Making its way around the news reports for the past couple days has been news from the US Preventative Services Task Force that calls for an end to annual screenings for men at risk for prostate cancer.  If this recommendation seems eerily similar to another recommendation published in the wake of Obamacare, it should.  This is the same group that said breast screenings for 40-something year old women should go the way of the dinosaur.  Like pretty much everyone else who wrote about the breast cancer story, or who is writing about the prostate cancer story now, I’m woefully unqualified to offer any intelligent comment on the merits of the recommendation.  Watching the responses to each, though, is interesting.

When the breast cancer recommendation came down, it set off something of a media firestorm almost overnight.  The new recommendation made top headlines, with denouncements coming from all across the political spectrum.  The topic was an instant women’s health issue, with story after story of women whose lives were saved because they were examined and their cancer was caught early.  The reporting circled for days before the chaos finally subsided.

It’s very different, now, with the prostate cancer recommendation.  I first saw the story slip into the churn of the news stream on Friday where, perhaps in part thanks to the weekend news cycle, it seems to be sitting, more or less dead.  The reporting, far from the vitriolic response to the breast cancer recommendation, has been very matter-of-fact and really quite boring.

I can’t help but wonder if there’s some lesson to be drawn from the difference in reporting on these two topics.  Is it just that the flood-the-world-with-pink strategy of the breast cancer awareness crowd has us on heightened alert to any challenge to the testing orthodoxy?  Is there, perhaps, a more anti-male message to be taken from this?  Or have we simply gotten used to the idea that, now that the government is taking over healthcare, part of their job is going to be telling us that we shouldn’t actually get to receive any?

I was recently linked to an article written by John Lott seeking to bust certain myths being talked about in the media regarding the debt ceiling.  His article, overall, accomplishes the goal he sets out to accomplish.  In busting his first myth, he tells us that “The 14th Amendment to the Constitution requires that the debt payments come first before any other spending,” and continues that logic through at least one more myth.  Unfortunately, the 14th Amendment says no such thing.

What the 14th Amendment says is that “The validity of the public debt … shall not be questioned.”  By their plain meaning, these words say nothing about the debt ceiling (which didn’t even exist at the time) or how the country’s debts will be paid.  They say only that the validity of the debt shall not be questioned.

To explain what those words mean, consider an analogy.  An American family with a mortgage and credit cards has used tools of debt to build up a lifestyle at the edge of — or beyond — their financial means.  The charges are accurate: the student loans covered earning a degree; the mortgage bought a house; and the credit card bought furniture, electronics, other items, and maybe even a utility bill or two.  Out of cash, and with credit cards at their limit, the family receives a bill in the mail.  The family now has a “crisis” to work through:  How do they handle the bills?

One choice that the family has is to pay some bills right away and put off others until later.  Another choice is to find new sources of debt to cover the bills.  Yet a third choice would be to throw the bills in the trash and, when the bill collectors call, tell them you don’t actually owe that money for some reason or other.

The 14th Amendment takes Option 3 off the table, but leaves the other two alone.

The Public Debt Clause was written at a time when the country had just amassed what was then a significant amount of public debt.  The Clause was written to provide certainty as to how the government would manage those obligations.  What it said is that the United States would not tear up its bills.

But other than telling its creditors to pound sand, the government can do nearly anything it wants with its debt.  A great many proposals have already made their way into the debate, some of which are more fact based than others.  Unfortunately for the author, thinking that the Constitution has already solved the problem falls squarely into the “others” category.  Our looming “disaster” will have no such easy answer.

May 12th was a bad day for “the right of the people to be secure in their persons [and] houses” in Indiana.  In a ruling by the Indiana Supreme Court, the Indiana justices have taken away the historic right of every individual to resist unlawful arrest by police.  In so doing, the Court takes what should have been a relatively modest case and turns it into a significant watershed of constitutional law.  The ruling is wrong on the law, and inconsistent with American values of liberty.

“The majority tethers its abrogation of [the right to resist unlawful arrest] on (a) modern developments that have diminished the dangers of arrest at common law (e.g., indefinite detention, lack of bail, disease-infested prisons, physical torture), (b) the desire to minimize the risk of the level of violence and risk of injuries, and (c) the rights of the police to enter a home even without a warrant under certain circumstances.” (Dickson, J. Dissenting) None of these, however, are appropriate reasons to cast aside centuries of legal history and infringe upon constitutional values.

The majority cites five modern developments that have diminished the aforementioned dangers from arrest.  These developments are “(1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies.”  It is noteworthy that modern developments 1 and 2 are exactly as modern as the Fourth Amendment — bail is available under the Eighth Amendment¹, prompt arraignment under the Sixth Amendment², and the need for probable cause under the Fourth Amendment itself³ — yet the founders saw fit to include the protections of the Fourth Amendment anyway.  Modern development 3 is, at best, a remedy to which is only meaningful after the police have acted unlawfully and only if the arrestee is later charged.  Modern development 4 lacks any level of constitutional character, which would force arrestees rely on voluntary police procedures to vindicate constitutional rights.  Finally, it has been recently argued⁴ that modern development 5 is not sufficient to cure the constitutional defect of unlawful police conduct, particularly in light of the doctrine of qualified immunity.

Regardless of the supposed benefits of these modern developments, it should also be noted that each and every danger listed is addressed and prohibited by a provision of the Constitution.  Indefinite detention is prohibited by the Fifth Amendment⁵ and by Article 1 Section 9 of the Constitution⁶.  The lack of bail, as already mentioned, is prohibited by th Eighth Amendment.  Disease-infested prisons have long been held as a violation of the Eighth Amendment⁷.  And the torture of prisoners is among the precise evils that the founders wrote the Eight Amendment Cruel and Unusual Punishment clause to prohibit.  If the right to resist unlawful arrest was merely a tool to prevent the aforementioned dangers, then the right should never have survived ratification of the Constitution.

The desire to minimize the risk of injury has become a common theme in modern Fourth Amendment jurisprudence.  The general argument has been that police need the authority and capability to control a situation, and courts reviewing police action should generally err on the side of allowing too much, rather than too little, freedom for law enforcement to act.  As I have thought in prior cases and continue to believe now, that analysis is exactly backwards.  The Bill of Rights was written to provide a number of safeguards for the people against the police.  If the police are generally free to do as they please, then constitutional protections are meaningless.  While preserving the safety of the men and women who serve in law enforcement is vitally important, I cannot believe that it is more important than preserving the bedrock liberties upon which our nation was founded.

Finally, the Court points out that police can sometimes enter a home even without a warrant.  This is both true and irrelevant.  This case is about the police acting unlawfully.  If the police had a right to enter the house, then entering the house would not have been unlawful, but resisting the police would have been.  If the Court believes that the arrest in this case was lawful, then they should say so.  What they have done instead is use the possibility that the police may act lawfully in some other case as a basis to give the police a general right to act unlawfully.

The Constitution was designed to provide the government sufficient authority to keep the people safe, while simultaneously keeping the people safe from the government.  Nothing in the history of our founding suggests that the exclusive protection against police misbehavior is to “tell it to the judge.”  Indeed, by then, it’s already too late.  The right of the people to resist an unlawful arrest has been recognized since the 13th century and has been reaffirmed as “an undoubted right” by the US Supreme Court as recently as 1948. (United States v. Di Re)

The weight of history and the importance of preserving liberty are far more compelling than the weak arguments made by the Indiana Supreme Court in casting aside the right to resist unlawful arrest.  I believe Justice Dickson’s dissent is correct.

1. Excessive bail shall not be required [↩]
2. the accused shall enjoy the right to a speedy and public trial [↩]
3. no Warrants shall issue, but on probable cause [↩]
4. Herring v. United States, Ginsburg, J. Dissenting [↩]
5. No person shall be… deprived of … liberty … without due process of law [↩]
6. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. [↩]
7. nor shall cruel and unusual punishment be inflicted [↩]

I wonder how much money could be shaved off of the national debt if our members of Congress would quit wasting paper on ridiculous things.  Or, for those more environmentally oriented, how many trees could be saved.  Whatever your viewpoint, it”d sure be nice if we didn’t have to waste congressional record with things like this:

the National Aeronautics and Space Administration shall plan to return to the Moon by 2022 and develop a sustained human presence on the Moon, in order to promote exploration, commerce, science, and United States preeminence in space as a stepping stone for the future exploration of Mars and other destinations. The budget requests and expenditures of the National Aeronautics and Space Administration shall be consistent with achieving this goal.

So if I’ve got this right, our national debt is spiraling out of control, and Representatives Mr. Posey(R-FL), Ms. Jackson-Lee (D-TX), Mr. Wolf (R-VA), Mr. Bishop (R-UT), and Mr. Olson (R-TX) want to build a moon base.  Maybe we could just think of it as taking our grandkids’ money to build them the Most Awesome Tree House Ever.

Of course, in reality, a moon base could be a decent investment for our country.  If Mr. Posey, Ms. Jackson-Lee, Mr. Wolf, Mr. Bishop, and Mr. Olson all took a dozen or so of their colleagues with them, we might end up with a higher percentage of legislators who actually care about solving the nation’s problems, rather than just wasting the nation’s time.

News is picking up today of the signing statement issued by President Obama in regard to his signature of the appropriations bill passed after much congressional debate.  The statement, posted on the White House website, contains an interesting declaration in which Obama makes clear his intention to continue paying his czars despite Congress declaring otherwise.  Without saying it directly, the President intimates that keeping his czars off the payroll would be a violation of the Constitution.  He is perfectly mistaken.

In his statement, President Obama writes:

Section 2262 of the Act would prohibit the use of funds for several positions that involve providing advice directly to the President.  The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority.  The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.

Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers by undermining the President’s ability to exercise his constitutional responsibilities and take care that the laws be faithfully executed.  Therefore, the executive branch will construe section 2262 not to abrogate these Presidential prerogatives.

Sadly, much of this statement is misleading or false.

To begin with what is true, the President is right that he has a “well-established authority to supervise and oversee the executive branch.”  That is, of course, his primary job.  He is also correct that he has the authority “to obtain advice in furtherance of this supervisory authority.”  Indeed, the Constitution guarantees that the President “may require the Opinion, in writing, of the principal Officer in each of the executive Departments.”

The sleight of hand Obama then tries to perform is to blend the line between “officer” and “advisor”.  Under the Constitution, an “Officer[] of the United States” is an individual who has been appointed “by and with the Advice and Consent of the Senate.”  In other words, the President has the right to get advice from his cabinet.  However, it is not the cabinet that is at issue in this legislation, and the President’s attempt to lump the people targeted by the provision in with his cabinet is disingenuous.

Section 2262 of HR 1473 reads:

None of the funds made available by this division may be used to pay the salaries and expenses for the following positions:

(1) Director, White House Office of Health Reform.
(2) Assistant to the President for Energy and Climate Change.
(3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy.
(4) White House Director of Urban Affairs.

None of the positions listed have gone through the confirmation process.  They are, by definition, not “Officers of the United States.”  Their jobs are nowhere guaranteed by the Constitution, nor is their pay.  The President has no right, under the Constitution, to their advice.

The President, of course, is free to consult with whomever he chooses, including with the four individuals listed in HR 1473.  The taxpayers, however, have no obligation to pay for the advice the President receives.  Those four individuals are more than welcome to continue advising the President for free, and Obama is certainly welcome to pay them out of his own pocket.  But it is no longer permissible for those individuals to receive compensation for salary or expenses from the US Treasury; and the President is wrong if he believes otherwise.

The news has been getting around this week that the Republican controlled House of Representatives is planning to introduce a bill to repeal Obamacare.  Getting rid of Obama’s health care regime is, of course, one of the main issues on which conservatives campaigned this past year and is, quite appropriately, a top issue for incoming Republicans.  I hope that the bill attracts every Republican and as many Democrats as possible.  That said, I don’t believe the repeal bill should have been introduced.

Current circumstances in government — which the liberal media won’t let us forget — are that Democrats control the Senate and the White House.  Even if the vote in the House of Representatives is unanimous, the Senate can still simply vote down the legislation or fail to vote on it at all, and President Obama is sure to veto anything that somehow manages to get as far as his desk.  Republicans haven’t got enough power to overturn a veto in either the House or the Senate.  Put it all together, and the chance that any Obamacare repeal actually happen is effectively zero.

So, why introduce the bill now?

Political cover:  Voting for the repeal right now gives legislators an opportunity to bolster their conservative credentials without actually doing anything.  This bill is excellent for liberal Republicans (and moderate Democrats) who need to bolster their conservative credentials but don’t want to risk actually pulling the law to the right.

For conservatives, however, it’s results that matter, and this bill at this time promises none.

When the only possible benefit is to the voting record of moderate leftists, I can’t help but feel like the American people are being set up.  Come next election, I’m sure we’ll see politicians who voted repeatedly to expand government power and further soak the tax paying public in red ink will be on the airwaves patting themselves on the back for having taken a stand with their vote against Obamacare.  They will do what they can to become indistinguishable from the true conservatives, and this vote will loom large in the picture they’ll paint.

And then, what happens two years from now?  “We tried to repeal Obamacare once, but it went nowhere.  Oh well.  Sorry.”  If they say anything at all.

With no chance of actual success, the upcoming vote on repealing Obamacare is nothing more than symbolic.  It looks good, and is sure to please the conservative electorate who came out in November hoping for just such a repeal, but the only people who benefit are leftists.   The goal for now, which I think the people understand, should be to defund Obamacare immediately and save the repeal until the voters can create a true conservative majority 2012.

Tags: Obamacare

Over the holiday weekend, I had the opportunity to watch America: The Story of Us.  In watching the series, I couldn’t help but be struck by the story it told about the history of America.  It’s been many months now since I read an article discussing the power of narrative in politics.  The article pointed out that how you tell history is important, and opined that the left has the more compelling tale.  In truth, conservatives have barely told any story at all, even though it is clear what our story should be.  America: The Story of Us is a good first step toward a conservative history of America.

America: The Story of Us begins all the way back in the pioneer days of American colonization.  The story begins with the first permanent colonies and the struggles faced by America’s very first generation of immigrants.  The story is, naturally, a story of success.  Interestingly, it’s the story of how one man’s fateful choice to bring tobacco to the colonies created America’s first thriving economy.  It’s a theme that would be repeated time and again.

Moving forward through history, The Story of Us would return time and again to how triumphs of ingenuity, risk-taking, sacrifice, and individual strength would drive the America forward to the modern age.  The series would hit all of the highlights of American history including colonization, the Revolutionary War, the struggles with slavery culminating in the Civil War, western expansion and the railroad, the industrial revolution, the Great Depression and World War II, our struggle with civil rights, and the dawn of the Internet.  Each segment would tell the story of the people who most changed America.

The focus on people is the great success of The Story of Us.  At every step along the way, the nation has faced serious challenges unprecedented in scope or scale.  Each struggle was overcome by a person or people who had the courage to go all-in on a solution, trusting themselves to succeed.  What’s more, it was often people from unexpected walks of life — people like slave-turned-liberator Harriet Tubman — who would have the greatest impact of all.

Personal sacrifice, rugged individualism, and a commitment to doing the best that you can with the hand you’re dealt are the bedrock characteristics of American conservatism.  America: The Story of Us shows us how those same characteristics are the bedrock of the nation.

With all that said, it is with great sadness that I can’t recommend watching America: The Story of Us.  Despite the brilliance of their narrative, The History Channel’s execution is awful.  The show, it seems, was produced on about half the budget it should have had; and while it was neat to see how they were able to reuse their graphics the first few times, it more than grew old by the last two episodes which barely had any new content at all.

The narrative, however, is timeless and powerful; so strong that it echoes despite the production failures.  We live not to subsist, but to accomplish great things for ourselves and our fellow Americans.  Courage and character run deep in our blood, brought here by every person to set foot on our shores and call this nation their home.  Time and again, we answer the call to do the extraordinary.  In peace and in war, we fight to win.

And this before all: We fight for freedom.

Over in the Wall Street Journal’s opinion section, Randy Barnett and David Oedel offer an interesting take on how ObamaCare might be treated under the General Welfare Clause of the Constitution.  Their basic argument seems to be that tying compliance with ObamaCare to federal funding of Medicare is coercive to the point that it is unconstitutional.  Along the way, however, they enter into an interesting discussion about the General Welfare Clause and why, in their view, such special deals as the Louisiana Purchase and the Cornhusker Kickback should also be found unconstitutional.  I’m not sure I agree with their reading of the Clause, but the implications of their reading strike me as being nothing short of remarkable.

Their basic argument against the Cornhusker Kickback follows, essentially, from this paragraph:

Article I, Section 8 of the Constitution gives Congress the power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” The problem with the Cornhusker Kickback was that the citizens of 49 states would have had to pay for Nebraska’s Medicaid exemption—without getting anything in return. The special exemption exceeded Congress’s constitutional authority because it did not serve the “general welfare”—meaning, the welfare of the people of each and every state.

Put another way: If Congress spends to the benefit of some parties over others, then they have failed to act in accordance with the general welfare, so their spending is unconstitutional.

Political payoffs to buy the votes of congressmen with taxpayer dollars are not the only times we see government acting to the benefit of some parties over others.  Earmark spending follows this model as individual politicians write funding for particular projects into federal spending bills.  Much of this spending is of doubtful value to anyone but the people or organizations receiving the taxpayers’ money.  Almost none of it promotes general welfare.

Barnett and Oedel go on to note that “Normal federal spending occurs irregularly throughout the U.S. If Nebraska gets a military base, for example, making the case that it serves the “common defense and general welfare of the United States” is easy, since citizens of other states benefit from the base.”  What they seem to gloss over, however, is that Congress doesn’t build military bases under the General Welfare Clause.  The Article 1 Section 8 powers to “support Armies” and “support a Navy” are the normal (and appropriate) vehicle for military spending.  There is no Article 1 Section 8 power to fund the YMCA.

As Barnett and Oedel continue, “[t]he same general-welfare story can be told about virtually all federal spending programs, which is why Chief Justice William Rehnquist said in [South Dakota v.] Dole, “[i]n considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress.”"  However, the courts are not the lone arbiters of constitutionality, and the mere fact that a court does not strike something down does not answer the constitutional question.  The structure of government, our elected representatives, and We the People all have an obligation to ensure that the government stays within its constitutional limits.

Make no mistake, most earmarks are unconstitutional.  Few have anything to do with the General Welfare, in addition to other constitutional infirmities.  The Cornhusker Kickback and Louisiana Purchase are only the most infamous recent examples.  Barnett and Oedel provide one more reason to be suspicious of earmark spending, and one more reason that the people need to be forever vigilant about how their representatives try to spend America’s money.

Adding an interesting new dimension to the discussion about the FCC’s most recent power grab, Ars Technica recently ran an article discussing the FCC’s role in the history of television.  Based on what the author has written, I should think it impossible for anyone who believes in limited government to read the article without getting upset.  The story paints the entire television scene as the product of government central planning, built on the hubris of a once obscure government agency with a modest charter, and riddled with one policy failure after another.  This inept agency is the same one that now purports to have taken control of the Internet in the face of Congressional opposition, impending Congressional action, and a court which already struck down this power grab once.  God save the Internet if these fools get their way.

The story begins, modestly enough, with radio signals.  Back when radio was first being invented, the number of radio frequencies available was nowhere near the number of frequencies that we have today.  With broadcasters wanting to get into the business of broadcasting on what was then a rather limited spectrum, it suddenly became important to have some way for them to share the air without stepping on each others’ signal.  Somehow, the government ended up owning the airwaves, and the FCC (then called the Federal Radio Commission) was chartered to parcel them out to interested parties.  The FCC accomplished this by keeping ownership of the airwaves and granting licenses for their use.  With that decision, America’s first command and control economy was born.

From that point forward, the FCC has been in the business of choosing broadcasting winners and losers.  The agency began by granting licenses to nonprofit organizations, colleges, churches, and the like.  There was no advertising model back then, and organizations profited from having radio stations by using them to promote their particular causes.  That all changed when the FCC decided that advertising driven, for-profit radio was the wave of the future.  By giving higher priority in obtaining/renewing licenses to for-profit “commercial” radio, the FCC ejected nonprofit “propaganda” radio from the market (and, thus, from existence).

The FCC has been in the pocket of commercial radio broadcasters ever since.  Time and again, the FCC has conspired to kneecap or completely destroy technology which would tend to compete with its chosen winners.

In one early example, AT&T wanted in on the radio game.  They devised a technology which would allow for broadcast over its telephone network; essentially, it’d be like cable TV for radio.  The FCC kept AT&T away by offering them a monopoly over telephone service in exchange for killing their cable radio plans, then made it illegal for anyone else to ever try cable radio again.  Many years later, the FCC would try to do the same thing with cable television.  They would ultimately fail — today, most people watch TV over cable or satellite — but they effectively froze the technology for decades and continue to impose requirements designed to make the life of non-broadcast providers as difficult as possible.

Then, of course, there are the technology requirements.  Back in the earlier days of television, signals were sent on various channels of VHF or UHF frequencies.  Because of the different cost structures involved, UHF failed spectacularly.  The FCC, under the control of a chairman who couldn’t find anything on TV he wanted to watch, changed UHF licensing requirements to include a mandate for “better” programming.  He also got Congress to mandate UHF receivers on all televisions, since most at the time didn’t have one.  UHF still failed, and the FCC chairman, if he were alive, would probably still be lamenting the thousands of channels available on cable which still have almost nothing worth watching.

More modern mis-innovations also abound.  The CableCARD program is such a disaster that almost nobody even knows it exists.  The V-chip is only slightly less useless.  And the digital TV mandate was only “successful” (for the 10% of TVs that aren’t hooked up to cable or satellite) after being delayed for months an heavily subsidized by the government with taxpayer dollars.  Future possibilities also include mandating FM tuners in cell phones; technology almost guaranteed to blend in perfectly with the scrap heap of waste generated by the FCC.

In sum, the FCC promotes technology nobody wants and kills technology that’s actually useful.  The economic model is textbook command and control; even the idea of private property doesn’t exist in the FCC’s world.

The FCC has quietly been one of the most destructive bureaucracies in the history of America.  They are living proof that Marxism can take hold in America if the people are not vigilant.  They have selected winners and losers, they have decided which business models live and which models die, and they have almost always chosen wrong.  These are the people who want to take over the Internet:  Bumbling bureaucrats who have never made a correct decision, but who believe themselves to be the ultimate arbiters of an entire sector of the economy.

Tags: net neutrality