Former Liberty Papers contributor Jason Pye may have long ago moved on from this humble blog but he certainly hasn’t moved on from doing his part to educate the general public on matters of liberty and justice. Pye’s latest work for Freedomworks is something I have a great deal of interest in and concern about: over-criminalization.
What can be done about the idea that the average person commits (usually unwittingly) three felonies a day? Pye offers some great ideas; mine are probably too radical. My radical proposal being
1. Congress should repeal the entire criminal code and restore the Crimes Act of 1790.
2. Crimes that are already on the books in a given state should have jurisdiction instead of similar federal crimes (i.e. murder is already a crime in all 50 states and all the territories, therefore; the federal government should not charge anyone for murder as the state or territory would use its police power to bring charges).
This would go a long way towards solving the problem of over-criminalization.
That said, Pye’s recommendations are probably more politically feasible and should be a great starting point.
A growing legion of raving statists are now openly prepared to sacrifice individual liberty on the altar of social conformity; to dismantle more than 200 years of limited-power governance, checks and balances, and judicial review of government overreach, as the acceptable price of empowering political majorities to impose their collective will; to destroy the religious and economic liberties they support in the hopes of quashing the social liberties they do not.
What they fail to see is that this very deference to populist will has delivered the leviathan government under which we now endure, its millions of pages of rules and regulations, its $18,000,000,000 in debt, and its overarching micro-management of our lives through such legislation as the Affordable Care Act—upheld twice now by the judicial poster-child for the very deference the raving frothers demand.
What they fail to see is that there is no framework for constitutional governance that maintains a judicial check on legislative and executive infringement against the liberties they acknowledge, while simultaneously withholding judicial power to check legislative and executive infringement against the liberties they deny.
Chief Justice John Roberts sees it.
He understood with clear-eyed conviction that the results in NFIB v. Sebelius and King v. Burwell were the price of favoring legislative and executive will over individual liberty. And he did not fail to deliver.
Rather than double-down on this doomed path, conservatives should embrace the role of the judiciary in our constitutional framework.
SCOTUS Has No Power to Expand Government, Only to Protect Individual Liberty
The Supreme Court cannot enact legislation or regulation. It cannot order expansion of the other two branches. It can only respond to their actions. It does so in one of three ways: 1) upholding the action as constitutional; 2) declaring the action unconstitutional and therefore invalid; or, 3) requiring an otherwise permissible exercise of power to comply with the Equal Protection Clause.
Thus, the Court’s power lies solely in preserving individual liberty. It cannot initiate (although it can permit) an encroachment thereof. In that framework, “restraint” can only mean “abdication,” and complaints of “activism” have no meaning. The Court cannot create “new law.” It did not do so in Obergefell.
Obergefell involved two forms of state action, with distinct constitutional implications.
The first involved so-called “bans” on same-sex marriage.
In an effort to ameliorate the obvious political problems with “banning” people from marrying, even ardent opponents of same-sex marriage tend to acknowledge that free citizens have the right to pair-bond, cohabitate, share beds and raise families. But lest any forget, in 1924 police raided the home of Mildred and Richard Loving and charged them with a felony punishable by five years in prison for the “crime” of being married. Until 2003, U.S. citizens could still be arrested and jailed for engaging in consensual, adult sexual relations in the privacy of their own homes. As recently as 2012, North Carolina made it a crime punishable by actual jail time for ministers to perform marriage ceremonies for couples with no valid state-issued wedding license.
With respect to this issue, SCOTUS held that the right to pair bond with a willing partner, to identify such coupling as a marriage, and to be so treated by willing members of one’s community, all fall within an area of liberty so fundamental to the existence of free individuals and societies that it cannot be circumscribed by government force.
The second form of state action at issue in Obergefell concerned state licensing programs that give official imprimatur to certain opposite-sex couples, but deny such benefit to otherwise similar same-sex couples. SCOTUS held that if states voluntarily implement such programs, they must administer them commensurately with the Equal Protection Clause.
It did not hold that anyone has a fundamental right to the existence of a licensing program. It did not hold that private individuals, churches or business have to acknowledge same-sex couples as “married.”
It did not create new legislation.
Nevertheless, in response to this relatively innocuous decision about the limits of state power, the frothers have embarked on a path so dire and chilling it should keep any genuine defender of liberty awake at night.
A Dismantling of Liberty
A true proponent of limited goernment would embrace the concept of rights so fundamental to the existence of freedom that they cannot be surrendered to the collective; would defend the notion that the powers of government are few, narrow, and enumerated, while the rights of individuals are many, broad, and unenumerated; would include in that list of individual rights the accumulation and enjoyment of the fruits of one’s labor, the pursuit and acquisition of the trappings of “happiness,” the enjoyment of life and liberty; and would insist on judicial review as protection against federal and state encroachment of such rights.
Instead the frothers’ views run the gamut from disavowing individual rights beyond those enumerated in the first eight amendments and/or granted by a state legislature, to denying that even the first eight amendments have been incorporated against state action, and all the way to repudiating judicial review altogether.
Such views have found some degree of support from at least one 2016 POTUS candidate. In July, Senator Ted Cruz (R-Tex) held a congressional hearing focused on “reining in” the only branch whose power lies solely in protecting individual liberty.
This is shameless, inexcusable statist inanity.
Left to the whim of legislatures, the Constitution would literally have no effect. Of all the lunacy on the right this election season, this is the most chilling.
Absent the contempt action against Kim Davis, blue states can withhold gun licenses by employing clerks who object to their issuance on religious grounds.
In their irrational fear of the boogay man, statist conservatives have become their own worst enemy. And their weapon of choice in this self-defeating war continues to be the myopic insistence on “judicial restraint:”
For years, “judicial restraint” has been primarily about not thwarting the will of “democratic majorities.” There are myriad doctrines to accomplish this. For example, you adopt a “presumption of constitutionality” that cannot be rebutted. Or find a “saving construction” of a statute to avoid finding it unconstitutional. Or you “defer” to administrative agencies’ interpretation of statutes. Or you make a statute “work” as the “legislature intended” (even if that means ignoring the plain or natural reading of its words).
We have now seen the fruition of the decades-old demand for “judicial restraint.”
Despite conservative howls to the contrary, in both NFIB v. Sebelius and King v. Burwell, John Roberts did exactly what he had been programed to do by decades of Borkian restraintism. In the first, after finding that the Commerce Clause did not empower the federal government to mandate health insurance, Roberts nevertheless found a way to “save” the Act by rewriting it as a tax. In the second, he deferred to administrative interpretation of the Act.
Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. But they have contributed to this outcome. Their decades of populist praise of judicial deference to the political branches has borne this sour fruit.
Many good conservatives truly wanted Obamacare invalidated in NFIB because it was unconstitutional. And they then sincerely wanted it to be enforced according to its terms in King. But selecting judges with the judicial mindset of “judicial restraint” and “deference” to the majoritarian branches leads to the results we witnessed in NFIB and King. If conservatives persist in supporting presidents who select judges on this basis, they will persist in being disappointed.
* * *
Winning Obergefell on the grounds urged by Chief Justice Roberts in his dissenting opinion also gives you NFIB and King.
In fact, it gives us even more than NFIB and King. It gives us what has always been the goal of progressivism: removal of constitutional limits on government action, deconstruction of checks and balances, and dismantling of separation of powers.
It gives us unity of the branches in the wielding of unlimited power.
It gives us state legislatures empowered to require Christian bakers and wedding photographers to service gay marriage.
Because there is no government with the power to withhold marriage from individuals that does not also possess the power to impose marriage on individuals.
Demagogues like Donald Trump and Bernie Sanders are campaigning based on the promise to bring jobs back to America. Both blame others (Trump blames foreigners and Sanders blames the rich) for the plight of the middle class. Like many demagogues before them, both men are drawing much support.
However, neither demagogue points out the real reason why companies won’t bring jobs back to America. The country’s tax and regulatory structure is internationally uncompetitive and strangling of small businesses.
The U.S. income tax code is complicated and is harming economic growth. It is in dire need of reform, especially since it is what most small businesses pay. We need to move away from using it to punish financial success or for social engineering and simply use it to collect revenue. It needs to be easy to understand, with few deductions, and fair.
The corporate tax code is even more of a disaster. The U.S. has the second highest rate in the world at 40% (35% Federal rate + average of states.) Our economic competitors have corporate rates that are much lower. If given a choice, corporations are going to head overseas because the tax costs are much lower.
What America needs is tax and regulatory reform, not cheap demagoguery. What I propose is simple, reduce corporate and income tax rates down to 17% and make it flat. The first $5,000 is taxed 17% so that everyone will have the skin in the game. After that, the next $5,001-$55,000 is tax-free. Then every penny over $55,000 is taxed 17%.
Not just taxes need to be addressed, but also regulations. Thankfully, there’s already a piece of legislation already designed to help on that front. The REINS Act needs to be passed into law. This would require Congress to vote on each proposed regulation that has an economic impact of $100 million or more.
If we fix America’s tax and regulatory code, the jobs will come back because it will be less expensive for companies to do business in America. That goes for both big and small businesses.
But you won’t hear this from the demagogues Trump and Sanders because both men are big government statists. To get America moving, let’s stop listening to these two and shrink the size of government. Only then will companies bring jobs back to America.
The Republican Party is dead in its current form. The coalition of classical liberals, country club business types; and since Reagan religious conservatives, neocons, and populists, has been irrevocably broken. The man who gave it its final coup de grace is a toupeed billionaire blowhard named Donald Trump.
Trump has run a campaign that more resembles the National Front of France than anything else that has been in American politics for decades. Ben Domenech at The Federalist says that Trump could transform the GOP into a party based on identity politics for white guys. He’s right and it’s terrible for the country.
Over the next few months, even if Trump fails to win the Republican nomination, three parts of the old Republican party coalition: classical liberals (whether they self-identify as conservative, Constitutionalist, or libertarian), religious conservatives, and the country clubbers; will have to decide if they can be a part of a Trump-influenced party. Trump’s xenophobic populism is anti-free market and anti-Christian.
Let’s first examine how we got here. Since the Cold War ended, the Republican coalition lost a sense of purpose. It briefly got it back in the 1990s with the Contract With America, but the election of George W. Bush in 2000 knocked the party off track. The party that believed in limited government spent more than LBJ. The party that was once skeptical of foreign interventions launched a war of choice in Iraq. The party that claimed federalism as a principle expanded the role of Washington in everything from education to gay marriage. With the failures of the Iraq War and an economic crash on the minds of Amerians, Democrats were able to easily take control of the entire Federal government.
In the Obama era, we’ve seen even more Federal government intrusions in everything from the food we eat to religious freedom. The Tea Party was inspired as a backlash against the intrusive Federal government of both the Obama and Bush eras. Meanwhile, some Republicans saw it as an opportunity to rebrand from the disasterous Bush era. Still much of the opposition to Obama took on an ugly racial overtone that was a prelude to the current culture war.
Which brings us to the end of the prequel of this terrible tale. The country has erupted in a cultural cold war. The left, which is now fully embracing cultural Marxism, is pushing the politics of racial and cultural grievance. They’re not only content to defeat what they see is white, conservative privilege but they also want to shoot the wounded survivors of the battle. We see this with Christian wedding businesses who refuse to service gay weddings for example. Much of the reason why people support Trump is because they want to take part in a backlash against the uber-PC, cultural Marxist crowd. They see a Republican Party and conservative movement that is not defending their freedom and not fufulling their campaign promises. They’re angry and they’re going to Trump because “he fights.”
But when you delve into the substance of Trumpism, it’s fascism. Classical liberals will not go along with it. Religious conservatives are more interesting. There is definitely an age divide. Older religious conservatives may go along with Trump, but I have a hard time believing younger ones will. Polls show that younger evangelical Christians are more politically tolerant, even if they’re still socially conservative. As the Southern Baptist Convention’s Russell Moore points out, there’s not a lot of evangelical support for Trump. Finally, I have a hard time believing my neocon and country club friends will buy into a man who wants to retreat America from the world.
What could this anti-Trump coalition look like? An anti-statist movement that rejects nationalism, but still believes in a strong America playing a leading role in the world. History shows that a liberal democratic society can only exist if it is protected by a great power. It will be unapologetially for free markets, anti-crony capitalist, and a realistic approach on immigration. It will be federalist in nature returning as much power as possible from Washington D.C. and to states, communities, and individuals.
Whether this anti-Trump coalition will be a new political party or built upon the ruins of the Republican Party is yet to be determined. Who could be attracted to it are classical liberals, non-statist religious conservatives, some neocons who can see limits on American power but still want America to play an active role in the world, and many others who were previously not a part of the Republican Party such as independents, moderates, and perhaps some of the old left.
I think that Trump will kill the Republican Party as we know it, but in its place could be something that could be bad for American politics or it could be the birth of a new classical liberal movement. Only time will tell which one will it be.
Every day fleets of law enforcement officers, from the DEA on down to the local police department, head out onto the streets armed with guns and hair-trigger fears for their own safety.
If they were going to fight the good fight against violence and theft, we could be unreservedly grateful. All too often these armed ingenues, represented by unions, covered by workers comp, and unwilling to tolerate any degree of risk to their person, instead spend their time enforcing petty, bullshit laws that accomplish nothing more than mindless bureaucratic authoritarianism—and revenue for overspent budgets.
Samuel Dubose was missing a front license plate. Walter Scott had a broken brake light. Caroline Small was sitting in her parked car. Eric Garner was selling untaxed cigarettes. James Boyd was camping in the wrong place. David Garcia was feeling suicidal. Zachary Hammond was on a first date with a woman carrying ten grams of marijuana. Freddie Gray was …
Does anyone even know?
These are the “crimes” for which they died.
In July, protestors at the Netroots Nation conference in Phoenix interrupted Democratic presidential candidates Bernie Sanders and Martin O’Malley to heckle their talking-point platitudes and demand concrete proposals for addressing police abuse. O’Malley, whose tough-on-crime polices as mayor of Baltimore sent its police department into a downward spiral of violence and corruption, had little to offer. Earlier this week Scott Walker, the only candidate in the first GOP debate asked a question on the topic, came up with nothing more tangible than better training, more support, and “consequences.”
Some of the protestors, who have continued to interrupt Sanders’ appearances, focus on racism. An independently worthy cause, ending racism is nevertheless not enough to solve police abuse. Racism is a sufficient cause of such problem, but not a necessary one.
No. The problem is you.
You have to stop supporting all the petty laws that can ultimately be enforced only with violence. Sex-for-money between consenting adults. Sale by and to and ingestion of substances by peaceful adults. Jaywalking, loitering, broken tail lights and the myriad thousand other nonviolent offenses that exist for no greater purpose than that the upper castes may express their disapproval of those who achieve less than Stepford levels of respectability.
Bounkham “Bou Bou” Phonesavanh was sleeping when police threw a flash grenade into his crib during a raid looking for a suspect alleged to have sold $50 worth of illegal drugs. No drugs were found, no arrests made; the suspect no longer lived there.
That you are willing to throw flash grenades at babies to keep grownups from ingesting methamphetamine (even though you know once thusly tasked, cops will lie to get those warrants). That you are willing to put that cigarette-tax dodger in a chokehold. That you are willing to kill those Oregon bakers if they won’t pay the fine for not baking the cake, and try to lock their door when the sheriff comes to execute on that judgment. You will risk violence by sending thuggish swat teams into legal medical marijuana dispensaries to terrorize customers inside. You would rather that poor mother with the broken brake light or the expired plates pay her fine to your government than feed her children. You are willing to shoot a man in the head for only having a rear license plate on his vehicle.
There are no debtors prisons in the U.S.A. Unless the creditor is the government. Then you’re fucked.
The Justice Department’s scathing report on the Ferguson, Missouri police department documented the disturbing end-game of such practices: a situation where 25% of the city’s revenue came from fines imposed by an unsupervised police force prone to excessive use of force. Jack Hitt at Mother Jones has reported on another Missouri suburb where, in response to a legislative cap on revenue that could be generated via traffic stops, the city enacted a whole host of other petty, bullshit laws (against such menaces as basketball hoops in the front yard, overgrown hedges, disorderly window blinds, and pants worn to low) and increased its non-traffic related arrests by 495%.
For the affluent this may be nothing more than an annoying shadow tax system to prop up an overreaching government that spends so far outside its means it pays tax dollars to research how robot-provided Swedish massage affects rabbits’ recovery from exercise. For the poor, knowing their lives will be ruined by fines they cannot afford to pay, jail time, job loss, and mandatory minimums that destroy families, it is why they run.
It is also why they kill.
Because at its worst, this system of official shakedown invites the very threats that put officers on edge. Dionne Wilson, widow of a slain California officer, understands this only too well. Her husband Dan Niemi showed up to investigate a noise complaint and found himself facing Irving Ramirez, who had a history of drug incarcerations. Carrying both guns and drugs when confronted, and desperate not to go back to jail, Ramirez shot and killed Officer Niemi. Wilson used to wonder why Ramirez was ever let out of prison.
It is easy to blame the problem of police violence on racist cops with (the gender neutral equivalent of) small dicks and big Napoleon complexes. It is harder to take responsibility for the crap laws and fiscal irresponsibility that make bad cops inevitable.