In what is bound to be but one of many examples of the current government showing its lack of concern for the Constitution, I see that the Senate has voted to approve the DC Voting Rights Act of 2009.  Although a more flagrant violation of the Consitution is hard to imagine, the most surprising aspects of this bill actually have very little to do with its primary intent.

In what is quite possibly an attempt to trick Republicans other than the misguided Senator Hatch (R-Utah) into voting for this bill, it apparently also spends some time establishing new media policies, the most noteworthy of which is that it declares the Fairness Doctrine to be prohibited.  Exactly what this has to do with giving DC a voting member in the House, I have no idea.  Equally elusive to me is the reason why anyone should care in the first place whether or not Congress has passed a law to forbid this Doctrine.  Any legislative prohibition in the hands of the current Congress is just so many words.  The law does not currently mandate a Fairness Doctrine, the FCC (citing constitutional concerns) does not enforce one, and any prohibition passed by Congress can always be repealed or inverted later.  One need only look at the blighted history of “pay-go” to realize that a congressional promise to not do something is not worth the paper it takes to print the promise.

But the fun doesn’t stop there.  Using what is probably also an attempt to buy Republican votes, the Act also includes a bunch of pro-gun provisions which, at least at a cursory glance, seem to pretty much get rid of the DC gun laws which have the NRA types all upset.  This part of the Act has the distinction of being the only part which appears both relevant and constitutional.  This part is also what Congress should have done instead of filing an amicus brief in Heller.  Most interestingly, however, is that this part of the Act brings with it a deep irony for those who truly believe that DC deserves to have a vote in the House: The very law which would give DC a vote would directly overrule DC law without letting DC vote on the issue.

At the end of the day, the obligation that members of Congress have to vote against this piece of legislation is clear.  There are too many reasons, both practical and constitutional, why this Act is not deserving of any of the 61 votes it has already received.  Republican legislators need to not be swindled by the carrots being hung in front of their noses, for beyond that tasty snack is a cliff as deep as history.  The Republican consituency will surely be told that their lawmakers voted against prohibiting the Fairness Doctrine and against gun rights in DC; paying attention to those charges would be the gravest of errors.  May the Republicans stand strong.

Tags: 2nd Amendment

I happened across a curious post on one of my more liberal leaning legal blogs a couple of days ago.  Apparently, a group of voters has filed a lawsuit in one of Alabama’s circuit courts challenging the legality of the Constitution adopted by the state in 1901.  The complaint and supporting document present the claim that the Alabama Constitution is invalid under the Federal Constitution.  Their complaint essentially boils down to the argument that the Constitution was ratified as a result of racist, pro-white voter fraud, making the document and the government it creates illegitimate.  As I see it, this complaint faces a number of deep flaws.

The first and most obvious question to ask in a case like this is, “What about the 14th Amendment?”  It is relied on as one of the two main authorities in the case under which the plaintiffs seek to have the Alabama Constitution declared invalid.  However, as the Utah Supreme Court observed in Dyett v. Turner, there are historical reasons to doubt the legitimacy of the 14th Amendment as well.  Despite these comments from the Utah Supreme Court, there is no indication that any court (Utah’s Supreme Court included) actually believes that the 14th Amendment is not, in fact, an enforceable part of the Federal Constitution.

Moving on to more legalistic matters, the Alabama courts would face an immediate problem if they rule in favor of the plaintiffs in this case.  Plaintifss seek, as a remedy, that the Court “issue a permanent injunction enjoining the [State] from continuing to enforce the [Alabama Constitution].”  More to the point, they believe that the “Constitution was never passed by the people of Alabama” and is, therefore, “invalid.”  If the Court rules that the Alabama Constitution is invalid, it must necessarily also rule that it has no legal authority upon which to base its judgment.  Like all of the other departments of government, Alabama’s judicial department derives its authority, ultimately, from the Alabama Constitution.  Therefore, if plaintiffs are correct, they have asked for relief from a tribunal which has no more legal authority than I have.

Since plaintiffs would put me on equal footing with the Alabama courts, I might as well spend a moment or two talking about the actual merits of their claim.  I find it interesting that in their entire complaint, plaintiffs cite only a few brief words in regard to things like poll taxes and property requirements which, even assuming that those are sitll operative provisions of the Alabama Constitution, are assuredly not enforced (or enforceable).  Importantly, although “[t]he harm … is experienced by each new generation of voters,” (complaint) they fail to set out any harm more tangible than some kind of inherited disenfranchisement.  This  hardly strikes me as the type of claim which is “concrete and particularized” (Lujan v. Defenders of Wildlife).  As far as the complaints about the racist history and language go, I know of no precedent holding that laws with racist history or which use racist language are automatically invalid in the absence of actual racial disparity, and there is no actual disparity claimed.

With a bit of luck, the Alabama courts will find a way to resolve this case quickly and at minimal taxpayer expense.  The easy, obvious, and proper thing to do would be to dismiss the case on a matter of standing or some other preliminary issue without even giving the lawyers an opportunity to try presenting the merits of their claim.  To be sure, logic forbids any Alabama court from ruling in plaintiffs’ favor, which is reason enough to bounce the case as soon as possible.

Tags: 14th Amendment, 15th Amendment, constitution

A couple of days ago, I happened to be linked to an opinion piece written by Michael Barone of US News and World Report.  In his writing, Mr. Barone holds up an argument, which I suppose he tripped over in his wandering around the Internet, which seems to imply without outright stating the author’s belief that the White House cannot constitutionally oversee the Census.  My skill at reading tea leaves is a bit on the weak side on this issue, but the impression I get is that this issue is going to linger for a while before finally being put to rest.  What should be clearer than Mr. Barone or the argument he discovered suggest is that the propriety of White House involvement in the Census is entirely a policy concern.  There is nothing unconstitutional to be found here.

The argument cited by Mr. Barone makes much ado about whether it is the President or Congress with authority over the Census.  As the argument goes, “the Constitution did not place the census function in Article II – the Executive branch but in Article I – the Legislative branch, it is not at all within the President’s reach unless the legislature places it there.” (emphasis original) The problem with this line of reasoning is that within the President’s reach is exactly where Congress chose to place the Census.  In particular, the Census is run by the Census Bureau, which is part of the Department of Commerce.  The Department of Commerce is the department run by the Secretary of Commerce.  The Secretary of Commerce, of course, is a member of the President’s Cabinet.  The Census Bureau, therefore, is within the Executive Branch.

To make the point even more strongly, consider the argument’s statement that “Director of the Census … shall perform such duties as may be imposed upon him by law, regulations, or orders of the Secretary.” (internal quotation marks omitted) (citing 13 USC 1.21) This passage establishes a line of authority from the Secretary of Commerce to the Director of the Census.  The argument then goes on to note that there is “[n]o president mentioned.”  However, that note fails to consider the law in context.  The President certainly can issue orders to the Secretary, including an order that the Secretary order the Director to do something.  It is the merest of formalism to think that the President could not issue an order to the Director directly.

The argument concludes by telling us that “[t]he Secretary of Commerce does not even report his findings to the President, but rather is instructed to ‘publish’ them.”  Unfortunately, this is simply wrong.  According to the Census Act, “[t]he tabulation of total population by States … as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States. Using this information, the President must then transmit to the Congress a statement showing the whole number of persons in each State … and the number of Representatives to which each State would be entitled.” (Department of Commerce vs. US House) (internal quotations omitted, citations omitted, emphasis added)  The inescapable conclusion is that the President is involved in this process on the basis of specific instructions of law.

Of course, none of this is to say that the President has the authority to declare that the Census be conducted in a way other than what the law allows.  He is still bound by the “[m]anner” described “by [l]aw” (US Const., A1, S2) and it is certainly an important exercise to ensure that he does not step outside the law.  However, his involvement alone is not sufficient to form the basis of a legal complaint, and it certainly is not unconstitutional.

Tags: census, constitution

Taking a break from the usual political travesty better known as the “stimulus” bill working its way through Congress, I spent a bit of time today reading up on peanuts.  The salmonella mess is, by every reasonable account, a decidedly unfortunate event, and it is my sincere hope that anyone still suffering the effects of the disease recover quickly, and that the families of those who have not been so lucky recieve our greatest sympathy.  Time will tell if the folks at Peanut Corporation of America (PCA) violated any laws by their (in)action, and what outcome justice will require.  For advocates of the free market, the peanut case presents an interesting study of market failure, the limits of faith in government, and a demonstration of the way in which markets effectively police themselves.

It does not take a lot of looking to find the market failure in the tragedy of PCA.  According to a Reuters article, early indications are that decision makers at PCA conspired to cover up the existence of some salmonella in their product.  The reason stated is, of course, a familiar one: Peanuts which get trucked to a landfill are less profitable than peanuts which get shipped to a distributor.  All indications show that the company was not exercising due care to ensure the safety of consumers.  Significantly, there appear to have been very few red flags raised about PCA despite the company’s history of health violations.  If there were whistleblowers at all, they were apparently ineffective, and the media only began to care after people got sick.  There was, in short, very little public information about the risks of the product.

Of course, it would have been difficult to predict the need for a significant amount of public oversight, given the role that the Federal Government was supposed to have played in protecting the integrity of the food chain.  As we now know, the FDA was largely absent from its oversight role at PCA, citing budget constraints.  There is no reason to think that the peanut industry is uniquely underfunded, which means that throughout the food industry, a sufficient level of oversight is likely to be the exception rather than the rule.  However, in the perverse world of government, the FDA — which would probably be subject to lawsuit if it were a private entity — is already using the incident as a reason to ask for greater money and authority.  All the while, consumers are asked to simply trust that the government is doing its job.

Despite the bleakness of the failures which led to the peanut disaster, the current fallout has been a shining example of how the free market responds to poor decision making and the strong likelihood of misconduct.  Once it was determined that the salmonella outbreak was caused by peanuts, it took very little time for the health hazard to become national news.  Peanut sales also dropped sharply in the wake of the discovery, with a drop so severe that PCA will certainly lose more money from market effects alone than it could ever have saved by shipping tainted peanuts.  Indeed, market losses alone, including the damage to the company’s reputation, will make it extremely difficult for PCA to remain in business.

For those who believe in the virtues of free enterprise, the challenge now is to determine and explain how the market should have acted, and identify why things did not play out that way.  Without a solid counterpoint, calls to increase the invasiveness of the FDA will succeed without meaningful opposition, further eroding the already tenuous illusion that it is the people, rather than the government, who are responsible for ensuring the highest level of quality.

Tags: free markets

I came across a video today of part of a press conference given a couple of days ago by Obama regarding the stimulus bill currently working its way through Congress.  While I am certainly no fan of nearly anything he had to say and I continue to believe that the American Recovery and Reinvestment Act needs to be euthanized as quickly as possible, what caught me as most interesting were some of the specific arguments Obama made to justify the scope and character of the bill.  I was stunned that people would applaud arguments which effectively amount to saying that past excesses which Obama could not control justify the present excesses which Obama quite possibly can, particularly with those arguments coming from the man who has not been shy about telling us that he was elected on the winds of change.

When they say, “Well why are we spending $800 billion, we have this huge deficit,” first of all, I found this deficit when I showed up, number one.  I found this national debt doubled, wrapped in a big ball waiting for me when I walked into the Oval Office.

In this, Obama points out that the country does hold a rather large debt burden for which he became responsible on Election Day.  The tenor of his line and the response that he gets from the crowd show clearly that what he just said was meant to be a negative statement and a dig at Bush.  The negativity of this line is confirmed on Obama’s website which cites “Increasing Debt” as being a “Problem” which he campaigned to address.  I am uncertain how complaining about a doubling of the national debt under eight years of Bush can support an additional 9% increase in Obama’s first month.

Then there’s the argument, “Well, this is full of pet projects.” When was the last time that we saw a bill of this magnitude without earmarks in it? Not one.

So too here does Obama cite prior bad practices to justify another round of more of the same.  It is difficult at this point to recall any recent bill which hasn’t had earmarks of some sort attached to it.  This has, of course, been cited as a problem by pretty much everyone; Bush, Pelosi, McCain, and Obama have all said at various points that all of the earmark spending is ridiculous.  Yet, here the charge that this bill has gathered too many earmarks is basically dismissed as being the product of people who do not know how things work in Washington.  It’s what always happens, so why should it be a problem now?

Although I suppose that it technically qualifies, I don’t normally consider doubling down to be much of a sign of change.  I grow tired of hearing people defend the same exact things they previously denounced simply because it is a Democrat rather than a Republican who happens to be in charge.  But to hear past misbehavior used to justify current misdeeds is folly of the highest order.

Tags: Barack Obama, logic, spending

I’m probably a bit late to the party, but I tripped across something interesting today.  It seems our government is wasting no time preparing for the passage of the American Recovery and Reinvestment Act, better known as the $800+ billion “stimulus” currently working its way through Congress.  It seems that the government has decided to launch a website, recovery.gov, apparently as a way to let anyone with an Internet connection keep track of where their tax dollars are being spent.  The idea itself is fundamentally interesting, though I am rather of two minds about what it is that I’m actually seeing.

On the one hand, there is more than a small amount of irony behind the site which is, currently, nothing but a placeholder for after the bailout is passed.  The site proudly bills itself as being “part of an unprecedented effort to root out waste, inefficiency, and unnecessary spending in our government.”  It would seem to me that not passing a wasteful, inefficient, and unnecessary spending bill in the first place would be a much more effective way to go about accomplishing that goal.  Nevertheless, I suppose it is good to know that the government recognizes that the bill is each of those things, and that they are willing to spend even more money to at least let us watch and bicker about the details.

On the other hand, I actually rather like the idea of having a site which details out where all of the government’s money is being spent.  Of course, if the government is really serious about rooting out waste, inefficiency, and unnecessary spending, I can think of no reason to stop at a single Act.  There is, after all, a lot of goverment spending going on even without considering all of the money being spent or proposed for economic recovery.  I expect that very few people  have any idea where the money actually goes, aside from the occasional media reports about pork earmarks winding its way into high profile legislation.  A convenient system for inspecting the details of the federal budget and an ongoing report of expenses actually paid would be a very welcome and useful innovation.

The interesting question whcih will be intersting to watch unfold is whether recovery.gov will result in any substantial changes being made to the stimulus funding once the program is in place.  Federal spending programs have historically been incredibly difficult to abort mid-course even in the face of significant public outcry for reform.  The ultimate test of reform.gov will be whether or not it allows changes to be made as soon as “waste, inefficiency, [or] unnecessary spending” become apparent in the stimulus plan.

Over in the comments section discussing the First Principle of limited charity, Patrick offers an observation which is entirely relevant and insightful.  What Patrick points out is that I “seem to be relying on your ideal government governing an ideal people.”  The easy answer to this charge is that it is certainly true; I have spent this series discussing the principles which I feel belong at the foundation of post-Bush conservatism, which necessarily requires me to expound a world which does not currently exist.  Each of the First Principles, however, draw strength from the practicality of the system they would produce and the liberty that would be secured.

The challenge for conservatives in bringing about any of the principles I have elaborated is the need to change the incentive system which has developed in the realm of politics.  It is a well known axiom that people will do what they are rewarded for doing; a fact which has been verified by years of study and experience in the realms of psychology, economics, business, politics, and elsewhere.  Conservatives have allowed themselves to fall into the trap of using an incentive system which is fundamentally misaligned with nearly every foundation of conservatism.  Small government, personal responsibility, charitable acts, fiscal responsibility, and freedom in general have all suffered.

Perhaps nowhere is the incentive system more fundamentally misaligned than with respect to small government.  Americans of nearly any political stripe evaluate political leaders on the basis of which laws their politicians work to pass.  To phrase that differently, Americans, including most conservatives, reward politicians for passing laws.  If ever there was a greater impediment to small government, it is hard to imagine.  Every new law which does not repeal an old law is an expansion of government.  Even laws which at first appear to restrict (rather than remove) previous laws are really expansionary in nature as the addition of restrictions implies adding government authority to evaluate and enforce those restrictions.  As a coercive force, every new law, every expansion of government, eliminates choices and restricts liberty.  Yet, we as a society cheer for our politicians when they enact some new law in order to make us “more” free.

What conservatives have forgotten, and liberals have never understood, is that most bad ideas do not need to be prohibited by law.  They are, after all, bad ideas.  Assuming that people are held personally responsible for their actions, very few bad decisions will ultimately pay off, and people will generally learn to avoid making them in the future.  The zealous enforcement of property rights will generally act to deter externalities by transferring much of the social cost of bad decisions directly back onto the decision maker.  Further, because the socialized cost of a bad decision can often be extensive, individuals affected have an incentive in the form of a first-mover advantage to enforce their rights quickly, before others who are harmed drain the decision maker’s bank account and leave late comers with nothing.  Because the effects of bad decisions compound with time, an incentive to catch problems sooner will reduce the ultimate costs.

While strong property rights would reduce or eliminate the supposed need for the regulatory state, not all bad ideas have a strong connection to economics.  Social issues, in particular, tend to resist being converted into a matter of dollars and cents.  Even liberals claim to agree that the government has no right to legislate a moral agenda, which immediately puts nearly every social issue beyond the authority of law.  Filling the gap are social organizations (churches, youth groups, athletic clubs, etc.) which are perfectly capable of promoting an agenda and winning or losing converts in the marketplace of ideas.  If laws were truly capable of changing people’s opinions, prohibition would never have happened after the enactment of the 18th Amendment and America’s prisons would not be filled with people arrested for drug crimes.  However, as nearly every minority group can attest, there is a significant social cost associated with being outside the mainstream; but as civil rights activists know, the definition of mainstream can change with a sufficiently good argument made consistently over time.

Social organizations also have other roles beyond promoting their social ideas to society.  They are also centers of charity.  Social organizations can only exist when members have built up a certain level of interdependence.  Once entangled, people have a natural tendency to help their friends.  The organizations themselves have a further incentive to help their members because people who are having trouble with life have a tendency to withdraw from non-essential activities, citing a lack of time, resources, or both.  An organization which helps its members is more likely to keep its members.  At the same time, very few groups are willing to prop up a defective member forever.

I once debated with a friend of mine about the propriety of the assumption in economics that capitalist greed can be leveraged as a force for good.  My answer at the time was weaker than it should have been, and we quickly moved on to discussing the difficulty economics has at addressing non-economic values like the good feeling that comes from helping a fellow man.  The real answer to his charge is that law is no different; it merely adds extreme artificial costs to any decision disfavored by the government and assumes that most people will follow along.  There is nothing magical about the First Principles, save for the recognition that people can take care of their own, and that force can never be freedom.

Tags: First Principles