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June 26, 2008

Good News on Guns!

Rarely do we at the Rio Grande Foundation discuss the 2nd Amendment or gun rights, but the Supreme Court's decision in District of Columbia v. Heller is a very big deal because it is a clear sign that the Court hasn't completely abandoned attempts to read the document as it is written.

While it is impossible to underestimate the restoration of the right to carry guns in Washington, DC and other jurisdictions that have attempted to write their own laws in defiance of the Constitution, it would be really great if this trend towards Constitutional adherence were applied by the Court to the 9th and 10th amendments.

August 25, 2007

Kudos to the ACLU

We don't always see eye-to-eye with the ACLU, but it is hard to argue with their standing up for the concept of "innocent until proven guilty." According to news reports, a truck driver was stopped at a weigh station on U.S. 54 in New Mexico north of El Paso, Texas. He gave police permission to search his truck to see if it contained “needles or cash in excess of $10,000.” While the driver had no needles, he did have $24,000 in cash.

Now, the DEA is holding the driver's cash unless he can prove that the money was not related to drugs. Now, I'm not sure exactly how anyone can possibly be expected to affirmatively prove their innocence, but so are the inner workings of America's bizarre asset forfeiture laws.

June 14, 2007

New Law Improves New Mexico Ranking on Property Protections

According to a new publication from the Institute for Justice, the non-profit law firm that litigated for property owners in Kelo v. New London, New Mexico's eminent domain reforms passed during the last legislative session give the state an "A" when it comes to protecting property owners.

We knew the reforms were good and we're happy that both Governor Richardson and the Legislature were able to find agreement on the issue without caving to special interests. For more information on eminent domain and the relative degree of protection in all 50 states, check out the report card here.

January 12, 2007

The First Limited Government Candidate for the '08 Presidency Jumps Into the Ring

Ron Paul, the constitutionalist-Republican Congressman from Texas has set up an exploratory committee for the purposes of running for President in 2008. Given the dearth of small-government types in either party that have announced for 2008, Dr. Paul's candidacy is a welcome development. If nothing else, it will be interesting to what extent he can attain a platform to discuss his limited-government views. We at the Rio Grande Foundation certainly welcome a real debate over the role of government in our daily lives.

December 22, 2006

Ending Eminent Domain Abuse in NM

Thanks to Walter Bradley for his fine opinion piece supporting defense of our precious property rights in New Mexico.

We discovered that local governments could use New Mexico's incredibly broad condemnation authority to take virtually any property in the state and hand it over to developers.
Most people recognize the need for eminent domain to accomplish traditional public uses, such as roads and utilities. But, 99 percent of the public comments to the task force made clear the overwhelmingly predominant position of citizens: New Mexico should respect the rights of individuals to keep what they have worked so hard to own, and should protect its citizens from eminent domain abuse.

December 20, 2006

More Eminent Domain

To cap on Harry's blog regarding the encouraging news on eminent domain, the Governor's announcement is very good news because, should the legislation he has outlined pass, the protections for property owners will be far better than they would have been under the bill he vetoed last year. If you are curious, the final recommendations are available here.

Don't think that the fight is over, however. The Municipal League has already come out and said they will fight hard against these reforms.

Eminent Domain in New Mexico -- Looks Like Good News

According the the Albuquerque Journal this morning Governor Richardson is proposing to "ensure that government cannot take private property for economic development."

Richardson's proposal, which incorporates recommendations from a governor-appointed task force, would repeal the state's Urban Renewal and Community Development laws.
It also would remove eminent domain power from the Metropolitan Redevelopment Act, a comprehensive economic development statute, said Richardson's Deputy Chief Counsel Vincent Ward.
The proposal will not limit governments' traditional use of eminent domain to condemn property for the public use, such as widening roads or to build schools, Ward said. But it would bar the taking of private property for economic development. Many viewed last year's ruling by the nation's top court as creating an additional use for eminent domain.

Thanks to Paul and the Institute for Justice for their effective work on the eminent domain issue.

November 08, 2006

Bad News and a Little Good News

Maine, a state that is as bad as New Mexico in many ways, saw its constitutional amendment to limit taxing and spending go down to defeat.

But a little good news too: the wasteful "quality of life tax" went down to defeat in ABQ.

October 13, 2006

Gangster Politicians

Check this video on eminent domain out. The sad thing is that gangsters' views of our property rights are little different from those of our political leaders. Worse still for New Mexicans, while this video was made by a Nevada group supporting an initiative that will be on the ballot to protect property owners this fall, we don't have the citizen initiative and must rely on Governor Richardson and others to pass necessary protections.

September 26, 2006

Governor Richardson's Eminent Domain Task Force to Hold Public Meeting, Take Comments

It is important for opponents of eminent domain to attend the meeting this Thursday of the Governor's Eminent Domain Task Force. This will be the only opportunity that the public will get to express their opposition to eminent domain abuse.

Pertinent information is as follows: The meeting will be held at 4:00 PM on September 28th (this Thursday) at the Village Hall in Los Ranchos de Albuquerque. The Village Hall is located at 6718 Rio Grande Blvd. NW.

The purpose of the meeting is to allow members of the public to provide comments and suggestions to the Task Force. The Task Force was convened by Governor Bill Richardson following the recent decision of the United States Supreme Court in Kelo v. City of New London, to study the adequacy of New Mexico's eminent domain laws and determine whether there is currently sufficient legislative protection to prevent the abusive use of eminent domain for economic development purposes.

If you are unable to attend the open meeting, please send comments to the Task Force via mail, fax, or the Governor's website as follows:

Mail: Governor Bill Richardson
Attn: Task Force on the Responsible Use of Eminent Domain
State Capitol Building, Suite 400
Santa Fe , NM 87501
Fax: (505) 476-2207
Website: http://www.governor.state.nm.us (click on contact the Governor)

Questions concerning the Task Force can be directed to the Governor's Office at 476-2200.

July 14, 2006

Eminent Domain Curbed in Missouri

Governor Matt Blunt (R) in Missouri has signed legislation restricting use of eminent domain. His bill is particularly good in that it bars the taking of private property solely to increase taxes or create jobs; It explicitly rejects the Supreme Court decision Kelo v. New London; and it increases the compensation for seized homes from market value to a premium level (since clearly the owners did not want to sell and value their homes above the market clearing level). It also provides additional tools for homeowners to fight with in court and a "Property Owner's Bill of Rights" to educate those faced with a possible eminent domain seizure.

Good for Missouri. Now lets demand the same in New Mexico!

June 24, 2006

RGF in the news

In case you missed it, the Rio Grande Foundation got some nice ink in the Albuquerque Journal relating to our rally marking the one-year anniversary of the Kelo decision.

Whether Governor Richardson's commission succeeds in finding a solution that secures our individual property rights or whether John Dendahl pulls an upset and pushes legislation through the legislature next year, we hope that this will be the last time New Mexicans are forced to mark this dreadful Supreme Court decision.

Adding Insult to Injury

President Bush celebrated the first anniversary of the Supreme Court's Kelo decision with an Executive Order, basically restating the Fifth Amendment to the US Constitution. By the President's order, private property is now protected by:

limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.

It's absurd that the Fifth Amendment needs repeating, especially to certain Justices whose reading comprehension is diminished in the presence of our founding documents.

We're still at the mercy of state and local government land grabs, but I guess we're not supposed to worry about the Federal government, at least until January, 2009, when our next chief executive may have other orders in mind.

Our government was founded on the principle that individual rights are not subject to the whim of any one man or government body. They are not granted to us by government, but inherent in our very existence as sentient beings. We should demand a government that holds our Constitutional rights as inviolable, not feel grateful for whatever meager scraps of rights a government official is willing to indulge.

The President's Order is an insult. His oath of office would be better served by leading a movement to impeach those Justices who rule in clear violation the US Constitution.

Property Rights in 21st-Century America

Speaking of the failure of New Mexico to protect the cornerstone of liberty, there is a new book out. In Cornerstone of Liberty: Property Rights in 21st-Century America, a new book published today by the Cato Institute, Timothy Sandefur, a staff attorney at the Pacific Legal Foundation, examines the state of property rights after Kelo.

June 23, 2006

Su Casa Es Mi Casa

Today marks the 1st anniversary of the Supreme Court's Kelo decision. It was such a bad interpretation of the constitution that it makes you wonder what they were smoking.

Bulldozer.jpg


Property rights are the cornerstone of the liberty that has made us so prosperous. Paul is leading an event today that calls attention to New Mexico's subsequent failure to protect those property rights.

Thanks to Robin for the graphic.

June 14, 2006

Hollywood Needs to Get a Clue

As we rapidly approach June 23rd, the one year anniversary of the Supreme Court's Kelo decision, this story made me pause and think about just how out of touch most Hollywood elites are with the rest of Americans.

Where was Hannah when Susette Kelo and her neighbors when they were evicted by the city of New London recently? How about a little righteous outrage over the fact that any of us can now have our homes taken away from us for any reason, by some government bureacrat?

No, instead, we have actress Daryl Hannah sitting in a tree to stop the owner of the land on which an urban garden has been located. Worse, Hannah and her cadre of anti-property rights activists are only making it less likely that land owners will allow others to use their land on a temporary basis because when the time comes that they do need it back, the property owner is in for nothing but ingratitude and trouble.

Paul Gessing

May 26, 2006

Hey, NY Times, Whatever Happened to the "Living Constitution?"

This morning the NY Times has suddenly abandoned its usual advocacy of a living constitution. Instead it wants politicians in the legislative and executive branches to be constrained by what the Constitution actually says regarding separation of powers:

The constitutional claims made by the Congressional leadership on the Jefferson case seem overblown. House and Senate members are protected from arrest while going about their official business to shield them from intimidation and meddling by the executive branch in the affairs of state, not to deter law enforcement officials from doing their lawful duty to investigate possible felonies.

But members of Congress who have been politically comatose or complicit as the Bush administration built itself an imperial presidency, immune from the historical powers of the legislative branch, are up in arms. The House Judiciary Committee, which has been in the forefront of the long-running cave-in, has scheduled a hearing that the chairman has titled "Reckless Justice: Did the Saturday Night Raid of Congress Trample the Constitution?"

Too bad the Times is so selective in wanting to follow the rules laid out in the Constitution. They should pay attention to the scholarship of James M. Buchanan:

In 1987, the United States celebrates the bicentennial anniversary of the constitutional convention that provided the basic rules for the American political order. This convention was one of the very few historical examples in which political rules were deliberately chosen. The vision of politics that informed the thinking of James Madison was not dissimilar, in its essentials, from that which informed Knut Wicksell's less comprehensive, but more focussed, analysis of taxation and spending. Both rejected any organic conception of the state as superior in wisdom, to the individuals who are its members. Both sought to bring all available scientific analysis to bear in helping to resolve the continuing question of social order: How can we live together in peace, prosperity, and harmony, while retaining our liberties as autonomous individuals who can, and must, create our own values?

May 03, 2006

Eminent Folly

In the most recent outrage over the abusive use of eminent domain, the Village of North Hills in New York is attempting to seize a private golf course. Amazingly, the mayor of the town attempting this heist has said that the government should be able to take over the course simply because, if public, it would be "a nice amenity."

With everything else going on in the world, it is easy to forget that less than one year ago the US Supreme Court decided that any government should be able to take anyone's property, for most any reason, at any time they like. We cannot rest until every state and the federal government has acted to restore individual property rights.

January 07, 2006

Bigger Government Means Bigger Scandals

Former FEC chair Brad Smith has some good advice for Republicans, although I doubt they will take it:

...use this [Abramoff] scandal to cut the size of government. Go forward and make the case: "This, dear people, is what big government is. It is favors for special interests, unrestrained pork barrell spending, and a government so big you, dear voter, can't begin to keep an eye on all parts of it. It is lobbyists and money and corruption. Lobbyists lobby because government is giving out favors and subsidies, writing exemptions into the tax code, regulating most things you do and claiming the right to regulate everything else. The solution is not more regulation. It is smaller government. Take the power away from the politicians."

Of course, the advice is good for politicians of all stripes, not just Republicans.

December 28, 2005

Giving Up Essential Liberty?

Like Matt, I am more than a little bit nervous about eavesdropping on domestic phone calls.

Nevertheless I had to laugh at this gotcha to both sides of the partisan debate.

Let us not forget the perspective of Ben Franklin:

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty not safety..

You can be sure that your Foundation will be working tirelessly to defend liberty in 2006.

Update 12/28/05: More on giving up essential liberty in other contexts here.

December 19, 2005

Happy Birthday Fourth Amendment!

On December 15, 1791, the Fourth Amendment to the United States Constitution was ratified. It read:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Two hundred and fourteen years and one day later, we learn this.

The President may not be familiar with this part of the Constituiton. I wonder if he is familiar with Article II, Section 1 which requires him to:

solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.


(Need I mention Article II, Section 4?)

October 21, 2005

Is Colorado sliding south to New Mexico?

I have heard rumors that nearly to 50 percent of Coloradoans believe in the tooth fairy. On November 1st they may overturn their states constitutional limits on taxing and spending via referenda C and D (mail in balloting has already begun). They believe that increased real, per capita spending will improve health care and education. Never mind that the constitutional limits have brought unprecedented prosperity to Colorado. All levels of government have had to make hard choices about the effectiveness of their spending.

Wishful thinking Coloradoans ought to visit New Mexico where the tooth fairy has been exposed as a fraud. Colorado is the envy of New Mexicans. If only we could get the government off of our backs as they have done in Colorado!

Those Coloradoans who really truly believe in the tooth fairy should move to New Mexico where we are last in everything good and first in everything bad. Why coerce other Coloradoans into accepting your wishful thinking?

October 01, 2005

Why we don't want a right to everything

Judge John Roberts has now been confirmed as the 17th chief justice of the US Supreme Court. Bushy is set to name another justice to fill the second vacancy any day (hour?) now. So it seems an appropriate time for another post on constitutionalism.

One of the themes Senator Biden sounded during the Roberts hearings was why the nominee did not support a broader interpretation of the Constitution to include more rights. A few weeks ago I offered one reason why the judge might be reluctant to recognize some rights. Namely: they might not be in the Constitution. But going beyond that, we might ask WHY some rights are not in the Constitution. If they are not, perhaps it is time from some amendments to put them there?

Let us begin with the republics mission statement, the Declaration of Independence. Perhaps better than any document before or since, the Declaration articulated the Enlightenment Eras conception of government: People have certain unalienable rights. Governments are constituted for the purpose of securing these rights. If the government fails in this raison detre, the people have a legitimate cause to overthrow the government.

So if governments are constituted for the purpose of securing rights, then why not secure the heck out of all sorts of rights? This was basically the gist of Senator Bidens indignant question to Mr. Roberts.

The answer is rather simple. It lies in the somewhat paradoxical fact that rights inherently involve restrictions of freedom. My right to life restricts your freedom to kill me. When we say that someone has a right to something we mean that the rest of us have an obligation to respect that right. Some obligations are more costly than others. And in some instances the obligation to respect Mr. As right may be onerously costly to Mr. B. It may even cost Mr. B his own rights! Thus, we have to be very careful when we delineate the rights which people possess. We cannot just hand them out like so many public high school diplomas.

To make this more concrete, let us think of some rights which can be respected with relatively low cost. Take, for instance, the right to life. When we say that I have a right to life, we oblige the rest of you to respect that right. In general, it is fairly easy to respect it. You dont have to do anything but resist the temptation to pull a trigger. For another example, take the right to property. Here again, my right to my wallet means that you are obliged not to take it from me. Not too terribly onerous an obligation. These are examples of what philosophers call negative rights. They get their name because respecting them requires no positive action be taken by others.

I think it is safe to say with little exaggeration that at the time of Americas founding, negative rights were the only recognized rights. Those who recognized a broad class of negative rights were called liberals and those who had a more circumscribed view of rights were known as conservatives. (Nowadays few thinkers in the Western world defend the old conservative position.) As the 19th century wore on, however, some came to recognize a new species of right: what some have called a positive right.

Unlike a negative right, a positive right DOES obligate positive action be taken by others. For instance, some say that I have a right to medical care. You are in violation of my right if you are a doctor and you do not provide medical services to me. When society says that I possess a positive right like that of medical care, it is asking a great deal more of my fellows than when it says I have a negative right. It is obliging the nurse, the doctor, the hospital employee to attend to me. Other examples of positive rights include the right to education, or what FDR called the right to freedom from want.

Like those recognizing negative rights, those recognizing positive rights also called themselves liberals. This of course, got confusing, so to distinguish themselves from both conservatives and the new liberals, those who didnt recognize positive rights began to call themselves classical liberals. Increasingly, they call themselves libertarians.

Anyway, back to the story. Why do libertarians fail to recognize positive rights? For one thing, it is simply more costly to impose an obligation on others to do something than it is to oblige them not to do something. In most instances, the obligation to respect anothers right to life or property can be fulfilled without cost. But an obligation to provide medical care can be extremely costly. Are all doctors obliged to save all people who might be suffering at all times? Obviously they must sleep. Are they permitted to take the weekend off? If we oblige someone to take a certain course of actionwhich is what we do when we recognize a positive rightwe rob people of their more fundamental negative right to liberty.

The logic becomes crystal clear when we take the example to its extreme and recognize every positive right which comes to mind: a right to a job, a car, a girlfriend. The only way to recognize these rights is to force others to hire you, give you cash, or go see a Hugh Grant movie with you. A free society is impossible when everyone has a right to everything under the sun.

Because positive rights can be so much more costly to respect, their recognition poses another important problem: the risk that society will simply ignore them. No society is actually going to enforce someones right to medical care by obliging every doctor and nurse to work every waking hour. Thus society is likely to tolerate the abridgement of positive rights. Once it becomes acceptable to abridge a positive right, it may become acceptable to abridge more fundamental negative rights.

On this, all liberals, classical and modern can agree. A society which fails to recognize fundamental negative rights is a society which is lost.

September 16, 2005

Down with the fair-weather constitutionalists

Weve heard a lot of platitudes about the Constitution this week. My personal favorite was Joe Bidens description of the document as our civic bible. Most politicians treat the Constitution as some sort of flag: An iconic and patriotic symbol to be revered. It is a convenient symbol for them, easily worked into speeches as a substitute for apple pie, eagles soaring and other American metaphors.

Unfortunately, I believe that few politicians actually think about the Constitution. Few know its purpose, its meaning and what respecting it actually means. Far too often, politicians are opportunistic about constitutionalism. They proudly don the language of strict constructionism when doing so will promote their pet cause only to turn around and praise the benefits of a looser interpretation when the Constitution seems to stand in the way of their goals. They are fair-weather constitutionalists.

Think, for example, of Al Gore who complains regularly that the Justice Departments prosecution of the war on terror has jeopardized important constitutionally-guaranteed rights. Personally, I think the former VP has a good point. Unfortunately, it is vitiated when we consider that just a few years earlier it was Gore who said that the Constitution was a living, breathing document. It was he who claimed that we should not strictly interpret the Constitution so as to limit governments ability to do what seems right. His philosophy might be described as something like this: The Constitution permits policies which I feel are right but prohibits policies I feel are wrong.

Lest you think I am picking on Mr. Gore, the conservatives are just as bad. A few months back the Supreme Court struck down the national do not call list because it was erroneously put under the purview of the Federal Trade Commission, an agency which lacks the statutory authority to oversee such a program. The President argued that two popularly elected branches of government had made a decision and that the third should respect that decision. This is exactly the wrong way to think about our constitutional system.

We have a constitution because we DONT think that the popular majority should always get what it wants. What if a majority of people want to disarm a minority? What if a majority wants to establish a national religion? Put someone in jeopardy of life or limb without due process? Tough. They cant. And it is the Constitution which ensures that they cant. As John Adams put it, ours is a nation of laws and not men.

This may mean that we have to inconvenience ourselves and do things by the book. It may even mean that policies like the do not call list will be delayed while we find the Constitutionally-permitted solution (which, by the way, we have in the case of the list).

Why should we inconvenience ourselves? What is the virtue of a society based on the rule of law? What if the law is bad? What if it seems like you can achieve more good in the short run by breaking the law?

To answer these questions, we must first appreciate that government has a monopoly on force. It has the legal authority to take property, arrest citizens, order certain conduct and even put someone to death. We need government to have these powers because we need it to protect us from others. But we must recognize that governments authority might be very dangerous. As Washington put it, Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master. Recognizing this, it is important that governments power be carefully circumscribed by a strictly adhered-to constitution. It is necessary that the constitution explicitly state the powers delegated to the government so that those with a monopoly on force are not permitted to use force arbitrarily. It may even be necessary to explicitly say what powers are not given as in the prohibition on establishing religion or infringing on the right to keep and bear arms.

But notice something very important: One need not agree with everything in the Constitution to believe that the Constitution should be obeyed! I, for one, do not care for the 16th Amendments legalization of the income tax. Nor do I like the fact that the Constitution permits capital punishment. While my opposition to these provisions might make me support amendments to change them, they do not make me change my interpretation of the Constitution. Clearly, the Constitution permits income taxation and capital punishment (the latter is mentioned a number of times in the document). To argue otherwise is to misuse the Constitution. It is to weaken the document by finding provisions in it which are simply not there.

Today the Constitution has been severely weakened. The government no longer bothers to follow the Constitutional requirement that Congress declare war when it sends troops into combat. Since 1936, Congress has regulated labor contracts despite the fact that no such power exists in the Constitution. Since 1942, Congress has regulated commerce even when that commerce is not interstate as the Constitution requires. More recently, it has been declared Constitutional for local governments to take private property and give it to other private citizens. And the latest: An American citizen can be detained indefinitely without honoring the 5th Amendment requirement that no one be deprived of life, liberty or property without due process.

Any justice willing to stand up to this slow but ever-advancing erosion of constitutionalism would be a welcome addition to the Supreme Court. Let us hope that Judge Roberts is such a judge.

Constitutionalism and the Supreme Court

Readers of this page will know that constitutionalism is very near and dear to our hearts. Both Harry and I are products of George Mason University, an institution made famous by the pioneering work of Nobel Laureate James Buchanan on the political economy of constitutions. Buchanans life-long career might be described as an intellectual defense of James Madisons project, that is, a defense of constitutionalism. With two vacancies on the Supreme Court, now seems an appropriate time to muse over some Constitutional issues. Stand by for a number of posts on the subject.

August 15, 2005

More Thoughts on Political Process

Arnold Kling has some good thoughts on why political process leads to inferior results. Good follow-up to my post on why I think Tyler Cowen is wrong on Tax and Spend Limitations.

July 04, 2005

Independence Day

With thanks to the Bluegrass Institute:

The Founders Cornerstones

In this modern age, when we commemorate the 229th birthday of these United States, we may recite the rightness of our Declaration of Independence from Great Britain:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

Less often, though, do we ponder how the Founders of our nation came to this understanding of legitimacy in government.

The magnificent document from which the above passage is taken defines the basis of our Republic, but whence arose the ideas that impelled the Founders to set our nation off on the path of separation from rule by the kings of England? These precepts are a distillation of the free English laws in which the American colonists were schooled before setting foot on this land, where the colonial Americans became steeped in the experience of life in conditions of freedom.

Thus, the cornerstones on which the Founders built our new country were religious liberty, sanctity of personal property, practical exercise of freedom in daily living, and necessity of self-government. These were laid deeply in the manners and principles by which the earliest American colonial settlers made their way in the New World, during the century before the Founders concluded that we must embark on a course of nationhood.

In the Declaration, our Founders criticized King George III, saying, "He has refused his Assent to Laws, the most wholesome and necessary for the public good." Could this charge not as readily apply to U.S. judges striking down laws people believe to be just as essential today?

Our Founders continued criticizing the King, noting, "He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people." Although more subtle and insidious, our courts today have "repeatedly dissolved" the actions of our "Representative Houses" in "opposing with manly firmness" the judiciary's "invasions on the rights of the people."

Hence, the colonists felt the profound injustice of the British king's deviation from adherence to the laws underpinning his reign, which led to the break in 1776. As the Founders noted, "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States."

Reading these charges today, especially in light of the Supreme Court's assault in recent weeks on the U.S. Constitution -- the document that implements the Declaration's principles in practical government -- we should wonder, are we indeed the heirs of our Founding generation? Two indictments are suspiciously aligned with allegations we could, and perhaps should, lay against our U.S. courts.

Consider this charge: "He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance." Could this not as easily describe the Supreme Court's decision permitting governments to take the private property of one citizen and bestow it on another who is expected to pay more taxes?

Add this: "For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments...." This past week's Supreme Court decisions in regard to Kentucky and Texas governments, acting under their state charters to acknowledge God and the Ten Commandments, could be argued to have abolished their "most valuable laws" and "fundamentally altered the forms of those governments."

Are these parallels remarkable? Or does growing tyranny present the same face wherever it appears?

Founder John Adams made an eloquent case for both private property ownership and public religious observance:

"The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If 'Thou shalt not covet' and 'Thou shalt not steal' were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free."

We would do well this Independence Day 2005 to ponder them, and to pray that we ourselves will have the courage of purpose and strength of character to put back aright those cornerstones so carefully laid by our Founding Fathers.

Reprinted in this abridged form courtesy of The Federalist Patriot, free by e-mail at http://FederalistPatriot.US

July 03, 2005

Good Riddance to Sandra Day O.C.

At least she dissented in the Kelo and Medical Marijuana decisions.

But other than that she seems to have forgotten that she took an oath to uphold the constitution. Here is Chuck Muth on some of her swing votes:

"Well, there was that 5-4 affirmative action decision in which "The O.C." was the swing vote. That's the one which said some racial discrimination in college admissions is OK, while other racial discrimination isn't. And that certain racial discrimination policies are OK today, but might not be OK 20 years from today. Reflect on that one.

And then there was the 5-4 decision in which "The O.C." was the swing vote upholding the blatantly unconstitutional McCain-Feingold law which bans political advertisements by most Americans (but not the liberal editorial pages of the Washington Post or the New York Times) which are critical of candidates in the final 30 days of an election. Yeah, that's something to reflect on.

We should also reflect on "The O.C.'s" embrace of the practice of using international law and court opinions as the basis for Supreme Court decisions, rather than that silly, old, antiquated, outdated U.S. Constitution thingy.

And then there was O'Connor's swing vote which overturned a ban on one of the most grisly surgical procedures ever devised by man: partial-birth abortions. Even most pro-choicers find this procedure to be a bridge too far. But not "The O.C." Sucking out the brains of an infant and killing it inches away from delivery. That's certainly something to reflect on."

By the way, if you do not already subscribe to Muth's newsletters, you should.

June 30, 2005

Chickens Coming Home to Roost for Justice Souter

This via Professor Frasca at Division of Labour:

On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter's home.
Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Caf" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon's Bible each guest will receive a free copy of Ayn Rand's novel "Atlas Shrugged."

June 23, 2005

Sorry, are my teeth grinding?

This sort of ruling gets my constitutionalist-blood boiling.

As Harry recently noted, its nice to have a doubting Thomas.

His dissent showed crystal clear economic insight with regard to subjective value and consumer surplus:

So-called urban renewal programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted.

I hope good people running for local office in New Mexico are paying attention to this. Let's not let this happen here!

April 19, 2005

The Constitution in Exile

Here is what I think a fascinating article. It is long, but so worth it. It is about "The Constitution in Exile" movement.

For one thing, it's fascinating to hear the author describe standard Lockean arguments upon which our republic was founded. He writes with a tone which indicates that he thinks these are crazy new ideas:

"As Epstein sees it, all individuals have certain inherent rights and liberties, including ''economic'' liberties, like the right to property and, more crucially, the right to part with it only voluntarily. These rights are violated any time an individual is deprived of his property without compensation -- when it is stolen, for example, but also when it is subjected to governmental regulation that reduces its value or when a government fails to provide greater security in exchange for the property it seizes."

Or try this one:

"[Epstein] insists that if the government wants to reduce the value of an individual's property -- with zoning restrictions, for example -- it has to compensate him for the lost value."

I also like the movement's occasional skepticism of states-rights, which I have shared for a long time:

"One of Greve's goals at the American Enterprise Institute is to convince more mainstream conservatives that traditional federalism -- which is skeptical of federal, but not state, power -- is only half right. In his view, states can threaten economic liberty just as significantly as the federal government."

Finally, the article talks about a few Supreme Court Nominee possibilities that would be awesome. For example, Judge Janice Rogers Brown, who has referred disparagingly to ''the dichotomy that eventually develops where economic liberty -- property -- is put on a different level than political liberties.''

Amen!

Thanks to Alex Tabarrok for the pointer.

April 02, 2005

I might be a convert

Like the Founding Fathers, I have never been extremely enamored of democracy. Usually, when I tell people this, they jump to the assumption that I must prefer autocracy or one of its variants. But you see its not the demos (people) part of democracy to which I object. Rather, it is the kratia (rule) part.

I think the happiest places on earth are those where individual rights reign supreme, and no one--not king, council or even a popular majority--is permitted to invade certain inalienable rights of the individual. To ensure these rights, strong (explicit or implicit) constraints on those in possession of political power are necessary.

In the US, an important aspect of that constraint is, of course, the Constitution. Expressing a common belief of the founders, the chief architect of that document, James Madison, noted that, democracies have ever been incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. He went on to argue, A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking. (See Federalist 10)

In other words, representative government is one way to keep the majority from running roughshod over the minority. That is why Madison and company gave us, in Franklins words, A republic, if you can keep it.

In many ways we havent. Over the last 100 years, the United States has seen an explosion in direct democracy. In 1897, South Dakota became the first state to adopt the popular initiative and referendum. The former allowed citizens to introduce their own legislation and the latter allowed them to vote on issues originating in the legislature. Over the next 20 years, half of the other states in the union adopted similar measures.

As a (small r!) republican, I have tended to regard this change as unfortunate. By empowering the majority to make whichever laws it sees fit, I worry that the states have slowly eroded the rights and freedoms individuals.

Despite, these misgivings, I must admit that the empirical evidence appears to be against me. The economist, John Matsusaka, of the University of Southern California, for example has found that while initiatives do not have a consistent effect on the overall size of state and local government they do systematically lead to more decentralized government, which is generally considered by public choice economists to be more efficient than centralized government. Matsusaka has a forthcoming article in the Journal of Economic Perspectives which declares Direct Democracy Works. He has also begun an Institute dedicated to promoting direct democracy.

Other scholars have found similar results. The European economists Bruno Frey and Alois Stutzer studied direct democracy in Switzerland where citizens in some cantons have greater access to instruments of direct democracy than citizens in other cantons. They found that it systematically and sizably raise[d] self-reported individual well-being. As an aside, they also found that local autonomy appears to increase happiness.

As an unabashed fan of limited government, I also cant help but be impressed with initiatives like Californias Prop 13 or Colorados Taxpayer Bill or Rights. Perhaps New Mexicans should consider direct democracy as well?

October 26, 2004

Thank God our Power to Vote is Limited!

The election is nearly upon us and now seems an appropriate time to remember why democracy is so messed up.

Imagine three voters with three different opinions about the Iraq war. Our voters are Abel, Bobby and Carl. Abel is a dove. Her first preference is to have a small number of troops in Iraq. If she cant have her first preference, Abel wants to keep troop levels where they are now. Her last preference would be an increase in troop levels. Bobby doesnt like change. He would like to see the number of troops remain as they are. If he cant have this, his second choice is to increase the number of troops to many. His third preference is to decrease troop levels to few. Finally, we have Carl. Carls first choice is to have many troops in Iraq. But if he cant have this, Carl would like to see few troops there. Comparing the current conflict to Viet Nam, Carl believes that the worst choice we can make is to leave troops at their current, intermediary level. For him, it is best to have either many troops or just a few. Summarizing, our voters have these preferences:

________Abel____________Bobby_____________Carl
1st_____Few_____________Current____________Many
2nd____Current__________Many_______________Few
3rd_____Many____________Few_______________Current

Let us assume that Abel, Bobby and Carl all live in a direct democracy governed by the simple majority rule. What will be the outcome of the election? Let us say that this November, the choice presented to the voters is between many troops and the current level (the option few troops is not on the ballot). Abel and Bobby will vote for the current level, winning the election over Carls vote for many troops. Let us then suppose that in December, there is another election, this one asking voters to choose between the current level and a lower level. Abel and Carl will then vote for few troops, beating Bobbys vote for the current level. Finally, in January, voters are asked whether they prefer few troops to many troops. Now, Bobby and Carl will vote for many troops while Abel will vote for few.

So, without changing underlying preferences, voters will first vote to keep troops at the current level. They will then vote to decrease the level. Then they will then vote to put troops at the highest level. From there, they might vote to put troops back at the initial level. Voter theorists term this problem cycling. If we saw it in a person rather than an electorate, many of us would conclude that he or she were crazy! Someone preferring milk to juice and juice to water, ought to prefer milk to water! Notice, moreover, that each of the individuals in our little democracy has completely rational preferences. It is only when we try to aggregate preferences that we run into trouble. I should note that democracy doesnt always produce this odd result. But it is quite possible under reasonable assumptions. Vote rules other than simple majority can make the cycling less likely, but none can rid us of it.

Perhaps we can avoid the problem by letting voters vote for all three options simultaneously? To see how this might work, assume that 30 percent of the public has Abels preferences, another 30 percent has Bobbys and the remaining 40 percent have Carls. Now, if given all three choices, 40 percent of the public would vote for many troops, 30 percent would vote for current levels and another 30 percent would vote for few troops. The electorate would choose many troops. But, referring again to the chart, we see that though the election selected many troops, 60 percent of the public would have preferred current levels to more! (Gore supporters angry with their Nader-voting friends no doubt understand this frustration.)

As far as we know, this problem with democracy was first discovered by a French nobleman named the Marquis de Condorcet in 1785. Though cycling (also called Condorcet's paradox) received some attention at the time, people seemed to forget about it. The mathematician, C.L. Dodgson (better known as Lewis Carol to readers of Alice in Wonderland) rediscovered the problem in the late 1800s. But again the idea was lost. The economists Duncan Black and Kenneth Arrow independently rediscovered the possibility of cycling in the middle of the 20th century. Though volumes have been written about the problem in academic forums, it has been almost entirely ignored in everyday discussions about democracy.

For me, cycling takes its place alongside many other problems with democracy such as tyranny of the majority and tyranny of the interest group. Given the fairly obvious undesirability of other forms of government, I suppose we are left to deal with it.

We can take solace in the fact that our Constitution severely curtails the power of everyones vote. We cannot, for instance, vote to deprive someone of life, liberty or property without due process. Nor can we vote to establish a religion or infringe upon the right to bear arms. There was a time when courts held that we could only vote to have government do those things which were specifically enumerated in the Constitution. So let us celebrate the Constitution which limits our power to vote and lament the passing of an age when the Constitution limited much more.