U.S. District Judge Roger Vinson ruled that because the Patient Protection and Affordable Care Act’s individual mandate to purchase health insurance is unconstitutional, the entire law “must be declared void.” Judge Vinson cites this Reason.tv video on page 47 of his decision.
June 14, 2012
The Commerce Clause: how it evolved to empower government control of everything
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June 7, 2012
“What’s next? Prosecutions before military tribunals in the U.S.?”
Judge Andrew Napolitano on the lack of outrage over the use of military drones within the borders of the United States (and, in all probability, Canada):
When drones take pictures of us on our private property and in our homes, and the government uses the photos as it wishes, what will we do about it? Jefferson understood that when the government assaults our privacy and dignity, it is the moral equivalent of violence against us. The folks who hear about this, who either laugh or groan, cannot find it humorous or boring that their every move will be monitored and photographed by the government.
Don’t believe me that this is coming? The photos that the drones will take may be retained and used or even distributed to others in the government so long as the “recipient is reasonably perceived to have a specific, lawful governmental function” in requiring them. And for the first time since the Civil War, the federal government will deploy military personnel inside the United States and publicly acknowledge that it is deploying them “to collect information about U.S. persons.”
It gets worse. If the military personnel see something of interest from a drone, they may apply to a military judge or “military commander” for permission to conduct a physical search of the private property that intrigues them. And, any “incidentally acquired information” can be retained or turned over to local law enforcement. What’s next? Prosecutions before military tribunals in the U.S.?
The quoted phrases above are extracted from a now-public 30-page memorandum issued by President Obama’s Secretary of the Air Force on April 23, 2012. The purpose of the memorandum is stated as “balancing…obtaining intelligence information…and protecting individual rights guaranteed by the U.S. Constitution…” Note the primacy of intelligence gathering over freedom protection, and note the peculiar use of the word “balancing.”
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May 31, 2012
May 6, 2012
The free speech baby with the Citizens United bathwater
George Will on the rather impressive sweep of a new proposal to circumvent the US Supreme Court’s decision in Citizens United:
Now comes Rep. Jim McGovern, D-Mass., with a comparable contribution to another debate, the one concerning government regulation of political speech. Joined by Minority Leader Nancy Pelosi, 26 other Democrats and one Republican, he proposes a constitutional amendment to radically contract First Amendment protections. His purpose is to vastly expand government’s power — i.e., the power of incumbent legislators — to write laws regulating, rationing or even proscribing speech in elections that determine the composition of the legislature and the rest of the government. McGovern’s proposal vindicates those who say most campaign-finance “reforms” are incompatible with the First Amendment.
His “People’s Rights Amendment” declares that the Constitution protects only the rights of “natural persons,” not such persons organized in corporations, and that Congress can impose on corporations whatever restrictions Congress deems “reasonable.” His amendment says it shall not be construed “to limit the people’s rights of freedom of speech, freedom of the press, free exercise of religion, freedom of association and all such other rights of the people, which rights are inalienable.” But the amendment is explicitly designed to deny such rights to natural persons who, exercising their First Amendment right to freedom of association, come together in corporate entities to speak in concert.
McGovern stresses that his amendment decrees that “all corporate entities — for-profit and nonprofit alike” have no constitutional rights. So Congress — and state legislatures and local governments — could regulate to the point of proscription political speech, or any other speech, by the Sierra Club, the National Rifle Association, NARAL Pro-Choice America, or any of the other tens of thousands of nonprofit corporate advocacy groups, including political parties and campaign committees.
Newspapers, magazines, broadcasting entities, online journalism operations — and most religious institutions — are corporate entities. McGovern’s amendment would strip them of all constitutional rights. By doing so, the amendment would empower the government to do much more than proscribe speech. Ilya Somin of George Mason University Law School, writing for the Volokh Conspiracy blog, notes that government, unleashed by McGovern’s amendment, could regulate religious practices at most houses of worship, conduct whatever searches it wants, reasonable or not, of corporate entities, and seize corporate-owned property for whatever it deems public uses — without paying compensation. Yes, McGovern’s scythe would mow down the Fourth and Fifth Amendments, as well as the First.
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May 4, 2012
Gordon O’Connor on the abortion debate
A fascinating moment in the House of Commons, as related by the editors at Maclean’s:
And then Gordon O’Connor rose from his seat on the government side, immediately behind the Prime Minister. O’Connor, a retired brigadier-general, is the chief Conservative whip — the living symbol, in other words, of the ministry’s discipline and unity. His words bit with surprising sharpness. “The House of Commons . . . is not a laboratory,” he admonished Woodworth. “It is not a house of faith, an academic setting or a hospital. It is a legislature, and a legislature deals with law.” The Criminal Code definition of a human being, he said, is not a medical one; it is a purely legal test defining the moment when personal rights receive protection independent from those of the mother. It is quite reasonable, he added, that this should happen at the moment of their physical separation.
O’Connor went further. He denounced the oft-repeated right-wing heckle that abortion is “unregulated” in Canada. It happens to be absent from the criminal law, O’Connor observed, but the provinces regulate their medical professions, and the doctors in turn regulate their own conduct. The provincial governments and the medical colleges have agreed that since abortion cannot be abolished, it ought to be provided safely by, and to those whose private judgment allows for it. “The decision of whether or not to terminate a pregnancy is essentially a moral decision,” said the whip, “and in a free and democratic society, the conscience of the individual must be paramount and take precedence over that of the state.”
O’Connor concluded by reaffirming that the Conservative determination not to reopen Canada’s abortion debate is unwavering. “Society has moved on and I do not believe this proposal should proceed,” he said. “As well, it is in opposition to our government’s position. Accordingly I will not support [this] motion. I will vote against it and I recommend that others oppose it.” [. . .]
What is interesting about O’Connor’s brief speech is that it frames reproductive choice as a matter of small-C conservative principles. He appealed not only to libertarian considerations of individual conscience, but to the idea that regulations should be made at the political level closest to the citizen. Viewed in this light, the Harper rule against legislating on abortion is not just a convenient, cynical means to social peace and election success. It suggests the influence within the government caucus of a Charter-friendly breed of conservative, one whose first instinct is not always to “stand athwart history yelling, stop.”
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May 2, 2012
We must make internet freedom the new “third rail” of politics
L. Neil Smith on the most recent attempt by the US government to get formal control over the internet:
After many previous attempts on the part of different groups for a variety of reasons, the United States House of Representatives has passed a bill that could result in the destruction of freedom on the Internet.
And the erasure of the First Amendment.
I won’t bother you with this week’s misleading acronym for such an atrocity. This specimen is likely to fail in the Senate — because it doesn’t go nearly as far in muzzling each of us as that “parliament of whores” wants it to. The Faux President declares he will veto it, but we’ve heard that before from a criminal imposter who couldn’t move his mouth to speak the truth if his life depended on it — because he couldn’t recognize the truth if it came up to him and pissed in his ear.
What I will tell you is what a lifetime of fending off similar assaults on the Second Amendment — and the unalienable individual, civil, Constitutional, and human right of every man, woman, and responsible child to obtain, own, and carry weapons — has taught me. I know what has to be done now, and what will happen if we don’t do it.
First, don’t be relieved or satisfied if this particular bill doesn’t pass this time. Others will be introduced, one after another, until they wear down our resistance, unless we make every attempt cost them something they can’t afford to lose. We must make our freedom to communicate a political “third rail” and aim for nothing less than total eradication of the very notion of censoring the Internet in any way.
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April 7, 2012
Arizona’s internet-trolls-go-to-jail bill
Interestingly, aside from the occasional mention of the Arizona Cardinals, almost every post I’ve marked with the Arizona tag over the last three years is about stupid laws or bills that infringe constitutional rights. What up, Arizona?
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April 3, 2012
March 26, 2012
Court rules that prostitution is still legal in Canada, strikes down other parts of law
Yes, prostitution is still legal … but some of the worst restrictions hedging it around have been declared unconstitutional:
The Court of Appeal for Ontario has swept aside some of the country’s anti-prostitution laws saying they place unconstitutional restrictions on prostitutes’ ability to protect themselves.
The landmark decision means sex workers will be able to hire drivers, bodyguards and support staff and work indoors in organized brothels or “bawdy houses,” while “exploitation” by pimps remains illegal.
However, openly soliciting customers on the street remains prohibited with the judges deeming that “a reasonable limit on the right to freedom of expression.”
The province’s highest court suspended the immediate implementation of striking the bawdy house law for a year to allow the government an opportunity to amend the Criminal Code.
[. . .]
The appeal stems from the legal oddity that while prostitution was not illegal, many activities surrounding it were, including running a brothel or bawdy house, communicating for the purpose of prostitution and living on money earned by a prostitute.
That disconnect led to a constitutional challenge mounted by three sex trade workers who say the laws prevented them from taking basic safety precautions, such as hiring a bodyguard, working indoors or spending time assessing potential clients in public.
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March 25, 2012
March 1, 2012
A “Confederation theme park”? The jokes write themselves
In the National Post, Lorne Gunter has a bit of fun with the notion of what kind of attractions to put in a theme park celebrating Confederation:
“It’s easy to mock Preston Manning’s idea for a Confederation Theme Park … for starters, it’s somewhat odd to see the pro-small-government, West-wants-in Reform Party founder to be proposing a large government expenditure on a historically slanted amusement park to be located, of all places, in Ottawa.”
So said the Ottawa Citizen’s Mark Sutcliffe — two years ago!
It’s still easy to mock.
Although ultimately endorsing Mr. Manning’s idea (in his own altered form), Sutcliffe called the project “Epcot Centre on the Ottawa River,” a dig at the multinational exposition at Disney World in Orlando, Fla. (The one lasting impression I have of Epcot is that every pavilion was tedious and getting from one to the other required a lot of uncomfortable, fruitless walking. Hey, maybe that would be a good blueprint for a celebration of Confederation after all.)
Sutcliffe had his own satirical ideas of what rides a Confederation Park might offer. There could be “Universal (Health Care) Studios” and the “Sovereignty Movement Roller Coaster” that soared to the same dizzying highs and plunged to the same gut-turning lows as Quebec nationalism has experienced over the past 40 years. Patrons could also “board the Avro Arrow as it sits on the runway and never takes off!”
[. . .]
Imagine the joy on tots faces when Mom and Dad tell them that instead of going to central Florida for Pirates of the Caribbean, It’s a Small World (gad, I still have that cloying song stuck in my head), Space Mountain, Splash Mountain and Typhoon Lagoon, they’ll be heading to Ottawa in February to watch an animatronic debate between robot John A. Macdonald and robot Joseph Howe over the British North America Act’s division of federal and provincial powers at the authentic recreation of Charlottetown’s Founders’ Hall at the PEI display.
Then there’ll be a ride on the Drop of Western Alienation Doom; the Endless Trip to the Sovereignty-Association Dentist (sponsored by “money and the ethnic vote”); the Constitutional Reform Merry-go-round (also dubbed the Canada Round); topped off by the Centre-of-the-Universe Centrifuge where riders strap themselves into cars resembling Canada’s regions and the entire contraption revolves around Toronto.
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February 12, 2012
Daniel Hannan at CPAC 2012
If you want to hear from someone who unmistakably understands the profound impact of America’s founding and believes there is still time for its citizens to take hold of its bureaucratic laden government and return it back to the will of it’s founding, then you must hear this speech from Daniel Hannan. You’ll appreciate America all the more afterwards, I assure you.
H/T to John Ward for the link.
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February 11, 2012
“Courts are often the state’s battering rams, used for breaking down individual rights and freedoms”
George Jonas explains why Canadians were more free before their rights and freedoms were codified in the Charter:
The Canada in which I landed in 1956 may not have had a Charter of Rights and Freedoms, but it had rights and freedoms galore, making it the envy of the world. The Canada in which I make my home today has a Charter, but Canadians who say they had more rights and freedoms 50 years ago aren’t paranoid: They did.
There seems to be an inverse relationship between written instruments of freedom, such as a Charter, and freedom itself. It’s as if freedom were too fragile to be put into words: If you write down your rights and freedoms, you lose them. Minimally, governments will try to take away every freedom you haven’t remembered to include.
“Where does it say you have a right to breathe, sir? Surely it’s not a fundamental right. If it were, it would be in the Charter.”
The 19th century British constitutional scholar, A.V. Dicey, foresaw this. He cautioned against written constitutions for this very reason, among others.
Part of the reason for the inverse relationship between written rights and actual freedom is the court system:
When I came to Canada, a court of law was often a place where individuals went for protection against the state. These days, they’d be taking a chance. Courts are often the state’s battering rams, used for breaking down individual rights and freedoms. Climate trumps the law, obviously, considering the law isn’t the law until a judge says it is. There is global warming, as the world is warming to tyranny. A judicial climate change has turned Canada’s courts from frequent champions of individual liberty to near-permanent defenders of social policy.
A judicial expression used to call policy “an unruly horse.” If you’ve time for only one book to see how events unfold when policy starts driving the law, pick up Christie Blatchford’s account of the native land-claim standoff at Caledonia, Ont., called Helpless. It shows what happens when the justice system becomes a branch of social engineering.
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January 31, 2012
Gary Johnson calls for the immediate repeal of the Patriot Act
Posted at the Gary Johnson campaign website:
Speaking Sunday night to a national ACLU conference, former New Mexico Governor Gary Johnson called for repealing the Patriot Act in its entirety. The two-term governor and presidential candidate’s remarks were delivered in Orlando, FL, at the ACLU’s annual National Staff Conference.
Johnson said, “Ten years ago, we learned that the fastest way to pass a bad law is to call it the ‘Patriot Act’ and force Congress to vote on it in the immediate wake of a horrible attack on the United States. The irony is that there is really very little about the Patriot Act that is patriotic. Instead, it has turned out to be yet another tool the government is using to erode privacy, individual freedom and the Constitution itself.
“Benjamin Franklin had it right. ‘Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety’.
“Absolutely, protecting the American people from those who would do us harm is the federal government’s most basic duty. Everyone gets that. But when harm is done, as on 9-11, it is the nature of government to ask for more power and more authority in order to protect us. That’s how we get laws like the Patriot Act.
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January 28, 2012
Conrad Black on Pierre Trudeau and his political career
Writing in the National Post, Conrad Black discusses Pierre Trudeau’s time in office:
Nor is there truth to the theory that Trudeau possessed any original political ideas. He was a run-of-the-mill 1960s social democrat who wanted big government, the nanny-, know-it-all-state, high taxes, and the confiscation of income from those who had earned it for redistribution to those who had not in exchange for their votes (far beyond what could be justified by the acquisition of votes for federalism in Quebec, where the money transfer was also largely from the non-French to the French).
It was hard to square Trudeau’s professed enthusiasm for civil rights with his friendship with Fidel Castro and other dictators who ruined their countries, such as Julius Nyerere of Tanzania, and his cold-shouldering of Soviet dissidents and other international civil rights advocates, and even the Canadian victims of the Korean airliner the Russians shot down. This was of a piece with his fawning deference to the Soviet leadership and his antagonism to Ronald Reagan, Margaret Thatcher and even Richard Nixon, who all regarded him as little better than a communist fellow traveller (and told me so).
His campaign to reorient the Canadian economy away from exports to the United States was authoritarian rather than based on any fiscal incentivization of competition, and was a fiasco. His pursuit of arms control was chimerical; he disarmed Canada, did nothing to reduce the country’s military dependence on Washington, and produced a nonsensical plan for more conferences to agree on the unverifiable “suffocation” of defence spending.
[. . .]
His elevation to the headship of the party and government continued the grand Liberal tradition of choosing men lately drawn from outside politics (King, St. Laurent, Pearson). He took it whimsically, and much of his record was just idle dabbling, posturing, and the supreme confidence trick of saving Canada with a Charter of Rights that is revocable by each province (and has unleashed the bench on Canadian life like a swarm of hyper-active social tinkerers); and by imposing bilingual breakfast cereal boxes and television programming even in unilingual parts of the country.
It was clever enough that, as the English say, if you put a tail on it, you could call it a weasel: the rights of man and not governments, our (French-Canadian) house is all Canada, and deluges of Anglo-money in Quebec in the name of social justice, gracieusete du Canada. But it was a ruse, made more farcical by the revelation that Quebec’s supreme separatist strategist, Claude Morin, was a spy for the RCMP.
The Quebec nationalists took the bait, as well as the federal transfer payments, and today Quebec is a bovine clerisy of civil servants and consultants on life support from the rich English provinces, and separation is just a romantic delusion. I think that, at heart, Trudeau was a worldly Gallican Catholic cynic who sincerely despised separatism, was bemused to find himself a national saviour, and played the role with courage, brio and success.
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