The good and the bad about Kelo

First, the good (and funny): Freestar Media has initiated a redevelopment process in the town of Weare, NH to build a new hotel - on the lot currently occupied by Justice David Souter's house. The press release details the same increased-tax-revenue arguments used by New London, CT against Kelo, et al. Efforts are also underway in at least a few states (CA state senator Tom McClintock is hard at work) and localities to more narrowly define "public use" as it pertains to eminent domain and better protect citizens' private property. This could be just the thing we needed, just like the high-profile Chicago suburb handgun ban that went into effect in 1981 and galvanized thirty-some states to immediately pass legislation prohibiting localities from such bans.

Now, the bad: Radley Balko of TheAgitator.com details some of the eminent domain actions that were waiting in the wings for this decision and have been cranked up within a day or two of the decision coming down. Nice.

I'll end on another good: Also via TheAgitator (same post actually), MSNBC is hosting a poll that as of 2:00pm PST today has 112,323 responses, 98% of which say the Kelo decision was a bad one. 98%!!! I've never seen a public opinion poll that high - this lends credence to the idea that all sides of the political spectrum are incensed by this one. And takes away any credence that the SCOTUS somehow "has its finger on the pulse of public opinion". As if that should mean anything to them anyway, being supposedly bound by the Constitution itself.

OC Register's Greenhut on Kelo

From Orange Punch, their blog, Steven Greenhut updates a classic:

POLITICAL PHILOSOPHIES
SOCIALISM: You have two cows. You keep one, but must give the other to your neighbor.
COMMUNISM: You have two cows. The government takes both and provides you with milk.
FASCISM: You have two cows. The government takes both and sells you the milk.
BUREAUCRACY: You have two cows. The government takes them, shoots one, milks the other, pays you for the milk, and then pours it down the drain.
DICTATORSHIP: You have two cows. The government takes both, and then shoots you.
CAPITALISM: You have two cows. You sell one and buy a bull.
DEMOCRACY: You have two cows. The government taxes you to the point that you must sell them both to support a man in a foreign country who has only one cow, which was a gift to him from your own government.
CORPORATION: You have two cows. You lay one off, force the other to produce the milk of four cows, then act surprised when it drops dead.
CALIFORNIA: You have two cows. The state tells you how to milk your cows, when to milk your cows and the most that you can charge for the milk. You go broke and sell the cows. The state calls you greedy and blames you for the current milk shortage.
POST-KELO CAPITALISM: You have two cows. Costco has 30 million cows. The government takes your two cows and gives them to Costco.

When "just give them what they want" doesn't work

Ask most any cop or politician what to do when mugged or otherwise attacked, and you'll most likely hear some derivative of "Just do what they say, give them what they want and you won't get hurt." Tell that to the Boston area man who was robbed then shot:

Approached by a masked gunman who demanded his gold chain early yesterday on River Street, a 27-year-old Hyde Park man handed over the jewelry only to get shot in the right foot and thigh.

While the victim was being treated at Brigham and Women's Hospital, police combed the crime scene and recovered two cell phones, a spent shell casing and an envelope. Here's hoping they catch up to the trigger-happy bandit as soon as possible.

He handed over exactly what his attacker wanted and still got shot for his trouble. Notice the stellar job the police did after the fact. Lest anyone think otherwise, the only person responsible for your safety and the only person who can truly come to your defense in a timely fashion is you. The cops are primarily report-takers and investigators, not crime-preventers.

More on Kelo v. New London

Call me lazy, but I'm just much too disillusioned with the decision to really talk about it much. I'm still in the process of reading all the commentary that's been published already (starting with the majority and dissenting opinions of course), but here's a bunch to get you started:

SCOTUSblog
Volokh.com
The Agitator.com
Claremont's Local Liberty
The OC Register's editorial on the subject
And Steven Greenhut's take
Tech Central Station

It's interesting that this decision is being blasted by both the right and the left: the right says it's an attack on property rights and the left says it's a handout to Big Business. And they're both right. Am I a broken record yet by pointing out the huge mass of votes that seem to be available to a principled libertarian occuping the political middle (if there can really be a "middle" anymore - it's more like a grid with quadrants, as shown here)?

LttE - Give public employees the choice they lack

Submitted to the OC Register on 6/24/2005:

CSEA president J.J. Jelincic attempts to mislead the public with his nonsensical attacks on the Paycheck Protection initiative. First, he wishes that companies require permission from shareholders before contributing to a political campaign. What he misses is that shareholders’ support of companies is voluntary, and they can voice their political opinions by withdrawing their support. Members of public employee unions, from whom dues are compulsorily taken, lack that choice, as do the taxpayers whose taxes fund those dues.

Second, by charging that this initiative will “stifle the collective voice of public employees”, he unsurprisingly clouds the distinction between union bosses who control the purse strings and the regular employees who currently have no choice in whether to pay dues or where those dues go. Did he miss Thursday’s letter from state worker Bill Glasgow who would rather not belong to the union? Clearly, and contrary to Mr. Jelincic’s dishonest assertions, the Paycheck Protection initiative would not stifle Mr. Glasgow’s voice, but give him the voice he currently lacks.

SCOTUS upholds for-profit property seizure in Kelo v. New London

This just in: the SCOTUS has upheld the right of local governments to seize private property, even centuries-old ancestral homes, and turn it over to private developers, using the justification that the city would make more tax revenue from sales taxes and the jobs created by whatever the H-E-double-hockey-sticks the developer would build there than they make in property taxes from the homeowners. Sheesh. So much for the much-vaunted principle inherent in the Declaration of Independence and the Constitution that the ownership and protection of private property is essential for personal liberty and freedom.

The linked blog post is a great starting point, but stay tuned for more analysis as the usual pundits (Volokh.com, Claremont Institute, etc.) get spooled up today.

Comments to my Congressman

Sent on 6/21/2005 to Ed Royce:

I read about the heated debate you spearheaded in the Financial Services Committee yesterday regarding the Frank provision mandating portions of Fannie Mae/Freddie Mac profits go to an "affordable housing fund". Just wanted to extend my thanks for standing up against such nakedly socialistic wealth transfers. Even though the Committee passed the Oxley program with the provision intact, hope remains that it won't make it out of the House with it attached.

That said, I was disappointed that you voted the party line on last week's vote regarding the Patriot Act provision granting more power to federal law enforcement to snoop on us common folk. Provisions of the Patriot Act (like RICO before it) have already been utilized against everyday Americans with absolutely no connection to terrorism, without prosecutors even attempting to show any connection at all! Not only that, but the DoJ has consistently inflated its numbers in a failed attempt to show that it's doing any good. The Patriot Act taken as a whole is way too much power for the DoJ to have - as the lack of time for you to even read the whole thing before voting on it should have shown. Each section needs to be rigorously reviewed, debated, and either renewed or sunset - our citizens' freedoms demand a stop to blind, no-debate, "because the President said he needs it" approval votes.

Told ya: firearms the great equalizer

Via Alphecca's Here's How It's Done series comes a story that happened last week but wasn't reported until Wednesday which I came close to clairvoyantly quoting in this post from Tuesday. My words:

A firearm is the great equalizer, and it can make even an untrained but desperate woman or a 70-year-old wheelchair-bound man into a match for any criminal, sometimes even more than one at once.

And the details from the Maine story:

A man in his 70s managed to fire his .22-caliber rifle at a person who broke into his home last week in what may have been a home invasion by people looking for drugs.
...
During the attack, Tripp said, the intruders blindfolded the woman and ordered her to remain in the living room. The man's feet were bound to the footboard of his bed and a pillowcase was placed over his face.

The man managed to get free while the intruders were elsewhere in the house. Tripp said the man fetched a .22-caliber rifle he keeps by the side of his bed and when an intruder returned to the bedroom, the man fired a shot at him.

"A shot was fired into the wall," Tripp said. "They fled the residence."

Didja catch that? A 70+-year-old man tied to his bed with an itty-bitty .22 rifle in his hand made multiple attackers flee his home by getting one shot off. And just think, the gun-grabbers would like nothing better than to take that unmatched ability to defend oneself away from people just like him, leaving them defenseless against the predatory criminals who would brazenly invade their homes, fearless of the law and unconcerned with what damage and injury they cause.

And now the bad news: Raich claims its first victim

I know I said I was done talking about Raich, but this just has to be said. Via Of Arms and the Law:A Ninth Circuit court decision, U.S. v. Stewart, upheld the conviction of a man for possessing a firearm while being a convicted felon, but specifically ruled that the activity of building his own firearm for personal use only (even though it was a fully-automatic machine gun) was out of reach of regulation by Congress via the Commerce Clause. The Supreme Court has just vacated that decision and remanded it back to the Ninth Circuit for reconsideration, and yes, the direction actually quotes Raich:

The judgment is vacated and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Gonzales v. Raich

One almost gets the impression the Supremes were waiting on reviewing Stewart until after they ruled on Raich, just so they could vacate Stewart just by quoting themselves.

If anyone still thinks the Raich decision was all about marijuana, they'd better wake up.

The good news: House reconsiders, kills Patriot Act provision

Excellent news indeed. Sanders, the Independent rep from Vermont who authored the amendment, had this to say:

"I think that today's vote will tell the Senate and the House that, wait a second, the American people want some thoughtful re-examination of the USA Patriot Act."

Absolutely. The legislature is the place for reasoned, thoughtful analysis and debate - and that's where the nation needs to hear how Patriot Act provisions are being abused already, by going after people with no connection to terrorism. I applaud the 38 Republicans who listened to their constituents and weren't swayed by the Executive branch's wailings.

"The Patriot Act is an important piece of legislation," Bush told Republican lawmakers at a fundraising dinner. "It gives those folks who are on the front line of fighting terror the same tools - many of the same tools that are used to track down drug kingpins or tax cheats."

Once again, in this situation it should be just as feasible to suggest that the government has too much power rather than too little, and that a viable solution to the "problem" (if it even exists as it's being alleged by the Executive) could just as well be a reduction of government power rather than the knee-jerk increase that seems to come to politicians' minds first. I'm still trying to find a roll call vote on it to see how my Rep. voted - I suspect he voted with most of the other Republicans given his record and committee membership, but if he didn't I'll send him a nice letter of appreciation.

UPDATE: Yep, he voted the party line. Bummer.

Congress votes against U.N. tax

A bit of good news, just in via The Liberty Committee: Ron Paul's amendment (H.R. 1017) to disallow any levying by the United Nations of a direct tax on American citizens has been passed.

Up next: Another Ron Paul amendment (H.R. 1146) will be up for a vote today or tomorrow to remove the U.S. completely from the United Nations. Let's hope our Reps keep up their courage and vote in favor!

LttE - Our cheating schools

Submitted to the OC Register on 6/14/2005:

Erica Perez’s article was very enlightening. Every parent of every student in that district should be questioning the ethics of the administrators in charge of the teachers who are teaching their kids.

This article, along with one by the Reason Public Policy Institute’s Lisa Snell, really spotlights the negative effects of the No Child Left Behind Act. Instead of improvement in education, what we’re seeing is less education and numbers-fudging in order to meet arbitrary goals. I’ll bet very few people reading this know that all it takes for a California school to report “adequate yearly progress” in reading is for 13% of its students to score at the 51st percentile on a standardized test.

13% may be good enough for the administrators who are only concerned with keeping the federal funding gravy train rolling in, but it shouldn’t be good enough for parents who want educated children.

California court rules for enforcement of internet sales tax

Here we go. It's started. While the court's argument that the online activity of Borders.com (owned by Amazon) and the bricks-and-mortar activity of Borders are too closely entwined to distinguish (allowing customers to return online merchandise to physical stores the most glaring example) has some merit, I'm afraid that this is just the first salvo in this battle, and the wrong team scored a hit. What's interesting to me is the verbiage being used in support of the ruling:

But independent booksellers and other "bricks-and-mortar" retailers have been cheering, saying the ruling should remove their Internet competition's unfair advantage.

Got that? Figuring out a better way to run a business that saves customers money is an "unfair advantage". It's not unfair people, it's just competition, and it's a good thing!

"There are a lot of online retailers who are watching this intently," said Tom Dressler, a spokesman for the California Attorney General's office. "Clearly online retailing is growing so one would think the potential revenue problem is fairly substantial."

Got that? There's a "potential revenue problem" (bureaucratese for "we simply must spend all the billions we're spending"), so we simply must find a way to fleece more funds from the public.

Michael Mazerov, senior fellow at the liberal Center on Budget and Policy Priorities in Washington D.C., said the case "suggests that having somebody in the state conducting activities that facilitate your out-of-state sales creates your obligation to charge sales tax."

Got that? Just having somebody "facilitating" sales creates a tax obligation. How long do you think before UPS/Fedex (or even customers themselves) are considered "facilitators", making every single online sale that gets shipped anywhere subject to sales tax?

In the news: handgun saves three lives

From Alphecca comes a great story that shows how wrong those people are who believe that a gun is only good for killing somebody. It's well documented that often all it takes is brandishing a firearm to convince a would-be murderer that it just isn't worth it - sometimes it takes a warning shot.

That was the night a person still unknown to her unexpectedly walked into her home while her two children were asleep in the next room.

It was about 10:40 p.m., and Jennifer was at home with her two sons while her husband was in San Antonio attending the Spurs basketball game, when she heard the chime on her front door sound.

“We have an alarm system, and the doors chime every time they are opened,” Jennifer said.

She had not set the alarm because she was waiting for her husband, Gary, to come home.

“I could hear footsteps,” Jennifer said.

She called her husband’s name, and when no one answered, she panicked, ran to the master bedroom, where she had left her sons, and locked the door behind her.

Seconds later, she heard the sound of someone on the other side twisting the doorknob trying to get inside the bedroom.

Jennifer and her children would spend almost the next two hours in fear, hoping whoever was on the other side would take what they wanted and leave. She told the intruder there was an alarm and the police were on their way, but the intruder reportedly stayed in the house turning on all the lights, the television and periodically twisting the knob.

No, contrary to what the so-called "experts" would tell you (that just giving in and doing whatever a criminal tells you is the safest path), oftentimes these people want more than just your property. The story continues:

Jennifer did not have a phone in the master bedroom with her and was unable to call the police herself.

Shortly after midnight, Gary, who was on his way home, called to speak to Jennifer.

He was not concerned when she did not pick up the phone.

“I didn’t think anything of it,” Gary said. “I figured she was asleep.”

Jennifer realized it was her husband but yelled through the door the alarm company was alerting the police.

All the while, Jennifer was trying to comfort her oldest son, who was awake through the ordeal.

“We talked and we prayed a lot,” Jennifer said.

To calm her children, Jennifer took a .357 Magnum from the closet and told her children she would protect them.

“I told them this gun would either hurt this man or he will run away,” she said. “I told them we were going to try and wait for daddy because I didn’t want to shoot this gun. I told them I was between them and the door and I would protect them.”

Then, she heard what sounded like the door lock being picked.

Jennifer pointed the gun at the door and fired once.

The bullet hit the top of the door and entered the ceiling.

The intruder stopped picking the lock, and Jennifer heard the sound of footsteps and the door chime as the intruder left the home.

She and her boys were safe.

Let me quote that last line again, because that's the end result that we're all working towards:

She and her boys were safe.

A firearm is the great equalizer, and it can make even an untrained but desperate woman or a 70-year-old wheelchair-bound man into a match for any criminal, sometimes even more than one at once.

A must-read for anyone with school-age kids

Lisa Snell, director of the Reason Public Policy Institute's Education program has a great article that details, citing extensive research and hard numbers, how schools and state DoEs have become proficient in "gaming the system" in order to defraud taxpayers (and worse, the very parents of their students) and remain untouchable in their actions. If I needed any more motivation to a) put my own kids in private school or b) fight with all my might for school choice, this, a very pertinent section for me in particular, would be all it would take:

My local newspaper lists area schools that have met No Child Left Behind goals and are compliant with federal law. The article will tell you that every subgroup, from low-income children and Hispanics to special education children, is proficient in reading and in math. It will not say that in California, in order for yearly progress for each subgroup to be considered adequate, only 13 percent of the children in each group must be proficient. Imagine the difference—and how much more helpful it would be to a concerned parent trying to decide what is best for her child—if the newspaper article said, “Here is a list of schools where at least 13 percent of children in each group are proficient.”

The newspaper should also explain what it really means to be “proficient” in reading. To be considered proficient for the third grade in California, you must score at the 51st percentile in reading and the 63rd percentile in math on California’s standardized STAR test. In other words, all it really means when my school is listed as meeting “adequate yearly progress” under No Child Left Behind is that at least 13 percent of third-graders in every subgroup scored at the 51st percentile on the reading test."

Amazing. The fact that schools can get away with saying that because 13% of their students can score at the 51st percentile they show adequate yearly progress is a statement that calls into question the motivations of school administrations and teachers - they have no desire, as an end in itself, to actually educate your kids, they just want to keep those state and federal tax dollars rolling in, any way they can. This just further attests to the horrendous, yet unsurprising, unintended consequences of the No Child Left Behind Act.

LttE - The public wants representation, not frivolous laws

Submitted to the OC Register on 6/13/2005:

State Senator Joe Dunn wrote on Monday defending his ammunition-microstamping bill, SB 357, asserting that voters want legislation like this. I certainly expect more thoughtful analysis from my own representatives.

We make laws by representation instead of by referendum to take advantage of legislators’ knowledge, experience, and public debate to protect voters from things we want that would harm us more than help us. If the good senator had sought out the expertise of other state legislators with experience in this area, he would have found that similar efforts in Maryland and New York have incurred expenses of up to $4 million a year, with zero results. Maryland’s state police is now calling for its ballistic fingerprinting program to be dismantled for its utter lack of results. Laws like these do not affect the criminal class in the least and infringe on the liberties of law-abiding citizens.

The Teacher's Union - exposed!

CA State Senator John Campbell's blog has a great entry today uncovering many very interesting facts that relate to the California Teacher's Union and the leadership's political use of their members' dues. I thought of posting excerpts but then I figured I'd just repost the whole thing:

The CTA is spending millions of dollars to criticize Governor Schwarzenegger's policies and organization and goals. The LA Times wants to probe every aspect of the Governor's campaign team and finances. But what about the CTA? Where are the investigative articles on them?

A private research firm called the Education Intelligence Agency collected some very interesting information on this behemoth of Democratic politics. Here is some of what they found:

- The CTA has annual dues revenues of around $95 million, of which about $14 million is spent directly on political campaigns, media buying and government relations. And that is before the recent $18 million dues increase that is intended entirely for the demonization the Governor.

- They have a 21 member Board of Directors which represents the 300,000 members of the union.

- They are not a grass roots organization. In 1998, 70% of their membership supported the paycheck protection initiative Prop. 226, while their 800 member council unanimously oppsed it. The CTA bosses spent thousands of dollars in union dues against their own membership.

- The President, Barbara Kerr, whom you see on all the ads, has not taught a class in 12 years. Getting to the executive level in the CTA ivovles going up the ranks of the union, not shcools. She makes $170,000 per year, plus a $25,000 discretionary fund, plus a CTA owned house in Burlingame, plus 30 days vacation, child care, full pension, income tax preparation and financial planning costs amongst other perks.

- Other executives receive similar packages. They (and the board of directors) fly first class on flights of over 4 hours and get free dry cleaning, a gas card and gym costs.

- They have about 400 employees. The starting clerical salary is $41,000, which is higher than a starting teacher's salary.

So where is Elliot Spitzer to investigate whether the CTA is overcompensating executives while ignoring the interests of its members?

I plan on trying to generate some local interest into these kinds of issues, looking forward in earnest to the success of the paycheck protection initiative this fall.

Perhaps my last post on Raich

I would be remiss if I didn't include the comments of the accomplished law professor and author who argued the case for Ms. Raich. Here are his just-after-the-decision off-the-cuff comments, and here is his column today on NRO (in which he posits that the Ninth Circuit got the last laugh at the reactions of the Supremes to their being between a rock and a hard place). He makes a few additional comments on that column here.

Raich on the brain

I hope this doesn't last too long, but it seems that everywhere I look I find more examples of things that make me sad about the Raich decision. Note Glenn Reynolds' comment in a column yesterday about the future of personal fabrication:

When I go to the store, I often have a pretty good idea of what I'm looking for. Usually, I come home with something different. Sometimes it's better than what I thought I wanted; more often it's a second-best choice. If I could design and make what I wanted on the spot, I might well be happier -- and I might well enjoy the process, and the creativity, involved, too, assuming that the process was user-friendly.

With the SCOTUS' affirmation of the federal government's power to regulate personal noncommercial activity if it even hints at having some microscopic effect on overall demand for a substitute commercial activity, this groundbreaking innovation could (and most likely will) be severely hampered, restricted, or outright prohibited (depending on the good produced and its market) by our always-overreaching congresscritters. Sigh.

More on the SCOTUS' Raich decision

What I meant when I said

The federal government is basically saying that should the farmer have a personal demand for wheat, he is required to purchase it from the pool of available supply that is subject to interstate commerce regulation. But how is the case of a farmer who doesn't want wheat at all (and therefore doesn't add any demand for the available supply) and isn't forced to buy any different from the case of a farmer who grows his own (and therefore doesn't add any demand for the available supply)?

Monday in this space was more clearly articulated by Jonathan Adler in yesterday's NRO:

Yet if any privately produced item that can substitute for a commercially produced good is subject to federal control, then Congressional power knows few limits. Federal regulation of commercial day care services could justify regulating child care in the home; regulation of restaurants could justify regulating domestic food preparation; and so on.

D.T. Armentano also had some good analysis of the drift of the understanding of the meaning of the Commerce Clause (or should I say the twisting of it?) in his LRC column today:

But even more fundamentally, the Commerce Clause itself was never meant by the Founders to be a blank check for "command and control" economic regulation. Indeed, the economic purpose of Article one Section 8 was almost precisely the opposite of the conventional explanation accepted by the majority in this case.

The original intent of the Commerce Clause was to make "normal" or "regular" commerce between the states; thus it was designed to promote trade and exchange not restrict it. Further, it was specifically aimed at preventing the states from enacting impediments to the free flow of "commerce" such as tariffs, quotas and taxes. And since the explicit language of the CSA, like all economic regulation, interferes with the free flow of commerce, it is inherently antithetical to the original intent of the Commerce Clause. (Whether the law could be legitimized by reference to the "police powers" of the state is another matter).

Teachers can be awesome when they want to be

In all of our railings against public employee unions and the harm they visit on taxpayers and businesses, it's important that we recognize that the anti-freedom actions taken by these unions are directed by the union leadership (who very often are full-time employees of the union itself and are not individual teachers, cops, and firemen). The OC Register had a great story today about a retiring junior high school history teacher whose passion for U.S. History has made lasting impacts on his students, most notably with trips to Washington, D.C., enabling young students to touch and experience our nation's heritage in a tangible way that most will never find in textbooks. I remember vividly my trip to Washington, D.C. in eighth grade, and I very much look forward to making it back to the original 13 colonies as often as possible during my self-directed journey through the founding of our country, as well as taking my son Riley to see it for himself.

I don't know Craig Wallace's political leanings, but since I'd respect what he's done in the classroom no matter what they are, I want him and teachers like him to be able to make their own decisions to back the actions of the union leadership with their union dues or plausibly distance themselves from those actions. California's "paycheck protection" initiative has been qualified for the ballot on the next election, whenever that happens (hopefully this Fall), and hopefully the governor will get behind it and help the freedom-loving members of the unions extricate themselves from the yoke of the union leadership. I'm very curious to see what spin the unions are going to put on this initiative, what words they'll use to oppose it. It's not about pay or tenure or benefits or hiring/firing quotas or anything like that. The initiative is based on a very simple notion that union members should have a choice whether their union dues go to support causes they may vehemently disagree with. Anything the big unions will be able to say against it will sound like they're forcing individual teachers, cops, and firemen to go along with everything the leadership says - hardly a pro-freedom stance.

LttE - Two more vetoes, please

Submitted to the OC Register on 6/8/2005:

In your two articles about bills in the state legislature this session (“How OC lawmakers voted on 29 key bills” and “Sacramento fiddles, state gets burned”), you missed a couple more examples of needless legislative boondoggles: AB 352 and 996, both of which passed the Assembly.

AB 352 is even more costly and useless than SB 357 – it requires every handgun to physically imprint each bullet it fires with its make, model, and serial number, at the time it fires! Maryland incurred enormous cost and saw no benefit from its experimental ballistic fingerprinting project, and this bill will have the same negative impact on law-abiding citizens and the same lack of impact on criminals as SB 357.

AB 996 seeks to regulate where a retailer displays product for sale – in this case ammunition. Don’t our legislators realize that the ammunition displayed in a gun shop is already in a place safer from theft than virtually any other retail item available, simply because it’s *in a gun shop*?

Both of these deserve vetoes as well.

Senators and what they're for

Apparently one of the bigger reasons Sen. John Thune was able to defeat Tom Daschle was a promise that his buddy-buddyness with GWB would save Ellsworth AFB (South Dakota's 2nd largest employer) from the BRAC chopping block. When Ellsworth ended up on the "to close" list anyway, according to National Review Online,

An angry Thune has reversed course and said he’ll vote against John Bolton’s nomination as U.N. ambassador.

Here we see a perfect and clear example of the damage done to the structure of the republic by the ratification of the 17th Amendment in 1933, which forced all states to select their senators by public statewide election rather than being selected by the state legislature. No longer are senators representatives of those separate entities known as "states" to the national government; no longer do state legislatures issue detailed directions on how those senators are to represent their state at the national level including specific voting instructions. Now what they are are direct representatives of all the people in the state to the national government (but wait, don't we already have that in the House?), and subject to the whims of what those specific people want at the expense of national concerns. Instead of the state of South Dakota joining its voice with other states as to the nation's best interests regarding a U.N. ambassador, we have a direct representative of the people playing politics at the national level to secure benefits at the state level. Unless I'm mistaken, that's what's known as rent-seeking, and there's no situation I'm aware of when rent-seeking is a good thing.

SCOTUS rules on medicinal marijuana

Federalism takes another shot to the jaw:

Federal authorities may prosecute sick people whose doctors prescribe marijuana to ease pain, the Supreme Court ruled Monday, concluding that state laws don't protect users from a federal ban on the drug.

Any newspaper or TV news stories about this decision will most likely center on discussions about drugs - I doubt that many Average Joes will realize that this case isn't about drugs at all, but about the reach of the federal government. Justice Thomas in his dissent provides the money quote (and proves that he's the most reliable originalist and the most ardent defender of federalism on the Court):

If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal Government is no longer one of limited and enumerated powers.

To catch up those who may not be fully aware of the case, a summary: 10 states, including California, have passed laws that allow people to grow, obtain, smoke and/or consume marijuana for medical reasons with a doctor's recommendation and/or prescription. The freedom of citizens of those states to exercise that ability faced a potential threat in the federal Controlled Substances Act. Two petitioners asked a federal court to rule that the CSA didn't apply to legal medicinal uses of marijuana and that federal authorities couldn't prosecute those legal uses. The DoJ said they could and would, the Ninth Circuit ruled that it couldn't, and now the Supremes have handed down their verdict, a 6-3 decision for the federal DoJ (overturning the Ninth's ruling) with Justice Scalia a notable and surprising member of the majority, and Justice O'Connor getting (at least from me) an atta-girl for leading the dissent, along with Justices Rehnquist and Thomas.

I'm far from being a legal or Constitutional scholar, but in case anyone's interested, here's my take. First, a few details about the ruling and the reasoning behind it, according to the majority opinion, written by 85-year-old Justice Stevens. It was based in large part on the precedent of Wickard v. Filburn, a 1942 case that ruled that the federal government could regulate non-commercial activities via the Commerce Clause if it in any way affected interstate commerce. In that case, a farmer was growing wheat on his own land for his own consumption, never intending to sell any of it, neither in intra- or interstate commerce. The Court upheld the federal government's power to regulate that activity (which is to say, to forbid the farmer from doing so), based on the argument that 1) the activity affected demand and 2) he might decide later to sell it, and wheat being a fungible commodity, it would be impossible to enforce existing regulations. The first argument is, IMO, specious because it's tantamount to the federal government unilaterally mandating certain points on the supply/demand curve, much like it does when it enacts price controls, only with a much more diabolical bent. The federal government is basically saying that should the farmer have a personal demand for wheat, he is required to purchase it from the pool of available supply that is subject to interstate commerce regulation. But how is the case of a farmer who doesn't want wheat at all (and therefore doesn't add any demand for the available supply) and isn't forced to buy any different from the case of a farmer who grows his own (and therefore doesn't add any demand for the available supply)? The second argument is no stronger - there the Court is in the business of guessing what might happen rather than interpreting the law according to what does happen. Selling unregulated wheat grown in that manner would be illegal and the farmer would do so at his own risk. Take the Wickard decision and those two arguments to their logical conclusion and you have just prohibited an individual from buying a few acres in Wyoming and becoming completely self-sufficient on that plot of land, never buying or selling anything from or to anyone else anywhere. As improbable as that situation sounds, shouldn't it be within the rights and abilities of Average American Citizens?

So Stevens and the majority applied Wickard to Reich, basically saying that it's the same situation. And for the most part, they are - and both Courts ruled incorrectly (again, IMO). Both Courts ruled that the federal government can, by use of the Commerce Clause, proscribe the possession and personal use of a commodity that's legal under state law to possess and personally use. Hence the damage to federalism and individual liberty, regardless of your stances on drug use and drug prohibition/legalization (two completely different things, by the way).

The conservatives/federalists/originalists I've read so far today are surprised at Scalia's concurring opinion, in which he used an "ends justify the means"-style argument:

Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce... Drugs like marijuana are fungible commodities. As the Court explains, marijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market--and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State.

This kind of appeal to the Necessary and Proper Clause is a huge surprise coming from a conservative judge, basically affirming the already overused Commerce Clause to encompass anything the federal government wants to regulate, as long as it can cite some kind of link, no matter how obtuse, indirect, and tenuous, to interstate commerce. Basically he's asserting that in order to make some larger regulatory scheme (assuming it's constitutional) effective, Congress has the power to regulate activities which by themselves it would be unconstitutional to regulate. Talk about loopholes. And this business about a legal product (marijuana, wheat, guns, etc.) being only "an instant from the interstate market" is bunk - more guessing what might happen rather than interpreting the law according to what does happen. Thomas takes Scalia to task for this in his dissent:

In Lopez [a case that overturned a federal statute instituting Gun-Free School Zones, which has since been reworded to include only guns "that had traveled in interstate commerce", essentially meaning all guns, and re-passed by Congress --JT], I argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general "police power" over the Nation. This is no less the case if Congress ties its power to the Necessary and Proper Clause rather than the Commerce Clause. When agents from the Drug Enforcement Administration raided Monson's home, they seized six cannabis plants. If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption (not because it is interstate commerce, but because it is inextricably bound up with interstate commerce), then Congress' Article I powers--as expanded by the Necessary and Proper Clause--have no meaningful limits. Whether Congress aims at the possession of drugs, guns, or any number of other items, it may continue to appropria[te] state police powers under the guise of "regulating commerce."

One particularly insightful comment I read earlier was that there was no way the Court was going to rule in favor of the individual because to rule that the CSA didn't apply, on Commerce Clause grounds, to medicinal users would have been indistinguishable from ruling that the CSA didn't apply, also on Commerce Clause grounds, to recreational (non-distribution) users - and that just wasn't going to happen. This strikes me as a very good explanation of why Scalia voted the way he did - and lends credence to statements by some libertarians (who aren't that surprised at his vote) that he's less a bona fide originalist as much as someone who sometimes uses originalist arguments to justify his own moral and political positions.

The most laughable quote of Stevens' majority opinion is of course this gem:

[B]ut perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these (California women) may one day be heard in the halls of Congress.

Why is a paean to the democratic process laughable? Because this very case, Raich v. Ashcroft, arose from a state law passed in California as a ballot measure - voted on and passed directly by the voters. The democratic process that Stevens lauds was followed by the people (and in 9 other states besides California) and the Court overturned the result. Heh.

More reading, with much more detailed and insightful comments than I can provide:
Excellent commentary at Volokh.com
More commentary at TheAgitator.com
Group blog experiment at SCOTUSblog
Another good one I just found via SCOTUSblog is Crime & Federalism
The readers at Reason's Hit & Run are, understandably, a tad miffed
NRO's The Corner is discussing it
Analysis from last December by NRO's Jonathan Adler

LttE - No more arguments over gay marriage

Submitted to the OC Register on 6/3/2005:

Rather than jump on the bandwagon of emotion-driven partisan bickering over the harm gay marriage will cause society or the evils of not conferring every husband-and-wife perk to gay couples, I’d like to propose a third option. How about we get the government completely out of the business of recognizing marriage?

Seriously – let the government treat all its citizens the same, whether single or married; same tax burden, same tax credits, same privileges, everything. Churches can decide for themselves whether couples are “married” or not, it’s not the government’s business anyway. Visitation rights and community property can be granted with contracts – it’d be no larger burden on married couples and domestic partners than it is today, just different paperwork with different headers.

Imagine that, the government treating its citizens equally and letting the church care for the morals of society. Sounds great!

CA legislature ponders more (and more, and more) regulation

SB 357, AB 352, and AB 996 have been passed by their originating houses and sent to the other house for committee hearings and votes. All three of these are time- and money-wasting legislation bringing more Big Brother-type regulation to the state that needs it the least. I just sent this email to my assemblywoman and the Public Safety Committee regarding SB 357:

Senate Bill 357 has been passed by the Senate and is on its way to the Assembly, stopping first at the Public Safety Committee. This bill, introduced at the behest of Attorney-General Lockyer, is so rife with problems that it's difficult to know where to start.

First, there is no evidence whatsoever that the serialization of every bullet manufactured would assist law enforcement in solving crimes, but there is every indication that it will mandate huge new costs on every branch of law enforcement to try to make use of the mountains of data. The vast majority of that data would pertain to law-abiding citizens, and only a miniscule percentage would pertain to criminal use - talk about a needle in a haystack! Maryland has tried a similar scheme with ballistic fingerprinting and has found it unmanageable, prohibitively expensive, and completely ineffectual in solving crimes. Bullet serialization in California will fare no better - it could even make matters worse, making it easier to "poison" the crime scene with a few cartridges not purchased by the perpetrator.

Second, putting this kind of requirement on ammunition manufacturers is just another example of onerous regulation that California foists on companies trying to do business in our state. Gasoline in Blythe, CA is on the order of fifty cents per gallon more expensive than it is one mile down the road at the Flying J in Arizona - a major reason for that is the regulations that force gasoline manufacturers to make special blends of gasoline to sell in California. The same kind of regulation makes cars sold in California more expensive than other states. Should this bill pass, the same will happen for ammunition, and it won't just harm our state's consumers - it will harm the military and law enforcement, who buy their ammunition from the same manufacturers! U.S. Rep. Duncan Hunter, chairman of the Armed Services committee, said as much in a letter he sent to Gov. Schwarzenegger.

In an effort to keep this short, I'll stop there - but those two reasons alone should be enough to get my point across. SB 357 needs to be defeated.

Here's the email I sent to my state senator and the Public Safety Committee regarding AB 996:

Assembly Bill 996 has been passed by the Assembly and is on its way to the Senate, stopping first at the Public Safety Committee. The regulation this bill provides for is completely unnecessary. Thinking that the state needs to regulate how a retail shop stores its product is ignoring the basic fact that it's in a shop's best interest to store it as to be as safe for their customers and as safe from theft as possible. This is true for every type of store across the entire spectrum of retail - why do we have to treat ammunition sellers differently? Even if the risk of theft were the main motivator of this bill, plain old common sense will tell you that criminals don't just walk into a gun store and steal ammunition off the counter because it's not locked away! A gun store would have to be the riskiest business for a criminal to try to rob - it's obviously going to be the most well-guarded option, and the most hazardous to his health!

In short, AB 996 is a solution in search of a problem, and it shouldn't be passed by the Senate. It will do no good, solve no observable, measurable problems, only make new criminals out of previously law-abiding store owners.

I didn't send anything to the state senate about AB 352 because it's even more silly than either of the other two - they want every gun manufactured so that it "microstamps" the make, model, and serial number of the gun on each bullet it fires, as it's firing! Are they kidding? One wonders if the CA legislature was around to mandate other innovations of questionable worth to other industries - like the automatic transmission or self-sharpening kitchen knife holders!

Comments to the FEC re: McCain-Feingold

Sent to internet@fec.gov regarding the possibility of the FEC to apply Judge Kollar-Kotelly's ruling that the provisions of McCain-Feingold that regulate political speech must be applied to personal weblogs and websites:

Dear Mr. Brad C. Deutsch, Assistant General Counsel:

Freedom of speech is one of the most important of our rights, and one most deserving of any protection we can afford it. With all of the present day's threats on the freedom of speech, one facet of it that is lost on most people is the freedom of the press. If we look back to the common parlance among the people of the 1700s, it's obvious that "the press" didn't mean " the set of people that includes newspaper reporters, authors, and journalists", but it instead carried the much wider meaning of "the tool used to publish written works". That's right, that clause of the First Amendment isn't about protecting the rights of a certain class of people to print anything they want - it's about protecting the rights of every single citizen to print anything they want. If a common citizen in 1791 had access to a printing press, he could author a pamphlet on any subject under the sun: politics, religion, the sciences, you name it, and he could print and disseminate it as he saw fit. He would be free from government regulation even if he was endorsing a challenger candidate or questioning the actions of an incumbent a week before an election.

Applying McCain-Feingold to weblogs would turn that centuries-old freedom on its head and eliminate a right that's been protected for over 200 years. Weblogs are nothing more than today's printing press for a digital citizenry - it's just cheaper and more ubiquitous. Sounds like democracy in action to me!

The intentions of McCain-Feingold may have been noble (cleaning up political corruption), but its execution has proved intensely difficult. With hindsight we can see that it was a bad idea to begin with, and its success in regulating political speech and monetary contributions is very much up for debate.

In our zeal to protect the political process from corruption, we must be ever vigilant to prevent incursions and depredations on the most precious rights the Framers of the Constitution guaranteed to us. Applying McCain-Feingold to something as commonly available as a weblog would ignore those rights and take us further still from the ideal the Framers had in mind for us.

LttE - Afraid of choice

Submitted to the OC Register on 6/2/2005:

Letter-writer Helena Street tore into Cheryl Rosenberg Neubert’s “Stay-at-home students” article, arguing that public schools are preferable to home-schooling. It’s interesting that she used the word “preferable” in vociferously supporting her one-size-fits-all view of education. When it comes to education, the Claflins, the Candelarios, and the Carneses all prefer something different – for reasons as varied as the curricula they follow.

Every day we all choose at which store we’ll shop, what we’ll buy, where we’ll eat, what meal we’ll get, what library we’ll visit and what we’ll read. It’s not rocket science – what works for some doesn’t work for others. I’m certain there are stores and restaurants my family frequents that Ms. Street won’t set foot in – yet we don’t see Ms. Street trying to keep us from those places.

Why are some people so fearful of choice in education when they practice it in every other facet of life already?

UPDATE: A version edited for brevity was printed on Monday 6/6/2005.

Forget the EU - worry about the North American Union

It's been said by a few of the more strident anti-two-party-monopoly folks that part of the huge Dempublican conspiracy is to join the US with Canada and Mexico into one huge nation, forfeiting much of the sovereignty we enjoy today to our neighbors to the north and south - just like France just said Non to the other day regarding the proposed EU constitution. I didn't think too much about it until now; I could see the validity in the points being made but was a bit on the incredulous side of believing that any branch of the federal government would risk broaching the subject for fear of the other branches. Sure, Bush continues to talk his big non-amnesty amnesty thing, but no one's really taking him seriously.

Well, I'm being moved a little more to the credulous side, now that those paragons of compromise Senators McCain and Kennedyhave introduced a bill that almost mirrors Bush's non-amnesty amnesty and guest worker programs (though with slightly different details). The part that scares me the most:

The legislation stipulates that it doesn’t grant state and local police any more authority to enforce immigration laws, but it goes out of its way to include language about securing Mexico’s border with Guatemala. This bizarre concern reflects a concept — bandied about by the Bush administration as well — called the “North American security perimeter.” It holds that we can all be one happy North American family, and the U.S.-Mexico border won’t matter so much, if only we can keep those pesky Central Americans (and others) out of Mexico.

Couple this kind of proposal with the already-existing NAFTA and the under-debate CAFTA and you've got the ingredients for a very ugly future for U.S. sovereignty.

LttE - Why the abortion debate is stalled

Submitted to the OC Register on 6/1/2005:

Anne Innis’ and Steve Todd’s letters are great examples of why the abortion debate is stalled – both sides frame the argument in ways that encourage partisan bickering rather than a meaningful debate over principles.

Ms. Innis frames the issue, as do most Democrats, as being about “reproductive rights”, ignoring rather than addressing the possibility that the fetus is a human being. Mr. Todd frames the issue, as do most Republicans, as being about protecting the unborn child, dismissing rather than addressing the differing view that it’s not a human being. Both are quick to point out what they see as “obvious” deficiencies in the other side’s argument.

It’s unfortunate that the argument is never framed as it should be, consistent with the Constitution and federalism: as a question of “what level of government should define murder?” Does the federal government define what constitutes murder vis-à-vis manslaughter or negligent homicide? No, the states do, and those definitions can vary from state to state. So why should it be any different for abortion? States should be able to define, free of federal interference, whether to include abortion in any of those definitions or none at all, or define it separately, taking into account all appropriate circumstances (rape/incest/mother’s health, by trimesters, partial birth, etc.).

We trust our state legislatures to write laws that define what constitutes crimes and what doesn’t, because they are the chosen representatives of the people who have to live under those laws. Roe v. Wade unconstitutionally took that responsibility out of the hands of the representatives of the people and forced every state legislature, every state court, and every last citizen to live under a federal definition that abortion is not murder. Overturning Roe v. Wade and replacing it with a similarly binding federal law that defines abortion as murder in all cases would likewise be unconstitutional. Let’s have a reasoned, principled debate rather than hurl invective and red herrings.

Caution: encryption is now evidence of intent

A Minnesota appeals court has upheld a trial court ruling that just the existence and use of an encryption application (in this case, the widely renowned PGP) can be admitted into evidence and used to point to intent. According to the testimony of a retired police officer quoted favorably by the judge, it's especially relevant if no one but the NSA can break the encryption. Heh.

You don't have to be a rocket scientist to see the slippery slope here, from 1) having encryption is another point of evidence of illegal intent, to 2) having encryption can be the only point of evidence of illegal intent, to 3) having encryption is probable cause and will uphold search warrants and "sneak-and-peeks". I guess when we get to that point anyone who uses PGP encryption, Outlook's encrypted email, or even just a username/password to login to their own PC will be subject to this kind of ruling, regardless of the lack of any other evidence or probable cause.

UPDATE: A post over at Volokh Conspiracy corrects the hysteria, detailing how the existence of PGP was only determined relevant because it supported the testimony of the victim, and without strong additional evidence it would not have been relevant. Still not sure I like it, but those guys are the legalese experts, not me.