Category Archives: Separation Of Powers

Interview with Libertarian Presidential Candidate Wayne Allyn Root

Liberty Papers: I’m here with Libertarian Presidential Candidate Wayne Allyn Root and Cornelius Swart of The Portland Sentinel

Portland Sentinel: Okay, so how did you feel about yesterday’s debate based on the rankings?

Root: I don’t think that really had anything to do with it. This is a very different crowd. The debate was not the same crowd as what’s going to be at tonight’s debate. That debate was all the more liberal candidates of the Libertarian Party.

I was the only candidate that is perceived as a conservative that had the chutzpah to show up and face down that crowd and I think they loved it. And I think I will be everyone’s second and third choice in that room. In matter of fact I know I’ll be lots of first choices, I got a whole bunch of tokens there but more importantly I have everybody’s second and third choices and that’s what’s going to win this nomination. No one’s going to win it on the first ballot.

Its going to be won more between the second and the sixth through eighth ballot. And I believe the likeability factor as a second or third choice of conservative Libertarian delegates will absolutely determine the final one. I’m very confident that I’m everybody’s second or third choice, because I’m friendly with everybody and I’m a good guy. And I think that’s very important. I know the issues, I’m the best communicator by far, I’m the best guy to put on national TV. I can put a positive face on this party’s vision and image.

I think everyone knows now for sure that I’m in no way, shape, or form [that I] am really the conservative candidate. I’m actually a moderate, mainstream, Libertarian who’s both right and left. I’m not threatening anyone to the left. I think before last night there were a lot of people who weren’t quite sure which camp I was in. Maybe they were worried I was in Bob Barr’s camp but its pretty obvious I’m not.

Portland Sentinel: How are you different from Bob Barr’s positions?

Root: Well, lets start with a different issue because, I’m not being a typical politician trying to dodge your question but I really mean this. It’s not issues that are going to determine the race. It’s going to be personality that determines the race. And that’s the most important thing you should look at besides the issues. I’m not saying the issues aren’t important but personality is 60% and issues are 40%.

Personality, the proof of that I’ll give you great examples from both the right and the left.

From the right: Barry Goldwater was the original founder of libertarian thought. Lot’s of the people in this party were disciples of Barry Goldwater in ’71 when this [Libertarian] party was founded. They based it on his philosophy. Now I know that there’s also Ayn Rand, Murry Rothbard, and it goes on and on, but the founders of this party, that circle were all Barry Goldwater disciples. Barry Goldwater was a great guy with a great message but he lost in a landslide. Sixteen years later Ronald Reagan took the same message and won in a landslide. Same message.

On the left: George McGovern had a liberal message and lost in a landslide. All these years later, who has the exact same message as George McGovern? Barack Obama, the most popular politician in America. He happens to be my college classmate, class of ‘83 at Columbia University. Barack has a great personality.

So whether you are from the left or the right you have to grudgingly admit it has nothing to do with the message it is the sales ability of the messenger. We are a nation that likes to hear positive message. Ronald Reagan would say things in a positive way and Barack Obama says a liberal message in the most positive way I have ever heard. Most liberals speak in a negative, angry, way. Barack Obama speaks in a happy positive way. He’s the Ronald Reagan of liberals and I’m the Ronald Reagan of libertarians. I did great at every part of the debate except when I brought up Reagan’s name. Mike Gravel went into a tirade about Reagan and blah, blah, blah.

He totally misrepresented my words! I went out of my way to say “I’m not talking about Ronald Reagan’s politics.” I’m not saying I defended what he did in office. I’m just saying that as a communicator, you have to grudgingly admit that the guy was fantastic and that’s the reason he won. It had nothing to do with his views, America liked him.

That’s my message. I can be the Ronald Reagan of this party. Not to say I agree with all of his politics, forget about the politics. Maybe I’ll want to change that for this crowd: I could be the Barack Obama of this party.


Liberty Papers: But are your policies the same no matter what your crowd is?
» Read more


Quote Of The Day: Imperial Presidency Edition

Gene Healy from his new book, The Cult Of The Presidency:

The chief executive of the United States is no longer a mere constitutional officer charged with faithful execution of the laws. He is a soul nourisher, a hope giver, a living American talisman against hurricanes, terrorism, economic downturns, and spiritual malaise. He—or she—is the one who answers the phone at 3 a.m. to keep our children safe from harm. The modern president is America’s shrink, a social worker, our very own national talk show host. He’s also the Supreme Warlord of the Earth.

This messianic campaign rhetoric merely reflects what the office has evolved into after decades of public clamoring. The vision of the president as national guardian and spiritual redeemer is so ubiquitous it goes virtually unnoticed. Americans, left, right, and other, think of the “commander in chief” as a superhero, responsible for swooping to the rescue when danger strikes. And with great responsibility comes great power.

It’s difficult for 21st-century Americans to imagine things any other way. The United States appears stuck with an imperial presidency, an office that concentrates enormous power in the hands of whichever professional politician manages to claw his way to the top. Americans appear deeply ambivalent about the results, alternately cursing the king and pining for Camelot. But executive power will continue to grow, and threats to civil liberties increase, until citizens reconsider the incentives we have given to a post that started out so humble.

As Healy notes, it wasn’t supposed to be this way and we’ve only got ourselves to blame for the way things have turned out.

The Case For Legalizing Prostitution

Steve Chapman takes up the cause at Reason:

Outlawing this commerce serves mainly to make things worse, not better. It assures income to criminal organizations with long experience evading the law. It makes prostitutes vulnerable to abuse. It prevents measures to protect the health of providers and patrons.

It exempts an industry from the taxes and fees that legitimate businesses have to pay. It squanders police resources that could be used to fight real crime, while clogging jails and courts with offenders who will soon be back plying their trade.

Supporters of the status quo say the sex industry is filled with victims of human trafficking—foreigners forced to work in servitude. Whether such modern-day slaves amount to more than a tiny fraction of hookers, however, has never been proved.

Similar claims have been made about migrant farm laborers and domestic workers—which is not taken as grounds to ban fruit picking or home cleaning. Someone whose very job is illegal, in fact, is an ideal candidate for such exploitation, since she is unlikely to go to the cops.

But all this is secondary to the priority of human freedom. We no longer believe the government has a right to prevent homosexuals or heterosexuals from engaging in sexual practices. In 2003, the Supreme Court had the wisdom to strike down a Texas sodomy prosecution against two homosexuals caught in the act.


Some brilliant lawyer ought to ask the courts why the state may ban one type of sex between consenting adults but not another.

I agree with Chapman’s argument, but not with his suggestion for how to go about achieving it. The Courts have no business overturning laws against prostitution as this is clearly something that has traditionally fallen within the police power of the state. And they’re not going to do it any time soon.

In the long run, legalizing prostitution makes eminent sense, but it’s not going to happen by judicial fiat.

When is Armed Rebellion Appropriate?

Treason doth never prosper: what’s the reason? For if it prosper, none dare call it treason.


One interesting question within political theory is the question of when armed rebellion against a government is justified. Most people that tackle this subject try to find some set of moral lines that a government must cross before it becomes illegitimate and thus armed rebellion becomes morally OK.

Being an anarchist I take a different tack. To me, since there is no such thing as a legitimate government and any organization that steals or commits acts of aggression against innocent people is behaving immorally, the question is one more of practicality than morality. The tax-man is another thief come to pick my pocket, and may morally be repelled with the same degree of violence directed toward any other thief. However, such violence may be unwise.

Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.

Sun-tzu – The Art of War

Anti-anarchist Political CartoonIn the late 19th century, as anarchism was coming into full flower, a significant faction of anarchists came to the conclusion that any government official, just like any extortionist or serial thief, could be attacked and even killed. They even encouraged such assassinations, reasoning that if government officials faced a high likelihood of death, they would quit their jobs, replacements would be hard to find and that the state would become paralyzed. They assassinated presidents and policemen, nobles and commoners. The “bomb throwing” anarchist had a major influence on history in the late 19th and early 20th centuries.

Far from weakening the state, their attacks strengthened it. Why? Because they did not consider the effect of their attacks on society as a whole. The vast majority of people didn’t think President McKinley was a gangster who needed killing. Rather they were horrified by the nihilistic abandon of the anarchists and terrified that such violence would be visited upon them. Rather than seeing the assassins’ targets as villains, the vast majority of people saw them as victims and the laws proposed to check the depredations of these anarchists were greeted with wide popular support.

The Palmer crackdowns of World War I, the laws suppressing political speech opposed to the war and government’s assumption of control over the economy were all justified as being necessary tools for government to protect the citizenry against the ‘anarchist threat’.

If fate means you to lose, give him a good fight anyhow.

William McFee

Soldier Shoots MotherOf course, just because a rebellion is doomed to failure does not mean that it should not be attempted. Take the brave Poles who fought heroically against the Germans in the Warsaw Ghetto. They had no chance of succeeding; the Germans had more artillery pieces than the Poles had bullets, yet with the exception of a handful of people like Mahatma Ghandi, most human beings would consider their rebellion and fight to the death to be honorable and praiseworthy.

So where do we draw the line? Why was President McKinley’s assassin wrong and Adolf Hitler’s would-be assassin right? Remember, the U.S. Army was happily slaughtering Philipinos and committing atrocities against civilian populations during the McKinley administration.

Photo of race riotTo me, the criterion that establishes the appropriateness of armed rebellion is the question of what impact the rebellion will have on society as a whole. Armed rebellion is rarely a good idea because it is very destructive to civil society. The violence expands as innocent people are harmed. People are forced to choose sides and choose reactively – driven to pick a side out of revenge or fear. Neighbor turns against neighbor, brother against brother, and the wounds of war are not easily healed. Often the victors establish a new more oppressive government to suppress their enemies than the one that was overthrown.

If we wish to live in a free society, then we must choose the actions that help bring about a free society. A free society is only possible when a preponderance of the people choose freedom, choosing not only to live peaceably with their fellows, but to leap to their neighbors’ defense when their neighbors are threatened. A free society is only possible if, when someone like Ron Reiner proposes to force people to send their children to his indoctrination centers and to force 1% of the population to pay for this operation, the idea is greeted with widespread derision and rejected out of hand. It means that people choose to respect their neighbors and they resist the impulse to loot their neighbors.

War is not its own end, except in some catastrophic slide into absolute damnation. It’s peace that’s wanted. Some better peace than the one you started with.

Lois McMaster Bujold, The Vor Game

Therefore, to muster an effective resistance, a person must choose a set of actions that help bring about a more peaceful society. Grabbing a rifle and shooting at those who oppress us as Carl Drega purported to do, no matter how tempting, is ultimately futile and counterproductive. Not only does it not attract people to one’s cause, but it provides the government with a opportunity to send out very persuasive propaganda to the effect that those who oppose the government are a menace to their neighbors and that the draconian measures that government officials take are needed to protect the citizenry from these dangerous non-conformists.

But we must also stand up against those who say that somehow this is all right, this is somehow a political act — people who say, I love my country, but I hate my government. These people, who do they think they are saying that their government has stamped out human freedom?

U.S. President Bill Clinton, Remarks at Emily’s List Event, May 1 1995


To create a free society, we must persuade our neighbors to seek freedom. We must persuade them to adopt our aims as their own. This is done through speech and writing, by setting a public example through acts of civil disobedience. Examples of these forms of resistance includes such steps as

  • Videotaping police operations and publishing them on youtube.
  • Inventing new technologies that make bad laws impossible to enforce.
  • Befriending law enforcement officers and persuading them to question the bad laws they enforce.
  • Organizing mass movements that publicize the pro-freedom cause.
  • Flouting unjust laws in a manner that elicits public contempt for them.

The Revolution was effected before the War commenced. The Revolution was in the minds and hearts of the people; a change in their religious sentiments of their duties and obligations. This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.

John Adams

What is needed is a propaganda war, and these are the tools of the effective propagandist. Most people do have a rudimentary emotional sense of justice and the most effective forms of resistance are ones that evoke it. The goal is to have everyone, including government officials, rally to one’s cause.

Is violence never appropriate? Hardly. Violence is appropriate when both of the following conditions are met:

  1. Child killed in the bombing of the Alfred Murrah Federal BuildingThe violence must be proportionate to the aggression being resisted. The violence cannot be overly destructive or murderous. It must rather be at the minimum level to end whatever aggression one is defending against. Should the aggressor end his aggression and withdraw, the violence must end. This latter point is very important, since the only way a peaceful and freer society is going to happen is if the rebellion ends with the survivors willing to live peaceably with each other. And, of course, the violence cannot be aimed at innocent individuals. The picture to the right is not ‘collateral damage’ – it is murder!
  2. The violence will not make things worse. This requires that one of the following two conditions are met,
    1. The majority, or a sizeable minority of the populace supports the rebels’ aims but refuses to act out of fear. In the early 1920’s, as the Bolsheviks sought to establish control over the Russian empire, the GRU prosecuted a terror campaign against the citizenry. At any time of day there could be a knock on the door, or an agent seizing hold of a victim on the street or in their workplace. The victims would be bundled off to be tortured and, all to frequently, shot without even the pretense of a show trial to justify their murder. One Russian writer who witnessed this reign of terror commented that had one in ten households met the GRU agents with clubs and knives, it would have stopped the organization in its tracks. The GRU counted on fear and its ability to prevent its victims from acting in concert to enable their murderous campaign.
    2. When one faces certain death like the Poles facing deportation to Treblinka. In this case one has absolutely nothing to lose.

But if those criteria are not met, then violent rebellion is probably counterproductive and should be avoided. In the vast majority of cases, these criteria are simply not met.

I am an anarcho-capitalist living just west of Boston Massachussetts. I am married, have two children, and am trying to start my own computer consulting company.

Superdelegates And The 17th Amendment

The Democratic Party is finding itself in a very strange position. They’re approaching a potential situation where neither of their candidates have enough elected delegates to secure the nomination, and the race will turn to the superdelegates to decide. Primary results can then be trumped by the say-so of the “party elites”. Thus, the party who complained that Al Gore “really won” the 2000 election due to the popular vote may nominate Hillary Clinton, who now looks unlikely to win the national Democrat popular vote or the elected delegate count.

The schadenfreude of watching the Democratic Party put into a position of acting undemocratically notwithstanding, this case is very interesting on its own merits. It has a parallel with our own Constitution and the 17th Amendment, and thus I find myself cheering on the “antidemocratic” forces within the party rather than those who would rely completely on the popular vote.

In the days of our Founding Fathers, “democracy” was a four-letter word. Democracy is mob rule, and unchecked democracy can lead down a very nasty road. America was never intended to be a democracy, it was intended to be a Republic strictly limited by the bounds of the Constitution, with democratic processes implemented to elect [some of] the leaders of that republic. Even so, our Founding Fathers chose against the direct election of Senators, because they wanted a counterbalance to the power of the democratically-elected House. Particularly, they are a check on the growth of central power, a way for the States to retain powers that 50%+1 of the members of the House of Representatives wanted to give to the central government.

The democratic party is designed in much the same way. Some delegates are elected popularly, and tasked with voting based on certain rules in accordance with what “the masses” want. On top of this are superdelegates, whose mandate is different: do what is best for the party. If the scenario plays out in the most interesting way, with Barack Obama leading in both the popular vote and the elected delegate count, there will be loud calls for the superdelegates to vote along the same lines as the popular vote.

The specific purpose of the superdelegates, however, is to be the brake on bad decisions of the popular vote if they believe it to be necessary. The superdelegates have a mandate, and if they believe that the popular vote is contrary to the goals of the party itself, they are obligated to follow their belief, not the popular vote. This is an unpopular position to take, of course, because we’ve been raised to believe that democracy is– in and of itself– a worthwhile end. Democracy, though, is a means and not an end. Democracy is only justified as a means if it reaches the “right” ends, and there is enough evidence throughout history to show that democracy often leads towards ugly, nasty results (slavery, segregation, and Jim Crow being a few clear examples).

All this doesn’t mean that I’m implying that the superdelegates, if the situation breaks such that Obama leads the popular vote and elected delegate count, shouldn’t vote for him. However, it is important that the superdelegates follow their conscience and do what they believe best for the party, not simply parrot the popular vote for its own sake. The superdelegates should view such things as the preferences revealed by the popular vote as only one aspect in their decision. Other crucial aspects to consider would be the questions of which candidate more closely lines up with core Democratic party policies and which is more likely to defeat the Republican in November. This calculation may cause their vote to line up with the leader of the popular vote and elected delegate count, or it may not. Either way, the superdelegates should not allow themselves to be railroaded into making a vote they don’t believe is the correct move for the party.

I pointed out quite a while ago that Libertarianism and Democracy are not mutually exclusive, but that it often lines up that way, as the incentives of government tend towards government power and away from individual liberty, and this is no different in a democratic form of government. Likewise, it must be pointed out that the Democratic Party has its own goals as an organization, and it is the obligation of members of the party to see that those goals are realized within the organizational rules they’ve enacted, even if it means that primary voters get overruled. Much as the original purpose of the Senate was to protect the interests and rights of States against those of the general populace, the superdelegates are tasked to protect the party from mistakes made by the Democratic primary voters. What that means for their nomination vote is up to their own conscience, and should not be subject to any constraints saying they must “follow the popular vote”.

Two Victories on the Mandatory Minimums Front

WASHINGTON – The Supreme Court on Monday said judges may impose shorter prison terms for crack cocaine crimes, enhancing judicial discretion to reduce the disparity between sentences for crack and cocaine powder.

By a 7-2 vote, the court said that a 15-year sentence given to Derrick Kimbrough, a veteran of the 1991 war with Iraq, was acceptable, even though federal sentencing guidelines called for Kimbrough to receive 19 to 22 years.

In a separate sentencing case that did not involve crack cocaine, the court also ruled in favor of judicial discretion to impose more lenient sentences than federal guidelines recommend.

The challenges to criminal sentences center on a judge’s discretion to impose a shorter sentence than is called for in guidelines established by the U.S. Sentencing Commission, at Congress’ direction. The guidelines were adopted in the mid-1980s to help produce uniform punishments for similar crimes.

The cases are the result of a decision three years ago in which the justices ruled that judges need not strictly follow the sentencing guidelines. Instead, appellate courts would review sentences for reasonableness, although the court has since struggled to define what it meant by that term.

Kimbrough’s case did not present the justices with the ultimate question of the fairness of the disparity in crack and powder cocaine sentences.

In a time when 5-4 Supreme Court rulings are the norm, this 7-2 ruling is a strong signal that the courts should have more discretion when sentencing individuals. Some may call this ruling “judicial activism” and one could probably make that case. But assuming that this is judicial activism, I would argue that the courts are constitutionally held to an even higher duty to make sure the punishment fits the crime; to do justice. When the prescribed punishment violates common sense, then judicial activism is completely appropriate (see my posts about Genarlow Wilson here, here, and here). We cannot reasonably expect the courts to be reasonable if state and federal laws tie the hands of the judges with unreasonable mandatory minimum sentencing laws.

The article continues:

Congress wrote the harsher treatment for crack into a law that sets a mandatory minimum five-year prison sentence for trafficking in 5 grams of crack cocaine or 100 times as much cocaine powder. The law also sets maximum terms.

Seventy percent of crack defendants are given the mandatory prison terms.

Kimbrough is among the remaining 30 percent who, under the guidelines, get even more time in prison because they are convicted of trafficking in more than the amount of crack that triggers the minimum sentences.

Justice Ruth Bader Ginsburg, writing for the majority, said, “A reviewing court could not rationally conclude that it was an abuse of discretion” to cut four years off the guidelines-recommended sentence for Kimbrough.

Justices Samuel Alito and Clarence Thomas dissented.

The Sentencing Commission recently changed the guidelines to reduce the disparity in prison time for the two crimes. New guidelines took effect Nov. 1 after Congress took no action to overturn the change.
The commission is scheduled to vote Tuesday afternoon on the retroactive application of the crack cocaine guideline amendment that went into effect on Nov. 1. The commission has estimated 19,500 inmates could apply for sentence reductions under the proposal.

I certainly hope these 19,500 inmates do just that; these 19,500 spots would serve us all better if they were taken by violent criminals who are a genuine threat to the life, liberty, and property of us all.

The Supreme Court also made a ruling on another mandatory minimums case:

In the other case, the court, also by a 7-2 vote, upheld a sentence of probation for Brian Gall for his role in a conspiracy to sell 10,000 pills of ecstasy. U.S. District Judge Robert Pratt of Des Moines, Iowa, determined that Gall had voluntarily quit selling drugs several years before he was implicated, stopped drinking, graduated from college and built a successful business. The guidelines said Gall should have been sent to prison for 30 to 37 months.

The sentence was reasonable, Justice John Paul Stevens said in his majority opinion. Alito and Thomas again dissented.

The cases are Kimbrough v. U.S., 06-6330, and Gall v. U.S., 06-7949.

Another case of judicial activism? The court was once again correct to choose probation over prison. Mr. Gall had already taken steps to be a productive, law abiding citizen. What good would come of putting an already rehabilitated individual into the prison system? These are only questions which can be answered by a judge or a jury; not an arbitrary one-size-fits-all mandatory minimum sentencing law.

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.


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.

Reason interviews Andrew Napolitano

Fox News contributor Andrew Napolitano recently gave an interview to Reason magazine to promote his new book, A Nation of Sheep. I have to say that this is one of the best interviews I’ve read in a very long time.


The Patriot Act’s two most principle constitutional errors are an assault on the Fourth Amendment, and on the First. It permits federal agents to write their own search warrants [under the name “national security letters”] with no judge having examined evidence and agreed that it’s likely that the person or thing the government wants to search will reveal evidence of a crime.

Remember that the British government permitted its soldiers to execute self-written search warrants. They called them “writs of assistance,” and they were one of the last straws that caused American colonist to rebel. It’s bitterly ironic that 230 years later a popularly elected government would authorize its own agents to do the same thing that when a monarchy did it, we fought a war of rebellion in reaction—which we won!

On Ron Paul:

Congressman Paul has rejuvenated almost single-handedly the Goldwater wing of the GOP. Now Reagan tried, before [James] Baker and his boys advised him on how to behave. Now, I loved the man, but if you look at his record and rhetoric, they are two different things. But Ron Paul had made it legitimate again for small government, maximum individual liberty, Goldwater Republicans to come forth and complain about big government, and I am the recipient of lots of those complaints.

On natural rights:

This is more than an academic debate. If our rights come from government, then the Patriot Act is lawful and constitutional because the government that gives freedom can take it away just by having the president sign a bill into a law. But if rights come from our humanity, as I argue almost every day on Fox, than government cannot take freedom away absent due process and a fair trial, where you are charged and convicted of violating someone else’s freedom.

The president had said he believes in natural rights. Unfortunately when he signs these bills that take away our rights, he reveals he either doesn’t know what he’s doing or he doesn’t really believe in natural rights. The Patriot Act is not only unconstitutional, it’s unnatural, since it purports to take away that which naturally belongs to us.

Is Dick Cheney Unconstitutional ?: The Case Against An Activist Vice-Presidency

In a provocatively titled law review article, Glenn Reynolds, who spends his time at the University of Tennessee College of Law when he isn’t blogging raises some very interesting questions about the Office of Vice-President and what it has become in modern times.

The article itself arises out of the controversy that erupted earlier this year when Vice-President Cheney’s office was refusing to comply with a request for documents from Congressman Henry Waxman and claimed that Cheney was, under the Constitution, not a part of the Executive Branch but rather a legislative official and thus not subject to Executive Branch disclosure laws. Cheney’s office later withdrew this argument, but as Reynolds argues, if Cheney’s inital argument is right, and even if it’s not, there are serious Constitutional and policy problems with the extent to which modern Vice-President’s have assumed powers once exclusively exercised by the President himself or his appointees.

As Reynolds notes, the idea that the Vice-President is a member of the Legislative Branch rather than the Executive Branch is not as insane as it sounds:

[T]he argument that the Vice President is a legislative official is not inherently absurd. The Constitution gives the Vice President no executive powers; the Vice President’s only duties are to preside over the Senate and to become President if the serving President dies or leaves office. Traditionally, what staff, office, and perquisites the Vice President enjoyed came via the Senate; it was not until Spiro Agnew mounted a legislative push that the Vice President got his own budget line. The Vice President really is not an executive official. He or she executes no laws—and is not part of the President’s administration the way that other officials are. The Vice President can’t be fired by the President; as an independently elected officeholder, he can be removed only by Congress via impeachment.

That last item — the question of who can remove the Vice-President from office and how he can be removed — is important because it goes to the question of whether the delegation of Presidential powers to the Vice-President is Constitutional to begin with.

Back in 1986, the Supreme Court was asked to rule on the Constitutionality of the Gramm-Rudman-Hollings Act, one of the many 1980s era attempts to control deficit spending. Under Gramm-Rudman, the Comptroller General, the head of the Government Accountability Office, which is a part of the Legislative Branch, was given the authority to make across the board spending cuts in the event that Congress and the President were unable to agree on a budget that came within certain spending guidelines. The Supreme Court struck down the law, relying principally on the fact that the law granted Executive Branch authority to someone who is clearly under the control of Congress:

The critical factor lies in the provisions of the statute defining the Comptroller General’s office relating to removability. Although the Comptroller General is nominated by the President from a list of three individuals recommended by the Speaker of the House of Representatives and the President pro tempore of the Senate, and confirmed by the Senate, he is removable only at the initiative of Congress

Thus, the argument goes, just as it was unconstitutional for Gramm-Rudman to devise Executive Branch authority in an official who is solely under the control of Congress, granting Executive Branch authority to the Vice-President, who cannot be removed from office by any means other than impeachment, is similarly unconstitutional.

But, of course, the Supreme Court is unlikely to ever rule on this issue, as Reynolds points out. For one thing, it’s hard to conceive of a case that would be able to make it’s way through the Federal Courts without being tossed out for lack of standing. For another, the Court is likely to defer ruling on such a direct confrontation between the other two branches of government on the ground that it constitutes a “political question.”

That doesn’t mean that it’s a moot point, though, or that Vice-President Cheney’s unprecedented involvement in Executive Branch decision making should not be questioned. As Reynolds points out, it’s a pretty bad idea from a policy perspective:

[T]he Vice President is the only person nationally elected to serve if the President is unable to govern, and the Vice President’s involvement, a la Cheney, in day-to-day policy activities sacrifices the distance that earlier Vice Presidents possessed; those unhappy with President Bush’s Iraq policies, for example, can criticize Cheney in a way that critics of Carter’s Iran policies could not criticize Mondale. In the event that policies in which the Vice President is implicated go sufficiently awry to end a Presidency, the Vice President will not be able to appear as a fresh start and may be liable to impeachment or forced resignation as well. In such cases, this risks a move to someone not nationally elected—the Speaker of the House or the president pro tempore of the Senate—and very serious consequences for a nation that would be, in those circumstances, already divided and vulnerable.

Which is exactly what we don’t need. It’s time to bring back the days of the Do-Nothing Vice-President.

Why The Line-Item Veto Won’t Work

This morning George Will makes an interesting argument against what has been a traditional part of the Republican agenda — the line-item veto:

The line-item veto expresses liberalism’s faith in top-down government and the watery Caesarism that has produced today’s inflated presidency. Liberalism assumes that executive branch experts, free from parochial constituencies, know, as Congress does not, what is good for the nation “as a whole.” This is contrary to the public philosophy of James Madison’s “extensive” republic with its many regions and myriad interests.

If [Mitt] Romney thinks a line-item veto would be a major force for federal frugality, he is mistaken. Gov. Reagan used his line-item veto to trim, on average, only about 2 percent from California’s budgets. And much larger proportions of state budgets than of the federal budget are susceptible to such vetoes. Sixty-one percent of the federal budget goes to entitlements and to interest payments on government borrowing, neither of which can be vetoed. An additional 21 percent goes to defense and homeland security. Realistically, the line-item veto probably would be pertinent to less than 20 percent of the budget.

In other words, even if the President did have a line-item veto and exercised in the most fiscally conservative manner possible, it would have a minimal impact on the federal budget and would do almost nothing to deal with the real source of out-of-control spending.

The more interesting part of Will’s argument, though, is his point that granting a line-item veto would upset the separation of powers between Congress and the President:

After a century of the growth of presidential power and after eight years of especially aggressive assertions of presidential prerogatives, it would be unseemly to intensify this tendency with a line-item veto. Conservatives used to be the designated worriers about the evolution of the presidency into the engine of grandiose government. They should visit the Rotunda for the Charters of Freedom in the National Archives building on Constitution Avenue. There the Constitution is displayed under four large glass plates. Almost half of the glass is required to cover just Article One. That concerns the legislative branch, which is the government’s “first branch” for a reason.

Then again, Romney and Giuliani both seem to have graduated from the George W. Bush School of Government, where Article I is an inkblot.

Mike Ditka, Former Players Ask the U.S. Senate to “Fix” the NFL

WASHINGTON — After testimony Tuesday by retired NFL players about red tape in qualifying for disability benefits related to on-the-field injuries, Sen. John Kerry, D-Mass., said the league is “dropping the ball.”


“My hope is that the league will get its act together here,” Kerry said. “I am prepared, if the league doesn’t do that, to introduce, which I hope we would never have to do, legislation to create some kind of appropriate accountability and oversight.”


Upshaw said that of 1,052 players who have applied for disability since 1993, 428 (40.7%) have had their claims approved. But he told the committee the work could be streamlined if Congress changed a law that requires the six-member board, which makes decisions on claims, to include three representatives from the team owners and three from the union. Upshaw said it “makes sense” for the players union alone to make the decisions.


Hall of Famer Mike Ditka: “The system is broke. Fix it. … Don’t make proud men beg.”

The idea that former NFL players and coaches have sought help from the U.S. Senate to act as a referee between former players and the NFL bothers me both as a fan of the NFL and as someone who believes the government should stay within its Constitutional boundaries (I’m especially disappointed in “Iron Mike” Ditka for stooping to such a low level; I thought he was made of sterner stuff). If history is any indication, if Ditka et al wish for the congressional oversight over the NFL, they will likely get their wish. John Kerry seems all too eager to put on the zebra stripes, throw the flag, and penalize the NFL for unsportsmanlike conduct.

Correct me if I’m wrong, but don’t we have a few more pressing needs that our elected officials should be concerned with such as the war, the VA system, wasteful spending, etc?

As for the former players, they had to know what they were getting into when they decided to play professional football. NFL players both past and present have received the fame, the fortune, and the ability to retire when they are very young. Sure, the players of yesteryear did not earn quite what today’s players do, and perhaps were not marketed as aggressively as today’s players but they each signed contracts and should have known what the risks were. Football ceases to be a game at the professional level (probably even at the college level) because of the increased size, strength, and speed of the players. Players can and do get injured; most feel the toll on their bodies for the rest of their lives.

Given these risks, what should the federal government do? The only branch of the government that could possibly have a role would be the judicial branch. If the NFL somehow violated the terms of these players contracts, the NFL should be compelled to honor those terms by the courts. If this is not the case, then these former players should have no remedy from the federal government.

This does not mean, however; that these players don’t have other means to pay for their medical expenses. The NFL, its players, and its coaches are not hurting for money. If Ditka doesn’t want to “make proud men beg” then shouldn’t he first appeal to his NFL contacts and pass the hat? Surely, there would be at least a few owners, coaches, players and perhaps even fans who would be willing to donate some of their money to such a cause.

As for those who are currently playing in the NFL, if they are concerned with health issues which inevitably will continue long after retirement, they need to address these issues within their organizations and within the NFL. Not one nanosecond of the American people’s time should be spent on this matter.

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.

Another Strike Against Mike Huckabee

He supports a Federal law banning smoking in public places.

Governor, do me a favor, please read this document, especially this part, then read this Amendment, and this one.

Now, tell me, where exactly does the Congress of the United States get the authority to regulate smoking in public places ?

What is Hillary Clinton Hiding?

Many have called the Bush administration the “most secretive administration in American history.” Among those making this charge is Hillary Clinton; likely the next to occupy 1600 Pennsylvania Avenue (unfortunately). On Clinton’s website, she states that “We need a return to transparency and a system of checks and balances, to a president who respects Congress’s role of oversight and accountability.”

This is quite a departure from her days of her illegal holding of closed meetings regarding her socialized healthcare plan early in her husband’s administration. Perhaps she has had a change of heart about transparency in government since then?

Apparently, this policy does not apply to her campaign, however. Last week the AP reported that millions of documents being archived at the Bill Clinton Presidential Library from her husband’s administration will not be available until after the 2008 election (How convenient!). Judicial Watch, a conservative watchdog group and no doubt part of the “vast right-wing conspiracy,” has filed a Freedom of Information Act lawsuit against the Clinton Library to compel the library to release the records. Ironically, Hillary Clinton might benefit from the Bush administration’s secrecy she so decries. In 2001, President Bush signed an executive order which allows former presidents to deem certain documents privileged and apparently exempt from the Freedom of Information Act.

Here’s a wonderful opportunity for Hillary Clinton to demonstrate how open she will be in leading her administration. All she needs to do is sweet talk her husband and have him release the documents which pertain to her. I’m sure she has nothing to hide.

The ball is in your court Hillary. Why should the American people believe you will be transparent in your administration if you will not be transparent in your campaign? The American people have a right to know before they choose the next president.

Congressional Approval Rating At Historic Lows

According to the latest Gallup Poll, Congress’s approval rating is at a low not seen since the days when guys like Tom Foley were in charge:

PRINCETON, NJ — A new Gallup Poll finds Congress’ approval rating the lowest it has been since Gallup first tracked public opinion of Congress with this measure in 1974. Just 18% of Americans approve of the job Congress is doing, while 76% disapprove, according to the August 13-16, 2007, Gallup Poll.

That 18% job approval rating matches the low recorded in March 1992, when a check-bouncing scandal was one of several scandals besetting Congress, leading many states to pass term limits measures for U.S. representatives (which the Supreme Court later declared unconstitutional). Congress had a similarly low 19% approval rating during the energy crisis in the summer of 1979.

And what could the reason be for this historic low ? The Gallup people think there are a few:

Americans elected the Democrats as the majority party in Congress in November 2006’s midterm election in large part due to frustration with the Iraq war and an ineffective and scandal-plagued Republican-led Congress. But any hopes that the elections would lead to change have not been realized as Democrats’ repeated attempts to force a change in Iraq war policy have been largely unsuccessful due to presidential vetoes, disagreements within their own party, and the inability to attract Republican support for their policy proposals. Also, many of the Democratic leadership’s domestic agenda items have not become law even though some have passed one or both houses of Congress.

As the trend in congressional approval makes clear, ratings of Congress usually suffer during times of economic uncertainty, as during the late 1970s and early 1990s. While Americans’ ratings of current economic conditions are not near historical lows, there is a great deal of concern about the direction in which the economy is headed. The latest poll finds a record 72% of Americans saying the economy is “getting worse.”

It’s not at all surprising that the Democrats have disappointed the public. After all, the leadership that came into power in January isn’t all that different from the people that were in charge back when Newt Gingrich’s revolution rolled through the country and brought Republican majorities in both Houses of Congress. In fact, in some case, the same people who were in charge back then are in charge again now.

That’s the problem with the “throw the bums out” idea. More often than not, it really means “throw the bums out and bring back the bums we threw out the last time.” In the end, very little gets accomplished.

That’s why it’s time to start thinking about some radical ideas. Like term limits and returning Congress to the citizen legislature it was meant to be. And, although I know this is never likely to happen, repealing the 17th Amendment for the reasons I named in this post.

It’s time to start thinking some radical thoughts people.

Congress Gave Bush More Spying Powers Than Even He Wanted

So says the New York Times:

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said.

Administration officials acknowledged that they had heard such concerns from Democrats in Congress recently, and that there was a continuing debate over the meaning of the legislative language. But they said the Democrats were simply raising theoretical questions based on a harsh interpretation of the legislation.

They also emphasized that there would be strict rules in place to minimize the extent to which Americans would be caught up in the surveillance.

The dispute illustrates how lawmakers, in a frenetic, end-of-session scramble, passed legislation they may not have fully understood and may have given the administration more surveillance powers than it sought.

Is it too much for them to read the laws before they pass them? No wonder why these guys have 29% approval.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ and Rare. You can also find me over at the R Street Institute.

Padilla — Results Buttresses Bush & His Detractors

Jose Padilla was tried and convicted in a civilian court of law, and this result is being claimed as a victory for both sides.

The Bush administration can point to this victory as a sign of it’s ability to find and prove that Padilla was in fact guilty of being an active supporter of terrorism:

The guilty verdict against Jose Padilla showed the Bush administration could win a high-profile terrorism conviction despite questions over whether it acted legally in detaining the U.S. citizen for 3-1/2 years without charges.

Given the way that this case came down for the Administration, they should be happy to take what they can get. Had he been exonerated, it would have been a big black mark on their ability to prosecute the War on Terror here at home.

Even so, he was never charged with the “dirty bomb” plot for which he was originally apprehended, and only convicted for being a part of an existing terrorism investigation on other matters.

This has two implications. First, it shows that Bush need not rely on detaining suspects as “enemy combatants” and never bringing them to trial. It suggests that if he has enough evidence to consider someone a terrorist, it is possible to give that suspect a fair hearing in court. Second, it shows that this is possible in civilian court, not only in military tribunals. Both suggest a victory for habeas corpus and accountability of government. Both suggest a defeat for the secretive tactics– dangerous to liberty– that this administration used.

This result can be seen as a victory for the adminstration, but only so far as it was not a major defeat. On the other hand, the case can be seen as support for those who have always claimed that the detention of enemy combatants is illegal, by giving them cause to also claim that it is unnecessary. Even more importantly, to see that we can apprehend and convict terrorists without the attack on civil liberties that the Bush administration claims are necessary is a win for America and the rule of law.

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?

Adequately Explained

Never ascribe to malice, that which can be adequately explained by incompetence –Napoleon Bonaparte

So, it’s been making the rounds on the far lefty loony blogs and forums (and amazingly not a few libertarian sites as well) for some time now that Bush and company are going to stage a terrorist attack and use it as justification to suspend the elections etc… etc…

This is generally followed by a litany of supposed “crimes and abuses” by the Bush administration, some of which are legitimate, some are blown out of proportion and context, and some of which are just plain lunacy.

Then of course comes the requisite rant about how the “right wing idiot sheeple will just swallow whatever lies they are told and give up all our essentials freedoms because they believe Bush is getting messages from god about the rapture” or some other such nonsense.

Bull. Utter and complete, unmitigated bull.

I won’t even attempt to refute the base assertion her;e that Bush and company would attempt some kind of coup, or false flag operation etc… To do so would be a pointless waste of time; one does not argue with the insane, one treats them medically.

But, I’d like to address that other assertion; that those of us not on the “enlightened progressive left” would blindly follow the orders of such a man as would attempt such a thing; for any reason, never mind a religious one.

Believe me on this one, real conservatives and libertarians dislike the abridgment of our fundamental rights FAR MORE than those on the left do. Leftists are almost always willing to accept a tyrant, or tyrannical abuses of power, if they believe it’s “all in a good cause”. Libertarians and real conservatives are substantially defined by the fact that they are most definitely not.

Even if you LIKE what the president is doing with the power he has arrogated to himself (and in some cases I think real good is being done; though mostly it’s just a stunning example of incompetents given too much power and authority), you don’t want them to HAVE that power, because the next guy could be a deranged madwoman.

Oh and for those of you who harp constantly on the “unprecedented disrespect for the American people and our civil rights, displayed by the Bush administration”, you obviously weren’t paying attention from January 20th 1993 through January 20th 2001.

As an Air Force officer, I saw a lot of “interesting” data during the Clinton administration. Believe me, it was every bit as bad as you imagine Bush to be; they were just a lot better at sugarcoating it and/or hiding it. If you don’t believe me talk to anyone who did any intel analysis during those years; they’ll have a similar story to tell. The Clinton administration lived by the dictum: “Power Corrupts, Absolute Power is really kinda cool”.

What is striking isn’t how much this administration abuses the power of the executive office; Clinton, Nixon, Johnson, Kennedy, Wilson, and both Roosevelts did FAR worse. What’s striking is how utterly incompetent they have been at doing so.

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

The Founders, The President, And Iraq

In today’s New York Times, Adam Cohen points out that the Founders had a very different idea about Presidential authority in war time from the one the Bush Administration puts forward:

The Constitution does make the president “commander in chief,” a title President Bush often invokes. But it does not have the sweeping meaning he suggests. The framers took it from the British military, which used it to denote the highest-ranking official in a theater of battle. Alexander Hamilton emphasized in Federalist No. 69 that the president would be “nothing more” than “first general and admiral,” responsible for “command and direction” of military forces.

The founders would have been astonished by President Bush’s assertion that Congress should simply write him blank checks for war. They gave Congress the power of the purse so it would have leverage to force the president to execute their laws properly. Madison described Congress’s control over spending as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

The framers expected Congress to keep the president on an especially short leash on military matters. The Constitution authorizes Congress to appropriate money for an army, but prohibits appropriations for longer than two years. Hamilton explained that the limitation prevented Congress from vesting “in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.”

Things are far different today, of course. And that isn’t just the fault of the Bush Administration. For the most part, Congress has been a willing participant in this unprecedented expansion of Executive Branch power.

1 2 3 4 5 6