Category: U.S. Constitution

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ideological culture U.S. Constitution

Potted Presence

The State of the Union Address has become political, said Justice Alito last week, so he will follow the lead of Justices Scalia and Thomas and not sit in Congress while the Commander in Chief intones his annual duty.

Last January, Alito objected to President Obama’s little stab at the Supreme Court when the prez decried the Citizens United decision. Obama said that the Court had “reversed a century of law” and would “open the floodgates of special interests . . . to spend without limit in our elections.” Alito mouthed the words “NOT TRUE.”

And Alito was right. The decision certainly did not overturn a century of law. Not even a teensy bit . . . Well, maybe a teensy-weensy bit, if we count Progressive’s wishes to run everything by bureaucracy and “experts.” (It’s worth remembering that Progressives had a populist wing, supporting initiative and referendum a century ago.) The Citizens United case was about the unfortunately successful censorship of a movie. About a Democrat, Hillary Clinton.

So you can see why politicians — especially, these days, some Democrats — might oppose free speech around election time. The better to control the opposition.

No wonder Alito won’t “be there in January.” He doesn’t want to serve as a “potted plant.”

Congress, of course, takes occasion to seem “potted” in another sense. Amidst congressional applause and shouts, there’s scant room for reason.

Our third president, Thomas Jefferson, merely sent his report to Congress. Obama should, too — and save Alito RSVP duty.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights free trade & free markets property rights too much government U.S. Constitution

Hooray for IJ

Let a thousand floral arrangements bloom.

Louisiana has just abolished the “demonstration” section of the state’s licensing exam for florists. The new law came in response to a lawsuit by florists working with the Institute for Justice. IJ argued that the four-hour demonstration requirement was “arbitrary, subjective and antiquated,” and allowed state-licensed florists to determine the fate of their future competitors.

The outcome represents yet another victory for the “merry band of libertarian litigators” who regularly do battle “in the courts of law and in the court of public opinion on behalf of individuals whose most basic rights are denied by the government. . . .”

Founded in 1991, the Institute for Justice has successfully fought to lift caps on the number of licensed taxis in Minneapolis; eliminate laws around the country that prevent competition in every kind of occupation, from animal husbandry and interior design to hair braiding and pest control; restore freedom of speech undermined by vague and arbitrary campaign finance regulation in Florida and enemies of property rights in Tennessee; protect businessmen and home owners from eminent domain abuse in Arizona and Ohio.

IJ’s many successful efforts to defend the rights of individuals are having a major impact. Looking back over the many installments of Common Sense, I find that I mention this group’s work again and again.

With good reason. They keep fighting the good fight, and winning.

This is Common Sense. I’m Paul Jacob.

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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.

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judiciary Second Amendment rights U.S. Constitution

Advance for Rights

Next to the Bill of Rights, the Fourteenth Amendment might well be the most momentous Amendment to the Constitution. Here’s the most interesting chunk of it:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Before this amendment, adopted after the Civil War (mainly to keep white southerners from tyrannizing ex-slaves), the Bill of Rights had applied to individuals only against the federal government. After it, states were required to follow the Bill of Rights, too.

This week, in McDonald v. City of Chicago, five of nine members of the Supreme Court decided that the Second Amendment guarantees the right to own guns against prohibitive regulation by states. In Heller, two years ago, the Supreme Court had applied the Second Amendment to individuals only against federal government regulation.

McDonald is a major advance for gun ownership rights. But the most interesting thing about the case is Justice Clarence Thomas’s separate concurrence. Four of the Justices decided that the 14th Amendment’s “due process” clause applied. Thomas argued, instead, that it is the “privileges and immunities” clause that matters.

Why care? Well, “privileges and immunities” is just a fancy way of saying “rights.”

That’s why we have courts. To protect our rights.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights too much government U.S. Constitution

Allergic to the First Amendment

The drug manufacturer Allergan is taking the Food and Drug Administration to court.

The FDA has ordered Allergan to violate the FDA’s own rules against disseminating information about “off-label” uses of a drug, uses that may be medically common but which, unlike “on-label” uses, were not specifically certified as safe and effective during the FDA’s approval process.

Once a drug has been approved, doctors may legally prescribe the drug for safe off-label uses.

The FDA now wants Allergan to send detailed safety information to physicians about both off-label and on-label uses of Botox®. Yet the FDA bans promoting drugs for off-label uses. A company may convey truthful information about such uses in only very restricted ways.

Companies have paid through the nose for violating these restrictions. In 2009, Pfizer had to pay $2.3 billion for promoting off-label uses of its drugs. Another $1.4 billion was looted from Eli Lilly for the same “crime.”

Allergan is understandably reluctant to obey a government agency’s edict to disobey other edicts promulgated by that same agency — especially when the price of disobedience can be so high. Better to solicit some judicial clarity.

Better, certainly, than following orders and hoping for the best.

Will the court vindicate and enforce constitutional protections for freedom of speech in the realm of pharmaceuticals? Such a ruling would unshackle drug companies from ludicrous hindrance, freeing them to speak.

And it would help doctors and patients.

This is Common Sense. I’m Paul Jacob.

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too much government U.S. Constitution

The Man Who Would Be Missed

A billboard went up in Wyoming, Minnesota. It features a photo of ex-prez George W. Bush, with a goofy smile and one of his off-kilter, clumsy poses, with the large caption “Miss Me Yet?”

Some dispute the intent of the message. The anonymous businessmen who paid for it aren’t talking. But it seems pretty clear to me. To ask the question is to challenge the current man in the hot seat.

For my part, I never hated George W. Bush the way some did — but I never admired him as did many others. In my mind, Bush didn’t do much for limited government and the rule of law. He mostly moved things in the other direction.

Sadly, that “other direction” is not exactly a new direction. It’s old hat. More government. More regulation. More spending. More debt.

And, even sadder, the current president likes George W. Bush’s direction. He’s taken Bush’s Keynesian stimulus ideas, and upped the ante. He took the bailouts, and bailed out more businesses. And he took Bush’s two wars, and he’s put more money and men and women into them.

Miss Mr. Bush? There are days when it looks like we’re experiencing his third term. And enough was enough already, long ago.

How long ago?

Picture good ol’ Grover Cleveland, and picture that picture with the caption, “Miss Me Yet?”

Well, yes.

This is Common Sense. I’m Paul Jacob.

Categories
First Amendment rights U.S. Constitution

Corporations Are Made of People

After the Supreme Court torpedoed restrictions on political speech by corporations, foes of the First Amendment bitterly denounced its Citizens United v. FEC decision.

They don’t consider themselves enemies of freedom of speech, of course. Instead, they think the Court erred by assuming that corporations have First Amendment rights. They say corporations aren’t people; they can’t have rights.

But hey: Corporations — non-profit or for profit — are actually made up of people.

One corporation denouncing free speech for other corporations is The New York Times. Their angry editorial states, “The Constitution . . . mentions many things and assigns them rights and protections — the people, militias, the press, religions. But it does not mention corporations.”

First, the Constitution does not assign any rights to “press” or “religion.” It forbids Congress from abridging individuals’ freedom of the press, freedom of religion.

Second, the Constitution doesn’t exhaustively list relevant institutions. The drafters thought everybody knew that one way we exercise their rights is to organize, cooperatively, into groups — à la freedom of association.

Media corporations have been exempt from limits on campaign spending and political speech. The Times group editorial mind ignores this contradiction. They’re saying, “Our corporate speech is special and worthy of constitutional protection! We’re sincere and good! Members of other corporations, by contrast, can’t be trusted! Therefore, the First Amendment does not apply to them!”

Insist all you like, Mr. Times. You’re still wrong.

This is Common Sense. I’m Paul Jacob.

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free trade & free markets general freedom too much government U.S. Constitution

Know Your Rights

For years, politicians and activists have declared that we have a right to medical care. Not a right to freely contract for medical services, mind you, but a fundamental right to medical care.

This assertion serves as the moral force behind those pushing for nationalized, universal health care legislation. But can medical care really be a basic right?

Well, it’s nowhere to be found in the Constitution or the Bill of Rights.

Should it be?

Again, no.

Rights cannot involve requiring others to provide a product or service to us. We can’t simply demand, with talk of rights, the expertise and labor of doctors, nurses and other healthcare workers. Why? Because they possess the same rights we possess, in particular, the right not to be enslaved.

Watching the 2,000-page health care bill plod through the congressional sausage factory, the fraudulent nature of this “right to medical care” claim becomes painfully obvious. We’re not getting a new right from the deal. Instead, politicians are slapping us with a new mandate, forcing us to fork over our hard-earned money to health insurance companies.

If our right to freedom of speech worked this way, the First Amendment would mandate that we buy a local newspaper and sign up for cable TV or XM Radio. The Second Amendment would force us to own a gun and pay dues to the NRA.

This is Common Sense. I’m Paul Jacob.

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First Amendment rights U.S. Constitution

A Holiday Declaration

Ten days before Christmas, America noted the 218th anniversary of the Bill of Rights . . . and I hadn’t even finished my own holiday shopping. I might wish that I could get you a pristine, enforceable Bill of RIghts, but it’s not just up to me.

It’s up to Congress, the Judicial branch, and the Executive as well. That’s a lot of people who need to be “on the same page.”

But it shouldn’t be impossible. The Bill of Rights, the first ten amendments, are short and clear. They easily fit on one page.

What you may not know, however, is that these amendments were based, in part, on a previous version known as the Virginia Declaration of Rights. The earlier version is helpful to establish context and eludicate meaning.

Perhaps even more interesting is the fact that some of the Declaration’s enumerated planks lack specificity. They serve as general reminders of how government is supposed to operate. Consider the 15th plank, which states that “no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.”

I hate to be the bearer of bad news on Christmas, but that sense of how government should work is no longer followed as the law of the land. Boy, I sure have a great idea for a New Year’s resolution.

This is Common Sense. I’m Paul Jacob.

Categories
Accountability national politics & policies U.S. Constitution

Ron Paul’s Gold Standard Version of Principle

They call him Dr. No.

But medical doctor and Congressman Ron Paul does more than vote against awful and unconstitutional legislation. He has also proposed many bills to roll back the government’s assault on our liberties — bills to get rid of the income tax, minimum wage laws, antitrust laws.

Of course, to advocate undoing decades of ever-more-brazen governmental interference in our lives is to swim against the tide. To most congressmen, the idea of limiting federal governance to constitutionally authorized functions is so old-fashioned as to be perverse. So Paul hasn’t had much luck with his initiatives.

But one of them is now back on the table: A bill authorizing the GAO to audit the Federal Reserve. Paul first advanced it in the early ’80s, and since then it’s been gathering dust. But thanks to the way the Fed has been conducting itself during the financial crisis, with all its massive yet secretive bailouts and interventions, the bill is now popular.

It has a good shot at passing.

Ron Paul himself won’t be voting for it, however. It’s going to be packaged with other legislation to impose new financial regulations, regulations he opposes. Paul says: “I won’t vote for a bill that’s a disaster because one or two or five percent of it is an improvement.”

Can’t argue with that. If only all our representatives had such scruples.

This is Common Sense. I’m Paul Jacob.