Tag: constitutional

Wednesday Links

  • Idea of the day: Repeal the 16th Amendment, which  gives Congress the power to lay and collect taxes. Replace it with an amendment that requires each state to remit to the federal government a certain percent of its tax revenue.
  • Economist Richard Rahn on the necessity of failure in the market: “When government becomes a player and tries to prevent the failure of market participants, its decisions are almost invariably corrupted by the political process.”
  • Read up on Goodwin Liu, Obama’s nominee for a seat on the 9th Circuit Court of Appeals: “Liu’s confirmation would compromise the judiciary’s check on legislative overreach and push the courts not only to ratify such constitutional abominations as the individual health insurance mandate but to establish socialized health care as a legal mandate itself.”
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Lawrence Lessig’s Constitutional Amendment

Lawrence Lessig has proposed a constitutional amendment in response to the U.S. Supreme Court’s decision in Citizens United.  It reads:

“Nothing in this Constitution shall be construed to restrict the power to limit, though not to ban, campaign expenditures of non-citizens of the United States during the last 60 days before an election.”

In Citizens United, the Court said that the First Amendment concerns speech rather than speakers. Congress has no power to discriminate against speakers; hence, a source of speech - people organized as a corporation - could not be prohibited from speaking (or funding speech).

Professor Lessig hopes to introduce a discrimination among speakers into the First Amendment. His proposed discrimination will not lose a popularity contest. He wishes to allow Congress to control the speech of non-citizens.  He follows two lines of argument in support of his amendment, one less rational than the other.

The less rational line of appeal to the reader is both implicit and predictable. The Chinese are invoked along with the Chamber of Commerce. A denial of xenophobic intent follows immediately, and “We the People” appear near the end. Carl Schmitt would recognize the rhetorical construction of “friend and enemy.” Rather cleverly, Lessig manages to equate the foreign devils with the internal demons of the liberal mind. Corporations (including the Sierra Club?) and the Chinese (or other foreigner) are on one side of political struggles while “We the People” are on the other.

Lessig’s more rational line of argument: “elections are private. It is we - citizens- who are to select who is to govern us. And it is completely appropriate for us to protect the debate we have about that selection by limiting disproportionate spending by non-citizens.” He later suggests the propriety of “protecting elections against undue influence by non-citizens.”

Notice Lessig moves from an widely-held premise “only citizens should select those who govern” to conclude “we should protect elections against the undue influence of non-citizens.” His idea of “dependence” relates his premise to his conclusion. Allowing spending by non-citizens would make voters dependent on them and thus preclude select of the our rulers by “us.”

What is missing here, oddly enough, is the citizens themselves. After all, the non-citizens do not simply give money to voters. They spend money to create and communicate political speech. Voters are the intermediaries between that speech and the selection of government officials. Citizens decide how much influence political speech of all kinds should have.  Lessig’s concern about undue influence seems to be a concern that voters will be fooled by internal or external foreigners to the detriment of our nation. But the Constitution says that citizens, whatever their failings, are the best filter of speech.

Lessig’s amendment would substitute the judgment of Congress for that of citizens at least in regard to the speech of non-citizens.  Congress would decide how much spending on speech is “due” and how much would lead to “undue influence” by non-citizens. A court would then be called upon to decide whether the limits chosen by Congress constitute a de facto ban on speech. This process of legislating and litigation would yield how much speech citizens are allowed to hear.

Keep in mind that not all the ideas of foreigners are inimical to the people of the United States. Liberals did not seem to mind the support Barack Obama received from cheering crowds in Berlin. Perhaps Americans should hear about the suffering caused abroad by trade protectionism. It is also true that the interests of foreigners are sometimes at odds with the interests of Americans. Who should decide which ideas espoused by foreigners are good for the nation and which inimical? Should Congress decide or citizens?

We might also wonder whether Lessig’s amendment would even apply to corporations. The corporation is a product of contracts among owners and others. These contracts provide for agents who run the corporation and decide many things including whether to fund political speech on behalf of the enterprise. All of this, contracts included, are the actions of real people, most of whom will be citizens. Would a court define “non-citizens” as a group of citizens who associate together in the corporate form?

Lessig invokes the framers of the Constitution to support his concern about non-citizens. Here he has some historical warrant for his arguments. The founders were concerned about foreign influences undermining the new republic in favor of monarchy. But the United States is now much older and more stable and aptly open to foreign influence through investment and trade. If anything, its citizens are too concerned about the dangers coming from abroad. That is all the more true when the non-citizen or “the foreigner” is identified as other Americans who happen to be associating in a corporate form.



Who I’m Not Voting For

It’s that time of year again, when friends start telling me about this or that candidate I should support because he or she is a dedicated defender of liberty and limited government. I’m a political junkie, so I love getting these recommendations. But I don’t end up supporting or contributing to many candidates. In my view, it’s not enough for a candidate to say that he’s ”committed to slashing wasteful spending, providing tax relief, and eliminating red tape.” What’s your actual tax plan? What spending do you propose to cut or eliminate? Not many of them offer clear answers to that.

And liberty involves more than just economics. Often I’m told, “Congressman X is a libertarian.” I always check, and then I say, “He voted for the war, the Patriot Act, and the Federal Marriage Amendment. Sounds like a conservative.” Now a conservative who opposed President George W. Bush’s trillion-dollar spending increase, his Medicare expansion, and his stepped-up federal involvement in education is a lot better than your average member of Congress. But those votes do not a libertarian make.

This year I’m looking for candidates who stand for freedom across the board, who want government constrained by the Constitution, who believe in the principles of individual liberty, limited government, free markets, and peace.

And that means I don’t want to back candidates who support

  • the war in Iraq
  • the war in Afghanistan
  • war with Iran
  • the war on drugs
  • the constitutional amendment to override state marriage laws and make gay people second-class citizens
  • the president’s power to snatch American citizens off the street and hold them without access to a lawyer or a judge
  • new restrictions on immigration

So don’t everybody write at once. But I’ll be looking out for political candidates who support liberty and limited government across a wide range of issues.

Moody’s Mulls Downgrading U.S. Debt

The U.S. isn’t Greece.  Yet.

Moody’s is no longer so sure about the quality of Uncle Sam’s debt.  Reports the Christian Science Monitor:

The US needs to make significant government spending cuts or else risk losing its gold-plated credit rating that has made extensive borrowing so affordable, Moody’s Investor Service said late Monday.

The announcement was a sobering warning that the country’s burgeoning debt has weakened the country’s economic standing, and that US Treasury Bonds, traditionally a bullet-proof investment, could lose their sterling Aaa-rating if Washington cannot control its federal debt.

If Moody’s were to downgrade the country’s rating, the impact could be severe. It would signal to lenders worldwide that the US is no longer one of the safest places to invest money.

That, in turn, would threaten the country’s ability to borrow freely and extensively from other countries on favorable terms. Investors would likely demand a higher interest rate to finance US debt, which would push federal debt higher still.

“There’s a profound effect in this announcement,” says Max Fraad Wolff, a professor of economics at New School University in New York. “The US has always been the gold standard … and this begins to signal a fall or weakness in US global economic position. That’s a bit like a sea change.”

Obviously we are long overdue for some fiscal responsibility in Washington.  And that means cutting spending across the board.  Lawmakers might start by considering what programs are authorized by the Constitution–and the far larger number which represent unconstitutional political power grabs.

Questions for Thoughtful ObamaCare Supporters

What does it say that the American polity has consistently rejected a wholesale government takeover of health care for 100 years?

What does it say that public opinion has been consistently against the Democrats’ health care takeover since July 2009?

What does it say that Democrats are having this much difficulty enacting their health care legislation despite unified Democratic rule?  Despite large supermajorities in both chambers of Congress, including a once-filibuster-proof Senate majority (see more below)?  Despite an opportunistic change in Massachusetts law that provided that crucial 60th vote at a crucial moment?  Despite a popular and charismatic president?

What does it say that 38 House Democrats voted against the president’s health plan?

What does it say that Massachusetts voters elected, to fill the term of Ted Kennedy, a Republican who ran against the health care legislation that Kennedy helped to shape?

What does it say that the only thing bipartisan about that legislation is the opposition to it?

What does it say that 39 senators voted to declare that legislation’s centerpiece unconstitutional?

What does it say that health care researchers – a fairly left-wing lot – think the Senate bill is unconstitutional?

What does it say that the demands of pro-life and pro-choice House Democrats, each of which hold enough votes to determine the fate of this legislation, are irreconcilable?

What does it say that House Democrats are actually contemplating a legislative strategy that would deem the Senate bill to have passed the House – without the House ever actually voting on it?

Given that ours is a system of government where ambition is made to counteract ambition, what does it mean that the only way to pass this legislation is for the House to trust that the Senate will keep the House’s interests at heart?

Six Reasons to Downsize the Federal Government

1. Additional federal spending transfers resources from the more productive private sector to the less productive public sector of the economy. The bulk of federal spending goes toward subsidies and benefit payments, which generally do not enhance economic productivity. With lower productivity, average American incomes will fall.

2. As federal spending rises, it creates pressure to raise taxes now and in the future. Higher taxes reduce incentives for productive activities such as working, saving, investing, and starting businesses. Higher taxes also increase incentives to engage in unproductive activities such as tax avoidance.

3. Much federal spending is wasteful and many federal programs are mismanaged. Cost overruns, fraud and abuse, and other bureaucratic failures are endemic in many agencies. It’s true that failures also occur in the private sector, but they are weeded out by competition, bankruptcy, and other market forces. We need to similarly weed out government failures.

4. Federal programs often benefit special interest groups while harming the broader interests of the general public. How is that possible in a democracy? The answer is that logrolling or horse-trading in Congress allows programs to be enacted even though they are only favored by minorities of legislators and voters. One solution is to impose a legal or constitutional cap on the overall federal budget to force politicians to make spending trade-offs.

5. Many federal programs cause active damage to society, in addition to the damage caused by the higher taxes needed to fund them. Programs usually distort markets and they sometimes cause social and environmental damage. Some examples are housing subsidies that helped to cause the financial crises, welfare programs that have created dependency, and farm subsidies that have harmed the environment.

6. The expansion of the federal government in recent decades runs counter to the American tradition of federalism. Federal functions should be “few and defined” in James Madison’s words, with most government activities left to the states. The explosion in federal aid to the states since the 1960s has strangled diversity and innovation in state governments because aid has been accompanied by a mass of one-size-fits-all regulations.

For more, see DownsizingGovernment.org.

New Lawsuit against DC Government

Yesterday the Washington Post ran a nice profile about Tom Palmer and other DC residents who are challenging the constitutionality of regulations that make it a crime for people to bring their firearm outside of their residence for purposes of self-defense.  Most criminal attacks occur outside the home (around 87%) and the criminals are armed and always have the advantage of choosing when they’ll strike – and that’s usually when there are no cops around.

Related Cato scholarship here.  More here.