Friday, November 30, 2007

More "Judicial Restraint" Nonsense

Bluntly speaking, "judicial restraint", whether proferred by Oliver Wendell Holmes, Jr., Felix Frankfurter or Antonin Scalia, is just another nice way of describing avoiding constitutional issues on the basis of "the will of the people" and other such nonsense.

Therefore, it is probably no surprise to hear this from the President of the Brady Campaign to Prevent Gun Violence (H/T: Cato-at-Liberty) :

More than 30 years ago, the elected representatives on the D.C. City Council decided to enact a system of strict gun laws to help protect public safety. The people in D.C. strongly support these laws. The District's police strongly favor them as well.

The District's decision has been attacked over and over again by outside interests more concerned with pleasing the gun lobby than respecting the will of the people. Some in Congress have tried multiple times to overrule the District's preference for strict gun regulations, but have failed each time.

In 2003, however, a wealthy benefactor decided to fund a challenge in federal court to the District's strong gun laws. A fellow of the libertarian Cato Institute, his argument lost soundly at trial.

On appeal to the federal circuit court, however, two judges handed him a "victory." They decided to ignore almost 70 years of Supreme Court precedent, over 200 years of American history, and even the text of the Constitution itself. In so doing, they imposed their own policy preferences on the people of D.C.

It was a textbook example of judicial activism at its worst.

For more than 200 years, communities across America have used their right to vote for gun laws they believe are needed to protect their safety. Yet the federal appeals court decided to limit that authority with a misguided view of the Constitution. That was wrong.

The people of this country know that sensible gun laws save lives. For example, Hawaiians banned assault weapons and required a permit to purchase handguns. Californians banned assault weapons and required universal background checks for every gun purchase. Coloradans closed the gun-show loophole. Illinois residents closed the gun-show loophole and required child safety locks sold with each handgun. Michiganders require lost or stolen guns to be reported to the police. New Yorkers banned assault weapons and closed the gun-show loophole. Virginians limited handgun purchases to one a month.

All across America, the power of the people to pass laws like these was put at risk by the reasoning in the lower-court decision.


Judicial activism at its worst? That is a pretty bold claim and, given that conservatives of late, like liberals in the 1930's, have made judge-bashing a political pasttime, it is one I can not in good conscience take seriously. Moreso, there is an element of irony to the claim. When the claim of judicial activism has been leveled against the "will of the people", whether responding to decisions in Lawrence v Texas or Lochner v New York*, the "judges making policy from the bench" were, as the story goes, protecting rights that were not specifically enumerated in the Constitution (i.e. the New Deal jurisprude mindset).

Here, Mr. Helmke, takes the judges to task for ignoring the will of the people for an enumerated right, while hedging his bet by calling the Court's position on the Second Amendment "misguided". While one can get away with this given the length limits in op-ed pieces, I will at least suggest that whether the Court was misguided is hardly a settled matter. While I know my own opinion will not settle things, if individuals have inviolable natural rights, then one must have an inviolable right to defend them. This is not to suggest an absolute Second Amendment right beyond the reach of any legislation. Under current doctrine, I would argue that, as both an enumerated and an individual right, any sort of legislation that potentially conflicts with the Second Amendment should receive the highest level of scrutiny possible ("strict scrutiny" in legalese).

It also odd that one can find "deep respect with judicial precedent" and "for a close reading of the Constitution" at the same time. Those who have at least a passing knowledge of judicial precedent, especially for those who find the concept of the "will of the people", i.e. legislative supremacy, far more dangerous that judicial supremacy could ever be, know that "judicial precedent" is a wasteland of legislative supremacy that purports to be couched in the "legitimacy" of judicial restraint. Those who understand legitimacy know better.

For what it's worth, I fail to see "a right to vote for gun laws they believe are needed to protect their safety" in the Constitution (yes it looks silly but that is the point). Passing laws is not a right, it is a power, and one of unlimited scope. While public safety is a valid use of the state police power, the fact that the majority "believes" it to be necessary does not mean we are to automatically assume it so, despite what champions of unbridled majoritarianism would have us believe.

This is unsettling. Let's hope the Supreme Court comes to the correct decision.

Tuesday, November 27, 2007

I didn't see this coming...

Kevin Dubrow, the lead singer of Quiet Riot, passed away.

My condolences to friends and family.

Monday, November 26, 2007

The Cato Supreme Court Review now available

Enjoy!!!

I like reading these articles. It demonstrates how little I really know about law.

In any event, I spent a few minutes going through Brannon Denning's article, which is an alternative opinion of Gonzales v Carhart. It is a rather interesting analysis of the Partial Birth Abortion Ban under the Commerce Clause framework put forth in U.S. v Morrison and U.S. v Lopez.

While I know what these cases represent, I am not fully up to speed on the doctrine put forth in those cases. That said, I gleaned enough to enjoy the analysis.

I plan on reading through the rest of these in the coming months, although political blogging and jazz guitar keep me away from any semblance of legal blogging.

Sunday, November 25, 2007

Name that Moonbat...

The sheer arrogance of this moonbat makes me sick:

“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”

“It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.”

“No nation could preserve its freedom in the midst of continual warfare.”

“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

“War should only be declared by the authority of the people, whose toils and treasures are to support its burdens, instead of the government which is to reap its fruits.”

“Each generation should be made to bear the burden of its own wars, instead of carrying them on, at the expense of other generations.”

This is some of the most undisciplined, unprincipled "Blame America Firstism" I have ever seen.

Who is this? The answer is here.

Now, you didn't really think I was going to waste my time blogging about moonbats, did you? Sorry, that market's already cornered by about 20,000,000,000 conservative bloggers.

Hat tip to The Liberty Papers, whose post reminded me that I needed to write a post of my own.

Friday, November 23, 2007

The Care Bear Stare - Short Form

People are more than welcome to read the post below on the Care Bear Stare. If you want the short-form version for people who think we can "will" our way to whatever outcome we desire, we can watch the Care Bear Stare in action.

Thursday, November 22, 2007

The Care Bears Make A Comeback

It was perhaps coincidental that I had read about the Care Bear Stare approach to solving all the world's problems (via Julian Sanchez) shortly after having a brief conversation with someone on foreign policy, stating that our struggles would be minimized, if not eliminated if only we had "the will". Care Bear-ism is, of course, not limited to one ideological side. The only difference is how each side chooses to employ it.

Rod Dreher's article on Real Clear Politics describes how this all works:

Behind The Care Bear Stare is the ideological conviction that there's no problem that can't be solved by the power of human intelligence and relentless application of good will. It's premised on the refusal to recognize limitation, as well as an inability to accept that some things simply must be lived with, at least for the time being. The Care Bear Stare is the psychological weapon of choice for people who cannot reconcile themselves to a world without guaranteed happy endings.

Alas for the Care Bears and their cute little tummies glowing with gladsome light, we live in an imperfect world. History teaches that the attempt to perfect it is not only futile but could make things worse (e.g., communism as a solution to povertyand inequality). This tragic vision does not deny the possibility of betterment but cautions that meaningful progress usually occurs incrementally, after skeptical deliberation; almost always requires compromise; and is never permanent.

And then there's the Care Bear vision, which takes as given the perfectability of humankind and correspondingly interprets all problems as fixable, given the right conditions. Care Bearism involves, in Thomas Sowell's words, "a disdainful dismissal of arguments to the contrary as either uninformed, irresponsible or motivated by unworthy purposes." Should the critics prove, after the fact, to have been right, Care Bearists grant themselves absolution because their hearts were in the right place.

Since at least the 1960s, liberalism has provided an ideological wigwam under whose pastel-colored flaps the Caring-American community has gathered to emote and caucus in its therapeutic and sentimental fashion, always looking forward to a better future (in part, because it means they don't have to look at the wreckage of their past schemes). Some latter-day conservatives began as liberals, until they understood that The Care Bear Stare was no effective defense against problems originating in human nature, which is not infinitely malleable, and in the intractability of evil.

Conservatives - even compassionate ones - pride themselves on being hard-headed realists who roll their collective eyes at the fuzzy-wuzzy schemes of the goo-goo left. But the right is by no means averse to indulging in The Care Bear Stare when doing so suits its purposes.Care Bear Conservatives, for instance, proclaim that the only thing standing between us and victory in Iraq is belief in ourselves and our cause.


Never mind the persistence of sectarian hatred and the cultural unsuitability of Iraqis for liberal democracy - if the U.S. ultimately withdraws from Iraq having failed to achieve victory, Care Bear Cons will argue, as they did post-Vietnam, that the news media sapped the will of the American people.



Care Bearism is irrational, intellectually dishonest and an exercise in sheer hubris. While I do not mind a "can do" attitude, the manner in which disagreements are met is exactly how Thomas Sowell describes it. A great summary of this was written by Patrick of Driving Out the Snakes. While his focus was more narrow, it still applies to anyone so unshakable in their beliefs that the possibility that they can not be wrong is out of the question. When faced with disagreement, especially one that calls credibility to their own views, the fundamentalist either "1) ignores it; 2) dismisses it or 3) insults whoever said it."

Moreso, it is beyond naivety to imply, as Care Bearism does, that all factors beyond our control can somehow be brought under our control. Anyone who understands how unintended consequences, especially those brought about by some form of state intervention, can exacerbate the very problems such intervention was aiming to address, are skeptical if not outright hostile to this notion.

Lastly, I am plainly sick and tired of people trying to point the finger elsewhere without looking at their own views first. Blaming Hollywood, the left, the mainstream media, Ron Paul or whatever target du jour presents itself does not impress me. Frankly, I find it kind of lazy.

Happy Thanksgiving

Enjoy the holiday.

I'll probably be blogging lightly and updating the blogroll. I have far more blogs on my RSS feed than in here so I'm reading more than what my lists indicate.

Tuesday, November 20, 2007

Supreme Court to Hear Landmark 2nd Amendment Case

Via Cato-at-Liberty, the Supreme Court will hear the case involving the constitutionality of Washington, DC's ban on guns. It will be a major victory for individual rights if the ban is overturned. I am hoping for that outcome.

Catohas some interesting commentary on Bob Levy, the scholar who has been instrumental in getting this case to the Supreme Court. In addition, the Center of Constitutional Studies has a variety of informative resources regarding The Second Amendment. The link above will send you in the right direction.

Also, an informative piece about the case and some of the players behind it is in this month's edition of the ABA Journal online (here).

The case is Parker v. District of Columbia

Regime Stabilization in Pakistan?

In todays NYTimes, Frederick Kagan and Michael O' Hanlon believe that now is the appropriate time to think about "our feasible military options in Pakistan".



Pakistan’s officer corps and ruling elites remain largely moderate and more interested in building a strong, modern state than in exporting terrorism or nuclear weapons to the highest bidder. But then again, Americans felt similarly about the shah’s regime in Iran until it was too late.

Moreover, Pakistan’s intelligence services contain enough sympathizers and supporters of the Afghan Taliban, and enough nationalists bent on seizing the disputed province of Kashmir from India, that there are grounds for real worries.

The most likely possible dangers are these: a complete collapse of Pakistani government rule that allows an extreme Islamist movement to fill the vacuum; a total loss of federal control over outlying provinces, which splinter along ethnic and tribal lines; or a struggle within the Pakistani military in which the minority sympathetic to the Taliban and Al Qaeda try to establish Pakistan as a state sponsor of terrorism. All possible military initiatives to avoid those possibilities are daunting.

With 160 million people, Pakistan is more than five times the size of Iraq. It would take a long time to move large numbers of American forces halfway across the world. And unless we had precise information about the location of all of Pakistan’s nuclear weapons and materials, we could not rely on bombing or using Special Forces to destroy them.

The task of stabilizing a collapsed Pakistan is beyond the means of the United States and its allies. Rule-of-thumb estimates suggest that a force of more than a million troops would be required for a country of this size. Thus, if we have any hope of success, we would have to act before a complete government collapse, and we would need the cooperation of moderate Pakistani forces.


I do not dispute that the collapse of Pakistan could pose problems for us, but as I have seen nothing that indicates that this will happen anytime soon. I think we're putting the cart before the horse here. However, there are greater problems here.

Furthermore, with Iraq, an argument was made for preventive war ("regime change" if you will) on the basis that the WMD program did pose an immediate threat to the security of the United States. Now, we have an argument for a preventive war to prevent a situation where we have to go to a war that could be far more daunting and challenging than what we have faced before? We fight now so we don't have to fight later? Are we suggesting that our foreign policy calls for us to use military force against the possibility, however remote, that an enemy "may" be a threat to our national security at some undetermined point in the future?

Kagan and O'Hanlon, at seems, are selling "regime stabilzation" as part of our wide array of products and services designed to make the world safe for democracy. If I order now, do I get the free AEI Signature Series neoconservative bobblehead doll whose head pops off at very mention of Ron Paul's name?

Anyway, quoting Erin Manning at CrunchyCon:


Although I certainly want America and Americans protected from terrorists, I also want America to remain America, and I can't even imagine any of the founding fathers accepting acquiescently the notion that the government of the United States has the power to fight an embryonic "pre-war" in an effort to maintain the status quo of our relationship with another sovereign nation. To be blunt, I can hardly imagine a less American idea.

Gasp!!! You don't want another 9/11 do you? Just kidding. I couldn't have said it better myself.

Friday, November 16, 2007

Not Like I Needed Anyone to Tell Me...

cash advance

Cash Advance Loans



Must be my good looks.

My Favorite Scene From Mars Attacks



How interesting. Ron Paul's speeches and/or political views seem to have the same impact on certain segments of the population.

Bizarre...

(via CrunchyCon and The Debatable Land)

A man caught trying to have sex with his bicycle has been sentenced to three years on probation...Robert Stewart, 51, admitted a sexually aggravated breach of the peace by conducting himself in a disorderly manner and simulating sex...Sheriff Colin Miller also placed Stewart on the Sex Offenders Register for three years.

Ouch. A sex offender registry to boot?

A commenter at CrunchyCon asked whether or not Lawrence v Texas would apply to this case. If this were in the United States and not Scotland, the conviction would be overturned in my opinion.

I would pay money to sit in on the oral arguments for a case like this. I read the Lawrence transcript and was more than entertained at the ill-fated attempts by the State of Texas to explain the "rational basis" of their now overturned sodomy law. I can only imagine how hard I'd be laughing at the attempted justifications of protecting bicycles from evil fornicators.

It could look a little something like this: although you'd have to substitute the drug reference for our current subject (from one of my favorite South Park episodes):



Having a twisted sense of humor has its advantages.

Not that I would ever do this...

Order a custom cake from Wal-Mart:

The funny thing is that I've had people doing word processing work for me that actually did something like that once. I didn't laugh then but I suppose I can laugh about it now.

via Andrew Sullivan

Tuesday, November 13, 2007

Redefine Privacy?

It is amazing that people like this are referred to as intelligence officials. This is not the way I would initiate a discussion on privacy, but leave it to a government official to fall short of my expectations (I've compiled the quotes from the above link):


"Those two generations younger than we are have a very different idea of what is essential privacy, what they would wish to protect about their lives and affairs. And so, it's not for us to inflict one size fits all...

Protecting anonymity isn't a fight that can be won. Anyone that's typed in their name on Google understands that...

Our job now is to engage in a productive debate, which focuses on privacy as a component of appropriate levels of security and public safety...

I think all of us have to really take stock of what we already are willing to give up, in terms of anonymity, but (also) what safeguards we want in place to be sure that giving that doesn't empty our bank account or do something equally bad elsewhere."


If I order a PC from Dell, I am not doing so anonymously, and, by entering into the transaction, I consent to having certain information provided as part of the transaction, including information that I do not want shared with anyone else. I expect Dell to take all reasonable measures to protect my personal information based on whatever terms and conditions we mutually agree to (i.e. - using zip codes for "marketing purposes"). Although imperfect, the free market has done a good job of addressing information sharing and how that information is to be protected. As incentives exist, people (entrepreneurs) step in to provide solutions. We're already 20 steps ahead of Donald Kerr.

Furthermore, if we really need to redefine our "reasonable" expecation of privacy, we should at least understand what constitutes a reasonable expectation of privacy. For me, it is clearly summarized as the opening paragraph of Justice Harlan's concurring opinion in the landmark Katz v United States (1967):

(a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383, and unlike a field, Hester v. United States, 265 U.S. 57, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic, as well as physical, intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment, [p361] and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.

Therefore, if 1) the Fourth Amendment protects persons from unreasonable searches, such as monitoring electronic communications originated from a private place (such as a home) without a search warrant, and 2) exceptions to the warrant rule have, to my knowledge, never applied to a search within a home (hot pursuit notwithstanding), then how is one to "expect less privacy" without accepting the notion of increasing instances of warrantless searches if not the elimination of the warrant requirement from the definition of reasonable (per Katz, and recently reaffirmed, albeit indirectly, in Kyllo v United States (2001))?**

This would require such a profound shift in constitutional doctrine that I think the only way to appropriately address this is via an amendment.

Adding fuel to the fire, as others have mentioned (here and here), the administration has been, nicely put, less than noble in respecting the rule of law or using surveillance outside of what most reasonable observers may think as appropriate. The very people who want to have a conversation with us to suggest we "refine" our view of privacy are the same ones who have acted in such a way that makes it very difficult to trust them.

I have no problem with people like Donald Kerr wanting to have a sort of rhetorical sit-down to discuss what he thinks we need and why should refine our expectations of privacy. I will always listen. However, I will not hesitate to remind him (and other likeminded individuals) that there is a right way and a wrong way to go about doing things.

Hat tips - KipEsquire, Dispatches from the Culture Wars

** As a clarifying footnote, in Kyllo, the question before the court was whether or not the use of a thermal imaging decision to detect heat signatures consistent with the cultivation of marijuana was considered a search in the constitutional sense. Because it was considered a search and the police did not secure a search warrant, the search was considered unreasonable.

Monday, November 12, 2007

Joe Lieberman for Vice President?

For the Republicans? William Kristol seems to think this is a winning idea:

As for Rudy and John and Fred and Mitt and Mike: Take a break from kissing babies to pick up the phone and congratulate Joe. Seek his endorsement after you win the nomination. What the heck--offer him the vice presidency. (Rudy, you might try State or Defense, since you'll need a pro-life running mate.) But McCain-Lieberman, Thompson-Lieberman, Romney-Lieberman, Huckabee-Lieberman--those sound like winning tickets to us. It's true, given the behavior of the congressional Democrats, the GOP nominee might well win with a more conventional running mate. But why settle for a victory if you can have a realignment?

The "congratulating Joe" bit has to do with the speech that is cited on the first page of that article, where Lieberman laments the current direction of the Democratic Party, although his complaints about the Democrats retaking Congress should not be news to anyone. The Democrats were not elected to pursue Lieberman's vision. If voters wanted that, the GOP would still be in control of Congress.

Anyway, Daniel Larison has some thoughts:


This seems unhinged to me. Realignment? Because of Joe Lieberman? In the context of a presidential election, realignment implies a landslide with 40+ states lining up behind a ticket, a dramatic, sudden shift in the balance of power from one party to another. 1932, 1968, 1980 are often given as the elections where major realignments occurred, which involved the building of broad electoral coalitions. What Kristol proposes is that nominating Lieberman would create the conditions for such a massive victory for the Republicans, when the woes of the latter are closely tied to the foreign policy decisions that constitute the chief reason why Kristol admires Lieberman and thinks he should be a VP nominee.

Unless people are focusing exclusively on national security that people pay attention to nothing else, I can not see liberal hawks throwing themselves behind a socially conservative President. Furthermore, if I were a betting man, I'd guess that the number of people gained would be far less than the number of people heading for the exits. It would not just be because of Iraq. As David Boaz of The Cato Institute points out:

Only if you believe that continuing to support the war in Iraq outweighs all other issues combined–for the next five years–could a conservative reasonably support Joe Lieberman. And apparently some Republicans and conservatives are willing to toss aside his commitment to high taxes, higher spending, more regulation, and entitlement expansion in order to get a vice president firmly committed to long-term entanglement in Iraq.


Well, it's not like The Republican Party has shown anything close to a committment toward that silly and outdated notions like limited government and fiscal responsibility. let alone liberty

In any event, if Giuliani is the frontrunner, this is all moot, although I'd be amused to see two liberals running under the banner of "conservatism" (although others probably won't find it funny at all - nor should they).

Sunday, November 11, 2007

Note to Self...

Try not to blog with a 101 degree fever and a respiratory infection.

Bad things can happen, like saying good things about universal health care.

Saturday, November 10, 2007

They can't win...

About gays...

Here is a little gem Ed Brayton quotes on Dispatches from the Culture Wars and then proceeds to demolish thereafter. From the imitable Rick Scarborough:

Homosexuals are attempting to use the legislative process to bring their sexual practices and preferences into our workplace and discriminate against people of faith. They are attempting to do this under the disguise of a new employment discrimination law.

Remember, when gays go the courts to fight to get blatantly unconstitutional laws struck down, it's "judicial activism". We are then reminded that the "proper" approach is going through "legitimate" democratic processes. When that is done, the same group of, ahem, individuals, view this as an assault on their values.

The homophobic bigot mindset runs on the principle of mind over matter: if we mind, you don't matter.

I have little use for clowns like Rick Scarborough.

Laughter is the Best Medicine:

I have been feeling like crap for the better part of the last week, especially today. For a good ten minutes or so, I got to forget all about that. I was laughing so hard I was nearly in tears. Hat tip to KipEsquire, the Hero of the Day!:

Go here (I can't get this on my page...too bad)

What do I think could trigger such a response?

He hates the Iraq war. He hates the rest of our foreign policy. He pretty much thinks we shouldn't have a foreign policy. He hates our bloated and meddlesome federal government. (What's that they say about stuck clocks?) He hates abortion. He hates the Treasury and floating currency. Basically, he wishes it were 1796 and he could wear a powdered wig without being ridiculed in public.


I was going to offer up the suggestion for a tin foil hat, but I think I really like this instead. Silence from certain segments of the political blogosphere would be a welcome thing, at least until my headache goes away.

My type of humor.

Friday, November 9, 2007

A Response to Tim Lee

Tim Lee at Angry Blog wrote a thoughtful response to Tim Sandefur's criticism of Ron Paul (Sandefur responds here). In that were some comments made in my second of two criticisms of Rep. Paul's position. Although Sandefur (I'll use last names as it'll be easier) responded to every point, I would like to elaborate on the comments made toward the quote Lee attributes to me. I'll post the relevant portion of the text:


I think the same principle applies to the claim that “no right-minded libertarian subscribes to Bork’s (or Paul’s) pandering to democratic majorities.” There’s absolutely nothing contradictory about saying that the constitution permits states to enact some statist policy (abortion restrictions, sodomy laws, hate crime laws, etc) but that one doesn’t think that policy should be enacted. Indeed, I would argue that intellectual honesty requires libertarian legal scholars to concede in at least some cases that the constitution to enact policies that we don’t agree with. It would plainly be silly to argue that the constitution doesn’t permit federal post offices.



In principle, I agree with this in its entirety. There is nothing contradictory about making certain statements about statist policies in terms of being opposed to them yet acknowledging the Constitution permits them. I think a great example of this is the ruling in the 1877 case of Munn v Illinois, where the Supreme Court upheld a state law regulating rates for grain elevators and warehouses on the basis that the "property is affected with a public interest". As a libertarian, I love Justice Field's dissent; however, I concede here (and in other cases as well) that a case can be made for its constitutionality although I don't like it (one can argue it set up one of the worst decisions ever handed down by the court, the 1934 case of Nebbia v New York).


There are numerous regulations that may legitimately serve public health or public safety concerns and that are neutral in nature (they don't serve to favor or disfavor one or multiple groups. Some of these I may find repugnant to my libertarian beliefs, but if they legitimately protect the rights of the general public, from a constitutional standpoint, I would concede that these do not exceed the proper role of the state police power. I may dislike them but the Court should uphold them.


Although these are fair points to bring up, the issue here is not that I think libertarianism and the Constitution go hand in hand (I have never made that claim and never will although I could have been unclear). The question is whether or not Rep. Paul's views on what states can or can not do reflect the proper role of the state police power, which has support in the Constitution. If we define the proper role of the state police power as 1) preventing wrongful acts on others and 2) passing laws and establishing regulations that serve to protect the rights of others (i.e. laws that involve public health, public safety, public welfare and, to some extent, public morals issues), then, as Sandefur argues, he has exceeded that threshold quite considerably. I will also state that the proper role of the state police power would constitutionally permit several types of laws that libertarians of all stripes would undoubtedly find offensive. I never intended to suggest otherwise.



One last point, I appreciate Lee's citation of the debate between Gene Healy and Roger Pilon. Here is a more extended treatment of the discussion. Perhaps the most troubling apsect of Healy's solution in this article that he basically suggests that we suggests that we are "freer to adopt a narrow construction of the 14th Amendment than we would otherwise be". This is based on the circumstances on which the amendment was ratified (I understand the history but can offer no response).

Healy puts the concept of interpretation as a matter of illegitimacy on the table, in a sense, to prevent the Left from taking a broad interpretation (which he argues they have). My concern is that with the idea of illegitimacy on the table and no foreseeable way to limit the concept of what is illegitimate to ratification, then there is nothing at all from stopping the Left from applying its own principle of illegitimacy as an excuse to interpret the Constitution as they see fit. As we know, they have already one this, arguing that the original document as ratified is illegitimate and lacks moral authority because of the compromises with slavery (Harry Jaffa discusses Thurgood Marshall's views here in the context of liberal judicial activism).

Whether well-intended or not (I think it is, for what it's worth), the principle Healy invokes is the same principle that justified the very thing he seems to deplore. Am I missing something here? By all means, I am open to suggestions and comments on this matter. I don't mean to suggest Healy is a liberal judicial activist (his writings at Cato and his libertarian views certainly suggest otherwise), but there were a couple of things that struck me as odd. That's all.

A Perverse Sort of War

Let's say two countries declare war on one another (A and B). The government of A launches the first strike, a direct assault on the Citizens of A. Seeing this outrage, the government of B launches a counterattack on the Citizens of B. Not to be outdone, A will no sooner raise the stakes, doing further harm to the Citizens A, which will undoubtedly be matched by increased harm to the Citizens of B. So the cycle goes.

This is, in a nutshell, economic protectionism. To "protect" one's industries from the "evils" of global competition, requires the state to tangibly harm its citizens. Tariffs do a wonderful job of this, and at their worst, can be devastating. Consumption is reduced. Output is reduced. Trade is reduced. This is all in the name of "protecting" us from harm.

Help us by hurting us. Perverse indeed.

Hat tip to Cafe Hayek

ENDA, Civil Rights and Civil Liberties

A quick post written by Julian Sanchez more or less sums up my position on ENDA or any anti-discrimination law for that matter, as "civil liberties groups would want the whole thing scrapped as a burden on freedom of association, because civil liberties are immunities from government imposition". I think this is spot on correct. Civil liberties, or immunities, those rights that pre-exist government and those rights that are not surrendered to general government (and were not under our Constitution) are not the same as civil rights, as civil rights are typically established through the democratic process and defined as a matter of positive law.

However, libertarians may want to consider an alternative approach. As KipEsquire has explained:

I stick to my view that it is no betrayal of libertarian principles to insist that a law that you may disagree with facially at least be applied as reasonably and as consistently as possible. Stated differently, even if a libertarian paradise would have neither room nor need for a hate crimes law, the fact that we have one demands that it be the most objectively sensible one possible — and that in turn demands that sexual orientation be included. A bad law applied well is better than a bad law applied badly.

Moreso, cutting off one's nose to spite one's face as a matter of principle is one thing. Cutting off the noses of other people to spite one's face is a whole other matter, and unjust. Footnote Four of U.S. v Carolene Products, one of, if not the key structural element of modern constitutional rights jurisprudence (for good or for ill), states in its last paragraph:

... Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious ... or national ... or racial minorities ...: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry

While practice, quite unfortuneately, has been inconsistent with principle, the principle is clear: if we have a legal regime that has civil rights laws that protects classes of individuals based on a designation of "being a discrete and insular minority" (and laws that will not go away anytime soon), then on principle, this should apply to all groups. Period. Libertarians may be (rightly) offended by the encroachment on natural rights as a matter of principle, but it is, to me at least, no less offensive and very bad policy to have laws applied unequally, whether we think those laws conform to our principles.

Thursday, November 8, 2007

$9 Trillion

I heard it on the radio this morning and just read about it over at Andrew Sullivan's blog. To paraphrase: Between Washington and Reagan, we accumulated $1 Trillion in debt. Between Reagan and Bush II, that number has increased to $9 Trillion.

Sullivan (rightly) beats President Bush over the head with this, but Congress is equally culpable. Since President Bush took office, the debt limit has been raised five times, and each of those five times, Congress sent a bill to the President so he can sign it.

A little fiscal responsibility would be nice, although I'm sure it's wishful thinking (oh and the variety that doesn't purport to raise taxes under the guise of being responsible).

This is a joke, right?

Via Brian Doherty, from an article written by Justin Logan (an interesting read), comes this zinger about Norman Poderhetz:

Podhoretz penned a meandering essay in Harper's in 1977 titled "The Culture of Appeasement" which likened antiwar sentiment in post-Vietnam America to the wariness of war in Britain after World War I, and then linked the latter to a homosexual yearning for relations with all the young men who perished in the Great War. In Podhoretz's view, "the best people looked to other men for sex and romance," and as a result, didn't much like them being killed by the score on the Continent. "Anyone familiar with homosexual apologetics today will recognize these attitudes."

Tying things back into the 1970s, Podhoretz pointed to the "parallels with England in 1937" and warned that "this revival of the culture of appeasement ought to be troubling our sleep." (A correspondent in a subsequent issue of Harper's would admit that he "had not previously realized that Winston Churchill fought the Battle of Britain almost singlehandedly while England's ubiquitous faggotry sneered and jeered from below.")


I suppose I should feel comforted that my anti-war position has called only my patriotism into question and not my masculinity. I guess this is what we call progress? Wow.

Not uncoincidentally, this little "thesis" reminded me of something Murray Rothbard wrote in his review of Poderhetz's Breaking Ranks, a Political Memoir. Fans of Poderhetz would do best not to read it:


In fact, there is a still greater irony in the Podhoretz saga. He jabs at Arendt’s concept of the "banality of evil," but his very own life demonstrates that Arendt was right. For Norman Podhoretz has not only fostered evil by his corrosion of true intellectual standards, his ethnic narcissism, and his promotion of the statist status quo; he also represents banality through and through. Were this a just society, Podhoretz would be spending his years as a writer for some AFL-CIO sheet, trotted out at union conventions as one of their resident intellectuals. As it is, we all have to put up with the continuing infliction of this schmendrick upon our consciousness, and we will have to begin to brace ourselves for the inevitable next installment of the living legend of Norman Podhoretz.

Ouch.

Milton Friedman on Greed

I don't remember the first place I saw this, but I liked it so much I am posting it here. He takes Phil Donahue to school. I'll be glad to give the hat-tip but I don't know who to give it to. Sorry.

Away we go:

Hurricane Noel - Christmas for Surfers and Bodyboarders

Not that I should really like things that can cause great losses of life and property, but as a bodyboarder, I had the pleasure of riding some waves that were left over from the swells caused by Hurricane Noel.

Here is a link with some fantastic pictures of what mother nature offered East Coast surfers and bodyboarders. Luckily for me, I was in the water on Sunday and not Saturday. I didn't have to deal with the overhead stuff but more of the waist-to-chest high variety. Besides, because of the north winds, the Jersey shore was a sloppy mess, but Long Island was gorgeous, as some of those pictures will show.

Wednesday, November 7, 2007

Ron Paul - Judicial Conservative?

While I thought I would have left Ron Paul alone after explaining why I will not support his campaign, Tim Sandefur served up an opportunity that was too good to pass up. Quoting Rep. Paul re: Lawrence v Texas (my emphasis added):
Consider the Lawrence case decided by the Supreme Court in June. The Court determined that Texas had no right to establish its own standards for private sexual conduct, because gay sodomy is somehow protected under the 14th amendment “right to privacy.” Ridiculous as sodomy laws may be, there clearly is no right to privacy nor sodomy found anywhere in the Constitution. There are, however, states’ rights—rights plainly affirmed in the Ninth and Tenth amendments. Under those amendments, the State of Texas has the right to decide for itself how to regulate social matters like sex, using its own local standards. But rather than applying the real Constitution and declining jurisdiction over a properly state matter, the Court decided to apply the imaginary Constitution and impose its vision on the people of Texas.

Outside of a perhaps small group of libertarians, libertarians were pleased with the Lawrence decision. Rep. Paul's comments reflect the mindset of the "New Deal Jurisprude", who believes that unenumerated liberties should be determined via democratic process rather than vigorously protected against the passions of democratic factions. On that note, he sounds more like a judicial conservative, echoing similar sentiments heard amongst conservatives when the Lawrence decision was handed down.

Moreso, I do not read the Ninth and Tenth Amendments the way Rep Paul does. The Tenth Amendment states, clearly, that those powers specifically not granted to the federal government are reserved to the states or to the people. From this, we can draw two conclusions: 1) the amendment itself is a reaffirmation of the pre-existing constitutional structure. It adds nothing that can not be derived from the original Constitution. 2) the Tenth Amendment recognizes additional powers that fall to local responsibility but in no way makes any determination as to what those powers are or what those powers are not. In other words, the Bill of Rights does not define the proper role of the state police power (although, properly interpreted, it establishes firm constraints with respect to the Privileges or Immunities and the Due Process clauses of the 14th Amendment). It may begin the discussion, but it does not end it.

Also, if the Ninth Amendment suggests that individual unenumerated rights are to be protected in the same fashion as enumerated rights, what pray-tell does this have to do with states rights? Furthermore, as the Ninth Amendement describes individual rights and the Tenth Amendment describes power, why conflate the two?

I know there is some scholarly research that addresses this (i.e. the Ninth Amendment debates between Randy Barnett and Kurt Lash), and, although I may have a passing knowledge of the issues, I am not up to speed on all of the arguments. However, that is basically irrelevant. This is not a debate about the proper way to interpret the Constitution (I do not ignore the possibility that my view of things could be - or have been - proven to be different than how I understand them to be). To me, he is more Robert Bork than Randy Barnett, and no right-minded libertarian subscribes to Bork's (or Paul's) pandering to democratic majorities at any level of government. Libertarians know better.

Now, why do people refer to him as a libertarian? I agree with Sandefur that he his more akin to a paleoconservative.

Hat tip to Tim, although I think that his link "II" at the bottom of his post is a duplicate of "I". I'd really love to read that Part II. :)

Utah Voucher Referendum Fails to Pass

According to Cato-at-Liberty, with 90% of precincts reporting, the referendum was defeated by a 3-2 margin.

Someone's prediction was correct.

I can't say I'm thrilled, yet I can't say I'm surprised either.

Tuesday, November 6, 2007

Count me in as Number 4...

KipEsquire, Tim Sandefur and Shawn Klein are all libertarians (damn intelligent ones at that) and none of them support Ron Paul. On that note, count me in.

On my now defunct ConLawGeek blog, I had recently made a few comments to the extent that I didn't think he was a libertarian (on a cached page of ConLawGeek, a couple of sentences are devoted to that point on the third post down). Since others have put forth some very well-written posts (or series of posts) on this matter, I thought I'd toss my hat in the ring and make my declaration as well.

For me, it was his support of the putrid DOMA, his voting for the Federal Partial Birth Abortion Ban (despite being a constitutionalist, which, by definition, would never equate an in-state abortion procedure with interstate commerce), his constant overtures to the concept of states rights, which any libertarian should find offensive (although it may be that certain paleolibertarians are comfortable with it - a notion I am admittedly wrestling with a bit but for the time being I'll leave alone).

Now, courtesy of Mr. Sandefur, I just had my first experience with Ron Paul on the Establishment Clause. Needless to say, I'm not impressed. In fact, I would have surmised that a standard bearer for libertarian ideas would not come across as a crude version of a Bill O' Reilly-esque culture warrior of sorts.

I not only hold that one equal right of conscience stems from the natural right of one's self ownership, but also that the proper role of the state police power, which, at least from the classically liberal perspective, could accept legitimate regulations pertaining to public health, public safety and public welfare regulations so long as their application is equal in nature, has no room for any sort of law that would purport to favor one religion over another or religion over "non-religion" in general. To deviate from these principles would be completely anti-libertarian.

The analyses put forth by Kip, Tim and Shawn are far more indepth than mine so I would certainly check those posts out as well. The only complaint I have is that I think Shawn, perhaps a bit unfairly, mischaracterizes The Cato Institute's as, I suppose, isolationist by advancing the view that "if we only leave the Islamists alone, they would not attack us".

While The Cato Institute's position is generally one of non-intervention, as I review the Cato Handbook for the 108th Congress, I think the policy recommendations are nothing like the isolationist position some paleolibertarians have taken. In fairness, while the Handbook is four years old, it is my understanding that its position on this matter has not changed (I could be wrong on this). Granted, Cato's positions may not be as robust a policy as some may like it to be, but it does not logically follow that they advocate isolationism.

Aside from that, everything else I agree with.

Tim Sandefur on Clint Bolick's New Book

Tim Sandefur has a very interesting review of Clint Bolick's David's Hammer - The Case for an Activist Judiciary available - here. While I have not read the book, I am familiar with its contents, as I did make it a point to view the presentation Clint Bolick made to the Cato Institute last April.

A few comments:

It is worth noting that we should all pay very special attention to the striking similarities between judicial liberalism (circa the 1930s and even today) and judicial conservatism (i.e. Robert Bork). Both schools of thought believe that mere majorities, if a "rational" basis exists for a law, can determine the rights of individuals. Sandefur has, in the past, referred to this as the "liberty of the wolf", which he does in this review of Kermit Roosevelt's The Myth of Judicial Activism. Randy Barnett has also addressed this in the past both as a blogger and in his book Restoring the Lost Constitution.

To further reinforce Sandefur's point on this matter, please be sure to check Clint Bolick's presentation at the Cato Institute, if not for his comments, for the comments made by Jeff Rosen (from the liberal perspective) and Ed Whelan (from the conservative perspective). There are some notable similarities.

Also, I have always liked the way Sandefur presents his arguments because they are concise, readable and highly informative. He boils down Bolick's lessons to the fundamentals. Perhaps the only reason why I would comment on a book reviewer's review without actually having read the book first is because of the presentation of Bolick's key takeaway points. There are three and they not only clearly illustrate constitutional theory from a libertarian perspective, but also how greatly they differ from modern constitutional doctrine:

1. Legislative activism poses the greatest threat to liberty
2. A judiciary that upholds an unconstititonal law do far greater damage to the cause of liberty
3. Liberty comes before democracy

These are points worth remembering, even if I have yet to read the book, although at some point I will.

So easy to use that I'm an idiot for not doing so sooner...

I have been blogging, if one wishes to call it that, for about 18 months and I just started using a RSS Reader this morning. In less than 10 minutes, I was up and running using the Google Reader. It seems like a good one to use although I'm (obviously) no expert on this.

I think I prefer web-based readers because I tend to blog from at least two different computers.

I can see why people don't like blogs that don't have RSS feeds. It's so much easier to find updated posts that I wonder why I didn't do this sooner.

I would be thrilled if I wasn't a bit embarrassed, although certainly not embarrassed enough to tell the world about my idiocy. :)

Monday, November 5, 2007

On Utah's Citizen's State Referendum 1

Reasonable people can and do disagree about school voucher programs. Hell, my mother and I have gone back and forth on this with me being for them and her against them. We agree to disagree. Fair enough.

Via Cato-at-Liberty, I discovered that voters in Utah will be voting on a school choice program. I wish the advocates, referred to, in perjorative fashion, as "Radical Friedmanites" by a left-wing knee jerk reaction on the Salt Lake Tribune's editorial page that reads like an editorial but is short on substance and perhaps a bit long on rhetoric.

The editorial grossly mischaracterizes the school voucher plan as being offensive to the Constitution by routing taxpayer funds to private institutions through "the laundering medium" known as vouchers. Cute, but wrong. The Supreme Court upheld Ohio's Pilot Project Scholarship Program, a school choice program, in Zelman v Simmons-Harris on the basis that the program did not offend the Establishment Clause. I think the majority's opinion was correct and the reasoning sound, and most of it applies here:

1. The purpose of the program is to provide educational assistance to the poor - a very valid secular purpose.

2. The program itself is neutral to religion, as it focuses strictly on private choice. No one or group of religions are favored or disfavored.

3. In fact, it can be argued that religious institutions are disincentivized to take school vouchers, as the amounts that they receive from individuals receive a smaller amount of funds relative to the higher tuition rates they typically charge. With this disincentive in place, it almost makes it hard to argue with a straight face that an epidemic of taxpayer funds flowing from public coffers to private coffers would occur to the alarming degree school choice opponents make it seem.

I would also like to note that the Salt Lake Tribune's editorial laments the fact that under a system of school choice, private schools would be less accountable to taxpayers, and that their teachers would not have to be certified and the testing would be less rigorous. Call me a skeptic, but when I see teacher certification being used as an argument against school choice, I see this less for the benefit of the students receiving the education and more for the teachers unions who have used the power of the state to achieve its position as a protected cartel, one that would struggle to survive had it been left to the forces of free market competition.

As far as accountability is concerned, a system of choice makes everyone equally accountable, as now public and private schools alike will be incentivized to respond to the needs and demands of those they are trying to serve, or else they will take their vouchers and go elsewhere. Is there a better form of accountability?

As Andrew Coulson points out in the Cato piece, many critics of school choice view the problem in terms of social conflict. I also note that social conflict is the predominant emphasis in the dissent in Zelman that was authored by Justice Breyer. Although I may have some sympathy in wanting to alleviate social conflict, a recent Cato Institute policy paper on public education demonstrates that public schools are a breeding ground for social conflict (more research from Cato here)

Unfortuneately, the Salt Lake Tribune has no interest in rationally debating the issue. Rather, it has to rely on misinformation, distortions and smears (the whole Milton Friedman - radical nonsense) to attempt to maintain an institution that has not served the children well and will continue to fail in this respect. After all, should we not be looking out in their best interest? They are our future.

When Conservatives and Feminists Unite

As Stephen Chapman reminds us, in the 1980's, conservatives and feminists took up the common cause against the evils of pornography, not only on the basis of morality but on the basis of the supposed correlation between porn and sexual violence. As Chapman notes, pornography is more available than ever:

That's due in substantial part to the rise of the Internet, where the United States alone has a staggering 244 million Web pages featuring erotic fare. One Nielsen survey found that one out of every four users say they visited adult sites in the last month. So in the last two decades, we have conducted a vast experiment on the social consequences of such material. If the supporters of censorship were right, we should be seeing an unparalleled epidemic of sexual assault.

But all the evidence indicates they were wrong. As raunch has waxed, rape has waned. This is part of a broad decrease in criminal mayhem. Since 1993, violent crime in America has dropped by 58 percent. But the progress in this one realm has been especially dramatic. Rape is down 72 percent and other sexual assaults have fallen by 68 percent. Even in the last two years, when the FBI reported upticks in violent crime, the number of rapes continued to fall.

No one is going to suggest that correlation means causation, but this is worth looking at, if only for the intuitive result that the prognosticators were far off the mark (ok, so I like to stick it to nanny-state do gooders and moralists once and a while). Chapman also notes a paper presented at Stanford Law School that suggested that sexual urges do play a role in rape "and that pornographic Web sites provide a harmless way for potential predators to satisfy their desires". It is not conclusive theory, but from my own reasonableness standpoint, it does not sound out of the realm of reason.

Even with all this supposed moral evil, society seems to be doing quite fine, if the numbers are telling the right story.

Enough about me, what about me?

Welcome to my new digs.


While I still have an existing website, Con Law Geek (which at the time of this writing is still down), I will probably be using that domain for some other personal uses and not blogging. Therefore, I have decided to make a home for myself over here.

The change, in many ways, is a refreshing one of sorts. When I began blogging, I had the intention of some light legal blogging with respect to constitutional law, yet I found myself frustrated for two reasons. First, my limitations of knowledge on the subject I was writing about drastically slowed down my ability to write, although each time I did, I overcame those obstacles by learning more about the material. In this case, there was always a silver lining in the clouds. Even if I never completed a blog post involving a constitutional issue, which happened more times than not, I have increased my knowledge base substantially since April 2006. That said, as I want to actually write and produce posts of my own, the pace at which this was going was unsatisfyingly slow for me.

The more frustrating aspect was that, as perhaps an unintended consequence of my developing love for political theory and study of political philosophy, my disdain for modern constitutional doctrine, already somewhat developed as a result of reading several books on consitutional law and the events and cases leading up to the transformation of constitutional doctrine in the mid-to-late 1930's, multiplied exponentially. We have gone from, to paraphrase Samuel Chase in his opinion in the landmark Calder v Bull, protecting citizens from laws that take from A to give to B to what Randy Barnett has described as a "presumption of constitutionality, where those rights not specifically enumerated in the Constituiton can be wished away by a mere democratic majority, upheld by a court so long as an argument can be made that a "rational basis" exists for a law.

As principles became more important than existing legal doctrine, I find myself looking at doctrine against principles, rather than evaluating cases and controversies and decisions in light of those doctrines. After a while, I was simply analyzing current events, social issues and other things that attracted my attention against my own libertarian principles. At that point, I stopped worrying about legal blogging at all. If something comes up, I will be sure to comment on it.

Thus, the reality is that I have moved away (and did perhaps even a year ago) from being a "Con Law Geek" and viewing myself as blogging from a legal perspective and come around to a more well-rounded style of blogging where I hope to blog on a variety of subjects and hoping to provide colorful commentary and analysis whenever I can.

This is probably not news to people who have read my work for some time, but I think that it is worth saying nonetheless for anyone who looks here for the first time. For those who do not know me, I am a 34-year old male, married with one son and hopefully another on the way. I live in New Jersey, work in NYC and am reminded everyday of the horrors of September 11 as I take the PATH train in the World Trade Center station.

My political views revolve around the concepts of natural rights (as Jefferson and Madison understood them), individual liberty, personal responsibility, free markets, limited constitutional government, epistemological humility and a strong national defense that does just that. My influences are too numerous to mention, but to throw out a few - John Locke, Thomas Hobbes, Adam Smith, FA Hayek, Thomas Jefferson, Herbert Spencer, Milton Friedman, Ludwig von Mises, Randy Barnett and Richard Epstein.

The general areas of academic study I have found most interesting have traditionally been economics, finance and law. In the past twelve months or so, I have delved more into political theory, philosophy and, to a lesser extent, public policy. It has been in the last couple of months that I have, albeit slowly, began dabbling in serious foreign policy study. Given work, family, life and other writing committments, it is a slow go but one I hope to shed more perspective on as time passes.

If new readers have found me and read the title of my blog, they will know what my political persuasion is so there's little need to say more about it than I already have. My analysis and commentary will come from that perspective. Disagreements are expected if not encouraged as well as civil discourse.

Again, thanks for stopping by.

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More to come...