Archives: December, 2011

Today Is Bill of Rights Day

Today is Bill of Rights Day. So it’s an appropriate time to consider the state of our constitutional safeguards.

Let’s consider each amendment in turn.

The First Amendment says that “Congress shall make no law… abridging the freedom of speech.” Government officials, however, have insisted that they can gag recipients of “national security letters” and censor broadcast ads in the name of campaign finance reform.

The Second Amendment says the people have the right “to keep and bear arms.” Government officials, however, make it difficult to keep a gun in the home and make it a crime for a citizen to carry a gun for self-protection.

The Third Amendment says soldiers may not be quartered in our homes without the consent of the owners.  This safeguard is one of the few that is in fine shape – so we can pause here for a laugh.

The Fourth Amendment says the people have the right to be secure against unreasonable searches and seizures. Government officials, however, insist that they can conduct commando-style raids on our homes and treat airline travelers like prison inmates by conducting virtual strip searches.

The Fifth Amendment says that private property shall not be taken “for public use without just compensation.” Government officials, however, insist that they can use eminent domain to take away our property and give it to other private parties who covet it.

The Sixth Amendment says that in criminal prosecutions, the person accused is guaranteed a right to trial by jury. Government officials, however, insist that they can punish people who want to have a trial—“throwing the book” at those who refuse to plead guilty—which explains why 95 percent of the criminal cases never go to trial.

The Seventh Amendment guarantees the right to a jury trial in civil cases where the controversy “shall exceed twenty dollars.” Government officials, however, insist that they can impose draconian fines on people without jury trials.

The Eighth Amendment prohibits cruel and unusual punishments. Government officials, however, insist that a life sentence for a nonviolent drug offense is not cruel.

The Ninth Amendment says that the enumeration in the Constitution of certain rights should not be construed to deny or disparage others “retained by the people.” Government officials, however, insist that they will decide for themselves what rights, if any, will be retained by the people.

The Tenth Amendment says that the powers not delegated to the federal government are reserved to the states, or to the people. Government officials, however, insist that they will decide for themselves what powers they possess, and have extended federal control over health care, crime, education, and other matters the Constitution reserves to the states and the people.

It’s a disturbing snapshot, to be sure, but not one the Framers of the Constitution would have found altogether surprising. They would sometimes refer to written constitutions as mere “parchment barriers,” or what we call “paper tigers.”  They nevertheless concluded that having a written constitution was better than having nothing at all.

The key point is this: A free society does not just “happen.”  It has to be deliberately created and deliberately maintained.  Eternal vigilance is the price of liberty.  To remind our fellow citizens of their responsibility in that regard, the Cato Institute has distributed more than five million copies of our pocket Constitution.  At this time of year, it’ll make a great stocking stuffer. 

Let’s enjoy the holidays but let’s also resolve to be more vigilant about defending our Constitution.  To learn more about Cato’s work in defense of the Constitution, go here.  To support the work of Cato, go here.

The Age of Hayek?

Gallup has a new poll that shows “Fear of Big Government at Near-Record Level.” The headline might also have been “Fear of Big Business Falls by 20 Percent in 2011.” Or perhaps “Fear of Big Government Has Risen Sharply during the Age of Obama.”

This is not good news for Progressives in general. They need for the government to be trusted, if not loved, to undertake great projects in pursuit of a presumed public good. But the real losers here are Occupy Wall Street. The Gallup survey was done in late November and early December of this year. After several months of attention to OWS, the fear of Big Government has gone up while the fear of Big Business has dropped. OWS is not moving public opinion in its preferred direction.

Does Mandated Disclosure Help Voters?

After the Citizens United decision, mandated disclosure of campaign spending has become the major tool of campaign finance reformers. The Supreme Court has validated forced disclosure as a way to inform voters about candidates. Knowing who supports an advertisement supposedly gives a voter a cue about a candidate’s positions and outlook. If labor unions support a candidate, a voter who supports (opposes) unions can then vote for (vote against) the candidate supported by the union.

David Primo reports on his research showing that voters do not use disclosed information in this way. He also finds that the disclosure process makes it harder to participate in politics.

For some time I have suspected that electoral players want disclosure so they can attack those who fund their speech favoring their opponents. Such attacks presumably make such fund (and such speech) less likely. Disclosure is just a weapon in the ongoing electoral struggle.

The Golden Post-War Years of Government and the Economy?

I spent the afternoon debating, among others, Rick Perlstein, on the economy.  The debate was being taped for Aljazeera TV (set to air tonight some time in the 7 pm hour EST).  Rick claimed that since both government and the economy were getting bigger between World War II and the 1970, then growing federal expenditures couldn’t be bad for the economy.  The economist in me, was thinking, well what does the data say?  Obviously we didn’t have the data at hand, so the issue was not explored any further.

I’ve tried to reproduce the core of the question in the graph below, which shows on the left axis federal spending as a share of GNP and on the right axis the real increase in GDP, both measures on a quarterly basis.  If the visual trend is not enough for you, the correlation between the two is a negative 0.4.  Keeping in mind that correlation isn’t causality, it does appear that as the federal government increased as a percentage of the economy, the growth rate of the economy slowed.

During most of this period federal spending to GNP averaged around 16% (can’t we at least get back to the magical 1960s level of government?), while the annual growth rate in GDP averaged 3.9 percent.  I find the pattern starting around 1966 to be particularly interesting as we witnessed both a sharp increase in the size of government and a dramatic fall in the growth rate of the economy.  Of course I don’t expect those wedded blindly to a faith in big government to find any of this convincing, but for those of us with an empirical fact-based bent, it does suggest to me that had we restrained the late 1960s growth in government, our economy would be a lot bigger today (but then who cares about the size of the pie when you can fight over the pieces?).

Feds Want To Ban Phone Use — Even Hands-Free — While Driving

For quite a while Obama transportation officials have been campaigning against the safety hazard of “distracted driving,” but they must regard the American public as slow learners, because now the National Transportation Safety Board (NTSB) is proposing something truly radical: a ban on drivers’ use of cellphones and other personal electronic devices even when they’re hands-free and thus don’t require taking anyone’s eyes or hands off the road or steering wheel. The only exceptions the agency would permit would be “emergency” phone use and “devices designed to assist the driving task,” such as GPS devices. NTSB chairman Deborah Hersman said the problem is “cognitive” distractions as well as the “visual” and “manual” kind. The agency cannot adopt such a ban directly, but it’s calling on the states to fall into line and to enlist in a campaign of “high-visibility enforcement.”

And there’s more. NTSB is also, to quote PC World, “encouraging electronics manufacturers – via recommendations to the CTIA-The Wireless Association and the Consumer Electronics Association – to develop features that ‘disable the functions of portable electronic devices within reach of the driver when a vehicle is in motion.’” In the perfect Nannyland of the future, your phone will turn itself off when the government wants it to – even if you were in the middle of placing one of those emergency calls (“Honey, get out of the house, the flood waters are rising”) that will supposedly still be permitted.

Tech commentators are blasting the agency for jumping the gun on the evidence, to say nothing of ignoring values of personal liberty. A PC Magazine writer points out that while there is a safety case to be made against texting behind the wheel – a practice that encourages the driver to look away from the road for extended periods – the NTSB is short of statistics (as opposed to scary anecdotes) to show that phone conversation itself is a dire problem. Ars Technica notes that even the board’s own (disputable) statistics link the hazards of “conversation with passengers” to more than twice as many fatal accidents as the hazards of device use – and no one has yet proposed banning passenger conversations with the driver. (Don’t give Washington ideas, though.) Among devices, the sort of touch-screen car entertainment systems that you can fiddle with for ten seconds at a stretch – which are apparently okay with NTSB – would seem to pose considerably more distraction than one-button phone-answering. And speaking of statistics, the Federal Highway Administration website reports the lowest per-mile auto fatality rate ever, and the lowest in absolute numbers since the year 1950 – even though, to quote the NTSB itself, device use has seen “exponential growth” in the past few years.

Something doesn’t add up here. Commercial drivers, since the early-1980s CB radio craze and long before, have been using mobile communications for purposes other than emergencies and driving assistance, and their safety record is not notably atrocious. Hang up on this bad idea now, please.

Newt: Big Government Conservative

I’ve got a piece over at the Daily Caller this morning entitled “Newt’s Constitutional Confusions,” the title of which only hints at the constitutional apostasy to be found in Gingrich’s voluminous 21st Century Contract with America. Section nine, for example, “Bringing the Courts Back Under the Constitution,” is an unvarnished attack on what Newt sees as run-away courts frustrating the will of the people – as if that, and not run-away government, were our main problem today.

In fact, Newt praises Franklin Roosevelt’s infamous 1937 Court-packing threat, after which the Court largely abdicated its responsibility to check the political branches. And he condemns Cooper v. Aaron, the unanimous 1958 Little Rock school desegregation decision (remember the federal troops Eisenhower sent?) in which the Court told state officials they couldn’t “nullify” Supreme Court rulings. Thus his main target is “judicial supremacy,” the idea – implicit in the Constitution, explicit in the Federalist, and secured in 1803 in Marbury v. Madison – that it falls to the Supreme Court, not to the political branches, to say finally what the law is.

But in making that argument, he completely misreads the decisions. (In Kelo v. New London, his very first example of a willful judiciary, the Court wrongly upheld the city’s transfer of Ms. Kelo’s property to a private developer!) He misreads the Federalist. He relies on Leftist critics of the Rehnquist Court’s modest efforts at reviving enumerated powers federalism. And most important, politically, he’s misleading the Tea Party folks, most of whom stand for restoring limited constitutional government. Indeed, the Tea Party people hope to see an engaged Court overturn ObamaCare, just in case Newt – or better, someone who understands the Constitution – doesn’t win in November.