The world has arrived at an age of cheap complex devices of great reliability; and something is bound to come of it.
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Author: Redactor
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Townhall: The Court v. The People
Over at Townhall, your weekly Common Sense column surveys the current divisions — not so much on the Supreme Court (they change), but in the federal union itself. There are a few keywords worth thinking about: nullification, interposition, delegated powers, unenumerated rights, and (go full-blooded, here) “checks and balances.”
Townhall‘s where to go. But here‘s where to come back.
- This weekend’s column is a reflection on the two cases covered at the end of the week, here on ThisIsCommonSense.com, namely “Too Respectful of Congress?” (Thursday) and “No Right to Defend Your Rights” (Friday). You’ll find links to the Supreme Court decisions on those Common Sense entries.
- There are many sources discussing the origin of judicial review. One of the more recent is The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review, by Lawrence Goldstone.
- Thomas Woods’s Nullification: How to Resist Tyranny in the 21st Century, is as good a place as any to begin thinking about the history and live possibility of Madison’s “interposition.”
- It’s always worth re-reading The Constitution . . . and other founding documents. There are many on the Net. But this is one area where you’d expect the government to excel, no? So go to the Library of Congress’s site, and read.
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Video: Decentralize the Schools
Too many people want to push America’s schools in the wrong direction. Neal McCluskey, of the Cato Institute, isn’t one of them:
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Jean-Jacques Rousseau
To renounce liberty is to renounce being a man, to surrender the rights of humanity and even its duties. For him who renounces everything no indemnity is possible. Such a renunciation is incompatible with man’s nature; to remove all liberty from his will is to remove all morality from his acts.
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Jean-Jacques Rousseau
Man is born free; and everywhere he is in chains.
You have no right as a voter to defend your interests as a voter. Not in federal court.
So decides the Supreme Court in Hollingsworth v. Perry, a case about a controversial California ballot question. The court ruled 5-4 that petitioners “lack standing.” Their interest wasn’t “particularized” enough. 
Passed in 2008, Proposition 8 amends the California constitution to stipulate that “only marriage between a man and a woman is valid or recognized in California.”
Two questions must be distinguished. One, whether Proposition 8 is consistent with the U.S. Constitution. The high court could have agreed with the lower one that it isn’t. Two, whether voters – in this particular case, the official state recognized proponents of the measure – may judicially defend a law brought to ballot by themselves and duly enacted, when state officials decline to defend that law.
I’m no fan of Prop 8. But for the land’s highest court to rule that voters and petitioners have no “standing” here is a horrid precedent. It tells government officials to take heart if they dislike a law that voters have passed. Maybe not enforce or defend it at all, say — and regardless of any constitutional finding. After all, what can We the People do? It’s not as if we have standing!
Justice Kennedy, in dissent, pinpoints the default: “the Court fails to grasp or accept . . . the basic premise of the initiative process . . . The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.”
Oh, yes, the people do have standing.
This is Common Sense. I’m Paul Jacob.
In disagreements between individuals and the IRS, I tend to side with individuals against the IRS. So Wednesday’s Supreme Court ruling against the Defense of Marriage Act seems about right, on the face of it.
Yes, the judicial review and nixing of DOMA regarded a tax case.
The state of New York recognized the marriage of two women, Edith Windsor and Thea Spyer. Ms. Spyer died in 2009. Ms. Windsor inherited, paying $363, 053 in estate taxes. She sued against DOMA because she wanted to claim the federal estate tax exemption for surviving spouses.
The Supreme Court majority sided with Windsor. Chief Justice Roberts dissented, arguing that the court lacked the authority in this case to overturn this law; and Justice Scalia dissented separately, joined by Justice Thomas; Alito wrote another separate dissent.
Fascinating reading, all of it, but I was disappointed that Justices Scalia and Thomas are so deferential to Congress regarding DOMA, without any consideration of the Tenth Amendment, which recognizes that states have powers not delegated to the federal government — and surely regulating marriage was not one of the enumerated powers delegated to Congress — or the Ninth Amendment, which recognizes “rights retained by the people,” and that has a lot of bearing on the practice of marriage.
It seems to me that in matters of marriage, at the very least, the federal government should be following the people and the states, not the other way around.
This is Common Sense. I’m Paul Jacob.
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Jean-Jacques Rousseau
An honest man nearly always thinks justly.
China is waging a war on dogs taller than 13.7 inches. The basis is a long-dormant law prohibiting Beijing residents from owning dogs “too big” for — well, for the law prohibiting dogs that big.
In addition to losing their furry friends, flouters are subject to fines but not jail time. In other respects, though, the war resembles many silly but dangerous wars on wrongly banned things.
- The rationale is contradictory on its own terms. Critics note that small breeds which are not banned (Jack Russell Terriers) can be more aggressive than large breeds which are banned (English Sheep Dogs).
- Owning the illegal thing is illegal even if no one’s rights are violated thereby, and regardless of the owner’s actual rights.
- Enforcers of the bad law have quotas to fulfill.
- Enforcers receive tips from persons eager to cause trouble, even when they have no real complaint to make.
- Enforcers conduct scary raids, sometimes mid-night raids, to hunt for the non-dangerous banned thing.
Such features also characterize America’s War on Drugs, hardly limited to cracking down on crack houses full of shady characters. On the basis of real or imaginary information, police violently invade homes to search for drugs. People (and their dogs) are killed during such assaults.
What Radley Balko calls The Rise of the Warrior Cop: The Militarization of America’s Police Forces (officially published in July) has made America’s War on Drugs, a war on people, and dogs, all the more deadly.
This is Common Sense. I’m Paul Jacob.
Remember the IRS scandal? I mean the one about how the Internal Revenue Service has been monkey-wrenching the applications for tax-exempt status submitted by politically non-leftward organizations (Tax Prof Blog has the latest).
But politically motivated clogging of an application process is just one way that the IRS abuses us. Victims of its normal forms of abuse have also been coming forward lately, seeing that they now have at least a temporarily receptive audience.
One such is Jeffrey Black, former employee of the Federal Air Marshal Service, who has long tried to fix the problems he sees with the Air Marshals. It seems that not every colleague appreciates it.
After retiring in 2010, Black appeared in a documentary (“Please Remove Your Shoes”) about the pseudo-security measures we have to endure at the airport. Why not? He couldn’t be fired any more, right? But the day the documentary premiered — “almost to the hour” — the IRS notified him that he was being audited. It also slapped a lien on his home.
In the end, their investigation turned up $480 that Black owed the IRS, which he paid; and $8,300 that the IRS owed Black, which IRS didn’t pay.
“Being a veteran of extensive retaliation . . . I am not surprised about this,” he told CNN. “It is basically the only way they can still . . . retaliate against me after I retired.”
The IRS denies that audits are ever politically motivated.
They deny many things.
This is Common Sense. I’m Paul Jacob.