Category: U.S. Constitution

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First Amendment rights general freedom national politics & policies too much government U.S. Constitution

The Costs of Airport Security

John Tyner, a 31-​year-​old man hailing from Oceanside, California, not only declined San Diego International Airport’s kind offer of a full-​body scan via privacy-​invading machine, he also declined a full-​body groping via privacy-​invading human.

Unfortunately for TSA (who would like to make it unfortunate for Tyner as well) he happened to record his interactions with security personnel on a cell phone. Now TSA honchos are growling that they may well follow through with a threat to fine him $10,000 for not submitting to either procedure — inasmuch as it’s now a crime to care about one’s personal dignity.

The penalty has gone up, though, since TSA threatened Tyner at the airport. It’s now $11,000.

Five or ten dollars for refusing an obnoxious groping, I understand. Or a nickel. Better? A penny. But thousands of dollars?

I’m sure other aspiring passengers who initially cooperated with such intrusions also decided mid-​procedure that things were getting too invasive for comfort and that retreat was the better part of valor. I doubt that TSA has sought to extract $10,000+ from each recalcitrant.

But it seems Tyner’s conduct is especially heinous. First, he balked at unreasonable search of his person; second, he blatantly exercised his First Amendment rights by shockingly sharing evidence and testimony about what happened.

If the TSA doesn’t do something, fast, more and more people might act as if their constitutional rights still apply.

Do they?

This is Common Sense. I’m Paul Jacob.

Categories
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.

Categories
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.

Categories
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.

Categories
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.