Thursday, May 28, 2009

What to Ask Supreme Court Nominee Sonia Sotomayor

'Image by takomabibelot via Flickr

All discussions in the media boil down to this: Will she rule in favor of what I want to happen, or against it?

Zero about how she views the underlying principles of the COnstitution.

If I were on the Senate committee, I would ask her one question only:

Is ours a Constitution of enumerated powers, or one of enumerated rights?

Her answer -- which would likely be enumerated rights because that's what all the lawyers believe these days--would tell me all I need to know.

Most people just want to know if she will be a right-wing Justice or a left-wing Justice.

By the way, the answer most legal people today would give is: Ours is a government of enumerated rights.

Madison's Image via Wikipedia

The Founders would spin in their graves at that.

By the way, if you're puzzling over this distinction, simply put it is this:

The Founders decided that a government with unlimited powers is an unlimited danger to the liberties of the People. Their clever solution to this age-old problem was to create a government whose powers would be listed specifically in the Constitution -- and (in principle) the government would only be authorized to exercise power in those specific areas. Like, say, national defense. Anything not specifically listed as an area where the government can act, the government cannot act--because it doesn't have the power. Its powers are strictly limited.

When the Bill of Rights was being debated, one common objection was that this listing of specific rights might give the government an opening to declare that people only have the specific rights listed there -- the government can do anything it wants, limited only by the Bill of Rights.

James Madison, Hamilton's major collaborator, ...Image via Wikipedia

This is known as the Enumerated Rights interpretation. It is the popular interpretation today, just as our Founders feared. Interestingly, in the Federalist Papers, the authors argued that this interpretation was idiotic, because it would require ignoring the whole thrust of the Constitution; the Constitution would make no sense under this interpretation.

But to soothe this attack of nerves, the Founders added the 9th and 10th Amendments, which specifically say that this Bill of Rights is not a list of all the rights people have; they have all rights outside of the limited powers of the government.

This "protective clause" took 150 years to break down, but now it is considered a dead letter. Robert Bork's nomination hearing included the shocking news that he didn't think the 9th or 10th Amendments had any real meaning.

Of course, if you think ours is a Constitution of Enumerated Rights, then the 9th and 10th Amendments wouldn't make any sense to you. The Founders mistakenly thought the logic of this would force one to abandon the enumerated rights idea. How little faith they had in our ability to ignore what is inconvenient in our Constitution!

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Wednesday, May 27, 2009

So What Happens to California?

A garden hose pistolImage via Wikipedia

Forbes Magazine editor's blog this week:

Here is another fine piece by Atlantic blogger Megan McArdle; it is rollicking good.

So what about California? A reader asks. Ummm, that's a tough one. No, wait, it's not: California is completely, totally, irreparably hosed. And not a little garden hose. More like this. Their outflow is bigger than their inflow. You can blame Republicans who won't pass a budget, or Democrats who spend every single cent of tax money that comes in during the booms, borrow some more and then act all surprised when revenues, in a totally unprecedented, inexplicable and unforeseeable chain of events, fall during a recession. You can blame the initiative process and the uneducated voters who try to vote themselves rich by picking their own pockets. Whoever is to blame, the state was bound to go broke one day, and hey, today's that day!

"California will go bankrupt, muni and state debt will spike, the federal government will backstop humanitarian programs and very possibly all state and local debt, and eventually, California will figure out whether it wants higher taxes or lower spending. But we will not actually make the world a better place by enabling the lunatics in Sacramento to pretend they can have both.

But all the discussions in the media for the coming months will be about raising more money, somehow, someway -- there is no way in hell we can cut anything, not single nickle can be spared. That will be the story.

The Empire of Debt by Dee HonImage by Renegade98 via Flickr

And to prove it, the politicians from Arnold on down will cut their budgets by slicing off nothing but important or sentimental programs -- they'll cut police and fire, which are the real reason most people think we have government in the first place -- and they'll cut programs for children and poor women and cripples, ones that make you think they're out of their minds because they raise a storm of criticism.

But they *want* a storm of criticism. They want to be able to say, "See? We *try* and we *try*, but anything we cut, people get really upset! So we have no choice but to raise taxes (or borrow money or whatever)."

They won't stop going on junkets, they won't shut down the hundreds of commissions that do nothing but provide make-work jobs for their out-of-office pol friends, they won't cut back on programs that haven't shown they work, and they won't cut into programs that really are questionable as to whether the government ought to be doing them. And they won't sell anything, not even San Quentin, because it's "for the people!"

Prepare yourself for a truly disgusting spectacle. And then your wallet will get lifted.

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Wednesday, May 13, 2009

The Challenge for Libertarian Activists

politics - Clint's Nolan Chart - 20020718 - sl...Image by Captain CHAAAAAAAAAAAAAAOOOOOOOOOOOOOOOOOOOSSSSSSS via Flickr

In "Libertarian Democraphobia," an article by Will Wilkinson on his site (May 4, 2009), I found these especially cogent thoughts about the problems facing libertarian activists.

"...[L]ibertarians have done a terrible job countering the widespread suspicion that it's a uselessly abstract ahistorical ideology for socially retarded adolescent white guys... If libertarians are going to shift the politics of the countries we live in, we've got to get it through our thick skulls that many people have considered libertarian ideas and have rejected them for all sorts of decent reasons. We've got to take those reasons, and those people, fully seriously and adequately address them. Otherwise, we should probably just accept that libertarianism is a niche creed for weird people and reconcile ourselves to impotent, self-righteous grousing.... For my part, I'm going to continue to try to convince people that free markets and limited government are better than they might have thought."

Well said. The libertarian challenge is, and has been, and will be for a very long time, to persuade people to take it seriously as (at some level) an attempt to address practically and pragmatically the problem of governance. At the level the Founders operated--and that certainly wasn't minarchism, though it probably seemed that way to some at the time--it was a practical alternative offered after long hard thought about the very real problems and risks of governance, and it still is.

That's one reason I like the Reason Foundation/Magazine so much -- they spend almost all their effort thinking and talking about how, as a practical matter, one can move closer (even if incrementally) to a more peaceful, prosperous, and free society, in specific situations such as garbage collection, police protection, air traffic control, highway congestion and maintenance, career licensing, and on and on -- just the kinds of things most people would think libertarians have no ideas about, and just the kinds of things most libertarians aren't interested in. In this, they follow Milton Friedman, whose entirely practical and sensible book, Free To Choose, created many a libertarian.

But since libertarianism tries to limit government power, its political arm has never figured out how to attract workers willing to invest time and money and energy in running for offices they will attempt to limit in scope and power -- the opposite of why people typically get into politics. So libertarianism attracts too many people who simply enjoy the arguments and ignore the question of how to move forward, which is why so many libertarians spend so much energy arguing among one another about who's more libertarian than the other. I remember one libertarian-minded pol whose reaction to someone who said "I like some of your positions, but I have problems with these other positions," was to focus on where they agreed, and build on that -- most libertarians will instantly jump on the area of disagreement and start an argument, which is dumb.

Sigh. Thank goodness there are a few free-market thinktanks pushing to convince voters and bureaucrats of the value of their ideas.

One thing I'd like to see pursued is the ideas of a 19th-century French politician who, in arguing against some socialist proposals, pointed out that a government that allows itself to be tasked with fixing every single problem put before it is a government setting itself up for failure. As hard as it is to keep peace and security among the citizens, it's got to be even harder to make them love one another, be happy, and have their many contradictory ways must surely be a formula for disaster. The US military, oddly enough, following Vietnam learned the lesson of failure, and until Iraq had dragged its feet about being sent off to pursue war -- they knew how easy it was to screw it up and then catch the blame. If only politicians could be so wise. If only we could encourage them to think so.

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Monday, May 4, 2009

Supreme Court Justice Clarence Thomas on Interpreting the Constitution

“Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.”

I agree with that. Apparently, nobody who either picks or votes on nominees for any courts at any level agree. They seem mostly to prefer justices who will come to the "right" conclusions, then figure out an argument to support that. Which is easy for lawyers to do, as they are trained in this art.

But another way to look at it is that the Founders tried to establish a Constitution on *principles* that would yield the "right" results.

They included the proviso that future generations could argue the point, and with the presumed wisdom of hindsight, amend the Constitution in light of new insights. They didn't make it easy to amend the Constitution, because they feared (from experience) the populist rush to judgement of political enthusiasms, especially ones inflated with the aid of political and partisan pressure.

We, those future generations, have turned out to be impatient with considered judgement, and keep finding ways around the Constitution instead. Interpretation in light of new insights is the most popular one currently. Simply ignoring the plain intent of the Constitution is often popular too -- just look at the First Amendment, which flatly says "Congress shall make NO LAWS," then haul out a hefty volume of Congressional restrictions, aids, controls, and interferences with the freedom of speech and of the press. All they needed was to invent mumbo jumbo about how radio, and later TV, were not covered under the Constitution because the airwaves were "owned" by "the people" and they were wide open to whatever mischief they wished. And that's just the First Amendment. Any libertarian could cite other examples now widely accepted as appropriate roles for a government that was, in the Constitution, apparently (per the words) but not actually (per the laws since passed) forbidden to engage, or not given the authority to meddle in.

Got a Constitution that limits your power, Mr. Politician and Mr. Bureaucrat? Nooo problemo! All you need is excuses why the plain language of the Constitution doesn't apply, and you can exercise all the power you wish, in every aspect of the private lives of citizens! Power given you by -- you! No Constitution need apply!

It's an ongoing tragedy that Thomas, one of the best and wisest and most focussed Supreme Court justices we've ever had, continues to suffer from the calumnies and slanders of the past.