What the critics of the Supreme Court’s possible finding that ObamaCare is unconstitutional choose to ignore is the Constitution was written, and the separation of powers were designed, to protect individual liberty against the tyranny of the majority.

The Constitutional Right to be Left Alone – George Will, Washington Post

Judge J. Harvie Wilkinson III, a Reagan appointee to the U.S. Court of Appeals for the 4th Circuit, is a courtly Virginian who combines a manner as soft as a Shenandoah breeze with a keen intellect. His disapproval of much current thinking about how the Constitution should be construed is explained in his spirited new book — slender and sharp as a stiletto — “Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance.”

A “cosmic theory,” Wilkinson says, is any theory purporting to do for constitutional questions what Freud and Einstein tried to do concerning human behavior and the universe, respectively — provide comprehensive and final answers. The three jurisprudential theories Wilkinson criticizes are the “living Constitution,” “originalism” and “constitutional pragmatism.” Each, he says, abets judicial hubris, leading to judicial “activism.”

Those who believe the Constitution is “living” believe, Wilkinson says, that judges should “implement the contemporary values” of society. This leads to “free-wheeling judging.” So Wilkinson apparently agrees somewhat with Justice Antonin Scalia, who stresses the “antievolutionary purpose of a constitution,” which “is to prevent change — to embed certain rights in such a manner that future generations cannot readily take them away.” Future generations or contemporary majorities.

Wilkinson is right that judges, comprising an elite and “introverted” profession, are prone to misreading the values of the broader society. But even if judges read those values correctly, judicial restraint can mean giving coercive sweep to the values of contemporary majorities. That a majority considers something desirable is not evidence that it is constitutional.

One problem with originalism, Wilkinson argues, is that historical research concerning the original meaning of the Constitution’s text — how it was understood when ratified — often is inconclusive. This leaves judges no Plan B — other than to read their preferences into the historical fog.

Constitutional pragmatists advocate using judicial power to improve the functioning of the democratic process. But this, Wilkinson rightly warns, licenses judges to decide what a well-functioning democracy should look like and gives them vast discretion to engage in activism in defense of, for example, those it decides are “discrete and insular minorities.”

Insisting that “the republican virtue of restraint requires no cosmic theory,” Wilkinson’s recurring refrain is that judges should be disposed to defer to majorities, meaning the desires of political, popularly elected institutions. But because deference to majority rule is for Wilkinson a value that generally trumps others, it becomes a kind of cosmic theory — a solution that answers most vexing constitutional riddles.

Wilkinson’s premise is that “self-governance,” meaning majority rule, is the “first principle of our constitutional order.” But this principle, although important, is insufficient and, in fact, is secondary.  Read entire article

Categories: Constitution     Tags: Constitution, George Will, J. Harvie Wilkinson III, ObamaCare, Separation of Powers, Supreme Court, Tyranny of Majority

In the essay below, Michael Sacasas, a PhD candidate in the University of Central Florida’s “Texts & Technology” program, asks the question:

“’What sort of person will the use of this or that technology make of me?’ Or, more to the present point, ‘What sort of citizen will the use of this or that technology make of me?’ We don’t often ask these sorts of questions because we tend to tacitly endorse a theory about the neutrality of technology, a theory we could call the NRA approach to technology. ‘Guns don’t kill people, people kill people.’ This slogan nicely encapsulates the view that technologies are ethically neutral and ethical implications attach only to the use to which a technology may be put by individuals.

“This notion enjoys a certain commonsensical plausibility, and, as far as it goes, it is true enough. A hammer could be used to build a home or it could be used to injure a person. Nuclear energy could power a city or flatten it. But it is not quite all that can be said on the matter. A fuller account of technology’s ethical ramifications would take into consideration how the use of a technology may inculcate certain habits and engender certain assumptions. In others words, technologies not only allow us to act in certain ways that may or may not be ethical, their use also shapes the user and this too may have ethical consequences. Winston Churchill’s observation about buildings captures this dynamic nicely. ‘We shape our buildings,’ Churchill said, ‘and afterwards our buildings shape us.’ He might also have said, we shape our technologies and afterwards our technologies shape us.”

Technology in America — Michael Sacasas, The American

If America’s ongoing experiment in democracy and economic freedom is to endure, we will need to think again about cultivating the necessary habits of the heart and resisting the allure of the ideology of technology.

Why are Americans addicted to technology? The question has a distinctly contemporary ring, and we might be tempted to think it could only have been articulated within the last decade or two. Could we, after all, have known anything about technology addiction before the advent of the Blackberry? Well, as it turns out, Americans have a longstanding fascination and facility with technology, and the question of technology addiction was one of the many Alexis de Tocqueville thought to answer in his classic study of antebellum American society,Democracy in America.

To be precise, Tocqueville titled the tenth chapter of volume two, “Why The Americans Are More Addicted To Practical Than To Theoretical Science.” In Tocqueville’s day, the word technology did not yet carry the expansive and inclusive sense it does today. Instead, quaint sounding phrases like “the mechanical arts,” “the useful arts,” or sometimes merely “invention” did together the semantic work that we assign to the single word technology.¹ “Practical science” was one more such phrase available to writers, and, as in Tocqueville’s case, “practical science” was often opposed to “theoretical science.” The two phrases captured the distinction we have in mind when we speak separately of science and technology.

To answer his question on technology addiction, Tocqueville looked at the political and economic characteristics of American society and what he took to be the attitude toward technology they encouraged. As we’ll see, much of what Tocqueville had to say over 150 years ago resonates still, and it is the compelling nature of his diagnosis that invites us to reverse the direction of the inquiry—to ask what effect the enduring American fascination with technology might have on American political and economic culture. But first, why were Americans, as early as the 1830s, addicted to technology?  Read entire article

Categories: Virtue     Tags: de Tocqueville, Michael Sacasas, Technology, Virtues

This article originally was published by Forbes.com on April 16, 2012

by Charles Kadlec

Taxes are not the only thing that matter in determining job creation and economic growth.  But, any politician, pundit, economist or voter who ignores the negative impact of taxes on growth and prosperity is showing a callous disregard for the well-being of the American people.

That is the inescapable conclusion of the new book, Eureka, written by Arthur Laffer and published by Pacific Research Institute, a California based think tank.

Eureka, the Greek word for “I have found it,” is the California state motto, born in the gold rush when miners would yell out when they believed they had discovered gold.  Readers may have a similar response as they discover the book’s readily available insights into the current national tax debate.  That makes Eureka a valuable compliment to academic research with its heavy reliance on sophisticated statistical techniques.

Eureka begins with a highly readable explanation of supply-side or classical economics.  The focus is on the nature of human beings as opposed to abstract concepts such as aggregate demand, multipliers, capital flows, statistical tests and the like.  As Laffer explains,

All of the added complications that comprise a big modern economy are terribly confusing and only stand to obfuscate careful analysis…However, if the principles of economics are true, then those principles should be just as true in a two-person world as they are in a complicated 310-million-person world. Keep reading »

Categories: Economic Policy     Tags: Art Laffer, California, Charles Kadlec, Eureka, Fairness, Tax policy

How many times are we told that government needs to take an active role in planning — our health care, the economy, economic development and so forth.  As a consequence, we have almost forgotten that government’s most vital role is not in the “planning,” but in setting forth clear rules that protect property rights which are at the heart of our liberty to pursue happiness, and to take care of our families and our communities.

Tuscaloosa Alabama and Joplin Missouri each suffered extensive damage from tornadoes last spring.  Tuscaloosa’s city government chose  planning, expensive consultants and central control as its path to recovery.  Joplin chose reduced regulations and increased liberty.  Joplin is well on the road to recovery.  Tuscaloosa is mired in its disaster.

Tornado Recovery:  How Joplin is Beating Tuscaloosa

by David T. Beito and Daniel J. Smith

Last April 27, one of the worst tornadoes in American history tore through Tuscaloosa, Ala., killing 52 people and damaging or destroying 2,000 buildings. In six minutes, it put nearly one-tenth of the city’s population into the unemployment line. A month later, Joplin, Mo., suffered an even more devastating blow. In a city with half the population of Tuscaloosa, a tornado killed 161 and damaged or destroyed more than 6,000 buildings.

More than 100,000 volunteers mobilized to help the stricken cities recover. A “can-do” spirit took hold, with churches, college fraternities and talk-radio stations leading the way. But a year after the tragedies, that spirit lives on far more in Joplin than in Tuscaloosa. Joplin is enjoying a renaissance while Tuscaloosa’s recovery has stalled.

In Joplin, eight of 10 affected businesses have reopened, according to the city’s Chamber of Commerce, while less than half in Tuscaloosa have even applied for building permits, according to city data we reviewed. Walgreens revived its Joplin store in what it calls a “record-setting” three months. In Tuscaloosa, a destroyed CVS still festers, undemolished. Large swaths of Tuscaloosa’s main commercial thoroughfares remain vacant lots, and several destroyed businesses have decided to reopen elsewhere, in neighboring Northport.

The reason for Joplin’s successes and Tuscaloosa’s shortcomings? In Tuscaloosa, officials sought to remake the urban landscape top-down, imposing a redevelopment plan on businesses. Joplin took a bottom-up approach, allowing businesses to take the lead in recovery. Read entire article

Categories: Liberty     Tags: Big Government, Daniel Smith, David Beito, Economic Liberty, Regulatory Burden

The federal government nationalized airport security a decade ago with the creation of the Transportation Security Administration, or TSA, promising to make airport security more professional, and to make us safer.

However, the performance of security at San Francisco International Airport — which opted out of the federal law, shows the TSA has fallen short on both counts.  No surprise, the federal government is refusing to allow any other airports to opt out — preferring a comfortable monopoly to competition.

The TSA Just Won’t Let Go – John Stossel, The Wall Street Journal

“…A leaked 2007 TSA study found that San Francisco’s private screeners were twice as good at detecting fake bombs as TSA screeners. Passengers at San Francisco International have told us “screeners here are friendlier” and “more helpful.” The private screeners also work quickly, and lines are shorter. Company managers move screeners around to minimize wait times. A 2011 House Transportation Committee report found that, in the time it takes TSA screeners at the Los Angeles airport to process 100 passengers, San Francisco screeners process 165.

“That’s partly because Covenant has an incentive to do well and retain its contract. So it keeps its screeners sharp by staging competitions. A screener can win up to $2,000 if he is good at identifying items in an X-ray machine or finding contraband in suitcases.

“Dozens of other airports have asked the TSA to let them switch to private screening companies, but the agency said no to almost all of them, giving only one reason: “There is no clear advantage to the federal government.”

“Give me a break. I bet McDonald’s would like to tell Burger King: ‘You may not open a store here. There’s no clear advantage.’” Read entire article

Categories: Power Motive     Tags: Big Government, Competition, John Stossel, Power Motive, TSA

To live in liberty requires laws that are easy to understand and follow.  When a stop turns red, we know to stop, and when green, to go.  A sign that posts the speed limit at 30 miles an hour is unambiguous.

The length and complexity of ObamaCare is itself an attack on our liberty.  When liberal Supreme Court Justice Stephen Breyer and Conservative Justice Anton Scalia both ridiculed the law for its length and complexity, perhaps that should be grounds enough to find a law abhorrent to a Constitution written to protect the liberty of the individual from the tyranny of the state.

Complexity Is Bad For Your Health — Gordon Crovitz, Wall Street Journal

“The Supreme Court has long had the role of declaring what the law is. That’s becoming a harder and harder task thanks to the White House and Congress concocting laws so complex that no one knows their meaning before, during or after they’re passed…

“Consider how Justices Antonin Scalia and Stephen Breyer—one Reagan appointee and one Clinton appointee—tag-teamed to declare the law unreadable. “What happened to the Eighth Amendment?” Justice Scalia asked during the oral argument, referring to prohibition of cruel and unusual punishment. ‘You really want us to go through these 2,700 pages? And do you really expect the court to do that? Or do you expect us to give this function to our law clerks?’

“Justice Breyer made a similar point: ‘I haven’t read every word of that, I promise. . . . There is the mandate in the community, this is Titles I and II, the mandate, the community, pre-existing condition, OK? . . . There is biosimilarity, there is breast-feeding, there is promoting nurses and doctors to serve underserved areas, there is the Class Act, etc. . . . So what do you propose we do other than spend a year reading all this?’” Read entire article

Categories: Liberty     Tags: Constitution, Gordon Crovitz, Liberty, ObamaCare, Supreme Court

Thought of the Day — Jerry Tucker, Spirit of Golf

An old Cherokee told his grandson, “My son, there is a battle between two wolves inside us all.  One contains anger, jealousy, greed, resentment, inferiority, lies, and ego.  The other is Good.  It is joy, peace, love, hope, humility, kindness, compassion, and truth.”  The boy thought about it, and asked, “Grandfather, which wolf wins the battle?”  The old man quietly replied, “The one you feed.”

Categories: Faith     Tags: Jerry Tucker, Spirit of Golf, Virtues

Ben Bernancke’s Paper Dollar Embodies Systemic Risk — Charles Kadlec, Forbes.com

The paper dollar is now the single most important source of systemic risk to the financial system, the world economy, and the security of the American people.

That is the lesson of the past 100 years that Federal Reserve Chairman Ben Bernanke did not teach during his four lectures at George Washington University’s Graduate School of Business. Instead, he celebrated the importance of the extraordinary powers he and his fellow governors have to manipulate interest rates and the value of the dollar in the name of economic growth and stability.

In so doing, he ignored completely that the ever growing need for heroic interventions by the Fed is itself being created by the paper dollar system he celebrates.

This failure is all the more telling because Mr. Bernanke states up front that central banks perform two critical functions: The first is to “achieve macroeconomic stability.” By that, he generally means “stable growth in the economy, avoiding big swings, recessions and the like, and keeping inflation low and stable.” The second is to provide “financial stability” by either trying to prevent or mitigate financial panics or financial crises.

On both counts, the paper dollar system in effect since the final link between the dollar and gold was broken in 1971 has failed and failed miserably when compared to the results produced under the gold standard.

Let’s begin by stipulating that we agree with Chairman Bernanke’s point that the gold standard is not a perfect monetary system. What is?

The more important question is which system, the gold standard or the paper dollar, provides more macroeconomic stability and fewer financial crises.

To answer this question, let’s examine the historic record beginning with the most difficult example, the Great Depression, which supporters of the paper dollar invoke to discredit the gold standard and thereby avoid defending the abysmal record of the paper dollar.

As Professor Brian Domitrovic pointed out in his recent Forbes.com column, the officials running the Federal Reserve in the critical period between 1928 and 1933 chose to ignore the rules of the gold standard, which would have forced them to increase the money supply in response to inflows of gold. Instead, the Fed exercised discretion and tightened, thereby making the deflation of the early 1930s worse that it otherwise would have been. Explains Domitrovic:

“Rather, as (Richard H.) Timberlake has shown, we know what guided Fed thinking in this period, and this was the doctrine that the Fed would refrain from issuing money unless it clearly would go to financing end-point economic transactions, as opposed to things like stock-market speculation and even investment. Whatever you want to say about this doctrine, it has zip to do with the gold standard. And it was at the root of the Fed’s weird decision-making 1928-33 where it presided over a radical narrowing of the money supply.”

What about the claim that, while the gold standard maintains a stable price level over longer periods of time, in the words of Chairman Bernanke: “over shorter periods, maybe 5 or 10 years, you can actually have a lot of inflation, rising prices, or deflation, falling prices.”

After the largest gold discovery of modern times set off the 1849 California gold rush the price level in the U.S. rose 12.4% over the next 8 years. Under the paper dollar, that 8 year cumulative increase was exceeded in 1974, 1979 and 1980 alone. Moreover, an 8 year increase of 12.4% is equivalent to an average increase of 1.5% a year. By contrast, current Fed policy calls for inflation to average 2% a year which equates to a 17% increase in the price level over the next 8 years.

Since abandoning the last vestiges of the gold standard in 1971, inflation has averaged 4.4% a year. Nevertheless, various sectors of the economy have suffered Great Depression like deflations. For example, between 1980 and 1986, the price of oil fell 60%, and the price of agricultural commodities and farm land fell by double digits. Those deflations led to the major bank failures of the mid and late 1980s. And, of course, the most recent financial crisis was triggered by a 30% decline in home prices, a disaster for American families, banks and investors alike that ranks right up there with the hardships experienced during the Great Depression.

The net result is without the guidance of the gold standard, the Fed and the paper dollar have become the leading source of economic and financial instability. Since 1971, when President Nixon freed the Federal Reserve from the strictures of the gold standard, recessions have become more frequent longer and deeper. From 1971 through 2010 (under the paper standard) unemployment averaged 6.3%, much worse than the 1947-67 (gold standard) average of 4.7%. We have since experienced the three worst recessions since the end of World War II, with the unemployment rate averaging 8.5% in 1975, 9.7% in 1982, and now above 8% for three years and counting.

Under the post World War II gold standard, there were no financial crises that presented a systemic risk to the U.S. economy. Since 1971, we have experienced the:

• 1973 oil shock and international monetary crisis

• 1979 oil shock and dollar crisis

• 1982 Latin American debt crisis

• 1984 banking crisis and effective nationalization of Continental Illinois Bank

• 1987 stock market crash

• 1989-91 S&L crisis and bailout

• 1990 Japanese bubble collapse and banking crisis

• 1994 Mexican peso crisis

• 1998 Asian currency crisis

• 2001 dot com crash

• 2007-09 Housing collapse and international financial crisis

• 2010-2012 European sovereign debt crisis

In addition, the massive increase in the Fed’s and other major central bank balance sheets since the first quantitative easing in 2009 has coincided with the slowest recovery ever — even worse than the recoveries experienced during the 1930s — and the fear of yet another break out in inflation.

Under Chairman Bernanke’s leadership, the extraordinary steps taken to contain the financial panic in late 2008 and early 2009 by fulfilling its “lender of last resort” role to banks and, under emergency powers granted to it by the Federal Reserve Act, to non-bank institutions, may well have avoided a complete collapse of the world’s financial system.

But to use that success as justification for a discretionary monetary policy and a defense of the Fed’s ability to manipulate interest rates and the value of the dollar is to miss the greater point. The growing instability of the macro economy and the financial system is itself a product of the paper dollar system.

The most important thing the Fed could do now to fulfill its two fundamental roles of providing for a stable economy and preventing financial crises would be to begin an orderly transition back to a dollar whose value was once again defined by a unit weight of gold — that is to make the dollar once again as good as gold. To do otherwise is to leave in place the fundamental source of systemic risk that no amount of increased regulation or oversight can correct — the inherent instability of today’s monetary system based on a paper dollar whose future value is unknown and unknowable.

Categories: Economic Policy     Tags: Ben Bernancke, Charles Kadlec, Financial Crisis, Gold Standard, Monetary Policy

Community of Liberty’s Declaration states:  ”We condemn acts of greed in all of its forms including theft, fraud, embezzlement, deceit and the use of the coercive power of government to gain undue advantage.”

What too often is overlooked by those who believe in the beneficence of government is how those with political and economic power always seek — and more often than not, succeed — in using  its coercive power to gain undue advantage.  Sheldon Richman points out that the 99% have a legitimate complaint with the 1% who have obtained their economic status through exploiting government’s power rather than by satisfying consumers through voluntary exchanges.

The 99% and the 1% — Sheldon Richman, The Freeman

“This is drawn from my lecture at the William and Patricia Jolicoeur Economics Seminar, cosponsored by FEE and the Western New England University economics department, Springfield, Mass., March 13, 2012.

“’We are the 99 percent!’ That’s the battle cry of Occupy Wall Street. What are we to make of it? It’s a worthwhile question with a complex answer…

“I approach this question by drawing on an insight emphasized by the left-libertarian sociologist Franz Oppenheimer (1864-1943), originator of the conquest theory of the State and inspiration to Albert Jay Nock. It is an insight found previously in the nineteenth-century French laissez fairests J. B. Say, Frédéric Bastiat, and others. In his book The State, Oppenheimer wrote:

There are two fundamentally opposed means whereby man, requiring sustenance, is impelled to obtain the necessary means for satisfying his desires. These are work and robbery, one’s own labor and the forcible appropriation of the labor of others.… I propose … to call one’s own labor and the equivalent exchange of one’s own labor for the labor of others, the “economic means” for the satisfaction of needs, while the unrequited appropriation of the labor of others will be called the “political means.”

So our inquiry is directed to whether 1 percenters make their money through the political means or the economic means. The right answer is “both.” Let’s start by acknowledging that we do not live in a free-market economy, by which I mean an economy based solely on “equality of authority” and voluntary exchange, void of all privilege founded in coercion. Quite the contrary. Corporatist privilege abounds, and so we may reasonably suspect that any large fortune is the result of a combination of the economic and political means. In any individual case one or the other may predominate. Some people are genuine market entrepreneurs. But others are largely political entrepreneurs. Since the State touches all aspects of life, we are talking about matters of degree.

While it can be difficult to determine how much any individual depends on the political means, we can enumerate some of the many devices described by that term.

Categories: Economic Liberty     Tags: Capitalism, Crony Capitalism, Greed, Occupy Wall Street, Power Motive, Sheldon Richman

A law (HR 347) passed by overwhelming majorities in both houses of Congress and signed  earlier this month by President Barack Obama creates for the first time “No Free Speech Zones.”   The law gives the Secret Service the power to prohibit citizens from engaging in protests anywhere the Secret Service is present.

No kidding.

Under this law, you can now be arrested by a Secret Service agent and charged with a felony for the crime of peacefully standing on the sidewalk and yelling at the President or anyone else with Secret Service protection.

No Free Speech Zones — Judge Andrew Napolitano, Fox News interview

Categories: Bill of Rights     Tags: Bill of Rights, First Amendment, Judge Napolitano