Monthly Archives: March 2007

Do We Need An Equal Rights Amendment ?

There was a time when it looked like the Equal Rights Amendment, first proposed in the midst of the 1970s movement toward gender equality, would actually passed. It had garnered the support of 35 of the 38 states needed for ratification. And then it just died. A few states passed resolutions purporting to rescind their earlier ratification, a move which remains Constitutionally questionable, but the movement to get the three states needed to ratify the proposed amendment just stopped. And the ERA has effectively been dead ever since.

Now, Democrats in Congress are planning to reintroduce the legislation and start the process all over again:

Federal and state lawmakers have launched a new drive to pass the Equal Rights Amendment, reviving a feminist goal that faltered a quarter-century ago when the measure did not gain the approval of three-quarters of the state legislatures.

The amendment, which came three states short of enactment in 1982, has been introduced in five state legislatures since January. Yesterday, House and Senate Democrats reintroduced the measure under a new name — the Women’s Equality Amendment — and vowed to bring it to a vote in both chambers by the end of the session.

The renewed push to pass the ERA, which passed the House and Senate overwhelmingly in 1972 and was ratified by 35 states before skidding to a halt, highlights liberals’ renewed sense of power since November’s midterm elections. From Capitol Hill to Arkansas, legislators said they are seizing a political opportunity to enshrine women’s rights in the Constitution.

The text of the ERA is as follows:

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

Though simple in language, the impact of the ERA would be significantly. With the Amendment as part of the Constitution, claims of gender discrimination would be subject to the same strict scrutiny as claims of racial discrimination. The question, though, is whether we really want that.

I don’t think that there is any disagreement with the argument that there is almost never a good reason for the government to discriminate among people based on race or ethnicity. Whether someone is white, or black, Asian, or Hispanic can almost never be said to be a relevant criteria for, say, school admission.

The same cannot be said, I would submit, when it comes to discrminiation based on gender. There are differences between men and women and sometimes the law needs to recognize those differences. Opponents of the ERA back in the 1970s argued that it would lead to unisex bathrooms and women in the military. Quite obviously, that argument is absurd. But what about a college athlete who doesn’t qualify for the men’s basketball team and wants to play for the women’s team, under a strict reading of the language of the ERA it would be unconstitutional for a state-run school to deny him that opportunity.

Or let’s take a more radical example. Marriage. Right now a man and marry a woman, but not another man. A woman, however, can marry a man (but, of course, not another woman). Does it really take all that much imagination to think that there will be a lawyer somewhere out there who will argue that the ERA prohibits the state from barring persons of the same gender from marrying each other merely because they are of the same gender ?

More importantly, though, it seems pretty clear that, given the state of the law and the state of society, the Equal Rights Amendment simply isn’t necessary. Under the law today, nearly all gender-based discrimination other than the examples I noted above that merely recognize the differences between men and women are considered unconstitutional thanks to a series of Supreme Court decisions based on the Equal Protection Clause of the Fourteenth Amendment. Eugene Volokh, who seems to favor the idea of an Equal Rights Amendment, puts it this way:

On the one hand, enacting the ERA will cement the broad antidiscrimination principle, and perhaps defeating it might in some measure undermine the principle, among some members of the public or even among some judges; and it’s possible that judges will carve out some sensible exceptions from the ERA’s flat ban if the ERA is enacted. On the other, it seems highly likely that the constitutional nondiscrimination rule is here to stay, and maybe it’s better for judges to continue developing exceptions from this rule when it’s basically a judicially developed interpretation of the Equal Protection Clause, rather than for judges to create exceptions from a categorical guarantee.

My preference would be for an ERA that has explicit exceptions for the few areas where exceptions seem necessary, but I doubt that this is a politically viable option. The question then is which is better — the status quo, under which there is a broad but not securely textually anchored constitutional prohibition of most forms of sex discrimination, or an ERA that expressly bars sex discrimination but goes literally further than I think it should. My sense is that the status quo is probably good enough, because it seems so solidly entrenched; but it’s not an open-and-shut matter, it seems to me.

Given the danger that judicial interpretation of the Equal Rights Amendment could lead to outcomes that even it’s supporters today wouldn’t support, I think staying with the status quo makes the most sense.

Finally, it should be noted that we are having this conversation in very interesting times. The frontrunner for the Democratic nomination for President is a woman. The Speaker of the House, second in line to succeed to the Presidency, is a woman. There are women serving as Cabinet Members, Senators, Congresswomen, Governors, and all over politics. This is not the same country it was in 1972 when the ERA was first sent to the states. Perhaps we need an idea more appropriate for our time and not one rooted in the 1970s.

Bob Barr: Medical Marijuana Lobbyist

Back when he was a Congressman, Bob Barr was at the forefront of a move in Congress to block a referendum in the District of Columbia that would have allowed the use of marijuana for medical purposes. The referendum went forward, but thanks to the Barr Amendment the public wasn’t even allowed to know what the results of the vote were, although it seemed clear that the referendum had passed.

Let’s just say that times have changed. Bob Barr is now retired from Congress, he’s joined the Libertarian Party, and he’s lobbying for the legalization of medical marijuana:

Bob Barr, who as a Georgia congressman authored a successful amendment that blocked D.C. from implementing a medical marijuana initiative, has switched sides and become a lobbyist for the Marijuana Policy Project.

But that doesn’t mean he has become a bong-ripping hippie. He isn’t pro-drug, he said, just against government intrusion.

“I, over the years, have taken a very strong stand on drug issues, but in light of the tremendous growth of government power since 9/11, it has forced me and other conservatives to go back and take a renewed look at how big and powerful we want the government to be in people’s lives,” Barr said.

(…)

Ironically, Barr said he will help lead the fight to give District residents a say on whether to allow medical marijuana — the very thing the “Barr Amendment” denied them in 1998. He will lobby for the rights of states to set their own medical marijuana policy without federal interference.

The four-term former Republican congressman will also work to unplug a youth anti-drug campaign which a recent study showed actually increased the likelihood that all teens would smoke pot.

Some of the commentors over at Hit & Run are accusing Barr of “flip-flopping”, but, like Radley Balko said, I think it’s clear that this is a genuine change of mind on Barr’s part, not a change in position designed to gain votes or political support. If anything this is likely to make him even less welcome among his former allies. However, like Glenn Reynolds, I think it would’ve been nice if Barr had had this change of heart when he actually had the power to do something about the insanity that is the War on Drugs.

What Is 17 Years In Prison Worth ?

Virginia is proposing to pay $ 1.9 million to Earl Washington, Jr., who spent 17 years in prison, including time on death row, for a rape and murder that he did not commit:

Virginia officials have agreed to pay $1.9 million to a man who spent 17 years in prison — including more than nine on death row — for a rape and murder he did not commit, officials said yesterday.

If the settlement is approved by the court, it will bring an end to years of legal battles that arose from one of the nation’s most troubling instances of a wrongful conviction. Earl Washington Jr., a farmworker who is mildly mentally retarded, once came within days of execution. He was exonerated in 2000 by DNA tests.[

The story of how Washington ended up nearly being executed for a murder he didn’t commit is particularly outrageous:

Washington’s conviction in the 1982 rape and murder of 19-year-old Rebecca Williams, a young mother from Culpeper, was largely the result of a false confession in which he got several key details wrong. Last year, a federal jury in Charlottesville ruled that a now-deceased Virginia State Police investigator fabricated parts of that confession. The jury awarded Washington $2.5 million.

The proposed $1.9 million settlement calls for the court to dismiss the verdict against the estate of investigator Curtis Reese Wilmore, who died in 1994, according to court papers. It also would mean that all appeals in the case, including one by Wilmore’s estate, would be dropped. The state funded the defense against Washington’s lawsuit because Wilmore was a state employee when he interrogated Washington.

It makes sense for Washington to settle the claim at this point. The appeals would be costly, and there’s always a risk that the jury verdict would be overturned.

The case does raise a question, though, what is appropriate compensation for being held in prison for 17 years and nearly being executed due to a falsified confession ? The jury said it was $ 2.5 million dollars, but that seems paltry compared to the damage that was done to Washington over the years. And, quite honestly, it’s unfortunate the man responsible for all this never spent a day in jail for what he did.

Are CEO’s Accountable To Shareholders?

Over in the comments to this post at Cafe Hayek, a debate is brewing over whether compensation for bad CEO’s is the fault of the shareholders or not.

In this debate, you constantly see people of the libertarian mindset blaming the shareholders for not exercising enough control over the CEO compensation process. This, I think, is hypocritical.

In any big organization, there is a facade of democratic decision-making. In the United States, we pick our President through primaries and a general election process. But since the process is completely driven by money and influence, we have a very limited number of choices to take into account, largely limited to who the RNC and the DNC put their money and weight behind. Yet when we complain and people say “well you elected them!”, we get angry.

What’s different with the shareholders? Often the selection of CEO is limited to a small number of candidates selected by the Board of Directors, who are also often selected by a very limited number of candidates.

When I look at the idiocy in the United States government, I can at least say that because the system of electing those idiots is completely screwed up, that I have very little meaningful control over who ends up in power and what they do with that power. I’m doing everything I can to change that system (including posting to this blog), but I still have almost zero influence over what they’re doing.

Wouldn’t it be consistent to apply the same argument to shareholders? The only advantage that shareholders have over citizens of the US is that the cost of exit from owning a company has a much lower transaction cost than leaving the United States. But the argument still holds. Do shareholders really exert meaningful control over the inner workings of a Board of Directors and CEO? Do they exert much more control than voters exert over our government?

I say no. In both cases, the system is broken. Blaming the peons in a system doesn’t accomplish anything if those peons can only change who runs the broken system, not the system itself.

Jim Webb And The Second Amendment

Yesterday I wrote at Below The Beltway about the arrest of an aide to Virginia Senator Jim Webb who was arrested trying to bring a loaded gun, apparently the Senator’s gun, into the Russell Senate Office Building.

Today, Senator Webb spoke about the incident and made some comments about the Second Amendment you just don’t see from Democrats very often:

“I’m a strong supporter of the Second Amendment,” Webb added. “I have had a permit to carry a weapon in Virginia for a long time. . . . It’s important for me personally and a lot of people in the situation that I’m in to be able to defend myself and my family.”

Since the Sept. 11, 2001, terrorist attacks, “there’s been agreement that it’s a more dangerous time,” he said. “I’m not going to comment with great specificity on how I defend myself, but I do feel I have that right.” Compared to the president and others in the executive branch, lawmakers have little protection available to them, Webb said. “We are required to defend ourselves, and I choose to do so.”

Senator, I hope you feel the same about your fellow citizens’ right to defend themselves.

Ordinary Americans Caught Up In The War On Terror

There’s an interesting articlle in The Washington Post today about a little-known Federal law, beefed up by an Executive Order issued in the wake of 9/11 that is having an impact on the ability of ordinary Americans to buy products or obtain services:

Private businesses such as rental and mortgage companies and car dealers are checking the names of customers against a list of suspected terrorists and drug traffickers made publicly available by the Treasury Department, sometimes denying services to ordinary people whose names are similar to those on the list.

The Office of Foreign Asset Control’s list of “specially designated nationals” has long been used by banks and other financial institutions to block financial transactions of drug dealers and other criminals. But an executive order issued by President Bush after the Sept. 11, 2001, attacks has expanded the list and its consequences in unforeseen ways. Businesses have used it to screen applicants for home and car loans, apartments and even exercise equipment, according to interviews and a report by the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area to be issued today.

“The way in which the list is being used goes far beyond contexts in which it has a link to national security,” said Shirin Sinnar, the report’s author. “The government is effectively conscripting private businesses into the war on terrorism but doing so without making sure that businesses don’t trample on individual rights.”

Basically, the list is similar to the no-fly list, except when you end up on it, you may find it impossible to conduct business or even buy a house. Consider this example:

Tom Kubbany is neither a terrorist nor a drug trafficker, has average credit and has owned homes in the past, so the Northern California mental-health worker was baffled when his mortgage broker said lenders were not interested in him. Reviewing his loan file, he discovered something shocking. At the top of his credit report was an OFAC alert provided by credit bureau TransUnion that showed that his middle name, Hassan, is an alias for Ali Saddam Hussein, purportedly a “son of Saddam Hussein.”

The record is not clear on whether Ali Saddam Hussein was a Hussein offspring, but the OFAC list stated he was born in 1980 or 1983. Kubbany was born in Detroit in 1949.

Under OFAC guidance, the date discrepancy signals a false match. Still, Kubbany said, the broker decided not to proceed. “She just talked with a bunch of lenders over the phone and they said, ‘No,’ ” he said. “So we said, ‘The heck with it. We’ll just go somewhere else.’ ”

Kubbany and his wife are applying for another loan, though he worries that the stigma lingers. “There’s a dark cloud over us,” he said. “We will never know if we had qualified for the mortgage last summer, then we might have been in a house now.”

Want to lose weight ? Too bad, no treadmill for you:

In another case, a Roseville, Calif., couple wanted to buy a treadmill from a home fitness store on a financing plan. A bank representative told the salesperson that because the husband’s first name was Hussein, the couple would have to wait 72 hours while they were investigated. Though the couple eventually received the treadmill, they were so embarrassed by the incident they did not want their names in the report, Sinnar said.

There are other examples cited in the article, each of which makes clear that the OFAC list, much like the TSA’s infamous no-fly list is fast approaching the point where it’s out of control and clearly isn’t designed in a way where it targets people who might actually try to buy harmful substances that could be used in terrorist attacks.

It’s a combination of bueracracy and bad intelligence, and it’s yet another way in which ordinary Americans are finding their lives turned upside down by measures enacted in response to the War on Terror.

The FBI Lied To Obtain Secret Search Warrants

The Washington Post is reporting today that the FBI lied to a secret tribunal of Federal Judges authorized to issue search warrants in national security cases:

FBI agents repeatedly provided inaccurate information to win secret court approval of surveillance warrants in terrorism and espionage cases, prompting officials to tighten controls on the way the bureau uses that powerful anti-terrorism tool, according to Justice Department and FBI officials.

The errors were pervasive enough that the chief judge of the Foreign Intelligence Surveillance Court, Colleen Kollar-Kotelly, wrote the Justice Department in December 2005 to complain. She raised the possibility of requiring counterterrorism agents to swear in her courtroom that the information they were providing was accurate, a procedure that could have slowed such investigations drastically.

A internal FBI review in early 2006 of some of the more than 2,000 surveillance warrants the bureau obtains each year confirmed that dozens of inaccuracies had been provided to the court. The errors ranged from innocuous lapses, such as the wrong description of family relationships, to more serious problems, such as citing information from informants who were no longer active, officials said.

This revelation follows the news two weeks ago that the FBI was not following the law in the issuance of so-called “national security” letters. And, more importantly, it’s evidence that the surveillence society is something that cannot be contained. Once given the power to access information for one purpose, law enforcement will inevitably find a way to use it for another purpose, even if they have to lie to do it.

Quotes To Ponder

Freedom is not merely the opportunity to do as one pleases; neither is it merely the opportunity to choose between set alternatives. Freedom is, first of all, the chance to formulate the available choices, to argue over them — and then, the opportunity to choose.

— C. Wright Mills

When liberty is taken away by force it can be restored by force. When it is relinquished voluntarily by default it can never be recovered.

— Dorothy Thompson

Five Years Of Failure

In today’s New York Sun, Ryan Sager notes that it was five years ago today that the McCain-Feingold bill was signed into law:

Five years ago today, President Bush signed into law the Bipartisan Campaign Reform Act of 2002. Today, American politics is so clean you could eat off it — except for the mud-slinging, back-scratching, favor-trading, influence-peddling, bald-faced lying, indictments, and convictions.

Let’s leave aside for the moment the fact that McCain-Feingold is an egregious attack on the First Amendment rights of American citizens, although it is admittedly hard to do so. Has the bill accomplished what it’s supporters said it would ? As Sager points out so well, the answer is absolutely not:

The former senator from Tennessee, Fred Thompson, who championed McCain-Feingold, promised that it would “help challengers reach a threshold of credibility when they want to challenge us in these races.” Putting aside the ludicrous notion that 535 incumbent politicians sat down and tried to write a piece of legislation that would make it harder to get reelected, five years later there’s no evidence electoral competition has increased. Sure, control of Congress turned over. But anyone who attributes the 2006 election to McCain-Feingold, as opposed to Bush-Cheney-Hastert-Frist, is delusional.

Some McCain-Feingold supporters promised that the bill would reduce the amount of money being raised and spent in elections. “This bill forces all of us,” Senator Cantwell of Washington said during the debate, “to play by the same rules and raise and spend money in lower amounts.” As the Sun’s Josh Gerstein reports today, that certainly hasn’t been the result. Candidates for both parties’ nominations will surely be shattering first-quarter fundraising records next month.

Then there was the claim that McCain-Feingold could restore trust in government. On this score, Mr. Thompson declared that “we are making headway to do something that will reduce the cynicism in this country and that will help this body, that will help us individually.” While, plenty of congressmen have helped themselves individually over the past five years (see: indictments and convictions and plea agreements, above), there is still enough cynicism around for Senator Obama of Illinois to make defeating it the main rationale for his presidential campaign.

Last but not least — and here we get to the real nub of campaign-finance regulation — McCain-Feingold supporters promised that the bill would curb the scourge of “negative” and “dirty” advertising. “It is about slowing political advertising,” Ms. Cantwell said during the debate. “Making sure the flow of negative ads by outside interest groups does not continue to permeate the airwaves.”

Of course, curbing and “slowing” speech critical of politicians by “outside interest groups” (a.k.a. “citizens”) is in no way a permissible goal under the First Amendment. But, ultimately, the politicians may have failed in this most nefarious goal. And it’s not just the Swift Boat Veterans for Truth who showed the way around it.

As Sager points out, the Internet, and most notably the “1984” ad that was the buzz of the political world for weeks, have opened up a new avenue for political speech that the advocates of McCain-Feingold never even conceived of. And it’s virtually free.

One wonders how long it will be before Congress goes after YouTube.

The Web As Collective Property

Last night, in a comment to Jason’s post on Venezuela & “collective property”, I suggested that the Pilgrims showed that collective property doesn’t work. As I was listening this morning to an EconTalk podcast, the discussion turned to the web, and how the web has grown into an enormous community, largely due to the people who wish to put out information, not a profit motive.

It occurred to me that such an idea may be used by socialists as a defense of collective property. After all, you see an enormous– largely free– medium, where the work of individuals has put together an enormous wealth of information. They may claim that something like Blogger or geocities is an example of how collective property (i.e. a free “printing press” for anyone to publish upon) has enabled an amazing increase in available information that we see throughout online society.

On its face, it sounds like a pretty reasonable claim. However, it fails to take into account the difference between “freely-provided and open to all” and “collective”. Take, for example, the Blogger service. It’s owned by Google, and as with most things that Google does, they provide the hosting forum for free to whoever wants to set up a blog. One of the advantages to a non-physical realm like the Internet is that there is a near-infinite amount of “space” to offer up. Google provides space to whoever wants it, and the act of using that space has made the internet a richer place.

But that doesn’t mean that it’s “collective property”. While Google offers Blogger blogs to anyone who wants one, that doesn’t make those blogs collectively owned or governed. The blogs are more of a “homesteading” situation than collective property. Someone makes a claim to a certain URL within the blogspot.com domain, sets up their blog, and thereafter they are the owner of that space.

Collective property doesn’t work because of the tragedy of the commons. As an example, let’s say that Google put into the terms of service that if you set up a blog within Blogger, you have to allow anyone to contribute posts to it. Thereafter, every blog on Blogger would truly be collective property. I predict that within a few months, Blogger would cease to exist. While a free blog on Blogger may not seem like “property”, it certainly feels like property to those who have one. The people who have those blogs talk about “my” blog or “our” blog (if it is a group blog like this one), not a blog belonging to “the community”.

A similar issue is currently occurring with Wikipedia. Wikipedia is truly a commons, where anyone has the ability to edit entries on any subject, without consideration to the credentials of those who make the edits. At the beginning, Wikipedia was fairly reliable. Over time, though, Wikipedia has proven to be a completely unreliable source of information. When you’re looking up information on a topic even remotely political, Wikipedia is a source that must be corroborated by multiple other sources before it should be trusted. The reason is that Wikipedia’s design as a commons ensures that the topics it covers may be more exhaustive than other encyclopedias, but it cannot claim any reasonable expectation of accuracy. Such a tendency to put out false information is almost expected on a topic of political significance, or anything controversial, but as Sean Lynch of Catallarchy pointed out, this is the case even on such non-controversial topics as the storage of hydrogen peroxide. The advantage of a commons like Wikipedia is that everyone can use it. The disadvantage of a commons like Wikipedia is that you can’t trust people to use it wisely.

The difference between a commons and private property is profound. Property is a very real, human idea. Whether that property is a house, a car, a stereo, or a blog, there is a human desire to control that which is “mine”. There is further a human desire to protect that property from the control of others. When that property cannot be defended, the property becomes worthless.

If tomorrow, the government told me that I had to open my house or my car to let anyone in the community use it as they pleased, I would expect that my house and car would rapidly deteriorate, because there would be no incentive for the people who use it to contribute to its upkeep. Likewise, if tomorrow the government declared that I had to open The Liberty Papers to anyone who wished to post to the front page, you can be sure that The Liberty Papers would deteriorate. The contributors who were first invited to this blog when Eric started it 18 months ago were chosen because they shared a common political outlook, and because Eric believed that they would add to a richer blog. Those who we invited (“we”, because while this blog may have one legal owner, we share decision-making amongst the group) after I took over for Eric were invited for the same reason. If we were forced to allow anyone to post here, it would cease to be The Liberty Papers, as the new contributors would not be “selected” in order to provide a libertarian message. It might become, based on some of our recent comments, the “We Love Hugo Chavez Papers”. At that point, you can be sure that pretty much all of the original contributors would stop caring and stop contributing. And you can be sure that we contributors wouldn’t be willing to put up money for hosting costs to espouse a political ideology on “our” blog that goes against our own beliefs.

Humans have amazing capacities and desire for creativity. Some may think that some of the pages on the web are designed for others, but I would say that this is not the case. For example, I regularly check out beeradvocate.com. This is a site devoted to all things beer. Now, some may suggest that it was created by the Alstrom brothers in order to give a beer-related web site to the world. I don’t agree. I think it was created by two brothers who love beer and wanted to build something. It wasn’t so much about giving something to beer drinkers worldwide, so much that it was about creating something they were interested in and could call their own. If, again, the government said that they must open the inner workings of their site to anyone who wanted to control it, I think they would be forced to throw up their hands and stop caring, because the work that they created out of love and interest for beer would cease to be what they wanted it to be.

The web has become the wonderful collection of information and communication because people have a desire to create and build, not a desire to donate. When you take away the ownership, the ability to control what you’ve built, you take away the incentive to build. This isn’t like building a home and selling it to someone, there’s not a lot of money to be earned by building the average blog or web site. Most people in this world build what they want to build because they love to do it. You take away a person’s ability to control their creation, and they will cease to build. Some would say that the world would be a better place if this were not the case, but those people are tilting at windmills. Human nature and private property rights are inextricably linked. When you try to break that link, bad things happen. And, like Venezuela under a “collective property” arrangement, we’d all be poorer if the Web was collective property.

It’s Constitutional For The Government To Harass You

So you buy a property. The property is free and clear. Then some bureaucrat comes along and tells you that the government has an easement on your property, but there’s no written record of it. You tell them to go screw. So they start harassing you. Is this right?

This is the subject of a case now being mulled by the U.S. Supreme Court, Wilkie v. Robbins. As R.S. Radford and Timothy Sandefur of the Pacific Legal Foundation explain in a Legal Times article, Harvey Frank Robbins is a Wyoming man who bought a ranch in 1993, “not knowing that the previous owner had agreed to give the Bureau of Land Management an easement over the land. BLM agents, however, had neglected to record the easement, so when the purchase went through, Robbins got the land free and clear.”

This clearly was the mistake of the government agents, yet they weren’t about to let Robbins off the hook when he did not accede to their request to reinstate the easement. The agents made threats against him. Justice Ruth Bader Ginsburg spoke during oral arguments “of a pattern of harassing conduct that included trespasses on this man’s lodge and leaving the place in disarray, videotaping the guests, selective enforcement of the grazing laws, a whole pattern of things, even asking the Bureau of Indian Affairs to impound his cattle.”

Rather than punish government agents who have clearly abused their power, the federal government is asserting in the nation’s highest court the right of government representatives to act in this very manner.

In this case, the federal government claims that there is no constitutional right to physically exclude the government from your property, and even if there were such a right that it would offer no protection against harassment. This government argument, Radford and Sandefur explain in an amicus brief on behalf of Robbins, is “based on a disturbing and mistaken understanding of the relationship between the American people, their government and constitutional protections of private property rights. The framers of the Constitution accorded great weight to the importance of private property as a bulwark of personal sovereignty and autonomy, which not even the power of government could breach except in limited circumstances. . . . If the government were allowed to retaliate against citizens who exercise their right to exclude government agents from their land, the right itself would be extinguished.”

In a society that respected individual freedom, the agents who harassed Robbins would face prosecution. Instead, they are exonerated and the government itself arrogantly demands a right to harass individual citizens because — get this — the Constitution does not specifically forbid harassment by such officials.

They used to say that a man’s home is his castle. We’re increasingly moving towards a world where your home is simply somewhere the government allows you to live. You can pay your mortgage, you can pay your taxes, but if they want to evict you, you’d be well-advised to start packing.

We’ve built a government big enough to do all sorts of “wonderful” things for us. But this is something that Barry Goldwater warned against: “A government that is big enough to give you all you want is big enough to take it all away.”

This case is currently before the Supreme Court. To learn more, listen to today’s Cato Daily Podcast, where Timothy Sandefur (mentioned in the story) of the Pacific Legal Foundation explains why this behavior is “worse than Kelo.”

Virginia Governor Proposes Smoking Ban

Virginia Governor Tim Kaine wants to make it illegal to smoke in restaurants in the Commonwealth of Virginia:

RICHMOND, March 26 — Smoking would be banned in Virginia restaurants under a proposal announced Monday by Gov. Timothy M. Kaine (D).

Kaine said he will ask lawmakers to enact the smoking ban when they return to Richmond next week for a day.

(…)

Kaine’s proposed amendment to anti-smoking legislation could have national implications. In other states, anti-smoking advocates have had more difficulty approving a smoking ban in restaurants than in workplaces and public places. By proposing a restaurant-only ban, the governor is likely to create additional pressure in other states to do the same, advocates said.

The original bill, which Virginia law gives the Governor the right to propose amendments to which the Assembly then votes on, was not perfect but at least allowed restaurant owners the option of allowing smoking in their establishments:

The original bill, sponsored by House Majority Leader H. Morgan Griffith (R-Salem), would have allowed restaurants to permit smoking so long as they posted a sign near the entrance explicitly stating that smoking is allowed.

Kaine’s comment on the original bill is almost nonsensical:

“I appreciate the patron’s intent with this legislation, but felt amendments were necessary,” Kaine said. “I remain opposed to a widespread, general ban on smoking in public. This bill, with my amendment, is narrowly targeted to prevent smoking in restaurants, which is an important step to protect the health of both patrons and employees.”

Governor, you do realize that a widespread, general ban on smoking in restaurants is exactly what you’re proposing, don’t you ?

What Separation Of Church And State Really Means

At USA Today, Notre Dame Law Professor Richard Garnett uses the current battle for religious freedom in China as an example of why separation of church and state is important, and how it has been misunderstood by people on both sides of the debate:

It is precisely by failing to respect the separation of church and state, and by trying to co-opt and domesticate what the government regards as a dangerous rival, that China is trampling on religious freedom. In a way, China and the Holy See are replaying one of the oldest and most fundamental religious-liberty scripts.

Today, many regard church-state separation as a reaction to church control of government. In fact, it was for a millennium the ambition of kings to expand their power, and keep down their rivals, by controlling the church and its affairs.

By resisting, the medieval church affirmed the foundational and still fundamental principle that the state and its power are limited.

And for that the world should be eternally grateful. It was in the efforts of the Catholic Church to assert its independence from the rulers of Europe that the ideas that formed the basis for the Enlightenment eventually sprung. More importantly, it was the fact that those efforts succeeded, and the Church became a powerful force in Europe outside of the state, that we can point to as the reason why despotism of the type that existed in Asia and Central America, which were dominated by state religions where the role of priest and poltician was intertwined, never really manifested itself in Europe.

In his conclusion, Garnett points out why separation of church and state is important for everyone:

The struggle for the church’s freedom in China reminds us that what the separation of church and state calls for is not a public conversation or social landscape from which God is absent or banished. The point of separation is not to prevent religious believers from addressing political questions or to block laws that reflect moral commitments. Instead, “separation” refers to an institutional arrangement, and a constitutional order, in which religious institutions are free and self-governing — neither above and controlling, or beneath and subordinate to, the state. This freedom limits the state and so safeguards the freedom of all — believers and non-believers alike.

Properly understood, the church and the state are neither enemies nor rivals, they are independent institutions, and the doctrine of separation allows both to exist in a way that is most beneficial for human liberty.

H/T: Brendan Loy

Kelo Comes To Washington

It seems the District of Columbia is on the verge of taking over a locksmith shop to make way for a massive new hotel:

District officials are proceeding with their plan to acquire a locksmith shop at the corner of Ninth and L streets NW to make way for a convention center hotel, according to D.C. officials and the owner of the shop.

Whit Conway, who leases the space for his Central Safe and Locksmith, said a District appraiser came to his store Wednesday. “It looks like they’re moving expeditiously,” he said.

Conway, who has been at the location since 1980, said he and the owners of the parcel of land received letters Nov. 30 notifying them of the District’s plans. The property is key to completing the acquisition of land needed to build a hotel with about 1,400 rooms at Massachusetts Avenue and Ninth Street NW.

(…)

Conway, who has eight years left on his lease, won a lawsuit in October requiring that his landlord buy out the lease if the property is sold. Two weeks later, he said, the District said that if it took the land through eminent domain, it could relieve the landlord of any obligation or payment for Conway’s lease.

A letter sent to Conway said the appraiser would determine fair market value. After that, the District will make an offer and negotiate with the landlord. If they can’t come to an agreement, the District will use eminent domain to acquire the land.

Of course they will, because it’s just so much easier.

Originally posted at Below The Beltway

Chuck Hagel Is Talking Impeachment Again

Earlier this month, I wrote about statements by Nebraska Republican Senator Chuck Hagel that seemed to suggest that he thought President could be impeached because of his Iraq policy. Yesterday, he appeared on ABC’s This Week and made the speculation even more explicit:

WASHINGTON — Some lawmakers who complain that President Bush is flouting Congress and the public with his Iraq policies are considering impeachment an option, a Republican senator said Sunday.

Sen. Chuck Hagel of Nebraska, a member of the Foreign Relations Committee and a frequent critic of the war, stopped short of calling for Bush’s impeachment.

But he made clear that some lawmakers viewed that as an option should Bush choose to push ahead despite public sentiment against the war.

“Any president who says ‘I don’t care’ or ‘I will not respond to what the people of this country are saying about Iraq or anything else’ or ‘I don’t care what the Congress does, I am going to proceed’ — if a president really believes that, then there are … ways to deal with that,” Hagel said on ABC’s “This Week.”

Yes, Senator, there are ways to deal with it, but impeachment isn’t one of them.

Let’s go over this again, the impeachment power, set forth in Article II, Section 4 is pretty clear

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Hagel, however, is not talking about impeaching Bush for high crimes, misdemenaors, treason, or bribery, he is asserting the idea that the Congress has the right to seek to remove the President from office over a policy disagreement.

Part of the reason for this is fairly clear. Even if the Democrats Iraq War plan, which Hagel apparently supports, is able to garner enough votes to stop a filibuster and make it through the Senate, it is clear that the President will veto it. There is not enough support for the plan in either the House or the Senate to override the veto. Therefore, we’ll have stalemate and the President will be free to pursue his current Iraq policy unless Congress takes the step of cutting off funding for the war, which I submit they do not have the political courage to even try to do.

Like it or not, George Bush is President through January 20, 2009 and the Constitution gives him the authority as Commander in Chief to carry out the Iraq War as he sees fit.

Hagel’s comments also make it clear why the Founders limited the impeachment power the way that they did. If Congress had the authority to attempt to remove the President, Vice-President, or Justice of the Supreme Court at will, then separation of powers would become a meaningless concept, and the President would become a mere minister serving at the pleasure of whichever party has majority control of the Legislative Branch. That is what the Parlimentary system, which existed in England at the time the Constitution was written, is all about. Had the Founders wanted to mimic it, they very could have. The fact that they didn’t leads to the conclusion that they wanted co-equal branches of government for a reason.

Now, I am not a supporter of the President’s policy in Iraq. But he is the President and has the authority to carry it out. If Congress wishes to change that policy, then they can use the power of the purse to do so. If they don’t have the political courage to do that, they need to just be quiet until the Bush Administration is over.

H/T: Captain’s Quarters

Christian Pharmacists And Muslim Cashiers

Just a question. Is there any moral difference between these two?

Muslim cashiers won’t ring up pork products

So Dsouza was taken aback when the cashier – who had on the traditional headscarf worn by many Muslim women – refused to swipe the bacon through the checkout scanner.

“She made me scan the bacon. Then she opened the bag and made me put it in the bag,” said Dsouza, 53. “It made me wonder why this person took a job as a cashier.”

In the latest example of religious beliefs creating tension in the workplace, some Muslims in the Twin Cities are adhering to a strict interpretation of the Koran that prohibits the handling of pork products.

Instead of swiping the items themselves, they are asking non-Muslim employees or shoppers to do it for them.

Some pharmacists say no to filling birth-control prescriptions

An increasing number of pharmacists around the country are refusing to fill prescriptions for birth-control and morning-after pills, saying that dispensing the medications violates their personal moral or religious beliefs.

“There are pharmacists who will only give birth-control pills to a woman if she’s married. There are pharmacists who mistakenly believe contraception is a form of abortion and refuse to [dispense] it to anyone,” said Adam Sonfield of the Alan Guttmacher Institute in New York, which tracks reproductive issues. “There are even cases of pharmacists holding prescriptions hostage, where they won’t even transfer it to another pharmacy when time is of the essence.”

Perhaps it’s just me, but I don’t see any difference between these actions. Can anyone see any logical rational to stand up for one while denouncing the other?

“Collective Property” in Venezuela

Hugo Chavez is killing his country…his latest socialist move is to create “collective property”:

Vowing to undermine capitalism’s continued influence in Venezuela during his television and radio program “Hello President,” Chavez said state-financed cooperatives would operate under a new concept in which workers would share profits.

“It’s property that belongs to everyone and it’s going to benefit everyone,” said Chavez, a close ally of Cuban leader Fidel Castro whom opponents accuse of leading Venezuela toward Cuba-style communism.

Chavez — a leftist former paratrooper popularly known as “El Comandante” — said his government fully respects private property, but pledged to replace capitalist ideals with socialist principles on cooperatives such as cattle ranches and farms.

It’s just another step toward the elimination of private property under the Chavez regime.

Diplomacy, Lobbyists, And The Strait Of Formosa

As I’ve pointed out several times, I tend to keep tabs on what is going on between China and Taiwan. The Washington Post is currently doing a long series on lobbyists, and I came across a chapter regarding the lobbying effort to allow Taiwanese President Lee to visit the US in 1994-5.

The Republic of China on Taiwan confirmed this new status in 1994 when it picked Cassidy for a sensitive and lucrative assignment — to persuade the United States government to change its policy toward the leader of Taiwan, and allow him to visit the United States.

The story began in April 1994, at a time when Cassidy knew almost nothing of Taiwan, and the Taiwanese knew absolutely nothing about Cassidy. That month the fiery and determined Taiwanese president, Lee Teng-hui, sought permission to land his plane in Hawaii and spend a night in Honolulu on his way from Taiwan to South America. But the U.S. government said Lee could stop only to refuel, and could not visit Hawaii. The Clinton administration was adhering to rules established after the United States formally recognized China’s mainland government in Beijing in 1979. That agreement required Washington to break off “official” relations with Taiwan, which subsequent U.S. administrations had interpreted as meaning no visits by Taiwanese officials to the United States.

Now, the lobbying aspect doesn’t really interest me. It’s a good read, so you might want to check it out. What does interest me most is the relationship between the US, China, and Taiwan. To allow Lee to visit would be a violation of common understanding of the “One China” policy, even if it was not a diplomatic visit to the US. Any allowance of a visit would be sure to infuriate the Chinese, and Warren Christopher had personally assured his Chinese contacts that such a visit wouldn’t occur. But with some deft lobbying, the public and Congress were on Lee’s side, and a political battle ensued. To make a long story short, the political dance and lobbying eventually forced Clinton to allow the visit (over the strident objections of the State Department), and Lee came to give a speech at Cornell University, his alma mater.

It’s what happened next that was interesting:

In June 1995, Lee spoke at Cornell. The communist authorities in Beijing were livid; their relations with Taiwan deteriorated rapidly. A year later, they were firing missiles over Taiwan in a show of strength that prompted the United States to send two aircraft carriers into the Taiwan Strait, between Taiwan and the mainland. Taiwan’s currency and its stock market both tumbled in the crisis. Taiwanese had been thrilled when Lee went to Cornell, but in the aftermath the benefits of the visit were less clear.

In my heart, I hope for a true Taiwanese independence, formally recognized by the world community. My pragmatic side thinks a declaration of independence, however, would result in near-immediate war, a bad outcome for all parties involved, including the US. When I read this story, I was struck with validation of my prediction. If China was willing to fire missiles over the island in response to their President simply giving a speech at an American university, is there any doubt that a declaration of independence would result in war?

Big Brother Has A Big Database

The Washington Post reports today that, in the five and one-half years since the September 11th attacks, the Federal Government has amassed a huge database of information as part of the War on Terror:

Each day, thousands of pieces of intelligence information from around the world — field reports, captured documents, news from foreign allies and sometimes idle gossip — arrive in a computer-filled office in McLean, where analysts feed them into the nation’s central list of terrorists and terrorism suspects.

Called TIDE, for Terrorist Identities Datamart Environment, the list is a storehouse for data about individuals that the intelligence community believes might harm the United States. It is the wellspring for watch lists distributed to airlines, law enforcement, border posts and U.S. consulates, created to close one of the key intelligence gaps revealed after Sept. 11, 2001: the failure of federal agencies to share what they knew about al-Qaeda operatives.

But in addressing one problem, TIDE has spawned others. Ballooning from fewer than 100,000 files in 2003 to about 435,000, the growing database threatens to overwhelm the people who manage it. “The single biggest worry that I have is long-term quality control,” said Russ Travers, in charge of TIDE at the National Counterterrorism Center in McLean. “Where am I going to be, where is my successor going to be, five years down the road?”

It is the TIDE database that is the source of the no-fly and watch lists that have been a part of American aviation travel since planes started flying again after 9/11; watch lists which have been a continual sources of frustration for ordinary Americans who suddenly find their names on a list of suspected threats to airline safety:

Sen. Ted Stevens (R-Alaska) said last year that his wife had been delayed repeatedly while airlines queried whether Catherine Stevens was the watch-listed Cat Stevens. The listing referred to the Britain-based pop singer who converted to Islam and changed his name to Yusuf Islam. The reason Islam is not allowed to fly to the United States is secret.

Of course it is. What remains unanswered is why anyone with a brain would think that the wife of a U.S. Senator could be connected in any way to a British pop singer who converted to Islam and wears a beard and Muslim clothing. Sometimes, though, the result of being misidentified as a terrorist aren’t amusing:

So is the reason Maher Arar, a Syrian-born Canadian, remains on the State Department’s consular watch list. Detained in New York while en route to Montreal in 2002, Arar was sent by the U.S. government to a year of imprisonment in Syria. Canada, the source of the initial information about Arar, cleared him of all terrorism allegations last September — three years after his release — and has since authorized $9 million in compensation.

Of course, it’s not surprising when you think for a few seconds about just how these lists are created:

Every night at 10, TIDE dumps an unclassified version of that day’s harvest — names, dates of birth, countries of origin and passport information — into a database belonging to the FBI’s Terrorist Screening Center. TIDE’s most sensitive information is not included. The FBI adds data about U.S. suspects with no international ties for a combined daily total of 1,000 to 1,500 new names.

Between 5 and 6 a.m., a shift of 24 analysts drawn from the agencies that use watch lists begins a new winnowing process at the center’s Crystal City office. The analysts have access to case files at TIDE and the original intelligence sources, said the center’s acting director, Rick Kopel.

Decisions on what to add to the Terrorist Screening Center master list are made by midafternoon. The bar is higher than TIDE’s; total listings were about 235,000 names as of last fall, according to Justice Department Inspector General Glenn A. Fine. The bar is then raised again as agencies decide which names to put on their own watch lists: the Transportation Security Administration’s “no-fly” and “selectee” lists for airlines; Consular Lookout and Support System at the State Department; the Interagency Border and Inspection System at the Department of Homeland Security; and the Justice Department’s National Crime Information Center. The criteria each agency use are classified, Kopel said.

The decision on who to add and who to delete is, it seems, entirely arbitrary. Each agency has it’s own rules and there are no standards to assist an individual analyst in deciding whether to add or delete a name. In the end, whether or not you end up on a watch list may depend on the gut feeling of a guy sitting in an office building in Arlington County, Virginia at five o’clock in the morning.

Sounds like a system destined not to work.

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