Archives: 12/2013

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 automobile drivers like prison inmates by conducting body cavity 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.

Happy Bill of Rights Day!

The Bill of Rights, or the first ten amendments to the U.S. Constitution, were ratified on December 15, 1791, 222 years ago today. However, it wasn’t until 1941, on the 150th anniversary of the ratification of the Bill of Rights, that Bill of Rights Day was recognized as a national holiday.

This Bill of Rights Day, the Cato Institute invites you to share what the Bill of Rights means to you. 

Tweet your response using the hashtag #CatoForRights any time today. We’ll be sending a very special gift to the author of our favorite tweet. Make sure you’re following @CatoInstitute on Twitter to qualify.

More on the Ryan-Murray Budget Deal

The Ryan-Murray budget deal is remarkably bad when you look at the details. If the Republican Party is supposed to be the fiscally conservative party, there is virtually nothing Republican in the agreement. The Democrats could have written the whole thing themselves. It raises spending and taxes, and reduces the deficit only in a jury-rigged scorekeeping kind of a way that won’t actually be realized.

This analysis by Republicans on the Senate Budget Committee (SBC) provides details. The last page shows the year-by-year numbers.

The deal raises spending $63 billion in 2014 and 2015, split between defense and nondefense programs. That is a lot of money even by Washington standards, and it effectively guts the Budget Control Act of 2011. At least it guts the authority of it; appropriators now know that if they whine and complain a bit, future-year spending caps will dissolve like butter under a hot knife.

In return for the spending hike, the deal creates $85 billion of savings on paper. According to the SBC analysis, $34 billion of those savings are actually revenue increases and $51 billion are spending reductions. So there are more spending hikes in this package ($63 billion) than claimed spending cuts ($51 billion). So this agreement makes government bigger, not smaller, even by its own accounting.

Here’s the most astounding thing: $47 billion of the $85 billion in claimed savings are scored to occur in 2022 and 2023. So the package hikes spending right now, but promises to deliver more than half of the offsetting savings a decade from now.

Most of the 2022 and 2023 savings ($28 billion) are supposed to come from putting caps on entitlement spending in those years. Senate Budget Committee Chairman Jeff Sessions says these savings are of “dubious validity,” but he is being polite. After all, we now know that Republicans won’t stick with caps when push comes to shove, so I would call those future caps “worthless.”

If we count the 2022 and 2023 entitlement savings as being worth zero, we are left with a budget package that hikes spending $63 billion, cuts other spending just $23 billion, and raises revenues $34 billion. With fiscal results like that, I’d take gridlock over bipartisan agreement any day.

For more on the budget deal, click here.

Michelle Rhee’s Common Core Crud

I don’t dislike the oft-attacked Michelle Rhee. I don’t even know her. But I do dislike disingenuous or empirically anemic arguments about the Common Core, and she offers too many of both in a new Politico op-ed.

Let’s start with the most aggravating thing she does in her piece: imply that anyone who opposes the Core based on concerns about Washington’s role in it is proffering a “false narrative of a federal takeover” and making “wild claims.” As Core apologists have done repeatedly, Rhee utterly ignores the $4.35-billion Race to the Top program that de facto required Core adoption to compete, and No Child Left Behind waiver rules that locked most states into the Core. She also turns a blind eye to the overall trajectory of federal education policy, which went from decades of mainly providing money, to requirements that states have standards and tests, to now pushing specific standards and tests—and let’s be honest, that ultimately means curricula—on schools.

If Rhee wants to have a substantive debate on the Common Core, great! But we can’t have that if she and other Core supporters refuse to acknowledge basic reality about the federal role, and they essentially smear people who do acknowledge reality as purveyors of “wild claims.”

There is much more that’s dubious about Rhee’s piece, though not as infuriating as the ol’ smear-and-deny.

Rhee, for instance, ignores the wise counsel delivered last week not to simplistically cherry-pick results on the recent PISA exam to press for national standards. Rigorous analysis needs to be done, controlling for lots of factors ranging from income levels to national culture, to determine the effect of national standards on test results. The problem for Core supporters is that when that is done, national standards appear to make essentially no difference. Rhee also ignores the well-reported research of Brookings’ Tom Loveless, who found that the quality or rigor of state standards has had no correlation with state scores on the National Assessment of Educational Progress. 

Indeed, Rhee’s own piece contradicts itself. Rhee applauds Massachusetts for its relatively high performance on PISA, but laments that in the Bay State “student performance continues to vary greatly” from district to district and “between white students and children of color.” But fear not: “Correcting for that inequity among schoolchildren is exactly what Common Core  seeks to do.” The thing is, the Bay State has had uniform state standards for roughly two decades, meaning uniformity did not end disparities, and national standardization will not change the fact that standards within all states have been uniform for more than a decade under No Child Left Behind.

So no, I don’t dislike Michelle Rhee. But I very much dislike her denial of facts, and ignoring of evidence, on the Common Core.

A Data Retention Mandate? NO

The Wall Street Journal reports that a panel convened by the president to review the National Security Agency’s programs will recommend that “the records of nearly every U.S. phone call now collected in a controversial NSA program be held instead by the phone company or a third-party organization.” That recommendation is a non-starter.

Mandatory data retention has been floated for years using the most politically appealing rationale, child predation. In 2007, we characterized the idea as costly, outsourced surveillance, and Congress has consistently denied that power to the government. In fact, child protection bills containing data retention mandates were introduced in several Congresses but only passed once provisions deputizing communications providers into government surveillance were stripped out. Randy Barnett and I made this point in our brief urging the Supreme Court to take up the NSA’s mass surveillance of Americans’ telephone calling.

“Congress has declined to institute mandatory data retention laws because the costs, risks, and privacy consequences for innocent citizens outweigh their law enforcement and security benefits,” we wrote. “The Verizon order reverses this Congressional policy by requiring a telecommunications provider to turn all data over to the government for retention by the National Security Agency.”

How ironic it would be if the NSA’s illegal excesses delivered it a victory on a policy initiative that it lost years ago. Is secretly violating Americans’ communications privacy really rewarded by a policy requiring the violation of Americans’ communications privacy?

Rep. Jim Sensenbrenner (R-WI), who claims authorship of the USA-PATRIOT Act, came to Cato two months ago to lament the NSA’s use of that law for domestic spying he did not intend the NSA to have. In the past, he has said that data retention “runs roughshod over the privacy rights of people who use the Internet for thousands of lawful purposes.” Assumedly, he believes the same as to people’s use of the phone, and he will continue working with other privacy-minded legislators to relegate data retention mandates to the dustbin of history.

Antidiscrimination Law Can’t Trump the Freedom of Speech

While Cato supports marriage equality, a commitment to equality under the law can’t justify the restriction of constitutionally protected fundamental rights like freedom of speech or association. Yet increasingly, legislation and judicial rulings sacrifice individual liberties at the altar of antidiscrimination law. Perhaps the most prominent current example of that trend is the case of the New Mexico wedding photographer.

Elane Photography, a Christian-identified business in Albuquerque, declined to photograph Vanessa Willock’s same-sex commitment ceremony based on the business owners’ personal opposition to gay marriage. New Mexico law prohibits any refusal to render business services because of sexual orientation, however, so Willock filed a claim with the New Mexico Human Rights Commission. She argued that Elane Photography is a “public accommodation,” akin to a hotel or restaurant, that is subject to the state’s anti-discrimination law. The commission found against Elane and ordered it to pay $6,600 in attorney fees. The state trial and appellate courts affirmed that order.

The case then went before the New Mexico Supreme Court, where Cato, along with same-sex-marriage-supporting law professors Eugene Volokh and Dale Carpenter, filed an amicus brief urging the court to reverse the court of appeals. Our brief explained that photography, unlike many other wedding-related businesses (e.g., caterers, hotels, limousine drivers), is an art form protected by the First Amendment—even if it’s not political and even if the photos are taken for commercial purposes. 

The U.S. Supreme Court ruled in Wooley v. Maynard—the 1977 “Live Free or Die” license plate case out of New Hampshire—that forcing people to speak is just as unconstitutional as preventing or censoring speech. The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all.” Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other photographers in the same area.

Alas, the New Mexico Supreme Court also ruled against Elane Photography, holding that the First Amendment only prohibits compelling an individual to speak the government’s message, and that even if the state law did infringe on Elane Photography’s speech rights, those rights could not be vindicated because they conflicted with Willock’s right to equal access to public accommodations. Cato, again joined by professors Volokh and Carpenter, has again filed a brief, this time urging the U.S. Supreme Court to hear the case, because the New Mexico court’s reasoning is incorrect and incompatible with Wooley. 

The Supreme Court has never held that the compelled speech doctrine is only applicable when an individual is forced to serve as a courier for the message of another. Instead, the Court has said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say. Forcing a photographer to create a unique piece of art violates that freedom of the mind.

Our brief also argues that the New Mexico Supreme Court was wrong to hold that the First Amendment can be abridged if a state law creates a “new right” that the constitutionally protected expression allegedly violates. The U.S. Supreme Court has never allowed such operation of state law, and allowing the New Mexico court’s reasoning to stand would send a dangerous message to state legislators and courts that the Bill of Rights is merely a suggestion, not a rule.

Vanessa Willock has until February 11 to file her opposing brief, and soon thereafter the Court will decide whether to take the case. If it does, Elane Photography v. Willock would likely be argued at the beginning of next term, in October, with an ultimate decision by June 2015.

2013: Will U.S. Temperature Be Below Average?

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”


Last year, the annual average temperature in the contiguous United States was the highest on record (since 1895) according the data compiled by the National Climatic Data Center (NCDC).   This year, the temperature took a nosedive from the lofty heights of 2012.

As we pointed out in our coverage of the 2012 milestone, the influence of human-caused climate change on the U.S. temperature history (including last year’s record warmth), while undoubtedly present, is difficult to ascertain.

The role that anthropogenic “global warming” from the emissions of greenhouse gases from the combustion of fossil fuels plays is debatable—both in timing and magnitude. Almost certainly its influence is present and detectable in the U.S. annual average temperature record, but beyond that simple statement, not a whole lot more can be added with scientific certainty.

We now stand nearly a year later with more evidence of proof and point.

Through November of this year, the U.S. average temperature is only 0.53°F above the 20th century mean temperature (the default baseline used by NCDC). Last year the annual temperature was 3.24°F above it.

Figure 1. Average January-November temperature in the contiguous United States from 1895-2013 as compiled by the National Climatic Data Center (source: NCDC, Climate at a Glance).

With the cold start to December across the country, the annual temperature for 2013 has an increasingly good shot at coming  in below the 20th century average.  For this to happen, the U.S. temperature for December would have to average about 27.6°F. For the first 12 days of the month, the average has been 28.4°F,  and the forecast is for continued cold, so getting to the needed temperature is not out of the question.

If 2013 does come in below the 20th century average, it would be the first year since 1996 to have done so, and would end a 16-year long run of above average annual temperature for the U.S.  You can follow the chase here.

But even if the rest of the month is not quite cold enough to push the entire year into negative territory, the 2013 annual temperate will still be markedly colder than last year’s record high, and will be the largest year-over-year decrease in the annual temperature on record, underscoring the “outlier” nature of the 2012 temperatures.

Will 2013 mark the end of the decade and a half period of abnormal warmth experience across the U.S. that was touched off by the 1998 El Niño event, and a return to conditions of the 1980s and early-to-mid 1990s? Or will 2013 turn out to just be a cold blip in the 21st century U.S. climate?

In either case, 2013 shows that the natural variability of annual temperatures in the U.S. is high (as is decadal and multi-decadal variability, see Figure 1)—an important caveat to keep in mind when you face the inundation of every-weather-event-is-caused-by-human-global-warming hysteria.

Stay tuned!

The Center for the Study of Science would like to thank Ryan Maue of WeatherBELL Analytics for his summary of December temperatures and the expected  temperatures for the rest of the year.