BrianGarst.com

Malo periculosam, libertatem quam quietam servitutem.

constitution Archive

Thursday

17

September 2009

0

COMMENTS

Constitution Day Is Upon Us

Written by , Posted in Liberty & Limited Government

It’s September 17th, which means it’s Constitution Day!  I don’t get much worked up about such things, because to me every day is Constitution Day.  Still, in honor of the occasion I’ll link to this post from a couple years ago, where I responded to a suggestion to scrap the Constitution:

In an op-ed for the Los Angeles Times, Larry Sabato suggests that we scrap the constitution, convene a constitutional convention and come up with a new governing document. Such an idea shouldn’t be dismissed out of hand. There may come a time when this sort of action is necessary. At this time, however, there is no such need. Today’s biggest problems stem from where the Constitution is being ignored, not where it’s being followed…

Read the rest here.

Wednesday

9

September 2009

0

COMMENTS

Free Speech On The Rise?

Written by , Posted in The Courts, Criminal Justice & Tort

That’s the hope following Wednesday’s rehearing of Citizen’s United.  SCOTUSblog paints an optimistic picture for freedom lovers:

Three Justices — Anthony M. Kennedy, Antonin Scalia and Clarence Thomas — have explicitly urged the Court to overturn the two precedents that sustained congressional limits on campaign financing by corporations and labor unions. Kennedy and Thomas only seemed to reinforce that position on Wednesday; Thomas remained silent, but had given no indication earlier of a change of mind.

That lineup has always put the focus, as the Court volunteered to take on new constitutional questions in the Citizens United case, on the Chief Justice and Justice Alito.  While both have been skeptical in the past about campaign finance laws, supporters of such laws had fashioned an array of arguments they hoped would lead Roberts and Alito to shy away from casting their votes to create a majority to free corporations to spend their own treasury money to influence federal elections.  None of those arguments seemed to appeal to either Roberts or Alito.

This is a good opportunity to clear up some misconceptions about free speech.  NPR asks:

The question always is: Who does the First Amendment apply to? Do only individuals have the right of free speech? Or does this right extend to corporations and unions as well?

These are the wrong questions. The First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

NPR (along with the rest of the advocates for government regulation of speech) thinks the First Amendment creates a right to free speech, and that reasoned people can debate its scope, or divine through enlightened discourse just who that creation applies to.  The text does not justify this approach.

The amendment references “the freedom of speech” as a right already in existence – as is the case for all true rights – in the course of restricting government. The Constitution did not create the right, and has no more say as to whom it applies than it does the application of the right to life, or any other right.  These are natural rights that predate the document created to protect them.

Congress shall make no law … abridging the freedom of speech.

The restrictions placed on government in the First Amendment leave little room for debate.  What part of “no law” is unclear?

Tuesday

14

July 2009

0

COMMENTS

Whatever Happened To Property Rights?

Written by , Posted in The Courts, Criminal Justice & Tort

The title is, quite obviously, rhetorical.  I know what happened to property rights.  FDR and the Progressives wrote them right out of the constitution without the need for so much as a single amendment.  Decisions like this just always drive home the loss:

Pharmacists are obliged to dispense the Plan B pill, even if they are personally opposed to the “morning after” contraceptive on religious grounds, a federal appeals court ruled Wednesday.

In a case that could affect policy across the western U.S., a supermarket pharmacy owner in Olympia, Wash., failed in a bid to block 2007 regulations that required all Washington pharmacies to stock and dispense the pills.

Family-owned Ralph’s Thriftway and two pharmacists employed elsewhere sued Washington state officials over the requirement. The plaintiffs asserted that their Christian beliefs prevented them from dispensing the pills, which can prevent implantation of a recently fertilized egg. They said that the new regulations would force them to choose between keeping their jobs and heeding their religious objections to a medication they regard as a form of abortion.

…Although the courts have yet to pronounce judgment on other aspects of the lawsuit, the unanimous ruling on the free-exercise clause could portend further judgments, as the case moves forward, that a patient’s right to timely medication supersedes a pharmacist’s personal convictions.

Of course someone shouldn’t be forced to sell something in their store that they find violates their religious beliefs.  That, however, misses the point.  They shouldn’t have to sell something in their store that they don’t want to sell, no matter the reason.  That liberty is a simple extension of one of our most fundamental human and natural rights: the right to dispose of our property (which includes our bodies, among other things) as we see fit.

There is, on the other hand, no individual right to walk into any given store (pharmacy) and find a specific product (Plan B pill).  Nor is there any right to “timely medication,” whatever that means.  “Rights” such as those, which place positive burdens on others, are not rights at all.

Saturday

11

July 2009

0

COMMENTS

Hands Off My Flag

Written by , Posted in The Nanny State & A Regulated Society

Some stories just make you shake your head and ask, “Is this really America?”

An American flag flown upside down as a protest in a northern Wisconsin village was seized by police before a Fourth of July parade and the businessman who flew it — an Iraq war veteran — claims the officers trespassed and stole his property.

…In mid-June, Congine, 46, began flying the flag upside down — an accepted way to signal distress — outside the restaurant he wants to open in Crivitz, a village of about 1,000 people some 65 miles north of Green Bay.

He said his distress is likely bankruptcy because the village board refused to grant him a liquor license after he spent nearly $200,000 to buy and remodel a downtown building for an Italian supper club.

A government using tyrannical “licensing” laws to unfairly stand in the way of a man’s right to earn a living sounds like a legitimate reason to be in distress.

Congine’s upside-down-flag represents distress to him; to others in town, it represents disrespect of the flag.

Hours before a Fourth of July parade, four police officers went to Congine’s property and removed the flag under the advice of Marinette County District Attorney Allen Brey.

Marinette County Sheriff Jim Kanikula said it was not illegal to fly the flag upside down but people were upset and it was the Fourth of July.

“It is illegal to cause a disruption,” he said.

Causing a disruption is illegal?  You’d expect that out of the mouth of a totalitarian like Ahmadinejad, but not an American Sheriff.  The idea that the legality of an action depends on whether other people become upset is ludicrous. People don’t get to silence other people’s speech because it offends them, and nor should they get to violate another’s property rights because they don’t approve of how a private citizen is using his own flag on his own property.  The police were way out of line.  Is having a basic understanding of the constitution really too much to ask from law enforcement?

Sunday

21

June 2009

0

COMMENTS

Cantor Seeks To Redesign Dollar

Written by , Posted in Education

Eric Cantor (R-VA) has proposed legislation to redesign the one dollar bill. Specifically, the Liberty Bill Act (H.R. 2854) would “require the Secretary of the Treasury to redesign $1 Federal reserve notes so as to incorporate the preamble to the Constitution of the United States, a list describing the Articles of the Constitution, and a list describing the Amendments to the Constitution, on the reverse side of such notes.”

The bill states that Congress finds that “many Americans are unaware of the provisions of the Constitution of the United States, one of the most remarkable and important documents in world history.”

This is undoubtedly true, but what are we doing about all the members of Congress that are unaware of the provisions of the Constitution?

If we’re really serious about improving knowledge about the provisions of the Constitution, then what we need is to improve the primary method by which people acquire knowledge: our schools.  So we see once again that the best solution to an issue is to end the government monopoly on education.

Hat tip: OpenMarket

Wednesday

27

May 2009

0

COMMENTS

Sotomayor Is Good Pick, Bad Judge

Written by , Posted in The Courts, Criminal Justice & Tort

President Barack Obama has announced his replacement for retiring Supreme Court Justice David Souter.  It is going to be Sonia Sotomayor, a judge who embodies not only the American dream, but the President’s stated criteria for what makes a good Supreme Court judge.  Unfortunately, those criteria are misguided and have delivered a judge with a philosophy antithetical to the proper role of the judiciary in a constitutional republic.

The politics of the pick are overwhelmingly positive for the President.  Sonia Sotomayor is a great American story.  She rose from poverty to attend the top law schools in the nation and, today, has been appointed to the highest staiton in her chosen field.  That’s great.  It’s a testament to the pre-Obama America, and that it was never the horrible place that he, and his wife, have made it out to be.

But that’s not the real genuis of the pick.  To put it simply, it’s all about identity politics.  The left is already wrapping her up in her gender/ethnicity to protect her from criticisms on her substantive record.   I say once again, welcome to Obama’s post-racial America, where everything is about race.  Those remaining racists in America, who insist on seeing every event through the distorted goggles of race, celebrate the pick without the slightest consideration to what actually matters on the court: judicial philosophy.  They celebrate it because they think more people are now “represented” on the court.  But the court does not have representatives, it has judges.  Its members are not there to advance interests of constituency groups; they are there to follow the law.  The text of the law does not change based on the ethnic background of the person reading it.

Sonia Sotomayor does not understand this.  She has gone on record not only stating a dangerous judicial philosophy, but one littered with bigoted comments based on leftist identity politics.  In a constitutional republic, the law is made through the people’s representatives in the legislature.  The Executive then carries out that law, and the courts settled disputes based upon it.  There is no room in this system for the courts to make law.  Doing so removes the people from the equation, and thus undermines claims that we are, in fact, a republic.  Yet Sotomayor has made it clear that her view is that the court is a place where policy is made.  Moreover, she thinks she’ll be better at making policy from the bench than a white male, due to her gender and ethnic background.  This rank ignorance of the function of the judiciary is why Sonia Sotomayor must be opposed, but our race obsessed society, molded as it is by years of identity politics, make it impossible to talk about her merits instead of her utter irrelevant characteristics, such as her gender and ethnic background.

Saturday

2

May 2009

0

COMMENTS

A Teaching Moment

Written by , Posted in Identity Politics, The Courts, Criminal Justice & Tort

The pending retirement of Justice David Souter is an excellent opportunity to remind the public what role the judiciary plays in a liberal democratic society.  The content of news coverage only confirms the need to spread this message, as the obsession so far has been over identity politics, rather than judicial performance.

The president faces competing imperatives in replacing Souter, including the pressure to appoint the first Hispanic to the Supreme Court and his own ties to prominent legal academics beginning with his years at Harvard Law School.

So the two pressures he is under include 1) pandering to an identity group and 2) rewarding his pals.  How about looking for justices that have the ability and experience to understand the law?  That does just happen to be their job, and not “understand[ing] the plight of real people,”  a nebulous criteria an unnamed source within the Obama administration said the President is looking for.

The function of a judicial system is to interpret the law as it is written, not according to changing social values as judges see them.  Nor is it their place to look at the two sides and decide which is more “deserving” based upon what identity groups they belong to.  What a judge should do in approaching a text is to seek to understand its meaning as written.  It’s not their place to weigh the desirability of the consequences.  That’s what we have legislatures for.  It’s also their job, and not the courts, to make sure current law fits current values.  Sadly, the President’s recorded views on the matter leaves a lot to be desired.  He wants a judge who places empathy above law, who isn’t afraid to “break free” of legal restraints in order to “redistribute wealth.”  This is a dangerous view which must be opposed.

Thursday

23

April 2009

0

COMMENTS

Criminalizing Politics Is Undemocratic

Written by , Posted in Energy and the Environment, General/Misc.

The subject of torture is suddenly unavoidable.  I suspect this is a deliberate effort to distract from poor economic news and the recent tea party backlash against big government.  Be that as it may, the narrative needs to be addressed.

America, and Americans by and large, do not believe in torture.  This has always been true, and it’s no more true today than it was in the Bush administration.  Any government that seeks to avoid torture must, by necessity, define just what torture is.  The Bush administration sought to do this.  Now the Obama administration, not happy with the prior definition, seeks to adopt its own.  It’s to be expected that, when a new party comes into power, issues such as this will be readdressed and new positions taken.  But Obama is going one step further.  Not only does he find the Bush definition wrong, he wants to label it criminal.

This is a frightening development for anyone who supports our democratic system.  The United States has enjoyed a long track record of peaceful transitions that most of the world can only dream about.  A large part of the reason for this is that we do not seek to criminalize political differences.  When your average Latin American military junta assumes power, the first order of action is to jail everyone in power previously.  The United States is better than that. It used to be, anyway.

Barack Obama is willing to leave open the possibility that Bush administration officials may be tried for drawing a line in a slightly different place than Obama draws it.  Not, mind you, for wantonly and maliciously running torture dungeons where any and all practices were acceptable, but for approving a single tactic which Obama did not like, and which is routinely conducted on our own soldiers for training.  Peaceful democracies are not supposed to handle complicated legal and moral issues by jailing those who take opposing positions.  If Obama wants to elevate the game to that level, he should keep in mind that his entire economic agenda is flagrantly unconstitutional; whereas if he has his way on waterboarding, we might just have to start calling it criminal as well.

Friday

17

April 2009

0

COMMENTS

You Might Be An Extremist If…

Written by , Posted in Liberty & Limited Government

A wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.

Thomas Jefferson

The Department of Homeland Security is sounding the alarm.  Against a bioweapon? No. A new plot by radical jihadis to murder thousands of Americans?  Nope.  Against right wing extremism!  The report begins by pointing out that DHS has no real evidence to suggest that “right-wing extremists” are any danger.

The DHS/Office of Intelligence and Analysis (I&A) has no specific information that domestic rightwing* terrorists are currently planning acts of violence, but rightwing extremists may be gaining new recruits by playing on their fears about several emergent issues. The economic downturn and the election of the first African American president present unique drivers for rightwing radicalization and recruitment.

Translation: Even without evidence, we know that those darn racists are up to no good.

What’s really amusing about the report, however, is the ridiculously broad definition of rightwing extremism.

* (U) Rightwing extremism in the United States can be broadly divided into those groups, movements, and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups), and those that are mainly antigovernment, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration.

State and local authority?  Those bastards!  Here is a list I have compiled of notable right wing extremists throughout American history:

  • Thomas Jefferson
  • James Madison
  • James Monroe
  • Patrick Henry
  • Samuel Adams
  • George Mason
  • John Hancock

Should you come across any of these dangerous radicals, please notify Janet Napolitano immediately.

Wednesday

1

April 2009

0

COMMENTS

Holder Refuses To Adhere To Constitution

Written by , Posted in Liberty & Limited Government

Left-wing advocates of granting Washington DC a seat in Congress were heartened by the election of president Obama, a strong supporter of such a move.  The problem?  It’s blatantly unconstitutional.

Article 1, Section 2 says, “The House of Representatives shall be composed of members chosen every second year by the people of the several states.”  It further states, “No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.”

There is no ambiguity here.  States are represented in the House.  The District of Columbia is not a state.  It cannot be represented in the House.  Moreover, no individual meets the qualifications above to represent D.C., as one cannot reside in the state in which one is chosen if one is not chosen by a state.

But this isn’t stopping Attorney General Eric Holder.  When his own lawyers at the Justice Department concluded that proposed legislation to grant a House seat to D.C. would be unconstitutional, Holder basically told them to shove off.  He then took the time-honored, corrupt approach of asking the same question of different people until he got the answer he wanted.  This is disgraceful.

But the disgrace does not all belong to the administration.  Some RINO’s and misguided Republicans are on the wrong side of this issue. The support of Republican Senator Orrin Hatch has been essentially bought with the inclusion of an extra seat for Utah.  He and many others from the state felt that Utah should have received an additional seat in the last census, so they are willing to support a blatantly unconstitutional measure in exchange for this redress.  But any seat would only last 2 years until the next census and apportionment, where Utah would likely have gained the seat anyway.

Others, such as Susan Collins, support the measure despite her own misgivings over its constitutionality.  Her reasoning for supporting it?  “I believed then, as I do now, that this question is best resolved by the courts and not by this committee.” This attitude reflects a gross negligence of her duties, as she is as equally bound to uphold the Constitution as the courts. That was the view of James Madison when he addressed the first Congress.  He said, “[I]t is incontrovertibly of as much importance to this branch of the Government as to any other, that the Constitution should be preserved entire.”

Whether it be Barack Obama, Eric Holder, Orrin Hatch or Susan Collins, all members of our government have an equal duty to uphold the Constitution of the United States. Passing blatantly unconstitutional laws, with the attitude of “let the courts sort it out,” is a repugnant abdication of that responsibility.

Newer Entries →
← Older Entries

About Me

profileI serve as Vice President of the Center for Freedom and Prosperity, a non-profit think tank dedicated to preserving tax competition and free markets. This site features my personal views, which are not reflective of CF&P.

Search Site

Categories

Archives