Author Archives: Doug Mataconis

Thoughts On The Libertarian/Conservative “Alliance”

Over at Liberty Pundits, Melissa Clouthier argues that libertarians and conservatives are natural allies:

Libertarians want the government to bug out. Conservatives want the individual to empower himself. Libertarians believe in rational self-interest. Conservatives believe help and charity come from a giving heart–not from the government’s pointed gun.

Their motivations might be different, but their desired outcomes are the same. When Big Government Republicans talked about compassionate conservatism, they implied that conservatism is mean and harsh. They believed that they cared because they wanted to give people something for nothing.

They cared with other people’s money. I can be very generous when I’m writing checks off of someone else’s checking account. And boy do they all feel generous. But we are all paying the bill. And maybe some of us would pay for some of these things anyway. Americans are a very generous people. But many things are useless or worse, actively harmful and the government has no business being in that arena.

Conservatives and libertarians have much in common. Libertarians need to get over their God issue and actually see their friends in the conservative movement. They need to see the Restoring Honor rally for what it is: a call for personal responsibility and living free as an individual (which means being free to live with consequences and not expect someone else to bail them out).

And conservatives need to ignore the libertarian drug and sex obsession and see the small government, fiscally responsible desires in the libertarian movement.

(…)

The small government strains coming from these two groups naturally work together. Both true conservatives and libertarians distrust big government in all its forms whether the party is Republican or Democrat.

While I don’t doubt Melissa’s sincerity, I think what she misses here are the facts which seem to establish that that the conservative/libertarian “alliance” is really just a marriage of temporary convenience.

For better or worse, victory for conservatives means victory for Republicans. You can make distinctions between small-government fiscal conservatives and “Big Government Republicans” all you want, but the truth of the matter is that conservatives cannot succeed unless the Republican Party as a whole succeeds, and that means allying with and often voting with “Big Government Republicans.” Now, personally, that doesn’t bother me on some level. I”m willing to take an Olympia Snowe or a Mike Castle if it means Rand Paul is part of a Senate Majority. However, if you look at the history of the GOP as a whole, it’s hard to find any example from recent where the party was truly responsible for a reduction in the size, scope, and power of the Federal Government. It happened during the Reagan Administration, but even those modest gains have been reversed over the past decade, thanks mostly to a Republican President and Congress. So, on some level, libertarians and conservatives who hitch their star to the GOP are selling their souls and accepting the reality of short-term, temporary gains rather than long-term change.

More importantly, though, there are fundamental differences between libertarians and conservatives that make any kind of an alliance one of mere convenience rather than anything permanent. The great Frederich von Hayek outlined some of those differences in his 1960 essay Why I Am Not A Conservative (note that when Hayek uses the word “liberal” he is referring to it in it’s classical, principally British, sense of a belief in free markets and individual liberty, not the modern sense):

Let me now state what seems to me the decisive objection to any conservatism which deserves to be called such. It is that by its very nature it cannot offer an alternative to the direction in which we are moving. It may succeed by its resistance to current tendencies in slowing down undesirable developments, but, since it does not indicate another direction, it cannot prevent their continuance. It has, for this reason, invariably been the fate of conservatism to be dragged along a path not of its own choosing. The tug of war between conservatives and progressives can only affect the speed, not the direction, of contemporary developments. But, though there is a need for a “brake on the vehicle of progress,”[3] I personally cannot be content with simply helping to apply the brake. What the liberal must ask, first of all, is not how fast or how far we should move, but where we should move. In fact, he differs much more from the collectivist radical of today than does the conservative. While the last generally holds merely a mild and moderate version of the prejudices of his time, the liberal today must more positively oppose some of the basic conceptions which most conservatives share with the socialists.

(…)

The position which can be rightly described as conservative at any time depends, therefore, on the direction of existing tendencies. Since the development during the last decades has been generally in a socialist direction, it may seem that both conservatives and liberals have been mainly intent on retarding that movement. But the main point about liberalism is that it wants to go elsewhere, not to stand still. Though today the contrary impression may sometimes be caused by the fact that there was a time when liberalism was more widely accepted and some of its objectives closer to being achieved, it has never been a backward-looking doctrine. There has never been a time when liberal ideals were fully realized and when liberalism did not look forward to further improvement of institutions. Liberalism is not averse to evolution and change; and where spontaneous change has been smothered by government control, it wants a great deal of change of policy. So far as much of current governmental action is concerned, there is in the present world very little reason for the liberal to wish to preserve things as they are. It would seem to the liberal, indeed, that what is most urgently needed in most parts of the world is a thorough sweeping away of the obstacles to free growth.

This difference between liberalism and conservatism must not be obscured by the fact that in the United States it is still possible to defend individual liberty by defending long-established institutions. To the liberal they are valuable not mainly because they are long established or because they are American but because they correspond to the ideals which he cherishes.

The truth of Hayek’s observation can, I think, be found in the history that has passed since he wrote those passages fifty years ago. Except on the margin’s the march of the state has continued unabated regardless of which party was in power and regardless of whether the President was a (modern) liberal or a conservative. Ronald Reagan, as I noted, did little to reverse either the New Deal or the Great Society and Republicans, who campaigned on eliminating the Department of Education in 1980, turned around made it even more powerful when they finally achieved long-sought-after goal of a Republican President and Republican Congress.

Moreover, when it comes to certain aspects of government, conservatives have proved themselves as willing to increase the power of the state as their liberal opponents. The National Security State is largely a creature created by Republicans, and the PATRIOT Act, passed without even being read in the panic that ensued after the September 11th attacks, is now being used by law enforcement to go after people who have no connection to terrorism at all. Privacy from government surveillance and intelligence gathering is fast becoming a myth, and neither conservatives nor liberals seem willing to do anything about it.

And then there’s the issue of the social conservatism aspect of modern American conservatism. Whether it’s same-sex marriage, sexual privacy, or individual automony there are fundamental philosophical differences between libertarians and conservatives that become more apparent once you look past the agreements on fiscal policy.

So, yes, on a temporary basis, libertarians and conservatives have common ground at the moment. But it’s very small common ground and I don’t expect any “alliance” to last very long given past history.

Counterpoint: Civil Disobedience Or Not, Nullification Is Unconstitutional

In his post that started this debate, Brad Warbiany makes this point about the idea that the individual states have the power, or at least the right, to make declarations as to the Constitutionality of Federal laws:

Nullification is the civil disobedience of Federalism. Is it legal? No. After all, the Supremacy Clause and judicial review see to that. But it wasn’t legal for Rosa Parks to sit at the front of the bus, or for black students to sit at a “Whites-only” counter at Woolworth’s. Sometimes, the law is a ass. Sometimes, you need to disobey to make a point.

(…)

Viewed this way, nullification is less about disobedience as it is about changing policy. Nullification is a tactic in a wider strategy. It is a way to register unhappiness with federal dictates without necessarily going full-bore and threatening secession. Further, it is a way to demonstrate, by direct example, that changes in policy are preferable to the way Washington demands.

Taking this view of nullification, I don’t necessarily disagree with Brad on the value of state’s, and their citizens, weighing in on what they believe to be a usurpation of Federal power. After all, this is something that has a long and noble history in America. When President John Adams persuaded Congress to pass The Alien and Sedition Acts, Thomas Jefferson, who at that point was serving as Adams’s Vice-President, and James Madison worked together to draft and ensure the passage of the Kentucky and Virginia Resolutions, which were resolutions passed by the state legislatures of Virginia and Kentucky to condemn laws which Adams’s opponents viewed as both unconstitutional and near-dictatorial.

The resolutions — which you can read here, here, and here — are interesting in themselves because they contain one of the first post-ratifications statements by American leaders of what they believe the Constitution to mean, as this excerpt from the Kentucky Resolution of 1798 shows wonderfully:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes, whatsoever; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,”—therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States;’” as also the act passed by them on the 27th day of June, 1798, entitled “An Act to punish Frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish, such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people;” and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states, or the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment, by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference; and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violated either throws down the sanctuary which covers the others,—and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of Congress of the United States, passed on the 14th of July, 1798, entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States,'” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

That’s mighty strong language. Stronger, some would say, than the laws that a few states have passed since March challenging the Federal Government’s authority to require Americans to purchase health insurance. However, it’s worth noting what Madison and Jefferson were not doing, because as Madison acknowledged in his defense of the resolutions, there is no Constitutional authority granted to the states that would allow them to nullify a Federal law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

Considering that this was written by a man who was both one of the principle authors of the Constitution and one of the authors of the Resolutions, it seems to me that it is fairly persuasive evidence that, whatever else the Tenth Amendment might mean, the Founders never intended to give the individual states the power to nullify state laws.

So, basically, that leaves “nullification” (and personally I don’t like the word because of it’s historical associations with secessionists and segregationists) in the category that Brad would put it; a method by which the citizens can, through their state legislatures and the Courts if necessary, petition Congress for a redress of grievances.

However, when nullification is discussed today, it isn’t the “civil disobedience” variety that Brad favors that’s being advocated. In his new book, Nullification: How to Resist Federal Tyranny in the 21st Century Thomas Woods essentially argues for a full-throated right on the part of the states to ignore Federal laws if they choose to do so:

Nullification is Thomas Jefferson’s idea, articulated most clearly in his Kentucky Resolutions of 1798, that if the federal government passes a law that reaches beyond the powers delegated by the states, the states should refuse to enforce it. Jefferson believed that if the federal government is allowed to hold a monopoly on determining what its powers are, we have no right to be surprised when it keeps discovering new ones. If they violate the Constitution, we are “duty bound to resist,” to quote James Madison’s Virginia Resolutions of 1798.

Now this is a vast simplification of the argument that Woods makes, you can get a better idea of what he means in this interview:

I have yet to read Woods’ book, and still want to, but it’s fairly clear that his argument suffers from the fact that there just isn’t any historical support for his idea that the Constitution grants states the right to essentially break Federal law by ignoring it if they believe that it is unconstitutional. Any reliance on the Virginia and Kentucky Resolutions, for example, is easily rebutted by Madison’s own admission that the Resolutions were expressions of opinion rather than something that had the force of law.

History after the Resolutions doesn’t really provide any support for Woods’ argument either. The most notable example came during the Nullification Crisis of 1832, when South Carolina purported to declare a Federal import tariff unconstitutional and took steps to prevent Federal agents from collecting tariffs on goods entering through the Port of Charleston. Though the matter was resolved, it set the nation down a road toward secession that resulted in the bloodiest war in American history. After the Supreme Court’s decision in Brown v. Board of Education, ten Southern states used the doctrine of nullification, and the related concept of interposition, to attempt to resist efforts desegregate school and refuse to enforce the Court’s decision. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.

In other words, if nullification of the type Woods advances actually existed, we would no longer live in a Federal system, but in something more closely resembling the Articles of Confederation. Since the Constitution was written to replace the Articles, it’s clear that the Founders never intended to give the states the power to decide for themselves what the Constitution means and to randomly choose to ignore Federal laws based on that interpretation. Therefore, Woods’ nullification is little more than a professorial fantasy.

In closing, I don’t necessarily object to the kind of “civil disobedience” nullification that Brad favors. Let’s just not pretend it has the force of law.

Christopher Hitchens On The Campaign Against The “Ground Zero” Mosque

Christopher Hitchens may be battling cancer, but he hasn’t lost his talent for saying exactly the right thing in exactly the right way. Take, for example, his new Slate column regarding the ongoing and seemingly endless controversy over the “Ground Zero” mosque:

Take, for example, the widely publicized opinion of Abraham Foxman, national director of the Anti-Defamation League. Supporting those relatives of the 9/11 victims who have opposed Cordoba House, he drew a crass analogy with the Final Solution and said that, like Holocaust survivors, “their anguish entitles them to positions that others would categorize as irrational or bigoted.” This cracked tune has been taken up by Newt Gingrich and Sarah Palin, who additionally claim to be ventriloquizing the emotions of millions of Americans who did not suffer bereavement. It has also infected the editorial pages of the normally tougher-minded Weekly Standard, which called on President Obama to denounce the Cordoba House on the grounds that a 3-to-1 majority of Americans allegedly find it “offensive.”

Where to start with this part-pathetic and part-sinister appeal to demagogy? To begin with, it borrows straight from the playbook of Muslim cultural blackmail. Claim that something is “offensive,” and it is as if the assertion itself has automatically become an argument. You are even allowed to admit, as does Foxman, that the ground for taking offense is “irrational and bigoted.” But, hey—why think when you can just feel? The supposed “feelings” of the 9/11 relatives have already deprived us all of the opportunity to see the real-time footage of the attacks—a huge concession to the general dulling of what ought to be a sober and continuous memory of genuine outrage. Now extra privileges have to be awarded to an instant opinion-poll majority. Not only that, the president is urged to use his high office to decide questions of religious architecture!

Nothing could be more foreign to the spirit and letter of the First Amendment or the principle of the “wall of separation.

Although he doesn’t come right out and say it, Hitchens hints that he’s not at all happy about the idea of this mosque being located so close to the site of the September 11th attacks. Unlike Sarah Palin, Newt Gingrich, and all the others who have taken up the anti-mosque banner in this matter, though, Hitchens recognizes demagoguery when he sees it and, for an Englishman, has more respect for our First Amendment than many Americans do.

Hitchens ends up in about the same position that I am in this fight. I don’t necessarily favor the project, but these people own the building, they’ve complied with all applicable laws, and there doesn’t appear to be any legal means remaining to stop them. Those who want to use government force to stop them are nothing more than thieves motivated by religious bigotry rather than financial gain. The rest ? Well, they seem to think that having “feelings” and are “offended” means they have some special right to be heard. It’s really all rather sad and pathetic.

Wayne Allyn Root: Religious Freedom And Property Rights ? Not For Them Muslims !

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I’ve written before about the questionable libertarian allegiances of Wayne Allyn Root, the LP’s 2008 Vice-President nominee and currently an At-Large member of the Libertarian National Committee. Now, Root is out with a blog post about the so-called “Ground Zero” Mosque that is anything but libertarian in it’s sentiments and it’s conclusions, and it should be of concern to anyone who thinks that Root represents the direction the Libertarian Party should take in the future.

Root starts out with the same sort of milquetoast paeans toward religious liberty and property rights that we saw in his book, but he quickly goes off in a direction that makes it clear that, on this issue, he is more in line with Sarah Palin and Newt Gingrich than any Libertarian (or libertarian):

This proposed building of a mosque on hallowed ground is an ATROSITY towards America. To build a celebration of Islam within steps of 9/11 does nothing to increase religious freedom…it inspires hatred, divides our cultures, and increases the odds of violence and hate crimes. Common sense suggests this mosque, being built in this specific location, is NOT being built as a sign of friendship between Muslims and Americans…but rather as a sign of the lack of respect…a belief in our weakness…and an attempt to embarrass and belittle us. The financial district of Manhattan is not a residential area with a large number of Muslim residents for the mosque to serve. Therefore common sense suggests that the only possible reason to build it there (rather than in Brooklyn or Queens where there are large Muslim populations) is to show Muslim contempt for Americans by building a monument to Islam in the shadow of the site of their greatest triumph over America.

It is an offense to build a mosque in that location- an offense to all Americans (including Muslim Americans), all Christians and Jews, all relatives of 3000 dead heroes at the World Trade Center.

First of all, Root is just completely wrong on the facts here. The Cordoba House isn’t at all what he and the project’s critics have represented it to be:

The building’s planners, the American Society for Muslim Advancement and the Cordoba Initiative, have said it’s modeled on religious and community centers such as the YMCA, and that the 13-story, $100 million building would also include an arts center, gym and a swimming pool, as well as a mosque. It would be two blocks away from Ground Zero.

Two blocks away and nowhere within line of sight of the area where the attacks actually occurred.

The attempt by Root, Palin, Gingrich, and other opponents of this project to call this a “Ground Zero” mosque are therefore a complete misrepresentation of the location of the project. A misrepresentation obviously intended to lead people to think that a mosque is being built on the location of the World Trade Center rather than being constructed inside an already-existing decades old building as part of a larger project that would be open to the public as a whole. For that reason alone, Root’s appeals to emotionalism and the supposed “atrocity” that this project represents should be rejected as silly and, quite frankly, dishonest.

Root goes on:

Yes, private individuals and organizations have the right to build houses of worship with their own funds. But one has to wonder where the money is coming from to build a 15-story building on some of the most expensive real estate in the country. We Americans believe in the separation of Church and State. If it turns out that this project is sponsored by a foreign government — either directly or through a state-sponsored organization that engages in terrorism — than the idea of this being an issue of religious freedom is a sham and an argument can be made that our Constitution would actually prohibit this mosque from being built.

Except, of course, for the fact that there is no evidence that this is the case. More importantly, there is no connection between the organization that wants to establish the center and anyone associated with the September 11th attacks.

In the end, Root falls into the same anti-Muslim hole that Palin, Gingrich, and others have. All he’s really saying is that we can’t let them scary Muslims build what they want to in a building they own. While he doesn’t go as far as Gingrich and Palin in calling for government action to stop the project, he adopts the same attitude of religious intolerance and, for any libertarian, that’s just unacceptable.

Let’s contrast Root’s paean to fear-of-Muslims with something published this past weekend by Libertarian National Committee Interns Marissa Giannotta and Josh Roll:

The attacks on 9/11 and its victims should not be ignored, however, we cannot lay blame on the entire Islamic community for the terrible acts that occurred on that day. The Islamic cultural center would be a great way for others to learn about Islam and ultimately build bridges between the United States and the Muslim World. Islam by principle is not an extremist religion and not all Muslims should be portrayed in such way.

More importantly, those who have ownership of the site should have the freedom and the right to build what they wish. Property rights should be respected as a right for all citizens, not just a few. Our platform clearly states, “The owners of property have the full right to control, use, dispose of, or in any manner enjoy, their property without interference, until and unless the exercise of their control infringes the valid rights of others.” The Islamic cultural center does not infringe on the rights of others.

As Steven Chapman describes in his article at Reason, “Palin is not a slave to intellectual consistency. Change the church to a mosque, and put it a couple of blocks from the site of the World Trade Center, and she suddenly loses all patience with the rights of religious believers.”

Libertarian Party candidate for New York State Governor, Warren Redlich, also weighed in on the issue stating, “…I have asked some people if they would object if it was a synagogue, church, Jewish community center, or YMCA. All of them say that wouldn’t bother them. So the reason for opposing this facility is because it’s associated with the Muslim religion. That violates freedom of religion under the First Amendment.”

As Thomas Knapp notes, this is a litmus test for all libertarians (Big-L, or small-l):

If you don’t support private property rights and freedom of religion, you aren’t a libertarian.

Period.

Cordoba House, the project being fraudulently referred to as a “mosque” by those attempting to prevent its construction, is planned for construction on private property and with private funds.

The opponents of Cordoba House are attempting to stop its construction by persuading a government board to declare the building currenly standing at the project’s prospective location “historic” so that the owners can be forced to “preserve” it and forbidden to demolish it and build a structure more to their liking there.

The opponents of Cordoba House oppose private property rights. Their opposition to private property rights stems from their opposition to freedom of religion. They are, therefore, not libertarians.

That, Mr. Root, is libertarianism. Perhaps you’re in the wrong party.

Update: Jason Pye has weighed in with his own take:

Property rights and religious freedom are among the principles of a free society, basic liberties are supposed to be protected from the mob. To hear of anyone casting them aside is concerning. For a libertarian to do it is a betrayal of these core values that we are supposed to believe in.

Indeed.

Kelo, Five Years Later

It was five years ago today, that the Supreme Court issued it’s decision in Kelo v. City of New London

In 1998 the pharmaceutical company Pfizer announced plans to build a giant new research and development center in New London, Connecticut. As part of the deal, city officials agreed to clear out neighboring property owners via eminent domain, giving a private developer space to build a fancy new hotel, apartment buildings, and office towers to complement the corporate facility. Five years ago today, in Kelo v. City of New London, the U.S. Supreme Court upheld this seizure of private property because it was part of a “comprehensive redevelopment plan” that would provide “appreciable benefits to the community.”

Basically, the City of New London, Connecticut sought to redevelop an older neighborhood in hopes of increasing the city’s tax base. The City didid this by entering into a development deal with the politically powerful Pfizer Corporation for the expansion of Pfizer’s property in the city and the creation of a business conference center. Several property owners refused to sell to the city, one of them being Susette Kelo. As a result, the New London Development Corporation initiated condemnation proceedings against Kelo and the remaining property owners and the case made it’s way through the Court system and, of course, Susette Kelo ultimately lost her bid to protect her property. Then, the ultimate ironic injustice occurred this past November when Pfzier announced that they were abandoning the property that had been condemned, including the lot that had once contained Suzette Kelo’s house.

The reaction to the decision was swift and severe, with condemnations coming from both sides of the political aisle, and five years later the Kelo case has had the ironic benefit of spurring many states to limit the use of eminent domain:

• 43 states have passed either constitutional amendments or statutes that reformed their eminent domain laws to better protect private property rights. Although the quality and type of reform varies, the bottom line is that virtually all of the reforms amount to net increases in protections for property owners faced with eminent domain abuse. (For a state-by-state grading of all state eminent domain reforms, see: http://castlecoalition.org/57.)

• Nine state high courts restricted the use of eminent domain for private development while only one (New York) has so far refused to do so.

Kelo educated the public about eminent domain abuse, and polls consistently show that Americans are overwhelmingly opposed to Kelo and support efforts to change the law to better protect property rights. Among the most-recent surveys was one conducted by the Associated Press, which found 87 percent of respondents said government shouldn’t have the power of eminent domain for redevelopment, 75 percent opposed government taking private property and handing it over to a developer, and 88 percent of respondents said property rights are just as important as freedom of speech and religion.

• Citizen activists defeated at least 44 projects that sought to abuse eminent domain for private gain in the five-year period since Kelo.

As the Institute for Justice, a libertarian legal group that handled Susette Kelo’s defense, puts it:

“This significant public opposition to eminent domain abuse led to a complete change in the public’s view on this issue,” said Christina Walsh, IJ’s director of activism and coalitions. “Although public officials, planners and developers in the past could keep condemnations for private gain under the public’s radar screen and thus usually get away with the seizure of homes and small businesses, that is no longer the case.”

“One of the other reasons for this fundamental shift in eminent domain policy has been the response of state courts to Kelo,” said Dana Berliner, an IJ senior attorney and co-counsel in the Kelo case. “When the U.S. Supreme Court decided not to correctly interpret the U.S. Constitution, the state high courts began to fill that void. For example, the courts in Hawaii, Ohio, New Jersey and Pennsylvania—all states that used to regularly abuse eminent domain—each decided that, unlike the U.S. Supreme Court, they would closely scrutinize municipal takings and prevent unconstitutional abuses.”

So, in that sense, Kelo was arguably a good thing because of the unprecedented backlash that it generated. Nonetheless, it does teach us something that Thomas Jefferson is attributed with saying many years ago:

Eternal vigilance is the price of liberty.

Indeed.

There Is No Such Thing As “State’s Rights”

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Stephen Green has an excellent column this week at Pajamas Media where he cautions his fellow libertarians to stay away from the siren call of the “state’s rights” movement:

We need to give up this notion of “states’ rights.” First of all, it’s in bad taste. The phrase used to be code for “Jim Crow.” And while I’m certain that’s not true for 99% of us, we can — and should — do better than to emulate vile racists. Secondly, however, “states’ rights” is a misnomer. It’s an impossible thing. It doesn’t exist, and shouldn’t.

Let me explain.

I remember reading once somewhere that:

All men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

In other words, individuals have rights, and governments are instituted with powers to protect those rights, and are (or ought to be) restricted from abusing them.

With me so far? Individuals have rights; governments have powers.

As Green goes on to point out, the ongoing tension between the state and Federal governments was instituted to protect individual liberty not to give some amorphous entity called a “state” rights over it’s citizens. In fact, the Constitution specifically provides the Federal Government with the power to step in when the states step over the line:

One of the tensions that exists between Washington and the states is that Washington has the duty — the power — to “guarantee to every State in this Union a Republican Form of Government.” And when a particular state government discriminates against 20, 30, 40% of its citizens, then it’s no stretch to argue that that state no longer enjoys a republican form of government. At least not how republicanism is properly understood in this country.

More importantly, we fought a war that pretty much resolved the issue of state’s rights, and afterwords passed an amendment that significantly altered the relationship between the states and the federal government. Whatever the “rights” of the states may have been before the ratification of the 14th Amendment, they were significantly cut back by it’s adoption. So it is pointless to talk about the 10th Amendment in a vacuum as if the 14th Amendment doesn’t exist.

Green closes out with the most important point:

States don’t have rights. Individuals do. It’s time we went about the business of restoring those rights, without alienating a huge constituency which suffered too long without them.

Indeed.

The Conscience Of A Phony Libertarian: Wayne Allyn Root And The Decline Of The Libertarian Party

If the only book on libertarianism that you ever read was Wayne Allyn Root’s The Conscience of a Libertarian, then you’d be compelled to conclude that the most important liberty issues facing America are internet gambling, tax cuts for small businesses, and home schooling. That’s because Root, a former Republican who became the Libertarian Party’s Vice-Presidential nominee in 2008, seems to devote far more space to those policy areas than to others that most libertarians that I know care about, such as civil liberties, the war on drugs,and the national security state. In fact, I think it’s fair to say that Root spends far more time talking about himself, and why only he is capable of making the Libertarian Party competitive, than he does about these issues, or about what it really means to be a libertarian.

That’s understandable, though, because this is quite obviously a campaign book designed to bolster Root’s bid for the 2012 LP Presidential nomination, and because Root is not much of a libertarian.

Like many Republicans, conservatives, and “Constitutionalists,” Root blindly worships the Constitution to the point where “state’s rights” take on more importance than individual liberty. For example, he suggests early on at page 18 (in my copy at least) that individual states should have the “right” to decide issues like abortion, gay marriage, stem cell research, online gaming, assisted suicide, and drug use. This may be a perfectly correct Constitutional position, it is not, however, a libertarian position. To a libertarian, state interference in an individual’s life is wrong whether it happens at the federal, state, or local level, and a law saying that someone can’t ingest a certain substance is wrong regardless of whether or not the Tenth Amendment authorizes it.

Another example occurs on page 75, where he says that the Supreme Court’s decision in Loving v. Virginia, where the Court struck down state laws barring interracial marriages, was the wrong decision. Instead, he says, the Court “should have declared that government had no right to license marriage at all.” I happen to agree with the idea that marriage and the state should be separated, but this reaction to the Loving decision strikes me as bizarre, not the least because the Court never would have done what Root proposes because none of the litigants in the case were asking it to do that. Loving was decided correctly, why is it so hard to say that ?

On page 222, Root demonstrates yet another deviation from libertarianism when he discusses immigration and says; “We must secure our borders and bring illegal immigration to a screeching halt. How? By protecting our borders with all those troops we will bring home from … around the globe.” Militarizing the border ? Hardly a libertarian position, but definately a Republican one.

On page 257, he endorses the debunked claims of the anti-vaccination crowd: “I believe that our national epidemic of autism and ADHD has a definite connection to the large-scale vaccinations required of our young children.” There is, of course, no evidence to support this claim but I suppose that if Root were the nominee in 2012 the LP would get Jenny McCarthy’s vote. This is a minor issue, and not really “libertarian,” but the last thing the LP needs to do is associate with someone who believes in pseudo-science.

The final strange passage that I’ll reference here is on page 29, where Root discusses his reasons for leaving the Republican Party (mostly because they wanted to ban online poker), and says, “nothing made my decision clearer than the morning of October 19, 2008, when I heard the remarkable announcement that General Colin Powell was endorsing Barack Obama for President of the United States… I was finally completely at peace with my decision to leave the Republican Party…” This was nearly five months after he had been nominated to run on the Libertarian ticket; had not made his mind up about the GOP at that point ?

After reading this book, and based on my previous experiences of watching Root during his various appearances on cable television, I am left with the over all impression of someone who is a cross between a televangelist and a used car salesman. The one thing that he seemed most concerned with is his own self-promotion, and I question his commitment to the ideas of the party that he proposes to represent.  I will give Root credit for being energetic, but libertarian he’s not.

Contra Rand Paul: The Libertarian And Constitutional Case For The Civil Rights Act Of 1964

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Made by several of the most prominent libertarian scholars out there:

“I think Rand Paul is wrong about the Civil Rights Act,” libertarian Cato Institute scholar Brink Lindsey wrote in an e-mail. “As a general matter, people should be free to deal or not deal with others as they choose. And that means we discriminate against those we choose not to deal with. In marrying one person, we discriminate against all others. Businesses can discriminate against potential employees who don’t meet hiring qualifications, and they can discriminate against potential customers who don’t observe a dress code (no shirt, no shoes, no service). Rand Paul is appealing to the general principle of freedom of association, and that general principle is a good one.

“But it has exceptions. In particular, after three-plus centuries of slavery and another century of institutionalized, state-sponsored racism (which included state toleration of private racist violence), the exclusion of blacks from public accommodations wasn’t just a series of uncoordinated private decisions by individuals exercising their freedom of association. It was part and parcel of an overall social system of racial oppression,” Lindsey said.

“Paul’s grievous error is to ignore the larger context in which individual private decisions to exclude blacks were made. In my view, at least, truly individual, idiosyncratic discrimination ought to be legally permitted; for example, the “Soup Nazi” from Seinfeld ought to be free to deny soup to anybody no matter how crazy his reasons (they didn’t ask nicely, they mispronounced the soup, etc.). But the exclusion of blacks from public accommodations wasn’t like that — not even close.”

“To be against Title II in 1964 would be to be brain-dead to the underlying realities of how this world works,” said professor Richard Epstein of the University of Chicago. “In 1964, every major public accommodation that operated a nationwide business was in favor of being forced to admit minorities.” National chains, he explained, feared desegregating in the South without the backing of the federal government because they feared boycotts, retribution and outright violence.

The problem with the Civil Rights Act, Epstein explained, is “when you say, this is such a wonderful idea, let’s carry it over to disability. At this point, you create nightmares of the first order” in terms of problematic government bureaucracies and baseless lawsuits.

“We have to start with some historical context,” e-mailed George Mason Law professor David Bernstein, who is also a blogger at The Volokh Conspiracy. “If segregation and discrimination in the Jim Crow South was simply a matter of law, federal legislation that would have overturned Jim Crow laws would have sufficed. But, in fact, it involved the equivalent of a white supremacist cartel, enforced not just by overt government regulation like segregation laws, but also by the implicit threat of private violence and harassment of anyone who challenged the racist status quo.”

“Therefore, to break the Jim Crow cartel, there were only two options: (1) a federal law invalidating Jim Crow laws, along with a massive federal takeover of local government by the federal government to prevent violence and extralegal harassment of those who chose to integrate; or (2) a federal law banning discrimination by private parties, so that violence and harassment would generally be pointless. If, like me, you believe that it was morally essential to break the Jim Crow cartel, option 2 was the lesser of two evils. I therefore would have voted for the 1964 Civil Rights Act,” Bernstein concluded.

As I’ve been thinking about this issue since yesterday, I think this is about where I stand on this issue. I stand by what I said when this controversy first broke in that I believe, at least in the abstract, that people should be free to do business or not do business with whoever they want, for whatever reason they want. Additionally, I’m entirely uncomfortable with the tortured reasoning in Heart of Atlanta Motel v. United States and Katzenbach v. McClung, where the Commerce Clause was twisted beyond all rational meaning to justify Title II of the Act.

Instead of engaging in intellectual jujitsu, and doing several harm to concepts such as Federalism and limited government in the process, however, the Supreme Court did have another option; they could have revisited the horribly mistaken decision in The Slaughterhouse Cases:

When it was ratified in 1868, the 14th Amendment added several revolutionary new provisions to the Constitution, barring states from violating the “privileges or immunities” of citizens, or taking anyone’s life, liberty or property without “due process of law,” or depriving people of the “equal protection of the laws.” But the first time it heard a case under that amendment — in the 1873 Slaughterhouse Cases — the Supreme Court basically erased the privileges or immunities clause, dramatically limiting the way the federal government would protect people against wrongful acts by state officials.

That case began when Louisiana passed a law forbidding butchers from slaughtering cattle anywhere in New Orleans except a single, privately owned facility. The beef industry was big business in New Orleans, and the new law put hundreds of butchers out of business overnight. The butchers sued, arguing that the law violated their right to earn a living without unreasonable government interference. Judges had recognized that right as far back as 1602, when England’s highest court declared government-created monopolies illegal under the Magna Carta. The right to earn an honest living came to be recognized as one of the fundamental rights — or “privileges and immunities” — in the common law.

Yet in Slaughterhouse, the Court ruled against the butchers, holding, 5-4, that despite the new amendment’s language, federal courts would not guarantee traditional rights against interference by states. With only minor exceptions, the Court declared, those rights were “left to the State governments for security and protection.”

The decision’s ramifications were profound. In the years after the Civil War, Americans — particularly in the South — needed protection against abusive state legislatures. That was the protection the privileges or immunities clause promised, and that the Slaughterhouse decision eliminated. During the next decade, federal authorities abandoned Reconstruction efforts to protect former slaves, and black Americans were condemned to another century of segregation and oppression.

Ten years later in The Civil Rights Cases, the Supreme Court invalidated the Civil Rights Act of 1875 which would have essentially accomplished the same thing that Title II of the 1964 Act did eighty-nine years later and in the process essentially gutted another part of the 14th Amendment, the Equal Protection Clause. At that time, the sole dissenter, John Marshall Harlan made a prescient observation:

Today it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time, it may be that some other race will fall under the ban of race discrimination. If the constitutional amendments be enforced according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class with power in the latter to dole out to the former just such privileges as they may choose to grant. The supreme law of the land has decreed that no authority shall be exercised in this country upon the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude. To that decree — for the due enforcement of which, by appropriate legislation, Congress has been invested with express power — everyone must bow, whatever may have been, or whatever now are, his individual views as to the wisdom or policy either of the recent changes in the fundamental law or of the legislation which has been enacted to give them effect.

But for a different outcome in The Slaughterhouse Cases and The Civil Rights Cases, the entire system of mandated racial segregation known as Jim Crow would have been under direct legal assault at the time of it’s birth.

It’s also worth noting that Plessy v. Ferguson involved a Louisiana law that was designed to prevent the Pullman Company from offering equal seating options to blacks. That, in fact, was the entire purpose of Jim Crow laws. Even if, for example, the Woolworth’s in Greensboro, North Carolina had wanted to serve the four black college students who sat down at their lunch counter on February 1, 1960, the laws in place at the time told them that they couldn’t. Racial segregation in the South wasn’t a product of the free market, it was the product of a state imposing racial prejudices under the threat of criminal prosecution. For that reason alone, it was a violation of the 14th Amendment and the Federal Government was entirely justified in trying to bring it down.

Now, none of this means that racism didn’t exist in the South. Obviously it did, otherwise Jim Crow never would have been imposed in the first place. However, by passing these laws it’s fairly clear what that the intent of the Southern legislatures was to prevent the newly freed blacks from participating in the economic life of the South by denying them access to jobs, business opportunities, and trade while at the same time denying them access to the polls so that they wouldn’t be able to have their voice heard at the state capital. At the same time, it prevented other whites, as well as businesses from other parts of the country, from any efforts to break down the walls of segregation.

Even though the arguments that were used to justify the Constitutionality of the Act involved tortured reasoning under the Commerce Clause, the results would have been the same had the Supreme Court not so blatantly ignored the plain intent of the 14th Amendment so many years ago. So, yes, I think that Rand Paul’s criticisms of Title II are correct in some sense, and that the question of how far government should be permitted to regulate private affairs is an issue that needs to be debated more closely. That said, it’s fairly clear that the Civil Rights Act of 1964 was proper, and that it’s long past time that the Privileges and Immunities Clause was given it’s full force and effect.

Originally posted at Below The Beltway

William F. Buckley, Jr. Would Be Proud

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William F. Buckley Jr. is famous for once having said:

“I am obliged to confess I should sooner live in a society governed by the first two thousand names in the Boston telephone directory than in a society governed by the two thousand faculty members of Harvard University.”

If he were still around today, I’m sure he’d get some enjoyment out of the fact that a plurality of Americans agree with him:

Tuesday’s primaries were more proof of the anti-incumbency mood felt in many parts of the nation, and a new Rasmussen Reports poll finds that many voters continue to feel a randomly selected sample of people from the phone book could do a better job than their elected representatives in Congress.

The latest national telephone survey of Likely Voters finds that 41% say a group of people selected at random from the phone book would do a better job addressing the nation’s problems than the current Congress. Almost as many (38%) disagree, however, and another 20% are undecided.

These findings show little change from early January and early September 2009. However, the number of voters who feel a random selection could do better is up eight points from early
October 2008
, just before the presidential election.

Honestly, it couldn’t be any worse, could it ?

Rand Paul Wins Kentucky Republican Senate Primary

The votes are still being counted, but so far it looks like Rand Paul’s margin of victory will be huge:

WASHINGTON — Political novice Rand Paul rode support from tea party activists to victory in Kentucky’s Republican Senate primary Tuesday night, delivering a jolt to the GOP establishment and providing fresh evidence of widespread voter discontent in a turbulent midterm election season.

Paul had 59 percent of the vote — with returns counted from 29 percent of the precincts — to 37 percent for Secretary of State Trey Grayson, who had been recruited to run by the state’s dominant Republican, U.S. Senate Minority Leader Mitch McConnell.

Congratulations Rand !

Wayne Allyn Root Backtracks On Participating In Birther “Trial” Of President Obama

As I noted on Sunday, Wayne Allyn Root had announced his participation in a “trial” of President Obama led by Rev. James Manning, a noted birther and virulent Obama critic. Late yesterday, Root issued a statement saying that he had decided not to participate in the event:

I had a chance today for the first time to read about the highlights of the first day of the “Obama trial.” I found myself uncomfortable being involved or associated in any way with the wild charges, claims and conspiracy theories that have been publicly aired by this mock trial. I believe these wild charges and claims actually damage any future legitimate opportunity to question President Obama’s background. This forum has an agenda and I have come to the conclusion it is not my agenda. I called Pastor Manning personally this morning to explain why I’ve decided not to participate. He understood completely. We wished each other well.

I believe any association with this trial would discredit the opportunity to have a fair, open and balanced discussion or debate in the future. I want to be part of any such future opportunity. I have much to say about President Obama, and many questions about his past and present actions, but I’m more comfortable airing them in a mainstream media forum. More importantly, I’d rather spend my time discussing, debating and questioning Mr. Obama’s current policies that I believe are toxic to America, the U.S. economy and capitalism, than spending my time debating his past. I’d rather spend my valuable time in the media on educating voters about the dramatic expansion of government under Obama; the nonstop violations of the Constitution; the deadly expansion of deficit and national debt; the political payoffs disguised as stimulus and bailouts; the lack of transparency of this administration; Obama’s pro union agenda at all costs- no matter what damage is done to the economy. All of these are far more important to America’s future than Obama’s past. We cannot change the past, but we can change the future direction of this country away from Obama’s dangerous agenda- if we are not distracted by wild claims and conspiracy theories.

I’ve got to agree with Jason Pye, that this sounds mostly like Root got caught doing something stupid and is now trying to backtrack like a kid caught with his hand in the cookie jar.

Jason also makes another point:

The Libertarian Party at the national level is broken. It has been for some time. Whenever we gain a sliver of success we tend to do something in another area that messes it up.

Jason has a lot more experience with internal LP politics than I do, but he’s absolutely right, and it’s something I’ve seen for years now, and it really started with the internal squabbling that erupted after the 1980 Presidential campaign, which still stands as the high watermark for Libertarian candidates nationally.

It seems pretty clear to me that Root, who seems more interested in self-promotion than much of anything else based on my observations of the man, would represent another one of those mistakes.

Originally posted at Below The Beltway

Rand Paul’s Kentucky Tea Party

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Of all the races that will come to an end to tomorrow night, the one that may be the most interesting is the Republican Senate Primary in Kentucky, where the race has essentially become a proxy for the battle between the Establishment GOP and the Tea Party Movement:

FLORENCE, Ky. — Rand Paul grabbed a microphone, climbed onto a short brick wall and told a gathering crowd of supporters to brace for an Election Day uprising on Tuesday.

“There’s a Tea Party tidal wave coming. It’s already hit Utah and it’s coming to Kentucky,” Mr. Paul said, delivering a confident pep talk here in the closing hours of the Republican primary for a United States Senate seat. “The day of reckoning is coming. We cannot elect the same old politicians without getting the same old mess.”

If his confidence is borne out by victory, it would mark one of the most important moments yet for the Tea Party, the anti-Washington, anti-big government movement that was partially inspired by the quixotic 2008 presidential race of his father, Representative Ron Paul of Texas.

Establishment Republicans — including Senator Mitch McConnell of Kentucky, the minority leader, former Vice President Dick Cheney and the Chamber of Commerce — have united in opposition to Mr. Paul, but optimism was diminishing that their candidate, Trey Grayson, could prevail.

The Paul-Grayson race has been fairly interesting to watch, if only because of the manner in which it’s laid bare the differences between the establishment GOP and the Tea Parties. Grayson, Kentucky’s Secretary of State and a long-time Republican activist, has received support from Washington Republicans like Dick Cheney and Mitch McConnell. On the other hand Rand Paul, a Lexington, KY eye surgeon who’s main involvement in politics prior to today was during his father’s campaigns, has garnered the support of Senators Jim DeMint and the retiring Jim Bunning. Most recently, Focus on the Family founder James Dobson took the unusual step of switching his endorsement from Grayson to Paul after revealing that an unnamed party, later identified as Mitch McConnell, had been misleading Dobson about Paul’s views on abortion.

Despite the establishment attacks, Paul has maintained a consistent lead in the polls, and, based on where the race stands with one last day of campaigning to go, looks poised to score a decisive victory tomorrow night. Trey Greyson, meanwhile, has taken the rather unusual (for a Republican at least) step of attacking Fox News in the final hours of the campaign:

By frequently putting Rand Paul, the son of Ron Paul and Grayson’s opponent, on its air, Grayson says the network has all but endorsed Paul and given him an easy way to tout his candidacy without actually meeting Kentucky voters in person.

“I’ve been on Fox News once, on a live feed on one of the shows, and I was told I was to expect a certain line of questioning, and I was given a different line of questioning,” Grayson said. Referring to Rand Paul, Grayson said, “He’s on all of the time.”

“His dad had these phenomenal contacts, so … he’s on Fox News every couple of weeks with softballs,” said Grayson. Imitating an anchor’s voice, Grayson said the questions are softballs such as, “Rand, tell us about health care, you’re a doctor. Rand, tell us about the tea party.”

When a politician starts saying things like that, especially when there are only a few hours to go before voting starts, you can pretty much conclude that they’ve seen the last of the internal polls and they’re pretty sure they’re going to lose.

As for Paul himself, we’re likely to be hearing much more from him after Tuesday night. There’s still a General Election campaign to get through in November, of course, but the odds of a Republican losing in statewide race Kentucky in a year that seems destined to be good for Republicans in general seem pretty darn low to say the least. In the meantime, other Republicans might be interesting in figuring out how he’s accomplished the seeming impossible:

The political genius of Paul is his ability to cultivate a narrative that speaks to all strains of the Tea Party movement at once. After all, the libertarian purists who loved Ron Paul’s dissident truth-telling are not natural allies of the Limbaugh Dittoheads who dismissed him as an eccentric. He sings his libertarianism in the key of Glenn Beck – and he is writing a Republican playbook for the tea party era, turning grassroots energy into electoral power. Now, less than a week before the primary, polls show Paul’s lead over Grayson approaching 20 points. He also leads both of his potential Democratic challengers in the general election polling

It’s the kind of fusion that Republicans in other states will need to create if they’re going to prevail as well, and it all started in Kentucky.

Wayne Allyn Root Is Poison For The Libertarian Party

Wayne Allyn Root, the businessman and online gambling advocate who served as Bob Barr’s running mate on the Libertarian ticket in 2008, is casting his lot in with the birthers. As Radley Balko reports, Root promotes on his Facebook page his participation in a “trial of Barack Obama” that took place last week in New York:

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What’s this trial all about, you might ask. Well, here’s a description:

With thousands of spectators expecting to attend, Dr. James Manning’s ‘trial of the century’ of Barack Obama on charges of treason, fraud, and sedition begins tomorrow morning at 9 AM in New York City. Co-defendants in the trial are Columbia University and the CIA. In the last days of the run-up to the trial, Manning revealed that he has sources in government that will testify against Obama, Columbia, and the CIA. He also reported explosive information that Barack Obama has used upwards of 20 different Social Security numbers during his life. Witnesses are expected to testify at the trial that Barack Obama was never a student at Columbia University, although he received a degree from the school. Dr. Manning claims that Columbia, therefore, is an accomplice to fraud. Other witnesses are expected to testify that Obama fails the Constitutional test for Presidential eligibility due to the fact that his father was a British subject at the time of his birth and his mother was not old enough to confer citizenship when he was born. A dramatic new revelation, however, may serve to re-emphasize the importance of the trial. The state of Hawaii, according to sources, did NOT accept his birth registration that was filed, despite issuing a ‘statement of live birth.’

This is the same James Manning who became famous last year when he started referring to President Obama as a “long legged mack daddy” and who joined Birther Queen Bee Orly Taitz last year at a protest that nobody attended against Fox News for “covering up” the birther story. Root hasn’t said anything one way or the other about the birth certificate issue that I’ve been able to find, but he does seem to buy at least part of the argument:

FireShot Pro capture #267 - 'Facebook I Wayne Allyn Root' - www_facebook_com_profile_php_id=1162754668

Of course, the possibility that Root and Obama may have traveled in different circles at Columbia, a school that had thousands of undergraduates at the time, does not seem to have occurred to Wayne at all, since he’s expressed this belief before. Why is this important ? Well, this year, Root is running for Chairman of the Libertarian National Committee, and he’s made it clear that this is merely a stepping stone to the 2012 nomination for President. Based on stuff like this, and the impression I got from reading Root’s The Conscience of a Libertarian, which I will be posting a review of in the very near future, I’ve got to completely agree with Radley Balko’s take on this:

I’m not a member of the Libertarian Party, though I’ve spoken to several state conventions over the last couple years. I have my problems with the party, but I’d like to see it do well, in part because for better or worse the LP has a significant impact on how people view libertarianism.

So let’s be clear about this: If Wayne Allyn Root becomes the face of the LP, it will be an unmitigated disaster for the party. It will also likely do quite a bit of damage to the public perception of libertarianism as a philosophy.

This is batshit crazy, off-the-charts conspiratorial hogwash. There are plenty of legitimate reasons to criticize Barack Obama. Root has chosen to dip into angry-white-guy, “Obama’s a secret Muslim” absolute and utter lunacy.

Libertarians: The man is a nut. Associate with him at your peril.

Indeed.

Originally posted at Below The Beltway

Ohio Police Officer Found Guilty In Shooting Of Unarmed Cyclist

Yesterday, an Ohio jury found a local police officer guilty in the shooting of an unarmed motorcyclist:

TOLEDO, OHIO — A Lucas County jury has found an Ottawa Hills police officer guilty of felonious assault in the May 2009 shooting of a motorcyclist.

After over five hours of deliberations, a jury found that part-time Ottawa Hills officer Thomas Caine White, 27, used excessive force in shooting motorcyclist Michael McCloskey, 25, during a traffic stop on May 23, 2009. White was found guilty of count of felonious assault with a gun specification, charges that could lead to 11 years in prison when he is sentenced.

McCloskey suffered serious injuries as a result of the shooting. He is now paralyzed from the waist down.

Attorneys for each side made closing arguments Friday afternoon.

The prosecution emphasized that this trial was not about all police officers or a specific police department but about the actions of Officer White that night.

Assistant Lucas County Prosecutor Jeff Lingo told the court that slides of the police dash cam video show McCloskey made no movement as if he had a weapon and the he gave no indication of being a threat to White. “He says, ‘Will you please lift the bike off me?’ This is after he’s been shot. He’s still being police to the officer who just shot him in the back. That’s the Mike McCloskey that he faced that night,” said Lingo

Here’s a video from White’s dashboard camera (no sound) which clearly shows the pursuit and shooting of McCloskey, and the fact that McCloskey made no threatening moves at all:

As noted above, Officer White faces up to eleven years in prison for this conviction.

Elena Kagan And The Second Amendment

Today’s controversy burning up Memeorandum is a revelation concerning Supreme Court nominee Elena Kagan’s previously expressed views on the Second Amendment:

May 13 (Bloomberg) — Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.

Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man’s appeal.

The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”

The law in question, of course, were the same firearms law that were at issue some 21 years later in District of Columbia v. Heller, which the Supreme Court ultimately struck down in what was actually the first explicit ruling on its part that the Second Amendment protected an individual right to keep and bear arms.

But, in 1987, a similar challenge to the same law suffered a much different fate:

The lower court ruling in the 1987 case, issued by the District of Columbia’s highest court, said the Second Amendment protects only the rights of states to raise militias, and not individual gun rights. The ruling upheld Lee Sandidge’s conviction for carrying a pistol without a license, possession of an unregistered firearm and unlawful possession of ammunition.

The high court refused to hear the case, known as Sandidge v. United States. The memo to Marshall, found in his papers at the Library of Congress, includes a handwritten “D,” indicating that he was among those who voted to deny review.

White House spokesman Ben LaBolt said the position taken in the memo to Marshall reflected the prevailing view of the law at the time.

That is, of course, absolutely correct. Prior to Heller, the Supreme Court’s Second Amendment, though slim, was decidedly against the idea that the amendment protected an individual surprise. Thus, it’s not all that surprising to me as an attorney that a 27 year-old law clerk working for one of the most liberal Justices on the Court at the time would produce a memo arguing that the appeal should be denied.

The question, then, isn’t what Kagan thought twenty years ago when the law was different, but what she thinks now, and she gave at least some clue to that during her confirmation hearings to become Solicitor General:

As a nominee to be solicitor general last year, Kagan told lawmakers that she accepted that 5-4 decision in District of Columbia v. Heller as a precedent of the court.

“There is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation,” she said.

Kagan should clearly be questioned on her views about the Second Amendment and the Heller decision, but rather than focusing on something she wrote 20 years ago, I would hope that the Senators focus on what she believes today.

H/T: Vodkapundit

Gay Marriage, Religious Liberty, And The Case Of One 8 Year-Old Boy

The latest battleground in the ongoing debate over gay marriage and religious liberty is taking place in Massachusetts:

BOSTON (AP) — A Roman Catholic school in Massachusetts has withdrawn its acceptance of an 8-year-old boy with lesbian parents, saying their relationship was “in discord” with church teachings, according to one of the boys’ mothers.

It’s at least the second time in recent months that students have not been allowed to attend a U.S. Catholic school because of their parents’ sexual orientation, with the other instance occurring in Colorado.

The Massachusetts woman, who spoke on condition of anonymity because of concerns about the effect of publicity on her son, said she planned to send the boy to third grade at St. Paul Elementary School in Hingham in the fall. But she said she learned her son’s acceptance was rescinded during a conference call Monday with Principal Cynthia Duggan and the parish priest, the Rev. James Rafferty.

“I’m accustomed to discrimination, I suppose, at my age and my experience as a gay woman,” the mother said. “But I didn’t expect it against my child.”

Rafferty said her relationship “was in discord with the teachings of the Catholic Church,” which holds marriage is only between a man and woman, the woman said.

She said Duggan told her teachers wouldn’t be prepared to answer questions her son might have because the school’s teachings about marriage conflict with what he sees in his family.

Rafferty and Duggan did not respond to requests for comment.

It’s unfortunately that the Church is choosing to deprive this young boy of the benefits of a Catholic education because of the lifestyle of his parents, but this strikes me as one area where the rights of the Church should trump the rights of the parents, or the child.

In an ideal libertarian world, of course, there would be no laws barring discrimination in private institutions at all. If a business owner wished to refuse service to anyone for any reason. We don’t live in that world, of course, thanks largely to the a history where the power of the state was used to enforce strict racial segregation that was designed to prevent any entire group of people from succeeding economically. That’s no reason, however, to involve the government even more in private decisions like this.

If the Church feels that it would be in appropriate to admit a student with Lesbian parents, it should be free to make that decision.

Eliminate The Liability Cap For Offshore Drilling

Commenting on the efforts in Congress to increase the statutory liability cap that oil companies enjoy for damages caused by offshore drilling accidents, John Cole makes this point:

Here’s a revolutionary idea- why don’t we get rid of the limit altogether! If BP or Exxon cuts corners and makes a hash of things, and they cause 60 billion dollars worth of damage, they are on the hook for the whole 60 billion dollars! And if they can’t pay for the whole bill, the company is liquidated, the shareholders get wiped out, and the company ceases to exist.

Why don’t we give that a shot? And don’t tell me it is because no one will then undertake oil drilling. Of course they will! They’ll just pass on the costs to the consumer. And should being really careful and safe cost too much money, then it might just make other forms of energy look cheaper by comparison, and spur investment in those energy types.

So how about it? No more immunity, no more corporate welfare, no more subsidizing industries that don’t even pay a damned penny in taxes in the US anymore.

Cole is coming at this from the left, but I think he’s absolutely right from a free-market perspective.

If a company causes damages to others as a result of their activities — and in the case of something like offshore oil drilling the question of negligence wouldn’t even be an issue because of the inherently dangerous nature of the activity — why should their liability for those damages be capped in any amount ? And how can we really say that we’ve factored in all the costs of any activity when the consequences of the damages it might cause are shielded ?

Lift the cap, make BP pay.

Supreme Court To Decide If California Can Ban Sale Of “Violent” Video Games To Minors

Last year, the Ninth Circuit Court of Appeals struck down a California law that made it illegal to sell “violent” video games to minors. Today, the Supreme Court agreed to hear the State of California’s appeal in that case:

WASHINGTON (AP) — The Supreme Court will decide whether free speech rights are more important than helping parents keep violent material away from children.

The justices agreed Monday to consider reinstating California’s ban on the sale or rental of violent video games to minors, a law the 9th U.S. Circuit Court of Appeals in San Francisco threw out last year on grounds that it violated minors’ constitutional rights.

California Gov. Arnold Schwarzenegger, who signed the law in 2005, said he was pleased the high court would review the appeals court decision. He said, ”We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions, just as we already do with movies.”

However, the judge who wrote the decision overturning the law said at the time that there was no research showing a connection between violent video games and psychological harm to young people.

The Supreme Court’s decision to hear the case comes only a week after the high court voted overwhelmingly to strike down a federal law banning videos showing animal cruelty. The California case poses similar free speech concerns, although the state law is aimed at protecting children, raising an additional issue

Yes, yes, it’s a familiar argument:

Of course, there already is someone thinking of the children, their parents:

Video games already are labeled with a rating system that lets parents decide what games their children can purchase and play.

Isn’t this a job for the parents, not the state ?

Given the lopsided outcome in the animal cruelty case, it seems that the law would have an uphill battle before the Justices, although its proponents don’t seem to think so:

Leland Yee, the California state senator who wrote the video game ban, said the Supreme Court obviously doesn’t think the animal cruelty video ban and the violent video game ban are comparable. If the justices thought that, he said, they would not be reviewing the 9th Circuit’s decision to throw out the video game ban.

”Clearly, the justices want to look specifically at our narrowly tailored law that simply limits sales of ultra-violent games to kids without prohibiting speech,” said Yee, a San Francisco Democrat.

Maybe, maybe not. Since it only takes four justices to agree to hear a case, that one fact is no indication of how the Court might rule on a case.

Personally, I am hoping they vote to sustain the 9th Circuit’s ruling.

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