Constitution, the Law, and the Courts

June 27, 2006 3:33PM

Jefferson Was a Great Man, But He Didn’t Write the Constitution

Quotations from respected sources, such as the Founders and Tocqueville and Churchill, are often apocryphal. George Washington apparently didn’t say, “Government is not reason, it is not eloquence — it is force! Like fire, it is a dangerous servant and a fearsome master.” Jefferson, alas, doesn’t seem to have said, “That government is best that governs least,” though he certainly believed it. A tip: If you find the quote on the Internet without any source given other than the alleged speaker, then he probably didn’t say it.


Some quotations are hard to trace, and it’s hard to prove a negative. But this month some of our national leaders have revealed that they don’t know who wrote our most basic founding documents — and neither they nor their speechwriters apparently have access to Google.


At the Southern Baptist Convention two weeks ago, Secretary of State Condoleezza Rice said, “My ancestors in Mr. Jefferson’s Constitution were three‐​fifths of a man.” Then yesterday Senate minority whip Dick Durbin opposed a flag‐​burning amendment by saying, “In fact, [flag‐​burning] rarely, if ever, happens. And so why are we about to change the handiwork and fine contribution to America of Thomas Jefferson?”


Wrong again. Jefferson did not write the Constitution or the Bill of Rights. He was in France during the Constitutional Convention and during the congressional debate over the Bill of Rights.


As every schoolboy knows or should know, James Madison is known as the Father of the Constitution. He also introduced the Bill of Rights into the House of Representatives in 1789. So Rice and Durbin should have referred to “Mr. Madison’s Constitution” and “the handiwork of James Madison.” Perhaps someone should send them a Madison biography or a copy of James Madison and the Future of Limited Government.

June 26, 2006 11:56AM

Some Good News from the Court for a Change

The U.S. Supreme Court this morning struck down a set of restrictions on campaign finance enacted by Vermont. Six members of the court believed Vermont’s spending limits and extremely low contribution limits violated the First Amendment.


The six justices agreed that the Vermont law was invalid. But they disagreed about quite a bit, too. Justices Breyer, Roberts and Alito focused on the shortcomings of the Vermont law. Breyer and Roberts also rejected Vermont’s demand that Buckley v. Valeo be overturned. Justices Thomas and Scalia concurred in the opinion but rightly called for overturning Buckley in order to offer better protections for political speech. Justice Kennedy rightly expressed dismay with the Court’s recent campaign finance jurisprudence. In the larger picture, he seems closer to Thomas and Scalia than the other three in the majority.


This ruling was expected, but nonetheless good news. The majority opinion shows that we now have a majority of the court who recognize some limits on the power of the state over political speech. After McConnell v. FEC, it was far from clear than the judiciary would draw any lines limiting state restrictions on speech.


Still, this is hardly a robust affirmation of the First Amendment, and it is somewhat discouraging that the new justices, Roberts and Alito, were unwilling to overturn past errors by earlier majorities on the Court.

June 25, 2006 11:52AM

Bush and Kelo

Per David's Kelo anniversary posts below, skeptics are probably right to question the sincerity of the White House's halfhearted embrace of property rights last week. Back in 2004, when Kelo was pending before the Supreme Court, the Bush administration not only refused to file an amicus brief on behalf of the property owners, but was actually on the verge of filing a brief on behalf of the land-seizing local governments.

The Institute for Justice's Clint Bolick wrote at the time:

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June 25, 2006 11:14AM

Sam Walker in the L.A. Times

Last week I wrote about a conversation I had with Sam Walker, the University of Nebraska criminology professor whose research was abused by Justice Scalia in the Hudson case. I mentioned that conversation to ex-Reason associate editor Matt Welch, who's now at the L.A. Times.

That turned into an op-ed for Walker in today's paper. Excerpt:

The misuse of evidence is a serious offense — in academia as well as in the courts. When it's your work being manipulated, it is a violation of your intellectual integrity. Since the issue at stake in the Hudson case is extremely important — what role the Supreme Court should play in policing the police — I feel obligated to set the record straight.

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June 25, 2006 11:07AM

A Legacy of Bias

Last week on my personal weblog, I ran an excerpt from Dan Baum’s essential book Smoke and Mirrors about how the 1986 overdose death of Maryland University basketball star Len Bias led to the 1986 Anti‐​Drug Abuse Act. The act is arguably the most militant, draconian crime‐​fighting bill ever passed by Congress.


Much of Baum’s book is told from the point of view of Eric Sterling, a congressional staffer who helped write most of the 1980s drug laws, but who has since become a vocal opponent of those laws, and of the drug war in general.


Yesterday, Sterling and Julie Stewart of Families Against Mandatory Minimums had an op‐​ed in the Washington Post arguing that, sadly, the legacy of Bias’s death isn’t an end to the use of illicit drugs, but an exploding prison population, violence, and increased drug use — all caused not by Bias’s death, but by Congress’s overreation to it.


Chicago Tribune columnist Clarence Page covered similar ground this week.

June 24, 2006 6:01PM

A Footnote on Kelo

I'm still amused at conservatives who call the Kelo decision "activist" and make it an exhibit in their jihad against "activist" judges. See the House Republicans, the Alabama Policy Institute, or the American Conservative Union.

But the Kelo decision wasn't wrong because the Court was activist. It was wrong because the Court failed to actively enforce the Constitution's restrictions on government. As Richard Epstein wrote in a Wall Street Journal column, "Justice Stevens's lamentable opinion was the polar opposite of judicial activism. Indeed, it represented a deadly form of judicial deference to legislative action that makes a mockery of both the text and purposes of the 'Public Use' Clause."

Of course, just to complicate the matter, one could say that a court is activist when it finds powers for government that are nowhere granted in the Constitution. In that case, the Kelo Court was activist.

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June 24, 2006 5:53PM

One Year after Kelo, Good News and Bad News

June 23rd was the anniversary of the Supreme Court's infamous Kelo decision, allowing local governments to transfer property from one private owner to another so long as there is some perceived public benefit. And, of course, there always is some benefit; as Justice Sandra Day O'Connor wrote in dissent, "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory" — because in each such case the city would get more tax revenue, and the city council would regard that as a public benefit.

On the anniversary of the decision, homeowners Susette Kelo and Pasquale Cristofaro finally settled with the city of New London on the terms of their eviction.

Also on the anniversary, President Bush signed an executive order that, in the words of a Washington Post headline, "Limits Eminent-Domain Seizures." The Post and the AP should have learned by now to be more skeptical of Bush administration claims. The executive order really does very little. It says the federal government will only take property from its owners "for the purpose of benefiting the general public." But the Supreme Court has just said that virtually anything goes under that standard.

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