If the government can force us to disclose the source of our funds when we speak publicly, what can’t they require of us? Steve Simpson from the Institute for Justice discussed disclosure laws in light of the Doe v. Reed Supreme Court decision at Cato’s Constitution Day. You can get a copy of the latest Cato Supreme Court Review at our bookstore.

Today POLITICO Arena asks:

Is Alaska Republican Senate nominee Joe Miller correct to suggest that the federal minimum wage is unconstitutional? And beyond that constitutional question, is this a wise political strategy?

My response:

Joe Miller is absolutely right: The federal government has no authority under the Constitution to set a minimum wage — or to do so many of the countless other things it does today. When Nancy Pelosi was asked where in the Constitution Congress was authorized to order Americans to buy health insurance, she responded, “Are you serious?” That’s a mark of how little America’s political elites today understand the document they take an oath to uphold.

James Madison, the principal author of the Constitution, wrote in Federalist 45 that the powers of the new government would be “few and defined” — a far cry from today’s Leviathan. How did the change happen? In a nutshell, the ideas of the Progressives — in particular, wide-ranging rule by elites — were incorporated in “constitutional law” (not to be confused with the Constitution), not by constitutional amendment but by a cowed Supreme Court following Franklin Roosevelt’s infamous 1937 Court-packing scheme. That opened the floodgates to the modern redistributive and regulatory state that so many Americans love so much today. Don’t take my word for it. Here’s Rexford Tugwell, one of the principal architects of the New Deal, reflecting on his work some 30 years later: “To the extent that these new social virtues [i.e., New Deal policies] developed, they were tortured interpretations of a document [i.e., the Constitution] intended to prevent them.”

But that’s changing, if the Tea Party movement is any indication. The American people are waking up to the truth: The governmnet gives nothing that it doesn’t first take. It’s not Santa Claus. And whether the taking is in the form of money, property, or liberty, it comes to the same thing. So in answer to the question whether telling constitutional truths is wise political strategy, we’ll see. If the people can’t take the truth, it’s only a matter of time before we go the way of civilizations before us. Fortunately, we still have enough freedom to tell such truths.

The legal battle against Obamacare continues. In June, a district court in Richmond denied the government’s motion to dismiss Virginia’s lawsuit (in opposition to which Cato filed a brief). Despite catcalls from congressmen and commentators alike, it seems that there is, after all, a cogent argument that Obamacare is unconstitutional! 

Having survived dismissal, both sides filed cross motions for summary judgment—meaning that no material facts are in dispute and each side believes it should win on the law. Supporting Virginia’s motion and opposing the government’s, Cato, joined by the Competitive Enterprise Institute and Georgetown law professor (and Cato senior fellow) Randy Barnett, expands in a new brief its argument that Congress has gone beyond its delegated powers in requiring that individuals purchase health insurance.

Even the cases that have previously upheld expansive federal power do not justify the ability to mandate that individuals buy a product from a private business. Those cases still involved people that were doing something—growing wheat, running a hotel, cultivating medical marijuana. The individual mandate, however, asserts authority over citizens that have done nothing; they’re merely declining to purchase health insurance. This regulation of inactivity cannot find a constitutional warrant in either the Commerce Clause, the Necessary and Proper Clause, or Congress’s taxing power. Such legislation is not “necessary” to regulating interstate commerce in that it violates the Supreme Court’s distinction between economic activity (which often falls under congressional power as currently interpreted) and non-economic activity (which, to date, never has), it is not “proper” in that it commandeers citizens into an undesired economic transaction. 

Finally, the taxing power claim is a red herring: (a) neither the mandate nor the penalty for not complying with the mandate is a tax, and is not described as such anywhere in the legislation; (b) even if deemed a tax, it’s an unconstitutional one because it’s neither apportioned (if a direct tax) nor uniform (if an excise); (c) Congress cannot use the taxing power to enforce a regulation of commerce that is not authorized elsewhere in the Constitution.

The district court will hear arguments on the cross-motions for summary judgment in Virginia v. Sebelius later this month and we can expect a ruling by the end of the year. 

Obamacare delenda est.

Today is the first Monday in October, the traditional start of the Supreme Court term. While we have yet to see as many blockbuster constitutional cases on the docket as we did last term—which, despite the high profile 5–4 splits in McDonald v. Chicago and Citizens United actually produced fewer dissents than any in recent memory—we do look forward to:

• Two big free speech challenges, one over a statute prohibiting the sale of violent video games to minors, another the offensive protesting of a fallen soldier’s funeral;
• An Establishment Clause lawsuit against Arizona’s tax credit for private tuition funds (an alternative to educational voucher programs);
• Regulatory federalism (or “preemption”) cases involving:
  • safety standards for seatbelts;
  • an Arizona statute regarding the hiring of illegal aliens; and
  • the forbidding of class-arbitration waivers as unconscionable components of arbitration agreements;
• Important ERISA and copyright cases;
• A case examining privacy concerns attending the federal government’s background checks for contractors; and
• A criminal procedure dispute regarding access to DNA testing that may support a claim of innocence.

Cato has filed amicus briefs in several of these cases—and in various others which the Court may decide to review later this year—so I will be paying extra-close attention.

Perhaps more importantly, we again have a new justice—and, as Justice White often said, a new justice makes a new Court. While her confirmation was never in any serious doubt, Elena Kagan faced strong criticism (including from me) on a variety of issues—most importantly on her refusal to “grade” past Court decisions or identify any specific limits to government power. The 37 votes against Kagan were the most ever for a successful Democratic nominee, which is emblematic of a turbulent political environment in which the Constitution and the basic question of where government derives its power figure prominently. 

Given Kagan’s political and professional background, it is safe to assume that she’s not the second coming of Clarence Thomas. And because she replaces the “liberal lion” Justice Stevens, her elevation from “tenth justice” (as the solicitor general is known) to ninth is unlikely to cause an immediate change in issues that most divide the Court—particularly because she is recused from nearly half the cases this term. She could, however, add an interesting and nuanced perspective on a variety of lower-profile issues. Only time will tell what kind of justice Kagan will be now that she is, seemingly for the first time in her ambitious life, unconstrained to speak her mind.

Here’s to another interesting, varied, and (hopefully) liberty-enhancing year!

Earlier today I saw a CNN report about the O.J. Simpson case—15 years ago the verdict was announced and the entire country was tuning in to hear the result. The case was all over the news for a year—first the shocking news of the murder of Simpson’s former wife Nicole Brown Simpson and her friend Ronald Goldman, then the televised “white Bronco chase” around Los Angeles, then Simpson’s defense attorney “Dream Team” and prosecutor Marcia Clark’s life and looks, and then, at last, the verdict. 

White America had a hard time accepting the fact that the police would lie about their actions (at one point early on, the police testified that they invaded Simpson’s estate because they were concerned about his “safety”—instead of admitting that they were tracking a suspect and trying to gather evidence). 

Black America had a hard time explaining away the evidence of Simpson’s guilt. As I discussed in a 2003 Reason article, here are three examples of the incriminating evidence:

First, after the nationally televised slow-speed chase, the police recovered a “To Whom It May Concern” note written by Simpson’s own hand after he was charged with the murder, but before he was arrested. Defense attorney Robert Shapiro said he had little doubt that it was a suicide note. But an innocent person would very likely be outraged about being charged with a murder and eager to find the real killer. Prosecutors never presented the note to the jury.

Second, after the chase, the police also recovered several key pieces of incriminating evidence, but the prosecutors failed to use them during the trial. Officers found a fake mustache, a fake goatee, and, most damning, a receipt that showed the items were purchased two weeks before the murders — yet the prosecutors never asked jurors to consider why Simpson would need the elements of a disguise just prior to the murder of his wife and Ron Goldman.

Third, detectives tape-recorded an interview with Simpson just a day after the murders. Simpson, asked about a wound on his hand, admitted that he had cut himself the previous night and that instead of immediately applying a bandage, he dripped blood around his estate. When a detective asked him the cause of the cut, Simpson’s reply — again, on audiotape — was, “I have no idea, man.” Unbelievably, the jury never heard this audiotape or his bizarre admission that he was bleeding all over the place right around the time of his wife’s murder. Instead, prosecutors took weeks to present DNA evidence — and then, in response to the defense claim of a police frame-up, offered up a lame, “Yes, racist cops exist in the LAPD, but this case is not a frame-up.”

When the trial was over, the lead defense attorney, the late Johnnie Cochran, was hailed as a miracle worker, but the truth was that the prosecutors did an incredibly lousy job.

The blunders that are recounted above are just a few those that are set forth in the best book about the case, Outrage, by the legendary trial attorney Vincent Bugliosi, who prosecuted Charles Manson. Bugliosi concludes that a competent prosecution would have very likely secured a conviction. More here.

Simpson was later sued by Goldman’s family for wrongful death and was found liable by the jury. The civil attorneys found more evidence of Simpson’s guilt, such as photographs of Simpson wearing Bruno Magli shoes matching shoe tracks at the crime scene. Simpson was nonetheless able to avoid paying any money to the Goldmans and is now in prison for other crimes.

A good Frontline documentary about the criminal case can be viewed online.

In all of Washington, is there a greater enemy of free speech than Secretary of Health and Human Services Kathleen Sebelius?

• Her department is forcing millions of Americans to finance speech that they oppose, by using taxpayer dollars to broadcast (misleading) television ads that promote ObamaCare.
• She is using the powers granted her under ObamaCare to threaten insurers with bankruptcy if they publicly disagree with her about the law’s cost.
• Now, she is decrying the growth of anonymous political speech in congressional campaigns.

Would that coerced speech, or government suppression of speech, troubled her as much as anonymous speech.

Charles Krauthammer calls same-sex marriage “the most radical redefinition of marriage in human history.” Really? Some might say that ending “till death do us part” was more radical. And maybe ending the requirement that the bride promise to “love, honor, and obey.” And how about the end of polygamy? Polygamy was probably the most common marital system in the broad sweep of human history, but now it is virtually unknown in the Western world; indeed, ahistorical conservatives warn that allowing two people of the same sex to make a vow of marriage could lead to polygamy.

More currently, I would suggest that the truly radical redefinition of marriage is the revolution over the past generation in the idea that people should marry before they cohabit or have children. Barely a generation ago cohabitation simply wasn’t acceptable; now it is just assumed. Out-of-wedlock pregnancy is celebrated on the cover of People and no one seems to much care. In 2009, for the first time, more 25- to 34-year-olds were unmarried than married. A writer as smart as Krauthammer should be able to see that that gay liberation and gay marriage are a product, not a cause, of the unprecedented redefinition of sex, marriage, and childrearing.

But like socially conservative politicians, Krauthammer is not about to confront his friends, colleagues, and fans by denouncing that radical redefinition of marriage. Sensing discomfort with rapid social changes, he shouts “Look over there!”

Reducing the incidence of unwed motherhood, divorce, fatherlessness, welfare, and crime would be good for society. But it’s not easy to figure out what to do. That’s why social conservatives point to a real problem and then offer phony solutions.