A Mini-Fest of Links

It’s time to disgorge some of the links that I’ve been hoarding.

First up is Arnold Kling’s “Religion, Government, and Civil Society.” I had missed it because it was published in February of this year, when I was neither blogging nor reading blogs. Kling compresses much wisdom into a relatively short essay. (For my views on the importance of civil society — as opposed to statism — read “On Liberty” in the sidebar and go here.)

Relatedly, here is Tyler Cowen’s post about philanthropy. (I hereby apologize for having thought bad thoughts about Cowen.)

Next is a piece (reproduced here) by Douglas Kmiec about the (now-stayed) ruling by an Iowa judge, in which he struck down Iowa’s defense-of-marriage act. That is to say, the judge ruled in favor of same-sex marriage. (My views on the subject are in this post, among others.)

“Crunchy cons” — love ’em or hate ’em — always stir the pot. Here are two posts by Mr. Crunchy Con himself, Rod Dreher. It seems, on the surface, that Dreher is a “civil societarian,” as Arnold Kling defines it. But do not be deceived by the reasonable tone of Dreher’s posts (linked above). Dreher is, in fact, a pseudo-civil-societarian with a statist agenda. For more on that, go back and read this post (toward the bottom) and this one.

I wrote recently about “The Slippery Slope of Constitutional Revisionism.” The U.S. may not have traveled as far down the slope toward vicious statism as has the U.K. But it could do so, quite easily. Let this be a warning to you.

The Slippery Slope of Constitutional Revisionism

In “The Erosion of the Constitutional Contract,” I attribute the accretion of government power to the misapplication of four elements of the U.S. Constitution:

the phrase “promote the general welfare” in the Preamble [and in Article I, Section 8, Clause 1]. This was a desired result of the adoption of the Constitution, not an edict to redistribute income and wealth [or an unbounded power to tax and spend].

the power of Congress “to regulate commerce…among the several states [Article I, Section 8, Clause 3].” This power was meant to prevent the States from restricting or distorting the terms of trade across their borders, not to enable the federal government to dictate what is traded, how it is made, or how businesses operate.

the authority of Congress “[t]o make all Laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof [Article I, Section 8, Clause 18].” The words “necessary and proper” have been wrenched out of their context and used to turn the meaning of this clause upside down. It was meant to limit Congress to the enactment of constitutional legislation, not to give it unlimited legislative authority.

the “equal protection” clause of Amendment XIV: “…nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” Amendment XIV was meant to secure the legal equality of those former slaves whose freedom had been secured by Amendment XIII. Amendment XIV became, instead, the basis for Supreme Court decisions and federal laws and regulations that have given special “rights” to specific, “protected” groups by curtailing the constitutional rights of the many who cannot claim affiliation with one or another of the “protected” groups. As the proponents of such groups might ask, is it fair?

Here, with the help of Wikipedia, I sketch our path down the slippery slope to our present state, which I once captured in these questions:

If liberty is so bounteous, why don’t we enjoy it in full? Why are our lives so heavily regulated and legislated by so many federal, State, and local agencies at such a high cost? What happened to the promise of liberty given in the Declaration of Independence and Constitution?

Our way down the slope has been led, of course, by the U.S. Supreme Court. I restrict the following quotations from Wikipedia to historically accurate background material and summaries of the Court’s actions. My notes and comments are in brackets and initialed LC.

The General Welfare Clause (a.k.a. the Taxing and Spending Clause)

Two theories of the taxing power have been advocated by constitutional scholars: (A) the narrower Madisonian view that taxation must be tied to one of the other specifically enumerated powers such as regulating commerce or providing for the military, and (B) the broader Hamiltonian view that taxation is a separately enumerated, independent power, and that Congress may tax and spend in any way that will benefit the general welfare….

[The Madisonian view was] overturned in United States v. Butler, 297 U.S. 1 (1936)^[3]. In that case the Court held that the power to tax and spend is an independent power; that is, that the Taxing and Spending Clause gives Congress power it might not have anywhere else. [See also the history of Social Security, which cites other instances — most notably, the passage of the Social Security Act — in which the Court conveniently adapted its tune to the times, as if Madison’s long-prevailing view of the “tax and spend clause” had been a mere whim of the Court. John Eastman, in “Restoring the General to the General Welfare Clause,” argues at length and convincingly “that the blank check interpretation given to the clause since Butler simply cannot be squared with the original understanding of either Hamilton or Madison.”: LC.]

The modern Supreme Court has interpreted this clause to give Congress a plenary power to impose taxes and to spend money for the general welfare, including the power to force the states to abide by national standards by threatening to withhold federal funds. See South Dakota v. Dole, 483 U.S. 203 (1987)^[4]. [I need say no more: LC.]

The Commerce Clause

In Gibbons v. Ogden (1824), Chief Justice John Marshall ruled that….[contrary to Amendment X: LC] “[T]he power of Congress does not stop at the jurisdictional lines of the several states. It would be a very useless power if it could not pass those lines.”…

In Swift v. United States (1905), the Court ruled that the clause covered meatpackers; although their activity was geographically “local,” they had an important effect on the “current of commerce” and thus could be regulated under the Commerce Clause….

The clause was the subject of conflict between the U.S. Supreme Court and the Administration of Franklin D. Roosevelt in 1935-37 when the Court struck down several of the President’s “New Deal” measures on the grounds that they encroached upon intrastate matters. After winning the 1936 election, FDR proposed a plan to appoint an additional justice for each unretired Justice over 70. Given the age of the current justices this permitted a court population of up to 15….

There was widespread opposition to this “court packing” plan, but in the end the New Deal did not need it to succeed. In what became known as “the switch in time that saved nine,” Justice Owen Josephus Roberts and Chief Justice Charles Evans Hughes switched sides in 1937 and, in National Labor Relations Board v. Jones & Laughlin Steel Corporation, upheld the National Labor Relations Act, which gave the National Labor Relations Board extensive power over unions across the country.

In 1941 the Court upheld the Fair Labor Standards Act which regulated the production of goods shipped across state lines. In Wickard v. Filburn, (1942) the Court upheld the Agricultural Adjustment Act, stating that the act of growing wheat on one’s own land, for one’s own consumption, affected interstate commerce, and therefore under the Commerce Clause was subject to federal regulation….

The wide interpretation of the scope of the commerce clause continued following the passing of the Civil Rights Act of 1964, which aimed to prevent business from discriminating against black customers. In Heart of Atlanta Motel v. United States (1964), the Court ruled that Congress could regulate a business that served mostly interstate travelers; in Katzenbach v. McClung (1964) the Court ruled that the federal government could regulate Ollie’s Barbecue, which served mostly local clientele but sold food that had previously moved across state lines; and in Daniel v. Paul (1969), the Court ruled that the federal government could regulate a recreational facility because three out of the four items sold at its snack bar were purchased from outside the state….

Many described the Rehnquist Court’s commerce clause cases [links added: LC] as a doctrine of “new federalism”. The outer limits of that doctrine were delineated by Gonzales v. Raich (2005), in which Justices Scalia and Kennedy departed from their previous positions as parts of the Lopez and Morrison majorities to uphold a federal law regarding marijuana. The court found the federal law valid, although the marijuana in question had been grown and consumed within a single state, and had never entered interstate commerce. [Thus giving Congress the power to regulate anything done anywhere within the United States: LC.]

The Necessary and Proper Clause

Strict constructionists interpret the clause to mean that Congress may make a law only if the inability to do so would cripple its ability to apply one of its enumerated powers (“foregoing powers”). Others argue that the elastic clause expands the authority of Congress to all areas tangentially related to one of its enumerated powers. It is often known as the elastic clause because of the great amount of leeway in interpretation it allows….

In McCulloch v. Maryland [1819],…the court held that because the Congress has the power to control national economic policy [a power not specified or enumerated in the Constitution: LC], creating a national bank is necessary and proper to carry out its duties….

The clause has been paired with the commerce clause to provide the constitutional basis for a wide variety of laws. For example, Congress may make it a crime to transport a kidnapped person across state lines, because the transportation would be an act of interstate activity over which the Congress has power. A series of Supreme Court decisions resulting in the desegregation of private businesses, such as hotels and restaurants, were supported on the basis that these business establishments, although not directly engaged in interstate commerce, no doubt had an effect on it. Since the New Deal the Supreme Court has been reluctant to limit the scope of authority allowed under the combination of these clauses. United States v. Lopez was the first modern case finding limits to Congress’s authority in this regard. [Those limits were short-lived, as discussed in the last paragraph of the section on the Commerce Clause: LC.]

The Equal Protection Clause

[T]he Equal Protection Clause, along with the rest of the Fourteenth Amendment, marked a great shift in American constitutionalism. Before the enactment of the Fourteenth Amendment, the Bill of Rights protected individual rights only from invasion by the federal government. After the Fourteenth Amendment was enacted, the Constitution also protected rights from abridgement by state governments, even including some rights that arguably were not protected from abridgement by the federal government. In the wake of the Fourteenth Amendment, the states could not, among other things, deprive people of the equal protection of the laws. What exactly such a requirement means, of course, has been the subject of great debate; and the story of the Equal Protection Clause is the gradual explication of its meaning [and the gradual corruption of its meaning: LC].

The next important post[-Civil W]ar case was the Civil Rights Cases (1883), in which the constitutionality of the Civil Rights Act of 1875 was at issue. The Act provided that all persons should have “full and equal enjoyment of … inns, public conveyances on land or water, theatres, and other places of public amusement.” In its opinion, the Court promulgated what has since become known as the “State Action Doctrine,” which limits the guarantees of the equal protection clause only to acts done or otherwise “sanctioned in some way” by the state….

The Supreme Court has [ruled] that the equal protection clause itself does not forbid policies which lead to racial disparities, but that Congress may by legislation prohibit such policies. [What the Court taketh away with one hand it giveth back with the other: LC.]

Take, for example, Title VII of the Civil Rights Act of 1964, which forbids job discrimination on the basis of race, national origin, sex or religion. Title VII applies both to private and to public employers. (While Congress applied Title VII to private employers using its interstate commerce power, it applied Title VII to public employers under its power to enforce the Fourteenth Amendment…. [What Congress cannot do under one judicially created loophole it can do under another: LC.]

Although the Supreme Court had ruled in Nixon v. Herndon (1927) that the Fourteenth Amendment prohibited denial of the vote based on race, the first modern application of the Equal Protection Clause to voting law came in Baker v. Carr (1962), where the Court ruled that the districts that sent representatives to the Tennessee state legislature were so malapportioned (with some legislators representing ten times the number of residents as others) that they violated the Equal Protection Clause. This ruling was extended two years later in Reynolds v. Sims (1964), in which a “one man, one vote” standard was laid down: in both houses of state legislatures, each resident had to be given equal weight in representation. [Thus undoing arrangements that the Framers implicitly accepted when they guaranteed each State a republican form of government: LC.]

It may seem counterintuitive that the equal protection clause should provide for equal voting rights; after all, it would seem to make the Fifteenth Amendment and the Nineteenth Amendment redundant. Indeed, it was on this argument, as well as on the legislative history of the Fourteenth Amendment, that Justice John M. Harlan (the grandson of the earlier Justice Harlan) relied in his dissent from Reynolds. Harlan quoted the congressional debates of 1866 to show that the framers did not intend for the Equal Protection Clause to extend to voting rights….[But a majority of the Court is not to be persuaded by the logic and meaning of the Constitution when it has a result to accomplish: LC.]

And so it goes, down the slippery slope of constitutional revisionism toward a dystopian future, in which Congress may recklessly (but with impunity) herd us into absolute, collectivist conformity. What has been done by the Supreme Court is likely to remain done, given stare decisis. And so what has been done will become precedent for the few remaining leaps down the slippery slope. Dystopia, we’re almost there!

Related post: Slopes, Ratchets, and the Death Spiral of Liberty (among many others in the category Constitution – Courts – Law – Justice)

Less Punishment Means More Crime

From Don Surber, writing at the Charleston Daily Mail:

Norwegian officials estimate that after sentencing, 20 percent of Norway’s criminals don’t bother to show up for prison.

That is because until very recently it was not against the law in Norway to skip out of prison. Norway’s legislature recently changed that law, but prison officials haven’t gotten around to implementing the law….

Not surprisingly, Norway’s crime rate is double that of the United States.

In 2006, Norway had 86.3 crimes reported for every 1,000 people, according to Statistics Norway.

In the United States, reported crimes were 39.8 per 1,000 people, according to the FBI.

The violent crime rates are similar: 5.5 per 1,000 people in Norway, 4.7 per 1,000 people in the United States.

No, for violent crime, one has to head north to Canada, where there are 9.5 violent crimes for every 1,000 people. That figure is down 5 percent from 1996. The numbers are from Statistics Canada.

That’s double the violent crime rate in the United States….

We are told that the United States leads the world in its prison population. This may be true. Roughly 1/2 of 1 percent of Americans are in prison.

The upside is that is nearly 1.4 million robbers, muggers, killers and rapists who are not out robbing, mugging, killing and raping….

The state of West Virginia spends about $100 million on prisons. That is about 2.5 percent of the state’s $4 billion general revenue budget.

The prisons are worth every penny.

Prisons keep more children from being molested. Prisons keep more people from being killed. Prisons keep more drunken drivers off the road.

Some say the nation is becoming a “prison state.” I grew up in a high crime area in Cleveland where no one ventured out after dark.

That’s a prison state.

The choice is this: Either have a high incarceration rate or have a high crime rate. Norway and Canada have made their choice. America has made hers.

Surber’s column reminds me of several of my posts. From this one:

Justice serves civilization and social solidarity. First, of course, it deters and prevents wrong-doing. Second, it meets the deep, common need for catharsis through vengeance, while protecting the innocent (and all of us) by replacing mob rule with due process of law.

Justice — to serve its purposes — must be swift, sure, and hard. That is, it must work and be seen to work, by the just and unjust alike.

And this one:

I…ran many regressions on the violent-crime rate and various combinations of the key variables. Only one regression yields credible results (high R-squared, standard error of estimate among the lowest, intuitively correct signs on all coefficients, and high t-statistics on all coefficients). That regression takes the following form:

Number of violent crimes per 100,000 persons =
– 3723
+ 37058 x number of Blacks as a decimal fraction of the population
– 0.568 x number of persons incarcerated per 100,000 of population

The t-statistics on the intercept and coefficients are -15.854, 17.047, and -5.042, respectively; the adjusted R-squared is 0.936; the standard error of the estimate is 47.0.

The mean value of the dependent variable is 483.1, with a range of 158.1 to 758.2. The corresponding values for proportion of blacks: 0.117, 0.105, 0.125; for incarceration rate: 202.4, 93, 476.

The years represented in the regression are 1960-99 (the last year of data on Blacks as a fraction of the population).

That equation is especially compelling because both explanatory variables are statistically signficant even though they are strongly correlated (R = 0.84). Given that, and the evidence of the plots above — in which the declining crime rate is accompanied by a rising incarceration rate — two things are evident: incarceration is the key to crime reduction, and abortion has no place in the discussion of crime. What happened was that the incarceration rate finally became high enough, around 1991, to offset the countervailing influences on crime.

Incarceration follows from prosecution, which follows from investigation. I therefore stand by my earlier conclusion that “incarceration and spending on the criminal justice system . . . . are the public-policy weapons of choice” when it comes to fighting crime.

UPDATE (01/04/06): None of my regressions (not even the best one) fully accounts for the sharp decline in the violent-crime rate after 1990. That is because I did not try to model the effects of concerted efforts, since the late 1980s, to put violent offenders behind bars and to keep them there longer. The missing variable, of course, is to be found in the effectiveness of federal sentencing guidelines, which were enacted in 1987 and declared constitutional by the U.S. Supreme Court in 1989. Liberal do-gooders and their allies on the bench nevertheless persuaded the Supreme Court last year (in a pair of related cases) to find the guidelines unconstitutional and, therefore, only advisory rather than mandatory.

Given the inevitability of more lenient sentencing in many jurisdictions, I predict that the violent-crime rate will resume its long-term ascent. That ascent will mirror the continuing destruction of civil society at the hands of liberals — and those libertarians who seem unable to grasp the notion that liberty must be defended, at home and abroad.

And this one:

I argue in “More Punishment Means Less Crime” that making federal sentencing guidelines advisory rather than mandatory, as the Supreme Court has done, will lead a resurgence of the violent-crime rate. Eugene Volokh cites a case in point:

Why People Are Skeptical of Judicial Discretion in Sentencing: Here’s the story:

Wednesday [Vermont trial court Judge Edward Cashman] sentenced child rapist Mark Hulett to 60 days in jail. Hulett admitted he raped a little girl countless times when she was between 7 and 10 years old.

Prosecutors said Hulett deserved at least 8 years in prison in part as punishment.

But Judge Cashman said the 60-day sentence guaranteed that Hulett would get into sex offender rehabilitation quickly or face a possible life sentence. He said he had no choice because the Corrections Department classified Hulett as a low risk offender meaning he can’t get treatment until he’s out of jail.

And more importantly the judge announced that after 25 years on the bench, he no longer believes in punishment….

…Mandatory federal sentencing guidelines were a necessary and fairly effective counter-measure to that reign of reverse racism. But the Supreme Court has neutralized that counter-measure.

Government’s sole justification is to fight the enemies of liberty, namely, criminals and terrorists. The Judge Cashmans of this world have sided with those enemies.

Finally:

…Now we have this, from an exchange at Legal Affairs Debate Club between Douglas Berman and Frank O. Bowman III:

Berman: 1/16/06, 09:43 AM
Given the enormous and unexpected shocks to the federal sentencing system over the past three years—Congress’ enactment of the PROTECT Act, then the Supreme Court’s decision in Blakely v. Washington, and finally the Supreme Court’s decision in United States v. Booker—I am wary about making any predictions about what will be the future of federal sentencing. But I am happy to opine about what should be the future of federal sentencing: Congress should allow the advisory guideline system created by the Booker decision to continue to operate while the U.S. Sentencing Commission and others assess its efficacy and fairness….

Bowman: 1/17/06, 09:01 AM
…A year has passed since the Booker decision. The Sentencing Commission has been gathering and promulgating data about post-Booker practice on a nearly monthly basis since April 2005. In consequence, we have a very good idea about how the post-Booker system has worked so far:

…since Booker, the rate of compliance with the Guidelines, by which I mean the percentage of cases sentenced within the guideline range calculated by the sentencing judge, has declined by about 11% nationally—from about 72% to about 61%.

…Virtually the entire country has experienced a decline in compliance with the guidelines. The compliance rate of every circuit has fallen, and compliance fell in more than 90% of all districts.

…the average length of a federal sentence in 2005 stayed the same as it was in 2004. On the other hand, the trend in sentence length (and guidelines compliance) from 2001-2004 was sharply up, the apparent result of conscious efforts by both Congress and the central administration of DOJ to increase guidelines adherence and criminal penalties. In short, the average federal sentence length post-Booker seems to reflect not maintenance of the status quo, but the sudden arrest of what had been a powerful and continuing upward surge.

…the decrease in guidelines compliance after Booker is almost entirely due to judicial action. Judges are using their new authority to reduce sentences below the range in almost 10% of all cases, and it is their exercise of this authority that is driving the decline in overall compliance rate.

I’ll make no comment now on these facts, other than to suggest that the argument for delay in response to Booker cannot much longer be premised on the claim that we don’t know how the new system will work. In fact, we have a very good idea of how it’s working.

Indeed we do. It’s working in favor of criminals. And that will lead to a resurgence of crime.

Stay tuned.

Anthony Kennedy: Useless Idiot

According to the Associated Press:

Supreme Court Justice Anthony Kennedy painted a dismal picture of injustice and lack of opportunity in much of the world, then told lawyers Monday [August 13] that they must do something.

Kennedy used a ceremony in which the American Bar Association presented him its highest award to talk about the plight of rape victims who must pay a fee before they file a complaint, young girls used by their families to have sex with tourists, prisoners who develop gangrene because they get no medical care.

”The rule of law and your own freedom are not secure unless you address problems in those countries,” Kennedy said.

Given the audience (lawyers) and the setting (San Francisco) I am sure that Kennedy’s remarks were received warmly. I am confident that the same audience in the same setting would soundly reject this truth: The police and armed forces of the United States are far more necessary to the preservation of the rule of law and the freedoms of Americans than a bunch of well-heeled Left-wing lawyers.

Blame It on the Commerce Clause

There is much sound and fury about the en banc decision by the D.C. Circuit Court of Appeals in the case of Abigail Alliance v. Eschenbach. The majority opinion begins:

This case presents the question whether the Constitution provides terminally ill patients a right of access to experimental drugs that have passed limited safety trials but have not been proven safe and effective. The district court held there is no such right. A divided panel of this Court held there is. Because we conclude that there is no fundamental right “deeply rooted in this Nation’s history and tradition” of access to experimental drugs for the terminally ill…we affirm the judgment of the district court.

The quotation is from a post by Jonathan Adler at The Volokh Conspiracy. Adler’s “conspiratorial” colleague, David Bernstein, vents his rage in a later post. He begins with a passage from the Declaration of Independence:

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.

Bernstein continues:

The right to life, then, is indeed a “fundamental” right, recognized as such at the nation’s birth. Our founding document states that government exists to secure this right, and that any government that becomes destructive to this right is illegitimate. You can’t get much more “fundamental” than that.

Which is about a logical as saying that a vacation in Tahiti is a fundamental right because it brings Happiness.

Seriously, Bernstein’s excesses aside, I’m sympathetic to the view that the majority in Abigail Alliance ought to be drawn and quartered.

Actually, who ought to be drawn and quartered are those majorities of the U.S. Supreme Court that beginning in 1905 — and especially during the New Deal — upheld the power of the central government to regulate just about anything done anywhere by anyone (unless it involves abortion and homosexuality). The source of that power is — you guessed it — the so-called Commerce Clause (Article I, Section 8, Clause 3 of the Constitution), which reads

The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes….

And so it goes. The D.C. Circuit simply followed precedent, as all “good” subordinate courts must do.

"If You Don’t Like It Here…"

“…leave.” That was for a long time the usual (and proper) response by an employer to an employee who had complained about working conditions.

Now — after decades of legislation and court rulings that have destroyed freedom of contract, employment at will, and employers’ property rights — the employee can say with impunity “I don’t like it here, so I’m going to sue you.” And the employee, all too often, will prevail.

Lou Michels offers a case in point. Read it and weep.

Why Vote Republican in 2008?

For one excellent reason, if no other.

What the Fourth of July Means to Me

The Fourth of July, as a political event, is two things. It is, first, a celebration of an eventually successful — if dimly remembered — fight for independence from British rule. It is, second, an occasion for invoking the principles which animated that fight for independence. Those principles, as enunciated in the Declaration of Independence are

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.

The original Constitution gave form to the Declaration’s rather vague statement of principles. The corruption of the Constitution — especially in the twentieth and twenty-first centuries — by the deadly combination of democracy and demagoguery has taken us far from what the Founders meant by “created equal,” “endowed by their Creator with certain unalienable rights,” and “consent of the governed.” Those phrases do not imply — contrary to current “wisdom” — that all God’s creatures deserve a minimum wage and an internet connection, that it is legitimate to pursue happiness through abortion and homosexual “marriage,” or that coalitions of the governed may legitimately conspire to rob the majority of their property, income, freedom of association, and freedom of contract (among many other things).

What did the Founders wish for themselves and their progeny? This: a central government of limited powers, devoted mainly to the defense of the nation, the regulation of relations with other nations, and the free movement of people and goods across the nation’s internal borders. The people could, within those broad parameters, govern themselves at the State and local level. Liberty — which, in large part, is a personal conception — was to be found in the freedom to live and work in the locality and State of one’s choosing; each State and locality was “an experiment in living” (e.g., see this, by David Boaz). The continuation of slavery was the signal flaw in that scheme, but that flaw was long ago rectified.

The limited right to vote that prevailed at the Founding and for generations thereafter was not a flaw. It was, rather, a prudent safeguard against majoritarianism. Decisions about the scope and functions of government should be made with those who have to bear the cost of those decisions, not by those who seek to have others bear the cost.

What the Fourth of July means to me, then, is that the promise of liberty made in the Declaration and (largely) redeemed by the Constitution has been betrayed. The federal behemoth has smothered our sundry experiments in living under a heavy burden of regulation and taxation. The measurable economic cost has been huge; the social cost, commensurate. As I wrote here,

you are unique — no one but you knows your economic and social preferences. If you are left to your own devices you will make the best decisions about how to run the “business” of getting on with your life. When everyone is similarly empowered, a not-so-miraculous thing happens: As each person gets on with the “business” of his or her own of life, each person tends to make choices that others find congenial. As you reward others with what you produce for them, economically and socially, they reward you in return. If they reward you insufficiently, you can give your “business” to those who will reward you more handsomely. But when government meddles in your affairs — except to protect you from actual harm — it damages the network of voluntary associations upon which you depend in order to run your “business” most beneficially to yourself and others. The state can protect your ability to run the “business” of your life, but once you let it tell you how to run your life, you compromise your ability to make choices that are right for you.

The American state has long since become “destructive” of our liberty. Thus, according to our Founding document, “it is the Right of the People to alter or to abolish” that state.

The Military Commissions Act of 2006

President Bush has signed the act into law. John Yoo has some choice things to say about it:

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor “combatants” in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy…..

Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis). Even after hostilities ended, the justices turned away lawsuits by enemy prisoners seeking to challenge their detention. In Johnson v. Eisentrager, the court held that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S., and refused to interpret the Geneva Conventions to give new rights in civilian court against the government. In the case of Gen. Tomoyuki Yamashita, the court refrained from reviewing the operations of military commissions.

In Hamdan, the court moved to sweep aside decades of law and practice so as to forge a grand new role for the courts to open their doors to enemy war prisoners. Led by John Paul Stevens and abetted by Anthony Kennedy, the majority ignored or creatively misread the court’s World War II precedents. The approach catered to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations, rather than hewing to wise but boring precedents….

…[E]nemy combatants who fight out of uniform, such as wartime spies, have always been considered illegals under the law of war, not entitled to the same protections given to soldiers on the battlefield or ordinary POWs. Disguised suicide- bombers in an age of WMD proliferation and virulent America-hatred are more immediately dangerous than the furtive information-carriers of our Cold War past. We now know that more than a dozen detainees released from Guantanamo have rejoined the jihad. The real question is how much time, energy and money should be diverted from winning the fight toward establishing multiple layers of review for terrorists. Until Hamdan, nothing in the law of war ever suggested that enemy status was anything but a military judgment….

This time, Congress and the president did not take the court’s power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court’s habeas powers in wartime because it disagreed with its decisions.

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

All this went overlooked during the fight over the bill by the media, which focused on Sens. McCain, Graham and Warner’s opposition to the administration’s proposals for the use of classified evidence at terrorist trials and permissible interrogation methods. In its eagerness to magnify an intra-GOP squabble, the media mostly ignored the substance of the bill, which gave current and future administrations, whether Democrat or Republican, the powers needed to win this war.

Imagine that. The commander-in-chief — not a majority of the Supreme Court — will command the armed forces.

Evidence that Congress did the right thing can be found in the insane, Left-wing rhetoric of Keith Olbermann, who last night said this:

For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering: A government more dangerous to our liberty, than is the enemy it claims to protect us from. [Thanks to John McIntyre at RCP Blog for the quotation.]

Olbermann has evolved over the years from witty sportscaster to moon-maddened opponent of anything and everything that would bring our enemies to heel. He cannot see — or chooses not to see — the difference between foreign enemies and criminal suspects. In that respect, he is typical of our domestic enemies in the Democrat Party.

28 Months for Treason?

Captain Ed reports:

A federal judge sentenced [attorny Lynne] Stewart to 28 months in prison for assisting Omar Abdel Rahman in activating his terrorist network while the US held him in custody — and then temporarily released her on her own recognizance:

A firebrand civil rights lawyer who has defended Black Panthers and anti-war radicals was sentenced Monday to nearly 2 1/2 years in prison — far less than the 30 years prosecutors wanted — for helping an imprisoned terrorist sheik communicate with his followers on the outside. …

The judge said Stewart was guilty of smuggling messages between her client and his followers that could have “potentially lethal consequences.” He called the crimes “extraordinarily severe criminal conduct.”

But in departing from federal guidelines that called for 30 years behind bars, he cited Stewart’s more than three decades of dedication to poor, disadvantaged and unpopular clients.

“Ms. Stewart performed a public service, not only to her clients, but to the nation,” Koeltl said.

The judge said Stewart could remain free while she appeals, a process that could take more than a year.

This woman sent messages to Rahman’s followers in Egypt that instructed them to begin terrorist activity. She knew exactly what she did — after all, she had defended Rahman and had seen the evidence against him — and turned her back on her country and her humanity in order to suck up to a man who plotted the murder of tens of thousands of Americans. Stewart’s actions could easily have led to the deaths of many innocent civilians.

Despicable. Both Judge Koetl and Lynne Stewart, that is. There is no excuse for a sentence of less than 30 years, certainly not the excuse given by Judge Koetl. And why is the judge allowing the woman to go free, pending appeal? She will either abscond to Pakistan, to be with Osama, or find new ways to betray her country, right here at home.

It’s telling that Stewart gave “more than three decades of [service] to poor, disadvantaged and unpopular clients.” Lawyers like that aren’t really altruists who are dedicated to their clients. They’re malcontents who are dedicated to the subversion of the rule of law by playing the criminal-as-victim card.

Had I been prosecuting the case I would have gone for a charge of treason and the death penalty. Perhaps Stewart might have “pled out” to a 30-year sentence, to be served with hardened criminals — not at a “country club” for white-collar criminals.

The outcome of Stewart’s case reminds me of the grave mistake made by the U.S. Supreme Court when it emasculated federal sentencing guidelines by making them advisory. For more on that subject, see “More Punishment Means Less Crime,” “More About Crime and Punishment,” and “More Punishment Means Less Crime: A Footnote.”

ADDENDUM: See also Justin Levine’s post, “Attorney Lynne Stewart – Traitorous Scumbag.”

More about Treasonous Speech

Tom W. Bell (Agoraphilia) notes that

[a] grand jury in Orange County filed a charge of treason against Adam Yahiye Gadahn [on October 11]. That marks him as the first person charged with treason against the U.S. since 1952. If captured and found guilty, Gadahn could face the death sentence.

The indictment accuses Gadahn of acting as a propagandist for al-Qaeda in several of that group’s videos. He allegedly announced that he had joined al-Qaeda and claimed, “Fighting and defeating America is our first priority. . . . The streets of America shall run red with blood.” Gadahn also supposedly called on Americans to convert to Islam and urged U.S. soldiers to switch sides in the Iraq and Afghan wars. On the basis of those and other allegations, the indictment concludes that Gadhan “knowingly adhered to an enemy of the United States, namely, al-Qaida, and gave al-Qaida aid and comfort . . . with intent to betray the United States.”

Bell concludes: “If prosecutors can catch Gadahn, they have a fair chance of convicting him of treason.” The main doubt in Bell’s mind is whether or not Gadahn, who left the U.S. in 1998, had previously renounced his citizenship, which — as Bell observes — “it is not quite as easy as, say, simply burning a flag.”

Regarding treason and speech, generally, Bell refers to his article, “Treason, Technology, and Freedom of Expression.” I posted here (March 5, 2005) about an earlier version of the article.

Some months later (August 18, 2005) I had more to say about Bell’s views, as well as those of Eugene Volokh. Volokh yesterday repeated same points upon which I commented on August 18, 2005. Volokh’s option 2 regarding the treatment of speech runs thusly:

Speech is unprotected whenever the speaker has the purpose of aiding the enemy (and perhaps there’s some evidence that the speech is indeed likely to provide some at least modest aid). This exception would justify punishing any speech that falls within the statutory and constitutional definition of “treason.”

I think this too is probably too broad. Perhaps the speaker’s intentions made him morally culpable and thus theoretically deserving of punishment. But prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime. On the other hand, I suspect that quite a few judges would take the view that treason by speech that is intended to help the enemy should be treated the same as treason by action that is intended to help the enemy.

As I wrote at the time,

I prefer Volokh’s option 2. . . .

[P]resumably an intention to aid the enemy would have to be proven in a court of law. I doubt very much that an unsubstantiated intention would survive an appeal. Why not give it a try and see how the Supreme Court rules on the issue — as surely it would be asked to do.

I must add this: Speech that intentionally aids the enemy cannot also be speech that is intended to protect Americans’ interests. You are either with us or against us.

Consent of the Governed, Revisited

In “Consent of the Governed” I say that

one may object to the Constitution, one may refuse to concede its legitimacy, and one may object to being forced by the state to abide by it. But here’s the catch: Such objections and reservations are valid only to the extent that the Constitution actually deprives one of liberty. Inasmuch as it does not do that (except in the fevered minds of anarcho-libertarians), and inasmuch as it fosters liberty, such objections are nothing more than irresponsible tantrums masquerading as a political philosophy.

What I did not know at the time of writing was that Professor Randy Barnett, author of Restoring the Lost Constitution, says much the same thing (in more measured tones) in his reply to a review of his book by J.H. Huebert (Journal of Libertarian Studies, Spring 2005). Specifically, Barnett says:

Among radical libertarians within the modern libertarian intellectual movement, there is a single conception of political legitimacy: consent. This conception has two parts: (a) a legal system that is consented to is legitimate; and (b) a legal system that is not consented to is illegitimate. Because government legal systems lack the consent of the governed, they are necessarily illegitimate. In addition to lacking consent, government legal systems are also illegitimate because they claim a coercive monopoly of power and therefore violate natural rights. So far so good, but here is the problem. Or rather, a symptom indicating an underlying problem: by this theory of legitimacy, all government legal systems are equally illegitimate. Why? Because all government legal systems lack consent; and all modern governments claim a coercive monopoly of power. Because real consent is an all-or- nothing-at-all thing that all government legal systems lack equally, and all governments equally claim a coercive monopoly of power, modern libertarian theory offers no criteria by which to distinguish better from worse governmental legal systems.

But no libertarian really believes that there is no relevant difference on libertarian grounds between the regime of Nazi Germany, the Soviet State, the United States, or (name the country in which you most want to live). Yet their exclusively consent conception of legitimacy, properly understood, offers absolutely no way to conceptually distinguish among these government legal systems. . . .

In response to this challenge, it is not enough for a libertarian to say, as some surely would, that some governments are better than others because they commit more or fewer rights violations. However true this assessment, it misses a crucial issue to which libertarians have paid inadequate attention: the duty to obey the law. This is a complex subject that I address in my book and elsewhere (Barnett 2003), and I simply cannot recreate that analysis here. The conclusion I reach is that there can be a prima facie duty to obey the law if it is made and enforced by procedures that provide sufficient assurance that the laws it imposes on nonconsenting persons are just. In other words, the issue of obedience turns not on whether a particular law is just, but on whether it deserves the benefit of the doubt that it is just. Laws made and enforced the right way are due this deference, unlike laws that are not. So the existence of a prima facie duty to obey the law depends upon the reliability of the procedures in place to assure the justice of laws.

This “gap” between the justice of a law and the prima facie duty to obey a law that is likely to be just because of the way it is made and enforced makes possible a much-needed refinement of basic libertarian theory. In the account of constitutional legitimacy I defend in my book, I continue to insist that consent, if it really exists, can impart legitimacy on a legal system. . . . Instead, I propose that there is a second route to legitimacy besides consent: the degree to which a legal system protects the fundamental natural rights of those upon whom it is nonconsensually imposed. The more effectively a regime protects the rights of those whom it governs, the more legitimate it is.

This move requires that a new distinction be introduced into libertarian theory between “justice” and “legitimacy.” Although I believe that this distinction is implicit in the actual beliefs of libertarians, confusion and error results from its lack of explicit recognition. And regrettably some libertarians try so hard to hew to existing theory based exclusively on consent that they come to believe that all governmental legal systems are equally objectionable.

Huebert concludes a reply to Barnett by saying that

I am not at all opposed to consideration of second-best alternatives to anarcho-capitalism, so I give Professor Barnett credit for searching for realistic means to advance liberty. Unfortunately, because of its support for the centralized state, Mr. Barnett’s system would not give us “second best,” but rather “even worse,” so I must continue to reject it, along with any notion of a duty to obey the state.

Huebert is in thrall to the fiction that anarcho-capitalism is “first best” because it is somehow possible. But it is impossible, for reasons I have given in several posts:
Defense, Anarcho-Capitalist Style
But Wouldn’t Warlords Take Over?
My View of Warlordism, Seconded
The Fatal Naïveté of Anarcho-Libertarianism
Anarcho-Libertarian ‘Stretching’
QandO Saved Me the Trouble
Two Views of Liberty
Utopian Schemes

An essential ingredient of anarcho-libertarianism is the non-aggression principle, which I address here:
Libertarian Nay-Saying on Foreign and Defense Policy
Libertarianism and Preemptive War: Part I
Right On! For Libertarian Hawks Only
Understanding Libertarian Hawks
More about Libertarian Hawks and Doves
Sorting Out the Libertarian Hawks and Doves
Libertarianism and Preemptive War: Part II
Give Me Liberty or Give Me Non-Aggression?
More Final(?) Words about Preemption and the Constitution
“Peace for Our Time”
Idiotarian Libertarians and the Non-Aggression Principle

Also relevant:
Varieties of Libertarianism
What Is the American Constitution?
Who Are the Parties to the Constitutional Contract?

Terrorists’ "Rights" and the Military Commissions Act of 2006

Cato’s Mark Moller finds that the Military Commissions Act of 2006 “is not patently unconstitutional—but it is hardly on uncontrovertible constitutional footing, either.” That is not a surprising conclusion, coming as it does from a member of the “libertarian” camp that cannot seem to focus on a key purpose of the Constitution: the protection of the liberties of American citizens.

Andrew McCarthy, writing at National Review Online, is well focused — as usual. As McCarthy points out,

Congress has already given al Qaeda detainees the very rights the critics claim have been denied [by the Military Commissions Act of 2006].

Last December, Congress enacted the Detainee Treatment Act (DTA). It requires that the military must grant each detainee a Combatant Status Review Tribunal (CSRT) at which to challenge his detention. Assuming the military’s CSRT process determines he is properly detained, the detainee then has a right to appeal to our civilian-justice system — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court.

McCarthy explains that, under the Constitution, terrorists have no habeas corpus rights or treaty rights:

Congress cannot “suspend” habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans — that is, according to the Supreme Court, U.S. citizens and those aliens who, by lawfully weaving themselves into the fabric of our society, have become part of our national community (which is to say, lawful permanent resident aliens). To the contrary, aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it, do not have any rights, much less “basic rights,” under our Constitution. . . .

Isn’t habeas corpus necessary so that the terrorists can press the Geneva Convention rights with which the Court most recently vested them in its 2006 Hamdan case? Wrong again.

To begin with, although its reasoning was murky, the Hamdan majority seems technically to have held that Geneva’s Common Article 3 applied to military commissions because of a congressional statute, the Uniform Code of Military Justice. Again, if a right is rooted in a statute, not in the Constitution, Congress is at liberty to withdraw or alter the right simply by enacting a new statute. Such a right is not in any sense “basic.”

If the Supreme Court were to decide that the Military Commissions Act of 2006 is unconstitutional, it would be high time for President Bush to take a Jacksonian stance: “The Supreme Court has made its decision, now let them enforce it.” I would base that stance on an earlier holding by the Court:

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is “the power to wage war successfully.” . . . Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless.

— Justice Felix Frankfurter, concurring in Korematsu v. United States (1944)

Who Are the Parties to the Constitutional Contract?

A recent post by Tom W. Bell of Agoraphilia and two recent posts by Timothy Sandefur of Positive Liberty sent me back to The Federalist Papers, specifically, to No. 39 by James Madison. There, Madison says that

the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act.

That it will be a federal and not a national act, as these terms are understood by the objectors; the act of the people, as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration, that it is to result neither from the decision of a MAJORITY of the people of the Union, nor from that of a MAJORITY of the States. It must result from the UNANIMOUS assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules have been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution. . . .

[T]he proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.

The persons who signed the Constitution in 1787 signed it as representatives of the people of their respective States. The persons who then ratified the Constitution in special conventions did so as representatives of the people of their respective States. The Constitution is a contract among the States on behalf of the people of each State. The States retain sovereignty, on behalf of their people, except where the Constitution transfers it to the United States (e.g., the regulation of interstate commerce).

Losing Sight of the Objective

Those who are so keen to bestow constitutional rights on terrorists have lost sight of a key purpose — perhaps the key purpose — of the Constitution: to provide for the common defense. Of Americans. Against their enemies: foreign and domestic, overt and covert.

One Small Blow for Freedom of Speech

First, the bad news:

Andy Roth of The Club for Growth posts a roundup of reactions to McCain-Feingold Iron Curtain Day. As David Keating explains in a followup post,

our free speech rights disappeared at 12:00:01 AM this morning.

It is now illegal for virtually all nonprofit groups to run any radio or TV ad that merely mentions the name of a congressman. Even a 10 second spot that simply had a congressman’s photo and no audio could land you in jail.

David goes on to quote “Former FEC Chairman Brad Smith [who] explains the ‘reform’ today and asks”:

In exchange for surrendering our First Amendment rights, what have we gained? Do you feel Congress is more ethical than before? Less attuned to special interests? Do you feel more empowered, or less empowered, than you did four years ago, when the law passed? Can you name any tangible benefit from these prohibitions?

Absolutely none. Not a one. The only benefit accrues to McCain, Feingold, and the other hypocrites on Capitol Hill who have used their power to immunize themselves from criticism and to perpetuate their incumbency.

Well, I’m mad as hell about it, and I’m going to do something about it.

So, here’s the good news:

This is an open invitation to the supporters of any U.S. House or Senate candidate who has opposed McCain-Feingold, and who is running against an incumbent who voted for it. Send me the links to your candidate’s web site and to his or her statements about McCain-Feingold. If your candidate has indeed opposed McCain-Feingold and his or her opponent did indeed vote for it, I will publicize those facts right here on this blog.

UPDATE (12/09/06): No one has yet taken up my offer. Sad.

What Is the American Constitution?

I recently came across an essay written by Donald J. Boudreaux in 1998: “What Is the American Constitution?” Boudreaux — who is now a co-blogger at the excellent Cafe Hayek and its companion, Market Correction, and also serves as chairman of the Department of Economics at George Mason University — wrote the essay when he was president (1997-2001) of the Foundation for Economic Education.

Boudreaux is an idealistic libertarian who, in my reading of him, seems to be an anarcho-capitalist (a.k.a. stateless capitalist). Eerily, “What Is the American Constitution?” parallels the views of Roger Scruton — a conservative, statist, monarchist, skeptic of free markets — as expressed in his The Meaning of Conservatism, which I am now reading. (I won’t say more about Scruton’s book until I’ve finished it.)

Here I comment on several excerpts of Boudreaux’s essay. In the end I offer a much different view of the American constitution than that offered by Boudreaux.

I begin with Boudreaux’s thesis:

The constitution is neither a document nor the collection of words in a document. Instead, the constitution is the dominant ideology within us, an ideology that determines what we permit each other to do, as well as what we permit government to do. No words on parchment, regardless of the pedigree of that parchment or of the men and women who composed those words, will ever override the prevailing belief system of the people who form a polity.

Boudreaux suggests that the constitution is only what “we” allow each other to do. But “we” are, to a large extent, bound by the decrees of government (popular or not) and government’s ability to enforce those decrees. That there is not a one-to-one linkage between the “prevailing belief system” of the people and what the people are allowed to do (or not do) can be seen, for example, in the imposition of integration in the South, the legalization of abortion, and the collection of taxes to support for several years what had become an unpopular war in Vietnam.

Moreover, it is far from clear that there is a “prevailing belief system” that enables “us” to agree about what “we permit each other to do, as well as what we permit government to do.” Can there be such a monolith in a republic whose citizens are so heterogenous in ethnicity, religion, education, economic status, social status, intelligence, and exposure to the arguments for and against free markets (to name only a few aspects of dissimilarity)? I doubt it. There may be general agreement about such matters as the wrongness of murder and theft, but that general agreement does not translate to a national consensus about what constitutes murder or theft, or how (or whether) they should be punished. (Consider, for example, the disparate ways in which murder and theft are parsed in the laws of the States, the equally disparate sentences that may be applied to those various degrees of murder and theft, and the broad latitude exercised by prosecutors and juries in their application of the law.) The meaning of liberty (and how best to secure it) is similarly surrounded in discord. Thus we inevitably fall back on government as the means by which to reach and enforce compromises about what we permit each other to do and what we permit government to do.

Let us return to Boudreaux, as he discusses the disparity between the written Constitution and the de facto constitution:

We have at hand ready proof that the constitution is ideology rather than words in a document. Read the document popularly called “the Constitution” and ask if it accurately describes the law of the land. Your answer will almost certainly be no. That document clearly gives to the national government only very limited powers for example, to coin money, to operate post offices, and to supply national-defense services. Today, however, Washington knows almost no restraints on how deeply its regulatory arms reach into the lives of American citizens. No species of economic regulation is off-limits to the national government. Likewise, Washington routinely and without a whiff of apology exercises governmental powers clearly intended by the framers of the Constitutional document to be reserved to each state.

Of course, the de facto constitution does not and cannot represent a coherent ideology, for the reasons discussed above. Like the written Constitution, the de facto one represents a compromise among varied interests. It has been shaped willy-nilly by generations of elected and appointed government officials, for the benefit of the shifting coalitions of special interests that have enabled those governors to govern. FDR, for example, was not elected because he promised to nationalize the means of production and institute socialistic schemes — but that is what he tried to do after he was elected. A majority (but never a super-majority) of citizens then rallied around FDR out of desperation and in the false belief that his methods were effective.

Boudreaux nevertheless tries to salvage a role for “prevailing ideology”:

Those instances in which the Constitutional document has teeth (such as the First Amendment’s prohibition of government interference with the press) are those instances in which the prevailing ideology of the American people happens to correspond with what’s written in the Constitutional document. But in those many instances when the prevailing ideology runs counter to the text of the Constitutional document, the document is toothless.

The apparent survival of freedom of the press has little to do with prevailing ideology, such as it is, and much to do with political power — not the power of “the people” but the power of special interests. Freedom of the press is fiercely defended by parties with a strong interest in the enforcement of that prohibition (e.g., the press and the liberal elites for whom the press is a mouthpiece), and by courts eager to check executive power. By the same token, a provision of the Constitution that might seem to be of interest to the people — namely the First Amendment’s prohibition of governmental interference with political speech — has been gutted by campaign-finance “reform” in the service of the nation’s most powerful special interest group: members of Congress. (I have just demonstrated public choice theory, which has several proponents and exponents among GMU’s economics faculty.)

Returning to Boudreaux:

In the past, when I got furious at the government for doing things clearly prohibited by the Constitutional document, I would declare “That’s unconstitutional!”

I was wrong. Those innumerable government actions that are at odds with the Constitutional document as well as with the principles of a free society are in fact constitutional. These actions are constitutional because the constitution is the actual legal framework of our society—and the actual legal framework in America today grants to government extraordinarily vast powers for intruding into the lives of peaceful people.

And yet, if President Bush were to appoint one or two more Supreme Court justices in the mold of John Roberts and Samuel Alito, the government might suddely find itself with fewer of those “extraordinarily vast powers.” The successful appointment of another Roberts or Alito would come about not through the osmotic application of a mythical “prevailing belief system” but, rather, through politics as usual (e.g., public relations “blitzes,” horse-trading with Democrat senators, and the enforcement of party discipline among Republican senators.)

Boudreaux proceeds to a hypothetical illustration of the power of “prevailing ideology”:

[A]sk what would happen if Congress enacted legislation banning interstate travel by Americans. Can you imagine Americans today respecting such an odious statute? Of course not despite the fact that the Constitutional document does not explicitly prevent Congress from passing such legislation. To avoid enforcement of this statute we wouldn’t have to wait to throw from office the bums who enacted it. Because of the prevailing American ideology, which is hostile to such legislation, this statute would be a nullity from the moment the President signed it.

Here, Boudreaux conjures another Prohibition. He appeals (if only subconsciously) to the popular but misguided notion that Prohibition didn’t work. In any event, Prohibtion, which lasted for 13 years, resulted from a century-long campaign against the consumption of alcoholic beverages. It wasn’t a sudden, broadly unpopular legislative whim of the type suggested by Boudreaux’s example.

There would have to be strong but far from unanimous support for a ban on interstate travel (e.g., among environmentalists, their allies on the Left, and paternalistic politicians of the McCain-Feingold ilk), which such ban would certainly grant exceptions for certain interest groups (e.g., truckers and bus companies). Lobbying and clever media campaigns could do the rest. In any event, even legislation that is not broadly popular will be honored broadly (if not by everyone) if it is seen to be enforced. (Consider, for example, the integration of Southern schools and the registration of black voters, both of which came to be the rule rather than the exception in spite of broad popular opposition to those measures.)

In any event, Boudreaux’s resort to an extreme and implausible example tells us nothing about the piecemeal subversion of the Constitution, which owes little to a mythical prevailing ideology and much to leadership, opportunism, political alliances, elite opinion, lobbying, media manipulation, interest-group log-rolling, pork-barrel legislation, judicial fiat, and the “followership” tendencies of most Americans.

Boudreaux next exalts the power of ideas:

It follows that ideas matter enormously. Ideas, not words, are the principal ingredient of the American constitution. If ideas change, so does the constitution. And the only way really to change the constitution is to change the ideas accepted by the great swath of citizens.

Yes, it does matter if ideas change. But it especially matters whose ideas change, and whose interests are served by adopting new ideas. I refer you to the final paragraph of the preceding discussion.

Boudreaux closes with this:

Liberty cannot be secured by asking its foe-the state-for more respect. Liberty cannot be secured at ballot boxes or in courtrooms. Liberty must reside in the hearts of people if it is to reign. And the only way that liberty can find its way into the hearts of people is through the promulgation and circulation of the ideas of liberty. In these ideas lies liberty’s only hope.

The promulgation of the right ideas is necessary but far from sufficient. Anti-statist ideas have gained much respectability in America since the advent of Ronald Reagan, but I cannot see that we have gained liberty as a result. Elected and appointed officials who are dedicated to liberty must come to the fore and lead the way. And then we must be lucky enough to avoid, for a very long time, another Great Depression or similar national trauma, so that the idea of liberty can sink deep roots and withstand the attempts of demagogues and power-hungry politicians to diminish liberty by appealing to fear and building coalitions of anti-liberty interests.

What, then, is the American constitution? It is whatever our governors make it out to be, regardless of the written Constitution. The people, by and large, seem willing to acquiesce in almost any unwritten constitution, as long as they retain the illusion that their particular interests are being served. Most Americans harbor that illusion because they focus on the special benefits which with their votes are bought, while failing to grasp the very high price they pay (in money and liberty) for the benefits received by others. Contrary to the proponents of campaign-finance “reform,” the money that corrupts politics flows from the governors to the governed, not the other way around.

It will take more than ideas to reform the unwritten constitution so that it passingly resembles the written one. It will take acts of moral courage and leadership. Those acts must come mainly from generations that have yet to enter the political arena. And those generations must embrace liberty in spite of the misconceptions, propaganda, and outright lies that emanate from the media, the academy, special-interest organizations, the vocal Left, and — most of all — from the governing classes, the elites whose agenda they serve, their entourages, and their constituencies.

In the meantime, the best we can hope for is another good Supreme Court justice, or two.

Good News Sometimes Comes in Small Packages

It’s not headline news, but it’s good news for employers and for employees — who benefit when their employers are allowed to operate their businesses for a profit. PointofLaw.com has the story:

Courts in [California] had been in the forefront of chipping away employers’ right to terminate employees at will, a process I documented in my book The Excuse Factory some years ago. But the trend has been in retreat in recent years, and earlier this month the state Supreme Court delighted employers with a ruling declaring that when a company tells a worker that employment is at will, it means just that. . . .

The California Supreme Court . . . threw out the appellate precedent which had creatively conjured a tenure promise out of the very effort to deny one. . . .

Being offered a job, with no guarantee of getting to keep it forever or of it never changing its character. Imagine that.

Yes, imagine that. It might be an incentive to do a good job, help your employer turn a profit, and earn more money as a result. The chipping away at the doctrine of at-will employment by the courts has enabled the “worst and the weakest” to keep jobs for which they are not qualified or that they do poorly, to the detriment of their fellow employees.

An Un-Happy Birthday to Social Security

Social Security turns 71 today. It’s still unconstitutional.

Com-Patriotism and Anti-Patriotic Acts

This post isn’t about compatriots, who are persons who happen to be citizens of the same nation. This is about com-patriots — persons who happen to be citizens of the same nation and who share a moral commitment to the defense of that nation and its ideals. This post is necessarily also about anti-patriots — citizens who do not evidence the same moral commitment. The nation in question, of course, is the United States.

What, then, is American com-patriotism? I begin with this definition of patriotism:

Love of and devotion to one’s country.

Which I expand to get American com-patriotism, which is decidedly not mere flag-waving. It is:

A devotion to the ideals of life, liberty, and property, to which the nation was dedicated by the Declaration of Independence.

An understanding that the attainment of the Declaration’s ideals is served through the Constitution’s essential principles: (a) a limited role for government in the affairs of citizens; (b) mutual defense of the life, liberty, and property of citizens.

Defense of the nation’s ideals against enemies — foreign and domestic — by upholding the principles of the Constitution.

There are many legitimate ways by which a citizen may contribute to the defense of the nation’s ideals; for example: reasoned questioning of the aims, policies, and actions of government; honorable service in the armed forces; or reasoned challenges to those who seek to use the levers of government to deprive their citizens of liberty and property. Such are com-patriotic acts.

But it is not com-patriotic to speak or act in blatant disregard of the nation’s founding ideals and principles of governance; for example:

It is reprehensible to publish in The New York Times (or any other newspaper) detailed accounts of various necessarily secret efforts to combat terrorism. (Some would, with justification, call it treasonous.)

It is hypocritical to profess love of country and then to oppose efforts to combant terrorism — without offering feasible alternatives — simply because you abhor Republicans generally and the Republican president particularly.

It is arrogant of the fat-cats who inhabit Congress to cry crocodile tears about the plight of this year’s fashionable underdog, and then to make that underdog’s supposed plight yet another excuse for assuming powers not granted by the Constitution — at the expense of all diligent non-underdogs.

It is abhorrent that the justices of the U.S. Supreme Court subvert the clear meaning of the Constitution, as they acquiesce in the arrogance of Congress and commit their own feats of arrogance, solely for the purpose of assuaging their personal (non-legal) preferences) and in complete disregard of the rule of law.

Such acts endanger the lives, liberty, and property of peaceable, honorable Americans. Such acts flout the Constitution. They are not to be tolerated. They must be called what they are: anti-patriotic. That is what I will call them at every opportunity.

Related reading: American Exceptionalism (Wikipedia), Points of No Return (Eternity Road)

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