude in the public. And what we find is where there’s more of a tendency for people to be more liberal, more that the government is responsible for what happens to me.”
Benmosche oversees an insurer propped up by more than $40 billion in government capital while competing mortgage guarantors operate without U.S. Treasury Department assistance.
More on chutzpah in the Bailout Nation here and here.
A Ban On “Walking While Wired”?
New York state senator Carl Kruger (D-Brooklyn) is crusading to ban pedestrians’ use of cellphones and other mobile devices while crossing the street. It’s for your own good, you must understand:
“When people are doing things that are detrimental to their own well being, then government should step in.”
The Daily Caller asked me to write an opinion piece about this proposal so I just did. Excerpt:
Phone use on the street has become near-ubiquitous in recent years, yet over nearly all that time — nationally as in Gotham — pedestrian death rates were falling steadily, just as highway fatalities fell steadily over the years in which “distracted driving” became a big concern.
In the first half of 2010, the national statistics showed a tiny upward blip (0.4 percent), occasioned by a relative handful of fatalities in a few states. Even a spokesman for the Governor’s Highway Safety Association, Jonathan Adkins, seems to agree it’s premature to jump to conclusions: “You don’t want to overreact to six months of data,” he told columnist Steve Chapman.
Like others who seek quasi-parental control over adults, Sen. Kruger tends to infantilize his charges. He told the Times: “We’re taught from knee-high to look in both directions, wait, listen and then cross. You can perform none of those functions if you are engaged in some kind of wired activity.”
This drew proper scorn from columnist Chapman: “Actually, you can perform all those functions and dance an Irish jig, even with text messages or rock music bombarding you.” That some ear bud devotees don’t take due caution is no reason to pretend they can’t.
C.S. Lewis, Lily Tomlin and Transportation Secretary Ray LaHood all get walk-on parts as well.
Gingrich & Woolsey on Energy
The other day, The Wall Street Journal provided a public service by lambasting Newt Gingrich for his absurd speech to the ethanol lobby in Des Moines last month (money line: ”Obviously big urban newspapers want to kill it because it’s working, and you wonder, ‘What are their values?’”). Today, Gingrich and fellow ethanol-maven James Woolsey struck back in those very same pages. In doing so, Gingrich provided yet more evidence that he’s intellectually unfit for office.
“It is in this country’s long-term best interest,” he said, ”to stop the flow of $1 billion a day overseas.” Really? So money sent overseas is gone forever. News to me. The only thing you can buy with dollars earned from oil sales to the U.S. is to buy things denominated in dollars or to exchange them so that someone else can. And we sell a lot of stuff to foreigners that are denominated in dollars (treasury bills for one) and that money comes right back to the good old U.S. of A.
But put that aside. If Gingrich really believes this, then why not just ban all imports all together? Is that what the GOP is about these days – rank gooberism on trade?
A Patriot Update
A few developments from a business meeting of the Senate Judiciary Committee held this morning. As I noted last month the new House Intelligence Chair, Rep. Mike Rogers (R-Mich.) has already introduced another one-year straight renewal without modification. Since then, Sen. Pat Leahy (D-Vt.) has introduced a bill that would renew the expiring Patriot Act surveillance provisions through 2013, but with some very basic additional safeguards and oversight requirements—many of which the Justice Department has already agreed to implement voluntarily—including most crucially added constraints and a new sunset for expanded National Security Letter powers, which have already been held at least partly unconstitutional in their current form by federal courts, and which the government’s own watchdogs have already found to be subject to widespread abuse.
Enter Sen. Dianne Feinstein (D-Calif.), chair of the Senate Intelligence Committee, who played a key role in killing the same mild reforms last year. She’s already introduced legislation of her own, which would provide for an extension through the end of 2013, without any modifications, of not only the provisions set to expire this year, but also the highly troubling FISA Amendments Act, which in effect legalized the Bush administration’s illicit programmatic wiretapping with an added sliver of judicial oversight. Even this was not quite enough for Sen. Chuck Grassley (R-Iowa), who announced he would introduce a bill making the expiring provisions permanent—effectively removing an important impetus to continuing oversight.
Feinstein, interestingly, purported to be theoretically supportive of Leahy’s reformist impulses, but argued that the “time crunch” created by the end-of-February sunset deadline makes this the wrong time to consider reforms. (In order to hurry things up, a Hill contact tells me, Feinstein’s bill will be fast-tracked to the floor under Senate Rule 14, circumventing the committee process.) This really makes very little sense. Leahy’s bill is essentially the same proposal reported out favorably by a bipartisan Judiciary Committee majority; the point of doing a one-year reauthorization in 2010 was supposedly to allow Congress to consider reform alternatives in the interim. Moreover, the Justice Department has already effectively agreed to accept the reforms that bill contains. If there’s nevertheless a need for further deliberation, Congress can do exactly what it did last time around and extend the sunset by a few weeks or months to allow for additional debate.
The time constraints here are wholly of Congress’ own making. And while the Leahy bill doesn’t go far enough by any means, there is just no good excuse to delay at least the beginning of needed reforms any further.
Should Washington Pick Egypt’s Next Leader?
The turmoil in Egypt, specifically in Cairo, turned violent in the past 36 hours as anti-government protesters clashed with pro-Mubarak groups. During this period, and specifically today, the government crackdown widened to targeting foreign media. Journalists and their crews were arrested, prevented from reporting, and beaten. The anti-government protesters are pointing to Friday as a possible climax in what they are calling the “Friday of departure.”
President Mubarak, in an interview with ABC, said he would like to relinquish power now, but claims chaos will erupt if he did. If he were to step down, or if he follows through on his promise not to run in the presidential election, the million dollar question in Washington becomes: who would the United States like to see as the new leader of Egypt? And should Washington act to influence the outcome?
Over at The Skeptics, I address this by asking: Might it be better if the United States were to avoid micromanaging Egyptian politics altogether? Whenever a crisis erupts in the world, policymakers usually approach the problem with the premise that Washington has to “do something.” But must that include anointing another leader?
…Washington’s “do something” impulse seems to be overpowering common sense. Having backed the wrong person for too long, there is now a countervailing urge to correct our past error by backing the “right” person this time around.
I have a different idea. We should step back and consider that our close relationship with Mubarak over the years created a vicious cycle, one that inclined us to cling tighter and tighter to him as opposition to him grew. And as the relationship deepened, U.S. policy seems to have become nearly paralyzed by the fear that the building anger at Mubarak’s regime would inevitably be directed at us.
We can’t undo our past policies of cozying up to foreign autocrats (the problem extends well beyond Egypt) over the years. And we won’t make things right by simply shifting — or doubling or tripling — U.S. foreign aid to a new leader. We should instead be open to the idea that an arms-length relationship might be the best one of all.
Click here to read the entire post.
I Hope to See a LOT More of This…
In Indiana the other night, two grassroots groups–one on the left, the other on the right–got together to discuss the merits of state schooling, home schooling, and private school choice programs. There doesn’t seem to have been any high-profile organization orchestrating the event. It was just two groups of citizens getting together to try to find the best way forward on education policy. Let’s hope this is the beginning of a trend.
Egypt’s Iraq Connection
Overall, President Obama was right to applaud the Egyptian military for defending (at least for now) rather than killing Egyptian civilians, potentially avoiding the Arab world’s Tienanmen Square. Whether Obama’s rhetoric could have been more supportive, as we saw with Tunisia, is up for debate. But it appears that Egyptian President Hosni Mubarak’s attempt to shape an orderly transition is running into trouble.
The New Yorker’s Jane Mayer reports that Mubarak’s recently appointed Vice President, Omar Suleiman, was “the C.I.A.’s point man in Egypt for renditions—the covert program in which the C.I.A. snatched terror suspects from around the world and returned them to Egypt and elsewhere for interrogation, often under brutal circumstances.” Suleiman used to be head of the Intelligence Services (al-mukhabarat).
According to U.C.S.B. Professor Paul Amar, the mukhabarat, which detains and tortures foreigners more than Egyptians, is less hated than the Interior Ministry’s State Security Investigations (SSI) (mabahith amn al-dawla), and different than the Central Security Services (Amn al-Markazi), “the black uniformed, helmeted men that the media refer to as ‘the police.’” Mayer reports that Suleiman Suleiman was also the C.I.A.’s liaison for the rendition of al Qaeda suspect Ibn Sheikh al-Libi. “The Libi case,” Mayer reports, “is particularly controversial, in large part because it played a role in the building of the case for the American invasion of Iraq.”
How ironic that America’s attempt to export democracy to Iraq was aided by a repressive government like Egypt’s.
Science: ‘All Kids Different’
It didn’t get a lot of attention, but in last week’s State of the Union address President Obama celebrated the spread of national curriculum standards that’s been fueled largely by the federal Race to the Top. Of course, he didn’t actually call them “national standards” because no one is supposed to think that these are de facto federal standards that states have been bribed into adopting. The point, though, was clear to those in the know:
Race to the Top is the most meaningful reform of our public schools in a generation. For less than one percent of what we spend on education each year, it has led over 40 states to raise their standards for teaching and learning. These standards were developed, not by Washington, but by Republican and Democratic governors throughout the country.
Despite the celebration of national standards by both the President and lots of other supporters, there is essentially zero evidence that such standards will produce better educational outcomes. Much of that has to do with the reality of democratically controlled, government education: Those who would be held accountable for getting kids to high standards have the most clout in education politics, and they naturally fight tough standards. It also has a lot to do with human reality: All kids are different. It’s an inescapable observation for anyone who has ever encountered more than one child, but the national-standards crowd prefers to ignore it.
Maybe science will help them see the light. According to the BBC, new research comparing identical and fraternal twins reveals that genetics — something that exists before standards and schooling — has a lot to do with how much and how quickly someone learns:
The researchers examined the test results of 12-year-old twins – identical and fraternal – in English, maths and science.
They found the identical twins, who share their genetic make-up, did more similarly in the tests than the fraternal twins, who share half their genetic make-up.
The report said: “The results were striking, indicating that even when previous achievement and a child’s general cognitive ability are both removed, the residual achievement measure is still significantly influenced by genetic factors.”
In light of this confirmation of the obvious, isn’t it clear that a single timeline for what all children should know and when they should know it makes little sense? And doesn’t it point to the best system being one that gives kids individualized attention?
Of course it does, but that would require “experts” of all stripes to stop trying to impose their solutions on all children. It would also, ultimately, necessitate a system in which parents would choose what’s best for their children, and educators would specialize in all sorts of different curricula, delivery mechanisms, and teaching techniques.
Unfortunately, few in the education policy world are willing to adopt that utterly logical — but power relinquishing — solution.
Tax Lawyers, Tax Complexity, and the Broader Problem of a Self-Serving Legal Profession
The Internal Revenue Code is nightmarishly complex, as illustrated by this video. Americans spend more than 7 billion hours each year in a hopeless effort to figure out how to deal with more than 7 million words of tax law and regulation.
Why does this mess exist? The simple answer is that politicians benefit from the current mess, using their power over tax laws to raise campaign cash, reward friends, punish enemies, and play politics. This argument certainly has merit, and it definitely helps explain why the political class is so hostile to a simple and fair flat tax.
But a big part of the problem is that tax lawyers dominate the tax-lawmaking process. Almost all the decision-making professionals at the tax-writing committees (Ways & Means Committee in the House and Finance Committee in the Senate) are lawyers, as are the vast majority of tax policy people at the Treasury Department and the Internal Revenue Service.
This has always rubbed me the wrong way. Yes, some lawyers are needed if for no other reason than to figure out how new loopholes, deductions, credits, and other provisions can be integrated into Rube-Goldberg monstrosity of existing law.
But part of me has always wondered whether lawyers deliberately or subconsciously make the system complex because it serves their interests. I know many tax lawyers who are now getting rich in private practice by helping their clients navigate the complicated laws and regulations that they helped implement. For these people, the time they spent on Capitol Hill, in the Treasury, or at the IRS was an investment that enables today’s lucrative fees.
I freely admit that this is a sour perspective on how Washington operates, but it certainly is consistent with the “public choice” theory that people in government behave in ways that maximize their self interest.
There’s now an interesting book that takes a broader look at this issue, analyzing the extent to which the legal profession looks out for its own self interest. Written by Benjamin H. Barton, a law professor at the University of Tennessee, The Lawyer-Judge Bias in the American Legal System explains that the legal profession has self-serving tendencies.
Glenn Reynolds, of Instapundit fame, interviews Professor Barton about his new book.
I freely confess that I’m looking at this issue solely through my narrow prism of tax policy. But since Barton’s thesis meshes with my observations that tax lawyers benefit from a corrupt tax system, I’m sympathetic to the notion that the problem is much broader.
One of the most qoted lines from Shakespeare’s Henry VI is, “let’s kill all the lawyers.” But rather than making lawyer jokes, it would be a better idea to figure out how to limit the negative impact of self-serving behavior – whether by lawyers or any other profession that might misuse the coercive power of government.
This is one of many reasons why decentralization is a good idea. If people and businesses have the freedom to choose the legal system with the best features, that restrains the ability of an interest group – including lawyers – to manipulate any one system for their private advantage. This new study by Professors Henry Butler and Larry Ribstein is a good explanation of why allowing “choice of law” yields superior results.
This Should Make You Nervous
From today’s edition of Farmpolicy.com:
The American Farm Bureau Federation, the National Cattlemen’s Beef Association, and the American Sugar Alliance all recently expressed delight that Kansas GOP Senator Pat Roberts will be the new Ranking Member of the Senate Agriculture Committee.
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