Quotulatiousness

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 9, 2017

Ernst Zündel, “the Zelig of Holocaust denial”

Filed under: Cancon, Germany, History, Media, Politics — Tags: , , , , , — Nicholas @ 05:00

In the National Post, Colby Cosh tells the tale of Canada’s “favourite” holocaust denial specialist:

Ernst Zündel in 1992 on the day of his legal victory in R. v. Zündel (via Wikipedia)

Ernst Zündel, the Zelig of Holocaust denial, died suddenly this weekend at his ancestral home in the Black Forest of Germany. If he had died sooner, before his 2005 deportation from this country, I am afraid he would have been widely described in obituaries as “German-Canadian.” He lived here from 1958 to 2000, unsuccessfully trying a couple of times to obtain official citizenship, and was visible for years as a self-styled opponent of Germanophobic stereotypes in the popular media.

Foreseeably, Zündel turned out to be the ultimate German stereotype himself: a war baby who used Canada as a refuge from conscription and anti-Nazi laws back home, all while obsessively re-litigating the Second World War in pseudonymous anti-Semitic pamphlets and books. Most ethnic Germans abroad wouldn’t deny the Holocaust or complain of a worldwide Jewish conspiracy, as Zündel did, but… well, if you have studied German history seriously enough to talk about it socially, you will have run into folks who have funny ideas and tiny chips on their shoulder about, say, First World War reparations or the bombing of Dresden.

[…]

It should be remembered that by 1986 Zündel was already well on his way to establishing his place in Canadian legal history. He had already been convicted once under the Criminal Code’s “spreading false news” section, eventually struck down by the Supreme Court in 1992’s R. v. Zündel. Free speech absolutists argued then that the legal and social pursuit of Zündel merely served to increase his notoriety.

As a purely empirical question of history, this is hard to resolve. But we know that protests and the exertions of the police failed to stop Zündel from winning over Irving, and thus acquiring international influence. It may have done nothing but enhance his credentials as a pseudo-intellectual grappler, defying social scorn and the force of law.

The authorities were eventually able to bundle Zündel off to Germany through a legal door that has since closed. He was deported as an undesirable alien on the basis of a ministerial “security certificate” — not long before the Supreme Court denounced the use of secret evidence in deportation proceedings, and made such certificates harder to obtain. After Zündel’s deportation, an apparatus of progressive opposition to security certificates was quick to materialize. One cannot help wondering: if he were still alive in Canada in 2017, and the state tried to banish him, who might be out marching on his behalf, defending him as an “undocumented Canadian”?

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 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.

May 6, 2017

Supreme Court to review Prohibition-era inter-provincial alcohol regulations

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 04:00

Alan White reports that the Supreme Court of Canada has agreed to hearing an appeal of a New Brunswick court decision:

The Supreme Court of Canada has agreed to hear an appeal of a New Brunswick court ruling that declared it unconstitutional to limit the amount of alcohol someone can bring into the province.

At the centre of the case is Gerard Comeau of Tracadie, N.B. He was acquitted by a provincial court judge of exceeding provincial importation limits on beer and liquor that can be brought into New Brunswick.

Comeau was charged in 2012. RCMP had stopped him after he entered New Brunswick from Quebec with 14 cases of beer and three bottles of liquor. New Brunswick’s Liquor Control Act sets a personal importation limit of 12 pints of beer or one bottle of alcohol or wine.

Provincial court Judge Ronald LeBlanc ruled the liquor restriction was unconstitutional because Sec. 121 of the 1867 Constitution states products from any province “shall … be admitted free into each of the other provinces.”

Lawyer Ian Blue, who acted as part of Comeau’s defence team on behalf of the Canadian Constitution Foundation, says the case stands to have major implications.

Blue said the federal and provincial governments are currently discussing trade matters pertaining to NAFTA, milk marketing boards, softwood lumber tariffs, but “they’re not looking at this Comeau case.”

“This Comeau case, with the Supreme Court decision, could have more profound effects on interprovincial trade barriers than President Trump could,” said Blue. “That’s how important this case is.”

April 29, 2017

100 Days of Trump: Three Best and Worst Moments of Presidency So Far

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

Published on 28 Apr 2017

Reason presents the three worst—and the three best—achievements of President Trump’s first 100 days.
____________________________________________

Third Worst Moment: Replace and Repeal FAIL.

Along with his pledge to build a wall on the southern border and deport illegal immigrants en masse, Trump’s campaign was all about ramming through the “Repeal and Replace Obamacare Act,” which would have cut red tape, gotten rid of the individual mandate, and created a true marketplace for medical insurance. Instead, thanks to the president’s own lack of savvy and GOP dithering, it didn’t even get a proper vote in Congress.

Third Best Moment: The nomination and confirmation of Neil Gorsuch.

The nomination of an intellectually powerful and highly respected jurist to replace the late Antonin Scalia on the Supreme Court demonstrated that President Trump isn’t the flake that many critics figured him to be. Neil Gorsuch might not be libertarian, but he is, in the estimation of Georgetown Law’s Randy Barnett, a serious thinker who believes that government power is and should be limited.

Second Worst Moment: The Country That Bombs Together.

The one action for which President Trump has received bipartisan praise was the bombing of a Syrian government air base to protest the alleged use of chemical weapons by the Assad regime. Even opposition leaders such as Nancy Pelosi and Chuck Schumer signed on to a starkly humanitarian intervention that served no greater purpose than rallying voters here in America.

Second Best Moment: Deregulatory appointees at the FDA, FCC, and EPA.

There’s no question that Trump has picked some terrible cabinet members—Attorney General Jeff Sessions has openly talked about ramping up the war on pot in states where it’s legal, for instance. He also defends asset-forfeiture abuse and has hinted at reviving federal porn prosecutions, too. But picks such as Ajit Pai at the Federal Communications Commission, Scott Gottlieb at the Food and Drug Administration, and Scott Pruitt at the Environmental Protection Agency are serious deregulators who are already starting to prune back regulations that accomplish little but cost taxpayers and innovators lots of time, money, and resources.

Worst Moment: Muslim Travel Ban.

The president has issued two executive decrees calling for a moratorium on travel from several majority-Muslim countries and the suspension of America’s refugee program. Both have been stayed by federal courts and it remains unclear if one will ever become the law of the land. Regardless it’s anti-American to effectively establish a religious test for travelers and migrants here—and it also undermines attempts to reach out to the vast majority of Muslims who are the primary targets of Islamic fundamentalism.

Best Moment: He’s Getting Real.

Every new president enters office thinking they can direct the course of human history via his pen or, in the case of Trump, his Twitter feed. For all his bluster and lack of self-awareness, he’s also learning that the world is more complicated than he reckoned. He’s pushed back deadines for all sorts of projects, from funding for his stupid and useless immigration wall to a timeline for tax reform, which shows that he is living in the real world at least. To the extent he realizes that his best path forward is in cutting economic regulations rather than vilifying immigrants, renegotiating trade deals, and starting new wars, he’ll not only be a better president—he’ll create a better America too.

Written by Nick Gillespie. Produced by Paul Detrick and Alexis Garcia.

February 12, 2017

“Never Go Full Ninth Circuit”

Filed under: Humour, Law, Media — Tags: , — Nicholas @ 05:00

In this week’s “G-File” “news”letter, Jonah Goldberg harks back to a scene from one of his favourite movies:

One of my favorite scenes of any comedy — and it’s very un-PC — is in Tropic Thunder when Robert Downey Jr. (in blackface!) explains to Ben Stiller that you “never go full retard.” The conversation is about film roles. Well, if you haven’t seen it, watch:

Now, I don’t like the term “retard” — and I really don’t like it in political debates. We aim for something loftier here.

Still, the scene came to mind because there should be a similar rule in legal circles: “Never Go Full Ninth Circuit.” Personally, I think it sounds better in Latin: Nolite umquam ire plenus nona circuit (and if any of you Latin pedants send me an e-mail correcting my translation, I will come to your house and scatter your Dungeons and Dragons figurines off the kitchen table).

The other day I noted on Special Report that Antonin Scalia had a rubber stamp on his desk with one of his favorite phrases: “Stupid but Constitutional.” I hope that one day, a Supreme Court justice will have a stamp on his desk that says, Numquam Plenus Nona Circuit.

Anyway, I understand that the case against the Ninth Circuit can be exaggerated. Yes, the West Coast’s federal appellate court has the highest rate of cases that have been overturned by the Supreme Court, but the vast majority of its cases don’t get appealed to the Supreme Court. Hence the qualifier “Full Ninth Circuit.” Going Full Ninth Circuit is when you claim that that the Pledge of Allegiance is unconstitutional. That’s a Simple Jack move, not a Rain Man or even a Forrest Gump move.

February 3, 2017

The Gorsuch nomination

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

In the Washington Post, Radley Balko says that the nomination of Judge Neil Gorsuch is actually a gift to the Democrats:

It always seems a bit futile to speculate about how a Supreme Court nominee will behave down the line. Conservatives are still kicking themselves over David Souter. Eisenhower called Earl Warren the biggest mistake of his career. I personally was skeptical of Sonia Sotomayor’s history as a prosecutor and her judicial record on criminal-justice issues. She has turned out to be the court’s most reliable defender of due process and the rights of the accused.

But, of course, we do need to look into nominees, and their records and personal histories are all we have. So let’s have a civil liberties-centric look at Neil Gorsuch, President Trump’s nominee to replace the late justice Antonin Scalia.

The Good: As far as I’m concerned, the most important thing to look for in a Supreme Court justice right now is a willingness to stand up to executive power. For at least the next four years (in all likelihood), the White House will be occupied by a narcissist with a proclivity for authoritarianism. We aren’t yet two weeks in to Trump’s administration, and we’re already barreling toward one or more constitutional crises. Oddly and perhaps in spite of himself, of the three names said to be on Trump’s shortlist (Gorsuch, Thomas Hardiman and William Pryor), Gorsuch appears to be the most independent and has shown the most willingness to stand up to the executive branch. […]

Gorsuch is perhaps most known for his decision in the Hobby Lobby case, in which he wrote a strong opinion denouncing the birth-control mandate in the Affordable Care Act. Whether you think that’s a plus or a minus obviously depends on whether you prioritize reproductive rights or religious freedom. But even if you’re bothered by his opinion in that case, Gorsuch’s championing of religious freedom does at least seem to be careful and principled, and not partisan toward Christianity. In Yellowbear v. Lampert, a majority of his fellow appeals court judges ruled that a federal statute required the state of Wyoming to grant a Native American prisoner access to a sweat lodge on prison grounds. Gorsuch went farther, arguing that even prisoners still retain a right to practice their religion.

Gorsuch is a critic of “overcriminalization,” or the massive and growing federal criminal and regulatory codes. I think that’s a good thing. The Volokh Conspiracy’s Ilya Somin points out that he has history of ruling that criminal laws should be read narrowly, with ambiguities resolved in favor of defendants. That, too, is a good thing.

I was also struck by Gorsuch’s acceptance speech. It was noticeably un-Trumpian. He was humble, reverent of institutions and deferential to the office for which he had just been nominated. Unlike the man who nominated him, he came off as someone devoted to the law, not someone who believes he is above it.

January 3, 2017

Procedural hacks and US Supreme Court nominations

Filed under: Law, Politics, USA — Tags: , , , , — Nicholas @ 04:00

Yes, I’m just getting caught up on articles that got published between Christmas and New Year’s, which is why I’m linking to another Megan McArdle article. This one is on the Democratic party’s “festival of wrongness” delusions about hacking the nomination to replace Antonin Scalia on the US Supreme Court:

You may be a bit confused. Republicans hold the majority in this Senate. They will also control the next Senate. How are Democrats supposed to bring the thing to the floor for a vote, much less get enough votes to actually confirm him?

That’s a very good question! The answer some progressives have come up with is that there will be a nanosecond gap between when the outgoing senators leave office, and the new ones are sworn in. During that gap, there will be more Democrats left than Republicans. So the idea is to call that smaller body into session, vote on the nomination, and voila! — a new Supreme Court justice. Alternatively, President Obama could use that gap to make a recess appointment.

The first idea started on Daily Kos, where I initially saw it. I didn’t pay it overmuch attention, as my second law of politics is that “At any given time, someone is suggesting something completely insane.” Usually these ideas go nowhere. This one, however, has gotten a bit of traction; the idea of a nanosecond nomination vote has shown up at the Princeton Election Consortium blog, and endorsements of a recess appointment have appeared in the New Republic and New York magazine.

It’s hard to know where to start with this festival of wrongness. The idea behind the nanosecond nomination seems to be that there are two discrete Senates, the old and the new, with a definite gap between them; yet that somehow, though neither the old nor the new Senate exists, there are senators, who can hold a vote on something — a sort of quantum Senate that pops into and out of existence depending on the needs of the Democratic Party.

The legal grounds for a recess appointment are even weaker, because in 2014 the Supreme Court ruled that recess appointments require at least a three-day gap — not three femtoseconds — between sessions to be valid. Even if that were not the case, Jonathan Adler argues that the new Republican Senate could adjourn sine die, ending the recess appointment a few weeks after it was made. Since Garland would have to vacate his appellate court seat, all Democrats would succeed in doing is opening up another judicial appointment for Trump.

But this is almost quibbling compared with the deeper problem: Even if these moves could work, they wouldn’t work. The people proposing these ideas seem to imagine that they are making a movie about politics, rather than actually doing politics. The hero’s quest is to get a liberal supreme court, but they are stymied until — third act miracle! A daring procedural caper! The gavel slams down on Merrick Garland’s “Aye” vote … cut to him taking his Supreme Court seat … fade to black as the audience cheers. In the real world, of course, there’s a sequel, called “Tomorrow.” And what do the Republicans do then? The answer, alas, is not “stand around shaking their fists at fate, while the moderates among them offer a handshake across the aisle and a rueful ‘You got us this time, guys.’”

November 18, 2016

QotD: The delicate nature of the United States Supreme Court

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

This is first-class flummery: What they really mean is that they will be very angry at the Supreme Court if the case goes against them. This is completely true. It is not completely true that the Supreme Court will somehow destroy itself, or its place in American society, if it offers a ruling that American liberals don’t like. I realize that it may feel this way if you are an American liberal. But if the institution survived Roe v. Wade‘s “emanations and penumbras,” and the sudden discovery after a couple of centuries that capital punishment violated the Constitution, it can certainly survive a narrow statutory case that overturns a still-unpopular program.

To listen to most commentators, the legitimacy of the Supreme Court is a delicate flower. It blooms fiercely whenever the court does something they like — stand by for sonorous pronouncements from these same illegitimacy-mongers that “the highest court in the land has spoken” should the court rule in favor of gay marriage this term. But if it issues a single ruling that they don’t like, then it is a despotic institution mired in bad ideology. These things obviously cannot both be true. If the Supreme Court loses its legitimacy, then its rulings about gay marriage and civil liberties will be exactly as illegitimate as its rulings about Obamacare and the Religious Freedom Restoration Act.

In fact, all these rulings are well within the scope of a perfectly legitimate court. I may disagree with some of them — hell, I’m still mad about Wickard v. Filburn. But the Constitution and 200 years of legal precedent give the court the power to make these rulings. And frankly, the biggest threat to democracy is not the court; it is commentators declaring that they’re going to take their ball and go home if the institution starts producing rulings they don’t like. Democracy can survive badly reasoned court rulings. It cannot survive a polity, or a policy elite, that thinks support for our institutions is optional, to be withdrawn should the court have the audacity, the sheer unmitigated gall, to stymie that elite’s agenda.

Megan McArdle, “Obamacare Will Not Kill the Supreme Court”, Bloomberg View, 2015-03-04.

November 13, 2016

“All it would take would be a repudiation of Wickard v Filburn…”

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

Ed Morrissey on the strange new respect being shown on the left to the concept of checks and balances in the US federal system:

For the past six years, the media has lionized Barack Obama for his increasing autocratic acts in pushing executive power to its limits — or past them — rather than compromise with Republicans in control of Congress. “I’ve got a pen, and I’ve got a phone,” Obama declared, “and I can use that pen to sign executive orders and take executive actions and administrative actions.” Despite serious rebukes by courts over his attempts to bypass the Senate on recess appointments and flat-out violate the law on immigration, the media has always cast Republicans as villains for frustrating Obama’s agenda rather than focus on his abuses of executive authority.

Suddenly, though, an epiphany has begun to dawn on the media. Pens and phones are old and busted, and checks and balances are the new hotness. […]

Under a true federalist system, Californians could run their own state, as could Coloradans, Minnesotans, and also Texans, Floridians, New Yorkers, and, er … whatever people from Wisconsin call themselves. All it would take would be a repudiation of Wickard v Filburn to reduce federal authority over economic activity to commerce that actually takes place across state lines. Each state could have their own EPA, if they desire it, and maintain their own land in the manner they see fit.

In such a system, the authority of the president would greatly diminish on domestic affairs, allowing voters to consider candidates for such a position based on issues such as diplomacy and national defense rather than which of the two will be the biggest busybodies. Rather than trying to run a nanny state and failing as miserably as F. A. Hayek predicted, Congress could focus on a much narrower range of tasks and do those well. Most importantly, states could keep much of the revenue pouring into Washington and provide a lot more effective accountability over its use.

Does that appeal to all the special snowflakes looking for safe space in the Age of Trump, and to all of those protesting because they just found out what it feels like to lose an election? Sound like a novel idea that could shield you from the potential side effects of a presidential election? Well, then congratulations — you are well on your way to becoming a conservative, or perhaps a libertarian. Feel free to ask us about the principles that we have (imperfectly to be sure) espoused all along while Barack Obama set all the precedents that Donald Trump will expand to your detriment. We’ll try not to snicker when explaining them to you … much, anyway.

November 12, 2016

David Warren’s election postmortem

Filed under: Humour, Politics, USA — Tags: , , , — Nicholas @ 03:00

Unusually for David, he’s resorted to a numbered list this time:

1. How easily the college-educated go barking mad.

2. The most reliable “safe space” is a padded cell. The least reliable ought to be on campus.

3. The new administration might want to consider “transitioning” several Ivy League universities into mental homes to serve an urgent public need.

4. If you think Trump is bad, you should read some history. It wouldn’t take much. His views, in the main (as stated, not as falsely attributed), would have passed as middle-of-the-road liberal about one generation ago. On many of the issues, Trump is farther Left. By traditional standards for despots and demagogues, he strikes me as fey.

5. Which is why I despise him. I didn’t like liberal mediocrities then, and I don’t like them now.

6. On the specific question of his taste in fixtures and furnishings (including likely cabinet choices), we must be firm. On the basis of his Manhattan apartment alone, I’d be inclined to appoint a Special Prosecutor.

7. I will hope he is sufficiently Machiavellian to nominate Ted Cruz for the Scalia vacancy on the Supreme Court.

8. And then he could make a personal appearance there, shouting and waving his little hands. That could create three more vacancies.

9. Melania and Michelle should do a sitcom together. (“Transition Team.”)

10. As of three-thirty a.m. the night before last, I achieved a state of happiness I had not enjoyed for a long time. And this was with the help of only one (1) 750mL bottle of strong Belgian monastic ale. (Chimay, the red label, from the Pères Trappistes of Scourmont.) As I have indicated, I do not much care for that Donald fellow. But the defeat of Hillary was exhilarating.

October 13, 2016

QotD: Libertarian constitutionalism

Filed under: Law, Liberty, Quotations, USA — Tags: , , , — Nicholas @ 01:00

Libertarian constitutional thought is a distinctly minority position among scholars and jurists, one that at first glance has little connection with either modern Supreme Court jurisprudence or the liberalism that remains dominant in the legal academy. However, libertarian ideas have more in common with mainstream constitutional thought than at first meets the eye. They have also had greater influence on it.

This article explores the connections between mainstream and libertarian constitutional thought in recent decades. On a number of important issues, modern Supreme Court doctrine and liberal constitutional thought has been significantly influenced by pre-New Deal libertarian ideas, even if the influence is often unconscious or unacknowledged. This is particularly true on issues of equal protection doctrine and modern “substantive” due process as it pertains to “noneconomic” rights. Here, both the Supreme Court and much of the mainstream academic left have repudiated early twentieth century Progressivism, which advocated across-the-board judicial deference to legislatures. They have also rejected efforts to eliminate common law and free market “baselines” for constitutional rights.

The gap between libertarian and mainstream constitutional thought is much greater on issues of federalism and property rights. Here too, however, recent decades have seen significant convergence. Over the last thirty years, the Supreme Court has begun to take federalism and property rights more seriously, and the idea that they should get strong judicial protection has attained greater intellectual respectability. Moreover, much of libertarian constitutional thought merely seeks to apply to federalism, property rights, and economic liberties, the same principles that mainstream jurists and legal scholars have applied in other areas, most notably “noneconomic” constitutional rights and separation of powers.

Ilya Somin and David Bernstein, abstract to “The Mainstreaming of Libertarian Constitutionalism” in Law and Contemporary Problems, reposted in the Washington Post, 2015-02-20.

September 22, 2016

Arizona’s law to effectively criminalize parenting survives state supreme court scrutiny

Filed under: Law, USA — Tags: , , , , , — Nicholas @ 02:00

If anything could symbolize the Crazy Years, this (insane) Arizona law certainly qualifies:

The Legislature passed laws ostensibly designed to punish child molesters, but apparently forgot to make sexual intent a requisite element of molestation.

As Slate legal writer Mark Joseph Stern notes, the laws prohibit any person from “intentionally or knowingly” touching “any part of the genitals, anus or female breast” for anyone under 15. That’s it:

    Indeed, read literally, the statutes would seem to prohibit parents from changing their child’s diaper. And the measures forbid both “direct and indirect touching,” meaning parents cannot even bathe their child without becoming sexual abusers under the law.

In response to a legal challenge by a man convicted of molestation because of the Legislature’s idiocy, three of five judges ruled there was no ambiguity in the law. They declined to

    rewrite the statutes to require the state to prove sexual motivation, when the statutes clearly contain no such requirement.

There’s some interesting discussion between the majority and minority over whether the law is nonetheless unconstitutional, even if it’s not ambiguous. The minority, per Stern:

    No one thinks that the legislature really intended to criminalize every knowing or intentional act of touching a child in the prohibited areas. Reading the statutes as doing so creates a constitutional vagueness problem, as it would mean both that people do not have fair notice of what is actually prohibited and that the laws do not adequately constrain prosecutorial discretion.

This terrible bit of legislative farce is actually a symptom of a much wider problem:

Let’s not forget, however, that if the Legislature had taken its job seriously and crafted legislative language that passed the laugh test, Arizona parents wouldn’t be in this position.

Lawmakers have gotten a little too comfortable in trusting that they can pass any idiotic law – perhaps to sate their rabid, ignorant constituents – and judges will save them from the consequences.

Then they can rail against “judicial activism” and get re-elected. It’s a perfect scheme.

If more judges were to let lawmakers suffer the consequences of their foolishness, perhaps voters would sober up and stop demanding the most draconian, unjust, utterly pointless measures against sexual offenses, real or perceived.

June 1, 2016

The “Trump as scary autocrat” scenario

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

Last week, Megan McArdle responded to a “my hair is on fire” diatribe from The New Yorker about a Donald Trump presidency being the end of America as we know it. She’s not convinced:

There are two stages to becoming a scary autocrat. First, you have to get into a position to seize power. The most traditional routes are the military (a task for which Donald Trump’s bone spurs left him tragically disqualified), or winning elected office to abolish or corrupt the electoral process. The former route has its risks, but once you’ve safely arrived in the presidential palace, it’s pretty easy to dispense with democracy, since you have all the guns. The latter route means you need the rest of government, including all the folks with guns, to go along with you.

This certainly does happen, even in countries that have been practicing democracies for a while. But it’s by no means a given. Franklin D. Roosevelt took a certain amount of constitutional liberty with his wackier notions, and when the courts pushed back, he hit on the scary idea of basically throwing out some Supreme Court justices and replacing them with others who would rubber-stamp his policies. (The phrasing was nicer than that, but this was the basic idea, and just the sort of first step that dictators like to take toward cementing themselves as Autocrat for Life). FDR’s own party rebelled, but the Supreme Court began cooperating, too.

There were also civil liberties violations under FDR, notably the internment of the West Coast Japanese population. But while these were appalling abuses, and a stain on the national honor, they are within the (unfortunately) normal range of government behavior in your ordinary, middling-decent democracy of the era.

So the question is not just whether Trump wants to be a dictator, but what the other branches of government will do if he tries to actually become one. I don’t just mean Congress and the courts; I mean “will the bureaucrats of the civil service follow his orders, and will the people with guns agree to go out and arrest his enemies?”

There’s clearly a portion of the electorate that thrills to the more authoritarian and violent parts of his message, and presumably some of those folks are in the military and the civil service. But I’m still fairly confident that the FBI is not, say, going to start tapping journalists’ phones to find out if they’re making fun of President Trump’s comb-over, or disappearing the ones who do.

I worry more about Silvio Berlusconi-style corruption and abuse of regulatory agencies, an impulsive foreign policy that could lead us into open conflict with a nuclear-armed power, and executive-power overreach. I also worry about simple incompetence, given how uninterested Trump seems to be in policy. All-out dictatorship is pretty low on the list, because American institutions do not seem weak enough to allow it.

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