Quotulatiousness

June 29, 2011

Canada’s constitution has the “notwithstanding” clause . . .

Filed under: Government, Law, Liberty, USA — Tags: , , — Nicholas @ 16:42

. . . but that’s just a loophole compared to the utter legal devastation contained in the American constitution’s Commerce Clause:

Obama and, it seems, many courts, would like to pretend that while the Constitution generally speaks of enumerated and limited powers — all other powers, such a the police power, reserved for the people and the states — that the Commerce Clause generally is a “Take-Back” clause that essentially calls bullshit on everything else in the Constitution.

That is, everything else in the Constitution is about establishing particular powers of the federal government, and, expressly, reserving those not named (or “necessary and proper” to undertake a named power) to the states.

But this new claim is that really there is only one clause that matters in the Constitution, and that is the Commerce Clause, and this one brief clause renders all 4400 other words in the Constitution null and void, because the Commerce Clause says, it is contended, that the federal government may do anything so long as, in the aggregate, it “affects interstate commerce,” which, as is often pointed out, applies to everything.

Having sex with your wife? This affects interstate commerce, as you might wind up creating the ultimate economic effect — a child; a future one-man army of economic activity, labor, investment, and consumption — and even if you don’t, your choice to have sex is a choice not to sample the fruits of interstate commerce, which is affected, then, by your choice to not enter the stream of paid entertainments.

The US federal government clearly does believe that the Commerce Clause is the trump card in the deck. You play that and it doesn’t matter what the other cards may be: you win.

If the framers of the Constitution meant for this one clause to have such omnipotent power, trumping everything else, establishing well-nigh plenary power of the federal government over every aspect of human existence —

Why did no one seem to think it necessary to add even the most gentle limitation on such a far-reaching power?

In other words, if this Clause means what it is, apparently straight-faced, contended to mean, and therefore is the only real clause in the Constitution at all — why did no one think to elaborate upon it?

Why all that wasted time on Amendments and specific powers of Congress, the President, and the Courts, when the only real grant of power in the Constitution is the Commerce Clause?

From the comments, where it’s been pointed out that if this decision is upheld, the government can mandate how many children you have to have:

Bob Saget: If you cannot afford a wife for bearing the Federally mandated minimum number of children, one will be appointed for you.

June 28, 2011

Government attempts to censor and control the internet spawn opposition

Filed under: Government, Liberty, Media, Technology — Tags: , , , , , , — Nicholas @ 12:06

Loz Kaye makes the point that the recent ratcheting-up of freelance subversion of government and corporate web sites and online communities is a direct reaction to attempts to control the internet:

LulzSec wasn’t an isolated or unique phenomenon. People with passionate beliefs have been using new technological tools to effect change out of a sense of powerlessness. In the last year, I’ve watched 38 Degrees using the strength of association online to change government policy, WikiLeaks force transparency on those who’d rather run from it, even the amorphous mass that is Anonymous taking a stand on whatever issue they feel deserves their attention.

These tools are now themselves under attack. Lord Mandelson’s last gift to us, the Digital Economy Act, is just one of a raft of “three strikes laws” worldwide that threaten to cut off households from the web. Buried in the coalition’s Prevent strategy is the assertion that “internet filtering across the public estate is essential”. Nor is it solely a British issue; Nicolas Sarkozy called for global online governance at the eG8 in his attempt to civilise the “wild west” of the web.

We’re starting to see what this civilising process entails. Open Rights Group revealed that Ed Vaizey and lobbyists held a secret meeting discussing the future of web blocking powers. There was no public oversight and no one asked the net natives. Vaizey has relented a little via Twitter, consenting to open up the discussion — the Pirate Party and I welcome that invitation. It will take more, however, than getting a few NGOs around a table to ease the real sense of anger poisoning the online community.

We’re quickly coming up on a time when we’ll need to enshrine access to the internet (or equivalent data sources) as a formal constitutional right. If we don’t, we will always have this urge to control and to censor on the part of petty authoritarians and bureaucrats.

June 27, 2011

“A substantial expansion of the FBI’s power to monitor innocent Americans”

Filed under: Government, Law, Liberty, USA — Tags: , , — Nicholas @ 12:06

Julian Sanchez on the changes to the FBI’s domestic rulebook:

The change in the rules will remove a crucial deterrent for any of the 14,000 FBI employees who might be tempted to use their government access to all kinds of databases for improper personal ends, or to flout rules prohibiting religious, racial and political profiling. This is no hypothetical concern: Shortly after the new guidelines were announced, a former CIA official alleged that the Bush administration had asked the spy agency to dig up dirt on academic and blogger Juan Cole, whose fierce criticism of the war in Iraq earned the ire of the White House.

The new manual will also give agents who have opened assessments greater authority to employ physical surveillance teams. If the FBI thinks you might make a useful informant, agents will be free to dig through your garbage in hopes of finding embarrassing trash that might encourage you to cooperate. And they will be able to do this without first having to show any evidence that you are engaged in wrongdoing.

The FBI, predictably, is downplaying the changes in its rulebook, characterizing them as “clarifications” and “tweaks.” But all these tweaks add up to a substantial expansion of the FBI’s power to monitor innocent Americans — power Congress wisely curtailed in the 1970s in light of the bureau’s ugly history of spying on political dissidents. The law set broad limits on the most intrusive investigative techniques, such as wiretaps, but the details of who could be investigated and how were largely left to executive branch regulation. As statutory restraints on surveillance have been peeled back over the last decade, Americans have been asked to rely more than ever on those internal rules to check abuses.

A review of The Declaration of Independents

Filed under: Books, Economics, Liberty, Media, Politics — Tags: , , , — Nicholas @ 08:33

Timothy P. Carney talks about the new book by Nick Gillespie and Matt Welch:

Libertarians today are mostly considered a variety of conservative — Ronald Reagan with fewer bombs and more pot. But Welch and Gillespie don’t cast libertarianism as one of many political ideolgies. Instead, they portray it as a truce. It’s unpolitics. The authors see evidence of a “libertarian moment,” not so much in public opinion on policy matters (though outrage about bailouts helps), but in cultural trends that spill over into politics.

Younger Americans don’t like being told what to think. Gone is the voice-of-God Walter Cronkite figure. Younger adults assemble their own news feeds a la carte, following trusted voices on Twitter and RSS feeds. Even walking through a shopping mall, the authors argue, shows how we’re much more individualistic as a culture than we used to be. The authors say there’s a proliferation of cliques and types in high schools and among adults, too. The Internet has helped people find kindred spirits both near and far, making it less necessary to modify your interests to match an existing group. Americans, increasingly, choose their own way.

And there, in a nutshell, is the traditionalist’s core argument against the internet (grounded in their remembered high school experience): it allows geeks and nerds and other unpopular kids to find solace, support and fellow feeling outside their immediate physical surroundings. That undermines the traditional rule of the jocks and the beautiful people.

Welch and Gillespie see our cultural trends as evidence that “decentralization and democratization” are taking territory from “the forces of control and centralization.” The political corollary, naturally, would be a movement that creates more space for individuality. It would be almost an anti-political movement.

But this is where every dream of an independent or libertarian uprising crashes into reality. You don’t win at politics without being good at politics. The people who are best at politics are the people who stand to gain a lot from it — special interests and people who get like to play the political game. Neither group is likely to include many anti-political decentralizers.

What about the libertarians who are already caught up in politics? The think-tankers, the activists, the journalists? Well, they’re another obstacle to a libertarian revolution. For one thing, this is a group famous for infighting. The Libertarian Party has been racked with strife, splits and feuds for its entire existence. Welch and Gillespie want to pitch a big tent, but Beltway libertarians are famous for imposing “purity tests.” (Q: Should vending machines marketing heroin to children be allowed on public sidewalks? A: There shouldn’t be public sidewalks.)

That last quip is quite true: the very first time I walked in to a libertarian gathering, I was besieged with purity testing of that sort. I nearly walked right back out without a backward glance.

June 26, 2011

Anti-semitism at the University of Toronto

Filed under: Cancon, Education, Liberty, Politics — Tags: , , — Nicholas @ 11:54

Post-graduate students at the U of T may have gotten a bit too honest and outspoken in class:

Picture the following: A discussion in a post-graduate university class on the topic of Jews turns ugly. The professor is uncritical when one student says he doesn’t want to be around Jews. Another student complains about “rich Jews,” implying their excessive power. In a subsequent class, the same professor, as if to validate those points, says half her department faculty are Jews and with her approbation, students conduct a ‘Jew count’.

While this sounds like an episode in Germany leading up to the anti-Jewish Nuremberg Laws, it occurred more recently and much closer to home, at the University of Toronto’s Faculty of Social Work. Now, more details are emerging under the exceptional circumstance of two U of T professors publicly criticizing a colleague for facilitating classroom anti-Semitism and the university administration’s inadequate response.

The controversy began when some visible minority students in a Social Work Master’s program at the University of Toronto expressed discomfort about being around “rich Jews,” in Professor Rupaleem Bhuyan’s class, regarding a proposed outing in 2009 to the Baycrest Centre, an internationally renowned Jewish geriatric and research facility. They were undoubtedly confident of a sympathetic ear from her. The previous year, Bhuyan denounced Israel as a satellite of the United States, unworthy of distinction as a separate country.

The few Jewish students in Bhuyan’s Master’s Program class were intimidated into silence for much of the discussion by a classroom culture slanted against them. Finally, one young woman spoke up, protesting her grandparents had come to Canada with virtually nothing and she was proud her family could now afford the fees for them to reside at Baycrest.

That must have rung an alarm bell for Professor Bhuyan, because startlingly, she then admonished her students not to divulge what transpired in class to outsiders.

H/T to Ilkka for the link.

June 25, 2011

Reason.TV reporter arrested for “disorderly conduct” and “trespassing”

Filed under: Government, Law, Liberty, Media — Tags: , , , — Nicholas @ 11:15

June 24, 2011

Even with the Post Office on strike, deliveries must be made

Filed under: Books, Liberty, Media, Randomness — Tags: , , — Nicholas @ 13:07

Just before lunch, the UPS guy dropped off a couple of books from my latest Amazon.ca order:

That’s The Declaration of Independents: How libertarian politics can fix what’s wrong with America by Nick Gillespie and Matt Welch, and Fuzzy Nation by John Scalzi. Now I’m just waiting for Rule 34 by Charles Stross to complete the order.

QotD: Defending the indefensible

Filed under: Books, Law, Liberty, Media, Quotations — Tags: — Nicholas @ 12:09

If you accept — and I do — that freedom of speech is important, then you are going to have to defend the indefensible. That means you are going to be defending the right of people to read, or to write, or to say, what you don’t say or like or want said.

The Law is a huge blunt weapon that does not and will not make distinctions between what you find acceptable and what you don’t. This is how the Law is made.

People making art find out where the limits of free expression are by going beyond them and getting into trouble.

Neil Gaiman, “Why defend freedom of icky speech?”, Neil Gaiman’s Journal, 2011-06-24

June 23, 2011

Shock, horror! Dutch court clears Geert Wilders of hate charges

Filed under: Europe, Law, Liberty, Politics — Tags: , , , — Nicholas @ 09:05

Perhaps there is still a faint bit of hope for freedom of speech in Europe after all:

A Dutch court has acquitted rightwing politician Geert Wilders of hate charges, saying his anti-Islam statements, while offensive to many Muslims, fell within the bounds of legitimate political debate.

Judge Marcel van Oosten said Wilders’ claims that Islam is violent by nature, and his calls for a ban on Muslim immigration and the Qur’an, must be viewed in a wider context of debate over immigration policy.

The judge added that the remarks could not be directly linked to increased discrimination against Dutch Muslims.

Wilders unmoved as the verdict was read, but his supporters in the public gallery hugged one another and clapped after the acquittal.

Wilders, one of the most powerful and popular politicians in the Netherlands, was accused of inciting hatred and discrimination against Muslims through numerous public statements, and with insulting them by comparing Islam with Naziism.

“I’m incredibly happy with this acquittal on all counts,” Wilders said outside the courtroom. “It’s not only an acquittal for me, but a victory for freedom of expression in the Netherlands.

June 20, 2011

Radley Balko dispels a few myths about the justice system

Filed under: Law, Liberty, USA — Tags: , , — Nicholas @ 12:50

In his new column at the Huffington Post, Radley Balko discusses some common myths in US criminal justice:

Myth 1: You Can’t Be Tried More Than Once For The Same Crime

The Fifth Amendment to the U.S. Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This protection against “double jeopardy” is intended to prevent the government from retrying the same defendant over and over until prosecutors can get a conviction.

But there are some exceptions. First, the protection only comes into play once a jury has convicted or acquitted a defendant. So in trials that end with a hung jury or a mistrial, the prosecution can usually bring the same charges again. One particularly egregious example is Curtis Flowers of Mississippi, who has been tried an incredible six times for the murder of four people in 1996.

Second, the U.S. Supreme Court has ruled that the government can charge a defendant with both a crime and the conspiracy to commit that crime without violating the constitutional prohibition on double jeopardy. This gives the government two opportunities to convict for is essentially the same offense. Conspiracy is often easier to prove than the underlying crime. It also gives prosecutors a way to rope in alleged offenses they can no longer charge separately due to statutes of limitations.

Finally, there is the “separate sovereigns” exception to double jeopardy. This allows a defendant to be tried, convicted and sentenced for the same crime in both state and federal court. The most well-known example of the separate sovereigns exception is when the Los Angeles police officers who beat Rodney King were acquitted in state court, then convicted in federal court of violating King’s civil rights.

L. Neil Smith on what defines a libertarian

Filed under: Liberty, Media, Politics, USA — Tags: , , — Nicholas @ 12:08

From the most recent Libertarian Enterprise where L. Neil is discussing Ann Coulter’s dislike of Ron Paul:

In the column in question, she accuses Dr. Paul of hypocrisy, of being a libertarian who wants to get rid of government (both of which are untrue) while at the same time wanting people to elect him President.

There are two (and only two) fundamental tenets that an individual must accept wholeheartedly and without reservation in order to call him- or herself a libertarian. As decent and likable a fellow as Dr. Paul happens to be, I have never heard him specifically endorse either one.

If I am wrong, please correct me; it would be good news.

First of all, you have to regard yourself — as well as each and every individual around you — as the sole proprietor of his or her own life and, for better or worse, all of the products of that life, including the fruits of your labor and, equally, the smoke from your chimney. The concept is called “absolute self-ownership” — accept no substitutes.

Second — and this is the social and political manifestation of absolute self-ownership — you have to agree never to initiate physical force against another human being for any reason whatever, nor to advocate this initiation, or delegate it to someone else. This concept is called the “Zero Aggression Principle” and it is the absolutely indispensable bedrock on which political libertarianism rests.

If anyone argues with you about that, it’s because he (or she) wishes to reserve some right that he (or she) falsely imagines he (or she) has, to employ force against you whenever he (or she) feels it necessary or convenient. For the sake of national security. Or for the children.

Whatever you think of these ideas, they are unquestionably central to everything that is truly libertarian, and all proposed libertarian policies spring from them. Regrettably, the general freedom movement, as well as the Libertarian Party itself, are cluttered today with counterfeit libertarians — Nerfs and LINOs — who can’t make the moral cut. Coulter claims she has one libertarian friend who is “not crazy”, but if she regards him or her as “not crazy”, it’s certain that whoever she’s talking about is not a libertarian at all. This is among the best reasons I can think of for defining libertarianism properly.

June 18, 2011

Is it right to name and shame the Vancouver “fans”?

Filed under: Cancon, Law, Liberty, Technology — Tags: , , , , — Nicholas @ 00:08

Ken at Popehat discusses the charges that outing the misbehaving fans on Facebook is somehow “vigilantism”:

Vigilantism: Exposing people to the social consequences of their misbehavior is not vigilantism. Subjecting them to physical danger is. That’s why decent people involved in this process don’t post home addresses or phone numbers, and delete them when they are posted.

Proportionality: The proportionality argument is at least somewhat misguided. First of all, bad behavior doesn’t go viral on the internet unless it’s really notable. Garden-variety assholes don’t get top Google ranking. You’ve got to be somewhat epic to draw this modern infamy — by, say, being a water polo star on a scholarship trying to torch a cop car because your hockey team lost. Second, lack of proportionality is self-correcting. If conduct is actually just not that bad, then future readers who Google a bad actor’s name will review the evidence and say “meh, that’s not so bad. Everyone acts up now and then.” Saying that bad behavior should not be easily accessible on the internet is an appeal for enforced ignorance, a request for a news blackout. It’s saying, in effect, I’m more wise and measured than all the future people who might read about this; they can’t be trusted to evaluate this person’s actions in the right light, like I can.

“They Just Made A Mistake”: The argument that bad actors shouldn’t become infamous because they “just made a mistake” is a riff on proportionality. The same criticisms apply: it takes a hell of a mistake to go viral, and future viewers can make up their own minds. Plus, this argument is often sheer bullshit. Trying to torch a cop car because your hockey team lost is not a mere faux pas; normal and decent people don’t do it.

June 16, 2011

Horwitz: Yes, it is a police state

Filed under: Government, Liberty, USA — Tags: , , , , — Nicholas @ 08:18

It’s been a long time since 9/11, and the biggest losses have been in civil liberties:

As regular readers know, I’m not one for hyperbole, so perhaps some are thinking that my title is ironic. Nope, I mean it. An accumulation of events in recent months leads me to no other conclusion than that we are in fact living in a police state in the good old US of A.

The list of reasons is fairly long, but we can certainly start with our favorite gropers at the TSA. In my ideal world, airline safety would be the responsibility of those with the most directly to lose financially from doing it poorly: the airlines and the airports. But even in a world where government has taken on that responsibility, we should be protected by the Fourth Amendment against “unreasonable” searches. It’s one thing to walk through the standard metal detector, which seems reasonable, but when we are expected to pose virtually nude in a submissive position for government agents, and when refusing to do so earns you a feel-up that would count as sexual battery in most states, that is something else entirely.

If I had told you 20 years ago that in 2011 this is what would happen every day to thousands of travelers — including toddlers and the handicapped — at U.S. airports, you would not have believed me. And on top of everything else, it doesn’t work! It’s mere “security theatre.” When residents of the United States have a legitimate fear of being sexually abused by agents of the State when engaging in peaceful air travel, we live in a police state.

June 14, 2011

QotD: John Hospers

Filed under: Liberty, Politics, Quotations, USA — Tags: , — Nicholas @ 10:38

My old philosophy professor has died. He was the only person I’ve ever met who both received a vote in the electoral college for president of the United States and published leading textbooks in ethics and aesthetics. I am fairly confident that he was the only person of whom that will ever be said.

When I enrolled at the University of Southern California in 1973 to study philosophy, John was chairman of the department. I already knew about him, however, as I had read his book Libertarianism: A Political Philosophy for Tomorrow and had heard him debate against socialism the year before, alongside the late R. A. Childs, Jr. That was when John was the first presidential candidate of the brand new Libertarian Party. (He and his running mate, the first woman ever to receive an electoral vote, Tonie Nathan, were on the ballot in only 2 states that year.) It wasn’t a very vigorous campaign, but it helped thousands of people to say, “You know, I don’t fit in with either the left or the right; they’re both abusive of liberty.” Besides that electoral vote the Hospers campaign helped to launch a long-term political alignment that is very much with us today, as people increasingly see issues in terms of personal liberty and responsibility, rather than as a battle between two different flavors of statism.

Tom G. Palmer, “John Hospers, R.I.P.”, Cato @ Liberty, 2011-06-14

Random links

Filed under: Britain, Cancon, Liberty, Politics, USA — Tags: , , , , , — Nicholas @ 10:11

A few links which don’t lend themselves to becoming full blog posts:

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