Quotulatiousness

December 27, 2011

Finding the motivations for those scary “libertarian” folk

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

Jacob Sullum on a recent New York Times article that tried to define the typical Ron Paul supporter (and whether Ron Paul is responsible for their views):

Why does the Times think it is relevant to note that libertarians who focus on economic freedom are “backed to some degree by wealthy interests”? Isn’t that true of pretty much every political movement and organization, including Marxism and the Democratic Party? The implication seems to be that defenders of economic freedom are carrying water for special interests, who are in it only for the money.

Weirdly, the Times locates the scary militants in the part of the libertarian movement that focuses on “personal liberty,” which includes not only the rights explicitly protected by the Constitution (such as freedom of speech, freedom of religion, due process, and freedom from unreasonable searches and seizures) but also such unspecified rights as freedom to engage in consensual sexual relationships, to marry people of either sex, to bet on games of chance, and to ingest psychoactive substances (or even raw milk). So according to the Times, the right-wing extremists attracted to Paul are a tolerant, cosmopolitan group that nevertheless harbors odious views about blacks, Jews, and gay people. Also note that the Times, perhaps unintentionally, says the Constitution “at its extreme has helped fuel militant antigovernment sentiment.” All the more reason to be wary of defending this radical document.

In short, the libertarian movement consists of two parts: 1) self-interested tycoons seeking low taxes and minimal regulation in the name of economic freedom and 2) crazy right-wingers who take the Constitution too seriously and worry about personal freedom. I always thought the distinguishing feature of libertarianism was defending both economic and personal liberty, based on the insight that they are two manifestations of the same thing. But what do I know? I did not realize that the rule of law was a concept invented by F.A. Hayek until the Times explained it to me.

December 26, 2011

Montana voters angry over “indefinite detention” vote, seek to recall their senators

Filed under: Government, Liberty, USA — Tags: , , , , , — Nicholas @ 11:42

Jonathan Turley has the details:

We have been discussing the disconnect between citizens who have repeatedly opposed continued rollbacks of civil liberties and the Democratic and Republican leadership pushing for such rollbacks, including the recent provision allowing indefinite detention of citizens under the National Defense Authorization Act of 2011 (NDAA). Now Montana citizens have decided to try another approach given the non-responsive attitude of our leaders — they are moving to remove their two Senators from office over their votes in favor of indefinite detention powers.

Montana is one of nine states with recall laws. The other states are Arizona, Colorado, Louisiana, Michigan, Nevada, North Dakota, Oregon, and Wisconsin. Eighteen states have recall laws, but most do not apply to federal officers.

H/T to Radley Balko for the link.

December 20, 2011

Reason.TV: Grandma got indefinitely detained (A very TSA Christmas)

Filed under: Government, Humour, Liberty, USA — Tags: , , , — Nicholas @ 14:18

November 22, 2011

QotD: Our Charter of “rights” and “freedoms”

Filed under: Cancon, Government, Law, Liberty, Quotations — Tags: , , , , — Nicholas @ 13:14

On the evening of January 12, 1981, justice minister Jean Chrétien sat in front of the special parliamentary committee on the Constitution. “I am proposing that Section 1 read as follows: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” he said.

“This will ensure that any limit on a right must be not only reasonable and prescribed by law, but must also be shown to be demonstrably justified.” Translation: “This will ensure that even though we pretend the public has rights that are fundamental to any free and democratic society, we can take them away at will, so long as we can convince a judge that such measures are justified.”

The language used by Mr. Chrétien would eventually become Section 1 of the Charter, which gives government the constitutional cover to infringe the supposedly “fundamental freedoms” that follow it. In order to figure out when such infringements are in fact justified, the Supreme Court came up with the Oakes test.

Using this two-step process, laws that violate our Charter rights must have a “pressing and substantial” objective, and the means of effecting the limit must be reasonable and proportional. The infringement has to be connected to the law’s objective; it has to be as minimal as possible; and it must balance the consequences of such a limitation, with the objective that is being sought.

Jesse Kline, “Freedom shouldn’t come with caveats, but it does”, National Post, 2011-11-22

November 9, 2011

Federalism does not mean “do what the Feds say”

Filed under: Government, Law, USA — Tags: , , — Nicholas @ 12:41

The US government is actively undermining California law when it comes to medical marijuana:

When you get a new car, you start noticing the same model all over the highway. It’s the same way when you figure out what California’s marijuana dispensaries look like — green crosses and signage about “medicine” and “420” start popping up all over the City of Angels: On your commute to work, in your neighborhood, around the corner from your favorite restaurant. To put it bluntly, it’s not hard to find weed in California.

But that all might be about to change. The state’s four U.S. Attorneys are gamely trying to alter the broadly popular status quo with arrests and threats of prosecution and property seizure for landlords who rent to dispensaries, a campaign announced in a rare joint press conference in October. Medical marijuana advocates call it an “intense crackdown” and have launched a lawsuit claiming the federal attorneys’ tactics violate California’s tenth amendment rights (Rick Perry, call your office).

State and local officials, meanwhile, are divided in their reactions to the influx of dispensaries in California, but many say that overly eager federal intervention is undermining the state-regulated medical marijuana system that they have taken pains to set up. In other words, as long as the federal crackdown contained itself to targeting egregious offenders of state law, it was hard for anyone to object; many applauded. But by raising the prospect of a federal assault on city mayors and town councils, Obama’s Department of Justice could be making more enemies than friends in California.

October 27, 2011

Ten years of Patriot Act intrusions into civil liberties

Filed under: Government, Law, Liberty, USA — Tags: , , , , — Nicholas @ 12:08

The Electronic Frontiers Foundation marks the tenth anniversary of the awful Patriot Act:

Ten years ago today, in the name of protecting national security and guarding against terrorism, President George W. Bush signed into law some of the most sweeping changes to search and surveillance law in modern American history. Unfortunately known as the USA PATRIOT Act, many of its provisions incorporate decidedly unpatriotic principles barred by the First and Fourth Amendments of the Constitution. Provisions of the PATRIOT Act have been used to target innocent Americans and are widely used in investigations that have nothing to do with national security.

Much of the PATRIOT Act was a wish list of changes to surveillance law that Congress had previously rejected because of civil liberties concerns. When reintroduced as the PATRIOT Act after September 11th, those changes — and others — passed with only limited congressional debate.

Just what sort of powers does the PATRIOT Act grant law enforcement when it comes to surveillance and sidestepping due process? Here are three provisions of the PATRIOT Act that were sold to the American public as necessary anti-terrorism measures, but are now used in ways that infringe on ordinary citizens’ rights

October 13, 2011

The 14th Amendment, a history

Filed under: Government, History, Law, Liberty — Tags: , , , — Nicholas @ 09:54

Canadian liberty: “The entitlement to consume milk, raw or otherwise, is not a Charter-protected right”

Filed under: Cancon, Law, Liberty — Tags: , , — Nicholas @ 09:31

Karen Selick reports on a recent court decision that shows just how far Canadians’ liberties are constrained by the judiciary:

Dairy farmer Michael Schmidt has been campaigning to legalize the sale of raw (unpasteurized) milk for 17 years. In 2010, he was acquitted on 19 charges by a justice of the peace who ruled that “cow sharing” was a legitimate way to provide raw milk to informed consumers who don’t live on farms.

On Sept. 28, a judge reversed portions of that decision and found Schmidt guilty on 13 charges.

But the judge ventured beyond the subject of raw milk, saying: “The entitlement to consume milk, raw or otherwise, is not a Charter-protected right.”

The implications are far reaching. If the judge is right about this, future courts could similarly declare that you have no right to eat meat, poultry, seafood, fruit, vegetables or grains, even if government approved. In short, you may have no right to eat anything at all.

[. . .]

In one very technical sense, the courts’ statements are accurate: There is no specific reference to milk, or indeed, any food in the Canadian Charter of Rights and Freedoms or the U.S. Bill of Rights. But both documents are equally silent about any right to get out of bed in the morning, to stretch, to brush your teeth, to use the bathroom, to put on clothes. If constitutions had to enumerate every single thing that North Americans normally consider themselves free to do, they would be a zillion pages long.

Instead, the people who drafted these constitutional documents used a simple shortcut to eliminate the zillion pages. They said that people had the right to liberty.

The Charter was, after all, designed to rein in government, not to rein in individuals. It did not purport to grant us our rights or freedoms; rather, it recognized that those freedoms already existed. It guarantees in its very first section that the state may not infringe on our freedoms except by “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

October 4, 2011

European Union’s biggest fear isn’t the financial crisis: it’s the voters

Filed under: Bureaucracy, Economics, Europe, Government — Tags: , — Nicholas @ 09:24

Mick Hume points out that the EU is undemocratic, and well on the way to being even less so if the Eurocrats get their way:

When even the Europe editor of the Europhile BBC suggests that ‘it is quite possible that an early casualty in the Eurozone crisis will be democracy’, it is surely time to ask some serious questions about the way that the handling of Europe’s financial and economic problems is intensifying the crisis of democratic politics.

If there is one thing that worries the Euro-elites even more than their out-of-control finances these days, it is their uncontrollable electorates. Governments, EU bureaucrats and Euro-bankers do not trust the ignorant European masses, many of whom have stubbornly refused to accept (on the rare occasions they have been asked) that the authorities know what’s best for them. We have followed on spiked in recent years the elites’ sustained efforts to impose a new centralised constitution on the EU and then, when those nations offered a vote rejected their imperious plans, to sneak it in through the backdoor anyway. They will not take ‘no’ for an answer, no matter how often and how loudly we tell them.

[. . .]

Every discussion of the possible outcome of the crisis only seems to suggest two options: either a ‘disastrous’ break-up of the Eurozone or its ‘restructuring’ – that is, a mega-bailout coupled with further moves towards fiscal as well as economic union. The first of these is not really considered an option at all by the Euro-elites. It would be an act of political suicide on their part. So the second option is their only one. But they also fear what the reaction of their peoples will be to that, especially in Germany and France.

Their answer has been effectively to suspend democratic debate of these matters and keep the public out of the loop, conducting the real deals in smoke-free rooms and secret correspondence behind a curtain of media obfuscation.

[. . .]

Democracy is a meaningless charade without choices and competing visions for the future of society. And the bankrupting of democracy is surely too high a price to pay for any financial package. There is no ready-made alternative economic solution to hand. But the very least we should demand is that the true depth of the crisis be made public, and that every aspect of the counter-crisis measures must be openly debated. The first step in that direction should be to challenge the way that European democracy is being bankrupted and asset-stripped in the name of saving the continent. Fighting for the future of Europe is not the same thing as the survival of the Euro-elites.

As things stand, we in Europe look set to end up with the worst of both worlds. We are supposed to swallow the abrogation of democracy and imposition of the dictatorship of experts and bureaucrats in the name of economic necessity. And then their elitist schemes won’t work anyway either to bring about an integrated Europe or to revitalise the Euro economy.

New York wants to rework the First Amendment “not as a right, but as a privilege”

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 08:53

Some New York senators think you’ve got too much freedom of speech, and they think the world would be a much nicer place if you didn’t have as much:

. . . some state Senators in NY are trying a new line of attack: going directly after the First Amendment and suggesting that current interpretations are way too broad, and it’s not really meant to protect any sort of free speech right. In fact, it sounds as though they’re trying to redefine the right to free speech into a privilege that can be taken away. Seriously:

     Proponents of a more refined First Amendment argue that this freedom should be treated not as a right but as a privilege — a special entitlement granted by the state on a conditional basis that can be revoked if it is ever abused or maltreated.

Yes, that totally flips the First Amendment on its head. It is not a “more refined First Amendment.” It’s the anti-First Amendment. It suggests, by its very nature, that the government possesses the right to grant the “privilege” of free speech to citizens… and thus the right to revoke it. That’s an astonishingly dangerous path, and one that should not be taken seriously. Of course, given their right to speak freely, state senators Jeff Klein, Diane Savino, David Carlucci and David Valesky have every right to put forth that argument — but similarly, it allows others to point out their rather scary beliefs.

August 1, 2011

QotD: Redefining guilt

Filed under: Law, Liberty, Media, Quotations — Tags: , , , — Nicholas @ 11:33

I’m aware that Obama, Napolitano, the Southern Poverty Law Center, and a host of organized collectivists have been working hard for a long time to defame and smear everything and everybody that once made this nation great. They want as many of its people as possible to believe that knowing the Constitution, or calling upon its provisions at need, is as good as a criminal act. I have been concerned that in television dramas from CSI, through NCIS, to Castle, whenever the accused demands to see a lawyer, it’s considered a confession of guilt.

L. Neil Smith, “Madison’s Ghost”, Libertarian Enterprise, 2011-07-31

July 12, 2011

Another end-run around privacy expectations

Filed under: Law, Liberty, Technology, USA — Tags: , , — Nicholas @ 13:44

Julian Sanchez thinks the government has stopped caring whether you are innocent or guilty online:

Thanks to an unwise Supreme Court decision dating from the 70s, information about your private activites loses its Fourth Amendment protection when its held by a “third party” corporation, like a phone company or Internet provider. As many legal scholars have noted, however, this allows constitutional privacy safeguards to be circumvented via a clever two-step process. Step one: The government forces private businesses (ideally the kind a citizen in the modern world can’t easily avoid dealing with) to collect and store certain kinds of information about everyone — anyone might turn out to be a criminal, after all. No Fourth Amendment issue there, because it’s not the government gathering it! Step two: The government gets a subpoena or court order to obtain that information, quite possibly without your knowledge. No Fourth Amendment problem here either, according to the Supreme Court, because now they’re just getting a corporation’s business records, not your private records. It makes no difference that they’re only keeping those records because the government said they had to.

Current law already allows law enforcement to require retention of data about specific suspects — including e-mails and other information as well as IP addresses — to ensure that evidence isn’t erased while they build up enough evidence for a court order. But why spearfish when you can lower a dragnet? Blanket data requirements ensure easy access to a year-and-a-half snapshot of the online activities of millions of Americans — every one a potential criminal.

July 11, 2011

Can the government force you to provide your password?

Filed under: Government, Law, Liberty, Technology, USA — Tags: , , , , — Nicholas @ 09:37

Declan McCullagh discusses a potentially precedent-setting case in Colorado that may determine whether the 5th amendment applies to your personal passwords:

The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.

The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.

Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution’s Fifth Amendment, which broadly protects Americans’ right to remain silent.

I’d hope that the protections against self-incrimination would apply in this case, but government power has been expended so far in the last ten years that it would not surprise me if the courts gut this right in their deference to the executive (just like every other time, it seems).

July 8, 2011

The Canadian right to free speech: not invented in 1982

Filed under: Cancon, History, Law, Liberty — Tags: , , , — Nicholas @ 10:03

Mark Steyn responds to former blogger Jason Cherniak about the free speech rights of Canadians:

You claim that the legal right to free speech “did not exist as a legal right before 1982”. This is bollocks de facto and de jure. When you say with all the blithe insouciance of a Dalhousie Law School alumnus that any right to free speech was “only respected by convention”, my response is what do you think the entire Canadian legal inheritance is, genius? It’s “convention”. That’s what the definition of Common Law is: a body of precedent, understandings of inherent authority — ie, “convention”. When Julian Porter, QC filed a motion objecting to the Canadian “Human Rights” Tribunal’s “secret trial”, he cited CBC vs New Brunswick, Ambard vs Attorney-General of Trinidad and Tobago – in other words, the accumulation of precedent, or, in your words, a respect for convention.

England, the mother of Common Law, has no written consititution, and thus no “constitutional rights” at all, but only “conventions”. Those “conventions” were the underpinning of the 1867 British North America Act and, more broadly, the third of a millennium of Canadian legal history before the Charter of Worthless Crap. As Blackstone put it, for lands “planted by English subjects”, “all the English laws then in being, which are the birthright of every subject, are immediately there in force”. In other words, long before 1982, free speech was a Canadian’s “birthright” — through convention. It’s all convention. In the English legal tradition, take away convention, and what’s left?

That’s why more countries have lived in liberty longer under Common Law than any other legal inheritance. Because what you dismiss as mere “convention” is, in fact, an understanding that “law” and laws are not the same thing. It’s not about the government writing down on a piece of paper everything that it will permit you, Jason the Barrister, to do. “Rights” are not those things granted by the sovereign and enumerated in statute, but the precise opposite: They’re restraints upon the sovereign. They’re not about what the state allows you to do, but about what the state is not allowed to do to you. The English legal tradition is imperfect (as all systems are) but it has been a better protector of this principle than any other. What part of that don’t you understand?

All of it, apparently. Because along comes that puffed up poseur Trudeau with all his modish contempt for the Canadian inheritance and he decides that, like you, he’s not big on convention and precedent and he’d rather have everything written down, all nice and “codified”. So now we have your 1982 Charter that, for the first time since Magna Carta, gives citizens what you call a “legal right” to free speech. And whaddaya know? Ever since we got a Trudeaupian “legal right” to it, there’s been less and less free speech than back in the bad old days when (according to you) we had no “legal right” to it at all. Ask yourself this, “Barrister and Solicitor”: Had Guy Earle delivered his lesbophobic putdowns at a Canadian comedy club in 1981, would he have had more or less “legal right” to free speech than he enjoys today?

I said in my post that, for you and yours, Trudeau is Year Zero. Your response confirms it. That a Canadian lawyer is willing to argue that a long, established, settled legal inheritance means nothing unless Father Pierre writes it down in his Napeoleonic Complex Code is bleak confirmation of how thoroughly he vacuumed Canada’s past — and, in doing so, perverted the very idea of what “rights” are. If yours is a typical Canadian lawyer’s view of the law, it certainly explains a lot. God help us all.

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.

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