Tag: Jefferson

Two Cheers for the Bill of Rights!

As Tim Lynch has already blogged – and as Cato is currently featuring on its front page, today is Bill of Rights Day.  But of course, this is less of a big deal than Constitution Day (September 17, when we release the Cato Supreme Court Review at an annual conference) – because the Bill of Rights is essentially redundant of the Constitution’s original structural protections:  Whenever the government exceeds its constitutionally granted powers, it violates rights of some sort.

Tim Sandefur explains over at the Pacific Legal Foundation’s blog:

Madison, along with his colleagues like James Wilson, Alexander Hamilton, and others, expected the Constitution to give Congress only a limited set of powers—powers that were listed in the text of the document. If it wasn’t listed in the text, then Congress couldn’t do it. So the federal government could collect taxes or run a post office, but it couldn’t do other things—like run a national health care program, for instance. Since Congress’s powers were, in Madison’s words, “few and defined,” there was no need to add a bill of rights to declare that the federal government couldn’t do such-and-such, because they already couldn’t do such-and-such.

Indeed, the argument went, if you enumerate various rights, some will later claim that this is an exhaustive list – even though it’s impossible to list all of our rights at every conceivable level of specificity – with everything else subject to state regulation and control and perhaps implied powers too.  That concern is why, even though Jefferson and others won the debate over whether to have a bill of rights, Madison and others ensured that the Ninth Amendment would be included as a safeguard against those who would “deny or disparage” other rights that are “retained by the people.”  And why the Tenth Amendment reiterated that, conversely, the powers “not delegated to the United States” are “reserved to the States respectively, or to the people.”

We’re fortunate that both Jefferson and Madison got their way because, as we’ve seen over the last 70+ years, the Supreme Court read out of the Constitution the structural protections for liberty that are plainly there in the pre-amended Constitution.  Not that the Court has done a very good job on the “rights” side of the coin, either – think eminent domain abuses (earlier this week it denied cert. in the Columbia University case, by the way), or the Second Amendment before Heller, or, perhaps most infamously, economic liberties since the rights bifurcation of 1937’s Carolene Products footnote 4 – but if it weren’t for these little bones that it has thrown our way, why the government would always be the sole judge of its own powers.  (Which, of course, is what Obamacare proponents argue, that the check on Congress’s power is purely political.)

In any event, bully for the Bill of Rights, even if it’s not – as many people think – the most important part of the Constitution.

On Federal Education, Think Progress Should Think Harder

Over on the Think Progress blog, Ian Millhiser accuses Sen. Tom Coburn (R-Okla.) of never having read the Constitution. His grounds for the accusation? Coburn, citing Jefferson, doesn’t think that the Constitution gives the federal government authority to provide such things as Pell Grants and student loans.

Writes Millhiser:

Sen. Coburn might want to try actually read the Constitution before he pretends to know what it allows. Article I provides that “[t]he Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States,” a grant of power that unambiguously empowers Congress to raise funds and spend them on programs that are broadly beneficial to American welfare — such as education.

Moreover, while Coburn’s reference to Thomas Jefferson is true in the narrowest sense of the term, it also betrays Coburn’s ignorance of constitutional history. During the Washington Administration, Jefferson and James Madison led a minority coalition which believed that Congress’ constitutional power to spend money was too narrow to support spending programs such as the First Bank of the United States. President Washington, however, rejected their arguments. Moreover, while Coburn is correct that President Jefferson briefly referenced his narrow view of the Constitution in his 1806 State of the Union, Jefferson was an extreme outlier by this point in American history. Even Madison parted ways with Jefferson by the time Madison became president in 1809.

This might be a classic pot-kettle situation. At the very least, it is utterly impossible to say that the general welfare clause “unambiguously” empowers Congress to raise funds and spend them – with massive strings attached, of course – on education. Indeed, that the general welfare clause does anything other than introduce the specific, enumerated powers that follow it was expressly rejected by Madison in Federalist no.  41, in which he wrote:

For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

The general welfare clause, quite simply, confers no power – it just explains why the specific powers that follow it were given.

But didn’t Alexander Hamilton – who had Washington’s ear – reject that notion? Well yes, in his 1791 Report on Manufactures he suggested that the federal government could do almost anything as long as it was done in the interest of the entire nation. But his report was not only shelved by Congress at the time, Hamilton’s argument was quite different from what he wrote in the Federalist Papers. Though speaking  specifically of the taxation and  ”necessary and proper” clauses, in Federalist no. 33  Hamilton wrote that seemingly broad powers were given to Congress only to execute “specified powers:”

[I]t may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same, if the clauses were entirely obliterated, as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government, and vesting it with certain specified powers [italics added]. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.

How about the argument that Jefferson’s quaint small-government beliefs were way out of date by 1806? Well, they sure weren’t on education.

For one thing, it is notable that President Washington probably had a more expansive view of the federal government’s role in education than one might expect. He wanted a national university, after all. But he didn’t get it – that notion was well out of sync with the limited federal government most Americans wanted. 

Next, Coburn was actually quoting Jefferson from Jefferson’s call for federal involvement in education, an idea that went nowhere because it would have constituted more federal intrusion – not less – than most Americans wanted. Indeed, Jefferson was generally on the big-government fringe of his time when it came to education. He only got the University of Virginia after four decades of trying, and never got the rudimentary public schooling system he wanted for Virginia.  Most people at the time simply didn’t think government’s role – especially the federal government’s – was to run education.

One last bit of information demonstrates just how truly mistaken Millhiser is in his attack on education ”tenthers.” In 1943 – when Franklin Delano Roosevelt was president – the United States Constitution Sesquicentennial Commission, under the direction of the president, the vice president, and the Speaker of the House, published The History of the Formation of the Union under the Constitution. It noted in a section titled “Questions and Answers Pertaining to the Constitution:”

 Q. Where, in the Constitution, is there mention of education?

A. There is none; education is a matter reserved for the states.

Even FDR’s people, apparently, didn’t find that the Constitution ”unambiguously” gave Washington authority to involve itself in education – quite the opposite!

In light of all this, it is clearly not Mr. Coburn who can reasonably be accused of having never read the Constitution. Indeed, not only has he almost certainly read it, it seems he has even taken the time to understand it.

Preventive Detention: What Would Thomas Jefferson Do?

Glenn Greenwald writes,

By all accounts, the White House is going to unveil its proposal for indefinite detention within the next four to eight weeks, and it has begun dispatching proponents of that scheme to lay the rhetorical groundwork. In The Washington Post today, one of the proposal’s architects – Law Professor Robert Chesney, a member of Obama’s Detention Policy Task Force – showcased the trite and manipulative tactics that will be used by advocates of indefinite detention to win support for their radical program [anyone doubting that detention without trials is radical should recall that Obama’s own White House counsel Greg Craig told Jane Mayer back in February that it’s “hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law”; New York Times reporter William Glaberson wrote that “Obama’s detention policy “would be a departure from the way this country sees itself”; Sen. Russ Feingold warned that it “violates basic American values,” “is likely unconstitutional,” and “is a hallmark of abusive systems that we have historically criticized around the world”; The New York TimesBob Herbert said that “Americans should recoil as one against the idea of preventive detention”; and the Obama policy’s most vigorous Congressional proponents are Tom Coburn and Lindsey Graham].

According to Chesney, though, the real extremists are those “on the left” who oppose preventive detention; those who believe that radical liberties such as criminal charges, trials and due process are necessary before the state can put someone in a cage for life; those who agree with Thomas Jefferson that trial by jury is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Chesney insists that such people (these “leftists”) are (as always) the mirror images of the extremists on the Right, who “carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.” These two equally partisan, radical, extremist sides (i.e., those who believe in due process and trials and those who oppose them) are – sadly – “shrink[ing] the political space within which reasonable, sustainable policies [i.e., Chesney’s preventive detention scheme] might be crafted with bipartisan support.”

…This is how political debates are typically carried out in Washington by the Serious Centrists and Responsible Adults. Chesney writes an entire Op-Ed defending the soon-to-be-unveiled preventive detention policy without describing a single aspect of it. To Serious people, the substance of the policy is irrelevant. What matters is that anyone who opposes it is a radical, partisan, shrill extremist. Conversely, as long as the Obama administration stays somewhere in the middle of the two sides – between Tom Coburn and Russ Feingold – then it proves they are being sensible, moderate and responsible, regardless of how extreme and dangerous their proposal actually is, and regardless of how close to Coburn and as far from Feingold as they end up.

No system of justice is perfect. But it’s no improvement to decide that in certain cases we can just do better without one.

All that such a policy does is to move the act of judging back one level – and to locate it at the point where someone, somewhere decides that this particular case doesn’t get judged in the usual way. And so the accused gets “detention” rather than “trial, followed possibly by prison.” But we are still putting a person, and perhaps a dangerous person, in a cage, are we not? The acts of judging and of punishing are still there, and we have hidden them only from ourselves.

It is no improvement to shift the fundamental problem of justice to a different location – out of open courtrooms, out of review, out of established legal tradition – and into a shadowy realm where potentially anything goes. We’re deluding ourselves if we think that it is a step forward or a refinement in the criminal law to have its work done somewhere else, by someone else. The work goes on, and with it all of the associated dangers. Western legal philosophy has spent centuries forcing these dangers out into the open, so that we may confront them directly.

But oddly, Professor Chesney is actually right in one respect:

The problem is twofold. First, the national dialogue has been dominated by a pair of dueling narratives that together reduce the space available for nuanced, practical solutions that may require compromise from both camps. On the one hand, critics of the government’s policies promiscuously invoke the post-Sept. 11 version of the Imperial Presidency narrative, reflexively depicting security-oriented policies in terms of executive branch power aggrandizement (with de rigueur references to former vice president Dick Cheney; his chief of staff, David Addington; or Justice Department attorney John Yoo, if not all three). On the other hand, supporters of the government’s policies just as carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.

Second, individual issues in the debate over detention policy are often framed in stark and incompatible terms. Take, for example, the Guantanamo detainees, who are portrayed in some quarters as innocent bystanders to the last man and in other quarters as the “worst of the worst.” While both extremes are misleading, their influence is pervasive.

True enough. A reasonable middle position? Give the detainees trials in which they can individually prove their guilt or innocence. Surely they aren’t all guilty, and I don’t believe I’ve ever seen anyone claim that they are all innocent, either. The truth really is somewhere in between, and it just so happens that we already have a mechanism for sorting out muddled cases like these.

Taxpayer-Funded Lobbying

There’s lots of outrage in the blogosphere over revelations that some of the biggest recipients of the federal government’s $700 billion TARP bailout have been spending money on lobbyists. Good point. It’s bad enough to have our tax money taken and given to banks whose mistakes should have caused them to fail. It’s adding insult to injury when they use our money – or some “other” money; money is fungible – to lobby our representatives in Congress, perhaps for even more money.

Get taxpayers’ money, hire lobbyists, get more taxpayers’ money. Nice work if you can get it.

But the outrage about the banks’ lobbying is a bit late. As far back as 1985, Cato published a book, Destroying Democracy: How Government Funds Partisan Politics, that exposed how billions of taxpayers’ dollars were used to subsidize organizations with a political agenda, mostly groups that lobbied and organized for bigger government and more spending. The book led off with this quotation from Thomas Jefferson’s Virginia Statute of Religious Liberty: “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.”

The book noted that the National Council of Senior Citizens had received more than $150 million in taxpayers’ money in four years. A more recent report estimated that AARP had received over a billion dollars in taxpayer funding. Both groups, of course, lobby incessantly for more spending on Social Security and Medicare. The Heritage Foundation reported in 1995, “Each year, the American taxpayers provide more than $39 billion in grants to organizations which may use the money to advance their political agendas.”

In 1999 Peter Samuel and Randal O’Toole found that EPA was a major funder of groups lobbying for “smart growth.” So these groups were pushing a policy agenda on the federal government, but the government itself was paying the groups to lobby it.

Taxpayers shouldn’t be forced to pay for the very lobbying that seeks to suck more dollars out of the taxpayers. But then, taxpayers shouldn’t be forced to subsidize banks, car companies, senior citizen groups, environmentalist lobbies, labor unions, or other private organizations in the first place.

Mr. Jefferson Regrets

Thomas Jefferson was an advocate of public schooling, after a fashion. He knew that an educated public was the only protection against government abuses, and he assumed that a state-run, state-funded school system would provide that essential education. If he could only see public schooling today. 

The Arizona-based Goldwater Institute has just released a study on the civics knowledge of that state’s high school students. Matt Ladner, Goldwater’s head of research, administered the same trivial test that’s given to immigrants applying for citizenship, using the same trivial pass/fail threshold. [I know it’s trivial, ‘cause I took it a few years ago.] The results of Goldwater’s little experiment… Oh. My. God. Becky:

     96.5 percent of AZ public high school students failed

Honestly, why did anyone – especially Thomas Jefferson – ever imagine that a government monopoly would be a good way to educate kids about a democratic republic and protect them from abuses of government power?

Canada and Jefferson’s Natural Progress

Thomas Jefferson famously opined that “the natural progress of things is for liberty to yield and government to gain ground,” but Canada has bucked that gloomy forecast in recent years. As my co-authored op-ed in the Washington Post yesterday showed, Canada has:

  • Cut government spending
  • Cut government debt
  • Balanced its budget consistently
  • Pre-funded its version of Social Security to make it solvent
  • Decentralized power within its federation of provinces
  • Cut taxes, particularly corporate taxes 

Meanwhile, the United States has headed in the opposite direction in each of these policy areas. Consider further that Canada has other economic policy advantages over the increasingly uncompetitive welfare state to its south:

  • Canada has more liberal immigration policies for highly skilled workers than does the United States, which has added greatly to the entrepreneurial vibrancy of Canada’s economy.
  • Canada has long had a stable,  efficient, and competitive financial sector, which avoided the government-assisted meltdown that occurred in the United States.
  • Canada has a home ownership rate as high as the United States, yet it does not have a distortionary mortgage interest tax deduction.
  • Canada recently implemented large Roth IRA style savings accounts, which are much more flexible than the U.S. version.
  • The Canadian federal capital gains tax rate is 14.5 percent, which compares to the current 15 percent in the United States and 20 percent under Obama’s tax plan.
  • Canada has no federal ministry or department of education. The K-12 schools are the sole responsibility of the provinces, yet Canadian kids  generally do better than American kids on international tests.
  • In recent years, Canada has probably been more supportive of NAFTA, and free trade in general, than its main trading partner, the United States.

Major pro-market reforms are possible in advanced welfare states – Jefferson can be proven wrong, as Canada illustrates. U.S policymakers can prove Jefferson wrong as well. They can start by cutting spending, decentralizing power out of Washington, and making pro-growth tax reforms in response to globalization, as Canada has, rather than imposing self-defeating “Buy America” provisions and making childish rants about “corporations moving jobs offshore.”

Will the Government Be the New King of All Media?

Howard Stern swore off free broadcast radio in 2004 in part because of federally mandated decency rules. The self-annointed “king of all media” may have stepped off the throne in doing so. Them’s the breaks in the competitive media marketplace, contorted as it is by government speech controls.

Some would argue that a new king of all media is seeking the mantle of power now that the Obama administration is ensconced and friendly majorities hold the House and Senate. The new pretender is the federal government.

And some would argue that the Free PressChanging Media Summit” held yesterday here in Washington laid the groundwork for a new federal takeover of media and communications.

That person is not me. But I am concerned by the enthusiasm of many groups in Washington to “improve” media (by their reckoning) with government intervention.

Free Press issued a report yesterday entitled Dismantling Digital Deregulation. Even the title is a lot to swallow; have communications and media been deregulated in any meaningful sense? (The title itself prioritizes alliteration over logic — evidence of what may come within.)

Opening the conference, Josh Silver, executive director of Free Press, harkened to Thomas Jefferson — well and good — but public subsidies for printers, and a government-run postal system, model his hopes for U.S. government policies to come.

It’s helpful to note what policies found their way into Jefferson’s constitution as absolutes and what were merely permissive. The absolute is found in Amendment I: “Congress shall make no law…abridging the freedom of speech, or of the press…”

Among the permissive is the Article I power “to establish Post Offices and post Roads.” There’s no mandate to do it and the scope and extent of any law is subject to Congress’ discretion, just like the power to create patents and copyrights, which immediately follows.

I won’t label Free Press and all their efforts a collectivist plot and dismiss it as such — there are some issues on which we probably have common cause — but a crisper expression of “dismantling deregulation” is “re-regulation.”

It’s a very friendly environment for a government takeover of modern-day printing presses: Internet service providers, cable companies, phone companies, broadcasters, and so on.