Category Archives: Federalism

Bob Barr On The California Gay Marriage Decision

Libertarian Party Presidential candidate Bob Barr released the following statement about yesterday’s ruling from the California Supreme Court on gay marriage:

“Regardless of whether one supports or opposes same sex marriage, the decision to recognize such unions or not ought to be a power each state exercises on its own, rather than imposition of a one-size-fits-all mandate by the federal government (as would be required by a Federal Marriage Amendment which has been previously proposed and considered by the Congress). The decision today by the Supreme Court of California properly reflects this fundamental principle of federalism on which our nation was founded.

“Indeed, the primary reason for which I authored the Defense of Marriage Act in 1996 was to ensure that each state remained free to determine for its citizens the basis on which marriage would be recognized within its borders, and not be forced to adopt a definition of marriage contrary to its views by another state. The decision in California is an illustration of how this principle of states’ powers should work.”

Constitutionally speaking, of course, Barr is entirely correct. If states like New York, New Jersey, and California want to legalize gay marriage, they should be allowed to do so. The problem with the DOMA, though, is that it would seem to be a direct violation of the full faith and credit clause of the Constitution. With very limited exceptions, states are required to recognize the validly passed laws of their sister states, including laws about issues like marriage, adoption, and inheritance.

If lesbian couple legally married in New Jersey moves to, say, South Carolina because of a job change, does this mean they wouldn’t be entitled to same benefits as any other married couple, or that they wouldn’t be treated as a married couple if one of them happened to die while living in South Carolina ?

More importantly, though, Federalism simply doesn’t mean the same thing that it meant before the Civil War. The passage of the 14th Amendment, and the Supreme Court case law that has grown from that Amendment, forever changed the relationship between the people, the states, and the Federal Government, and one of the things that changed is the idea that you don’t lose your rights as an American citizen simply because you move from one state to another.

Barr’s position isn’t per se wrong. It’s just incomplete. Which is more than I can say for guys like John McCain.

Bob Barr’s Missed Opportunity

When I learned that Bob Barr was going to be a guest on Hannity and Comes, I was excited to see a rare opportunity for a Libertarian candidate to explain the Libertarian philosophy to an audience which is largely unfamiliar with what the Libertarian Party is all about: personal liberty. To my dismay, Barr instead promoted federalism rather than individual liberty (federalism is important but is not the same thing as individual liberty). Both Sean Hannity and Alan Colmes raised some very good questions which Bob Barr failed to answer (it seemed to me that Alan Colmes, a loyal Democrat, had a better understanding of the Libertarian Party’s positions than Bob Barr did).

The area where Barr disappointed me more than anywhere else was his response to Hannity’s questions regarding the war on (some) drugs. Rather than answer the question directly, Barr chose to dance around the issue and ultimately answered that the drug issue should be left to the states. While surrendering the war on (some) drugs at the federal level would be a vast improvement over the current failed policy, simply surrendering on the federal level does not go nearly far enough (a great first step would be to release the P.O.W.’s – the non-violent drug offenders).

The following is the response I would have liked to hear from Congressman Barr to Hannity’s question: “What would your vote be? Would you vote to legalize heroin and crack?”

Sean, I think you misunderstand the Libertarian position on the war on drugs just as I did for most of my life. The underlying principle of the Libertarian Party is that the government, whether local, state, or federal, has no right to tell a person what to do with his life, liberty, or property provided that he does not violate the rights of life, liberty, or property of a non-consenting other person. It’s none of my business if my neighbor uses heroin or crack in the privacy of his own home so long as he does so without violating my rights or anyone else’s.

Furthermore, Sean, I would like to point out the three most important reasons why Libertarians are opposed to drug prohibition: it’s ineffective, it puts an unnecessary strain on the criminal justice system, and is dangerous because it breeds violent crime. It’s for these reasons that I would declare an end to the war on drugs as my first act as president by pardoning all non-violent drug offenders; all prisons would be free of non-violent drug offenders for the duration of my presidency.

I know that this format will not allow me to go into any detail on any of these reasons why the war on drugs is harmful to society at large, but I would encourage you and your viewers to visit the Libertarian Party website, the Law Enforcement Against Prohibition website, and Cato.org to get a more comprehensive understanding of these arguments [Liberty Papers readers can follow this link for a comprehensive explanation of these arguments].

This is the kind of answer I would expect from any person seeking the Libertarian Party nomination (up to and including the faux Libertarian Mike Gravel). Rather than clarifying the Libertarian position on the war on (some) drugs, Bob Barr unnecessarily made the issue more confusing to potential Libertarians and others unfamiliar with the Libertarian philosophy. Libertarians (both “small l” and “large L”) are also left to wonder: Where does Bob Barr really stand on the war on drugs?

More on Obama’s Doublespeak

Last week I wrote a post about how Barack Obama was trying to have it both ways on the Second Amendment. Ken Blackwell at Townhall.com, however, believes that Obama’s doublespeak about the Second Amendment (among some of Obama’s other statements) reveals a disturbing pattern in his attitudes about individual rights and a host of other issues:

Yet while Mr. Obama says he supports your Second Amendment rights, he also says he supports that gun ban. He went on to say that local governments should be able to enact any gun control laws they consider necessary to end gun violence, and that any such measures are constitutional.
What kind of gun rights does he supposedly support? What kind of “right” do you have, when the government can completely rob you of 100% of the exercise of that right, anytime they decide they have a good reason?

That’s like saying you have the right to worship as you choose, but the government has the power to ban attending church. Or that you have the right to free speech, but that government has the power to stop you from speaking about any subject it wants. Or that you have the right against unreasonable searches and seizures, but that anything the government wants to search at your house is automatically reasonable.

A right that the government can completely take away at any time is no right at all.

So to say that the Second Amendment means you can own guns, but that the city where you live can ban all gun ownership, then you have no Second Amendment rights at all.

I truly hope that someone will have an opportunity to ask Obama if he really believes that local governments can toss aside the Constitution whenever convenient (though I have a hard time believing that Obama would restrict federal agents to the Constitution while giving local law enforcement carte blanche to violate basic civil liberties of citizens). As if doublespeak on the Constitution wasn’t enough, we can expect doublespeak on many other issues which concern such issues as the economy, terrorism, and growing government.

The article continues:

This is what Americans could expect from a President Obama. He’ll wax eloquent about your rights, but then say government can take away whatever part of them—or all of them—that it wants.

It’s the disturbing pattern that’s starting to emerge of Mr. Obama announcing a principle or a goal, then endorsing policies that are the exact opposite of what would promote that principle or goal. It’s political-doublespeak. It’s Orwellian. In fact, it’s Clintonian.

Look for this pattern across the board. This is how he’ll empower private markets, by increasing government control. He’ll preserve our private-market healthcare system, by having government take it over. He’ll lower taxes, by raising them. He’ll cut government, by increasing government spending. He’ll create jobs, by raising taxes and fees on business […]

I’m sure there will be even more Obama doublespeak as the campaign wears on. I wouldn’t be too surprised if he proposed a new cabinet level position such as The Ministry Department of Truth.

Federal Driver’s Licenses: The Government’s New Plan To Screw Up Your Life

The brainiacs who’ve made air travel almost as fun as a 10-hour Coca-Cola enema have unveiled their new master plan for creating an efficient security system…federally mandated drivers licenses for everybody under the age of 50, which all states will be forced to comply with by 2011, whether they’re capable or doing so or not, if the Department of Homeland Security gets its way.  The rationalization for this plan, of course, is the same as that for any authoritarian program…a centrally mandated, controlled, and issued driver’s license will make it more difficult for con artists, drug traffickers, illegal immigrants, or terrorists to gain access to identification that could compromise our security. 

What goes unsaid, of course, is that such a program will inevitably make it more difficult for everyone else to get a driver’s license as well.  Do you like the two-hour wait at your state DMV every time you have to renew your driver’s license?  You can bet it’s going to be longer once every application has to run through a federal database that’s responsible for processing 50 times as many applications which will need to be cross-checked against watchlists of known terrorists, criminals, or illegal aliens.  Considering how flawlessly this approach has worked for the FAA with their no-fly lists, I’m finding it a little hard to believe that the process will run more efficiently or effectively than it does now, or that you’ll be getting your new driver’s license back on the same day that you’ve applied for it (as you can now).  Especially since the systems and processes the feds use to cross-reference are notoriously buggy.

Of course now if you go to the DMV and the computers are down, the inconveniences are relatively minimal.  You may have to come back the next day and endure another two hour wait, and you have to be a bit more careful about any traffic violations lest you get busted for driving on an expired license but you’ll generally be able to go about your life relatively freely.  Under the feds’ new program, however, if you aren’t able to procure your license for reasons beyond your control, or if you’re actually denied a license you won’t be able to enter a federal building, board an airplane, open a bank account, buy a gun, vote, verify your identity when using a credit or debit card, or do anything else that’s significantly affiliated with the federal government.  Basically, the Real ID program will effectively strip anyone who doesn’t have a federally-issued ID card of their citizenship or ability to even function in everyday society.

Perhaps the people who oppose Real ID are being unfair and overly paranoid, but considering that the Bush’s new Czar of Homeland Security, Michael Chertoff, issues absolute gibberish like this…

“We worked very closely with the states in terms of developing a plan that I think will be inexpensive, reasonable to implement and produce the results,” he said. “This is a win-win. As long as people use driver’s licenses to identify themselves for whatever reason there’s no reason for those licenses to be easily counterfeited or tampered with.”

…to explain his position, somehow I don’t think that their fears are that insane, especially since the creation of an identification card that cannot be forged is about as likely as the ability to corporeally exist without occupying space.  And spending the better part of ten years watching my own little section of the federal government (the U.S. Army) screw up even the most basic of background checks has led me to believe that the feds are generally incapable of handling and should rarely, if ever, be entrusted with this sort of authority.

Update:  A commenter who expanded on this on his own site raised one very valid point that I think merits highlighting: 

It’s funny.  They keep calling it a “driver’s license,” but they never mention anything about driving.

Update 2:  Apparently 17 states have already objected to the Real ID plan. 

I Can’t Think Of A Catchy Title

I suppose the best way to describe myself would be to say that I have a problem with authority. I’ve always disliked when people told me what to do, even as a young child, and I’ve always preferred to find my own path through life and make my own decisions, even if it occasionally went against the conventional wisdom and sometimes worked to my short-term disadvantage. My dad said I inherited it from him, but that I’ve taken it to a whole new level. When I was young I wanted to be a journalist, until I got to college and realized that journalism was less about the search for objective truth than it was about writing the stories that best suited your employer’s interests, whether they were true or not (which didn’t sit well with me at all). So I drifted aimlessly through a couple of years of college as an indifferent (often drunk) student, unsure of what to do with myself until one of my fraternity brothers gave me a copy of “The Fountainhead” and I got hooked on the ideas that success and a refusal to conform to societal standards were not mutally exclusive, and that the greatest evil in the world was society and government’s failure to recognize or accept individuality and individual freedom as a strength, not a weakness. So I threw myself into studying politics and history, worked in a few political campaigns after college, had some success, and thought about doing a career in politics until I realized that most of the people I knew who had never had a career outside of politics had no comprehension of how the real world actually worked and tended to make a lot of bad, self-absorbed decisions that rarely helped the people they claimed to be representing.

That didn’t sit well with me either, so I decided to put any thoughts of going into politics on hold until I’d actually had a life and possibly a real career, and I spent the next couple of years drifting between a series of random yet educational jobs (debt collector, deliveryman, computer salesman, repo man, dairy worker) that taught me the value of hard work, personal responsibility and the financial benefits of dining at Taco John’s on Tuesday nights (2 tacos for a buck) when money got tight.

After awhile, however, the desire to see the world (and the need for a more consistent and slightly larger paycheck) convinced me to join the Army, where I spent ten years traveling around the world on the government dime working as an intelligence analyst. I generally enjoyed my time in the military, despite the aforementioned problem with authority (which wasn’t as much of an issue in the military as many people might think it would be), and I got to see that the decisions our political leaders make were sometimes frivolous, often ill-informed, and always had unforeseen repercussions down the road…especially on the soldiers tasked with implementing those decisions. I was fortunate enough to spend most of my 10 years in the military doing jobs I enjoyed, traveling to countries that I always wanted to see (Scotland is the greatest place in the world to hang out, Afghanistan is very underrated) and working with people I liked and respected, until I finally decided that at 35 it was time to move into a job where I didn’t have the threat of relocation lying over my head every two or three years, where I didn’t have to worry about my friends being blown up, and where I didn’t have to work in any capacity for George W. Bush.

I work now for a financial company in Kansas where I’m responsible for overseeing, pricing and maintaining farms, commercial and residential properties, mineral assets, insurance policies, annuities, etc. In my spare time I like to read books on economics, history, and politics (I’m preparing to tackle Murray Rothbard’s “Man, Economy & State” and Von Mises’ “Human Action”…should take me about a year at the rate I’m currently finishing books), watch movies, and destroy posers on “Halo 3″ (where I’m signed in under “UCrawford” for anyone interested in taking a shot at me some time). I used to play rugby until age, inconsistent conditioning, and a string of gradually worsening injuries finally convinced me to quit. I’m a rabid fan of the Kansas Jayhawks in general and their basketball and football programs in particular and I’m also a devoted fan of the Kansas City Chiefs and Royals. I’m also fond of going online and debating/picking fights with people on the merits of the philosophy of individual freedom…sometimes to the point of being an asshole (but hopefully a reasonably well-informed asshole). I’ve been a big fan of The Liberty Papers ever since finding it online, I respect the body of work they’ve put out, and I’m honored that Brad Warbiany invited me to join his jolly band of freedom fighters. So cheers, Brad, and to everyone else I look forward to reaching consensus or locking horns with you in the near future.

The Nanny State Invades The School Cafeteria

Today’s New York Times reports that the Senate is about to consider a proposal to ban candy, soda, and fatty foods from the nation’s school cafeterias:

Federal lawmakers are considering the broadest effort ever to limit what children eat: a national ban on selling candy, sugary soda and salty, fatty food in school snack bars, vending machines and à la carte cafeteria lines.

(…)

The nutrition standards would allow only plain bottled water and eight-ounce servings of fruit juice or plain or flavored low-fat milk with up to 170 calories to be sold in elementary and middle schools. High school students could also buy diet soda or, in places like school gyms, sports drinks. Other drinks with as many as 66 calories per eight ounces could be sold in high schools, but that threshold would drop to 25 calories per eight-ounce serving in five years.

Food for sale would have to be limited in saturated and trans fat and have less than 35 percent sugar. Sodium would be limited, and snacks must have no more than 180 calories per serving for middle and elementary schools and 200 calories for high schools.

And to make the blow against Federalism even more pronounced:

Although states would not be able to pass stronger restrictions, individual school districts could.

Can someone please point me to the portion of Article I, Section VIII of this document that gives Congress the authority to decide what appears on a child’s lunch tray on a daily basis ? Yes, I know that Congressional power has expanded far beyond where it was intended but there are times when the grab for power is so egregious and unauthorized that it becomes, for lack of a better term, galling.

But will the American people protest ? Will they flood Congressional phone lines in protest of this latest invasion of the nanny state into their lives ?

My guess is that, for the most part, the answer to those questions will be no. For the most part, Americans will look upon this as a good idea and will thank their enlightened leaders in Washington for telling them what their children should eat because, you know, we’re all too stupid to figure that out.

H/T: Cato@Liberty

Federalism vs. Individual Freedom

The Constitutionalism of Ron Paul has ignited a debate that’s sorely needed in this country. The Founding Fathers envisioned a nation of individual States, each with its own quirks and ideas, and each with wide latitudes to set its own internal laws and policies as it saw fit. The central government was tasked only with foreign affairs and acting as arbiter of inter-state matters. The individual States had nearly full sovereignty with most other affairs. In many ways, the United States was set up with a roughly similar mix between central authority and State sovereignty as the current EU.

Ron Paul and many libertarians reflexively yearn for a return to such an idea. The central government we have now is a behemoth, trampling our freedoms under its oppressive taxes and mountains of regulation. Even worse, the system is largely out of control, and citizens have almost no power over its workings. Devolving power to the States and local governments would counter the dilution of power that naturally occurs when one is a single voice out of 300 million. Petitioning your city or state representative is much more effective than some Senator who may represent several million people.

Inherent in the assumption by these libertarians, though, is that moving power to smaller levels of government will improve individual freedom. I’m not sure that assumption is accurate. There are pros and cons of both systems.

Federalism:

On the positive side, federalism allows for experiments in freedom. States and localities compete on a whole host of aspects, such as taxation, regulation, and social policies. In many instances, it allows those states to do things that would not be allowed in a true top-down structure. In some cases, that may be liberalized policies such as California allowing doctors to prescribe medical marijuana, the city of Galveston, Texas to opt out of social security for their retirement plans, or states like Massachusetts recognizing gay marriages. These are all things that individual states or localities are doing to increase personal freedoms.

But there’s a big negative. Many policies undertaken by individual states inimical to individual freedom. For example, the trend to outlaw smoking in private businesses would be a simple example. Another fairly innocuous example would be the crazy alcohol “blue laws” dotting the nation, many of which have absolutely no justification and are simply a way to appease special interests at the expense of freedom. On a more serious note would be the “Jim Crow” laws, or if you’re looking for a modern incarnation, Massachusetts’ new health-care plan. States are laboratories for new policies, but those policies are not always pro-freedom.

Central Government:

The benefit of central government mandates are simple: if the central government does something right, it can immediately apply that across the country. Many of our Constitutional amendments have followed this path, such as the 24th, eliminating a poll tax. It was a way to end an immoral form of discrimination in a place which sorely needed it. Similarly, while the 14th amendment may have opened the door to some very strange unintended consequences, the idea is purely in favor of liberty: to make sure that individual states and localities cannot engage in unfair discriminates against individuals based on things such as race or gender.

But again, there’s a big negative. As co-contributor tarran quoted Barry Goldwater to me in a discussion on this topic, “The government big enough to give you everything you want is big enough to take it all away.” Look no further than the government’s failed attempt at Prohibition, a distinctly anti-freedom policy that might have been proven to be damaging if done in individual states that was instead foisted on the entire nation. Even worse, our central government has the potential to cut down individual states’ pro-freedom policies at the knees, as we saw in Raich.

So what’s best?

Well, the ideal government would be a single world government that was only powerful enough to protect freedom but disciplined enough not to infringe on individual freedom for the “common good”. However, such a government has never existed, will never exist, and with the incentives inherent in government, can never exist. So looking at the ideal government is not a useful way to answer this question.

The best way to answer this question is to ask how federalism relates to individual freedom. I used “vs.” in the title of this post for a reason. Of course, I don’t believe that federalism works contrary to individual freedom. However, I don’t think it necessarily works FOR individual freedom either. Federalism is only a tool for individual freedom if the people in a region believe in individual freedom, likewise a strong central government is only as damaging to individual freedom as the populace allows it to become.

Where federalism does shine, however, is in giving individuals choice over what mix of freedom and of taxation/regulation they prefer. However, as the differences in politics between the “liberal” and “conservative” states show, federalism does not automatically equal liberty. In states like California, there are large degrees of personal freedom, but not much economic freedom. In states such as Georgia, there is a large degree of economic freedom, but the level of social conservatism circumscribes personal freedoms. All this occurs in the spheres of control outside those of the central government, and I see no reason to believe this would not be the case if the central government were weakened.

The problem, whether you look at the central government or individual states, is that the government will only be as pro-liberty as the populace it represents. If you’re in Massachusetts, you just might get a weak version of socialized medicine through “mandatory coverage”. If you’re in Alaska, you may find nearly non-existent government that actually pays you out of oil revenues to live there.

But as I mentioned, if you then have a choice between Massachusetts and Alaska, you have a lot more choice than between America and Australia. The closer in proximity those choices become, for example between Taxachusetts and the Free State, and the better it will be for lovers of liberty. And the weaker the central government is, the more differentiation there will be between more-free and less-free states.

Federalism is not a panacea that will solve our nation’s problems. It’s a step in the right direction, but it must always be remembered that the message must be about freedom, not about federalism. Federalism is a potential means to the end, but it is not the end in itself.

Do We Need A New Constitution?

Larry J. Sabato, a professor of politics at the University of Virginia, seems to think so, and he’s even written a book about it. However, some of his complaints indicate that he simply doesn’t understand that the document was designed for different purposes than he wishes it to be:

The Senate is horribly undemocratic. Because each state elects exactly two senators, thinly-peopled rural states wield disproportionate influence. If the 26 smallest ones stick together, they have a majority of votes despite representing only 17% of Americans. Mr Sabato wants to restore some fairness by giving extra senators to big states.

Actually, Larry, the Senate was designed for the system of federalism, where the goal was for States to keep Washington from running roughshod over their jurisdiction just because more populous states wanted something. Granted, the 17th Amendment and most of the New Deal and beyond have turned the States into little more than lines on a map, since everything now IS run from Washington. But the point of the Senate was not to be “democratic”, it was to offer a place where more cool-headed people beholden to State interests rather than directly to the public could temper the fluctuating flame of shifting public demands.

Not content with rejigging the building blocks of government, Mr Sabato also wants to lay constitutional obligations on individual citizens. All able-bodied young Americans should have to do two years of national service, he argues, either in the army or pursuing some other public good.

Ahh, I see, because his desire is to ensure that, beyond all the conditioning that our students receive in the [unconstitutional] public schooling they endure until age 18, the needs to brainwash them further into the “social contract” by imposing unnecessary obligations onto them. After all, if you start them young enough, you can teach them that freedom means only what Larry Sabato believes it means. If he really wanted to solve this one, he could do so quite easily be repealing the 13th Amendment. Not that I think Larry would get a lot of love if he put that on a bumper sticker, though!

But all this dances around the second problem. A few of Sabato’s suggestions were good, such as finding a way to reduce gerrymandering of districts, which turn House seats into fiefdoms. And his call is not for some halfway approach to the problem.

But Mr Sabato does not want us to pick one or two of his suggestions. He wants to call a second constitutional convention to rethink the entire document bar the Bill of Rights. The current approach of piecemeal amendments is not working, he says. Very few pass, and many that are proposed are foolish: think of the amendment to ban flag-burning. No, what America needs is a grand meeting of clever and high-minded people to draw up a new, improved constitution better suited to the 21st century.

A “grand meeting of clever and high-minded people”? I’m sure a lot of “politics professors” will be invited to such a thing.

I thought, a year or two ago, that perhaps the answer is another Constitutional Convention. I thought that we’ve misinterpreted the document so horribly that it might be time to spell out the limits on government that our Constitution enshrines explicitly, to take these decisions out of the hands of Supreme Court justices that constantly stretch the meaning of the document to fit ever-wider government. But there’s a problem with that approach. The type of people I would want to write the new Constitution probably wouldn’t be allowed in the room, and we’d end up with a document that enshrines “positive liberty” and obligations on individuals that make our current Leviathan seem like the Ritz Carlton.

We don’t need a new Constitution, and the call to create one is an invitation to velvet-gloved tyranny.

Paul Jacob, Susan Johnson, and Rick Carpenter: Oklahoma’s Political Prisoners

Paul Jacob, Susan Johnson, and Rick Carpenter could face up to 10 years in prison and $25,000 in fines for “conspiracy against the state” in the State of Oklahoma. Perhaps the three were conspiring to commit an act of terrorism? Or maybe they conspired to commit welfare fraud? Sold counterfeit tickets to a Sooners game? Nope. The trio now known as “the Oklahoma 3,” their alleged “conspiracy” was circulating petitions to amend the state constitution to include a taxpayer’s bill of rights. It’s illegal in Oklahoma for Jacob and Johnson to circulate petitions since they are not Oklahoma residents (a claim they both dispute).

OKLAHOMA CITY – A multicounty grand jury indictment unsealed Tuesday in Oklahoma County District Court names three key figures in the failed effort to put a taxpayer bill of rights on state ballots last year.

Tulsan Rick Carpenter, president of Oklahomans in Action, faces one count of conspiracy to defraud the state and one count of filing a false, fraudulent, felonious and fictitious initiative petition.

Oklahomans in Action circulated the initiative petition.

Susan Johnson of Michigan, president of National Voter Outreach, and Paul Jacob of Virginia, of Citizens in Charge, were charged with conspiracy to defraud the state.

Jacob is a leader of the term-limits movement.

National Voter Outreach, a Nevada corporation, was responsible for the circulation and signature collection process, according to the indictment. The group was paid by Carpenter and Jacob for signatures gathered in support of the TABOR petition, according to the indictment.

On October 7, 2007, Paul Jacob wrote an article at Townhall.com explaining his experience and his side of the story:

I was placed in hand-cuffs and leg-irons before my release on bond, and am threatened with a ten-year prison term for that oh-so-violent crime of helping others petition their government.

I wasn’t alone. I was cuffed to the other two bewildered citizens that make up The Oklahoma Three, my alleged co-conspirators, Susan Johnson and Rick Carpenter.

Susan is a mother and grandmother who lives in Michigan. She’s also the president of a petition management firm called National Voter Outreach. She started on the streets as a petitioner many years ago, learned the business and is now at the top.

Seeing this sweet lady (and I mean “lady”) in leg-irons as we were being processed is something I’ll long remember — whenever I think I’ve had enough, whenever I doubt that my extra effort is needed or wonder if freedom can be guarded without personal sacrifice.

Rick Carpenter of Tulsa, Oklahoma, is the head of Oklahomans in Action. He was the legal proponent of two Oklahoma initiative campaigns launched back in 2005, neither of which amused the political elite. One was designed to end eminent domain and regulatory abuse by governments and the other measure would have capped the rate of government spending growth, allowing greater spending only with voter approval — a measure similar to Colorado’s Taxpayers Bill of Rights.

[…]

Unlike most initiative states, Oklahoma has a residency requirement allowing only Oklahoma residents to circulate a petition. But when the petition company checked with state officials to determine what constituted a resident, those officials said that a person could move to Oklahoma and immediately declare residency — and begin petitioning.

Just to be safe, since sometimes simple law can be made amazingly complicated, I asked for any relevant legal precedent. The ruling in a recent challenge to an Oklahoma petition to ban cock-fighting seemed clear: residency was determined by an individual’s intention to be a resident.

[…]

Then, the various forces of big government that had worked so hard to block the vote, joined by a who’s who of corporate CEOs and the heads of energy companies and banks (can you say “daddy welfare”?), challenged the petition. And the Oklahoma Supreme Court came to their aid, providing a much different standard for residency than in the past. The judges now equated residency with a “permanent home.”

How permanent was “permanent”? One petition circulator, who moved to Oklahoma in September of 2005 and was still living there in July of the following year, was ruled not to be a resident.

[…]

Yes, it was a terrible injustice. But it was trumped this past week by further injustice, the indictment charging Susan Johnson, Rick Carpenter and me with conspiracy to defraud the state of Oklahoma for allegedly “willfully” violating the state’s residency statute. For this alleged crime Attorney General Drew Edmondson seeks to imprison us for up to ten years.

Susan says she can’t even remember ever getting a speeding ticket. Rick and I have both admittedly sped before . . . but our occasional automotive misadventures did not quite prepare us for the current prosecution.

If we are to believe Mr. Jacob, it appears that he had done his due diligence to avoid breaking this stupid law. Unfortunately for Jacob and his co-defendants, the opponents of their ballot petition are not shy about using the police power of government against them. As powerful as these political opponents may be, surely the courts would not convict 3 American citizens to a 10 year prison sentence for petitioning a state government with such weak evidence?

Perhaps this isn’t about convicting Jacob, Johnson, and Carpenter. Maybe this has more to do with intimidation? Jacob continues:

The goal is to scare, to intimidate, to silence; it is happening more and more in Oklahoma at the hands of Attorney General Edmondson — and throughout the country as our politics becomes increasingly regulated, controlled, and criminalized. Politics has lurched off the highway of democracy, off the curb and back into the old insider system, the gutter method of accumulated power.

Once upon a time you could participate in politics without a battery of attorneys. Once upon a time you could lose an election without fear that one’s opponents would use the power of their office to imprison you. No more.

Well, it is definitely scary. Personally, it’s not fun to think of what impact this legal truncheon to the head could have on my wife, kids, grandchild. But we’ll not allow our rights to be bullied away. Nor will we stand idly by while the one process capable of reining in corrupt politics — citizen initiative and referendum — is threatened into non-existence.

We, the Oklahoma 3, didn’t conspire to break the law. Instead, we sought to understand it and abide by it, even as we sought to change other laws. We now face the full onslaught of the state of Oklahoma. It is apparent that this retaliation is not for any crime, but for our political beliefs and our audacity to put them into action.

Maybe it’s time for all Americans — conservative, liberal, populist, libertarian — to “conspire” together to take back our political system from the gutter.

Before it’s too late.

However one thinks about the Oklahoma 3’s political goals, we should all agree that this injustice cannot stand.

The Endangered Species People Act

(WSB Radio) — Despite the threat of legal action by Gov. Sonny Perdue, the Army Corps of Engineers says it has no plans to reduce the release of water from Lake Lanier and Lake Allatoona.

Army Major Darren Payne tells WSB’s Pete Combs the Corps is required by law to send water down the Chattahoochee River to protect endangered wildlife, power plants and water needs along the river.

“At the moment there’s not a whole lot we can do,” said Payne. Gov. Perdue has given the Corps a deadline of today to respond to the state’s demand to reduce the amount of water, under the threat of legal action.

Payne says the Corps will continue to release 2 billion gallons of water a day.

“We cannot deviate without some action being taken on the endangered species act or special legislation,” said Payne.

Ah, the Endangered Species Act strikes again! A law which has arguably done more to undermine property rights in our country than any other could potentially endanger the lives of Georgians. The Army Corps of Engineers apparently has no choice but to follow the law as it is currently written meaning the federally protected mussels and sturgeons have priority over the people of Georgia.

As Gov. Sonny Perdue threatened legal action, the Georgia delegation to the U.S. House as well as both of the state’s senators introduced legislation to amend the ESA to allow states to be exempt from the law if either the Secretary of the Army or the state’s governor declare emergency drought conditions (Personally, I would prefer a complete repeal of the ESA but this proposal seems like a reasonable enough compromise for now).

I fail to understand where the controversy is. Does anyone really want to argue that these animals should have priority over American citizens who are being forced to cut back their water usage so they can have water to drink, bathe, and clean with? Outrageous!

Neal Boortz proposed a rather interesting idea: the governor should order the Georgia National Guard to seize the dam from the Corps of Engineers. I have no idea of what the legalities of doing such a thing are and other legal options should be exhausted first, but I believe one could make a good case for doing just that. During the War of 1812, at least one governor who opposed the war refused to allow U.S. troops to come into his state. If one were to look at a more contemporary example, certain “sanctuary cities” refuse to enforce federal immigration laws.

While I normally advocate the rule of law, it seems to me that if cities and states can pick and choose the federal laws they wish to follow, then ignoring the ESA in this emergency seems to be quite appropriate. Endangered species should never have the ability to endanger people.

Saw this one coming

So, for the last few years, supporters of gay marriage have pretty much given up on the legislative route; and have been depending on judges to try and impose their agenda on the states.

While I have no problem with the concept of gay marriage (the state should not be involved in religious marriage; and any two people should be able to enter any civil contract they want); if we are in fact a nation of laws, effectively re-writing the laws through judicial activism (and yes, that is very explicitly what is happening) is both morally wrong (because it abrogates the process), and a practical disaster.

Leaving aside the moral argument, we need to address the consequences of living in a federal republic. Although gay marriage advocates have repeatedly insisted that instituting gay marriage on a state by state basis would not cause constitutional and interstate compact issues; anyone with any knowledge of interstate law, or the concept of federalism could see that argument is false on its face.

From the first legal same sex marriage in Massachusetts (and to a lesser extent civil unions in Vermont), there have been legal implications in other states. There are issues of marriage licenses in general being honored (full faith and credit), medical insurance, inheritance rights, property rights, medical control, and of course the big one: child custody.

Lawsuits have already been instituted in other states over all of these issues, in particular survivors rights; but ’til now a divorce case hasn’t hit the public eye.

Well, that just changed; and I wish I could say I didn’t see it coming, but I think we all did…


Married Gay Couple Seeks Right to Divorce in Rhode Island


Tuesday, October 09, 2007

Associated press

PROVIDENCE, R.I. — A lesbian couple married in Massachusetts should have the same right as heterosexual couples to now divorce in Rhode Island, lawyers for the women told the state’s highest court on Tuesday.

Cassandra Ormiston and Margaret Chambers wed in 2004 soon after Massachusetts legalized same-sex marriages. They filed for divorce last year in their home state of Rhode Island, where the law is silent on whether same-sex marriages are legal.

It is believed to be the state’s first same-sex divorce case.

If the women can’t divorce in Rhode Island, their lawyers said the only legal avenue available to them would be for at least one to move to Massachusetts and live there long enough to obtain a divorce.

“It is an absolutely unfair burden,” Ormiston said outside court after Tuesday’s arguments before the Rhode Island Supreme Court. “It is a burden no one else is asked to bear, and it is something I will not do.”

Lawyers for the women told the Supreme Court the only question to consider was whether Rhode Island could recognize a valid same-sex marriage from another state for the sole purpose of granting a divorce petition.

They stressed the case has no bearing on whether gay couples could get married in Rhode Island, or on whether a same-sex marriage would be recognized for other purposes.

“You have a valid marriage in the state of Massachusetts,” Louis Pulner, an attorney for Chambers, told the justices. “No one is asking the court to address the question of whether such marriages would be valid in Rhode Island.”

In September 2006, a Massachusetts judge decided same-sex couples from Rhode Island could marry in Massachusetts because nothing in Rhode Island law specifically banned gay marriage. But the courts and the legislature in Rhode Island have not taken any action to recognize same-sex marriages performed in Massachusetts.

Attorney General Patrick Lynch earlier this year issued a nonbinding advisory opinion saying the state would recognize same-sex marriages performed in Massachusetts.

Nancy Palmisciano, a lawyer for Ormiston, said Rhode Island routinely treats as valid heterosexual marriages performed in other states and even in other countries. She said when she recently handled the divorce of a couple from China, no one questioned the validity of their marriage certificate issued there.

“Here we have two American women who have not been able to push their divorce forward because they happen to be members of the same sex,” Palmisciano said.

Chambers and Ormiston married in Fall River, Mass., in May 2004 in a ceremony solemnized by a justice of the peace. Massachusetts is the only state to legalize same-sex marriages.

Chambers filed for a divorce last October, citing irreconcilable differences.

Two months later, Rhode Island’s chief family court judge asked the state Supreme Court for guidance on whether he has the authority to handle a same-sex divorce. The court agreed to weigh in and invited Rhode Island’s legislative leaders, governor and state attorney general to submit legal briefs detailing their position.

The justices did not indicate when they would rule.

In this case, the justices are in a bit of a bind; because they can attempt to qualify their ruling all they want by declaring “we’ll give you a divorce, but that doesn’t mean you were ever really married”; but that isn’t going to fly.

Such a ruling would be ridiculous on its face, and would properly be struck down as arbitrary and capricious. There would be no valid legal principle to cover this tissue thin justification, and it would head to the supreme court as a giant mess.

Tough cases make bad law; and from where I’m sitting, this looks about like 10 year old shoeleather.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Fred Thompson on Federalism

More here on Thompson’s essay on federalism

I don’t know a whole lot about Fred Thompson’s record at this point, but I do like most of what he has to say about federalism. He’s at least speaking my language:

Before anything else, folks in Washington ought to be asking first and foremost, “Should government be doing this? And if so, then at what level of government?”

Among the candidates who actually have a chance of winning the nomination, who else is even asking this question? Giuliani? McCain? Romney? Huckabee? I think not. As I have said before, the perfect candidate is not in this race. Fred Thompson is by no means a libertarian either (but neither was Ronald Reagan). Brad has raised some legitimate questions about Thompson which also need to be fleshed out.

I’m by no means endorsing Fred Thompson at this point but as far as I can tell at this moment, he may be the least worst choice. We should at least hear him out and take a look at his record before writing him off.

Rudy Giuliani Gets It Mostly Wrong On Education

Rudy Giuliani says he believes in school choice, but it’s not the kind of school choice you might think:

MERRIMACK, N.H. (AP) — Republican presidential hopeful Rudy Giuliani on Friday argued for taxpayer-funded vouchers for private elementary and secondary schools, saying school choice works for the nation’s colleges and universities.

People come from all over the world to attend college in the United States, Giuliani said at a town hall meeting in Merrimack, N.H.

“How is it that we have the best higher education in the world and a weaker K-through-12 system?” Giuliani said. “What’s the difference? Why does one operate so well and the other not nearly as well? American higher education is based on a quintessential American principle – choice.”

As mayor of New York, Giuliani backed vouchers for private and parochial schools in the face of opposition from his own schools chancellor.

“I’d give parents control over their children’s education,” Giuliani told the audience of about 150 people at a solar power products plant. “We’ve got to have competition operating. If we don’t do that, our education system is going to deteriorate.”

As Andrew Coulson points out at Cato@Liberty, Giuliani’s approach completely misses the point of what a true pro-choice position on education should be:

Real consumer choice and competition among schools aren’t just good ideas — they’re essential if we are ever going to see the kind of progress and innovation in education that we’ve seen in every other field over the past few centuries. But if Rudy is saying he’d back a federal school choice program, he’s got the right idea at the wrong level of government.

As someone who touts the merits of limited government, Giuliani should heed the Tenth Amendment, which reserves to the states and the people powers that they have not delegated to Washington in the Constitution. Last time I checked, neither the word “education” nor the word “school” appears anywhere in that document.

What Giuliani is saying is really no different from what any other Republican has said about education for the past 30 years or more. Heck 27 years ago, Ronald Reagan campaigned on the idea of eliminating the Department of Education.

And what have we gotten ?

Not less Federal involvement in education, but more, as epitomized by the George Bush-Ted Kennedy love child known as the No Child Left Behind Act.

Not a smaller Department of Education, but a larger one.

And, in the end, have we gotten better schools ? Of course not.

For more than 200 years, the government kept its nose out of education, and for good reason; (1) the Constitution gives Congress absolutely no authority over the subject, and (2) it’s impossible for Congressman and bureaucrats sitting in Washington, D.C. to design an education system that is going to work for every school in every town in America.

One can debate whether government should be involved in education at all, and I certainly think that the government monopoly on education should be eliminated, but to the extent it should exist, that involvement belongs at the local level.

Mr. Giuliani, read the Constitution.

Fred Thompson — Strict Constructionist?

Fred Thompson is flogging the dead horse of judicial appointments, pointing out that Democrats will pull out any trick in their arsenal to block conservative appointees. I know he’s been out of the Senate for a while, but the fact that he seems shocked by this makes me wonder if he’s been paying attention at all over the last few years.

But it brings up an interesting question regarding his beliefs on the role of the Supreme Court. Most Republicans would agree that the Court shouldn’t “legislate from the bench”, and such things as when the Court puts mandates out that basically force legislatures to comply, it’s probably not right. But what about striking down legislation from the bench? Here, sadly, he seems to want to give Congress free reign:

From the beginning of his Administration, President Bush was committed to appointing judges who understand the appropriate limits on their role and seek to interpret the law as written by Congress — rather than revising it to achieve their own preferred goals. Too many Democrats, though, prefer judges who, under the guise of interpreting the Constitution, will impose their policy preferences on the citizenry.

These are two very different notions of the appropriate role of judges. On this issue, I stand with the President, along with the kinds of judges he appoints, like Chief Justice John Roberts and Justice Samuel Alito.

(Emphasis added.)

He doesn’t suggest that the role of the court is to determine whether legislation passed by Congress is Constitutional. As my post last week suggests, he pays lip service to things like federalism while calmly explaining exactly how it should be trimmed and curtailed and toned down. I wonder whether he thinks it is the role of the Court to intervene in the legislative process when the Congress oversteps their Constitutional bounds.

Those on the Right want you to believe that judicial activism only occurs on the Left. But modern Republicans don’t want to go back to the days where the Constitution means what it says, they want to get their own conservative judicial activists on the bench. It’s not a respect for small government that they’re after, it’s to get their own team in power.

Think about it. If Thompson were elected, can you seriously see him nominating someone who takes the Constitution seriously— like Janice Rogers Brown— to the high court?

Fred Thompson — Federalist?

I’m pulling for Ron Paul, but I have to have a question in the back of my mind. If Ron Paul doesn’t get the nomination, should I vote Republican or Libertarian in 2008? The question comes down to this: “Is there anyone other than Ron Paul in the Republican field that I want to vote for, instead of just voting against Democrats?”

Since I live in California, the question is largely academic. California isn’t in danger of being a close state in the general election, so I have to vote for principle. I’ve already ruled out Giuliani, McCain, and I’m already leaning against Romney. But I know very little about Fred Thompson.

I received an email from Jon Henke, one of the bloggers from QandO, who is a Fred Thompson supporter. The email contained the last two paragraphs of this post, making me think that perhaps Fred Thompson believed in the same strain of federalism that I do:

A good first step would be to codify the Executive Order on Federalism first signed by President Ronald Reagan. That Executive Order, first revoked by President Clinton, then modified to the point of uselessness, required agencies to respect the principle of the Tenth Amendment when formulating policies and implementing the laws passed by Congress. It preserved the division of responsibilities between the states and the federal government envisioned by the Framers of the Constitution. It was a fine idea that should never have been revoked. The next president should put it right back in effect, and see to it that the rightful authority of state and local governments is respected.

It is not enough to say that we are “for” federalism, because in today’s world it is not always clear what that means. What we are “for” is liberty for our citizens. Federalism divides power between the states and government in Washington. It is a tool to promote freedom. How we draw the line between federal and state roles in this century, and how we stay true to the principles of federalism for the purpose of protecting economic and individual freedom are questions we must answer. Our challenge – meaning the federal government, the states, our communities and constituents – is to answer these questions together.

Sounds pretty good, no? But when I read the whole think, I started to backtrack on that…

First, he points out that federalism creates 50 little “laboratories” across America, where different ideas can be tested out. Unfortunately, he first points out how wonderful it was that we could take those different ideas and start standardizing them across our entire nation:

A good example of this early in my Senate service was welfare reform. We were warned that terrible things would happen if we went forward with a bill – a fundamental commitment would be abandoned and, among state governments, a “race to the bottom” would begin.

But key to our approach were elements of welfare reform that had proved successful in various states, such as Colorado, Michigan and Wisconsin. The result was a law that allowed us to better meet our commitments to our fellow citizens. It was one of the great political successes of the 1990’s, because Washington – for once – had the good sense to learn from state and local authorities and empower them in return.

I’ll give him half a pass on this one. After all, one can make the argument that the welfare reform bill was an improvement over what existed, and federalism did assist to make that more efficient. However, Thompson doesn’t make the argument that welfare should be a state matter from the beginning, he argues that the federal government learned from federalism. Allowing states to compete ensures continually improving efficiency of future programs, codifying the results of past competition and keeping power in federal hands doesn’t prepare for the future.

But another point is just inexcusable. He again suggests that federalism might help efficiency of the federal government, but then states that the funding must remain in Washington’s hands. How does the guy who fondly references Ronald Reagan’s executive order leave out the fact that Reagan campaigned on the promise to abolish the federal Department of Education, and then suggest that the feds have a responsibility to fund education?

Perhaps the clearest example of federal over-involvement in state and local responsibilities is public education. It’s the classic case of how the federal government buys authority over state and local matters with tax-payer money and ends up squandering both the authority and the money while imposing additional burdens on states.

It is appropriate for the federal government to provide funding and set goals for the state to meet in exchange for that funding. However, it is not a good idea for the federal government to specifically set forth the means to be used in order to reach those goals. Adherence to this principle would make for fewer bureaucracies, fewer regulations, and less expense, while promoting educational achievement. There are bills pending in Congress that would move us in this direction, and I hope Congress gives them the attention they deserve.

It is appropriate for the feds to provide funding? I thought he was a federalist, and a Constitutionalist. Sure, Thompson can read the Tenth Amendment, but apparently he’s reading between the lines of Article I, Section 8 if he believes that the federal government has a role in local education, whether funding or control. I would remind him that with funding comes control, and that’s one of the biggest reason to sever the funding link, not try to ignore the fact that one follows the other.

Fred Thompson appears to be a federalist in the same way that George W. Bush appears to be a conservative: when it’s politically expedient.

N.M. Gearing Up To Face Drug Police On Federalism

New Mexico has voted to legalize medical marijuana. Starting tomorrow, they’re raising the bar: the state will make sure a safe and legal distribution system in created:

New Mexico has a new medical marijuana law with a twist: It requires the state to grow its own.

The law, effective Sunday, not only protects medical marijuana users from prosecution — as 11 other states do — but requires New Mexico to oversee a production and distribution system for the drug.

“The long-term goal is that the patients will have a safe, secure supply that doesn’t mean drug dealers, that doesn’t mean growing their own,” said Reena Szczepanski, director of Drug Policy Alliance New Mexico.

The state Department of Health must issue rules by Oct. 1 for the licensing of marijuana producers and in-state, secured facilities, and for developing a distribution system.

There’s a bit of a thorny issue, in that I don’t the state should be in business regulating and distributing narcotics. But I’m going to set that aside at this point, because the situation they’re setting up is a better deal that what New Mexico currently has in place.

The really interesting thing, though, is that they’re throwing down a bit of a gauntlet here. And I’m guessing Alberto Gonzales, or whoever succeeds him as AG, is going to pick it up.

The distribution and use of marijuana are illegal under federal law, and the U.S. Supreme Court ruled in 2005 in a California case that medical marijuana users can be prosecuted.

Faced with that dilemma, the health department has asked state Attorney General Gary King whether its employees could be federally prosecuted for running the medical marijuana registry and identification card program, and whether the agency can license marijuana producers and facilities.

Unfortunately for anyone licensed by New Mexico, the Department of Justice doesn’t care about your silly state laws. Marijuana is a dangerous gateway drug, leading our children down a path of failure and ruin. Didn’t you see Reefer Madness?

How do I know they’ll trump state laws? Well, if Raich isn’t enough, you can go one step farther and look at the Ed Rosenthal case. A man specifically deputized by the city of Oakland to grow marijuana for medical marijuana patients was federally prosecuted, and for an added kicker, couldn’t reveal to the jury that what he was doing was specifically approved by the city government.

n 2002, federal agents arrested Ed, even though he had been deputized by the City of Oakland to grow marijuana for medical use. In a stunning setback for the federal government, he was sentenced to only one day in prison. In 2006 the 9th Circuit Appeals Court overthrew Rosenthal’s conviction. Several months later the US Federal Attorney’s office re-indicted him. A new trial commenced on 14 May 2007.

On May 31 2007, it was announced that Ed had been convicted again for three of the five charges against him: one conspiracy count; one count of growing, intending to distribute and distributing marijuana; and one count of using a commercial building as a site for growing and distributing marijuana. He was acquitted of growing and distributing marijuana at the Harm Reduction Center medical-marijuana club in San Francisco. The jury reached a deadlock on whether he had conspired to grow and distribute at the Harm Reduction Center. U.S. District Court Judge Charles Breyer once again prohibited Ed’s lawyers from telling the jury that his work was sanctioned by Oakland government officials, a main point of contention for the jurors of Ed’s first trial. Ed will see no more jail time and will, of course, appeal.

I’m sure the people setting up the licensing system won’t face any prosecution. They may survive under sovereign immunity. But I’d warn anyone considering applying for a state license to remain on guard. The feds don’t care about state law, and they don’t care about the 9th or 10th Amendment. They’ll fight the Drug War ruthlessly, regardless of what the American people or the government of New Mexico have to say about it.

Monday Open Thread: Best & Worst States

As someone who recently moved cross-country, I know that there are definite advantages and disadvantages to living in certain places. Government regulation in a state rarely defines life in that state, but can definitely impact quite a lot of aspects. Now that I live in California, I know that the advantages of perfect weather and proximity to the beach are offset by a few things: high gas prices, high taxes, and poor government (i.e. bad public schools, etc). That doesn’t even include things such as the regulatory state increasing the cost of every other product.

For the open thread, perhaps tell us a little about where you live, and why it’s a good or bad state… I’d particularly love to hear about some of the folks up in the Free State; once I can get my wife to stop voting Democrat, I might try to convince her to move cross-country to the bitter cold of freedom :-)

Why Is The Federal Government Worried About “Hate Crimes” ?

Today, the House of Representatives passed a bill that would add sexual orientation as a category to which existing federal “hate crimes” legislation would apply:

WASHINGTON, May 3 — The House of Representatives voted today to extend “hate crime” protection to people who are victimized because of their sexuality. But the most immediate effect of the bill may be to set up another veto showdown between Democrats and President Bush.

By 237 to 180, the House voted to include crimes spurred by a victim’s “gender, sexual orientation or gender identity” under the hate-crime designation, which now applies to crimes spurred by the victim’s race, religion, color or national origin.

“The bill is passed,” Representative Barney Frank, a Massachusetts Democrat who is gay, announced to applause, most of it from Democrats.

Similar legislation is moving through the Senate. But even assuming that a bill emerges from the full Congress, it will face a veto by President Bush on grounds that it is “unnecessary and constitutionally questionable,” the White House said before the House vote.

The House did not pass the bill by a margin wide enough to override a veto, which requires a two-thirds majority. The Senate is not expected to do so either.

I’m about to write something I don’t think I ever have here at The Liberty Papers…….. President Bush is absolutely correct about this one. The Federal Government does not belong getting involved in prosecuting crimes like this; this should be exclusively a matter for the states.

Personally, I don’t think very much of hate crime laws. If you’re assaulted, does it really matter why someone did it ? And why is it right to punish someone more severely because of who their victim was ? Nonetheless, if states choose to make assaulting someone because of their race, gender, sexual orientation, or religion, then they are free do so.

Andrew Sullivan is, not surprisingly, upset about the threatened  veto and has this to say about the federalism argument:

The federalist argument equally applies. If it is the position of the feds that this should be left entirely to the states, fine. But to say that the feds have a role in matters of race and religion, but not sexual orientation again makes no logical sense, unless the federal government wants to send a strong message about the moral and human and political inferiority of gay people.

From my point of view, though, the federalism argument applies equally against other existing federal “hate crimes” laws. Quite honestly, I think those laws should be repealed and the matter left to the states, where it belongs. Moreover, though, as Dale Carpenter points out, there’s more to this bill than just adding sexual orientation to existing laws:

 The problem with this criticism, however, is that the bill does much more than simply add “sexual orientation” to the existing federal law on hate crimes passed in 1968. It’s a whole new statute. Protecting gays is only one element, though the most publicized. The bill considerably expands federal jurisdiction over hate crimes in general, for all categories, by eliminating the current requirement that the crime occur while the victim is engaged in a federally protected activity. That jurisdictional limitation has kept federal involvement very limited in an area where state authority has traditionally reigned. The new law also calls for more federal resources to be expended on all classes of hate crimes. The veto of an amendment merely adding sexual orientation to existing federal law would pretty clearly reflect an anti-gay double-standard. A veto of this much more comprehensive bill does not.

Given this, the bill is positively screaming to be vetoed. Hopefully, President Bush will follow through with his threat.

Fred Thompson On Federalism

First, let me make it clear. Fred Thompson is not a libertarian, he’s a conservative. Nonetheless, he does have interesting things to say.

Today, he has a column up at NRO that addresses criticism about his votes on tort reform while in the Senate, but has this interesting quote about federalism:

As I understood it, states were supposed to be laboratories that would compete with each other, conducting civic experiments according to the wishes of their citizens. The model for federal welfare reform was the result of that process. States also allow for of diverse viewpoints that exist across the country. There is no reason that Tennesseans and New Yorkers should have to agree on everything (and they don’t).

Those who are in charge of applying the conservative litmus test should wonder why some of their brethren continue to try to federalize more things — especially at a time of embarrassing federal mismanagement and a growing federal bureaucracy. I am afraid that such a test is often based more upon who is favored between two self-serving litigants than upon legal and constitutional principles. Isn’t that what we make all the Supreme Court nominees promise not to do?

Adhering to the principles of federalism is not easy. As one who was on the short end of a couple of 99-1 votes, I can personally attest to it. Federalism sometimes restrains you from doing things you want to do. You have to leave the job to someone else — who may even choose not to do it at all. However, if conservatives abandon this valued principle that limits the federal government, or if we selectively use it as a tool with which to reward our friends and strike our enemies, then we will be doing a disservice to our country as well as the cause of conservatism.

There are many things about the Constitution that can be considered the work of genius, but perhaps the most important among them was the idea of Federalism. As originally intended, the Federal Government was supposed to have only limited jurisdiction over matters that truly impacted the nation as a whole. The vast majority of the rules that impacted every day life were supposed to have been made at the state and local levels, where people would have more control over their legislators.

As with most everything else that the Founders believed, that idea has faded into history. Today, the Federal Government inserts itself into virtually every aspect of our lives and the states have become more and more irrelevant. Over the past 30 years, the Federal Government has used the power of the purse to force the states to change policy on everything from the drinking age to seatbelt laws. And when the voters of California decide that people who are dying of cancer should have the right to utilize marijuana to alleviate their pain and suffering, the DEA steps in and shuts down the clinics……and the Supreme Court says it’s okay.

With the exception of Ron Paul, nearly every Presidential candidate is talking about what the Federal Government can do for you. Almost nobody is talking about the idea that maybe there are some things that it shouldn’t be doing at all.

If Fred Thompson becomes the exception to that rule, then he may be a welcome addition to the race.

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