Author Archives: Doug Mataconis

A Modest Proposal For Immigration Reform

Via Twitter, I came up this 2007 Examiner article by Dan Riehl of Riehl World View that offers what seems like the beginning of a way out of what has been little more than three year long shouting match over the subject of immigration, illegal immigrants, and immigration reform:

As with current and past generations, future generations will comprise peoples from all over the globe. But there must be a traditional America to which they can emigrate, or we risk becoming more a reflection of various other nations, than one nation indivisible with liberty and justice for all.

Shoring up our borders, along with our institutions, is a good start, as is the enforcing of current immigration law as written. But then we should also allow for some compromise on decent, hard-working individuals who, while perhaps entering illegally, have honestly contributed to America in the best of ways.

As Americans, we’ve significantly benefited from their labors, whether we like to admit it, or not. And having secured said benefits through lower costs in goods and services, it would be hypocritical to turn our backs on them now.

That looks like a reasonable compromise from here.

And from here, too.

There are really too two different issues at play in the immigration debate, but they’ve become tangled together so much that it’s become impossible to have a reasonable discussion about the issue.

On the one hand, we’ve got the issue of border security. Even before September 11th, the idea that our southern and northern borders, along with the ports and the airports, should be secure was something that should have been self-evident. After 9/11, it’s a matter of national security. The idea that someone could walk across the border virtually undetected is something that everyone should be concerned about.

The other issue, though, is the fact that America has always been a nation of immigrants, and that immigration has, despite the social disruption it often causes when first-generation immigrants struggle, been a net-plus for our country socially and economically. Yes, there have always been those who have wanted to shut the door to immigrants, but the truth of the matter is that most of the things being said about immigrants from the south today were being said in the past about immigrants from Eastern Europe, Italy, Germany, and Ireland. Like those earlier immigrants, though, most of the people who come here do so to make a better life for themselves and their families, and that’s something we should welcome, not condemn.

Brad Warbiany, one of the co-bloggers at The Liberty Papers, summed it up quite well more than four years ago:

In all situations, the rationale is the same. We got ours, and now we’ll stop you from getting yours. I can’t live with that. By most accounts, I’m pretty privileged. I’m not the son of rich parents by American standards, but by world standards, I grew up in luxury. I was lucky enough to be born in America, and even luckier to be born to educated parents and live in a highly-regarded school district. But does that give me any more right to the American Dream than Francisco Patino? Does it give a Warbiany any more right to the American Dream than a Hernandez? Of course not.

Last, we do still have the security issue. But liberal immigration policies and secure borders are not mutually exclusive. We can secure the borders and still find to keep tabs on who is coming into this country and how. Perhaps that’s a guest worker program, perhaps that’s a new take on our INS and its goals. That may include a combination of things, with a guest worker program combined with restricted social services for a worker’s family. Either way, the nuts and bolts aren’t insurmountable. If we focused half the energy we spend screwing around with the tax code for special interests on developing coherent immigration and security policies, we could get it done and still have secure borders.

Immigration is a thorny issue. But when we stand around and say “we don’t want you here”, I have to break ranks. When they say “these immigrants are damaging our economy”, I have to break ranks. I don’t have all the answers as to how to fix the problem, but I know that I refuse to close our country to people who want to live the American Dream. We have to enforce our laws, but when our laws are contrary to the very fabric of America, those laws need to change.

So where does that leave us ?

Well, let me suggest these starting points:

  1. Secure the borders — From a national security perspective, this seems essential. We don’t need to put an Army on the border, and we sure as heck don’t need to build the Rio Grande Wall. But, there’s no reason we can’t develop a system of monitoring stations and drones to make sure that people aren’t slipping across the border, no matter what the reason.
  2. Commit a serious crime, get deported — Whether you’re here legally or illegally, if you break the law in such a way that you’re a threat to the rest of us, you’ve just lost permission to stay. You’ll serve your sentence in one of our comfortable prisons, but once it’s over, you’re going home. By “serious crime,” I mean any crime of violence; I don’t think we need to be deporting people who run a red light, or pass a bad check or two.
  3. Forget about deporting the peaceful “illegal” immigrants — Call it “amnesty” if you want, but the fact of the matter is that we’re never going to be able to deport everyone who’s here illegally. For one thing, some of them are married to, or parents of, people who are here legally, and breaking up families is not something Americans do. For another, if someone is here working an honest living then they need to be encouraged to come out of the underground economy, not scared into thinking that ICE could be knocking on their door at any moment.
  4. Make it easier to come here legally — Current American immigration law places absurdly low limits on the number of people who can come here legally, and places even more absurd quotas on how many people can come from specific countries. Additionally, the law makes it harder for someone who to come here and start a business to immigrate than it does for someone who just happens to be related to someone who’s already here legally. We should liberalize immigration procedures generally and, more specifically, make it easier for people from Mexico and Central America to come here as temporary workers. That alone would have a significant impact on illegal immigration.

Anyway, that’s just off the top of my head. It requires compromise on both sides.

Which, of course, means that it’s a non-starter in modern America.

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Ron Paul And Rudy Giuliani Still Sparring Over 9/11

In one of the early Republican debates in the 2008 election cycle, Ron Paul and Rudy Giuliani sparred over the September 11th attacks and the role that U.S. foreign policy choices may have played in inciting the attacks:

On Iraq, Rep. Ron Paul of Texas, the Libertarian candidate for president in 1988, stood alone in railing against the decision to go to war, comparing it to a quagmire he said engulfed U.S. troops in Vietnam a generation ago. “We don’t go to war like we did in Vietnam and Korea, because the wars never end,” he said.

When Paul later suggested that terrorists attacked on Sept. 11, 2001, because of what he described as America’s 10-year campaign of bombing in Iraq, an angry Giuliani demanded that he retract the statement.

“I don’t think I’ve ever heard that before, and I’ve heard some pretty absurd explanations for September 11,” Giuliani said.

Paul refused to give in, saying that terrorists react to the United States’ actions in the world. “If we ignore that, we ignore that at our risk,” Paul said.

Here’s video of that exchange from nearly three years ago:

That Giuliani-Paul exchange figured prominently in an ad that Trey Grayson ran several weeks ago in an effort to paint Rand Paul as a 9/11 truther.

Now, the battle has been joined again.

Today, Giuliani endorsed Trey Grayson, and issued this statement:

“Trey Grayson is the candidate in this race who will make the right decisions necessary to keep America safe and prevent more attacks on our homeland. He is not part of the ‘blame America first’ crowd that wants to bestow the rights of U.S. citizens on terrorists and point fingers at America for somehow causing 9/11,” Giuliani said.

He continued, “Kentucky needs a Senator who understands the threat posed by our enemies abroad. I witnessed firsthand the destruction and loss of life our enemies can cause. Like me, Trey Grayson knows we must stay on offense against terrorism, and he supports using all the essential tools we have in that fight, including monitoring the conversations and activities of suspected foreign terrorists as allowed by the Patriot Act. He is a fresh face that Republicans can trust to best represent their values – both on national security and fiscal responsibility – in Washington. Kentuckians could not elect a better Senator than Trey Grayson.”

Congressman Paul responded with a statement of his own:

The Neo-Con establishment is pulling out all the stops to beat Rand.

First, Dick Cheney endorsed his opponent. Next, Rick Santorum. And today, Mr. Big Government Republican himself is slithering into the race.

That’s right. Rudy Giuliani has stuck his beak into Rand’s race, endorsing his opponent and blaming Rand for being part of the “blame America” crowd. Disgusting.

Especially since Giuiliani is still committing the same willful distortion that he was guilty of three years ago:

Did Paul really say that American foreign policy was to blame for 9/11 ? Personally, I don’t think so. What he said was that American foreign policy was a contributing factor to the formation of the forces that now seek to destroy us.

And Andrew Sullivan contends that Giuliani openly lied about what Paul said:

Giuliani, interestingly, openly lied about Ron Paul’s position on 9/11. Paul specifically did not make a statement, as Giuliani immediately claimed, that the U.S. invited 9/11. I rewound to double-check. It was the Fox questioner who ratcheted up the stakes on that question, not Paul. Paul demurred on a specific answer and switched the question to the general issue of blowback. As to who’s right, the answer is both. Bin Laden – still at large and operating within the territory of Pakistan, an alleged ally which Cheney recently visited – both justified the 9/11 attack on those grounds but has a theology that doesn’t require such a casus belli. But now he doesn’t even need the theology. We have, alas, made more terrorists by our bungling in Iraq than Bin Laden could have dreamed of just six years ago.

That, I think, is the point that Congressman Paul, somewhat inarticulately, was making last night. American intervention and adventure-ism in the Middle East, which has been marked mostly by a history of bungling and backing the wrong guy 9 times out of 10, has helped guys like bin Laden recruit from among the Arab masses.

Another Rudy-Ron battle ?

I know who I’m putting my money on.

Video Captures Campus Police Beating University Of Maryland Student

It’s always a raucous time on the University of Maryland campus in College Park, Maryland after a basketball game, especially after a game against the Terrapins long-time ACC rival Duke, and March 5th was no exception as about 28 students ended up getting arrested for rowdy behavior and public intoxication. In turns out, though, that it was U of Md campus police who really got out of control:

Prince George’s prosecutors have begun a criminal investigation of three county police officers who beat an unarmed University of Maryland student with their batons after a basketball game last month in an incident that was caught on video and surfaced publicly Monday, authorities said.

County police also ordered an internal affairs investigation of the three officers, Maj. Andy Ellis said. Ellis said the inquiry would also focus on a county officer who filed official charging documents that are contradicted by the video.

“The video shows the charging documents were nothing more than a cover, a fairy tale they made up to cover for the officers’ misconduct,” said Christopher A. Griffiths, a lawyer for the student. “The video shows gratuitous violence against a defenseless individual.”

Police Chief Roberto L. Hylton said that one of the three officers had been identified and that his police powers have been suspended during the investigation. The other two officers will also be suspended as soon as they are identified, Hylton said.

“I’m outraged and disappointed after viewing the video,” Hylton said. “That’s not the type of professional conduct we promote. Any employee who uses excessive force will be held accountable.”

(…)

The video shows McKenna on the sidewalk as he skips and throws his arms in the air. He stops about five feet from an officer on horseback, the video shows. In the video, McKenna’s arms appear to be in front of him, but he does not appear to touch the officer or the horse. His hands are empty.

McKenna backs up, then two county police riot officers rush toward him from the street, the video shows. The officers slam McKenna against a wall and beat him with their batons. McKenna crumples to the ground.

As McKenna falls, a third county police riot officer strikes his legs and torso with his baton. The video shows the officers striking an unresisting McKenna about the head, torso and legs — more than a dozen blows in all.

Because they are wearing riot gear, the officers who hit McKenna are not easily identifiable.

In the video, county police officers and officers on horseback from the Maryland-National Capital Park Police are seen nearby. They do not intervene in the incident with McKenna. The officers form a line and move toward the students who had been milling about, the video shows, and the students move back.

The video also shows that the charges that were brought against this group of students were nothing more than a charade meant to cover up what is clearly a case of police mis-conduct.

Watch for yourself:

Fortunately for these students, someone was nearby with a video camera to record what really happened. If not for that, they’d be the ones facing charges right now

Happy Birthday, Mr. Jefferson

America’s Third President was born 267 years ago today.

Since there isn’t anything to write about Jefferson that hasn’t already been said, it seems appropriate to let his words speak for themselves from the text of the two written documents that he was most proud of throughout his life.

First, from the Virginia Statute For Religious Freedom:

[Sec. 1] Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards, which proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind; that our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his fellow-citizens he has a natural right; that it tends only to corrupt the principles of that religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it; that though indeed these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:

[Sec. 2] Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.

And secondly, of course, from the Declaration of Independence:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, 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, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security

A perfect man ? No.

A man who saw where the future was going ? Yes, I think absolutely.

Justice Stevens Announces Retirement From Supreme Court

After months of rumors and speculation, Justice John Paul Stevens officially announced today that he is retiring from the Supreme Court:

WASHINGTON — Associate Justice John Paul Stevens, the leader of the liberals on the Supreme Court, announced on Friday that he will retire at the end of this term, setting up a confirmation battle over his replacement that could dominate the political scene this summer.

In a brief letter to President Obama, whom he addressed as “my dear Mr. President,” Justice Stevens said he was announcing his retirement now because he had “concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next term” in October.

The retirement by Justice Stevens, 89, had been widely expected, because he did not hire the usual number of clerks for next year’s term.

The White House has been quietly evaluating potential nominees for months. Among those rumored to be in contention for the nomination are Solicitor General Elena Kagan and several appeals court judges, including Diane Wood and Merrick Garland.

A soft-spoken Republican and former antitrust lawyer from Chicago, Justice Stevens has been the leader of the liberal wing of a court that has become increasingly conservative. He was appointed by President Gerald Ford in December 1975 to succeed Justice William O. Douglas, who had retired the month before. He is the longest-serving current justice by more than a decade.

No doubt the Obama Administration has been considering replacements for Stevens for months now given all the speculation, but it’s worth noting that three weeks elapsed last year between Justice Souter’s retirement announcement and President Obama’s selection of Sonia Sotomayor to replace him. This time around, Obama has even more time to consider the nomination so we may have to wait awhile to see what they do.

As I’ve noted before, Justice Stevens is perhaps the most liberal member of the Court. Given that, it’s unlikely that whoever Obama appoints to replace him will have a significant impact on the ideological balance on the Court, except perhaps in close cases where a particularly persuasive Justice might be able to persuade a swing vote to accept his argument.

Nonetheless, given the political climate, the fact that this is an election year, and the record we already have from the Sotomayor hearings last year, I think we can expect that this while be a very politically charged nomination process. Although I don’t think there’s been a Supreme Court nominee since Bork that wasn’t politically charged.

An Army Of Davids, With Video Cameras

Fox’s Neil Cavuto spoke last week with Adam Sharp, the blogger who posted a video of a Democratic Congressman saying he doesn’t worry about the Constitution:

Sharp is, of course, referring to a book by Instapundit’s Glenn Reynolds titled An Army of Davids: How Markets and Technology Empower Ordinary People to Beat Big Media, Big Government, and Other Goliaths which I reviewed way back in March 2006.

If you haven’t read it, you should.

Update: Brad Warbiany also reviewed An Army of Davids right here at The Liberty Papers, you can read Brad’s review here.

Passage Of ObamaCare Leads People To Line Up For Their “Free” Health Care

This is utterly depressing:

WASHINGTON — Two weeks after President Barack Obama signed the big health care overhaul into law, Americans are struggling to understand how — and when — the sweeping measure will affect them.

Questions reflecting confusion have flooded insurance companies, doctors’ offices, human resources departments and business groups.

They’re saying, ‘Where do we get the free Obama care, and how do I sign up for that?’ ” said Carrie McLean, a licensed agent for eHealthInsurance.com. The California-based company sells coverage from 185 health insurance carriers in 50 states.

Is this what Americans have been reduced to ?

Oh yeah, it is.

Memo To Libertarians: There Was No Golden Age Of Liberty

David Boaz has a great piece over at Reason today on the historical blinders that some libertarians seem to have when looking at America’s past:

When we look at our own country’s history—contrasting 2010 with 1776 or 1910 or 1950 or whatever—the story is less clear. We suffer under a lot of regulations and restrictions that our ancestors didn’t face.

But in 1776 black Americans were held in chattel slavery, and married women had no legal existence except as agents of their husbands. In 1910 and even 1950, blacks still suffered under the legal bonds of Jim Crow—and we all faced confiscatory tax rates throughout the postwar period.

I am particularly struck by libertarians and conservatives who celebrate the freedom of early America, and deplore our decline from those halcyon days, without bothering to mention the existence of slavery. Take R. Emmett Tyrrell, Jr., longtime editor of the American Spectator. In Policy Review (Summer 1987, not online), he wrote:

Let us flee to a favored utopia. For me that would be the late 18th Century but with air conditioning….With both feet firmly planted on the soil of my American domain, and young American flag fluttering above, tobacco in the field, I would relish the freedom.

I take it Mr. Tyrrell dreams of being a slave-owner. Because as he certainly knows, most of the people in those tobacco fields were slaves.

Tyrell isn’t alone in having those dreams of some wonderfully libertarian ante bellum America. There are examples all over libertarianism of those who think that President Lincoln was a tyrant intent on crushing the freedom of the South, or that the Confederacy was fighting for liberty instead of human bondage. Or, just those who believe that the American past was a golden age of liberty when the truth is that it was not:

Has there ever been a golden age of liberty? No, and there never will be. There will always be people who want to live their lives in peace, and there will always be people who want to exploit them or impose their own ideas on others. If we look at the long term—from a past that includes despotism, feudalism, absolutism, fascism, and communism—we’re clearly better off. When we look at our own country’s history—contrasting 2010 with 1776 or 1910 or 1950 or whatever—the story is less clear. We suffer under a lot of regulations and restrictions that our ancestors didn’t face.

But in 1776 black Americans were held in chattel slavery, and married women had no legal existence except as agents of their husbands. In 1910 and even 1950, blacks still suffered under the legal bonds of Jim Crow—and we all faced confiscatory tax rates throughout the postwar period.

In fact, it might even be said that America is more libertarian today than it has been at any point in it’s history:

Compare conditions now to how they were at the outset of the 1960s. Official governmental discrimination against blacks no longer exists. Censorship has beaten a wholesale retreat. The rights of the accused enjoy much better protection. Abortion, birth control, interracial marriage, and gay sex are legal. Divorce laws have been liberalized and rape laws strengthened. Pervasive price and entry controls in the transportation, energy, communications, and financial sectors are gone. Top income tax rates have been slashed. The pretensions of macroeconomic fine-tuning have been abandoned. Barriers to international trade are much lower. Unionization of the private sector work force has collapsed. Of course there are obvious counterexamples, but on the whole it seems clear that cultural expression, personal lifestyle choices, entrepreneurship, and the play of market forces all now enjoy much wider freedom of maneuver.

Does that mean that the infringements of liberty and encroachment of the state that we see today is acceptable ? Of course not, but it does mean that we need to recognize that the idyllic American past never really existed and that the fight for liberty is a fight for the future, not the dead past.

Federal Appeals Court Strikes Major Blow Against Net Neutrality, Major Blow For Economic Freedom

The U.S. Court of Appeals in D.C. today hand a major defeat to the Net Neutrality crowd:

WASHINGTON (AP) — A federal appeals court has ruled that the Federal Communications Commission lacks the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks.

Tuesday’s ruling by the United States Court of Appeals for the District of Columbia is a big victory for the Comcast Corporation, the nation’s largest cable company. It had challenged the F.C.C.’s authority to impose so called “net neutrality” obligations.

The ruling marks a serious setback for the F.C.C., which is trying to officially set net neutrality regulations. The agency chairman Julius Genachowski argues that such rules are needed to prevent phone and cable companies from using their control over Internet access to favor some online content and services over others.

The decision also has implications for the massive national broadband plan released by the F.C.C. last month. The agency needs clear authority to regulate broadband in order to push ahead with some its key recommendations, including a proposal to expand broadband by tapping the federal fund that subsidizes telephone service in poor and rural communities.

The court case centered on Comcast’s challenge of a 2008 F.C.C. order banning the company from blocking its broadband subscribers from using an online file-sharing technology known as BitTorrent.

Melissa Clouthier over at Liberty Pundits sums up quite nicely what this really means:

Basically this means that a company can do business the way it wants to. What different internet providers have been worried about is having the “information spigot” turned off for them. That is, a user or provider who uses huge amounts of bandwidth could be denied, and that could kill business.

So companies like Google and other big providers wanted the courts to say that the FCC could control this and guarantee that everyone has as much bandwidth as they want.

But the court ruled that a company like Comcast has every right to decide what data it carries.

That is exactly how it should be.

In the case that was before the Court, Comcast had made the business decision that Bit Torrent users were utilizing an undue amount of a limited asset, bandwidth, and in order to protect it’s network and allow the majority of it’s users to be able to do things like check their email without having to worry about the network going down because some 21 year old is using Bit Torrent to download a bootleg copy of Avatar.

It’s Comcast’s network, they should have the right to decide how it’s used and to take action to protect it’s property and it’s other customers.

The Court got this one right.

Here’s the 36 page unanimous opinion:

Comcast v. Federal Communications Commission

The Case Against An Article V Constitutional Convention

Virginia Delegate James LeMunyon has an article in today’s Wall Street Journal where he makes an argument that I’ve been hearing with disturbing frequency lately:

The remedy is in Article V of the Constitution, which permits a convention to be called for the purpose of proposing constitutional amendments. Any proposed amendment then would have to be ratified by both houses of 38 state legislatures (three-fourths of the states). This entails 76 separate votes in the affirmative by two houses of the 38 state legislatures. (Nebraska, with its unicameral legislature, would be an exception.)

Interest in calling a first-ever Article V convention is growing at the state level. A petition for such a convention passed the Florida Senate last month, to propose amendments requiring a balanced budget and to restrain the growth of the national government. If approved by the House, Florida would be the 20th state with an active call to do so. In the Virginia House of Delegates, I introduced a resolution (H.J. 183) calling for a constitutional convention to restrain the national government as well. Requests by two-thirds or 34 states are required for a convention to be called.

Here’s what Article V says about a Convention:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States

It sounds like a pretty straightforward idea. If Congress is being stubborn about passing Amendments that the people deem necessary, why not call a Convention to go over their heads ?

Well, there’s a very good reason, and former Chief Justice Warren Burger put it bluntly in 1983:

I have also repeatedly given my opinion that there is no effective way to limit or muzzle the actions of a Constitutional Convention. The convention could make its own rules and set its own agenda. Congress might try to limit the convention to one amendment or to one issue, but there is no way to assure that the convention would obey. After a convention is convened, it will be too late to stop the convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the confederation Congress “for the sole and express purpose.”

With George Washington as chairman, they were able to deliberate in total secrecy, with no press coverage and no leaks. A constitutional Convention today would be a free-for-all for special interest groups, television coverage, and press speculation.

Our 1787 Constitution was referred to by several of its authors as a “miracle.” Whatever gain might be hoped for from a new Constitutional Convention could not be worth the risks involved. A new convention could plunge our Nation into constitutional confusion and confrontation at every turn, with no assurance that focus would be on the subjects needing attention.

Burger, of course, was exactly right then and he’s exactly right now.

It’s worth noting, as Burger does, the historical context in which the 1787 Convention came to be:

On January 21, 1786, the Virginia Legislature, following James Madison‘s recommendation, invited all the states to send delegates to Annapolis, Maryland to discuss ways to reduce these interstate conflicts.[1] At what came to be known as the Annapolis Convention, the few state delegates in attendance endorsed a motion that called for all states to meet in Philadelphia in May 1787 to discuss ways to improve the Articles of Confederation in a “Grand Convention.”[1]

Instead of discussing improvement to the Articles of Confederation, though, the delegates quickly moved to the creation of an entirely new system of government that had no resemblance to the then-current national government and, when they were done, instead of complying with the amendment procedure provided for in the Articles, which would have required approval by Congress and unanimous consent of all thirteen state legislatures, they provided for a ratification process that completely bypassed Congress and the states. And they did that because they knew there was no way the new Constitution would have been approved by all thirteen states.

The Articles of Confederation, of course, were a flawed document and it’s unlikely that the United States would have survived as a unified nation for very much longer had they remained in place. So, in some sense, Madison and the others at Philadelphia did the right thing.

But, as Burger says, we were lucky and there’s no reason to believe we’d be similarly lucky as second time.

Regardless of any of the arguments that LeMunyon and the others make about ways to limit the scope of the convention, the experience of 1787 makes it plain that, once called, there is no way to limit the scope of a Constitutional Convention, and no reason to think they we’d end up with an entirely different Constitution when it was over.

We were also lucky in 1787 because of the men who gathered to write the Constitution. The values they shared were values of individual liberty and small government. Does anyone truly believe that we’d be lucky enough to have delegates to a 2013 Convention, say, that were anywhere near the intellectual and moral calibre of Madison, or Mason, or Franklin ? Yea, I didn’t think so.

Finally, Burger’s point about the importance of secrecy in the 1787 proceedings is even more poignant today. In the era of the 365/24/7 news cycle, blogs, Facebook, and Twitter, there wouldn’t be any way to keep these deliberations secret and making them public would just increase the likelihood that the end product would be one big mess.

The Constitution isn’t perfect and there are many things I would change about it, but I am not willing to take the risk of sacrificing the entire structure we’ve built over the past two centuries just for a chance to do it.

The First Amendment Protects Ann Coulter, William Ayers, And The Westboro Baptist Church

This morning brings the news that a speech by former Weather Underground leader William Ayers at the University of Wyoming has been canceled:

The University of Wyoming announced Tuesday that a public lecture by William “Bill” Ayers, a former 1970s radical antiwar protestor who is now a university professor, has been canceled.

Ayers, 65, a distinguished professor of education and senior scholar at the University of Illinois-Chicago (UIC), had been scheduled to give a public lecture from 4-6 p.m. Monday in the UW Education Auditorium.

The public lecture had been sponsored by the UW Social Justice Research Center, which is a privately endowed center that studies problems of oppression and inequalities among different social groups.

Titled “Trudge Toward Freedom: Educational Research in the Public Interest,” the talk would have focused on what makes education in a democracy different from other societies, as well as the importance of teachers seeing their students are more than just students, but whole human beings.

UW released a statement on its Web site on Tuesday afternoon explaining why the Social Justice Research Center had decided to cancel Ayers’ visit.

In the statement, the director of the center, UW Educational Studies chair Francisco Rios, apologized to the university community for any harm that may have come to it, and cited personal and professional reasons — including safety concerns — for the cancellation.

This is pretty much the same reason that the University of Ottawa used when it canceled Ann Coulter’s speech there a week or so back.

And it’s bogus.

First of all, it’s worth noting that the University of Wyoming is a public institution so the First Amendment applies. The fact that Ayers is controversial, or that he’ll say things that might offend people, doesn’t mean he doesn’t have the right to say it. In fact, as I noted some four years when I first discussed the Westboro Baptist Church protesters, offensive speech is perhaps the most important speech to protect:

Over the past several weeks, several states have taken steps to prevent protesters from picketing at funerals, a move propelled by the fact that an objectively offensive group of extreme Christians have been staging protests at the funerals of soldiers killed in Iraq claiming that the deaths America is experiencing in Iraq are God’s punishment for tolerating homosexuality. Offensive ? Absolutely ? Should they have the right to be offensive ? I can’t see any reason why not.

Freedom of speech means that, sometimes, we will hear some truly offensive things. When government starts regulating speech based on the fact that it may offend, though, it diminishes freedom for everyone.

Exactly. I despise the Westboro Baptist Church protesters, I think Ann Coulter is mostly an idiot, and really don’t care what a tired old leftist like Bill Ayers has to say. Nonetheless, they all have a right to say it.

C/P: Below The Beltway

Instead Of Trying To Save The Post Office, Let’s Try Freedom Instead

It’s been rumored for more than a year now, but the U.S. Postal Service is taking the first steps toward eliminating Saturday mail delivery:

NEW YORK (CNNMoney.com) — Saturday mail could be one step closer to cancellation when the United States Postal Service submits an official proposal to a government regulatory board on Tuesday to eliminate 6-day delivery.

A new 5-day delivery schedule could save the cash-strapped Post Office $3 billion annually, the agency said. Earlier this month, USPS said it plans to incur about $238 billion in losses in the next 10 years if it doesn’t revamp its outdated business model.

“Every day, every month, every year this gets delayed, we end up further in the hole,” said USPS Deputy Postmaster Patrick Donahoe at a Monday briefing in New York.

Donahoe said a service cut would result in the loss of about 40,000 full-time jobs. About 600,000 workers currently work for the Post Office.

The Post Office hopes to drop Saturday mail in its next fiscal year, which starts Oct. 1. But first, it has to jump through a series of regulatory hoops that could take much longer.

Although it’s an independent government agency and does not receive taxpayer dollars, USPS is overseen by the Postal Regulatory Commission, a separate government agency with five commissioners appointed by the president.

Ruth Goldway, chairwoman of the commission, said that once the board receives the proposal, it will open the issue to public comments and hold hearings throughout the country.

This, of course, is part of the USPS’s problem. If it were a real business, with competitors, it wouldn’t need to seek government permission to engage in cost cutting moves like this.

The Post Office has already set up a website explaining why the move to five day delivery is necessary, and a new poll shows that most Americans support eliminating Saturday delivery:

A majority of Americans support ending Saturday mail deliveries to help the U.S. Postal Service solve its financial problems, but most oppose shuttering local branches, according to a new Washington Post poll.

The public support for moving to five-day deliveries may bolster a new proposal to end six-day deliveries to help the mail agency trim hundreds of billions of dollars in losses by 2020.

Cutting Saturday mail deliveries would save $3.3 billion in its first year and about $5.1 billion annually by 2020, Postmaster General John E. Potter said Monday. But the changes would also mean cutting the equivalent of 40,000 full- and part-time jobs through layoffs and attrition, Potter said as he prepared to formally submit his proposals to postal regulators on Tuesday.

Under the plan letter carriers would stop delivering mail to American homes and businesses and would not pick up mail from blue collection boxes on Saturdays. Post offices would stay open on Saturdays and mail would be delivered to post office boxes. Mail accepted at post offices on Saturday would be processed on Monday. Express mail and remittance mail services also would continue seven days a week.

Potter’s proposal has the support of 71 percent of Americans, with most Democrats, Republicans and independents in favor of the idea, according to the poll.

It sounds like a good idea, but over at Cato@Liberty, Ted DeHaven has an even better one:

Here’s a better idea: give Americans the freedom to choose the mail services they want by repealing the USPS monopoly. That way consumers and businesses could choose to provide and use mail services zero days a week or seven days a week.

Online movie rental services like Netflix offer a small example. A lot of folks time their Netflix rentals so that they have movies for Saturday night. Eliminating Saturday delivery will necessarily degrade the quality of online movie rental services that people are paying for. With competition, Netflix could offer Saturday (or even Sunday) delivery through a private alternative. Perhaps there would be a surcharge, but at least consumers would be allowed to make that choice.

(…)

I find it more impressive that I can go into a grocery store almost anywhere in the country and be met with an incalculable number of choices. Take Coke products for instance. I recently made a list of the various Coke products available to me at a local grocery store. The following is just a sample: regular Coke, Diet Coke, Caffeine-Free Coke, Diet Caffeine-free Coke, Coke Zero, Coke with Splenda, Coke with Lime, Coke with Lemon, and Diet Coke Plus. Don’t like Coke? There’s a similar array of Pepsi products. Don’t like either? The grocery stores also offer pricier micro-brands with all sorts of unique flavors.

These choices reflect the awesome power of the market, which provides nearly all the goods and services people want without any direction from officials in Washington. It would interesting to see what sorts of innovations and products private mail deliverers would come up with if the government’s mail monopoly didn’t exist. Instead, Americans are stuck with a government operation whose floundering business model will require it to raise prices while simultaneously reducing its services. So much for freedom of choice.

Eliminating Saturday delivery is likely to help the USPS achieve fiscal solvency, but it will only be temporary. The forces of technology that are making much of the mail obsolete will continue to work in ways that we can’t begin to anticipate and, some day not to long from now, we’ll be reading they want to cut back to a four day a week schedule to “save money.”

Instead of going through all that, let’s do what we should have done a long time ago — privatize the mail.

Don’t Say You Want A Revolution

Over at United Liberty, Kevin Boyd puts forward the best case I’ve seen to date against the idea that we are anywhere near the point where rebellion is justified:

For those of you out there who think this is the time for revolution, please consider the following:

1) All political and legal options have not been exhausted. There are Congressional elections in November 2010 and Presidential elections in November 2012. Use this anger and energy to donate money and support candidates who support liberty and who will fix/repeal Obamacare. In addition, many states have filed lawsuits challenging Obamacare and those lawsuits need time to work their way through the courts.

2) The right to free speech and to petition grievances is still in effect. Obamacare opponents can still express their opposition views to the public. Such views are common place on talk radio, the Internet, the newspapers, and as a matter all over the place. Obamacare opponents are not being thrown in jail or being silenced by the state.

3) Obama and the Democrats did win the past two elections and have a mandate. Obama’s election victory in 2008 and the Democratic control of Congress by definition gives them the mandate to pass whatever legislation they want, as long as it is upheld as legal. That mandate can only be revoked by their electoral defeat in 2010 and 2012.

4) The Founders did not intend for revolution over trival matters. Before the Founders declared independence, there were numerous attempts at resolving the crisis with the British peacefully. Make no mistake, Obamacare is a trival matter in the scheme of things and does not rise to the matter of “taxation without representation”. The major reason why some Americans threaten revoluton over trival matters is the fact that after the last Civil War, the Union was far too kind to the former Confederates. By all rights, the Union should have executed the remnants of the Confederate government and the Confederate general staff for treason. Maybe this would have detered the trivialization of revolution that we see in this country.

Specifically, in the most important part of the Declaration of Independence, Thomas Jefferson set forth the criteria for when armed rebellion is justified:

We hold these truths to be self-evident, 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, ? That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security

In other words, taking up armed rebellion is not something that should be done for light or trivial reasons. Nor it is something that should be done when there are other, less violent methods for effecting political change.

This also applies to all the rhetoric that we’ve heard, none of it serious and most of it dangerous, regarding secession since, as I explained several years ago, secession is little more than a form of rebellion and must be judged based on the same standards.

So let’s stop all this talk about rebellions. Let’s give up the silly idea that whatever state we live in is going to secede when ObamaCare finally comes into full effect. Neither of those are going to happen.

Finally, it’s also worth noting that the American Revolution is something of an historical anomaly. Most revolutions throughout history, whether in France in 1789, Central Europe in 1848, Russia in 1917, the myriad of anti-Colonialist revolutions that have, or Cuba in 1959, most revolutions have resulted in dictatorial government and misery for the people. We dodged a bullet one, history suggests we wouldn’t be so lucky a second time.

Kevin ends with the only productive strategy that is left:

What those of us who love liberty need to do is step back and channel our anger into more productive means than dreaming about and threatening revolution. We need to build our own political mandate, a mandate for liberty.

Amen

Will The Supreme Court Strike Down ObamaCare ? Don’t Be So Quick To Say Yes

The New York Times’ long-time SCOTUS reporter Linda Greenhouse takes a look at how the current court might look at the challenges to the health care reform law:

The challengers invoke and seek to build upon the Rehnquist court’s “federalism revolution” that flowered briefly during the 1990’s. In a series of 5-to-4 rulings, the court took a view of Congressional authority that was narrower than at any time since the early New Deal. The court struck down a federal law that barred guns near schools, on the ground that possession of a gun near a school was not the type of activity that the Constitution’s Commerce Clause authorized Congress to regulate. It ruled that Congress could not require states to give their employees the protections of the federal laws against discrimination on the basis of age or disability. It ruled that the federal government couldn’t “commandeer” state officials to perform federal functions like federally mandated background checks of gun purchasers.

As Greenhouse points out, though, the Roberts Court is very, very different from the 1990s Rehnquist Court when it comes to issues regarding the power of the Federal Government:

Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.

Chief Justice Roberts appears particularly in tune with the exercise of national power. One of his handful of major dissenting opinions came in the 2007 case of Massachusetts v. Environmental Protection Agency, in which the court ordered the federal agency to regulate global warming or give a science-based explanation for its refusal to do so. That case was brought by a group of coastal states, which argued that climate change was lapping at their borders. Chief Justice Roberts objected that the states should not have been accorded standing to pursue their lawsuit. He denounced the “special solicitude” that the court’s majority showed the state plaintiffs. An early Roberts dissenting vote, just months into his first term, came in Gonzales v. Oregon, a 6-to-3 decision rejecting the United States attorney general’s effort to prevent doctors in Oregon from cooperating with that state’s assisted-suicide law.

And, as Damon Root points out, Antonin Scalia can’t be trusted on this issue either:

It’s also worth noting that conservative Justice Antonin Scalia did his part to thwart that “federalism revolution” by siding with the majority in 2005’s disastrous Gonzales v. Raich, which held that the intrastate cultivation and consumption of marijuana somehow still counted as interstate commerce, resulting in the Court striking down California’s popular medical marijuana law.

I noted last week that, as a matter of law, the odds are against the cases challenging the health care law. As Greenhouse and Root demonstrate, it also appears that we’re dealing with a Supreme Court that is not at all inclined to be sympathetic to arguments that limit the power of Congress.

Right now, I would say that the only vote that could probably be counted on to declare ObamaCare unconstitutional is Clarence Thomas’.

Federal Court Gives Freedom Of Speech Another Victory Over McCain-Feingold

A Federal Appeals Court in Washington, D.C. put another nail into the coffin of the monstrosity that is the McCain-Feingold campaign finance law:

A federal appeals court on Friday handed another victory to conservative opponents of campaign-finance restrictions, striking down limits on individual contributions to independent groups who want to use the money for or against candidates in federal elections.

But in its unanimous decision, the nine-judge U.S. Court of Appeals for the District of Columbia also said that a conservative group called SpeechNow.org must disclose its donors and other details of its finances to the Federal Election Commission, a requirement that the group had sought to overturn.

Steve Simpson, an attorney who argued the case on behalf of SpeechNow.org, called the decision voiding contribution limits “a tremendous victory for free speech” and said it “ensures that all Americans can band together to make their voices heard during elections.” At the same time, the group decried the decision on disclosure and signaled that it would appeal the issue to the Supreme Court.

The ruling also amounts to a mixed bag for beleagured advocates of campaign-finance restrictions, who are relieved by the disclosure requirements but angered by the court’s decision to strike down limits on contributions to independent political groups. The decision follows from the Supreme Court’s landmark decision in January in Citizens United v. Federal Election Commission, which found that corporations are akin to individuals when it comes to political speech and are free to spend as much as they like for or against candidates.

The libertarian Institute for Justice represented the Plaintiffs in this case and had this to say in a press release issued today:

Institute for Justice Senior Attorney Bert Gall said, “Critics of the Citizens United ruling should applaud the decision in SpeechNow.org v. FEC, which guarantees individuals and unincorporated groups the same First Amendment right to fund effective speech that Citizens United guaranteed for corporations and unions.”

Unfortunately, although the court’s ruling frees SpeechNow.org to raise money and speak, the court upheld other burdensome requirements identical to those struck down in Citizens United. Gall said, “Laws that are unconstitutionally burdensome for General Motors and the AFL-CIO have to be unconstitutional when applied to a volunteer group like SpeechNow.org. The court’s ruling that SpeechNow.org must comply with political committee regulations is just flat wrong.”

Bradley A. Smith, CCP’s chairman and a former FEC chairman, added, “It’s unfortunate that the court did not recognize how political committee status regulation by the FEC places restrictive burdens on grassroots political groups. The court’s decision means that the FEC regulatory regime will continue to favor large, established special interests over ad hoc groups of like-minded citizens who gather together to enhance their voices in politics.”

Chip Mellor, president and general counsel of the Institute for Justice, said, “With this ruling, the D.C. Circuit has moved us one step closer to ending this nation’s failed 35-year-old experiment with campaign finance ‘reform’ and restoring the First Amendment to its proper place. The era when incumbent politicians could tinker with freedom of speech to insulate themselves from public criticism is coming to an end.”

And, when that day comes, it will be good for all of us.

Legalization Of Marijuana To Be On California Ballot In November

Advocates of marijuana legalization have succeeded in getting a referendum on the November ballot:

LOS ANGELES, March 24 (UPI) — California will again be the flashpoint in the smoldering debate on legalization of pot as officials said Wednesday the question will be on the November ballot.

Los Angeles County elections officials Wednesday submitted their official estimate of valid signatures collected in the county on a statewide legalization initiative, putting the number of signatures collected statewide over the 433,971 needed to put the measure on the ballot, the Los Angeles Times reported.

The move to legalize marijuana comes 14 years after California decided the controversial weed could be used for medicinal purposes. The initiative would permit people age 21 or older to possess up to an ounce of pot for personal use.

Proponents cite the financial and social cost of enforcing a marijuana prohibition and argue that marijuana isn’t as dangerous and addictive as alcohol or tobacco. Opponents counter with statistics of marijuana-related crimes, rising use among teens and the physical harm pot can cause.

Is this the beginning of the end of the War On (Some) Drugs ? I sure hope so.

Thirteen States File Suit Against ObamaCare

Well, that didn’t take long:

TALLAHASSEE, Fla. — Attorneys general from 13 states sued the federal government Tuesday, claiming the landmark health care overhaul bill is unconstitutional just seven minutes after President Barack Obama signed it into law.

The lawsuit was filed in Pensacola after the Democratic president signed the bill the House passed Sunday night.

“The Constitution nowhere authorizes the United States to mandate, either directly or under threat of penalty, that all citizens and legal residents have qualifying health care coverage,” the lawsuit says.

Legal experts say it has little chance of succeeding because, under the Constitution, federal laws trump state laws.

Florida Attorney General Bill McCollum is taking the lead and is joined by attorneys general from South Carolina, Nebraska, Texas, Michigan, Utah, Pennsylvania, Alabama, South Dakota, Idaho, Washington, Colorado and Louisiana. All are Republicans except James “Buddy” Caldwell of Louisiana, who is a Democrat.

Some states are considering separate lawsuits and still others may join the multistate suit.

I assume we will hear that Ken Cuccinelli has filed suit in the Eastern District of Virginia before the day is out.

As I’ve said, I am not optimistic about the ultimate outcome in these cases, but it will be interesting to watch them proceed through the system.

Here is the pleading itself:

Attorneys General suit on health care

Update: Make that fourteen states, Ken Cuccinelli has filed suit on behalf of the Commonwealth of Virginia.

Will The Courts Strike Down ObamaCare ? Don’t Count On It

Over at The American Spectator, conservative lawyer Stacy Cline points out that the legal challenges to ObamaCare have the odds, and the case law, against them:

Last night’s passage of the greatest expansion of the federal government since the Great Society is a sad day for our country, not only because it may bankrupt our future, but also because we have no recourse to the Constitution. Our Constitution was elegantly designed to protect individuals from too much concentration of power in any one source, but the Supreme Court has evolved into a body that has protected and even facilitated the modern regulatory state at the expense of our founding principles. The optimism of state attorneys general and others who hope to challenge the constitutionality of this legislation is admirable, but such challenges are not likely to be successful.

But what, you might ask, about what seems like it might be the most vulnerable part of the health care bill, the individual mandates ?

Well, as Cline points out, that may actually be the weakest ground of all:

Despite this patent overreach by Congress, the Supreme Court’s flawed jurisprudence on this issue probably permits it. The government will argue that it has the authority to impose the individual mandate under the Commerce Clause of the Constitution, which permits Congress “to regulate Commerce … among the several States.” Supreme Court precedent has interpreted the Commerce Clause to permit Congress to regulate and prohibit all sorts of economic activities that in the aggregate substantially affect interstate commerce.

In the 1942 case Wickard v. Filburn, the Supreme Court authorized the broadest federal power to date, concluding that a farmer growing wheat for his own use was not exempt from federal caps on wheat production that had been established by the government to artificially drive up the price of wheat. The fact that the farmer was growing wheat for his own use meant he would not purchase it on the open market. The Court held that his failure to purchase wheat in the market, taken in the aggregate, would have a substantial effect on interstate commerce. Thus, the Court laid the groundwork for Congress to regulate nearly any activity with a weak connection to economic activity, and for years Congress did not even bother to establish the basis for its Commerce Clause authority.

The Supreme Court had the opportunity to overturn this precedent in Raich v. Gonzales, the 2005 medical marijuana case, but balked. In that case, the Court decided that it was within Congress’s Commerce Clause power to prohibit individuals from growing medicinal marijuana for their personal use. In reaching this conclusion, the Court affirmed that activity that does not fall under the Commerce Clause alone can be reached as part of a broader scheme to regulate interstate commerce. This case was blow to those of us who thought the opinions in Lopez and Morrison signaled that the Court was willing to scale federal power back to something closer to the Constitution’s original intent.

The individual mandate can be distinguished from these cases, as it compels economic activity where Wickard and Raich did not. But what Raich showed is that the Supreme Court does not have the will to limit federal power when Congress has made the most modest of showings that the activity has economic effects. The individual mandate is likely to be upheld as part of a legislative scheme that regulates economic activity, and the insult to our constitutional government, designed to limit the federal government to enumerated powers, will have received judicial sanction.

Moreover, as Cline goes on to point out, the Court may not even need to reach the Commerce Clause issue. The Solicitor General, who will be arguing the case in favor of upholding the law, will clearly argue that the mandate and it’s penalty provision are, in reality, a tax, which would be governed under the General Welfare Clause. If that’s the case, then the challenge is pretty much doomed:

The last time a penalty was deemed an unconstituional tax by the Supreme Court was 1922, and since then the Court has permitted taxes on gambling, tobacco, alcohol and a number of other disfavored activities. Should the Commerce Clause prove to be an indefensible basis of authority, the General Welfare Clause would likely be another source of authority. The current Supreme Court, which time and again demonstrates its willingness to uphold the modern regulatory state to legal challenge, is unlikely to delve into a nearly century old line of cases limiting Congress’s ability to impose penalties as taxes.

If they’re not going to over-rule a clearly wrong 68 year old case, they sure aren’t going to overrule one that’s more than a century old.

Over at The Volokh Conspiracy, Orin Kerr gives odds on how likely a SCOTUS ruling against ObamaCare actually is:

With all this blogging here at the VC about whether the courts will invalidate the individual mandate as exceeding Congress’s Article I authority, I thought I would add my two cents by estimating the odds of that happening. In my view, there is a less than 1% chance that courts will invalidate the individual mandate as exceeding Congress’s Article I power. I tend to doubt the issue will get to the Supreme Court: The circuits will be splitless, I expect, and the Supreme Court will decline to hear the case. In the unlikely event a split arises and the Court does take it, I would expect a 9–0 (or possibly 8–1) vote to uphold the individual mandate.

Blogging about such issues tends to bring out some unhappy responses, so let me be clear about a few things: (a) I don’t like the individual mandate, (b) if I were a legislator, I wouldn’t have voted for it, (c) I don’t like modern commerce clause doctrine, (d) if I were magically made a Supreme Court Justice in the mid 20th century, I wouldn’t have supported the expansion of the commerce clause so that it covers, well, pretty much everything, (e) I agree that the individual mandate exceeds an originalist understanding of the Commerce Clause, and (f) I agree that legislators and the public are free to interpret the Constitution differently than the courts and to vote against (or ask their legislator to vote against) the legislation on that basis.

But with all of these caveats, I’ll stand by my prediction.

I agree with Kerr.

That doesn’t mean that the law shouldn’t be challenged in Court. It should. These arguments need to be made and, even if the challenges are ultimately unsuccessful, they will bring to the forefront issues about the size and scope of government, and the extent to which the limitations of the Constitution have been exceeded that maybe, just maybe, the American people will wake up.

Historically Appropriate Fact Of The Day

It was 245 years ago today, that The Stamp Act of 1765, one of the first of the many punitive taxes imposed on the American colonies and precipitated the Revolution, was passed by Parliament.

244 years and 364 days later, the United States Congress passed a piece of legislation that makes the Stamp Act look like a walk in the park.

Just sayin’

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