Citizens United v. FEC

April 2nd, 2010 - by Quincy

A few weeks before the 2008 primary election, a non-profit corporation called Citizens United tried to release a video criticizing Hillary Clinton. Federal campaign finance laws prohibited this, so Citizens United sued. In 2010, the Supreme Court ruled that those campaign finance laws were unconstitutional because they violated the First Amendment. President Obama publicly criticized the Supreme Court’s decision.

This video explains why President Obama was wrong and the Supreme Court was right.

There are three parts to this video.


Thoughts About the Mount Vernon Statement

February 17th, 2010 - by Quincy

Today at George Washington’s historic home, the leaders of several conservative organizations signed a document titled “The Mount Vernon Statement.” This document purports to restate the principles and ideas of the American founding and articulate a unifying “Constitutional conservatism.”

Although I agree with some of what this document contains, there are two statements which taint the rest of the project. These statements describe this proposed Constitutional conservatism as follows:

“It encourages free enterprise, the individual entrepreneur, and economic reforms grounded in market solutions.”

“It supports America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end.”

The first of the two statements makes me uneasy simply because it is so ambiguous. What is a policy agenda that encourages free enterprise and economic reforms grounded in market solutions? I can’t tell if this is an endorsement of laissez faire principles or more of the Keynesian economics that we have seen lately.

The second statement seems to endorse the position that the United States is justified in meddling in foreign affairs if it is “advancing freedom” or “opposing tyranny.” I would be much more comfortable with a statement like “provide for the common defense.” Alas, the Constitution’s language isn’t broad enough to justify foreign wars to secure commercial interests, so apparently the authors of The Mount Vernon Statement had to insert something more flexible.

Now I understand that this document is probably just an effort to reunite a conservative movement that has fractured over disagreements about fundamental issues. But the reunification that this document proposes simply ignores the problems. If these people want to build a political movement, they should try using plain language in the style of Ron Paul. You may disagree with what Ron Paul says, but it is clear what he stands for.

As of this writing, the document’s website states that over 7,500 people had signed to show their support. Maybe it will do some good, but I expect that The Mount Vernon Statement will be forgotten within the month.

More on the Healthcare Debate

February 17th, 2010 - by Quincy

Today I attended a debate about the nationalization of healthcare. The panelists were Doug Bandow, senior fellow at the Cato Institute; Neville Cox, director of post graduate teaching and learning at Trinity College Dublin School of Law; and David P. Fidler, Professor of Law at Indiana University Maurer School of Law.

Surprisingly, the panelists agreed on many issues. All agreed that having health insurance tied to employment was foolish; that the present U.S. healthcare system was unsustainable and that radical changes were necessary to prevent serious negative consequences; that efforts to resolve the problems with healthcare at a national level will continue to be undermined by the substitution of political maneuverings for reasoned solutions; that there is no successful system of nationalized healthcare in the world; that the American people has an obligation to care for the poor and needy in its society; and that all healthcare systems demand uncomfortable tradeoffs.

Since I didn’t take careful notes and since my memory isn’t good enough to write a play-by-play account of the debate, I will simply summarize what I understood the panelist’s positions to be.

Professor Cox argued that the British healthcare system where the government provided health insurance was a good model, and cited statistics which place the United States at the bottom of industrialized nations in healthcare quality. He thought that the “public option” element of President Obama’s healthcare plan was essential to ensure that individuals with chronic healthcare problems requiring expensive care had access to insurance. He argued that healthcare was an area in which individual autonomy would have to yield to social need. He recognized that this would entail the rationing of healthcare and that government would have to make the rationing decisions—especially in areas where the likelihood of the patient surviving was low and the treatment costs were high. Overall he supported President Obama’s plan and hoped that it would succeed.

Professor Fidler began by trying to explain why the recent efforts to reform healthcare had failed. He argued that the public simply doesn’t believe President Obama’s claims that the healthcare bill would not require deficit spending. Government efforts to provide services in the past had always gone over budget—usually dramatically over, so the public simply isn’t willing to believe that healthcare would be any different. He almost scoffed at the idea that President Obama would be able to squeeze any real money out of the Medicare and Medicaid programs. Evidence of this is the fact that Congress passed a benefit cut to Medicare and Medicaid in 2002, but for the past 7 years they have postponed the bill’s effective date in response to political pressure. Professor Fidler also speculated that the public was genuinely afraid of radical change to their health insurance plans, and that the public did not believe Obama’s assurances that those who were happy with their current health insurance would see no change in the system. He also questioned, if healthcare were truly such a high priority for the country, then why would the Obama administration be unwilling to use deficit spending to fund it? Nevertheless, he conceded that the current health insurance system was badly broken.

Mr. Bandow of the Cato Institute was clearly used to debates of this kind. He had numerous facts and concrete examples at his disposal to illuminate his arguments. He began by clarifying the statistic that Professor Cox cited about the quality of United States healthcare. He noted that if accidents and violent crimes were eliminated from the statistical calculations, then the United States healthcare quality would rank in the middle range of scores from industrialized nations. Mr. Bandow next argued that the problems with United States health insurance were caused by perverse incentives: the patient is not directly paying the costs, and healthcare providers benefit from high costs. In other words, of the two parties who make decisions about what treatment a patient should receive, one doesn’t care how much it costs because the insurance company is paying for it, and the other wants the costs to be high because high costs yield profits. Consequently, there is very little incentive to reasonably evaluate whether a treatment is necessary or even beneficial before paying for it. This system drives up costs and wastes resources. Real reform, Mr. Bandow argued, will not simply provide more healthcare services to more people; United States citizens already consume much more healthcare on average than the citizens of any other nation. Real reform would place incentives toward efficiency on the individuals who were making the decisions about what treatment was necessary and what treatment was not. This would eliminate waste and reduce costs. This would also allow individuals rather than government bureaucrats to make the hard decisions about issues like end of life care and treatments with a low likelihood of success.

So there you have it. Three perspectives on healthcare reform. If any of the positions above seem unclear, please post a comment and I will try to clarify what the panelist meant.

Without going into too much depth, I just want to point out that except for the unanimous-but-indistinct affirmations that the United States has an obligation to care for the needy, none of the panelists argued from a basis of principles. Nothing was said about whether compelling individuals to purchase health insurance would violate important principles of individual autonomy. Nothing was said about whether granting government power to make decisions about medical care for individuals would violate important principles of individual liberty. Nothing was said about whether taxing the many to support the few would violate property rights. Are we too far down the rabbit hole to worry about such things anymore? Instead the panelists relied on consequentialist/utilitarian arguments grounded in economic theories about which plan would maximize healthcare overall.

Efficiency and Commerce for All

February 11th, 2010 - by Quincy

You probably own something which is worth more to you than the money you could sell it for. Wedding rings and family heirlooms are obvious examples. Suppose that this thing which you value so much had been damaged in some way, and you took it to a repair shop. Suppose that this repair shop, as is common, was in the business of selling as well as repairing items like yours. Suppose lastly that, because of mistake or malice, the repair shop sold your item instead of returning it to you. Certainly, you would want to recover your item and would expect the law to support your claim. After all, you have a right to your property, and when the repair shop sold your property instead of returning it to you, your property right was violated. Protecting property rights is one of the essential functions of government; in the words of the Declaration of Independence, “to secure these rights, governments are instituted among men.” But in the circumstances described above, your high expectations would be disappointed. Under current law, although you could sue to recover the monetary value of the item, you could not recover the item itself.

State law governing the sale of goods is based on a body of model statutes called the Uniform Commercial Code (UCC). Instead of arising from the usual legislative process, the UCC was written by two private legal organizations and then enacted—with a few modifications—by the legislatures of most states. See UCC Introduction. The provision of the UCC that would prevent you from recovering your item in the circumstances described above reads as follows, “Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ordinary course of business. … regardless of any condition expressed between the parties …” UCC § 2-403(2)-(3).

So we see that in some circumstances state law explicitly refuses to protect you from clear violations of your property rights. This isn’t earth-shattering news. It probably won’t make you jump out of your chair and start a revolution. Nevertheless, it is worth noting because this and other laws which work similar mischief are evidence of a dangerous trend in society’s view of property rights. Put simply, concerns about commercial efficiency have come to trump principles of justice.

The efficiency justification for UCC § 2-403 runs something like this: commerce depends upon low-cost transactions between buyers and sellers. If buyers were obliged to return goods that they had purchased under circumstances like those described above (a repairman wrongfully selling goods that were only entrusted to him for repair), then buyers could never be certain that they actually owned the goods that they paid for. This uncertainty about ownership would have inefficient consequences. For example, some buyers would pay to investigate whether the seller had actual ownership of the goods; some buyers would buy anonymously to avoid the risk; and some transactions simply wouldn’t happen at all. These inefficiencies and other consequences of uncertainty would stifle commerce.

I don’t know whether these efficiency concerns stem from sound economics, but it doesn’t really matter. The important question is not whether a law is efficient; the important question is whether a law is just. Just laws are the foundation of individual liberty because just laws recognize and protect individual rights. UCC § 2-403 is an unjust law because after implicitly recognizing a property right, it declines to enforce it. Sadly, this is not an isolated problem.

This substitution of efficiency for justice manifests itself in many other areas of the law. In real property law, for example, the U.S. Supreme Court ruled that the Constitution did not bar government from seizing the homes of private citizens and giving them to a corporation if that corporation could show that it would make more efficient use of the land. Kelo v. City of New London, 545 U.S. 469 (2005). In nuisance law, courts now allow individuals to damage their neighbor’s property through the creation of a nuisance if that nuisance produces economically efficient results. Boomer v. Atlantic Cement Co., 26 NY2d 219 (1970). These are only two examples of many.

Justice is the heart of good law. If we substitute efficiency for justice, law becomes nothing more than a manipulable mechanism for invoking government force. Justice is a foundational part of American traditions. Among the few phrases of the Pledge of Allegiance that have remained constant—and have not been the target of law suits—is the phrase “liberty and justice for all.” Do we really want to substitute such noble ideals with an uninspiring surrender like “efficiency and commerce for all”?

Whose Kids are They?

February 2nd, 2010 - by Quincy

Efforts to describe the legal relationship between parents and children are usually messy and often offensive. Part of the problem is that it is difficult to classify parental rights. What kind of rights are they? Talking about parental rights as if they were property rights in children is distasteful, but that seems to be the usual framework—if only by way of analogy—that writers use. The fact that children grow up further complicates the discussion. When should parental rights end? Clearly the strength and scope of parental rights should decrease as the child becomes self-sufficient, but at what stage of development should that line be drawn, and who should draw it?

The problem is no simpler when considered from the perspective of a child’s rights. What rights can children enforce against their parents? Food, shelter, clothing, education, medical care, emotional health? Is it too extreme to characterize a child’s right to support as an indentured servitude of the parents to the child’s needs? Society recognizes children’s rights over their parents to some degree through child support laws.

This complex relationship of rights and responsibilities only gets murkier as third parties get involved. Doctors who disagree with parents’ medical decisions sometimes try to force parents to administer a prescribed treatment. Social workers take children away from parents they judge to be unfit—sometimes even when that judgment is based on soft criteria like failing to teach social mores. Legislatures and school boards enact compulsory school attendance laws and then grant parents no control over what is taught or who teaches. In short, everyone seems to think they know what is best for children, but some people have enough political power to clothe their opinions with the force of law.

I propose that the only justifiable laws governing the parent-child relationship are those that fall into one of two categories: laws articulating the rights of a parent over his or her child and laws articulating the rights of a child over his or her parents. I can imagine no legitimate basis for a third parties—including government—to assert independent rights over children. This is not to say that third parties can never get involved; I am only arguing that third party involvement must be limited to enforcement of a legitimate right that falls into one of the two categories listed above.  To support my proposition, I present the following foundations for children’s rights and parents’ rights, and argue that no such foundation exists for third-parties—including government.

The Origin of Children’s Rights

Murray Rothbard, one of the intellectual leaders of the libertarian movement, argued that children should have no special rights over their parents:

in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former’s rights; the only legal obligation one man has to another is to respect the other man’s rights. Applying our theory to parents and children, this means that … the parent should not have a legal obligation to feed, clothe, or educate his children, since such obligations would entail positive acts coerced upon the parent and depriving the parent of his rights.

Murray Rothbard, The Ethics of Liberty 100 (1998).

This reasoning strikes me as simplistic because it prematurely dismisses the obligation that parents incur by bringing their child into human existence. Rothbard attempts to raise problems and present a parade of horribles that will come about if we recognize such a parental obligation, but I find his arguments unpersuasive (I can explain my reasons if any Rothbard devotees are interested). I think Attorney Stephan Kinsella has a better argument:

the parent has various positive obligations to his or her children, such as the obligation to feed, shelter, educate, etc. The idea here is that libertarianism does not oppose “positive rights”; it simply insists that they be voluntarily incurred. One way to do this is by contract; another is by trespassing against someone’s property. Now, if you pass by a drowning man in a lake you have no enforceable (legal) obligation to try to rescue him; but if you push someone in a lake you have a positive obligation to try to rescue him. If you don’t you could be liable for homicide. Likewise, if your voluntary actions bring into being an infant with natural needs for shelter, food, care, it is akin to throwing someone into a lake. In both cases you create a situation where another human is in dire need of help and without which he will die. By creating this situation of need you incur an obligation to provide for those needs.

How We Come to Own Ourselves, Mises Daily: 7 Sept. 2006.

This is a solid foundation for children’s rights. Children’s rights are not derived solely from their need, and not solely from their parent’s act of bringing them into the world. They are derived from a combination of both: a voluntary act by adults that puts another human in a position of complete dependence upon them. This creates an obligation in the parents and a corresponding right in the child.

The Origin of Parental Rights

Rothbard had a similarly limited conception of parental rights:

the child has his full rights of self-ownership when he demonstrates that he has them in nature-in short, when he leaves or “runs away” from home. Regardless of his age, we must grant to every child the absolute right to run away and to find new foster parents who will voluntarily adopt him, or to try to exist on his own. Parents may try to persuade the runaway child to return, but it is totally impermissible enslavement and an aggression upon his right of self-ownership for them to use force to compel him to return. The absolute right to run away is the child’s ultimate expression of his right of self-ownership, regardless of age.

Ethics of Liberty, 103.

I don’t know whether Rothbard was a parent or interacted much with children during his adult life, but regardless of his understanding of the practical consequences of the policy he proposed, his approach fails for a more important reason. It does not recognize the obligation that the child owes because of the suffering and expense that parents must bear to create and preserve a body for the child. Once again, Stephan Kinsella’s reasoning is more persuasive:

So, who owns a child’s body? Initially, the parents own it as a sort of temporary trustee. The parents, as the producers of the child, have an objective link to the child’s body that defeats any claims of outsiders (unless the parents sever this link by abusing their position). That is, parents have a better claim to the child than any outsiders, because of their natural link to the child. However, when the child “homesteads” or “appropriates” his own body by establishing the requisite objective link sufficient to establish self-ownership, the child becomes an adult, so to speak, and now has a better claim to his body than his parents.

How We Come to Own Ourselves.

In other words, when a child is born its body is entirely the product of its parents’—predominately the mother’s—sacrifice and effort. This serves as the foundation for parental rights. However, as the child grows and matures by developing its body, learning skills and abilities, and gaining self control, the parents’ ties are subordinated to the child-turned-adult’s own claims of self-ownership. It is important to point out that the parents’ relationship to the child is that of a trustee in trust, not total owner. This means that the child’s rights not to be abused remain in full force.

No Third Party Rights

In general, third parties can claim no special relationship that would entitle them to assert rights over children. Certainly, the argument for biological parental rights can be modified to show the legitimacy of adoptive and foster parental rights, but that is not the issue here. The question is whether unrelated third parties are justified in turning their concern for the wellbeing of someone else’s children into a law. I can think of no good reason to permit this. For third-party intermeddlers, there is no way to avoid the force of Rothbard’s reasoning: “in the free society, no man may be saddled with the legal obligation to do anything for another, since that would invade the former’s rights; the only legal obligation one man has to another is to respect the other man’s rights.” Ethics of Liberty, 100.

Certainly this broad framework doesn’t answer the detailed questions about when parental conduct crosses the line from discipline to abuse or neglect. But with solid foundations for children’s rights and parent’s rights, it will be easier to work out these details and eliminate laws that seek to impose unjustifiable burdens on parents and children.

Gross Income Attitudes

January 28th, 2010 - by Quincy

It is income tax season again, and as you pore over your records to discover how much the IRS siphoned from your paycheck and whether you have to fork over more, consider this frightening fact. From the government’s perspective, they could have taken much, much more. As proof of this, I present two pieces of evidence: the definition of “income” found in the Internal Revenue Code, and the concept of tax expenditures.

As you fill out your income tax forms, you will likely have to compute your gross income. The number you come up with, however, does not even come close to what the government’s tax theory says your gross income really is. As defined in Section 61 of the Internal Revenue Code, gross income is “all income from whatever source derived.” This is not terribly troubling until you understand the scope of the term “income.” As defined by the Supreme Court, “income” is any increase to wealth. See, e.g. Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955); see also Henry C. Simons, Personal Income Taxation 50 (1988). This isn’t just the money you earn; it includes the value of any services you receive (even those services you provided for yourself) and the value of any property rights you used. So in a world in which we strictly followed the government’s tax theory, you would include in your gross income calculation the value of cleaning your house, washing your car, brushing your teeth, and so on. You would include the value of living in your home, driving your car, wearing your clothes, etc. Happily, for now, the administrative costs of discovering the value of all these “accessions to wealth” limits the tax man’s reach. But as technology advances, who knows, you might be listing items like this on your income tax forms.

Understanding the government’s perspective on income is important because it reveals a dangerous attitude towards individual autonomy. Every productive act you do and everything you enjoy is taxable. There is nothing—at least nothing recognized by the government—in the legal foundation undergirding Congress’ authority to tax that prevents them from taxing anything and everything.

Now, some of you tax-savvy readers may be shaking your heads and thinking, “What about all the deductions, exemptions, and exclusions? Surely this is solid evidence that the government recognizes that there are some things that simply should not be taxed.” To disabuse you of this overly-charitable idea, let me introduce to you the concept of tax expenditures.

The concept of tax expenditures was invented by Stanley S. Surrey, a Harvard Law Professor and former assistant secretary of the United States Treasury. This concept profoundly influenced government budget analysis both in the United States and abroad. See Leonard E. Burman, Is the Tax Expenditure Concept Still Relevant? 56 National Tax Journal 614 (2003). The tax expenditure concept changed how the government calculated how much it was spending. The traditional method was simply to tally up the amount of money that the government expected to pay to cover its programs and projects. Mr. Surrey changed that method by proposing that the government include in its spending calculations the amount that it did not collect because of tax exemptions. The taxes that would have come from those portions of income that the government could have taxed but didn’t were, in Mr. Surrey’s method, uncollected revenue that should be accounted for. Adopting Mr. Surrey’s idea, the Budget Act of 1974 defined tax expenditures as, “those revenue losses attributable to provisions of the Federal tax laws which allow a special exclusion, exemption, or deduction from gross income or which provide a special credit, a preferential rate of tax, or a deferral of tax liability.”

Mr. Surrey’s upside-down method encouraged government to abandon the idea that some organizations and activities were simply beyond the reach of the tax code and to view any tax exemptions, deductions, or exclusions as monetary gifts from the government to the benefiting individuals and organizations. For example, under the Section 170 of the Internal Revenue Code an individual may be eligible for a tax deduction for the amount that he or she donates to a qualifying charitable organization. Under Mr. Surrey’s method, however, instead of recognizing that government simply should not be allowed to tax charitable donations, the government views the taxes that it could have taken but didn’t as a government subsidy—as if government itself were donating money by refraining from its “right” to tax. Rather than recognizing limits on its power to tax, government now views these exemptions, deductions, and exclusions as a form of discretionary spending justifiable only because it furthers political or social goals.

Putting together the two halves of the above discussion shows that government assumes that every productive or enjoyable thing you do is potentially taxable income and that by not taxing you to the full extent of its “rights,” it is generously giving you a gift. This attitude is particularly frightening in a time when unwise citizens continue to give political power to leaders who think they can spend their way out of any economic crisis or social ill, government budget deficits grow by the trillions of dollars, and academia continues to erode recognition of individual property rights. We have strayed very far from the relationship between citizens and government that the Declaration of Independence described. Do we still believe that the government is the servant of the people? For our government’s attitude about taxes is a strange attitude for a servant to take.

Achieving Cloture

November 22nd, 2009 - by Quincy

The purpose of parliamentary law—the rules that govern legislative procedure—is to “enable an assembly, with the least possible friction, to deliberate upon questions in which it is interested, and to ascertain and express its deliberate sense or will on these questions” General Henry M. Robert, Parliamentary Law 3 (1923) (General Robert authored Robert’s Rules of Order, an influential work on parliamentary procedure which is still commonly used today.). So to prevent impassioned minorities from creating too much friction by abusing the filibuster, the Senate implemented a procedure called “cloture.”

The U.S. Senate’s online glossary, explains cloture as follows:

cloture – The only procedure by which the Senate can vote to place a time limit on consideration of a bill or other matter, and thereby overcome a filibuster. Under the cloture rule (Rule XXII), the Senate may limit consideration of a pending matter to 30 additional hours, but only by vote of three-fifths of the full Senate, normally 60 votes.

Yesterday, the Senate voted for cloture on the debate about the government health care takeover. Even setting aside the vote-purchasing spectacle, I believe that in these circumstances cloture was inappropriate. In general, I don’t see anything wrong with a rule that allows the legislature to avoid a filibuster if it is simply an abuse of procedure designed to derail the legislative process. After all, we don’t require unanimity among our lawmakers; a majority is usually enough. But in this case cloture wasn’t used just to avoid procedural delay tactics; it was used to avoid important debate and discussion.

The Senate democrats’ draft health care bill, called the “Patient Protection and Affordable Care Act” is 2,074 pages long.  If it is implemented, it will drastically change the way in which health care is provided and paid for in the United States. Low-end estimates predict its cost at close to a trillion dollars during the first decade. Furthermore, there are important questions to be resolved over which the public is deeply divided. Will it cover abortions? Will it subsidize reckless lifestyles? Will it cover non-citizens? How will the country pay for it? How will the system deal with shortages? Who will decide when a medical procedure is appropriate? Are the government’s recent recommendations for less frequent cancer testing for women just the first step in a movement to ration all medical tests? Will this plan avoid the mistakes that led to the failure of other government-run health care programs such as Medicare, Medicaid, and the Veterans’ Administration?

I am irreconcilably opposed to government involvement in health care for reasons of principle, but even those in favor must recognize that these questions need to be answered. To successfully implement a program of this size and complexity, congress would need more than a mere thirty hours to debate, plan, and evaluate. Cloture in these circumstances is foolhardy.

Making the News

November 20th, 2009 - by Quincy

It’s no secret that news reporters distort facts to sell ads and push agendas, but here is a funny example. I was alerted to this by an odd discrepancy in an interview published by Fox News. The headline for the interview read, “Sen. Hatch: ‘Holy War’ Coming Over ‘Lousy’ Health Care Bill.”

Now the quotation marks in the headline led me to believe that Senator Hatch actually said the words “holy war,” but the only time the term comes up in the interview is in the following passage,

HATCH: From now. If they tried to go ahead with this bill without really allowing enough time for amendments and for chances to try and correct the bill, I think the American people are going to be outraged, and they should be.

VAN SUSTEREN: You used the term “holy war” in describing that, right?

HATCH: We’re talking about a country that is really going to be in real economic jeopardy if this bill goes through this way. And let’s just be honest. Those figures are probably low.

Notice that Senator Hatch simply ignored the reporter’s invitation to provide a quote that includes the words “holy war” in it. It seemed strange to me that the reporter would load a question like that unless there was at least some factual basis for it, so I googled the term “senator hatch ‘holy war.’” Sure enough, other news agencies were reporting the phrase as well—there were over 17,000 results. Most of the articles that cited a source for the quote referenced an article published in the L.A. Times.

The relevant portion of the L.A. Times article read, “‘It’s going to be a holy war,’ Sen. Orrin G. Hatch (R-Utah) said Wednesday evening.” (No citation for when or where this was said.)

Reporters love it when public figures say things like “holy war,” because it can be manipulated in so many different ways. Here are a few:

So I called Orrin Hatch’s D.C. office to ask if he had really used the phrase, “holy war,” and if so, what he had meant by it. I spoke with Mark Eddington who explained that Senator Hatch may have used the phrase in the halls after a hearing and that he was using the term to describe the expected intensity of the floor debate.

So there you have it, news making at its best. No wonder people are confused!

“When many organs of the press adopt the same line of conduct, their influence in the long run becomes irresistible, and public opinion, perpetually assailed from the same side, eventually yields to the attack. In the United States each separate journal exercises but little authority; but the power of the periodical press is second only to that of the people.” Alexis de Tocqueville, Democracy in America vol I ch 11 (Henry Reeve trans. 1899) (1835).

Flaws in the American Health Care System

November 20th, 2009 - by Quincy

A few weeks ago, a good friend of mine recommended an article about health care reform titled “How American Health Care Killed My Father” published in the Atlantic magazine this September. Based on the title, I half expected the article to be a rant against heartless capitalism, but happily I was wrong. The article thoughtfully and honestly explores some of the real reasons why health care in America is so expensive and unresponsive to the consumer. I disagree with the author’s proposed solution, but he outlines some of the problems very well.

The Judge’s Role

November 19th, 2009 - by Quincy

Alexander Hamilton once wrote, “I agree that ‘there is no liberty, if the power of judging be not separated from the legislative and executive powers.’” The Federalist No. 78 (Alexander Hamilton) (quoting Montesquieu, I The Spirit of Laws 181 (1748)).

Separation of the judicial power from the legislative and executive powers is a necessary precondition for liberty, and it depends upon two important restraints. Restraining the legislature and executive from exercising or influencing judicial power—this is called judicial independence. And restraining the judiciary from exercising legislative power—this is called judicial deference. Both judicial independence and judicial deference are essential to the just administration of law. Sadly, neither of these restraints is properly understood or applied today.

Judicial independence is necessary to prevent politics and special interests from tainting the adjudication of individual rights, but recognition of its importance has waxed and waned. At times, “the ideal of a court of justice has been the omniscient and inexorable judgment seat of God.” Brooks Adams, The Theory of Social Revolutions 36 (1913). At other times, the idea of a judiciary that was independent from the legislature has been “treated with the utmost contempt” John Quincy Adams, I Memoirs 322 (1848) (recording sentiments expressed to him by Senator Giles of Virginia). A striking example of the fragility of judicial independence in American history was Franklin D. Roosevelt’s threats to increase the number of justices on the Supreme Court to obtain favorable rulings on New Deal legislation. Roosevelt was frustrated with the Supreme Court’s consistent decisions that his proposed legislation violated the Constitution. On Friday, January 11, 1935, then Secretary of the Interior Harold L. Ickes wrote in his diary,

The Attorney General went so far as to say that if the Court went against the Government, the number of justices should be increased at once so as to give a favorable majority. As a matter of fact, the President suggested this possibility to me during our interview on Thursday, and I told him that that is precisely what ought to be done. It wouldn’t be the first time that the Supreme Court had been increased in size to meet a temporary emergency and it certainly would be justified in this case.

Harold L. Ickes, The Secret Diary of Harold L. Ickes 274 (1954). For reasons that are disputed by historians, Justice Owen J. Roberts relented and changed his position on the constitutionality of the New Deal in a case called West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). This surrender made Roosevelt’s plan to expand the court unnecessary, and is sometimes called “the switch in time that saved the nine.” Justice Roberts insisted that he hadn’t changed his vote in response to Roosevelt’s threats, but whether or not this is true, it was clear that Roosevelt had already resolved to change the membership of the court to get the outcome he wanted. The threat to judicial independence was real.

Judicial independence is essential to the preservation of liberty because judges bear the heavy burden of standing against the will of the majority when enactment of the majority’s will would infringe upon individual rights. But the obvious follow-up question is what are the individual rights that judges should protect? Or put another way, what is to prevent judges from inventing rights and striking down legislation for political, personal, or ideological reasons? The answer is that a judge is obligated and authorized to protect only those rights recognized in the charter from which he or she receives judicial authority. This limitation prevents the judge from becoming a super legislature with a lifelong term. With this limitation, judges become as Hamilton described, having “neither force nor will, but merely judgment.” The Federalist No. 78 (Alexander Hamilton). If judges respect this limitation, both judicial independence and judicial deference are served. The judge defers to the Constitution for the rights that he or she is authorized and obligated to protect, and then acts independently of the legislature and executive in protecting those rights.

The Constitution provides two separate sources from which judges can draw information about the rights that they are obligated to protect. The more commonly recognized source is the Bill of Rights. Incidentally, it is strange that the Bill of Rights has become the primary source, because it was not part of the original Constitution and was thought superfluous by many of the founders, including as James Madison. The second source of information about the rights that judges are obligated to protect is the language that limits the role and authority of each of the political branches. This second source does not list individual rights, but it implies them by confining the authority of the executive and legislative branches. Sadly, this second source of information has been largely ignored by judges, and as a result, the legislature and the executive now act far beyond their constitutional limits. Today, judges usually refuse to give any real protection to rights that are not specifically listed in the Bill of Rights. This failure of judges to protect individual rights other than those listed in the Bill of Rights is wrongly identified as judicial deference. During the recent struggle over the nomination of Justice Sotomayor, Attorney Jeff Rowes wrote a compelling article in the Wall Street Journal highlighting this problem:

The time-honored justification for judicial deference is that when courts refuse to enforce property rights and allow economic liberties to be trampled by legislatures they are showing respect for the democratic process. But this notion is not faithful to the duty of the judiciary. The Constitution’s framers understood that legislatures are as much nests of vice as of virtue. That is why they went to such lengths to define the limits of government, set forth our rights broadly, and create an independent, co-equal branch of government to protect those rights.

Jeff Rowes, Judicial ‘Activism’ Isn’t the Issue, Wall St. J., June 6, 2009, at A13. This misunderstanding of judicial deference undermines individual liberty and misleads people about the judge’s role. True judicial deference means that unless a law violates the Constitution (either by running afoul of a provision of the Bill of Rights or by exceeding the legislature’s limits of authority) a judge will interpret and apply that law as it is written.

This confusion about judicial deference is largely due to the counterfactual and counterhistorical claim that the Constitution does not embody a particular socioeconomic philosophy. The record of the debates over the language of the Constitution, the intellectual climate of the time, the size and nature of government at the time, and the text of the Constitution all plainly show that the Constitution was enacted on a foundation of natural rights and an assumption of economic liberty. Ever since the ratification of the Constitution, however, power-hungry men and women have sought to destroy this foundation and make the Constitution infinitely flexible. Consequently, any act by the judicial branch to check the excesses of the legislature and the executive branches that is not supported by both the plain text of the Bill of Rights as well as popular feeling is branded “judicial activism.” At the same time, real judicial activism goes unnoticed as judges expand statutes beyond their plain meaning and restrict private actions that don’t fit the judges’ worldview.