Quotulatiousness

December 5, 2017

Happy Repeal Day!

Filed under: Government, History, Law, Liberty, USA — Tags: , , , , — Nicholas @ 04:00

Eighty-four years ago today, the US repealed Prohibition. Baltimore’s own H.L. Mencken was among the first to publicly celebrate the demise of the hated legislation:

HL Mencken celebrates repeal of Prohibition, December 1933

Reason‘s Baylen Linnekin celebrates the federal anniversary, but points out that devolving powers to the various states hasn’t been quite a libertarian panacea:

[December 5th] will mark the 84th anniversary of the ratification of the Twenty-First Amendment, which repealed alcohol Prohibition. The repeal of Prohibition is worth celebrating, even if the amendment was (and remains) a deeply flawed vehicle.

The chief flaw with the Amendment is, as I wrote earlier this year, that it “simply shifted much of the power to prohibit and incessantly regulate alcohol from the federal government to the states.”

States have truly made the most of their teetotalitarian authority for decades, to the detriment of both alcohol producers and—much more so—consumers.

Much of the negative impacts of states’ approach to alcohol regulation can be tied to what’s known as the three-tier system, a Prohibition relic under which states generally prohibit direct alcohol sales from a brewer, vintner, or distiller to a consumer. The three-tier system mandates these alcohol producers first sell to a distributor or retailer — a mandatory middleman — who can then sell to actual drinkers.

Laws that require this approach create a host of problems, including, for one, that they drive up consumer costs dramatically and needlessly. States’ plenary control over alcohol has been controversial for decades, as this 1987 article in the Journal of Public Health Policy makes clear, noting that “the idea of a government monopoly of a consumer product seems odd and even bizarre[.]”

Great arguments in favor of scrapping the dreaded three-tier system are often countered by those who claim doing so will bring about the end of days, or worse.

Reposted from 2013:

ReasonTV
Published on 5 Dec 2012

In honor of Repeal Day, which celebrates the end of America’s “noble experiment” in banning alcoholic beverages, Reason TV is happy to introduce you to George Cassiday, a man whose life and work should be taught to every schoolkid — and to every member of Congress hell-bent on legislating the nation’s morals.

From 1920 through 1930 — the thick of the Prohibition era — Cassiday supplied illegal liquor throughout the halls of Congress. Known as “The Man in the Green Hat,” Cassiday was the Capitol’s highest-profile bootlegger, with a client list that included senior members of the Republican and Democratic Parties. How instrumental was he to the D.C. power elite? He even had his own office in the House and Senate office buildings.

Cassiday gave up the liquor trade after his arrest in 1930, but gained notoriety by penning a series of front-page articles for The Washington Post about his days as Congress’ top bottle man.

Though he never named names, Cassiday’s stories detailed every aspect of his former business — and the depths of hypocrisy in Washington. By his own estimation, “four out of five senators and congressmen consume liquor either at their offices or their homes.” Appearing days before the 1930 mid-term elections, Cassiday’s revelations caused a national stir and helped sweep pro-Prohibitionist — and ostensibly tee-totaling — congressmen and senators out of power.

Today, with the rise of cocktail culture and prohibition-vogue in full swing, Cassiday’s life and legacy are being re-discovered. Through books such as Garrett Peck’s Prohibition in Washington, D.C.: How Dry We Weren’t to New Columbia Distillery’s Green Hat Gin, the remarkable story of George Cassiday — “The Man in the Green Hat” — is again being told.

Reason TV spoke with Cassiday’s son, Fred, author Garrett Peck, and New Columbia Distillery’s John Uselton to discuss George Cassiday and the end of Prohibition.

November 21, 2017

Scaling back the Imperial Presidency

Filed under: Government, Liberty, USA — Tags: , , — Nicholas @ 03:00

The US government was explicitly set up with clear separation of powers, to ensure that too many powers are not drawn together to create a potential tyranny. For over 100 years, the office of the President has been granted, or taken without challenge, more and more of the powers that the founders had intended to be kept separate. Many Democrats were horrified to discover just over a year ago that those powers could be inherited by a man they believed totally unfit for the job (and even some Republicans agreed). However, Donald Trump may be the first president in living memory to actually devolve power back to Congress:

Donald Trump did not campaign for president as the guy who would reverse the mostly unbroken, century-old trend of the executive power assuming more and more power in the face of an increasingly self-marginalizing Congress. If anything, the imperial presidency looked set to increase given Trump’s braggadocious personality and cavalier approach to constitutional restraints. “Nobody knows the system better than me,” he famously said during his worryingly authoritarian Republican National Convention speech, “which is why I alone can fix it.”

You wouldn’t know it from viewing policy through the prism of the president’s Twitter feed, which is filled with cajoling and insult toward the legislative branch, but Trump has on multiple occasions taken an executive-branch power-grab and kicked the issue back to Congress, where it belongs. As detailed here last month, the president has taken this approach on Iran sanctions, Obamacare subsidies, and the Deferred Action Against Childhood Arrivals program (DACA), at minimum. And notably, his one Supreme Court nominee, Neil Gorsuch, was most famous pre-appointment for rejecting the deference that courts have in recent decades given to executive-branch regulatory agencies interpreting the statutory language of legislators.

Are there any other examples? Sure — the 15 regulatory nullifications this year via the Congressional Review Act (14 more than all previous presidents combined) are definitionally power-transfers from the executive to legislative. And certainly, the sharp decreases in the enactment, proposal, and even page-count of regulations amount to the administration declining to exercise as much power as its predecessors.

Josh Blackman also looks at this unexpected phenomenon:

Our Constitution carefully separates the legislative, executive, and judicial powers into three separate branches of government: Congress enacts laws, which the president enforces and the courts review. However, when all of these powers are accumulated “in the same hands,” James Madison warned in Federalist No. 47, the government “may justly be pronounced the very definition of tyranny.” The rise of the administrative state over the last century has pushed us closer and closer to the brink. Today, Congress enacts vague laws, the executive branch aggrandizes unbounded discretion, and the courts defer to those dictates. For decades, presidents of both parties have celebrated this ongoing distortion of our constitutional order because it promotes their agenda. The Trump administration, however, is poised to disrupt this status quo.

In a series of significant speeches at the Federalist Society’s national convention, the president’s lawyers have begun to articulate a framework for restoring the separation of powers: First, Congress should cease delegating its legislative power to the executive branch; second, the executive branch will stop using informal “guidance documents” that deprive people of the due process of law without fair notice; and third, courts should stop rubber-stamping diktats that lack the force of law.

Executive power is often described as a one-way ratchet: Each president, Democrat or Republican, augments the authority his predecessor aggrandized. These three planks of the Trumpian Constitution — delegation, due process, and deference — are remarkable, because they do the exact opposite by ratcheting down the president’s authority. If Congress passes more precise statues, the president has less discretion. If federal agencies comply with the cumbersome regulatory process, the president has less latitude. If judges become more engaged and scrutinize federal regulations, the president receives less deference. Each of these actions would weaken the White House but strengthen the rule of law. To the extent that President Trump follows through with this platform, he can accomplish what few (myself included) thought possible: The inexorable creep of the administrative leviathan can be slowed down, if not forced into retreat.

October 31, 2017

We may no longer refer to a last-place candidate as having “lost their deposit”

Filed under: Cancon, Politics — Tags: , , — Nicholas @ 03:00

Colby Cosh on a recent court ruling in that hotbed of radical democracy, the Alberta Queen’s Bench, declaring candidate deposits for federal elections to be unconstitutional:

Deposits are a tradition in Canadian federal elections as old as the ballot itself, dating to 1874. But Queen’s Bench Justice Avril Inglis’s ruling suggests that their days are probably numbered. They were introduced for the purpose, stated at the time and very often re-stated since, of deterring frivolous candidates for office. Before the year 2000, you needed to hand over $1,000 to run in a federal election: you got half back automatically if you complied with the Ps and Qs of election law, and the other half if you got at least 15 per cent of the vote.

This practice ran into trouble when (literal) communists litigated against it, arguing that it impeded the Charter rights of the poor and humble to participate in elections. Parliament acknowledged this by making the full $1,000 refundable, so talking heads no longer speak of “forfeiting one’s deposit” on election night. But the government continued to take the view that the “frivolous” need to be discouraged from pursuing federal candidacies. This was not really a satisfying rectification of the Charter issue, as Kieran Szuchewycz, an Edmontonian with some legal experience, seems to have noticed.

The truth is that Szuchewycz (who, for all I know, could be the guy who mops my local 7-Eleven) ran circles around the Department of Justice lawyers who turned up to oppose him. Justice Inglis has ruled that the $1,000 deposit fails almost every point of the Oakes test for laws that impinge on Charter rights. She found that “preserving the legitimacy of the electoral process” is an important objective, but the connection between having a grand lying around and being a “serious” candidate is not clear.

Szuchewycz observed that nowhere in the literature defending election deposits is “seriousness” or “frivolousness” defined. Nobody can point to an example of any harm arising from the existence of even admittedly frivolous candidates, like the long-established Rhinos.

And, well, the deposit doesn’t seem to discourage the Rhinos, does it? If you are well-heeled but “frivolous” you can afford the deposit. If you are in earnest, but broke, it’s a problem. And there are other “seriousness” tests in election law, notably the requirement for candidates to gather nominating signatures from riding residents. So what’s the thousand bucks for specifically?

Update, 8 November: Elections Canada is respecting the Alberta Queen’s Bench decision and no longer requires candidates in federal elections to submit a deposit. H/T again to Colby Cosh.

August 26, 2017

QotD: The American Constitution

Filed under: History, Politics, Quotations, USA — Tags: , , , , — Nicholas @ 01:00

All things considered, this New Republic piece on Randy Barnett and the libertarian constitutional movement is really pretty good. But I thought this part was revealing:

    Barnett believes the Constitution exists to secure inalienable property and contract rights for individuals. This may sound like a bland and inconsequential opinion, but if widely adopted by our courts and political systems it would prohibit or call into question basic governmental protections — minimum wages, food-safety regulations, child-labor laws — that most of us take for granted. For nearly a century now, a legal counterculture has insisted that the whole New Deal project was a big, unconstitutional error, and Barnett is a big part of that movement today.

If your entire program is called into question by the notion that individuals have property and contract rights, maybe the problem is with your program.

And to the extent that, as believed by many, the Supreme Court’s eventual accommodation to the New Deal was the product of duress in the form of FDR’s court-packing scheme, then isn’t that accommodation, in fact, illegitimate?

Glenn Reynolds, Instapundit, 2015-08-31.

August 11, 2017

Penn & Teller on Gun Control

Filed under: History, Liberty, USA — Tags: , , , — Nicholas @ 02:00

Published on 11 Feb 2013

Penn and teller explain the 2nd amendment in very simple, easy to understand terms. Just the way it was written.

July 30, 2017

The Greenback cases

Filed under: Government, History, Law, USA — Tags: , , , , — Nicholas @ 03:00

At Samizdata, Paul Marks discusses why it is so difficult to prevent governments from expanding their powers far beyond what the constitution may allow:

… a Constitution is only as good as the enforcement mechanisms to make sure it is obeyed – and as Luther Martin warned at the Constitutional Convention in Philadelphia, trusting government appointed judges to limit the powers of the very government that appointed them is a fatally flawed idea.

This is not a recent problem. Even in the 19th century the Supreme Court often ruled that the Federal Government has powers that the Constitution does NOT give it. For example the infamous “Second Greenback Case” where the Supreme Court, with newly appointed “justices” (appointed, in part, for this corrupt purpose) overturned the “First Greenback Case” where the court had declared, quite correctly, that the Federal Government has no power to print (or have printed) money – only to “coin money” (Article One, Section Eight of the Constitution of the United States) and that only gold or silver coin (not paper money) may be “legal tender” in any State (Article One, Section Ten of the Constitution of the United States). Nothing could be plainer than that paper money is unconstitutional – indeed the very reason the United States Constitution was written in the first place was to prevent the “not worth a Continental” paper money issued by the Continental Congress to finance its government – those who support the Articles of Confederation system forget that one of its fundamental flaws was that it allowed the government to print money, as it gave no reliable source of taxation to finance the United States Armed Forces. Without a large scale and professional armed forces there is no point in having a United States of America at all – and each State might as well go its own way till conquered by European powers in the 18th century or by the People’s Republic of China in the 21st century.

[…]

To return to the Greenback Cases… – Chief Justice Salmon P. Chase (the former “slaves lawyer” famous for his anti slavery legal work before the Civil War) de facto ruled that the Treasury Secretary during the Civil War had acted unconstitutionally in having money printed, even though the the Treasury Secretary of the time was Salmon P. Chase (himself). It is not necessary to recuse yourself if you intend, de facto, to find yourself guilty. However, more “justices” were added to the court – and the judgement (and the Constitution) was overturned. The argument being that no more paper money was being printed – it would gradually go over time, so there was no need to make a fuss… still less to declare that the “United States Dollars” in the pockets of people were just bits of paper with ink on them (not “money”).

In 1935 the Supreme Court de facto ruled (by five votes to four) that the Federal Government could steal all monetary gold and void all private and public contracts that had gold (or silver) clauses in the contracts. There was no Constitutional basis for this decision (none whatever – just “lawyer’s cant”) and the Federal Reserve notes declared valid money came from an organisation (the Federal Reserve system created in 1913) that the Congress had no Constitutional power to create. The Supreme Court, led by the Chief Justice, might as well have chanted “Death to America!” and “Hail Satan!” as they announced their judgement – as some of the dissenting judges pointed out. Thus the unconstitutional Credit Bubble financial system was pushed forward. The doubts of Luther Martin at the Constitutional Convention were vindicated – government appointed judges sitting without a jury can not be trusted.

July 25, 2017

“‘Legal fiction’ sounds better than ‘lie’, but in this case the two terms are near synonyms”

Filed under: Government, Law, Liberty, USA — Tags: , , , , — Nicholas @ 05:00

The Instapundit Glenn Reynolds in USA Today on US Attorney General Jeff Sessions’ passion for civil asset forfeiture:

Attorney General Jeff Sessions wants to steal from you.

Oh, he doesn’t call it that. He calls it “civil forfeiture.” But what it is, is theft by law enforcement. Sessions should be ashamed. If I were president, he’d be fired.

Under “civil forfeiture,” law enforcement can take property from people under the legal fiction that the property itself is guilty of a crime. (“Legal fiction” sounds better than “lie,” but in this case the two terms are near synonyms.) It was originally sold as a tool for going after the assets of drug kingpins, but nowadays it seems to be used against a lot of ordinary Americans who just have things that law enforcement wants. It’s also a way for law enforcement agencies to maintain off-budget slush funds, thus escaping scrutiny.

As Drug Enforcement Agency agent Sean Waite told the Albuquerque Journal, “We don’t have to prove that the person is guilty. … It’s that the money is presumed to be guilty.”

“Presumed to be guilty.” Once in America, we had a presumption of innocence. But that was inconvenient to the powers that be.

As Tamara Keel said “Appointing Sessions was the opposite of ‘draining the swamp’; it was basically pumping in a whole bunch of vintage swamp water”

July 22, 2017

Civil asset forfeiture is “an unconstitutional abuse of government power”

Filed under: Government, Law, Liberty, USA — Tags: , , , , — Nicholas @ 03:00

At the Hit & Run blog, Damon Root reports on at least one US Supreme Court justice’s strong views on civil asset forfeiture:

Attorney General Jeff Sessions announced this week that the Justice Department will increase the use of civil asset forfeiture, the practice that allows law enforcement officials to seize property from persons who have been neither charged with nor convicted of any crime. “Civil asset forfeiture is a key tool,” Sessions declared. “President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that.”

But civil asset forfeiture is not a “lawful tool.” It is an unconstitutional abuse of government power. The Fifth Amendment forbids the government from depriving any person of life, liberty, or property without due process of law. Civil asset forfeiture turns that venerable principle on its head, allowing government agents to take what they want without the bother of bringing charges, presenting clear and convincing evidence, and obtaining a conviction in a court of law. It is the antithesis of due process.

By ordering the expansion of this unconstitutional practice, Sessions has placed himself on a collision course with Supreme Court Justice Clarence Thomas. As Thomas recently explained in a statement respecting the denial of certiorari in the case of Leonard v. Texas, not only has civil asset forfeiture “led to egregious and well-chronicled abuses” by law enforcement agencies around the country, but the practice is fundamentally incompatible with the Constitution.

As I described Sessions’ attitude in a post on Gab: “Asset forfeiture now, asset forfeiture tomorrow, asset forfeiture forever!” http://minx.cc:1080/?post=370736. The victims of asset forfeiture tend not to be the druglords or property tycoons … the majority are relatively poor and the asset being taken from them is often their primary financial possession. Druglords and tycoons can easily afford high-powered lawyers … poor people whose life savings have just been seized have no recourse at all in most states. As Senator Rand Paul said: “People who are victims of civil forfeiture are often poor, African American or Hispanic, and people who can’t afford an attorney to try to get the money that’s taken from them by the government”.

Megan McArdle points out that “civil asset forfeiture is […] almost the literal embodiment of that hoary old socialist proverb: ‘Property is theft’:”

Now, this may not seem unreasonable to you. Why should criminals be allowed to keep their ill-gotten gains? And fair enough, except for one small thing: They can take your stuff without charging or convicting you.

Law enforcement agencies have often been able to keep the seized assets for their own use, which has given them a keen interest in generating new civil asset forfeiture cases. As Justice Clarence Thomas remarked, while rebuking his colleagues for failing to hear a case on this topic, “this system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses.” (And indeed, abuse is rampant.)

Because of those well-chronicled abuses, the Obama administration in 2015 ended what was known as the Equitable Sharing program, which allowed local law enforcement to seize assets and then transfer them to the federal government, with the federal government passing back part of the proceeds to the local department. This proved an excellent way to get around state laws, including those intended to funnel seized assets into state coffers. The Obama administration very sensibly decided that it didn’t want to help law enforcement become a sort of freelance tax authority, and shut this practice down.

Now Sessions has revived it. “How is this conservative?” demanded an earnest liberal of my acquaintance. And all I could reply was that that is a very good question.

July 19, 2017

Devising a constitutional role for aboriginal groups in Australia

Filed under: Australia, History, Politics — Tags: , , , — Nicholas @ 03:00

Peter O’Brien outlines the proposal to incorporate a permanent formal role for Australian aborigines in the federal government:

It started out as a limited initiative to ‘recognise’ indigenous Australians as the first occupiers of this land in the Constitution. At least that’s what Tony Abbott, an enthusiastic supporter even before he became Prime Minister, thought. And initially, it was thought that a majority of Australians could support such an initiative.

But since that time it has morphed into something much more sinister as revealed by the final report of the Referendum Council.

[…]

Since all government policy specifically relating to indigenes is intended to eliminate discrimination and disadvantage so that they may take their place, as equal in material and aspirational aspects, as they already are in citizenship, then, presumably, one of the aims of the advisory body should be to work towards its own demise. If it is embedded in the Constitution, that will never happen. It will linger on, a cancerous sinecure rather like the HRC, manufacturing reasons to justify its own existence.

Liebler gives the game away before the starting gun has even gone off:

    “The option of inserting a new provision into the Constitution prohibiting discrimination on the basis of race was determined by delegates to be a “shield”, vulnerable to interpretation by the High Court, whereas a voice to parliament was viewed as a “sword”.”

Since when has a Constitution been envisaged as a mechanism to provide to some of its citizens a “sword” to use against others of its citizens. Yet Leibler disparages the idea of a ‘shield’ in the Constitution since it is vulnerable to interpretation by the High Court. By using the term ‘vulnerable’ he tacitly acknowledges that activist judges can distort the original good intent of legislation.

If that is true for the ‘shield’ of a Constitutional anti-discrimination provision, why would it not be equally true of the ‘sword’ of an advisory body. Here is one example of logic that might be employed thus:

    “If the intent of the framers of this provision was that the Indigenous Council should have no powers other than advisory, why was it put into the Constitution rather than just left to legislation?”

If this sounds simplistic, it is, but it wouldn’t take a legal mind much more sophisticated than mine to turn it into the kind specious nonsense with which we are constantly bombarded by members of the Legal Left.

There is no doubt that the ultimate aim of the activists is sovereignty, because they have repeatedly told us so. This advisory body, this sword’, is the mechanism by which they hope to progress their aim. Some, on the Left, will argue that the activists only represent a hard core and that, if the indigenous population get their way on this, the majority will be happy, that will be an end to the matter and the remaining activists will become irrelevant. Yeah, sure! Pretty much the same way that jihadis have become irrelevant.

June 24, 2017

The Articles of Confederation – Lies – Extra History

Filed under: Britain, Cancon, Government, History, Liberty, USA — Tags: , , , , — Nicholas @ 04:00

Published on Jun 17, 2017

The Articles of Confederation gave the United States their name, but even beyond that, they exposed many of the issues that would underlie this new nation for the rest of its history. James Portnow interviews series writer Soraya Een Hajji about the Articles of Confederation!

June 19, 2017

The Articles of Confederation – IV: Constitutional Convention – Extra History

Filed under: Government, History, Liberty, USA — Tags: , , , — Nicholas @ 02:00

Published on May 27, 2017

What if we kept the Articles of Confederation? The Alternate History Hub explores: https://www.youtube.com/watch?v=x1NTboCDbtk

The war finally ended and the United States secured their independence from Great Britain, but immediately their Confederation seemed to be on the verge of falling apart. Alexander Hamilton and James Madison teamed up to organize a new convention where all the states would not just reform the Articles of Confederation, but replace them entirely.

June 14, 2017

The Articles of Confederation – III: Finding Finances – Extra History

Filed under: Government, History, USA — Tags: , , — Nicholas @ 04:00

Published on 20 May 2017

With the newly United States on the verge of bankruptcy, Congress reaches out to the most able financier in the nation: Robert Morris. His ambitious plans attract the aid of Alexander Hamilton, but fall to ruins when the states abandon him.

June 12, 2017

“They have gradually moved legislative power out of Congress and into administrative agencies — to be exercised, in more genteel ways, by persons like … themselves”

Filed under: Bureaucracy, Law, Liberty, USA — Tags: , , , — Nicholas @ 16:14

Glenn Reynolds (aka the Instapundit) on the unelected bureaucracies that have taken on more and more executive power over the lives of ordinary American citizens and their businesses:

Watching the ongoing clown show in Washington, Americans can be forgiven for asking themselves, “Why did we give this bunch of clowns so very much power over our nation and our lives?”

Well, don’t feel so bad, voters. Because you didn’t actually give them that much power. They just took it. That’s the thesis of Columbia Law Professor Philip Hamburger’s new book, The Administrative Threat, a short, punchy followup to his magisterial Is Administrative Law Unlawful? Both deal with the extraordinary — and illegitimate — power that administrative agencies have assumed in American life.

Hamburger explains that the prerogative powers once exercised by English kings, until they were circumscribed after a resulting civil war, have now been reinvented and lodged in administrative agencies, even though the United States Constitution was drafted specifically to prevent just such abuses. But today, the laws that actually affect people and businesses are seldom written by Congress; instead they are created by administrative agencies through a process of “informal rulemaking,” a process whose chief virtue is that it’s easy for the rulers to engage in, and hard for the ruled to observe or influence. Non-judicial administrative courts decide cases, and impose penalties, without a jury or an actual judge. And the protections in the Constitution and Bill of Rights (like the requirement for a judge-issued search warrant before a search) are often inapplicable.

As Hamburger writes, “Administrative power also evades many of the Constitution’s procedures, including both its legislative and judicial processes. Administrative power thereby sidesteps most of the Constitution’s procedural freedoms. Administrative power is thus all about the evasion of governance through law, including an evasion of constitutional processes and procedural rights.”

June 10, 2017

The Articles of Confederation – II: Ratification – Extra History

Filed under: France, Government, History, Liberty, Politics, USA — Tags: , , , — Nicholas @ 04:00

Published on 13 May 2017

The Continental Congress sent the Articles of Confederation to the thirteen states for ratification, but Maryland insisted on changes that Virginia rushed to oppose. Meanwhile, the American Revolutionary War raged on.

June 7, 2017

The Articles of Confederation – I: Becoming the United States – Extra History

Filed under: Britain, Government, History, Liberty, USA — Tags: , , — Nicholas @ 04:00

Published on May 6, 2017

When the thirteen colonies of North America broke away from Great Britain, they struggled to draft their first constitution. After great debate, they created the Articles of Confederation and formed the United States of America.

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