Category Archives: Founding Fathers

Quote Of The Day

On taxes in Boston:

The business of the Town is still decaying, the taxes are not at all lessened, but continue very high — A great many of our industrious inhabitants are gone into the country, the burden now falls on a small number; and they less able to bear it than ever — This number is still decreasing; the rich complain of their rates, and some have moved and others are about moving into the country towns, where they are greatly eased. For my own part, I have a love for my native Town, but as my taxes are so large, I am resolved to move my family into the country.

That, of course, was June 1755, on a front-page letter to the Boston Gazette.

Today’s equivalent would be moving production of goods to low-cost business climates (Nevada, Tennessee, or offshore) rather than just a few towns away, but the economic laws are no different today than they were 255 years ago.

Quote from Samuel Adams: A Life by Ira Stoll [p.27].

On Islam, A Fine Line Between Criticism and Xenophobia

There are serious concerns about radical Islam and political Islam as a movement. It’s something we should be seriously conscious of. I’ve written about this extensively here at TLP.

Given that, there is a very, very fine line between critiquing the retrograde nature of radical Islam and outright xenophobia. I honestly find it hard to discern this line myself, since I am fully ready to call out efforts by Christians, Muslims or any other group to insert religious dogma into politics. Wherever that line is, it is more than readily apparent that many who are protesting the building of a mosque near Ground Zero in New York have crossed it.

There’s a part of the constitution that I’m especially fond of. It’s called the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The “free exercise thereof” doesn’t just mean free exercise of Roman Catholicism, the faith of mosque critic Newt Gingrich, or Lutheranism, the denomination of Michelle Bachmann, another critic. It counts for Muslims, Jews, Christians, Buddhists or Hindus.

Pennsylvania Department of Revenue Ad: “Find Us Before We Find You”

The Pennsylvania Department of Revenue is currently running an ad – a friendly reminder to encourage PA residents who owe back taxes to pay up because the PDR knows where you live.

Creepy huh?

But don’t be alarmed PA residents who owe back taxes, go to the website (PAtaxPayup.com) and you will find that the PDR is actually doing you a favor: tax “amnesty” for those who pay by June 18, 2010. (The site even features a countdown clock that lets you know how much time you have left. How thoughtful!)

Here are the terms of the amnesty:

Pennsylvania authorized (under Act 48, signed into law on Oct. 9, 2009) a Tax Amnesty period from April 26 to June 18, 2010.

During this limited, 54-day timeframe, the Pennsylvania Department of Revenue will waive 100 percent of penalties and half of the interest for anyone who pays his/her delinquent state taxes.

Individuals, businesses and other entities with Pennsylvania tax delinquencies as of June 30, 2009, are generally eligible to participate in the Tax Amnesty Program.

What a bargain! If you “voluntarily” pay your taxes by June 18th, not only do you get to avoid the whole armed government agents forcibly removing you from your home and taking you to jail thing but they will also take a little less of your money.

In some ways, this is one of the most honest PSAs ever produced by a government agency but still fails to directly address the question of what happens if PA residents allow the PDR to “find them” first. What the ad implies but does not directly say is “If we do find you first, we will make your life very miserable because, we, the government have the legal ability to use deadly force to get our way and you do not.”

Let’s put aside the whole debate about whether or not taxation is legitimate or if it is theft and consider the bigger message. Perhaps George Washington, the father of our country himself said it best:

“Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action.”

Government = Force. Keep this in mind next time you want to ask the government to “do something” on your behalf.

Hat Tip: Reason Hit and Run (also take a look at the June 2004 Reason cover that is eerily similar to the above ad)

Happy Birthday, Mr. Jefferson

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

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

First, from the Virginia Statute For Religious Freedom:

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

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

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

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

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

A perfect man ? No.

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

Memo To Libertarians: There Was No Golden Age Of Liberty

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

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

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

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

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

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

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

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

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

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

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

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

The Case Against An Article V Constitutional Convention

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

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

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

Here’s what Article V says about a Convention:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Don’t Say You Want A Revolution

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

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

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

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

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

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

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

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

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

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

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

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

Kevin ends with the only productive strategy that is left:

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

Amen

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I agree with Kerr.

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

Historically Appropriate Fact Of The Day

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

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

Just sayin’

Bruce Bartlett, May Your Chains Set Lightly Upon You

Ezra Klein quotes approvingly from Bruce Bartlett’s new book, The New American Economy: The Failure Of Reaganomics And A New Way Forward:

The reality is that even before spending exploded to deal with the economic crisis, the government was set to grow by about 50 percent of GDP over the next generation just to pay for Social Security and Medicare benefits under current law. When the crunch comes and the need for a major increase in revenue becomes overwhelming, I expect that Republicans will refuse to participate in the process. If Democrats have to raise taxes with no bipartisan support, then they will have no choice but to cater to the demand of their party’s most liberal wing. This will mean higher rates on businesses and entrepreneurs, and soak-the-rich policies that would make Franklin D. Roosevelt blush.

Shorter: “Hey conservatives, you’ve completely and hopelessly lost the spending war. If you don’t play nice, you’re going to get even more screwed by the tax man than if you sit at the table.”

To which Samuel Adams might have responded: “If ye love wealth better than liberty, the tranquility of servitude than the animated contest of freedom — go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that you were our countrymen!”

In short, Bruce Bartlett has surrendered. He has taken the view “posit a giant welfare state — now what’s the best way to pay for it?” He suggests that if conservatives try to set the menu at — as Billy Beck would call it — the cannibal pot, that MAYBE they’ll just lose an arm and not the leg to go along with it.

All in all, Bartlett’s view is probably the calmest and most peaceful answer. But it gives us a nation that is so unlike America that I’m not sure I want a part of it. The peaceful way out is to accept that Democracy has given us a giant welfare state, that Democracy is never going to rescind it, and that therefore we might as well pay for it. He’s taking Mencken’s quote at face value:

Democracy is the theory that the common people know what they want, and deserve to get it good and hard.

Bartlett is arguing that if we’re all to be slaves, it’s best to suck up and hope for the job of overseer, holding the whip rather than tasting its lash.

But I’m not ready to surrender.

Bruce Bartlett says that if we don’t find a way to pay for the monstrosity growing out of Washington, the whole system will come crashing down. I say I’d prefer that to the “success” of the system as the social democrats want it to exist.

Bruce Bartlett says that the “starve the beast” tactic doesn’t work, as the beast keeps on growing. Well consider me a cancerous tumor hoping to infect the populace into becoming an ever-growing resistance that eats away at the beast’s insides until it dies of rot.

Bruce Bartlett wants conservatives to make sure they have a seat at the table to divvy up the “spoils”. Well, if he wants to be a good little Tory, that’s his choice. He’s taken sides, and despite his pleas, the fight will rage on.

Somewhere deep inside, despite a century of statism trying to weaken it with bread and circuses, the spirit of America still exists. Until that’s no longer the case, I’ll take the side of Freedom.

Leave Us the HELL ALONE

Crossposting something my wife wrote, from here:

I’ve been in an incredibly foul mood the last couple of days, and until this morning I did not understand why.

We’re planning on moving to where we actually want to be. We’re constantly being asked why we want to move to the middle of nowhere. I tell everyone, “because I feel hemmed in and trapped.” Almost no one understands what I mean. Until this morning I could not explain the feeling of being a rat in a cage. Now I can.

This morning I woke up on my “don’t remove the tag” mattress, walked through my building code compliant house, used the federally compliant toilet, dressed the kids and drove them to their “state certified” charter school where they’ll eat a state approved lunch.

I got back in my state registered, emissions compliant, insured (by state requirement) car and drove the legal speed limit back to the house. I then walked through my Scottsdale code compliant yard (no weeds in our “desert” landscaping”)into the house, drank pasteurized (USDA required) juice, and ate cereal processed in an inspected facility with milk from an USDA compliant dairy. I then took my FDA approved prescription pills (from a licensed pharmacy of course) and played with the state-licensed dogs.

I took a call on my federally taxed cell phone (instead of the federally taxed land line), stopped by our FDIC insured bank (which received TARP money that it didn’t want and is not allowed to pay back), and drove along city streets (paid for by sales and property taxes) to the closest Costco (which has a business license of course and pays mandated worker’s comp). I bought beef franks made from inspected beef in an inspected facility, buns made in an OSHA compliant factory, and a gallon of Frank’s in an approved plastic bottle.

All of this before 10:15 am.

This is not restricted to me of course. This is normal daily life for the vast majority of Americans. Almost everything we do is touched by one agency or another.

In preparation for moving I’ve been researching what I want to do with the land. We want to build our own house and outbuildings and drink our own water and make our own electricity.

In order for this to work we have to:

* Buy land with the proper zoning.
* Wait for the required escrow to be completed.
* Apply for building permits and well permits.
* Possibly apply for a zoning variance in order to raise a wind turbine.
* Build code-compliant buildings.
* Wire the electricity according to code.
* Pay sales tax on all materials used.

My biggest dream is to grow an orchard, plant some vegetables and grains, and raise our own milk and meat. In order for this to happen we have to

* Buy only trees that can be delivered to the correct state (as decided by each state’s government).
* Use only approved pesticides (like we could buy anything else).
* Buy a tractor (with applicable state tax).

If we find ourselves with an excess of food and would like to sell it we have to

* Apply for a license.
* Obtain a tax i.d. number.
* Collect sales tax.
* Label the goods according to code.
* Submit to random inspections of the dairy operation.
* Submit to random inspections of the meat process.
* In order to sell prepared foods (like jams) submit to inspections of the “commercial” kitchen (which cannot be used to prepare the family’s food).
* Pay sales tax on all goods and materials used.

In order to set up the business properly, we have to

* Apply for a business license.
* Obtain a tax i.d. number.
* Obtain permission from the state to use the name.
* Collect sales tax.

God forbid we deal with the local fauna. We plan on moving in an area thick with moose and wolves, but in order to hunt we have to obtain

* A hunting license.
* A controlled-hunt tag for the moose (if we’re lucky enough to get one).
* Forget about the wolves, they’re “protected”.

Should we need to protect our livestock from the moose or wolves we are allowed to dispose of the threat, but we must

* Inform game and fish.
* Turn the carcass over to the state.

If we use firearms to dispose of the threat, we must

* Use a “legal” firearm (as determined by the NFA and ATF).
* If we choose to use a suppressor (because of dogs, horses, and our own hearing) we must pay the stamp.

This doesn’t even account for all of the hoops the realtor and the vendors have to go through.

All of this instead of

* Pay for property. Make contract with owner.
* Build.
* Dig well.
* Wire.
* Buy tractor.
* Plant.
* Sell food.
* Sell services.
* Protect livestock.

No wonder I feel trapped. I can’t do a single thing with my own property that doesn’t involve one government agency or another (or several). I feel like a rat being funneled through a maze, and I am cognizant of the danger that someone will block off the exit. It’s my claustrophobia writ large.

This is just wrong. I’m a grown woman. Why does the government have to meddle in all of my affairs? Why do I have to jump through hoops just to accomplish the most simple things in life?

It’s all about power and control. Always has been always will be.

I’m sure in the beginning the encroachment began with simple things. After all, isn’t the government supposed to protect our rights? Isn’t having a dedicated police force, justice system, military, etc. worth a little in taxes?

Then a little more encroachment. Who can disagree with a little tax to pay for state roads? That’s entirely reasonable, right?

Then enforcement of standards. Who can disagree with licensing teachers? Making sure underage kids can’t marry?

Then the panics set in. Contaminated meat? The government should “do something” so it won’t happen again! E coli? Pasteurize EVERYTHING!

Of course, the NIMBY’S added their own input. Nuclear power plant? Not in my backyard! Enforce zoning so I won’t have to worry about it! Require my neighbor to clean up their yard so my house values don’t go down!

Then the lobbyists. Require farm inspections and multiple hoops so small farmers give up and “our big backers don’t have competition”. Give into the “green” lobby so they don’t pull their campaign contributions.

Of course there’s always the pure tax whores. “It’s just a little reasonable fee. On everything. You want to pay your share, right?”

Of course all of this gets codified into law, and the ultimate persuasive tactic is put into play.

“You don’t want to be a criminal, do you? You don’t want to go to prison, do you?”

This is exactly how we went from a system in which the government’s job of protecting our rights to a system where government determines WHO is ALLOWED to trample on our rights.

Well I have a message for all you busybodies, bureaucrats, rent-seekers, and whored-out legislators.

LEAVE US THE HELL ALONE.

Get out of my contracts.

Get off of my land.

Leave my property alone.

Stay the hell out of my bedroom.

Most of all, KEEP YOUR NOSES OUT OF MY BUSINESS.

And everyone else’s for that matter.

Mel

I haven’t mentioned my wife here very much, because she generally doesn’t write about libertarian issues; but I have to say, for this (and so many other reasons. For one thing, she’d rather buy guns, boats, motorcycles, and airplanes than shoes or jewelery), I am the luckiest man in the world. I happen to think this piece is the best thing she’s ever written.

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

Independence 1776. Independence 201x?

From the time of 1765 forward, the American people, in fits and starts, began moving closer and closer to breaking ties with Britain and declaring independence. They grew increasingly angry at being dragged into [or paying for] the wars of the Crown. The King had largely held a hands-off approach with the colonies, who largely learned the self-governance necessary to carve a new nation out of wilderness. As the colonies became more prosperous, though, the King saw potential. He saw the potential to tax them as Englishmen but without giving them the full rights and representation of those in the home country. He tried to impose English hands-on governance upon a people who had learned to exist without such meddling. And this meddling was NOT appreciated.

We focus, and rightly so, a lot of energy and time on the Declaration of Independence and July 4, 1776. It is the watershed moment in our rise from loosely-joined colonies into a nation. But there’s more to the story.

For those who view today’s America as the culmination of the vision of the founders, it is right to view Independence Day as a day of remembrance of things past. For those of us who consider our current government (being the establishment since the New Deal and only accelerated by GWB and BHO) to be antithetical to the ideals that founded this nation and still rest latent within its people, it’s instructive to look at this from a far wider perspective.

July 4, 1776, and the Declaration of Independence, was one of the most important steps in the American Revolution. But it was only a step, and that step was squarely in the middle of the game, not the beginning. In fact, it occurred over a year after armed hostilities erupted at Lexington and Concord, and the Battle of Bunker Hill took place the prior month. In terms of our nation, the Declaration of Independence is important because it marks the point at which our hostilities against the British became a struggle for independence, rather than a struggle for reparation. But in terms of the history of the struggle, the stage was truly set over the course of the prior decade.

There is not enough space to delve deeply into the history here. For reference, I heartily recommend A Leap In The Dark by John Ferling, and The Ideological Origins of The American Revolution by Bernard Bailyn. To summarize, one of the watershed moments of the lead-up was the Stamp Act of 1765. This was a tax on most paper products in use at the time, and it was a very visible and direct tax. It hit many colonists close to home, and was a new tax to these shores. The tax ignited protests a decade in advance of actual hostilities. For many, these protests were some of their first concrete actions in opposition to policies of their government.

But it was just a tax. Americans at the time considered it a piece of bad policy foisted upon them by the King, and when the King rescinded the tax, things simmered down. There had not yet developed an adversarial relationship between the colonists and the Crown. Over the next decade, though, a King who wanted to claim control over the colonies engaged in consistent escalation of his taxation and attempts to rein in what he considered improper actions of “his subjects”.

Throughout this decade, independence was never a foregone conclusion. Many in the colonies were not opposed to British rule, they simply wanted a hand in direction of that rule. Most people in the colonies viewed themselves as Englishmen first, citizens of their colony second, and Americans third. There was a very strong emotional connection to the Crown and to the people — many of them family — of the home country. The path to Independence was a jerking motion as the Crown bullied the populace, the populace resented the Crown, and all through that time voices towards independence helped frame the debate.

Samuel Adams was one of those key voices early on. In 1765, he was already advocating against Britain and — although difficult to speak out publicly for Independence — it is clear that he saw an American rift with Britain coming in the future. During the ensuing decade, Samuel Adams was a key instigator and key voice in framing the debate for Independence. He was instrumental during the “quiet period” of 1770-73, when the British somewhat reduced their acts of encroachment on the colonies. During this time, as anti-British sentiment waned, Samuel Adams was the key voice keeping the narrative of colonies vs. Crown in the minds of the people. It was never ONLY what the Crown did that led to independence; it was the voices of the rabble-rousers who saw the end game of subjugation to the crown who brought it to bear.

How did they bring it to bear? They changed the perception of the people. Prior to the Stamp Act, most colonists thought of themselves as Englishmen and saw the Crown as their legitimate government. Over that decade leading to July 4, 1776, that perception changed. The colonists increasingly saw the Crown as an arbitrary government willing to completely abrogate their rights in order to achieve its own ends. It saw the Crown treating the colonists in ways they believed it would never treat a true Englishman. They, as a people, ceased to give the government their consent.

This was a decade-long (and possibly extending farther back) effort. Few at the days of the first Stamp Act protests were likely envisioning a war of Independence brewing. Few are today.

In 2005, the Supreme Court found in Kelo that Americans could have their homes seized, at will, for nearly anything a local government claimed a “public use”, including handing it to developers who will build private-use structures. This hits every American in their homes. It makes every American understand that the whim of the government can take their highest-value, most cherished possession and give it to someone they think will make better use of it.

Since 2005, the United States Government has engaged in domestic wiretapping programs without judicial oversight, proving that the United States Government can listen in on your phone calls at the discretion of any civil-service bureaucrat who deems it necessary. It has created a terrorist watch-list of over 1,000,000 names, without any clear discussion of who is on that list, why, or how to have your name removed. If you’re on that list, you can expect to be hassled endlessly if you choose to engage in mundane civil activities such as air travel. During that time, it was learned that the United States Government has been engaged in “enhanced interrogation techniques” that — whether they’re technically defined torture or not — curl your hair to think about. Waterboarding is one that likely doesn’t sound as bad as it feels, but I defy anyone to support a government who engages in crucifixion.

In late 2008, in the midst of a financial crisis unlike any we’ve seen since the Depression, the United States Government decided that it could take $700B and simply hand it out to banks — more accurately, force banks to take it — and don’t have any real duty to the public regarding oversight of those funds. In the same time, the Federal Reserve and United States Treasury have either used or promised guarantees to over $14T in assets — larger than the GDP of the nation.

Since the election of Barack Obama, the United States Government passed a $787B stimulus bill not supported by a majority of Americans. The United States Government has de facto nationalized and illegally bankrupted two domestic automakers, rewriting the rules of bankruptcy in order to give out sweetheart deals to unions and the government. Most recently, the House Of Representatives has passed an enormous 1200-page Cap and Trade proposal (hidden tax) that included a 300-page amendment added only hours before the final vote. To believe that our “representatives” actually read this bill or its amendment is laughable. It is likely that over the next several months, the United States Government will pass a bill speeding us down the road to the nationalization of the healthcare industry, and to pay for it, enact a VAT to give them yet another revenue stream to extract the fruits of our labor.

Throughout all this time, the United States Government pays lip service to the Constitution, but routinely acts contrary to both its letter and its spirit at every turn. It is therefore defying even its own supreme blueprint.

If the United States Government is willing to act against the will of Americans, and if our “representatives” are willing to pass bills that they cannot and have not read — bills often giving law-making ability to unelected bureaucracies like the EPA, how can we really believe that we are a representative democracy? If the United States Government engages in barbaric acts such as crucifixion, how can we support it? If we have truly reached, as I believe, a point where our government views us not as citizens but as subjects, we must denounce the United States Government as illegitimate.

On this anniversary of the date of American Independence, it is right to celebrate. It is right to remember the valiant and principled action of the Founding Fathers to take on the world’s great superpower and assert their rights — many lost their lives in the effort. We have a nation worth celebrating.

But in remembrance of those who we are celebrating, it is important to understand their significance in a historic context (again, see the books recommended above). It is important to remember that the principles they are fighting for are again in peril. And it important to realize that in order for those principles to be recovered, we must tirelessly call the United States Government for what it is — illegitimate.

The time between the Stamp Act and the Treaty of Paris was 18 years. Between the Stamp Act and the Declaration of Independence, it was only the efforts of those who were willing to call the actions of their government deplorable that ensured that the yoke of that government would be lifted. It is now time for those of us who love our country and despise the United States Government to stand up and do the same. The American people are an industrious people, and often have little time to devote to paying attention to the actions of our government. They have a media more focused on the daily lives of TV celebrities than the outcome of legislation that will affect everyone’s daily life. They have been educated quite literally by the state to see the United States Government as a trusted friend and helpful assistant. This must change, and it is the work of those of us who believe in liberty to keep the fires stoked and educate them to the truth. This is not going to be a small job, and won’t happen quickly. But if we do not continually work towards this goal, we are resigning ourselves to a future led by a government by the power brokers, of the power brokers, and for the power brokers.

Today is a remembrance of America’s Independence Day. It is also a day to remember that committed citizens, in the cause of freedom, can break the chains of the greatest superpower seen on earth and claim their rightful liberty. It is a day to remember and celebrate those who did it before, but it’s also a day to steel yourself — there’s work to be done again.

UPDATE: Welcome readers from Let A Thousand Nations Bloom, and of course the many thousands arriving from Google News.

UPDATE 2: Welcome Carolina Sons Of Liberty readers!

Liberty Rock Friday: Declaration Day by Iced Earth

Iced Earth
“Declaration Day”
The Glorious Burden (2004)
iced-earth
Written by Jon Schaffer

A desperate situation
Forced to retaliation
The task ahead a burden
Men will suffer, that’s for certain
We’ll charge into the fire
The cause, we must inspire
We raise our fists to tyranny
A high price, freedom is not free

The odds are stacked against us
But with our resolve relentless
And arrogance their weakness
Our cause is just, we won’t be beaten
Upon this declaration
Will come a brand new nation
Where men are seen as equal
Governed for and by the people

CHORUS
So we make our stand and pray
On this declaration day
For independence I will fight
With liberty I will defy
So we make our stand and pray
On this declaration day
Give me liberty or give me death
I’ll fight ’till my last breath

With virtue as our beacon
Our cause is charged as treason
Battle worn and starving
Through the hell of war we’ll keep marching
The birth of our new nation
An act of desperation
We’ll force King George down to his knees
Capitulation

CHORUS
So we make our stand and pray
On this declaration day
For independence I will fight
With Liberty I will defy
So we make our stand and pray
On this declaration day
Give me liberty or give me death
I’ll fight ’till my last death

Common Ground for the Left and the Right on the Bill of Rights

Trying to understand the 4th of July from an African-American perspective

“It’s Independence Day, dammit, not the ‘Fourth of July,'” properly noted a close friend on Twitter.

This was countered by what I consider another valid point. “That depends on who you’re asking,” responded African-American Jefferson County (AL) Commission candidate Iva Williams. “Plymouth Rock landed on me!”

In my opinion, there is a lot of truth to both sides of this issue.  As the exchange started with the comment made by Georgia libertarian activist Jason Pye, I should first note that I’ve never observed a whiff of racism in Pye’s words or actions. Pye, who is white, has been targeted and threatened by some racist groups in Georgia for his belief that all people should be treated equally under the law.  Additionally, I’ve never observed race-baiting on the part of Williams and my observations indicate that he truly judges people by “the content of their character.”

Pye has good reason to want to celebrate “Independence Day.”  It’s a remembrance of the day that Americans formed a new political identity by throwing off the yokes of European tyranny and oppression.  If any one day could be identified as a turning point for freedom in western civilization, this is arguably the date which should be marked on our calendars.

“It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires, and illuminations, from one end of this continent to the other, from this time forward forever more,” wrote John Adams to his wife Abigail.

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” reads a portion of the immortal document we observe on July 4th.  However, common practice at the time didn’t provide the same rights to one sector of America: African slaves.

It is estimated that half a million people, or one fifth of the total American population, in 1776 was enslaved.

While I certainly take a great deal of pride in the fact that a lot of people risked their lives, liberty and property to secure a nation free of Europe’s chains, I’ll never forget that we placed even crueler chains upon a significant segment of our own population. As those of us of western European ancestry don’t harbor positive feelings about the way we were treated by Great Britain, Willams has no reason to harbor positive feelings about the way African-Americans were treated at the time of our nation’s birth.

In his book John Adams, David McCullough notes an advertisement in the Phildelphia Journal:

TO BE SOLD: A large quantity of pine boards that are well seasoned. Likewise, a Negro wench; she is to be disposed of for no fault, but that she is present with child, she is about 20 years old … and is fit for either town or country business.

On the flip side of the coin, McCullough writes in 1776 this commentary by General John Thomas about “Negro” soldiers: “…for fatique and in action; many of them have proved themselves brave.”

One example of such bravery was recounted by John Greenwood:

…a Negro man, wounded in the back of his neck, passed me and, his collar being open and he not having anything on except his shirt and trousers, I saw the wound quite plainly and the blood running down his back. I asked him if it hurt him much, as he did not seem to mind it.  He said no, that he was only to get a plaster put on it and meant to return. You cannot conceive what encouragement this immediately gave me. I began to feel brave and like a soldier from that moment, and fear never troubled me afterward during the whole war.

One of the most dramatic moments of my life was being stationed in Germany when the wall fell.  The only traffic jam in which I’ve enjoyed being caught was the sudden exodus of people fleeing from Soviet Bloc countries. My three closest friends were all in the same unit and of the same rank: one white, one black and one hispanic. We delighted in watching the faces of those escaping the tyranny of the east. We shared a common pride for our contributions, and there was no reason for any of us to harbor any feeling of shame.

Even Thomas Jefferson, who I admire for a variety of reasons, certainly must have shared a feeling of shame with many of his countrymen at the time of our nation’s birth. In a draft version of the Declaration of Independence, he wrote that the British crown “has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere.”

This section was dropped at the insistence of delegates from South Carolina and Georgia.

While the Constitution was being drafted, debate over the rights of African-Americans continued.  At the Philadelphia Convention of 1787, a compromise was reached and this wording (emphasis added) was finally settled upon: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

If my country was to allow those of my race to be enslaved, I’d not be likely to celebrate this sort of “independence.”

If my country was to only count me as three-fifths of a person, I’d not be celebrating this, either.

As a white person of mostly European ancestry, I understand the pride that most Americans feel on Independence Day. As I’m not black, I’ll probably never be able to truly understand the feelings of African-Americans on the topic. Were I black, I’d likely feel a sense of pride that many of my ancestors laid down their lives to promote a system of government which eventually led to the freest of societies in the history of the world.  I’d probably also wish to ensure that people never forget the absolute horrors of slavery. As many of my white friends want us to learn from the positives of the founding of our country, my black friends want to ensure that we truly understand our history so we never repeat the same mistakes.

This country has come a long way regarding racial issues since 1776. For the most part, the law requires that people of all races are to be treated equally, although in practice this isn’t always the case. At times, the legislative pendulum seems to swing too far in the other direction. To be quite clear, I’ll fight any legislation which limits the rights of members of any race.

Additionally, we’ve still got some cultural ground to cross.  If my skin tone was darker, there are still plenty of counties in the deep south where I’d not “let the sun set on my black ass.” As a white person, I don’t spend much time in those places, either. It’s not necessarily better up north, where racism is often more covert: “She’s not like us” is still whispered at many blue-blood cocktail parties.

“America experiences a new birth of freedom in her sons and daughters; she incarnates the spirit of her martyred chief,” noted Martin Luther King, Jr. in “The Negro and the Constitution.”

This Saturday, I’ll certainly understand why my Republican and Democratic friends will be flying the red, white and blue. I’ve an even deeper appreciation for my libertarian friends, who will mostly be displaying the Gadsden Flag. If I was black, I might be tempted to display three-fifths (respectfully folded and secured with pins, not cut with scissors) of an American flag.

“And I with my brother of blackest hue possessing at last my rightful heritage and holding my head erect, may stand beside the Saxon, a Negro, and yet a man!” concluded King while Jefferson wrote that “Every generation needs a new revolution.”

My Army experience in Germany taught me that people of all colors can form very close bonds when we don’t have racial barriers between us. Perhaps people of all races can spend a few minutes trying to wear shoes of a different color this July 4th. Perhaps we can start a revolution Jefferson might have welcomed so King’s Saxons and Negros are no longer divided, but are merely men.

The blood all races have shed for this country is of the same color: red. It’s time that we all learn to sit at the same table to discuss our common heritage of fighting for freedom. I can’t think of any better day to open the dialogue than on July 4th.

UPDATE: Via Dakarai I. Aarons, I’d recommend that everyone read ” What to the Slave is the Fourth of July?” by Frederick Douglass.

Originally posted at Birmingham Libertarian Examiner.

No Secession, No Legitimacy!

Many Republicans, having discovered that Bush’s policies are tyrannical, are making noises about wanting out of the fascist state that they were cheering on a few months ago. While we may wonder why it took the trivial matter of having people who have the letter D appended to their names on news reports executing Bush’s policies to open their eyes, we must welcome the fact that they are dimly becoming aware of how thoroughly their leaders had betrayed their country and are looking for ways to undo the damage these leaders wrought.

Some Republicans have even endorsed secession! This is keeping with American tradition that started the first time the idealogical ancestors of the Republican party – the Federalists – lost an election for the Presidency. In that case the merchants of New England threatened secession since Tomas Jefferson’s policies of trade embargoes with foreign markets were crippling them. Since then threats of seccession have been a regular part of the political landscape.

Often the threats of secession are not taken seriously… usually the benefits of leaving the union are not sufficiently great to attract many supporters, and thus the powers-that-be can ignore the movements completely.

Today, though, the Democrats and political leadership are reacting in horror at the reemergence of threat American phenomenon – their dreams of social engineering will go up in smoke if the masses have the option to escape! And many people who should know better are agreeing with them.

People make three arguments against secession:
1)That it is illegal
2)That it is immoral
3)That it is unwise

Let us examine these arguments. » Read more

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.

The Constitution really DOES mean what is says

This morning, the 9th circuit court of appeals confirmed that the 2nd amendment is indeed incorporated against the states under the selective incorporation doctrine, in the case Nordyke Vs. King.

This means that the 2nd amendment has a lawful status equivalent to that of the first, fourth, fifth, and other amendments which explicitly protect our fundamental rights.

Of course, that is only lawfully binding within the 9th circuit; but it is expected that other circuits will take judicial notice of the 9ths ruling.

If you aren’t familiar with the Nordyke Vs. King; this is the case where a gunshow operator was denied access to use country fairgrounds for their gunshows, because a county ordnance prevented the possession of firearms on county property by anyone other than law enforcement.

The facts of the case as presented to the court are as follows (emphasis in bold and red are mine):

Russell and Sallie Nordyke operate a business that promotes gun shows throughout California. A typical gun show involves the display and sale of thousands of firearms, generally ranging from pistols to rifles. Since 1991, they have publicized numerous shows across the state, including at the public fairgrounds in Alameda County.

Before the County passed the law at issue in this appeal, the Alameda gun shows
routinely drew about 4,000 people. The parties agree that nothing violent or illegal happened at those events.

In the summer of 1999, the County Board of Supervisors, a legislative body, passed Ordinance No. 0-2000-22 (“the Ordinance”), codified at Alameda County General Ordinance Code (“Alameda Code”) section 9.12.120.

The Ordinance makes it a misdemeanor to bring onto or to possess a firearm
or ammunition on County property. Alameda Code § 9.12.120(b).

It does not mention gun shows.

According to the County, the Board passed the Ordinance in response to a shooting that occurred the previous summer at the fairgrounds during the annual County Fair.

The Ordinance begins with findings that “gunshot fatalities are of epidemic
proportions in Alameda County.”

At a press conference, the author of the Ordinance, Supervisor Mary King, cited a “rash of gun-related violence” in the same year as the fairground shooting. She was referring to a series of school shootings that attracted national attention in the late
1990s, the most notorious of which occurred at Columbine High School in Littleton, Colorado.

But the Nordykes insist that something more sinister was afoot. They point to some of King’s other statements as evidence that she actually intended to drive the gun shows out of Alameda County.

Shortly before proposing the Ordinance, King sent a memorandum to the County Counsel asking him to research “the most appropriate way” she might “prohibit the gun shows” on County property.

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as
icons of patriotism.”

Without expressing any opinion about King’s remarks, the Board of Supervisors adopted the Ordinance. County officials then exchanged several letters with the
Nordykes.

The General Manager of the fairgrounds asked the Nordykes to submit a written plan to explain how their next gun show would comply with the Ordinance.

As the County Counsel had told the General Manager, the Ordinance did not
expressly prohibit gun shows or the sale of firearms.

An aside from the the blog author: This is in fact a false statement. California statute in conjunction with federal law (i.e. the sum total of requirements imposed by both sets of statutes combined; not each set individually), requires that firearms transfers occur face to face, through an FFL; that the FFL conduct a background check and in person identity verification of the person they are delivering the weapon to at the time of sale, AND at the time of delivery if those times are separate; and that the sale be conducted at the FFLs place of business, an organized gun show, or a licensed auction.

Effectively, the only way they could conduct a gun show, would be to have pictures of guns available, at which time prospective gun purchasers could arrange to meet the FFL later at their place of business to purchase a firearm. It would not even be lawful to explicitly arrange for a sale at the show and then complete the transaction later.

The county counsel knew, or should have known, that this was the case.

The Nordykes insisted then and maintain now that they cannot hold a gun show without guns; perhaps because they thought it futile, they never submitted a plan.

During the same period, representatives of the Scottish Caledonian Games (“the Scottish Games”) inquired about the effect of the new law on the activities they traditionally held on the fairgrounds. Those activities include reenactments, using period firearms loaded with blank ammunition, of historic battles.

After the inquiries, the County amended the Ordinance to add several exceptions. Importantly, the Ordinance no longer applies to [t]he possession of a firearm by an authorized participant in a motion picture, television, video, dance, or theatrical production or event, when the participant lawfully uses the firearm as part of that production or event, provided that when such firearm is not in the actual possession of the authorized participant, it is secured to prevent unauthorized use.

This exception allows members of the Scottish Games to reenact historic battles if they secure their weapons, but it is unclear whether the County
created the exception just for them.

By the time the County had written this exception into the Ordinance, the Nordykes and several patrons of and exhibitors at the gun shows (collectively, “the Nordykes”) had already sued the County and its Supervisors under 42 U.S.C. § 1983 for various constitutional violations. The amendment did not mollify them, and their lawsuit has wended through various procedural twists and turns for nearly a decade.

I just want to highlight again one particular passage:

King declared she had “been trying to get rid of gun shows on Country property” for “about three years,” but she had “gotten the run around from spineless people hiding behind the constitution, and been attacked by aggressive gun toting mobs on right wing talk radio.”

At her press conference, King also said that the County should not “provide a place for people to display guns for worship as deities for the collectors who treat them as icons of patriotism.”

Disgusting.

Unfortunately the result here is mixed. The circuit has ruled that the 2nd is incorporated against the states; but that it did not overturn the statute in question… I’m not really sure I agree with or follow their reasoning on this one.

The ruling provides that the second amendment is explicitly incorporated against the states, in plain language:

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.”

Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right.

It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a
recalcitrant South from abridging it less than a century later.

The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited.

We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

There could not be a better, and more unambiguous, declaration of right than this.

What is puzzling to me is how they decided that the county ordnance did not then violate the second amendment.

Yes, they make clear that laws which make exercising fundamental rights more difficult do not automatically infringe upon them (from a legal standpoint); but it seems to me this is a clear cut case of a local government, promulgating a complete ban on the possession of firearms on land controlled by that local government.

Such a ban should be clearly unconstitutional under this analysis.

It would be like saying free speech did not apply on county property, which IS clearly prohibited. Yes, there can be reasonable restrictions, but total prohibition should be right out.

Given the relative weakness of argument supporting the ordnance, and complete lack of precedential support, I can only conclude they were desperately hunting for a reason not to invalidate ALL gun control legislation in one stroke.

Now, the real question, is whether either party is going to continue appealing, and file a petition for certiorari before the supreme court.

Both parties have grounds, and standing to file; and both parties have both incentive and disincentive to do so.

If they do, and the court decides to take it, it would be the second most significant second amendment case ever, after Heller (Heller clearly supersedes Miller, and is therefore more significant)

By the by, if you read the whole ruling (and I recommend you do) there is some extensive discussion of Cruikshank, Presser, and Slaughterhouse. I believe that Heller provided an explicit foundation for all three to be overturned (at least partially).

Actually I believe that proper jurisprudence suggests they should be overturned as having had no facial validity in their initial rulings, being clearly against the principals engendered in the constitution; but Heller gives a precedential foundation for this).

Although I’m generally not a big fan of Hugo Black; I think he had the right concept on the 14th amendment. In fact, I believe it should have been clear without the fourteenth amendment, and merely through the supremacy clause that ALL elements of the constitution as directly related to the people and the protection of our rights (as opposed to the structural components of the constitution) applied to the states.

Also contained therein, is an analysis of the right to keep and bear arms as a fundamental individual right, and commonlaw right from before the founding of this nation through the passage of the 14th amendment and beyond; including a discussion of the racist nature of gun control.

The footnotes and citations too contain a wealth of information, this lovely nugget being my favorite:

we do not measure the protection the Constitution affords a right by the values of our own times. If contemporary desuetude sufficed to read rights out of the Constitution, then there would be little benefit to a written statement of them. Some may disagree with the decision of the Founders to enshrine a given right in the Constitution. If so, then the people can amend the document. But such amendments are not for the courts to ordain.

In all, the incorporation portion of the ruling and opinion are so well researched, and reasoned, in such depth; that I cannot see how a credible argument could successfully be made against it, given an honest arbiter.

Conversely, the section (only a few paragraphs of a 40 page ruling) arguing that the ordinance did not violate the second amendment was so poorly argued that I can’t see how a successful argument COULD NOT be made against it, given an honest arbiter.

So I say, Alameda County, PLEASE appeal this to the supreme court on incorporation grounds; and to the Nordykes, please appeal the decision to uphold the law.

Thanks ever so much.

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

Hey IRS & DHS, Suck On This!

I’m not going to make it to any Tea Parties today, because frankly I think my personal time is far better spent earning money at my job than engaging in a bit of populism that will likely be forgotten and ignored by the mainstream media — at least those portions of the MSM that don’t actively deride the movement.

But in the wake of this, and of the recent DHS report, I thought a little picture was in order:

My office when I worked from home:

Don't Tread, Bitches!

Some might call it extremism. I call it inspiration. Does that mean my name will end up on a list somewhere (if it hasn’t already)?

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