Topic: Law and Civil Liberties

More Nanny-State Foolishness

Article I, Section VIII of the United States Constitution specifies the powers of the United States Congress. The list of congressional powers is not very long, comprising less than 20 items, so it did not take very long to discover that federal lawmakers do not have any power to regulate school lunches. So I was shocked, absolutely shocked, to read in the New York Times that Senators Harkin and Murkowski are pushing legislation to micro-manage the number of calories in vending-machine snacks (though they have graciously and generously decided to exempt the Girl Scouts):

Federal lawmakers are considering the broadest effort ever to limit what children eat: a national ban on selling candy, sugary soda and salty, fatty food in school snack bars, vending machines and cafeteria lines. …Senator Tom Harkin, Democrat of Iowa and the chairman of the Agriculture Committee, has twice introduced bills to deal with foods other than the standard school lunch, which is regulated by Department of Agriculture. Several lawmakers and advocates for changes in school food believe that an amendment to the $286 billion farm bill is the best chance to get control of the mountain of high-calorie snacks and sodas available to schoolchildren. Even if the farm bill does not pass, Mr. Harkin and Senator Lisa Murkowski, Republican of Alaska, a sponsor of the amendment, vow to keep reintroducing it in other forms until it sticks. …Food for sale would have to be limited in saturated and trans fat and have less than 35 percent sugar. Sodium would be limited, and snacks must have no more than 180 calories per serving for middle and elementary schools and 200 calories for high schools. The standards would not affect occasional fund-raising projects, like Girl Scout cookie sales.

The Politics of Free Speech Change for the Better

The politics of free speech are changing fast.

The presidential public financing system is all but dead, largely because the candidates are raising so much money they don’t need to dun the taxpayers for campaign cash. The Democrats have raised a lot more money for the coming election than the Republicans. The Supreme Court is starting to favor free speech in campaign finance cases and casting a cold eye on laws like McCain-Feingold.

For most of the past three decades, so-called “reform” groups have dominated DC battles about campaign finance. These special interest groups lobbied Congress while their lawyers practiced the art of restricting speech before the Federal Election Commission.

Now that too is changing. A new group, SpeechNow.org, has formed to fight restrictions on speech. They just asked the Federal Election Commission to issue an advisory opinion about whether their fundraising must follow the contribution limits in federal election law.

Contribution limits exist–in law, if not in fact–to prevent corruption or the appearance of corruption. But SpeechNow.org is not giving money to federal candidates for office, and it is not incorporated (corporations cannot legally give money to parties or candidates). The organization is funded solely by individuals, some of whom want to give more than $5,000 to support the work of the new group.

What are they planning to do? The Center for Competitive Politics, which along with the Institute for Justice provides legal counsel to SpeechNow.org, says that “the group wants to run TV ads supporting and opposing candidates on free speech issues during the 2008 election cycle.”

Think about that for a minute. A group of citizens wants to come together to pool their resources to speak out for and against candidates on matters concerning free speech. They don’t plan to give candidates or the parties money, so the corruption threat does not exist. What could be more in line with the First Amendment and the Constitution? And yet… SpeechNow.org finds itself asking the Federal Election Commission “mother may I?” just to exercise its constitutional rights.

That should make you angry.

But think about this too. SpeechNow.org is something different from what we’ve heard on these issues for so many years, a group that plans to defend the First Amendment outside the courtroom. And somewhere in this nation is at least one person who is willing to give SpeechNow.org more than $5,000 for that effort.

That gives me hope.

Judicial Restraint and the Second Amendment

Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, has a column on HuffingtonPost and the Atlanta Journal-Constitution arguing that the Supreme Court should uphold the D.C. gun ban and reject the idea that when the Constitution says “the right of the people to keep and bear arms shall not be infringed,” it means that people have the right to keep and bear arms. His basic argument, summed up in the title, is that “The will of the people must not be overruled.” He pounds away at that theme:

Last March, the District of Columbia saw judicial activism replace the will of the people….

More than 30 years ago, the elected representatives on the D.C. City Council decided to enact a system of strict gun laws to help protect public safety. The people in D.C. strongly support these laws….

[The Court of Appeals] imposed their own policy preferences on the people of D.C.

It was a textbook example of judicial activism at its worst….

If the justices reject judicial activism and refrain from substituting their own policy preferences for the people’s elected representatives, then the District of Columbia will prevail. And so will the American people.

As a lawyer and a lifelong Republican, I have deep respect for judicial precedent, for American history and for a close reading of all the words in the Constitution. As one who served as mayor of Fort Wayne, Ind., for 12 years, I also believe in the importance of local communities being able to pass the laws they believe will help keep them safe.

It’s a powerful argument, and it may well resonate with the conservative justices who think that judges often overreach and “substitute their own policy preferences” for those of the people’s elected legislators. But I wonder if Helmke really believes that judges should respect the will of legislators and not strike down laws. Does he believe that the Warren Court should not have struck down school segregation, which was clearly the will of the people’s elected representatives–and no doubt the people–in Kansas, as well as in South Carolina and Virginia, whose similar cases were combined with Brown? Does he believe that the Supreme Court was wrong to strike down Virginia’s law against interracial marriage in 1967? The Texas law outlawing sodomy in 2003? The Communications Decency Act in 1997? Does he indeed think the John Marshall Court was wrong to invalidate a section of the Judiciary Act of 1789 in Marbury v. Madison? That’s the implication of his ringing words in defense of legislative absolutism.

I don’t think he believes this for a minute. I am sure he agrees with Cato’s constitutional scholars that the Supreme Court has an obligation to strike down laws that exceed the powers granted to Congress or that violate the rights protected in the Bill of Rights. He just doesn’t want the Court to apply that rule to the right to keep and bear arms. But in fact there’s an increasingly broad consensus among scholars that the Second Amendment protects an individual right to bear arms. And thus the Court should do its duty and find that an absolute ban on gun ownership by law-abiding citizens clearly exceeds any power of reasonable regulation that might be permitted under a properly understood Second Amendment.

Hyde Will Be Missed

Former Congressman Henry Hyde of Illinois, who died this morning in Chicago at the age of 83, was a friend of the Cato Institute who worked closely with us in our efforts to put a spotlight on the abuses flowing from America’s civil asset forfeiture law. A staunch defender of the war on drugs, Rep. Hyde saw nonetheless that not every tactic the government used in that war could be justified. In particular, the government’s seizure for itself of private property that merely “facilitated” a crime, often from completely innocent people, drove him to do whatever he could to end such abuses. He called hearings, at which Cato scholars were invited to testify. Then in 1995 Cato published his book, Forfeiting Our Property Rights: Is Your Property Safe from Seizure? The tone of the book was captured in its opening words:

Much of what you may have learned in school or college about your rights and liberties no longer applies. Increased government and police powers, rising criminal activity and violence, popular anxiety about drug use–all have become justifications for curtailing the application of the Bill of Rights and the individual security it once guaranteed.

The book was a ringing indictment of the government’s war on private property through the awful practice of civil asset forfeiture. More hearings followed its publication, culminating in a reform bill, which Hyde unveiled as the keynote speaker at a 1999 Cato conference. Hyde was tireless in shepherding the bill through both houses of Congress, fighting the Justice Department all the way, and in obtaining President Clinton’s signature. We will miss him.

Henry Hyde, RIP

Rep. Henry Hyde died this morning. He was one of the “elder statesmen” in the GOP and, as this article says, was known around the capital for his courtly manners. Hyde and Cato found common ground in the mid-1990s as the government was seizing property left and right under the guise of civil forfeiture laws. Cato published his book, Forfeiting Our Property Rights: Is Your Property Safe from Seizure?

Here’s a brief excerpt from that book:

I think it evident that an individual’s free nature indicates clearly that we are self-providers, that we naturally want to support ourselves and our families. But when an individual is robbed of his or her property, of the right to ownership of material goods, that individual then becomes subject to the will, caprice, and power of others in a way that degrades the dignity and independence of his or her human nature. And when this power is concentrated in the hands of government, it becomes an even greater threat to life and liberty. … My personal belief, which prompted my writing this book, is that there is an immediate need for restoration of the constitutional principles that are debased by the current application of asset forfeiture laws.

Hyde shepherded reform legislation through the Congress following the publication of his book.  Although Hyde and Cato had disagreements–especially with respect to term limits–he had kind things like this to say: “The Cato Institute has consistently provided a much-needed and very certain trumpet among the unreasoning cacophony that is everyday Washington.”

Stenographers to the Powerful

There’s a mini-scandal brewing over a Time magazine column by Joe Klein that attacked House Democrats for playing politics with the domestic wiretapping issue. Klein wrote that the House Democratic proposal would, among other things, “require the surveillance of every foreign-terrorist target’s calls to be approved by the FISA court” and “give terrorists the same legal protections as Americans.” In an accompanying blog post he accuses Democrats of standing in the way of sensible legislation “because of blind, stupid partisan politics.”

Now, as Ryan Singel ably demonstrates virtually every word of the FISA discussion in Klein’s article is false. The Dems’ proposal doesn’t require court approval to intercept communications overseas, nor does it “give terrorists the same legal protections as Americans.” The bill isn’t that long or complicated; had Klein bothered to actually read it, it would have been obvious that these characterizations were false. Klein even seems confused about which legislation the House has been considering. Klein issued a weasely follow-up post on his blog on Saturday conceding that he “may have made a mistake” in discussing the details of the bill but sticking by his “larger point” that House Democrats were to blame for holding up sensible legislation.

Today, Time issued its own correction to the online version of the column, and will apparently print that correction in the magazine as well. It reads, in its entirety:

In the original version of this story, Joe Klein wrote that the House Democratic version of the Foreign Intelligence Surveillance Act (FISA) would allow a court review of individual foreign surveillance targets. Republicans believe the bill can be interpreted that way, but Democrats don’t.

As Glenn Greenwald points out, it’s hard to find a pithier summation of all that’s wrong with our nation’s media elites. The editors of the nation’s most popular newsweekly apparently don’t believe it’s their job to evaluate the two sides’ competing claims and decide which is more credible. They seem to believe that “balance” simply requires faithfully transcribing each side’s claims. Even when one side’s claims is clearly true and the other side’s claim is clearly false, it’s not the reporter’s job to say so, or even to quote an independent expert saying so.

And that, of course, leaves Time’s four million readers with the erroneous impression that the Democrats want to give overseas terrorists the same legal protection as American citizens. Most readers aren’t going to take the time to read the bill and disentangle the competing claims. Most don’t read Glenn Greenwald’s blog, Ryan Singel’s blogs, or Cato@Liberty.

It’s worth mentioning the broader context here. The House Democrats’ bill, known as the Restore Act, is far from perfect. It allows the executive branch to intercept foreign-to-domestic calls on American soil without a warrant in certain circumstances, which I think runs afoul of the spirit of the Fourth Amendment. But the legislation is much better than the Protect America Act Congress passed in August, and better than the companion legislation being discussed in the Senate. And the House Democrats have resisted intense lobbying from the telecommunications industry to give them retroactive blanket immunity for illegally sharing their customers’ private information with the government. They deserve more credit than anyone else in Congress or the White House for putting principle above political expediency.

Klein has rewarded them for their courage by repeating inaccurate Republican talking points and thereby smearing them as soft on terrorism. By refusing to print a meaningful correction—one that points out that the Democrats proposal does not, in fact, “give terrorists the same legal protections as Americans”—they are perpetuating the false impression that thousands of ordinary Time readers got from Klein’s column. And they are also starkly revealing the sad state of elite journalism.

Constitutional Reform in Latin America?

Yesterday I went over to the Organization of American States (OAS) for a roundtable on “Constitutional Reform in the Americas.” The event featured opening remarks by the OAS Secretary General, followed by country-specific presentations by experts on Bolivia, the Dominican Republic, Ecuador, and Venezuela.

I won’t bore you with the details, but three themes emerged:

1) The ever-expanding constitutions of many Latin American countries, both to strengthen strongmen (Chavez) and to add to the copious list of positive rights (Brazil). This is not good for either constitutionalism or rule of law because on the one hand you have the country’s founding document being changed at the whim of a single man and on the other a constitution bloated with such things as the fundamental right to, e.g., four weeks’ paid annual vacation decreases in legitimacy. To paraphrase an old Argentine lawyer who advised that country’s last significant amendment process in 1993-94, “constitutional inflation leads to rule of law devaluation.” Alternatively, the Latin American counterpart to the old saw about French constitutions being filed in libraries’ periodicals section is that Latin ones are filed as encyclopedias.

2) The desire to constitutionalize (or rebalance constitutional structures relating to) the “special rights” of indigenous peoples. There is nothing wrong per se with wanting to recognize that certain native peoples preceded the arrival of European colonists/conquerors (British-American in the U.S., Spanish and Portuguese in Latin America) and that these people should not be exploited as a result of their having been vulnerable to colonization. But to enact wholesale nationalizations and special privileges on the basis of race, or caste, or tribe – let alone raise these perversities to the constitutional level as is being proposed in Bolivia – is a political and legal travesty.

3) The battle over political reform is no longer, if it ever was, between left and right or socialism and neoliberalism (the common Latin American term for pro-market policies and the Washington Consensus), but rather between democracy and authoritarianism. This may not represent that much of a change from the past – the populist governments that plagued the region in the 20th century could be alternately left or right wing – but it does confirm that the “consolidating democracy” project of the ’80s and ’90s has stalled if not taken a reverse. That is, the narrative that those of us studying Latin America in college and grad school in the late ’90s to early 2000s learned – the Third Wave of democratization, Latin America finally being on the right path but just needing time to grow economically –  underestimated some nasty undercurrents of resistance.

In short, the roundtable was equal parts fascinating and frustrating. You can watch it (in Spanish) here.