Category: Ninth Amendment rights

Categories
First Amendment rights Ninth Amendment rights too much government

Unlisted Help

charity, regulations, rights

Kindness; generosity; aid — even these need defending from government.

In “Performing Charity Is a First Amendment Right,” C. J. Ciaramella writes about the difficulties people have had in feeding the poor in their towns and cities.

The problem is not lack of charity — unless you mean the lack of charity that local governments sport.

In Houston, Texas, and Fort Lauderdale, Florida, and Santa Ana, California — and in many other communities around the country — local governments have fined and prohibited the charitable from doing the good they do, often on grounds of “health and safety.” 

Houston even set up a hyper-​specific charity area — reminiscent of the “free speech zones” set up for political rallies in recent years — in a parking lot near a police station. Just the kind of place that the destitute want to hang around in!

After the usual forms of police harassment came the court cases … and appeals to the First Amendment.

And as I read through Ciaramella’s article, the attempts to defend charity as a right of “religious expression” struck me as odd. Santa Ana politicians, for example, characterized charity as “incidental” to the core religious missions — a bizarre tack to take when dealing with Christian doctrine anyway! — and for once the U.S. Justice Department took the common-​sense position on this. Thankfully.

But charity as “expression” leaves a bad taste. Charity’s more basic than “expression,” isn’t it? Some might see the art of giving as a duty, others as a rite, and others as mere generosity for its own sake. Jesus spoke of charity as something one did without speaking about it.

Could it even be more basic than free exercise of religion? Might it not more accurately be a Ninth Amendment right — one “retained by the people”? 

So fundamental there seemed no need to spell it out specifically. 

Our most basic rights are general rights, and charity is fundamental to being human.

This is Common Sense. I’m Paul Jacob.

PDF for printing

Illustration created with PicFinder and DALL-E2

See all recent commentary
(simplified and organized)
See recent popular posts

Categories
free trade & free markets general freedom Ninth Amendment rights tax policy

Taxation Rules

Overburdened Pack Mule

It turns out the United States is a tax haven.

Haven? Heavens! I live here. I don’t feel that low-​tax feeling when April 15 rolls around.

But the Cato Institute’s Dan Mitchell, an expert on all things tax-​policy — a dirty job, but somebody’s gotta do it — says “The U.S. Is a Tax Haven … and That’s a Very Good Thing.”

He is a huge fan of international tax competition. He likes it when governments at least marginally decrease the tax burden on prospective producers and investors, so as to lure production and investment from other tax jurisdictions. In his opinion, “we need some way to restrain the greed of the political class.”

Fans of big government disagree. Tax competition hinders their master plans to control and plunder the rest of us.

Mitchell knows that we mere U.S. citizens tend to lug a big tax load. But the United States is in fact “a tax haven. Not for Americans, of course, but … we have some good rules for foreigners.” In addition to their ability to exploit the especially robust corporate privacy rules of a state like Delaware, foreign investors can avoid taxes on interest and capital gains on their stateside investments.

Now, Mitchell says, let’s apply those “same good policies to Americans.”

Hear hear! Havens I can access are even more appealing than those I can’t.

This is Common Sense. I’m Paul Jacob.

Printable PDF

Overburdened Pack Mule

 

Categories
judiciary Ninth Amendment rights Tenth Amendment federalism

Too Respectful of Congress?

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.

Categories
First Amendment rights Ninth Amendment rights too much government

The First Isn’t Enough

The First Amendment isn’t enough.

Because its provisions have stronger teeth than most other amendments in the Bill of Rights, it gets put into service quite a lot, to bolster other freedoms. It’s a pity there’s no general “right to freedom” — or even “freedom of contract” — amendment.

A Western Pennsylvania Christian higher education outfit, Geneva College, joined by Seneca Hardware Lumber Co. in Cranberry, has sued the federal government over the new “Obamacare” requirement to provide morning-​after “contraception” to employees, saying that the provision violates their religious freedom. The Justice Department argues that the case should be thrown out, on grounds that public entities like the college and the lumber company do not possess the legal right to “impose” their religious values on others.

As noted at reason​.com, this is a weird misreading of the crucial negative right/​positive right distinction: Under the “negative right” to freedom, an employer not providing a benefit to employees imposes nothing. Quite literally. The imposition lies entirely with the government forcing its way into contracts between businesses and employees.

One could construe a positive right to contraception, I guess, but that positive right would also be an imposition. “Imposition” belongs to the language of positive rights.

The government’s lawyers also object to the hardware company seeking sanctuary (so to speak) in the First Amendment to oppose the contraception mandate. If just anyone can appeal to the First Amendment’s freedom of religious exercise clause, then the government could hardly enforce conformity.

Well, yes.

That’s the idea of limited government. The problem, today, is that we citizens don’t have enough legal oomph to protect ourselves (either as employers or employees) from the federal government’s vast overreach.

This is Common Sense. I’m Paul Jacob.

Categories
Ninth Amendment rights Tenth Amendment federalism too much government

Two Words to Know and Share

Two old words, newly relevant: Federalism and nullification.

Last Sunday, on Townhall​.com, I noted ten state ballot measures to watch. Third on my list was Colorado’s Amendment 63:

If swing-​state voters in Colorado join Missouri voters, who in August enacted a state measure protecting citizens from being forced to purchase health insurance through the “Obamacare” mandate, it will go a long way in strengthening GOP backbone to repeal the mandate should Republicans regain control of Congress.

The surface issue is your right to contract, freely, with medical professionals. Or not.

Below the surface lie the doctrines of enumerated powers, individual rights, and state prerogatives. After all, the logic runs, the Constitution — a deal among the states — grants the federal government no power to regulate medicine. And nullification, one of Thomas Jefferson’s favored notions, promises to serve as an actual, effective check on out-​of-​control federal politicians.

A similar storm brews in California, where the state’s Regulate, Control and Tax Marijuana Act goes way beyond a narrow reading of “medical marijuana.” Flouting federal (and probably unconstitutional) law, this citizen initiative seeks to legalize the plant for recreational use.

At issue, really, is not drugs or medicine, but who’s in control: Distant and privileged politicians and bureaucrats, or the citizens of the states.

On the side of the citizens is the founder’s theory of federalism, with its corollary that the states should serve as experiments in legal innovation.

We sure need innovation.

This is Common Sense. I’m Paul Jacob.

Categories
free trade & free markets Ninth Amendment rights too much government

Farm at Your Own Risk

Some of the most vicious threats to individual rights and liberty occur not on the federal but on the local level. Clint Bolick, an attorney who has combated many local governmental assaults on citizens around the country, once wrote a book to make the point entitled Leviathan: The Growth of Local Government and the Erosion of Liberty.

Example? Consider the zany local edict issued in the little town of Lake Elmo, Minnesota. The Institute for Justice — Bolick’s old stomping ground — informs us that the city council there has begun “enforcing a law that makes it illegal for farmers to sell products from their own land unless they were grown within Lake Elmo.”

Two of the farmers being threatened with fines and 90 days in jail are Richard and Eileen Bergman, who have tilled the land in Lake Elmo for almost four decades. They grow pumpkins. But part of their farm extends beyond the city limits, and most of their pumpkins grow on that out-​of-​Elmo part.

The Institute for Justice has filed a federal lawsuit to overturn the town’s ban on out of-​of-​town pumpkins. Council members who support the ban must have some ludicrous theory about how such totalitarian edicts goose the local economy. But the ban is certainly no good for folks stopped from buying and selling what they want to buy and sell. 

And how, pray tell, do you promote local farming by throwing local farmers in jail?

This is Common Sense. I’m Paul Jacob.

Categories
judiciary Ninth Amendment rights U.S. Constitution

Rights Retained by All But Kagan

When grilled by the Senate Judiciary Committee, Supreme Court nominee Elena Kagan didn’t have to go out on a limb to dismiss the rights affirmed in the Declaration of Independence. Most liberals and conservatives share the view that a judge’s job is to interpret the law, not defend “natural rights.”

Yet, our Founders regarded natural rights as an important restraint on government. 

Not so with progressives today and yesterday. As scholar Jim Powell noted in The Daily Caller, progressives don’t like natural rights, or the function they serve. Powell quotes Teddy Roosevelt: “I don’t think any harm comes from the concentration of power in one man’s hands.”

TR was wrong. Progress depends not on unlimited power for leaders and bureaus, but on limiting those powers so voluntary co-​operation can work its wonders.

Progressives from TR to Kagan oppose natural rights because they run dead against progressivism. 

Even the enumerated rights in the Bill of Rights limits government too much for progressives, so they twist words to get rid of their practicality.

The idea of natural, basic rights find their most concise defense in the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The question to ask Supreme Court candidates — indeed, any person who must swear to “uphold the Constitution” — is how “the people” can retain their unenumerated rights.

The question is almost never asked.

To our detriment.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights Ninth Amendment rights Tenth Amendment federalism U.S. Constitution

Sotto Voce Sotomayor

Last week, former Congressman and presidential candidate Bob Barr sent out a simple admonishment to his Twitter list: “Let’s have a real debate on Judge Sotomayor, not hysterics.…”

Unlikely. Appellate Judge Sonia Sotomayor is precisely the kind of jurist to divide us. She’s said things that seem racist and sexist and absurd. But, then, if I criticize her for those things, her supporters will call what I say racist or sexist or absurd.

And none of us want racism, or sexism, much less absurdity.

Let’s try sympathy, instead. It’s not easy to promote a constitutional philosophy consistent and widely acceptable at a time when much of what the federal government does belies — abridges — repudiates! — the Constitution itself.

Take the First Amendment. It begins, “Congress shall make no law …” No ambiguity. And yet Congress makes all sorts of law regarding speech, including regulating speech about politics, negating the whole point of the First Amendment. 

What part of “no law” don’t today’s jurists understand? In many cases it’s the part where the states have power to fashion their own solutions to problems. It’s called the Tenth Amendment. And it’ usually ignored by all mainstream legal experts, along with the Ninth.

I’d like to have a quiet debate on this. Sotto voce, you might say. The opposite of hysterically loud.

That would be more important, even, than a debate about Judge Sotomayor.

This is Common Sense. I’m Paul Jacob.