This was originally posted at my personal blog, JasonPye.com. Stephen Littau asked that I post it at The Liberty Papers. I currently work as Gov. Gary Johnson’s state director in Georgia and blog regularly at United Liberty.

Last weekend, I joined several hundred Libertarian Party members at Red Rock Casino and Resort in Las Vegas, Nevada for our national convention. It was a long one, probably a day or two too long, but still a lot of fun both politicking and hanging with friends.

The weekend opened without much fanfare. Candidates running for the party’s nomination were seeking “tokens” from delegates in order to appear in the debate and be considered on the floor to represent the LP.

Most of the first two days were consumed with the typical wrangling over the party by-laws and platform. There were some internal issues addressed, such as a dispute between two factions in Oregon where the body had to choose what delegation from the state to seat (some of those not seated in Oregon eventually made their way to Georgia, where we had spots open).

These first two days were particularly stressful for me since I had to work three delegations to ensure their support for Gov. Gary Johnson. The campaign gave me Idaho and Iowa as my ultimate responsibilities, but I also spent some time lobbying members from Georgia — after all, that’s my home state. When I wasn’t working on delegates, I was either sitting in the pressroom (where there was Internet access) or catching up with old friends.

On Friday evening, Gov. Johnson and R. Lee Wrights squared off in a debate before convention delegates (you can watch it here). The 2008 debate saw a number of candidates with varying viewpoints of libertarianism and the direction of the Libertarian Party. The debate between Johnson and Wrights showed the clear differences in approach to politics. While Wrights was lobbing one-liners and soundbites to delegates, Johnson was discussing a more political approach. Some friends were complaining that Wrights was only interested in appealing to Libertarians, others said that, since this was our party’s primary, a more “red meat” approach was necessary; no different from Democratic and Republican campaigns.

Most, if not all, of the folks that I talked afterward said that both sides did well articulating their message, and that they hadn’t changed their minds.

Saturday was when delegates selected the party’s nominee. Four candidates were able to get enough tokens to be nominated — Gov. Johnson, Wrights, Carl Person, and Jim Burns. Each candidates received some time to make their case for the nomination. We had heard going into the convention that some delegates were resigned to Gov. Johnson winning the nomination, but wanted to give a nod to Wrights on the first ballot. That was the case with a few folks from Georgia, despite my overtures that were would only be one ballot and that they should get, even what they admit, on the winning team. Thanks to a few of the delegates from Oregon and another couple from Nevada being sat with us, Georgia went for Wrights in a 10 to 9 vote. The other delegations that were assigned to me, Idaho and Iowa, broke for Gov. Johnson.

And while we may have lost Georgia, Gov. Johnson took the nomination on the first ballot with over 70% of the vote. Wrights received over 25%.

Now, one may think that the stress was off and that we were done with the real work, but that wasn’t the case. You see, in the Libertarian Party, we run candidates for vice president separately. Gov. Johnson let it be known before the convention that he wanted Judge Jim Gray as his running mate. However, Wrights saw the writing on the wall and was collecting “tokens” for vice president as well (he asked me when I saw him on Wednesday evening). Some of were actually nervous here. Wrights is a great guy, but those of us working on the campaign were tasked with rounding up votes for Judge Gray.

But despite a strong showing from Wrights, Judge Gray took the nomination for vice president with 59% of the vote.

That’s it, right? Work is done for the weekend. It time to go drink and gamble. Wrong. Chris Barron, Andrew Ian Dodge, Jenny Everett (a new member from Georgia), and I decided that it was time for a drink, so we headed down to Yard House, one of the fine establishments in the Red Rock casino. The body had moved on to officer elections, and after to speaking to my good friend, Brett Bittner, we had contended that Mark Rutherford would likely win the race for chair. We figured we all could just give him our proxies and have some fun. So, off we went.

Man, were we wrong. After our second round of drinks, we started hearing that there were some strange things going on. By our fourth round, friends were telling us to get back to the floor. By the time we got back, all hell had broken loose. Admittedly, I can’t give the play-by-play, but apparently, None of the Above (NOTA) was a strong candidate. All I can say is that I was incredibly frustrated, probably more than I have been when dealing with party politics or political campaigns. Because of time constraints, voting for chair was postponed until Sunday.

The reasoning for floor fight was because of shenanigans pulled before we even got to Vegas, such as charging a floor fee for delegates and having the convention roughly 15 miles away from the strip. Seriously, it cost around $50 to $60 for a cab ride from the airport or the strip. That was ridiculous.

Despite staying until the early hours of Sunday morning, I managed to pull myself out of bed for another day of voting. It got…crazy. During the midst of the voting, Chris was arbitrarily removed from the Missouri delegation along with a couple of other folks apparently for voting the “wrong way.” He’d been voting for Rutherford, but there had been some sort of behind the scenes wrangling going on — or at least, that’s the allegation — to ensure that the delegates seated in Missouri that didn’t actually live there (Chris is from DC, but their delegation was full) would no longer have their votes counted. Again, that’s the allegation, there is no way to prove it. But at the very least, it certainly doesn’t sound good.

In the end, Geoffrey Neale, a former LNC chair who hadn’t even put his hat in the ring until Sunday, defeated Rutherford and on the fifth round of voting that day, won the race for chair. Lee Wrights, who had lost bids for the presidential and vice presidential nomination the previous day, won the race for vice chair. Wrights is a good guy. I don’t know Neale, but everyone I know seems comfortable with him as chair. He certainly understands that he doesn’t have a mandate. Nevertheless, I have confidence that they will serve our party well.

Also, congrats to my good friends, Richard Schrade and Brett Bittner, who were elected to leadership posts. Schrade was elected as the Southeast regional alternate to the Libertarian National Committee. He’ll no doubt serve Georgia’s interests well. Bittner was elected to the Libertarian State Leadership Alliance (LSLA) at as At-Large Representative.

In case you can’t tell from the brief mentions above, the evening parties were pretty neat. I didn’t do much partying at the last two conventions. We did hang out with friends, but I can’t recall doing as much as we did last weekend. Good times where had (RIP #3102) and I got to meet some really cool people, including Rupert Boneham, who you may know from Survivor. He’s running for Governor of Indiana as a Libertarian. I also got to meet Roger Stone, a former GOP operative who recently joined the LP. Roger may never read this, but I learned a lot from him in limited interaction.

And let me just say that Chris Barron is a really cool guy. My liver blames him for the amount of adult beverages I consumed in Las Vegas. As an aside, I was happy to see so many younger Libertarians at the convention. That was really encouraging.

My body has finally recovered from the week of debauchery and stress. I managed to catch up on sleep by Wednesday, though I think it’ll be awhile before I drink again. You can see some pictures from the weekend at my Flickr page. Bruce Majors has also shared his photos from the convention.

Whatever your philosophy or wherever you find yourself in the political spectrum, one thing I think we can all agree on is that we are living in difficult economic times. Most of us, if we haven’t experienced it ourselves, know someone who has lost his or her job or is otherwise struggling to keep up with increases in the price of living. Times are tough for many if not most of us.

In these difficult times, I think it’s important to remember to persevere rather than throw up our hands and quit. One could understand a teenager giving up on her future if she was abandoned by her parents, bullied at school, and even homeless. Who could expect any other result?

Don’t tell that to 18 year-old Dawn Loggins. She experienced all this and more and has been accepted to…Harvard?

This is such an inspiring story that I don’t want to give much more of it away. Really, I hope that everyone who reads this post reads this four part series by Alicia Banks for The Shelby Star. This story is nothing short of amazing.

There were three main takeaways I got from reading this series:

1. Dawn’s Personal choices made all the difference. Every cliché you have ever heard about becoming a successful person applies to Dawn Loggins (ex: “Luck is when preparation meets opportunity,” “when the going gets tough…” etc.). Rather than complaining about how unfair life is or blaming all her woes on the 1%,* or even her parents who abandoned her, she took it upon herself to improve her situation.

2. Sometimes one has to break the rules or violate the law to do the “right” thing. Dawn may not have been successful if the law was followed to the letter**. What if the principal or the school’s guidance counselor would have called DSS? Here’s an excerpt from part 2:

No one risked calling the Department of Social Services about Dawn, who was 17 at the time and had been homeless.

Those who cared about Dawn could have lost her to foster care if they alerted the authorities to her situation. Putnam was afraid Dawn wouldn’t be able to take classes she had lined up for her senior year at a different school.

Putnam and Kolton made sure Dawn had everything she needed: Clothes, food, shelter and Burns.

In situations like Dawn’s, Jane Shooter, assistant director for the county DSS, said social workers would have attempted to locate her parents and understand the situation. If they determined a child needed to be placed in foster care, their first attempts would be to find a safe guardian or foster family in the area. But that’s not always possible.

Members of the Burns community took care of one of their own on their own.

But was this the right thing to do?

“I can only say if you suspect a child is neglected or abused, by North Carolina law, you’re mandated to report it,” Shooter said.
Children in foster care age out of DSS’s protection when they turn 18 years old. Dawn turned 18 on Feb. 9.

“There’s nothing we can do now that she turned 18,” Shooter said.

3. Despite what some on the Left believe, regular people are more than willing to help others who are struggling without the government forcing them to do so via wealth redistribution (especially those who are doing all they can to help themselves). In addition to a few very key people who helped Dawn through high school, since this story was published, there has been an outpouring of support from regular people who want to help Dawn pay for her Harvard education.

Of course, Dawn’s story isn’t typical but neither is her work ethic. Was she successful despite her hardships or because of them? Was she smart because she studied hard or did she study hard because she was smart enough to realize doing so would be her most likely ticket out of poverty?

These chicken/egg questions aside, one thing is clear: we could all learn a thing or two about pursuing the American dream from a teenager by the name of Dawn Loggins.

Hat Tip: Neal Boortz
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Last Friday, the Cato Institute honored dissident Chinese economist Mao Yushi with the Milton Friedman Prize for Advancing Liberty. Just a week prior, Mao, a consistent critic of Chinese government policies and advocate of both individual and economic liberty faced the possibility of being detained rather than being permitted to fly to Washington D.C. to receive the award in person and deliver his acceptance speech. By Tuesday, Cato confirmed in a press release that the Chinese government kept its word and allowed Mao to leave the country.

The first video tells Mao’s inspiring story:

The second video, the 2012 Milton Friedman Prize winner himself Mao Yushi delivers his acceptance speech.

Congratulations to Mao Yushi for earning this most prestigious prize for your life’s work in the advancement of human freedom. You sir, are an inspiration to us all.

The Libertarian Party held its convention over the weekend in Las Vegas and, as many had been expecting, overwhelmingly nominated former New Mexico Governor Gary Johnson as their Presidential nominee:

Aside from the muscular gentleman in the slinky party skirt and halter top, a delegate wearing a Guy Fawkes mask and a prominent speaker sporting a powdered wig, it was a typical political convention.

And by the time the Libertarian National Convention concluded in Las Vegas on Saturday, party members had the man they hope can propel them to relevance in presidential politics.

Former New Mexico Gov. Gary Johnson won about 70 percent of the vote on more than 600 ballots, finishing well ahead of Libertarian newsletter founder Lee Wrights.

What it means is Johnson, a former Republican who served two terms as governor from 1995 to 2003, will carry the party’s torch in a campaign against Democratic incumbent President Barack Obama and presumptive Republican nominee Mitt Romney.

Johnson says a “pie-in-the-sky” goal for himself and vice presidential candidate Jim Gray, an Orange County, Calif., Superior Court judge and outspoken critic of the war on drugs, is to generate enough support to qualify for debates on the same stage as Obama and Romney.

“If that happens, anything is possible,” Johnson said. “I don’t think either Obama or Romney are talking about solutions to the problems.”

He’s betting a swell of supporters for Republican presidential candidate Ron Paul will shift to the Libertarian candidates once Romney becomes the nominee.

“As much as I would like (Paul) to be the nominee, I don’t think that is going to happen,” Johnson said.

Johnson is right about that point, of course. Ron Paul is not going to be the Republican nominee, and even the apparent delegate wins his supporters are racking up at state party conventions in caucus states aren’t going to amount to much of anything in the end. So Paul’s supporters will have a choice, either they support Johnson, they become loyal Republicans and back Romney, or they stay home on Election Day. Johnson is obviously hoping they they choose the first option.

This is the second time in two election cycles that the Libertarian Party has nominated a former Republican elected official as their nominee. Last time, of course, it was former Georgia Congressman Bob Barr and while the results of his campaign were disappointing, Barr did end up getting more votes than any Libertarian Party Presidential nominee since Ed Clark got close to a million votes in 1980. Can Johnson get close to that? Conor Friedersdorf makes a good point in that regard:

A former governor of New Mexico, he was re-elected by that state’s voters, left office popular after two terms, and therefore has the most executive experience of any Libertarian Party presidential nominee. He can also cite the state he ran as evidence that nothing radical happens when he’s put in charge. An economic conservative and social liberal, he represents a new direction for a party that has long wrestled with its paleo-libertarian wing. And yet he too is certain to lose on Election Day, as third-party candidates in American presidential elections do. The question is whether he can match his party’s 1980 high-water mark and win 1 percent or more of the vote, and whether he might win even more in the key swing state of New Mexico, where voters already know and have cast ballots for him.

That would certainly make things interesting wouldn’t it? If Johnson ended up costing the GOP a pick-up in New Mexico, then maybe they’ll stop ignoring the libertarian vote for once.

To be realistic, though, the prospects for third-party candidates are never good and they’re unlikely to be much better. Perhaps the greatest role that Johnson can fulfill with this campaign is to become a strong and effective spokesperson for libertarian ideas around the nation, and to stand as proof that you can indeed by an ideological libertarian and govern effectively. That would be no small accomplishment.

President Obama’s campaign has put together “The Life of Julia“, following a woman from cradle to grave to show how she benefits from the enlightened benificence of President Barack Obama.

The reality, though, is rather different. Let’s look now at “The Life of Julia”:

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How much can we or should we rely on Wikipedia, particularly concerning controversial issues? I have linked the site in the past from Liberty Papers’ posts and probably will in the future but I do think anything you or I find at Wikipedia should be verified by at least one other source before assuming it true. It was almost a year ago that Sarah Palin supporters tried to scrub the page concerning Paul Revere and his ride to cover up and support her mistaken history of the event.

Now it seems that Obama supporters are doing something similar as it relates to his one word 2012 campaign slogan: Forward.

Just yesterday, Neal Boortz referenced the Wikipedia article for the word “forward” as it related to politics but by the time he was off the air, the page had been significantly altered. Boortz explains:

So yesterday I gave you a laundry list of different political philosophers, publications and propaganda that all used the phrase “forward” to embody and promote their socialist or communist causes. Considering the historical use of the word “forward,” it is no surprise that our Marxist in Chief would select this phrase as his new campaign slogan. But one of the many examples I referenced was a Wikipedia entry under “Forward” that Cristina found entitled “Forward (generic name of socialist publications).” Yesterday morning if you went to this link you found a long history of socialist and communist publications published in many languages, principally German, Russian and French, using that name as their title.

[…]

By yesterday afternoon Obama sycophants and myrmidons were busy. They were demanding that Wikipedia remove that reference to the word “forward” being a generic name of socialist publications. Toward the middle of the afternoon if you clicked on that link it would say “This article is being considered for deletion in accordance with Wikipedia’s deletion policy.” By the end of the day, if you searched the word “Forward” in Wikipedia, the link to that entry had been removed from the website.

Boortz’s blog Nealz Nuze cached the original Wikipedia search and is included in his post.

The as of the publication of this post, the Wikipedia page Forward (Obama-Biden campaign slogan) says: “On April 30th, 2012 the Obama–Biden campaign announced the slogan “Forward”.” If you go back to the main page and look under “Politics,” there are 4 links in addition to the Obama campaign link of political groups, all Marxist in nature, all of which use “forward” as a slogan.

This could be a coincidence, but that is beside the point. My question is what is it about this page that certain Wiki editors who want to delete the page find objectionable? Was the original article not factual or do they not like that other Wiki editors pointed this out?*
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This week, the State of Connecticut made progress in the right direction on the criminal justice front on two issues I care deeply about: the right of individuals to record the police in public and abolishing the death penalty.

Earlier today, the Connecticut Senate passed a bill 42-11 that would hold the police liable for arresting individuals who record their activities in public. Carlos Miller writing for Pixiq writes:

The Connecticut state senate approved a bill Thursday that would allow citizens to sue police officers who arrest them for recording in public, apparently the first of its kind in the nation.

As it is now, cops act with reckless immunity knowing the worst that can happen is their municipalties [sic] (read: taxpayers) would be responsible for shelling out lawsuits.

Senate Bill 245, which was introduced by Democratic Senator Eric Coleman and approved by a co-partisan margin of 42-11, must now go before the House.
The bill, which would go into effect on October 1, 2012, states the following:

This bill makes peace officers potentially liable for damages for interfering with a person taking a photograph, digital still, or video image of either the officer or a colleague performing his or her job duties. Under the bill, officers cannot be found liable if they reasonably believed that the interference was necessary to (1) lawfully enforce a criminal law or municipal ordinance; (2) protect public safety; (3) preserve the integrity of a crime scene or criminal investigation; (4) safeguard the privacy of a crime victim or other person; or (5) enforce Judicial Branch rules and policies that limit taking photographs, videotaping, or otherwise recording images in branch facilities.

Officers found liable of this offense are entitled, under existing law, to indemnification (repayment) from their state or municipal employer if they were acting within their scope of authority and the conduct was not willful, wanton, or reckless.

While I think the fourth and fifth exceptions to the law could be problematic, this should go a long way toward holding the police accountable.

As if this wasn’t enough good news, just yesterday Gov. Dannel Malloy signed a bill to abolish the death penalty in the Nutmeg state. CNN reports:

(CNN) — Connecticut Gov. Dannel Malloy signed a bill into law Wednesday that abolishes the death penalty, making his state the 17th in the nation to abandon capital punishment and the fifth in five years to usher in a repeal.

The law is effective immediately, though prospective in nature, meaning that it would not apply to those already sentenced to death. It replaces the death penalty with life in prison without the possibility of release as the state’s highest form of punishment.

“Although it is an historic moment — Connecticut joins 16 other states and the rest of the industrialized world by taking this action — it is a moment for sober reflection, not celebration,” Malloy said in a statement.

Connecticut isn’t a state that comes to my mind when I think of a death penalty state and for a good reason: only 2 people have been executed in that state in the last 52 years (both of which wanted to be executed), according to the governor. So, if the administration of the death penalty is so infrequent, why does this abolishing of the death penalty even matter? I think Gov. Malloy said it quite well in his signing statement: “Instead, the people of this state pay for appeal after appeal, and then watch time and again as defendants are marched in front of the cameras, giving them a platform of public attention they don’t deserve.”

Keep up the good work Connecticut!

Hat Tip: The Agitator

FreeMarketAmerica.org has released a great video (above) called “If I Wanted America to Fail.” It’s a pretty decent list of policies one would want to implement to cause America to fail but it’s far from complete.

Here are a few suggestions of my own:

If I wanted America to fail, I would want congress to abdicate its war powers and give those powers to the president so he could commit acts of war against any country he desires for any or no reason at all.

If I wanted America to fail, I would want these undeclared wars to be open-ended with no discernable war aim. This would lead to blowback and create more enemies for America.

If I wanted America to fail, I would have troops deployed around the world to make sure the world is “safe for democracy” but would topple regimes, even those elected by the people of these countries, if the president found the new leaders not to his liking. This would create even more enemies who would try to cause America to fail.

If I wanted America to fail, I would do away with due process – even for American citizens who the president considers “enemy combatants.” I would want the president to have the ability to detain these people indefinitely, ship them to a foreign country, and even give the president the authority to kill these people anywhere in the world they are found.

If I wanted America to fail, I would have the ATF sell arms to Mexican drug cartels so they could kill innocent people on both sides of the border. I would name this operation after a lame action movie franchise and pretend to know nothing about it when details were made public (It’s not like the media would have any interest in investigating this deadly policy because this is a Democrat administration).

Now it’s your turn. What are the policies being implemented now that you would want implemented if your goal was to make America fail?

The AP, lamenting the fact that so many new college grads are having trouble finding work:

College graduates who majored in zoology, anthropology, philosophy, art history and humanities were among the least likely to find jobs appropriate to their education level

Actually, like the guy interviewed with a “creative writing” degree who now works as a barista, I think these folks are finding exactly the sort of jobs appropriate to their education level.

Is the forensic science used in the courtroom reliable? The PBS documentary series Frontline makes an attempt at answering this question in an episode entitled: “The Real CSI.”

I cannot recommend this episode enough.

Watch The Real CSI on PBS. See more from FRONTLINE.

Also, the producers of this episode hosted a live chat for viewers to ask some follow-up questions (I’m sorry I missed it). Here is the archive from the chat.

Related Posts
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Dr Michael West Filmed Committing Attempted Murder
An Innocent Man Was Probably Executed on Gov. Rick Perry’s Watch…Not That Anyone Cares
200 Innocent and Counting
25 More Reasons for Criminal Justice Reform

From M.S. @ The Economist’s Democracy In America blog:

To say that most American political discourse takes place at the intellectual level of baboons would be an insult to baboons. Baboons are capable of handling two-factor reasoning problems: if I eat all the bananas now, I’ll have none left for later; better eat enough to quell my hunger now, but leave some for later. In contrast, political discourse generally takes place at the one-factor level that could be handled by, say, flatworms: Banana yummy! Hunger bad!

And politics takes place at the same level: Spend now! What consequences?!

On August 14, 1990, Milton Friedman gave a speech at the International Society for Individual Liberty’s 5th World Libertarian Conference on the subject of libertarianism and humility. There are many adjectives which can be ascribed to libertarians but “humble” usually isn’t one of them. Among the quotable parts of the speech, Friedman said the following:

On the one hand, I regard the basic human value that underlies my own beliefs as tolerance based on humility. I have no right to coerce someone else because I cannot be sure that I am right and he is wrong. On the other hand, some of our heros…people who have, in fact, done the most to promote libertarian ideas, who have been enormously influential, have been highly intolerant as human beings and have justified their views, with which I largely agree, in ways that I regard as promoting intolerance.

In searching for the above transcription of what I thought was very profound and wise, I found a couple of bloggers who thought this particular quotation as “an inadequate defense of liberty” or one of the “failures” of Milton Friedman.

I happen to disagree with these notions.

Maybe because I have been humbled in realizing that I had been wrong on some issues of great importance. By far the most difficult (yet ultimately liberating) post I have ever written was the post in which I declared that I was wrong about my support for the war in Iraq. I was so certain that regime change in Iraq would bring about peace in the Middle East and freedom would take hold. I thought the Ron Paul and big “L” Libertarian position on preemptive war was naïve and dangerous but now I believe the opposite to be true (for reasons I stated in the aforementioned post).

Having experiencing this, I can’t help but think that Friedman was right to say that each of us should be open to the possibility we may be wrong. If we aren’t open to this possibility, what is the point of debating an issue? Obviously, if I argue that X is correct and my opponent says Y is correct, I’m going to do my best to convince my opponent that I am right and s/he is wrong (meanwhile, my opponent is doing the same).

But what if I realize in the course of the debate that my opponent is at least partially right about Y being correct and/or that my reasoning is flawed or the facts do not support X? As a normal human being, I might not concede right away but if I am being intellectually honest, I’ll revise my thinking based on new information or new reasoning I hadn’t considered.

If Milton Friedman was willing to be open to the possibility of being wrong, how could I, someone whose mind will never in the same league as his, be so stubborn?

One thing I notice in watching Friedman debate people who are diametrically opposed to his positions was how patient he was with them. Something that many of us libertarians seem to forget is that much of what we believe to be true is counterintuitive to at least half of the people we encounter on a daily basis because many of these people have not been exposed to our philosophy. Friedman understood this. He knew that much of what he was saying was new territory for many who would hear his lectures or read his books.

Before he could make the case about any of his ideas to others, he had to be satisfied that the facts backed up his theory. These two sentences from the NPR obituary for Friedman summed up his approach beautifully:

Friedman was an empiricist, whose theories emerged from his study of the evidence, not the other way around. He also was a champion of the free market and small government.

We are supposed to believe this to be a weakness? I find this to be so refreshing!

From Steven Greenhut, writing at Reason:

Americans suffer under the delusion that transportation systems are just that—systems for transporting people from one destination to another. What most of us fail to recognize is that the politicians, activists and planners who play the greatest role in creating those systems have far different goals than improving the way we move from Point A to Point B.

To today’s transportation movers and shakers, such systems are giant jobs-creation programs designed to boost the economy and provide high wages to members of influential unions; and the key means by which to remake society in a way that is nicer to the environment and leads to a changed citizenry that is less likely to use automobiles to get around. Think of transportation these days less as civil engineering and more as social engineering.

It sounds like a grand thesis statement, because it is. He goes on in the rest of his article to expand and justify it. But these two paragraphs crystallize why the supporters and opponents of HSR are so exasperatingly talking right past each other.

Last Tuesday, a federal judge in the 5th Circuit, Jerry Smith, blasted a DOJ lawyer on an ObamaCare case in the wake of Obama’s comments on judicial activism. The Judge assigned the lawyer a three-page, single spaced homework assignment to draft a position on whether the judiciary has the legitimate right to overturn Unconstitutional legislation.

Everyone was up in arms over this, and to be honest, I frankly think it was pointless, in bad taste, and didn’t do anything but spin up a news cycle for about 24 hours. After reading a particular Popehat piece, I’m not all that surprised, but I’m certainly a bit dismayed that Jerry Smith decided that this was a necessary act.

Well, the homework assignment is here for all to see:

DOJ Letter to 5th Circuit re Judicial Authority

There’s a section in here that is particularly interesting. One aspect of this is an “F-U” to the judge, but points to something that I think is a bit unnecessary in Constitutional jurisprudence:

While duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress. See, e.g. , Nature’s Daily. v. Glickman, 1999 WL 158 1396, at *6; State University of New York v. Anderson, 1999 WL 680463, at *6; Rojas v. Fitch, 1998 WL 457203, at *7; United Food and Commercial Workers Union Local 75i v. Brown Group, 1995 WL 938594, at *6.

The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 329 (2006) (explaining that, in granting relief, the courts ‘·try not to nullify more of a legislature’s work than is necessary” because they recognize that’” [a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people’”(alteration in the original) (quoting Regan v. Time, inc. , 468 U.S. 641, 652 (1984) (plurality opinion))); Turner Broadcasting System, inc., 512 U.S. at 665-66. The “Court accords ‘ great The “Court accords ‘ great weight to the decisions of Congress”‘ in part because “[t]he Congress is a coequal branch of government whose Members take the same oath [judges] do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973)). These principles of deference are fully applicable when Congress legislates in the commercial sphere. The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends. See, e.g. , NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 32 (1937); McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 408 (1819). See also Thomas More Law Center v. Obama, 651 F.3d 529, 566 (6th Cir. 20 11) (Opinion of Sutton, J.); Seven Sky v. Holder, 661 F.3d 1, 18-19 (D.C. Cir. 201 1) (Opinion of Silberman, J.)

So the Supreme Court should grant a great deal of deference to Congress, because Congress cares deeply about their Constitutional obligation!

Paging the folks over at Volokh:

Most of us know that when then-Speaker Pelosi was asked where the Constitution gives Congress the power to enact an “individual mandate,” she replied with a mocking “are you serious? Are you serious?”

Here are a few more pearls of constitutional wisdom from our elected representatives.
Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.”
Rep. Clyburn replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest [...] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

So some don’t care, and some just assume the authority exists but can’t cite it, and some make up new sections of text in the Constitution that don’t even exist. Deferring to Congress on whether or not legislation is Constitutional is like deferring to Philip Morris on whether cigarettes are good for your health.

Arnold Kling, on the “gotcha” mentality of partisanism:

If your goal is to accumulate a fan base and fire them up, then of course calling intellectual fouls on the other side is the way to go. However, I claim that if your goal is to contribute to a discussion in which fair-minded people will consider changing their minds, then calling the other side’s intellectual fouls does not get you very far.

It’s easy, and sometimes feels good too, to blast your opponents when they do something particularly egregious. But it doesn’t accomplish much.

You may remember Wayne Allyn Root as the sports betting “expert” cum political commentator who ended up being Bob Barr’s running mate on the 2008 Libertarian Party Presidential ticket. In 2010 he was elected to a position on the Libertarian National Committee and, while many had figured he’d be running for the Presidential nomination this year, he doesn’t appear to be doing so.

Perhaps that’s because he’s decided that Libertarians need to vote for Mitt Romney.

Yes, you heard that right, a member of the Libertarian Party’s governing body said on the Cinncinnati-based Bill Cunningham show [Podcast here] that he’s supporting Mitt Romney and so should other libertarians:

I think the important thing now is to make sure Obama is not elected,and that means in my mind, I would love for a libertarian like Gary Johnson the two term governor of New Mexico would actually get elected President, but I think we all know that’s not going to happen so therefore it’s got to be Romney there is no choice.

Root purported to defend himself in a comment thread at the Independent Political Report:

I said in a perfect world I’d like to see Gary Johnson elected President, he’d be the best choice out there…I also said several times on the call that Mitt Romney is a big spending, big government Northeast liberal…that he will make very little difference because of this…

And that the difference between Obama and Romney…

Is that Romney will slow down our path off a cliff just a bit…and Obama will take us off the cliff in a matter of minutes.

But neither is good enough to save USA from long decline towards mediocrity.

And that Romney’s victory will most probably prove that neither party can change our problems enough to save the economy…so hopefully it will lead to a serious Libertarian third party threat in 2016…of which I plan to be the Presidential candidate.

That’s what I said. It’s on tape. Sorry folks but you can’t take things out of context.

Nobody’s taking anything out of context Wayne. In fact, I think your comment at IPR makes it fully clear what this is really all about. Since you can’t be the LP nominee  in 2012 you apparently have no problem with throwing the guy who most likely will be the nominee under the bus, clinging on to the theory that you’re going to somehow be the nominee in 2016. What happened to that promise in your book that you were going to be the LP nominee in 2012, 2016, and then win the White House in 2020?

Root has every right to his opinion, of course, what he doesn’t have the right to do is trash the party he’s purporting to represent for his own personal interests. If he wants to endorse and vote for Mitt Romney in 2012, that’s his choice. I think it’s a stupid one, but people have the right to make stupid choices. What I don’t understand is how he can continue holding a position of supposed responsibility in the Libertarian Party while endorsing a Republican instead of his own party’s nominee, and I’m not even a member of the LP. The point isn’t that Root doesn’t have a right to endorse Romney, but that it’s an insult to the party he claims to represent that he does so while sitting on the party’s National Committee.

Of course, I was telling people Root was a phony two years ago, and when he almost participated in a birther “trial” of Barack Obama, and then again when he took the side of religious bigots in the controversy over the so-called Ground Zero Mosque.

Nobody should be surprised his latest antics, really.

Over at Reason, Mike Riggs responded to President Obama’s former Green Jobs czar Van Jones’ tirade about “so-called libertarians” at an Occupy rally in L.A. In case you missed it, Van Jones said that libertarians “say they love America but they hate the people, the brown folk, the gays, the lesbians, the people with piercings.” Clearly, he has never been to a Libertarian Party convention; I have. These people are more welcome in the LP than either of the big two political parties, I assure you.

Riggs responds:

I’m going to have to mic check you there, Mr. Jones. You’re not talking about so-called libertarians, but your former boss and current president. See, it’s Barack Obama who supports “traditional marriage”; Barack Obama who supports a drug war that sends an alarming number of black men to prison and destroys their employment prospects; Barack Obama who supports a foreign policy that kills children; Barack Obama who supports regulatory barriers that require the poorest of the poor to borrow their way into the workforce; Barack Obama who supports an immigration strategy that rips apart families and sees the children of undocumented workers put up for adoption.

Whether Obama’s support for those policies means he hates gays or brown folk is not for me to say. As the scriptures tell us, “For who has known the mind of the Lord that he may instruct him?”

Libertarians, on the other hand, love brown folk, the gays, the lesbians, the people with piercings, and immigrants. Many of us, after all, fit rather neatly into those categories, and we show our affection for ourselves and our neighbors by supporting the right of all peoples to live free of state-sponsored violence, discrimination, undue imprisonment, and theft; as well as the entirely predictable consequences of both left-wing and right-wing social engineering.

In fairness to Van Jones, there are a fair number of social conservatives,* NeoCons, and yes, certain unwelcome elements who do advocate these things who try to call themselves libertarians, but damn man. Would it be too much trouble for Jones to go on the series of tubes that is the interweb and do a search on the Libertarian Party Platform before shooting off his mouth about “so-called libertarians”? If so, he would find that true libertarians are the polar opposite of what he described.

(more…)

Reading the point/counterpoint posts on the question of how the supreme court would decide on Obamacares constitutionality, was quite disturbing to me in several ways.

On the one hand I was heartened, because clearly both Brad and Doug are sane and rational folks with a reasonably solid background in both law and politics, and a foundational understanding of the constitution…

Of course, that only highlights how many people in this country are not.

Any reading of the constitution… of the very intent of the founding of this nation… makes it clear that our federal government is meant to be one of of limited and enumerated powers. If the government can mandate this, they can mandate anything. This is the fundamental argument about the necessity for a limiting principle to any government act.

And anyone who doesn’t want unlimited, unconstrained government can see that. Sadly, it seems that the idea of unlimited, unconstrained government is quite popular in some quarters… even with some supreme court justices.

The basic liberal/progressive/leftist argument for socialized medicine is “we should do this even if it IS illegal and unconstitutional, because it’s the right thing to do so the supreme court should uphold it”.

I.E. “It’s good because we want it, and therefore it should be legal because it is good; and we need to get rid of this whole “limited government” thing, because it gets in the way of us doing what is right and good.”

What I also find heartening is that both Brad and Doug both seem to have a good sense of all of this…

But that is also disturbing…

Because both of them seem to share the same actual opinion:

Both believe that Obamacare is ACTUALLY unconstitutional, and should be struck down…

…It’s just that Brad is cynical enough about the supreme court and the political aspects of the decision that he thinks enough justices will be able to argue themselves into ignoring the constitution and doing what they want to do, rather than what is right.

… and Doug believes that there’s a good possibility of that as well; he just has a bit more hope that they won’t.

… and if you look around the commentariat, that’s pretty much the split of positions that every other knowledgable observer has as well.

And if that isn’t disturbing to you, then you really have no idea what is going on, do you?

Earlier this week, Brad Warbiany started out the latest in our occasional series of Point-Counterpoint exchanges by arguing that the Supreme Court will ultimately uphold the Constitutionality of the Patient Protection And Affordable Care Act’s individual mandate. I’ll start off by saying that this is not an all implausible. Indeed, I’ve argued myself in the past that the odds were quite good that the Supreme Court would uphold the constitutionality of the mandate. Moreover, as Brad notes, the history of the Supreme Court’s Commerce Clause jurisprudence has been one where the Court has essentially been nearly completely deferential to Congressional exercises of authority in this area. If one were making a bet, the safe bet would be the one that says the mandate would be upheld. Nonetheless, as I argue below I believe that the Supreme Court will in the end strike down the mandate, although the fate of the rest of the PPACA remains far from certain.

The Mandate Forces Citizens To Act In A Manner Never Before Seen In American History

Brad argues against the assertion that the mandate is unique in American history because it forces citizens to purchase a product from a private seller by pointing to examples of other things that the government forces people to do, such as the military draft and jury service. It’s correct that these programs are, at least theoretically, authorized by various provisions of Article I, Section 8. However, that’s very different from what the mandate purports to set in place, which is a requirement that every person in the United States engage in a specific commercial transaction whether they choose to or not. As more than one legal commentator has noted, this is unprecedented in American history and likely one of the main reasons that the PPACA itself has aroused the ire of such a large segment of the American public. As a general rule, Americans don’t like being told what to do by the government and, for many people, this was a bridge too far.

The question is whether it is authorized under the Constitution, and I think the case in favor of it is far stronger than the supporters of the law have been willing to admit up until last week’s hearings.

The Commerce Clause

As I noted above, the Supreme Court has, at least since the New Deal Era, been very deferential to Congressional assertions of authority under the Commerce Clause. This started, as Brad notes, with the case of Wickard v. Filburn in which the Court upheld a provision of the Agricultural Adjustment Act that allowed Federal authorities to bar a farmer from growing “excess” wheat even though he would not be selling it and would solely be using it for personal use on his farm. The Court reasoned that this was acceptable because the farmer’s actions had an impact on Interstate Commerce, even though it might only be a small one. It’s a decision that has always aroused the ire of advocates of limited government and it’s implications are wide ranging. Thanks to Wickard, the Court spent some 50 years rubber stamping Federal assertions of authority under the Commerce Clause. Indeed, after the New Deal Era there were very few challenges to such laws that even made it to the Supreme Court.

Then, in the late 90s things took a surprising change. In Morrison v. United States, the Court struck down several provisions of the Violence Against Women Act which purported to make domestic violence a matter for federal law enforcement under certain circumstances. The Court held that there was no evidence that domestic violence had any connection at all to interstate commerce that would justify giving the Feds police authority that is properly the authority of state governments. Several years later, in Lopez v. United States, the Court struck down the Gun Free School Zones Act on the ground that there was not a sufficient nexus with interstate commerce. Suddenly, it seemed, the Court was finding limits to the Commerce power. There seemed to be a setback when the Court upheld Federal drug charges against a California medical marijuana dealer in Gonalez v. Raich, but there’s a good argument to be made that this case is distinguishable based on the fact that it dealt with illegal drugs and that the Court was unwilling to issue a ruling that would have thrown every single Federal drug law into Constitutional doubt. Had Gonzalez dealt with any other commodity, it’s quite conceivable that it would have gone the other way.

It’s been said by PPACA advocates that striking down the mandate would require the Court to overrule 70 years of Commerce Clause precedent, but Morrison, Lopez and even Raich, show that this isn’t necessarily true. Each of the courts that have struck down the mandate have held that the problem with the mandate isn’t that the Courts have been wrong for the past three-quarters of a century about the Commerce Clause, but that even those precedents do not authorize what Congress wishes to do in this particular case. Indeed, it is perfectly easy to distinguish Wickard and its progeny from the PPACA mandate in a way that preserves precedent and yet compels the conclusion that the mandate is a Constitutional bridge too far.

This is what I expect the Supreme Court to do when it issues its opinion in June. Much to the relief of liberals and the chagrin of conservatives, striking down the individual mandate will not mean that the New Deal will be rolled back. What it will mean, though, is that, as in Lopez and Morrison, the Court will be drawing a line and saying that Congress cannot cross it because it does not have the Constitutional authority to do so. It will, in other words, further articulate a limiting principle for the Commerce Clause.

Which brings me to the next part of Brad’s argument I need to address.

Limiting Principles

Brad is correct that the Court could construct a limiting principle if it ends up saying that the mandate is Constitutional. Perhaps this is what it will end up doing. However, it is worth understanding the importance of the failure of the Government to articulate a limiting principle when asked for one by the Court. For one thing, this isn’t the first time that the Court has failed to do so. Reviewing the transcripts of oral argument in many of the lower court proceedings, one runs into other occasions when Judges inquired of the attorneys for the Government whether they believed that there was any limit on the Commerce Power given their arguments in favor of the mandate. In no case were the attorneys willing or able to do so. In some cases, this was cited by Judges as a reason that the mandate cannot be upheld, in others it wasn’t (athough it is worth noting that lower Court judges are bound by precedent from the Supreme Court in a manner that Supreme Court Justices are not).

As a purely tactical matter, it strikes me that an attorney who is unable to provide an answer when a Judge asks “If I rule in your favor, what guarantee is there that I won’t be establishing a precedent to do X” is potentially damaging their case. Most judges are not, by their nature, radicals.Meaning that if they can avoid issuing an opinion that could have far reaching consequences they are likely to do so. It was quite evident from the questioning during last week’s oral argument over the individual mandate that the Court, and specifically Justice Kennedy, has some concerns about the future implications of issuing an opinion upholding the mandate. The Solicitor General’s failure to provide an answer may end up being fatal to the Government’s case.

The Necessary And Proper Clause

This is perhaps the strongest argument that Brad raises. Under the broadest interpretation of the Supreme Court precedents on this case, anything that is necessary for Congress to carry out one of it’s authorized powers is Constitutional. Indeed, this is pretty much what the Supreme Court said when it authorized the creation of the First Bank Of  The United States in McCullough v. Maryland. For that reason alone, it’s interesting that there was so little discussion of the necessary and proper clause during the oral argument last week. Partly, this may be because the law here is pretty much settled and has been for nearly two centuries but one would have thought that Paul Clement, the attorney for the states would have been subjected to some strong questioning on this topic by the Justices on this issue. He really wasn’t, although there was some discussion about whether the health care market was “unique” in some way that made this mandate permissible.

The problem with this argument that it still leaves the Court searching for a limiting principle. If Congressional power under the Commerce Clause to regulate the interstate health care/health insurance market is so broad that it can enact a law that includes a requirement that all Americans purchase insurance, then does that mean that its power to regulate the interstate automobile market is so broad that it can enact a law requiring Americans to buy only American made cars? Even if the Court were to decide that the Necessary and Proper Clause was sufficient authorization for the mandate, it would still be left with the limiting principle question. And my reading of the Court at this time is that there is a majority right now that is unwilling to issue an opinion that would essentially be an open door to Congressional intrusion in even more aspects of the economy, and an end to any hope that there could be limits imposed on Washington, D.C.

Conclusion

I could end up being totally wrong about this, of course. This case is so closely dividing the Court that it’s impossible to guess how it will turn out. I will say that I think that if the mandate is struck down we are looking at a 5-4 decision because there is just no way that I can see Breyer, Ginsburg, Sotomayor, or Kagan going over to the side of the conservatives on this issue. However, if the mandate is upheld I would not be surprised to see it be a 6-3 decision for a very specific reason. Ordinarily, the most senior Justice in the majority gets to decide who writes the majority opinion. However, if the Chief Justice is in the majority he gets to make that decision. If Kennedy ends up voting to uphold the mandate then I could see Chief Justice Roberts joining him so that he can write the opinion himself and make the precedential value of the decision as limited as possible.

However, if the Court were to strike down the mandate, I believe I’ve laid out a perfectly rational, Constitutional basis on which they would do so. That doesn’t mean there won’t be a political firestorm, of course, but there is going to be a political firestorm no matter how the Court rules. I don’t think there’s ever been a time in American history when such an important case was in the hands of the Court in the same year as a Presidential election. Especially an election where the very issue the Court is dealing with, the limitations on the authority of the state contained in the Constitution, were also the central issue in the Presidential election. It’s going to be a very interesting opinion regardless of which way it comes down.