Tag Archives: Constitution

The real free lunch: Markets and private property

As we approach another birthday of Milton Friedman, here’s his article where he clears up the authorship of a famous aphorism, and explains how to really get a free lunch. Based on remarks at the banquet celebrating the opening of the Cato Institute’s new building, Washington, May 1993.

I am delighted to be here on the occasion of the opening of the Cato headquarters. It is a beautiful building and a real tribute to the intellectual influence of Ed Crane and his associates.

I have sometimes been associated with the aphorism “There’s no such thing as a free lunch,” which I did not invent. I wish more attention were paid to one that I did invent, and that I think is particularly appropriate in this city, “Nobody spends somebody else’s money as carefully as he spends his own.” But all aphorisms are half-truths. One of our favorite family pursuits on long drives is to try to find the opposites of aphorisms. For example, “History never repeats itself,” but “There’s nothing new under the sun.” Or “Look before you leap,” but “He who hesitates is lost.” The opposite of “There’s no such thing as a free lunch” is clearly “The best things in life are free.”

And in the real economic world, there is a free lunch, an extraordinary free lunch, and that free lunch is free markets and private property. Why is it that on one side of an arbitrary line there was East Germany and on the other side there was West Germany with such a different level of prosperity? It was because West Germany had a system of largely free, private markets — a free lunch. The same free lunch explains the difference between Hong Kong and mainland China, and the prosperity of the United States and Great Britain. These free lunches have been the product of a set of invisible institutions that, as F. A. Hayek emphasized, are a product of human action but not of human intention.

Continue reading The real free lunch: Markets and private property

Rebuilding liberty without permission

A forthcoming book by Charles Murray holds an intriguing idea as to how Americans can reassert liberty: Civil disobedience. Make the federal government an “insurable hazard.”

I think it’s a great idea. For an easy introduction to this concept, listen to the Cato Institute’s seven-minute podcast of Murray speaking about these ideas.

From the publisher:

American freedom is being gutted. Whether we are trying to run a business, practice a vocation, raise our families, cooperate with our neighbors, or follow our religious beliefs, we run afoul of the government—not because we are doing anything wrong but because the government has decided it knows better. When we object, that government can and does tell us, “Try to fight this, and we’ll ruin you.”

In this provocative book, acclaimed social scientist and bestselling author Charles Murray shows us why we can no longer hope to roll back the power of the federal government through the normal political process. The Constitution is broken in ways that cannot be fixed even by a sympathetic Supreme Court. Our legal system is increasingly lawless, unmoored from traditional ideas of “the rule of law.” The legislative process has become systemically corrupt no matter which party is in control.

But there’s good news beyond the Beltway. Technology is siphoning power from sclerotic government agencies and putting it in the hands of individuals and communities. The rediversification of American culture is making local freedom attractive to liberals as well as conservatives. People across the political spectrum are increasingly alienated from a regulatory state that nakedly serves its own interests rather than those of ordinary Americans.

The even better news is that federal government has a fatal weakness: It can get away with its thousands of laws and regulations only if the overwhelming majority of Americans voluntarily comply with them. Murray describes how civil disobedience backstopped by legal defense funds can make large portions of the 180,000-page Federal Code of Regulations unenforceable, through a targeted program that identifies regulations that arbitrarily and capriciously tell us what to do. Americans have it within their power to make the federal government an insurable hazard like hurricanes and floods, leaving us once again free to live our lives as we see fit.

By the People’s hopeful message is that rebuilding our traditional freedoms does not require electing a right-thinking Congress or president, nor does it require five right-thinking justices on the Supreme Court. It can be done by we the people, using America’s unique civil society to put government back in its proper box.

Wichita has examples of initiative and referendum

Citizens in Wichita have been busy exercising their rights of initiative and referendum at the municipal level. The Kansas Legislature should grant the same rights to citizens at the state level.

What recourse do citizens have when elected officials are not responsive? Initiative and referendum are two possibilities. Citizens in Wichita have exercised these rights, but Kansans are not able to do this at the state level.

Initiative is when citizens propose a new law, and then gather signatures on petitions. If a successful petition is filed, the matter is (generally) placed on a ballot for the electorate to decide whether the proposed law will become actual law. Examples are the initiative to add fluoride to Wichita water (which voters rejected) and reduce the penalties for possession of small amounts of marijuana (which passed, but has not taken effect pending legal action by the Kansas Supreme Court.)

Referendum is when citizens petition to overturn an act passed by a governing body. An example is the 2012 repeal of a charter ordinance passed by the Wichita city council.

So at the municipal level in Kansas, citizens have the right of initiative, although in practice the right is limited. The right of referendum is more narrowly limited. But at the state level, there is no possibility for citizens to exercise initiative or referendum. The law simply does not allow for this.

Policies, not politicians

Initiative and referendum allow citizens to vote on specific laws or policies. This is contrasted with elections for office, where voters must choose candidate A or candidate B. Voters have to take the entire package of positions associated with a candidate. It isn’t possible to select some positions from candidate A, and others from candidate B. So when a candidate wins an election, can we say why? Which of the candidate’s positions did voters like, and which did voters not like? Results of regular elections rarely provide a clear answer.

Initiative and referendum, however, let citizens vote on a specific law or proposal. There is little doubt as to the will of the voters.

There’s a difference between voting for politicians and voting for policies. When given a chance, Wichitans have often voted different from what the council wanted. An example is the 2012 overturn of a charter ordinance the council passed. Another is the failure of the sales tax in November 2014. That was on the ballot not because of citizen initiative, but it is an example of voting directly for an issue rather than a candidate. Citizens rejected the sales tax by a wide margin, contrary to the wishes of the city council, city hall bureaucrats, and the rest of Wichita’s political class.

It’s different voting for policies than politicians. For one thing, the laws passed by initiative don’t change, at least for some period of time. But politicians and their campaign promises have a short shelf life, and are easily discarded or modified to fit the current situation.

Politicians don’t want it, which is its best argument

Generally, politicians and bureaucrats don’t want citizens to be empowered with initiative and referendum. When the city council was forced to set an election due to the successful petition regarding the Ambassador Hotel issue, reactions by council members showed just how much politicians hate initiative and referendum. Council Member Pete Meitzner (district 2, east Wichita) wanted to move the election to an earlier date so as to “avoid community discourse and debate.”

Council Member Janet Miller (district 6, north central Wichita) expressed concern over “dragging this out,” and said she wants to “get it over with as soon as we can so that we can move on.”

In his remarks, Mayor Carl Brewer advocated having the election as soon as possible. He told the city “By doing that, it eliminates a lot of turmoil inside the community, unrest.”

As you can see by these remarks, politicians don’t like citizens second-guessing their actions. Initiative and referendum gives citizens this power. John Fund said it best: “Without initiatives and referendums, elites would barely bother at all to take note of public opinion on issues they disdained — from supermajority requirements to raise taxes to term limits. They serve as a reminder that the experts sometimes have to pay attention to good old common sense.”

Petitioning is not easy

A criticism often leveled against initiative and referendum is that ballots will be crowded with questions submitted by citizens. But as anyone who has been involved in a petitioning effort knows, filing a successful petition is not a simple matter. The first petition effort to relax Wichita marijuana laws failed, with the election commissioner ruling that an insufficient number of valid signatures were submitted. (Generally, petition signers must meet certain requirements such as being a registered voter and living within a certain jurisdiction.) Now the Kansas Attorney General contends that the second petition by the same group is defective because it lacks the proper legal language. It is common for the validity of petitions to be contested, either by government or by special interest groups that believe they will be adversely affected.

How to get it

It will take an amendment to the constitution for the people of Kansas to have initiative and referendum rights at the state level. That requires passage in both chambers of the legislature by a two-thirds margin, and then passage by a majority of voters.

Although the governor does not play a direct role in constitutional amendments — as they do not require the governor’s signature — a governor can still have a role. In 1991 Joan Finney supported initiative and referendum. An amendment passed the Kansas Senate, but did not advance through the House of Representatives.

Today it seems unlikely that the present Kansas Legislature would support an amendment implementing initiative and referendum. Politicians just don’t want to give up the power. (The laws giving some initiative and referendum rights at the municipal level is a state law. State legislators were imposing a hardship on other elected officials, not themselves.)

But initiative and referendum are popular with voters. In 2013 Gallup polled voters regarding petitioning at the national level. 68 percent favored this, while 23 percent opposed. One of the few issues that poll higher than this is term limits for office holders.

By the way, do you know what citizens in states often do after gaining the right of initiative? Impose term limits on their legislatures. Lawmakers don’t want you to do that.

Recent history in Wichita

In 2011, Wichitans petitioned to overturn a charter ordinance passed by the city council. In February 2012 the ordinance was overturned by a vote of 16,454 to 10,268 (62 percent to 38 percent). This was a special election with only question on the ballot.

In 2012 a group petitioned to add fluoride to Wichita water. The measure appeared on the November 2012 general election ballot, and voters said no by a vote of 76,906 to 52,293, or 60 percent to 40 percent.

On the November 2014 general election ballot, Wichita voters were asked about a one cent per dollar sales tax. This was not the result of a petition, but it provides an example of a vote for a policy rather than a person. Voters said no to the sales tax, 64,487 to 38,803 (62 percent to 38 percent.)

In 2015 a group petitioned to reduce the penalties for possession of small amount of marijuana. The measure appeared on the April 2015 city general election ballot, where Wichita voters approved the proposed law 20,327 to 17,183 (54 percent to 46 percent).

For Wichita’s Longwell, flipping in the face of an election

Campaign season provides an opportunity to see just how malleable candidates’ positions can be, leaving us to wonder if some have any firm and guiding principles.

When Wichita City Council Member Jeff Longwell was asked about citizens exercising their constitutional right to challenge an ordinance passed by the council, Jeff Longwell said it was “disappointing,” and a “stunt.” He said that using this fundamental aspect of democracy causes citizens to “lose credibility.” (Wichita Eagle, September 14, 2011)

Now that Wichitans are voting on controversial matter that was placed on the ballot using a similar procedure, Longwell told the same newspaper “I believe the voters should be allowed to decide this issue and I supported placing the issue on the ballot.”

What caused the evolution from “disappointing” to “supported”? Why was one a “stunt” and another a simple exercise in democracy?

It’s easy to see. The present issue — reducing the penalty for possession of marijuana — doesn’t involve money, at least to any appreciable extent. And even if it passes, it’s likely the state will try to block it from taking effect.

But the 2011 issue involved Longwell voting for a taxpayer-funded giveaway to the special interests that fund his campaigns. His cronies, in other words. That is what really counts for Longwell, and it shows his lack of respect for the rule of law.

As lawmakers, Kansas judges should be selected democratically

Kansas Judicial Center in snowWhile many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its two highest courts, violates this principle.

A recent paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas courts that use the judicial selection described in the paper are the Kansas Court of Appeals and the Kansas Supreme Court.

At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.'”

A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Court of Appeals or Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

The result: New Kansas law, made by people selected through an undemocratic process.

In conclusion, Ware writes:

Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

Prospects for Kansas

In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. Last year the House of Representatives passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

Owens, it should be noted, is an attorney, and is therefore a member of the privileged class that has outsize power in selecting judges.

Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

The bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

With the change in composition of the Kansas Senate, the climate is more favorable for reform for the way judges are selected for the Kansas Court of Appeals. The law governing how judges for the Kansas Supreme Court are selected is in the Kansas Constitution, and would require an amendment to alter the process. Such an amendment requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

By the way: For those who criticize the support for judicial selection reform as pure power politics, since Kansas has a conservative governor, remember this: When Professor Ware sounded the need for reform and convinced me of the need, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have rubberstamped any nominee Sebelius might have sent for confirmation.

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
By Stephen J. Ware

Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

The complete paper may be downloaded at no charge here.

Religion and politics; two subjects that divide friends and family members alike

By Eileen Umbehr, wife of Libertarian Candidate for Kansas Governor Keen Umbehr
November 1, 2014

Keen and Eileen Umbehr
Keen and Eileen Umbehr
As this campaign draws to a close, my heart is heavy. Not so much because Keen was treated as a second-class candidate who didn’t deserve a seat at the table with his Democrat and Republican opponents, but because of the way I’ve seen God used as a selling point in politics.

For example, Keen is solidly pro-life. He believes in freedom as long as you do not cause harm to another human being, and a baby is a human being. But because he also acknowledges the reality that unless and until Roe v. Wade is overturned women maintain their right to choose, he is not considered pro-life enough.

The issue of same-sex marriage has also been deeply divisive and been used to garner votes. How a candidate may feel about two members of the same sex uniting in marriage is separate from his or her duty as a government official to ensure that all laws apply equally to all citizens. Could the government decide not to issue gay people a license to teach, cut hair, practice law, or engage in business?

What each of us believe and the tenets we choose to follow in our private lives is a personal matter. While Keen and I are both Christians who try to live according to the principles set forth in the Bible, where we differ from many of our fellow Christians is that we don’t believe it is our right — or the government’s right — to impose any particular religious belief on anyone. Even God doesn’t do that. If He did, wouldn’t He simply force everyone to believe that Jesus died on the cross for their sins so they would all go to Heaven?

Keen is a strict constitutionalist. He believes in the First Amendment right of free speech even when it means that the Phelps’ family can spew messages of hate, causing immeasurable harm to families burying their loved ones. And he believes in the Sixth Amendment right to counsel even when the accused may be guilty of a heinous crime.

When it comes to the Fourteenth Amendment, there are many who feel it should not apply to gays wanting to marry because homosexuality is classified as a sin in the Bible. But isn’t fornication and sex before marriage also classified as a sin in the Bible? And yet no one is suggesting that folks who have engaged in these acts should be denied a marriage license.

Someone posted the following statement about Keen on a liberty-based Facebook page: “Don’t be deceived, this guy is pumping for same sex marriage.” Keen posted the following reply: “I am not ‘pumping’ for same sex marriage, I am ‘pumping’ for adhering to the Constitution which requires equal protection under the law. As long as the State of Kansas is in the business of issuing licenses — whether they be drivers’ licenses, marriage licenses or business licenses — they cannot discriminate against individuals on the basis of religion, gender, or race. How each individual chooses to live their lives is their business, not the government’s.”

In conclusion, if we really want to protect religious freedom in our country, then we should elect candidates who will defend the rights of all citizens to practice whichever religion they choose. That is true religious liberty.

But then, a candidate like that wouldn’t be considered Christian enough.

Arguments for and against term limits

From RestartCongress.org.

Arguments for term limits

  • With term limits in place, Congress will be more responsible toward their constituents because they will soon be constituents themselves. They will have to live under the laws they have created while in office.
  • Members of Congress will have less time in office to develop financially beneficial commitments to lobbyists and other special interest groups, thereby undermining the threat of lobbyists being a primary influence on legislation.
  • Since the time of the Founding Fathers, a general consensus states that people, when given power, will eventually be corrupted by it. If Congress has term limits in place, their power will also be limited. Candidates will be more likely to run for the purpose of serving the people, and they would have to leave office before corruption dominates their decisions.
  • Congress is heavily entrenched in partisan politics, resulting in gridlock when trying to pass any legislation. If term limits were enacted, toeing the party line would be less important, as the need for re-election and holding onto party seats would no longer be the driving force behind most legislative decisions. Congress would have an easier time passing the legislation that would make a positive difference for the nation.
  • Money is a major factor in who will win an election. Incumbents have the benefit of the profits they made while in power — plus the backing of their party, contributing organizations and special interests — to get re-elected. However, these wealthy incumbents are often not the best person for the job, as they are so far-removed from the daily realities of the American people. A middle class person who better understands the problems facing the average citizen is highly unlikely to get elected over a wealthy incumbent. Term limits will help to eliminate the shady, profitable relationships between members of Congress and special interest groups, and therefore reduce the wealth gap between candidates. In turn, more qualified people will have a real opportunity to win elections.
  • Within Congress, most legislation is written by a committee that handles a specific duty or topic. Committee appointments can be very prized positions for the power, influence and financial backing that can be attained. These positions are often assigned based on political favors and a willingness to support causes or projects. Therefore, career politicians who have formed the most self-serving relationships can often be given the most power in Congress. Term limits would work to stop this cycle of political reward and power abuse. Committee assignments would be determined by merit and expertise, resulting in fair and informed decisions.

The arguments against term limits

Career politicians should be valued for their experience. If we regularly fill a Congressional office with a newcomer, we will lose the valuable experience on-the-job that person can offer in government.

  • On occasion, there may be a member of Congress that has fought for his constituents and resisted the corrupt system of power abuse that is considered normal on Capitol Hill. The Founding Fathers discussed the need for a “rotation of office.” When one’s terms are up in one office, that politician can run for another office (such as a member of the House running for Senator, Governor, etc.) and put their experience to use in other helpful ways.
  • The notion that only one person — the incumbent — can do the job well is absurd. Problematically, we continue to elect the incumbent because of name recognition and party affiliation rather than a proven track record. Realistically, there is usually someone just as qualified to take over the incumbent’s office.

Term limits are not necessary because members of Congress must be regularly re-elected. If they are not doing a good job in office, we can simply vote for someone else.

  • While this would happen in an ideal world, historically the incumbent is re-elected 90% of the time. The playing field is simply not level between incumbents and challenging candidates because of the ability to raise money. In 2010, the average incumbent in the House raised around $1.4 million, while the challengers averaged $166,000. In the same year, Senate incumbents averaged $9.4 million for each campaign, while challengers raised $519,000. With that incredible discrepancy, it is no surprise that the incumbent usually prevails. If a member of Congress is limited to one or two terms, the party itself and other major donors would not invest nearly as much in an incumbent, giving challengers a better chance of winning the race.

Term limits would give more power to bureaucrats and lobbyists.

  • This argument is based in the notion that incoming legislators will be entirely unqualified for their jobs and will be easily led astray by staff, bureaucrats, special interests, etc. The way the system works today suggests that the real problem is in longevity of office and the complacency that can come along with it. For instance, lobbyists invest heavily in long-term relationships with sitting legislators. Congress members currently shirk many responsibilities by delegating them to bureaucratic agencies.
  • Term limits have the potential to greatly reduce these problems. When more Congressional races are won by challengers from outside the Beltway, this change is likely to bring new staffers with new ideas into Washington, rather than recycling the same old corrupt insiders.

Term limits are unconstitutional.

  • Clearly this is not the case, as the President of the United States is limited to two terms because of a Constitutional Amendment. A 28th Amendment would be necessary to impose term limits for Congress, and that is precisely what we are seeking. Since Congress will not willingly do so on their own, it is imperative that Americans make their voice heard on this issue.

Franklin Roosevelt, contributor to modern nanny state

If you’ve wondered what was the genesis of the modern nanny state, listen to this speech by Franklin Delano Roosevelt. It’s part of his State of the Union Address from 1944.

The purpose of the original Bill of Rights is to protect our freedoms from government. But to provide the things Roosevelt calls for — food, clothing, a decent home, adequate medical care, and a good education — requires an expansive government. These rights are called positive rights because they require action by the government, in contrast to the negative rights found in the Bill of Rights. Richard A. Epstein explains the consequences of the “Roosevelt Rights”:

All of these are positive rights, which means necessarily that some unidentified individuals or groups have the duty to provide decent wages, home, health, and education to the people. The individual so taxed can discharge that duty only by forfeiting his own right to reap the fruits of his own labor. Yet the incidence and size of these hefty correlative duties are left unaddressed by Roosevelt.

We are witnessing today a modern rerun of Roosevelt’s incomplete strategy. Obama’s healthcare plan, for instance, designates a generous set of “essential health benefits” to a large number of individuals entitled to affordable care on the newly created government exchanges. But these benefits cannot be funded with higher taxes on the “millionaires and billionaires,” whose combined wealth falls short of what is needed. So what duty will undergird the new right?

This sort of funding crisis could never arise under the Bill of Rights 1.0, whose correlative duties are negative — or, put another way, they impose a “keep off” sign on other people. If I have the freedom of speech, your duty is to forbear from disrupting the speech with force, and vice versa. Each of us can demand forbearance from the use of force by all others.

David Kelley elaborates further in a chapter from The Morality of Capitalism:

By contrast, welfare rights are conceived as rights to possess and enjoy certain goods, regardless of one’s actions; they are rights to have the goods provided by others if one cannot earn them oneself. Accordingly, welfare rights impose positive obligations on others. If I have a right to food, someone has an obligation to grow it. If I cannot pay for it, someone has an obligation to buy it for me. Welfarists sometimes argue that the obligation is imposed on society as a whole, not on any specific individual. But society is not an entity, much less a moral agent, over and above its individual members, so any such obligation falls upon us as individuals. Insofar as welfare rights are implemented through government programs, for example, the obligation is distributed over all taxpayers.

From an ethical standpoint, then, the essence of welfarism is the premise that the need of one individual is a claim on other individuals. The claim may run only as far as the town or the nation. It may not embrace all of humanity. But in all versions of the doctrine, the claim does not depend on your personal relationship to the claimant, or your choice to help, or your evaluation of him as worthy of your help. It is an unchosen obligation arising from the sheer fact of his need.

Here is an excerpt from Roosevelt’s State of the Union Address, January 1944.

It is our duty now to begin to lay the plans and determine the strategy for the winning of a lasting peace and the establishment of an American standard of living higher than ever before known. We cannot be content, no matter how high that general standard of living may be, if some fraction of our people—whether it be one-third or one-fifth or one-tenth- is ill-fed, ill-clothed, ill housed, and insecure.

This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights—among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.

As our Nation has grown in size and stature, however—as our industrial economy expanded—these political rights proved inadequate to assure us equality in the pursuit of happiness.

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. “Necessitous men are not free men.” People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all regardless of station, race, or creed.

Among these are:

The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.

The real free lunch: Markets and private property

As we approach another birthday of Milton Friedman, here’s his article where he clears up the authorship of a famous aphorism, and explains how to really get a free lunch. Based on remarks at the banquet celebrating the opening of the Cato Institute’s new building, Washington, May 1993.

I am delighted to be here on the occasion of the opening of the Cato headquarters. It is a beautiful building and a real tribute to the intellectual influence of Ed Crane and his associates.

I have sometimes been associated with the aphorism “There’s no such thing as a free lunch,” which I did not invent. I wish more attention were paid to one that I did invent, and that I think is particularly appropriate in this city, “Nobody spends somebody else’s money as carefully as he spends his own.” But all aphorisms are half-truths. One of our favorite family pursuits on long drives is to try to find the opposites of aphorisms. For example, “History never repeats itself,” but “There’s nothing new under the sun.” Or “Look before you leap,” but “He who hesitates is lost.” The opposite of “There’s no such thing as a free lunch” is clearly “The best things in life are free.”

And in the real economic world, there is a free lunch, an extraordinary free lunch, and that free lunch is free markets and private property. Why is it that on one side of an arbitrary line there was East Germany and on the other side there was West Germany with such a different level of prosperity? It was because West Germany had a system of largely free, private markets — a free lunch. The same free lunch explains the difference between Hong Kong and mainland China, and the prosperity of the United States and Great Britain. These free lunches have been the product of a set of invisible institutions that, as F. A. Hayek emphasized, are a product of human action but not of human intention.

At the moment, we in the United States have available to us, if we will take it, something that is about as close to a free lunch as you can have. After the fall of communism, everybody in the world agreed that socialism was a failure. Everybody in the world, more or less, agreed that capitalism was a success. The funny thing is that every capitalist country in the world apparently concluded that therefore what the West needed was more socialism. That’s obviously absurd, so let’s look at the opportunity we now have to get a nearly free lunch. President Clinton has said that what we need is widespread sacrifice and concentrated benefits. What we really need is exactly the opposite. What we need and what we can have — what is the nearest thing to a free lunch — is widespread benefits and concentrated sacrifice. It’s not a wholly free lunch, but it’s close.

Let me give a few examples. The Rural Electrification Administration was established to bring electricity to farms in the 1930s, when about 80 percent of the farms did not have electricity. When 100 percent of the farms had electricity, the REA shifted to telephone service. Now 100 percent of the farms have telephone service, but the REA goes merrily along. Suppose we abolish the REA, which is just making low-interest loans to concentrated interests, mostly electric and telephone companies. The people of the United States would be better off; they’d save a lot of money that could be used for tax reductions. Who would be hurt? A handful of people who have been getting government subsidies at the expense of the rest of the population. I call that pretty nearly a free lunch.

Another example illustrates Parkinson’s law in agriculture. In 1945 there were 10 million people, either family or hired workers, employed on farms, and the Department of Agriculture had 80,000 employees. In 1992 there were 3 million people employed on farms, and the Department of Agriculture had 122,000 employees.

Nearly every item in the federal budget offers a similar opportunity. The Clinton people will tell you that all of those things are in the budget because people want the goodies but are just too stingy to pay for them. That’s utter nonsense. The people don’t want those goodies. Suppose you put to the American people a simple proposition about sugar: We can set things up so that the sugar you buy is produced primarily from beets and cane grown on American farms or so the sugar in addition comes without limit from El Salvador or the Philippines or somewhere else. If we restrict you to home-grown sugar, it will be two or three times as expensive as if we include sugar from abroad. Which do you really think voters would choose? The people don’t want to pay higher prices. A small group of special interests, which reaps concentrated benefits, wants them to, and that is why sugar in the United States costs several times the world price. The people were never consulted. We are not governed by the people; that’s a myth carried over from Abraham Lincoln’s day. We don’t have government of the people, by the people, for the people. We have government of the people, by the bureaucrats, for the bureaucrats.

Consider another myth. President Clinton says he’s the agent of change. That is false. He gets away with saying that because of the tendency to refer to the 12 Reagan-Bush years as if they were one period. They weren’t. We had Reaganomics, then Bushonomics, and now we have Clintonomics. Reaganomics had four simple principles: lower marginal tax rates, less regulation, restrained government spending, noninflationary monetary policy. Though Reagan did not achieve all of his goals, he made good progress. Bush’s policy was exactly the reverse of Reaganomics: higher tax rates, more regulation, more government spending. What is Clinton’s policy? Higher tax rates, more regulation, more government spending. Clintonomics is a continuation of Bushonomics, and we know what the results of reversing Reaganomics were.

On a more fundamental level, our present problems, both economic and noneconomic, arise mainly from the drastic change that has occurred during the past six decades in the relative importance of two different markets for determining who gets what, when, where, and how. Those markets are the economic market operating under the incentive of profit and the political market operating under the incentive of power. In my lifetime the relative importance of the economic market has declined in terms of the fraction of the country’s resources that it is able to use. And the importance of the political, or government, market has greatly expanded. We have been starving the market that has been working and feeding the market that has been failing. That’s essentially the story of the past 60 years.

We Americans are far wealthier today than we were 60 years ago. But we are less free. And we are less secure. When I graduated from high school in 1928, total government spending at all levels in the United States was a little over 10 percent of the national income. Two-thirds of that spending was state and local. Federal government spending was about 3 percent of the national income, or roughly what it had been since the Constitution was adopted a century and a half earlier, except for periods of major war. Half of federal spending was for the army and the navy. State and local government spending was something like 7 to 9 percent, and half of that was for schools and roads. Today, total government spending at all levels is 43 percent of the national income, and two-thirds of that is federal, one-third state and local. The federal portion is 30 percent of national income, or about 10 times what it was in 1928.

That figure understates the fraction of resources being absorbed by the political market. In addition to its own spending, the government mandates that all of us make a great many expenditures, something it never used to do. Mandated spending ranges from the requirement that you pay for antipollution devices on your automobiles, to the Clean Air Bill, to the Aid for Disability Act; you can go down the line. Essentially, the private economy has become an agent of the federal government. Everybody in this room was working for the federal government about a month ago filling out income tax returns. Why shouldn’t you have been paid for being tax collectors for the federal government? So I would estimate that at least 50 percent of the total productive resources of our nation are now being organized through the political market. In that very important sense, we are more than half socialist.

So much for input, what about output? Consider the private market first. There has been an absolutely tremendous increase in our living standards, due almost entirely to the private market. In 1928 radio was in its early stages, television was a futuristic dream, airplanes were all propeller driven, a trip to New York from where my family lived 20 miles away in New Jersey was a great event. Truly, a revolution has occurred in our material standard of living. And that revolution has occurred almost entirely through the private economic market. Government’s contribution was essential but not costly. Its contribution, which it’s not making nearly as well as it did at an earlier time, was to protect private property rights and to provide a mechanism for adjudicating disputes. But the overwhelming bulk of the revolution in our standard of living came through the private market.

Whereas the private market has produced a higher standard of living, the expanded government market has produced mainly problems. The contrast is sharp. Both Rose and I came from families with incomes that by today’s standards would be well below the so-called poverty line. We both went to government schools, and we both thought we got a good education. Today the children of families that have incomes corresponding to what we had then have a much harder time getting a decent education. As children, we were able to walk to school; in fact, we could walk in the streets without fear almost everywhere. In the depth of the Depression, when the number of truly disadvantaged people in great trouble was far larger than it is today, there was nothing like the current concern over personal safety, and there were few panhandlers littering the streets. What you had on the street were people trying to sell apples. There was a sense of self-reliance that, if it hasn’t disappeared, is much less prevalent.

In 1938 you could even find an apartment to rent in New York City. After we got married and moved to New York, we looked in the apartments-available column in the newspaper, chose half a dozen we wanted to look at, did so, and rented one. People used to give up their apartments in the spring, go away for the summer, and come back in the autumn to find new apartments. It was called the moving season. In New York today, the best way to find an apartment is probably to keep track of the obituary columns. What’s produced that difference? Why is New York housing a disaster today? Why does the South Bronx look like parts of Bosnia that have been bombed? Not because of the private market, obviously, but because of rent control.

Despite the current rhetoric, our real problems are not economic. I am inclined to say that our real problems are not economic despite the best efforts of government to make them so. I want to cite one figure. In 1946 government assumed responsibility for producing full employment with the Full Employment Act. In the years since then, unemployment has averaged 5.7 percent. In the years from 1900 to 1929 when government made no pretense of being responsible for employment, unemployment averaged 4.6 percent. So, our unemployment problem too is largely government created. Nonetheless, the economic problems are not the real ones.

Our major problems are social — deteriorating education, lawlessness and crime, homelessness, the collapse of family values, the crisis in medical care, teenage pregnancies. Every one of these problems has been either produced or exacerbated by the well-intentioned efforts of government. It’s easy to document two things: that we’ve been transferring resources from the private market to the government market and that the private market works and the government market doesn’t.

It’s far harder to understand why supposedly intelligent, well-intentioned people have produced these results. One reason, as we all know, that is certainly part of the answer is the power of special interests. But I believe that a more fundamental answer has to do with the difference between the self-interest of individuals when they are engaged in the private market and the self-interest of individuals when they are engaged in the political market. If you’re engaged in a venture in the private market and it begins to fail, the only way you can keep it going is to dig into your own pocket. So you have a strong incentive to shut it down. On the other hand, if you start exactly the same enterprise in the government sector, with exactly the same prospects for failure, and it begins to fail, you have a much better alternative. You can say that your project or program should really have been undertaken on a bigger scale; and you don’t have to dig into your own pocket, you have a much deeper pocket into which to dig, that of the taxpayer. In perfectly good conscience you can try to persuade, and typically succeed in persuading, not the taxpayer, but the congressmen, that yours is really a good project and that all it needs is a little more money. And so, to coin another aphorism, if a private venture fails, it’s closed down. If a government venture fails, it’s expanded.

We sometimes think the solution to our problems is to elect the right people to Congress. I believe that’s false, that if a random sample of the people in this room were to replace the 435 people in the House and the 100 people in the Senate, the results would be much the same. With few exceptions, the people in Congress are decent people who want to do good. They’re not deliberately engaging in activities that they know will do harm. They are simply immersed in an environment in which all the pressures are in one direction, to spend more money.

Recent studies demonstrate that most of the pressure for more spending comes from the government itself. It’s a self-generating monstrosity. In my opinion, the only way we can change it is by changing the incentives under which the people in government operate. If you want people to act differently, you have to make it in their own self-interest to do so. As Armen Alchan always says, there’s one thing you can count on everybody in the world to do, and that’s to put his self-interest above yours.

I have no magic formula for changing the self-interest of bureaucrats and members of Congress. Constitutional amendments to limit taxes and spending, to rule out monetary manipulation, and to inhibit market distortions would be fine, but we’re not going to get them. The only viable thing on the national horizon is the term-limits movement. A six-year term limit for representatives would not change their basic nature, but it would change drastically the kinds of people who would seek election to Congress and the incentives under which they would operate. I believe that those of us who are interested in trying to reverse the allocation of our resources, to shift more and more to the private market and less and less to the government market, must disabuse ourselves of the notion that all we need to do is elect the right people. At one point we thought electing the right president would do it. We did and it didn’t. We have to turn our attention to changing the incentives under which people operate. The movement for term limits is one way of doing that; it’s an excellent idea, and it’s making real progress. There have to be other movements as well.

Some changes are being made on the state level. Wherever you have initiative, that is, popular referendum, there is an opportunity to change. I don’t believe in pure democracy; nobody believes in pure democracy. Nobody believes that it’s appropriate to kill 49 percent of the population even if 51 percent of the people vote to do so. But we do believe in giving everybody the opportunity to use his own resources as effectively as he can to promote his own values as long as he doesn’t interfere with anybody else. And on the whole, experience has shown that the public at large, through the initiative process, is much more attuned to that objective than are the people they elect to the legislature. So I believe that the referendum process has to be exploited. In California we have been working very hard on an initiative to allow parental choice of schools. Effective parental choice will be on the ballot this fall. Maybe we won’t win it, but we’ve got to keep trying.

We’ve got to keeping trying to change the way Americans think about the role of government. Cato does that by, among other things, documenting in detail the harmful effects of government policies that I’ve swept over in broad generalities. The American public is being taken to the cleaners. As the people come to understand what is going on, the intellectual climate will change, and we may be able to initiate institutional changes that will establish appropriate incentives for the people who control the government purse strings and so large a part of our lives.

Suitable education in Kansas

Kansas Judicial Center in snowToday the Senate Judiciary Committee held a hearing on SCR 1608, a proposed amendment to the Kansas Constitution that would remove the ability of courts to order the level of spending on schools. Specifically, the proposed amendment adds this language: “The financing of the educational interests of the state is exclusively a legislative power under article 2 of the constitution of the state of Kansas and as such shall be established solely by the legislature.”

The key sentence in the Constitution reads “The legislature shall make suitable provision for finance of the educational interests of the state.” Proponents of increased school spending in Kansas interpret that to mean the state guarantees Kansas children a suitable education, and the state must spend whatever it takes to accomplish that result.

But that’s not what the Constitution says. In the following audio excerpt from today’s hearing, Sen. David Haley questions Sen. Steve Abrams, who was testifying to the committee in his role as chair of the Senate Education Committee. Abrams clarifies what the Constitution actually says.

Also providing testimony to the committee was Dave Trabert of Kansas Policy Institute. He told the panel that the courts’ decisions, both in the 2005 Montoy case and the just-decided Gannon case, were based on a flawed cost study by the consulting firm Augenblick & Myers (A&M). And the courts knew this, as explained in Trabert’s written testimony:

“A&M openly admitted that they deliberately deviated from their own Successful Schools methodology and delivered artificially high spending numbers by ignoring efficient use of taxpayer money. Amazingly, the Montoy courts still based their rulings on ‘evidence’ that was known to be worthless. And now the Shawnee County District Court is following that legal precedent in its ruling on Gannon.

Trabert also explained that there has been no school cost study that considered to cost of schools operating in a cost effective manner, including another study that courts and school spending advocates have relied on:

To this day, no study has ever been conducted in Kansas to determine what it would cost for schools to achieve required student outcomes and have schools organized and operating in a cost effective manner.

A Legislative Post Audit study conducted in 2006 is often cited as a basis for determining school funding requirements, but LPA made it quite clear (on page 2, where it is hard to miss) that “… it’s important to remember that these cost studies are intended to help the Legislature decide appropriate funding levels for K-12 public education. They aren’t intended to dictate any specific funding level, and shouldn’t be viewed that way. Finally, within these cost studies we weren’t directed to, nor did we try to, examine the most cost-effective way for Kansas school districts to be organized and operated.” (emphasis added)

Opponents of the proposed amendment will testify tomorrow.

As lawmakers, Kansas judges should be selected democratically

Kansas Judicial Center in snowWhile many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its two highest courts, violates this principle.

A recent paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas courts that use the judicial selection described in the paper are the Kansas Court of Appeals and the Kansas Supreme Court.

At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.'”

A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Court of Appeals or Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

The result: New Kansas law, made by people selected through an undemocratic process.

In conclusion, Ware writes:

Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

Prospects for Kansas

In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. Last year the House of Representatives passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

Owens, it should be noted, is an attorney, and is therefore a member of the privileged class that has outsize power in selecting judges.

Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

The bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

With the change in composition of the Kansas Senate, the climate is more favorable for reform for the way judges are selected for the Kansas Court of Appeals. The law governing how judges for the Kansas Supreme Court are selected is in the Kansas Constitution, and would require an amendment to alter the process. Such an amendment requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

By the way: For those who criticize the support for judicial selection reform as pure power politics, since Kansas has a conservative governor, remember this: When Professor Ware sounded the need for reform and convinced me of the need, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have rubberstamped any nominee Sebelius might have sent for confirmation.

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
By Stephen J. Ware

Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

The complete paper may be downloaded at no charge here.

Select judges wisely, considering lawmaking role

While candidates for judge usually campaign as being “above politics,” as someone who will apply the law impartially without regard to personal beliefs and convictions, the reality is that judges make law. Voters need to recognize this judicial function as they decide their votes.

A recent paper by Kansas University School of Law Professor Stephen J. Ware (Originalism, Balanced Legal Realism and Judicial Selection: A Case Study) explains the role of judges. Ware’s paper is primarily concered with appellate courts, as that is where judges have the highest level of discretion. But the same principles apply to Kansas district court judges.

At issue is whether judges are simply arbitrators of the law, or actual participants in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.'”

A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

Ware concludes: “Yes, of course judges’ allegiance should be to the law, including our state and federal constitutions. But that allegiance does not ineluctably guide the judge to make a particular choice among various reasonable interpretations of a vague or ambiguous constitutional or statutory provision.” For more, see Kansas lawmakers, including judges, should be selected democratically.

So voters — when deciding which judges to elect to office or deciding whether to retain those already in office — need to consider politics and ideology, not just technical legal skills or promises to “unflinchingly apply the rule of law.” Voters should ask: Is the candidate likely to be a judge who would make decisions from a limited government perspective, or will the judge be favorably disposed to make decisions that expand the size and power of government?

While political party membership is a only a rough — and not entirely accurate — indication of the political philosophy of a candidate, it’s about all voters have. Most judicial candidates avoid any mention of politics in their campaign materials and websites. Some don’t even mention the party they belong to, even though the contests may be partisan.

Ware’s complete paper may be downloaded at no charge here.

A second Bill of Rights, by Franklin Roosevelt

If we wonder what was the genesis of the modern nanny state, listen to this speech by Franklin Delano Roosevelt. It’s part of his State of the Union Address from 1944.

The purpose of the original Bill of Rights is to protect our freedoms from government. But to provide the things Roosevelt calls for — food, clothing, a decent home, adequate medical care, and a good education — requires an expansive government. These rights are called positive rights because they require action by the government, in contrast to the negative rights found in the Bill of Rights. Richard A. Epstein explains the consequences of the “Roosevelt Rights”:

All of these are positive rights, which means necessarily that some unidentified individuals or groups have the duty to provide decent wages, home, health, and education to the people. The individual so taxed can discharge that duty only by forfeiting his own right to reap the fruits of his own labor. Yet the incidence and size of these hefty correlative duties are left unaddressed by Roosevelt.

We are witnessing today a modern rerun of Roosevelt’s incomplete strategy. Obama’s healthcare plan, for instance, designates a generous set of “essential health benefits” to a large number of individuals entitled to affordable care on the newly created government exchanges. But these benefits cannot be funded with higher taxes on the “millionaires and billionaires,” whose combined wealth falls short of what is needed. So what duty will undergird the new right?

This sort of funding crisis could never arise under the Bill of Rights 1.0, whose correlative duties are negative — or, put another way, they impose a “keep off” sign on other people. If I have the freedom of speech, your duty is to forbear from disrupting the speech with force, and vice versa. Each of us can demand forbearance from the use of force by all others.

David Kelley elaborates further in a chapter from The Morality of Capitalism:

By contrast, welfare rights are conceived as rights to possess and enjoy certain goods, regardless of one’s actions; they are rights to have the goods provided by others if one cannot earn them oneself. Accordingly, welfare rights impose positive obligations on others. If I have a right to food, someone has an obligation to grow it. If I cannot pay for it, someone has an obligation to buy it for me. Welfarists sometimes argue that the obligation is imposed on society as a whole, not on any specifi c individual. But society is not an entity, much less a moral agent, over and above its individual members, so any such obligation falls upon us as individuals. Insofar as welfare rights are implemented through government programs, for example, the obligation is distributed over all taxpayers.

From an ethical standpoint, then, the essence of welfarism is the premise that the need of one individual is a claim on other individuals. The claim may run only as far as the town or the nation. It may not embrace all of humanity. But in all versions of the doctrine, the claim does not depend on your personal relationship to the claimant, or your choice to help, or your evaluation of him as worthy of your help. It is an unchosen obligation arising from the sheer fact of his need.

Kansas lawmakers, including judges, should be selected democratically

While many believe that judges should not “legislate from the bench,” that is, make law themselves, the reality is that lawmaking is a judicial function. In a democracy, lawmakers should be elected under the principle of “one person, one vote.” But Kansas, which uses the Missouri Plan for judicial selection to its two highest courts, violates this principle.

A recent paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the process used in Kansas. The paper is titled Originalism, Balanced Legal Realism and Judicial Selection: A Case Study and may be downloaded at no charge. The Kansas courts that use the judicial selection described in the paper are the Kansas Court of Appeals and the Kansas Supreme Court.

At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.'”

A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

Since judges function as lawmakers, they ought to be selected by a democratic process. In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Court of Appeals or Kansas Supreme Court. The governor then selects one of the three, and the process is over. A new judge is selected. This process gives members of the state’s bar tremendous power in selecting judges.

Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. In one, a workers’ compensation case, the employee would lose his appeal if the “clear” precedent was followed. Justice Carol A. Beier wrote the opinion. Ware explains:

But this is not, in fact, what Justice Beier and her colleagues on the Kansas Supreme Court did. Rather they did what Kansas Judges Greene and Russell say never happens. Justice Beier and her colleagues engaged in lawmaking. They changed the legal rule from one contrary to their ideologies to one consistent with their ideologies.

Justice Beier’s opinion doing this started by criticizing the old rule, while acknowledging that it was, in fact, the rule prior to her opinion by which the Supreme Court made new law. Here again is the above quote from Coleman, but now with the formerly omitted words restored and italicized: “The rule is clear, if a bit decrepit and unpopular: An injury from horseplay does not arise out of employment and is not compensable unless the employer was aware of the activity or it had become a habit at the workplace.”

Who decided that this rule is “decrepit and unpopular” and so should be changed? Was it the Kansas Legislature? No, it was the Kansas Supreme Court. It was judges, not legislators, who decided that this legal rule was bad policy. It was judges, not legislators, who changed the law to bring it in line with what the lawmaking judges thought was good policy.

Beier wrote in her opinion: “We are clearly convinced here that our old rule should be abandoned. Although appropriate for the time in which it arose, we are persuaded by the overwhelming weight of contrary authority in our sister states and current legal commentary.”

The result: New Kansas law, made by people selected through an undemocratic process.

In conclusion, Ware writes:

Non-lawyers who believe in the principle that lawmakers should be selected democratically need to know that judicial selection is lawmaker selection to be troubled by the Missouri Plan’s violation of this principle. Non-lawyers who do not know that judges inevitably make law may believe that the role of a judge consists only of its professional/technical side and, therefore, believe that judges should be selected entirely on their professional competence and ethics and that assessments of these factors are best left to lawyers. In short, a lawyer who omits lawmaking from a published statement about the judicial role is furthering a misimpression that helps empower lawyers at the expense of non-lawyers, in violation of basic democratic equality, the principle of one-person, one-vote.

Prospects for Kansas

In Kansas, the process for selecting judges to the Kansas Court of Appeals is governed by statute, and can be changed by the legislature and governor. The House of Representatives has passed a bill to reform the process, but it was blocked by Senate Judiciary Chair Tim Owens. He said “I think this is the first time I did not hear a bill because I thought it was so bad. This is a terrible, terrible bill that’s hated by the courts; it’s an attempt to take over control of the courts.”

One of the dividing lines between “conservative” and “moderate” Kansas Senate Republicans is their attitude towards judicial selection, as revealed in a vote taken earlier this year. Owens, who ranked as the least friendly senator to economic freedom in the 2012 edition of the Kansas Economic Freedom Index, lost his bid for re-election in the August primary election. Many of the other moderate Republicans who voted against reform also lost their primary election contest.

Owens, it should be noted, is an attorney, and is therefore a member of the privileged class that has outsize power in selecting judges.

Sometimes legislators are simply uninformed or misinformed on judicial selection. An example is Jean Schodorf, who lost a re-election bid in August. In an interview, she was quoted as saying “We thwarted changes to judicial selection that would have allowed the governor to have the final say in all judicial selections.”

The bill that the senate voted on, and the one that Owens killed the year before, called for Court of Appeals judges to be appointed by the governor, with the consent of the senate. It’s actually the senate that has the final say.

Newspaper editorial writers across Kansas are mostly opposed to judicial selection reform. An example is Rhonda Holman of the Wichita Eagle, who in 2010 wrote: “Some critics may have a beef with past court decisions, perhaps even a legitimate one — which is no surprise, given that judicial decisions pick winners and losers. But they also may be motivated by politics — which is a problem, given that the judiciary is supposed to be fair, impartial and independent. In the absence of a strong case for change, Kansas should stick with what works.”

With the change in composition of the Kansas Senate next year, the climate is more favorable for reform for the way judges are selected for the Kansas Court of Appeals. The law governing how judges for the Kansas Supreme Court are selected is in the Kansas Constitution, and would require an amendment to alter the process. Such an amendment requires a two-thirds vote in both chambers of the Kansas Legislature, and then a simple majority vote of the people.

Just last week a federal appeals court ruled that the method Kansas uses to select justices to the Kansas Supreme Court is constitutional.

The Court’s discussion starts on a promising note: “That citizens have a fundamental right to vote for public officials on equal terms with one another is uncontroversial.”

But in the end, the Court sided with the present undemocratic Kansas system: “Kansas designed the Commission to favor lawyers in order to limit the influence of politics on the nomination process and ensure the quality of its judicial nominees. Preserving the quality and independence of the judiciary is a legitimate government interest, and having attorneys elect a majority of the Commission’s members is a rational way to accomplish that goal. Attorneys are better equipped than non-attorneys to evaluate the temperament and legal acumen of judicial candidates and more likely to base their votes on factors other than party affiliation. This is owing in part to their training which enables informed judgments about a candidate’s experience — his credentials, his area of expertise, his body of work — and the extent to which it strengthens or weakens his candidacy. ”

Originalism, Balanced Legal Realism and Judicial Selection: A Case Study
By Stephen J. Ware

Abstract: The “balanced realist” view that judging inevitably involves lawmaking is widely accepted, even among originalists, such as Justice Scalia, Randy Barnett and Steven Calabresi. Yet many lawyers are still reluctant to acknowledge publicly the inevitability of judicial lawmaking. This reluctance is especially common in debates over the Missouri Plan, a method of judicial selection that divides the power to appoint judges between the governor and the bar.

The Missouri Plan is one of three widely-used methods of selecting state court judges. The other two are: (1) direct election of judges by the citizenry, and (2) appointment of judges by democratically elected officials, typically the governor and legislature, with little or no role for the bar. Each of these two methods of judicial selection respects a democratic society’s basic equality among citizens — the principle of one-person, one-vote. In contrast, the Missouri Plan violates this principle by making a lawyer’s vote worth more than another citizen’s vote.

This Article provides a case study of the clash between the inevitability of judicial lawmaking and the reluctance of lawyers to acknowledge this inevitability while defending their disproportionate power under the Missouri Plan. The Article documents efforts by lawyers in one state, Kansas, to defend their version of the Missouri Plan by attempting to conceal from the public the fact that Kansas judges, like judges in the other 49 states, inevitably make law. The case study then shows examples of Kansas judges making law. The Article concludes that honesty requires lawyers participating in the debate over judicial selection in the United States to forthrightly acknowledge that judges make law. Lawyers who seek to defend the power advantage the Missouri Plan gives them over other citizens can honestly acknowledge that this is a power advantage in the selection of lawmakers and then explain why they believe a departure from the principle of one-person, one-vote is justified in the selection of these particular lawmakers.

The complete paper may be downloaded at no charge here.

Walter Williams on government in a free society

Walter E.
Williams

Last September in Wichita economist Walter E. Williams spoke on the legitimate role of government in a free society, touching on the role of government as defined in the Constitution, the benefits of capitalism and private property, and the recent attacks on individual freedom and limited government.

Williams’ evening lecture was held in the Mary Jane Teall Theater at Century II, and all but a handful of its 652 seats were occupied. It was presented by the Bill of Rights Institute and underwritten by the Fred and Mary Koch Foundation.

Williams said that one of the justifications for the growth of government — far beyond the visions of the founders of America — is to promote fairness and justice. While these are worthy goals, Williams said we must ask what is the meaning of fairness and justice, referring to the legitimate role of government in a free society.

In the Constitution, Williams said the founders specified the role of the federal government in Article 1 Section 8. This section holds a list that enumerates what Congress is authorized to do. If something is not on the list, Williams said Congress is not authorized to do it.

The Article 8 powers that Williams mentioned are to lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defense and general welfare of the United States; to borrow money on the credit of the United States; to coin money; to establish post-offices and post-roads; and to raise and support armies. It is regarding these powers, plus a few others, that Congress has taxing and spending authority. “Nowhere in the United States Constitution to we find authority for Congress to tax and spend for up to two-thirds to three-quarters of what Congress taxes and spends for today.”

Farm subsidies, handouts to banks, and food stamps are examples Williams gave of programs that are not authorized by the Constitution. “I think that we can safely say that we’ve made a significant departure from the constitutional principles of individual freedom and limited government that made us a rich nation in the first place.”

The institutions of private property and free enterprise are the embodiment of these principles, Williams said. But there have been many successful attacks on private property and free enterprise. Thomas Jefferson, Williams said, anticipated this when he wrote “The natural progress of things is for government to gain ground, and for liberty to yield.”

Taxation and spending are the ways government has gained ground. Taxes represent government claims on private property.

But an even better measure of what government has done is to look at spending. From 1787 to 1920, federal spending was only three percent of gross domestic product, except during wartime. Today, that figure is approaching 30 percent, Williams said: “The significance is that as time goes by, you and I own less and less of our most valuable property, namely ourselves and the fruits of our labor.”

In the realm of economics, Williams said that the founders thought that free markets and capitalism was the most effective social organization for promoting freedom, with capitalism defined as a system where people are free to pursue their own objectives as long as they do not violate the property rights of others. An often-trivialized benefit of capitalism and voluntary exchange is that it minimizes the capacity of one person to coerce another, he told the audience. This applies to the government, too.

But for the last half-century, Williams said that free enterprise has been under unrelenting attack by the American people. Whether they realize it or not, people have demonstrated a “deep and abiding contempt” for private property rights and individual liberty.

Williams said that ironically, capitalism is threatened not because of its failure, but because of its success. Capitalism has eliminated things that plagued mankind since the beginning of time — he mentioned disease, gross hunger, and poverty — and been so successful that “all other human wants appear to us to be at once inexcusable and unbearable.”

So now, in the name of ideals other than freedom and liberty, we pursue things like equality of income, race and sex balance, affordable housing, and medical care. “As a result of widespread control by our government in order to achieve these higher objectives, we are increasingly being subordinated to the point where personal liberty in our country is treated like dirt.”

This ultimately leads to tyranny and totalitarianism, he said. To those who might object to this strong and blunt conclusion, Williams asked this question: “Which way are we headed, tiny steps at a time: towards more liberty, or towards more government control of our lives?” He said that the answer, unambiguously, is the latter.

It is the tiny steps that concern Williams, as they ultimately lead to their destination. Quoting Hume, he said “It is seldom that liberty of any kind is lost all at once.” Instead, Williams said it is always lost bit by bit. If anyone wanted to take away all our liberties all at once, we would rebel. But not so when liberties are taken bit by bit, which is what is currently happening.

It is people’s desire for government to do good — helping the disadvantaged, elderly, failing businesses, college students — that leads to the attack on private property and economic freedom. But Williams explained that government has no resources of its own, meaning that for government to give one person money it must first — “through intimidation, threats, and coercion” — confiscate it from someone else.

Williams told the audience that if a private person used coercion to take money from someone and give it to another person, that act would universally be considered theft and a crime. It doesn’t matter how needy or deserving the recipient, it would still be theft. But Williams asked if there is any conceptual difference between that act and when agents of the government do the same. Williams says no, except that in the second act, where Congress takes the money, the theft is legal.

But mere legality doesn’t not make something moral. Slavery was legal in America for many years, but not moral. The purges of Stalin and Mao were legal under the laws of those countries. So legality does not equate to morality, Williams explained, and he said he cannot find a moral case for taking what belongs to one person and giving it to another to whom it does not belong.

Charity is “praiseworthy and laudable” when it is voluntary, but it is worthy of condemnation when government reaches into others’ pockets for charity. Those who accept the forced takings are guilty, too, he explained.

“The essence of our relationship with government is coercion,” Williams told the audience. This, he said, represents our major problem as a nation today: We’ve come to accept the idea of government taking from one to give to another. But the blame, Williams said, does not belong with politicians — “at least not very much.” Instead, he said that the blame lies with us, the people who elect them to office in order to get things for us. A candidate who said he would do only the things that the Constitution authorizes would not have much of a chance at being elected.

The further problem is that if Kansans don’t elect officials who will bring federal dollars to Kansas, it doesn’t mean that Kansans will pay lower federal taxes. The money, taken from Kansans, will go to other states, leading to this conundrum: “That is, once legalized theft begins, it pays for everybody to participate.”

We face a moral dilemma, then. Williams listed several great empires that declined for doing precisely what we’re doing: “Bread and circuses,” or big government spending.

But there is a note — only one — of optimism, Williams believes. The first two years of the Obama administration, along with the Democratic Senate and House of Representatives, has been so brazen in their activities in “running roughshod over our liberties” that people are starting to argue and debate the Constitution. State attorneys general are bringing suits against the federal government over Obama’s health care plan. State legislatures are passing tenth amendment resolutions. The tea party and other grassroots movements give him optimism, too.

We must also ask ourselves if we are willing to give up the benefits we get from government, he said. But most people want cuts in spending on other people, not ourselves, as “ours is critical and vital to the national interest.” With all of us feeling this way, Williams said the country is in danger.

Young people have the greatest stake in the struggle for limited government and economic freedom, as the older generations have benefited from a relatively free country and the economic mobility that accompanied it. He said he’s afraid we’re losing that: “I’m hoping that future generations will not curse us for bequeathing to them a nation far less robust, far less free, than the nation that our parents and our ancestors bequeathed us.”

In answering a question from the audience, Williams said he would be afraid of a constitutional convention to be held today, as some are advocating. We wouldn’t be sending people like John Adams. Instead, he said we’d be sending people like Barney Frank and others who have “deep contempt” for personal freedom.

In response to a question on regulation, Williams said that regulations like health care and uncertainty over taxation cause businesses to be afraid to commit money to long term investments. Uncertainty “collapses the time horizon” causing firms to look for investments that pay off in the short term rather than the long term. This contributes to unemployment, he said.

Williams also talked about the economic history of America. From its beginning to 1930, there were recessions and depressions, but there were not calls for the federal government to intervene and stimulate the economy. It wasn’t until the Hoover administration and the New Deal that the federal government intervened in the economy in order to “fix” the economy. Williams said that what should have been a “sharp two or three-year downtown” was turned in to the Great Depression — which was not over until after World War II — by government intervention. The measures being taken today are similarly postponing the recovery, he said. He added that most serious economic downturns are caused by government. It’s also futile for the government to spend the country out of a recession, which he likened to taking water from the deep end of a pool to the shallow end in order to raise the level of the shallow end. Government taking money from one person, giving it to another, and expecting the economy to rise is similarly futile.

A question about mainstream media and their representation of the issues of today brought this response: “You have to make the assumption, I believe implied in your question, that those people are ignorant, and if only they knew better, they would change their behavior. Human ignorance is somewhat optimistic, because ignorance is curable through education. I’m very sure that many of these people want government control. The elite have always wanted government control, and the media was very responsible in getting President Obama elected.”

In an interview, I asked what President Obama should say in his jobs speech. Williams recommended the president should reduce regulation and lower taxes, especially capital gains and corporate income taxes. The spending programs of the past will not help. But Obama’s constituency will not favor this approach. The spending on roads and bridges benefits labor unions, for example.

On those who accept who accept and benefit from government spending, Williams said that “one of the tragedies of our nation” is that the growth of government has turned otherwise decent people into thieves, because they participate in the taking of what belongs to someone else. But because of the pervasiveness of government, sometimes this is unavoidable.

I asked do we need better politicians — ones who will work to limit government — or do we need different rules such as a balanced budget amendment or spending constraints? Williams said that the bulk of the blame lies with the people, as politicians are simply doing what voters ask them to do. “The struggle is to try to convince our fellow Americans on the moral superiority of liberty and its main ingredient, limited government.” Politicians will then follow, he added.

I asked if we’ve passed some sort of tipping point, where people look first to government rather than voluntary exchange through markets. He said perhaps so, and mentioned another problem: Close to 50 percent of Americans pay no federal income tax. These people become natural constituents for big-spending politicians. As they pay no taxes — “no stake in the game” — they don’t care if taxes are raised or lowered.

On the issue of the subsidy being poured into downtown Wichita, Williams said the issue is an example of the “seen and unseen” problem identified by Frederic Bastiat. We easily see the things that government taxation and intervention builds, such as a convention center. But what is not easily seen is what people would have done with the money that was taken from them through taxation. While the money taken from each person may be small, it adds up.

On government funding for arts, an issue in Kansas at this time, Williams said that it ought to be an insult to artists that their work has to be funded through government forcing people to pay, as opposed to voluntary payments.

Born in Philadelphia, Pennsylvania, Dr. Walter E. Williams holds a B.A. in economics from California State University, Los Angeles, and M.A. and Ph.D. degrees in economics from UCLA. He has served on the faculty of George Mason University in Fairfax, Virginia, as John M. Olin Distinguished Professor of Economics, since 1980. His website is Walter Williams Home Page.

Kansas and Wichita quick takes: Thursday March 8, 2012

Candidate representatives at Pachyderm. This Friday’s meeting (March 9th) of the Wichita Pachyderm Club features Republican presidential candidate spokespersons. In addition, Lora Cox, Executive Director of the Sedgwick County Republican Party will be on hand to answer questions regarding the mechanics of Saturday’s Republican Party Caucus. … The public is welcome and encouraged to attend Wichita Pachyderm meetings. For more information click on Wichita Pachyderm Club.

Sedgwick County pre-caucus rally. Friday afternoon (March 9th) Kansans for Liberty is producing a pre-caucus rally at Century II. Ron Paul is scheduled to appear. There will be other speakers and live entertainment, say event organizers. Tickets are $25. For more information, see Kansans for Liberty.

Libertarian ideals. The Winfield Courier criticizes U.S. Representative Mike Pompeo for his bill that would eliminate all tax credits for energy, writing “This is a case of putting libertarian ideals ahead — far ahead — of the interests of our region and our state.” But the libertarian ideals of personal liberty, economic freedom, and free markets ought to be all that government concerns itself with. … This is not the only way this op-ed is misinformed on facts. The anonymous author writes: “New, life-changing technologies, from the railroads to the Internet, have long had the active support of our national government.” But: Consider the railroads. The government-subsidized railroads involved in the transcontinental project went bankrupt. Only The Great Northern Railroad, which was built without government subsidy, was profitable and not a burden on the national treasury. (See Interfacing with Obama’s Intercontinental Railroad). Shame on the Winfield Courier so being so misinformed on U.S. history and the proper role of a limited government.

High Kansas taxes. Kansas Reporter covers more of the Tax Foundation’s report on the high cost of Kansas business taxes: “A new national study says Kansas business owners pay some of the highest taxes in the country. … Kansas businesses that are 3 or fewer years old pay the third-highest total taxes in the nation among all 50 states and Washington, D.C., the study found. Older businesses, such as Midway Wholesale, pay the fourth-highest totals. The findings contrast sharply with previous surveys, including some by the Tax Foundation, that put Kansas closer to the midpoint in regard to tax burden. As recently as January, for example, the foundation released its latest compilation of its Business Tax Climate Index, which put Kansas almost dead center — in 25th place — among lightest- to heaviest-taxed states. ‘Those surveys focus on tax policies, such as what types of taxes do states have or what are their tax rates,’ said Scott Hodge, the foundation’s president. ‘This new study looks at the issue from a business’ viewpoint and what they actually pay.'” … More at New study finds KS tax loads worse than reported.

Harm of individual mandate explained. In the following short video, Elizabeth Price Foley of the Institute for Justice explains the harm of the individual mandate that is the centerpiece of the Patient Protection and Affordable Care Act (Obamacare). She explains that if the U.S. Supreme Court fails to strike down the individual mandate, there will be nothing to stop Congress from forcing people into other contracts against their will — employment contracts or union membership, for example. If we still have a constitutional republic in which the federal government’s powers are limited, then the Court should strike down this law. More information on IJ’s brief is contained in this press release.

The effect of government grants

Trackside is a column written occasionally by John D’Aloia Jr. He lives in St. Marys, Kansas.

TRACKSIDE © by John D’Aloia Jr.
February 5, 2012 AD

How do you view government grants? Are they “free” money handed out by a caring and beneficent government? My view is that government grants are funded by a forced redistribution of the resources from many people for the benefit of a few. Such grants are a means by which the grantor achieves control over the grantee. Such grants are morally and politically unacceptable.

“The Eighth Commandment does not say ‘Thou shalt not steal … except by a majority vote or unless it’s for a park swing set.'” (A paraphrase of a line from Mark Hendrickson’s article “Our National Blind Spot,” American Thinker, 6 February 2010.) Those who accept government grants for projects that they cannot fund from local tax sources are stealing resources from others, and in so-doing, are no better than the Occupy Wall Street gang which wants government to extract dollars from everyone else to give them what they want. (I am conflicted on grants that fund what would otherwise be an unfunded federal mandate — if the feds mandate X, then the feds should provide the dollars and take the budget hit, not the government unit needing the dollars to comply — but what if only some governments get a grant to pay for X, setting up an environment for favoritism? or the feds give a grant only to the governments that accept all the attached strings? As I said, conflicted.)

The only real beneficiaries of this government-forced redistribution of resources are the politicians who buy “good” press by making the grants available (look what we are doing for you), crowing that they have “brought-home-the-bacon” for their constituents, the Clerks in the myriad agencies who administer the grants, and those companies to which some of the dollars ultimately trickle down.

The willing accomplices in the grant process ignore Frederic Bastiat’s concern for the unforeseen consequences, particularly the impact of grants on the national fiscal mess, the inability of the citizens whose resources have been taken (higher taxes, inflation) to use those resources for their own benefit, and the impact of grants on future tax demands. Grants do put a long term tax burden on communities. In their report titled “Do Intergovernmental Grants Create Ratchets in State and Local Taxes — Testing the Friedman-Sanford Hypothesis,” Russell Sobel and George Crowley wrote: “Our findings confirm that grants indeed result in future state and local tax increases of roughly 40 cents for every dollar in grant money received in prior years.” The report is cited as Mercatus Center Working Paper No. 10-51, West Virginia University, August 2010.

For immediate satisfaction, grantees are placing the financial burden on others and on future generations. Grant dollars come from three sources: taxpayers at large, deficit spending (insane, obscene borrowing), and the Fed’s printing presses creating phony money out of thin air (inflation). All three sources extract resources in one way or the other from citizens who cannot, will not, benefit from the grant, nor even ever receive a thank-you note.

Bastiat said that “Government is the great fiction, through which everybody endeavors to live at the expense of everybody else.” In The Law, published in 1850, (which should be mandatory reading for all legislators and voters), Bastiat used the term “plunder” to describe the “legal” appropriation of the fruits of one person’s labor for the benefit of another. If he were alive today, he would be applying it to grants, recognizing that specific organizations and local governments are using the grant process to obtain the resources of others for their specific benefit and enjoyment.

Grants are not an economic development plus — at best neutral (dollars not spent by X are spent by Y) — but most likely they have a negative economic impact, directly because the grantor government agencies extract a “shipping and handling fee” out of the economy to keep themselves employed, and indirectly because grants provide an impetus for a sprawling, out-of-control Leviathan.

Accepting grants also place the grantee under the thumb of the grantor, as grants impose requirements that detract from the authority and sovereignty of the grantee. People look in glee at the line in the grant contract that has a dollar sign and a bunch of numbers after it but neglect to read the fine print that requires them to do this and that for eternity. The federal government uses grants to bribe states to pass laws that the feds want but don’t have the authority to impose. In all too many situations, federal grants are unconstitutional in that they are for purposes that are not within the enumerated powers given to Congress by the Constitution.

The ends (accomplishment of a project that local groups want but will not fund locally) do not justify the means (stealing now, and in the future, from all citizens).

See you Trackside.

The creeping expansion of government power

Trackside is a column written occasionally by John D’Aloia Jr. He lives in St. Marys, Kansas.

TRACKSIDE © by John D’Aloia Jr.
12 December 2011

A belief I encounter increasingly often is that, with few exceptions, the Guardians ensconced in Washington, and their minions in the bureaucracy, The Clerks, are driven by greed, corruption, fraud, power, and immorality, not by the Essential Liberty principles of our Founding Documents. The electorate is angry and frustrated. They see their resources and their freedom being whittled away for the benefit of the Guardians and their cronies. They see the basic morality of the country being banned from the public square and perversion jammed down their throats. They see the very gas they exhale being cited, in spite of the evidence, as a reason to deny the use of energy resources. They see the Guardians trash the Constitution and their oath of office. They see themselves being made slaves of the state. Daily headlines reinforce these beliefs.

Much internet traffic has circulated about the words in the National Defense Authorization Act for Fiscal Year 2012 (H.R.1540) that gives the federal government the ability to detain U.S. citizens suspected of terrorism, at home or abroad, in military custody, outside of the court system, and hold them indefinitely. Bye, bye Fourth Amendment. This reading of the law was confirmed by Senator Graham, who said in the Senate on November 17th that Section “1031, the statement of authority to detain, does apply to American citizens, and it designates the world as the battlefield, including the homeland.”

The Guardians manipulate words to mean whatever they want them to mean and they have the force to impose their meanings — this makes the power of warrant-less arrest of citizens highly dangerous. A pesky Tea Party activist is shining a spotlight on your misdeeds and machinations? Designate him a terrorist and haul him off to a military gulag where he will have no rights, no recourse to the courts. It gives me no comfort knowing that the Guardian-in-Chief’s rule book, written by Saul Alinsky, holds that lying is a tool of the trade, that ends justify means, and that there is no moral code.

A provision of H.R.-1540 that has not gotten the same notoriety is the one that repeals Article 125 of the Uniform Code of Military Justice, the article that makes sodomy a court-martial offense. (I refrain from quoting Article 125. Google can assist if you must know.) Why repeal it? The repeal fits right in the with the Guardian-in-Chief’s efforts to promote the homosexual agenda as part of his effort to dissolve society’s moral glue, its standards, making it easier for him to impose his vision of a state in which his whims are the law.

The 9 December issue of the economic newsletter “Casey Daily Dispatch” contains an article titled “Man vs. Morlock” in which the writer reached back and pulled up a book by Milton Mayer, They Thought They Were Free: The Germans, 1933-45, University of Chicago Press, 1955. The excerpt in the Dispatch included this paragraph, one you may well have read elsewhere, but was not aware from whence it came — I wasn’t:

“Pastor Niemöller spoke for the thousands and thousands of men like me when he spoke (too modestly of himself) and said that, when the Nazis attacked the Communists, he was a little uneasy, but, after all, he was not a Communist, and so he did nothing; and then they attacked the … and he did nothing; and then the schools, the press, the Jews, and so on, and he was always uneasier, but still he did nothing. And then they attacked the Church, and he was a Churchman, and he did something — but then it was too late.”

And further on in the excerpt was this “boiling the frog” analogy of how the Nazis gained complete domination:

“In between come all the hundreds of little steps, some of them imperceptible, each of them preparing you not to be shocked by the next. Step C is not so much worse than Step B, and, if you did not make a stand at Step B, why should you at Step C? And so on to Step D.”

We must make a stand in November 2012. Absent a massive “Road-to-Damascus” constitutional epiphany by the Guardians, and by their Clerks, the only recourse citizens have to regain our country’s future as a free people is to turn them out, election after election, until we again have a Constitutional Republic governed by the virtues established by The Founders. The eviction of the Guardian-in-Chief and voter-imposed term limits on all those who believe they are our Guardians are actions that I encourage all to undertake.

Our Lady of Guadalupe, Patroness of the Americas, Pray for Us, Pray For Our Country.

See you Trackside.

Obama’s executive orders

Americans for Limited Government has commented on President Barack Obama’s recent use of executive orders to step around the will of Congress:

“These unilateral executive orders, whether on government-backed student loans and mortgages or FDA oversight, are intended to sidestep the consent of the governed, and as a result they overstep the President’s constitutional boundaries. Obama can rhetorically dress this up however he likes, but his actions are not predicated on the consent of the governed, they are fueled by his desire to maintain and expand power. This is not the rule of law, but the rule of man.

“Obama is just following the playbook of the Center for American Progress, which had argued for the White House to use executive orders and other regulations to advance its agenda after Democrats lost control of the House of Representatives in the November elections. This is all designed to get around the political process, and has occurred repeatedly under Obama’s watch, whether with the EPA’s carbon endangerment finding or the unilateral implementation of management-labor forums for the federal civil service.”

The full press release is at Obama’s executive orders overstep.

Phil Kerpen’s recent book Democracy Denied: How Obama is Ignoring You and Bypassing Congress to Radically Transform America — and How to Stop Him holds other lessons of how presidents — from both political parties — overstep. In the introduction Kerpen gives us a history lesson on a topic that doesn’t receive much discussion in public: the grab for executive power by presidents through the use of “signing statements.”

Elizabeth Drew made the case against Bush’s abuse of executive power in a lengthy New York Review of Books piece called “Power Grab.” She specifically highlighted Bush’s use of signing statements (a technique to object to elements of a law while signing it, and refusing to enforce those elements), the detention of foreign combatants at Guantanamo, and warrantless wiretaps. She concluded that Bush was a tyrant.

Kerpen explains how the view from the oval office can make one forget campaign promises:

Even the Bush practice that raised the most ire — the use of signing statements — was embraced by Obama just weeks after he took office, when he said: “it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for presidential signature includes provisions that are subject to well-founded constitutional objections.” Contrast that with what Obama had said about signing statements on the campaign trail: “This is part of the whole theory of George Bush that he can make laws as he is going along. I disagree with that. I taught the Constitution for 10 years. I believe in the Constitution and I will obey the Constitution of the United States. We are not going to use signing statements as a way of doing an end run around Congress.”

Later in the chapter Kerpen describes another critic of Bush’s use of executive power and how things would change with the election of Obama:

One of the harshest critics of executive power under Bush, Yale law professor Bruce Ackerman, dismissed the overly simple view of many on the left regarding Obama ending abuse of power. After a warning about an authoritarian takeover, he says:

This grim prognosis depends on structures, not personalities, permitting us to move beyond knee-jerk reactions to the politics of the day. Most obviously, the election of President Obama has, for many, sufficed to dispatch any serious doubts about the system: Good-bye, imperial presidency; hello, Americas first black president, and the nation’s remarkable capacity for constitutional renewal!

But a paragraph later he falls into the very trap he warned against, absurdly writing of Obama:

He may be charismatic, but he is no extremist: there is little chance of his running roughshod over congressional prerogative, even those as indefensible as the filibuster. But the next insurgent president may not possess the same sense of constitutional restraint.

Sadly, contrary to the ideologically blinded analysis of most observers from the left, all of the elements of excessive executive power that they feared from Bush have continued — or worsened — under Obama. On top of which he has used the financial crisis as an excuse to seize control — without Congress’s approval — of the energy supply, industrial activities, the Internet, and labor policy.

Some of the loudest voices opposing Bush’s use of executive power are now cheering for Obama to push things much further. It’s different when its your guy in charge.

Or: the more things change, the more they stay the same.

Walter Williams: Government must stick to its limited and legitimate role

Walter E.
Williams

At two events in Wichita today, economist Walter E. Williams spoke on the legitimate role of government in a free society, touching on the role of government as defined in the Constitution, the benefits of capitalism and private property, and the recent attacks on individual freedom and limited government.

The evening lecture was held in the Mary Jane Teall Theater at Century II, and all but a handful of its 652 seats were occupied. It was presented by the Bill of Rights Institute and underwritten by the Fred and Mary Koch Foundation.

Williams said that one of the justifications for the growth of government — far beyond the visions of the founders of America — is to promote fairness and justice. While these are worthy goals, Williams said we must ask what is the meaning of fairness and justice, referring to the legitimate role of government in a free society.

In the Constitution, Williams said the founders specified the role of the federal government in Article 1 Section 8. This section holds a list that enumerates what Congress is authorized to do. If something is not on the list, Williams said Congress is not authorized to do it.

The Article 8 powers that Williams mentioned are to lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defense and general welfare of the United States; to borrow money on the credit of the United States; to coin money; to establish post-offices and post-roads; and to raise and support armies. It is regarding these powers, plus a few others, that Congress has taxing and spending authority. “Nowhere in the United States Constitution to we find authority for Congress to tax and spend for up to two-thirds to three-quarters of what Congress taxes and spends for today.”

Farm subsidies, handouts to banks, and food stamps are examples Williams gave of programs that are not authorized by the Constitution. “I think that we can safely say that we’ve made a significant departure from the constitutional principles of individual freedom and limited government that made us a rich nation in the first place.”

The institutions of private property and free enterprise are the embodiment of these principles, Williams said. But there have been many successful attacks on private property and free enterprise. Thomas Jefferson, Williams said, anticipated this when he wrote “The natural progress of things is for government to gain ground, and for liberty to yield.”

Taxation and spending are the ways government has gained ground. Taxes represent government claims on private property.

But an even better measure of what government has done is to look at spending. From 1787 to 1920, federal spending was only three percent of gross domestic product, except during wartime. Today, that figure is approaching 30 percent, Williams said: “The significance is that as time goes by, you and I own less and less of our most valuable property, namely ourselves and the fruits of our labor.”

In the realm of economics, Williams said that the founders thought that free markets and capitalism was the most effective social organization for promoting freedom, with capitalism defined as a system where people are free to pursue their own objectives as long as they do not violate the property rights of others. An often-trivialized benefit of capitalism and voluntary exchange is that it minimizes the capacity of one person to coerce another, he told the audience. This applies to the government, too.

But for the last half-century, Williams said that free enterprise has been under unrelenting attack by the American people. Whether they realize it or not, people have demonstrated a “deep and abiding contempt” for private property rights and individual liberty.

Williams said that ironically, capitalism is threatened not because of its failure, but because of its success. Capitalism has eliminated things that plagued mankind since the beginning of time — he mentioned disease, gross hunger, and poverty — and been so successful that “all other human wants appear to us to be at once inexcusable and unbearable.”

So now, in the name of ideals other than freedom and liberty, we pursue things like equality of income, race and sex balance, affordable housing, and medical care. “As a result of widespread control by our government in order to achieve these higher objectives, we are increasingly being subordinated to the point where personal liberty in our country is treated like dirt.”

This ultimately leads to tyranny and totalitarianism, he said. To those who might object to this strong and blunt conclusion, Williams asked this question: “Which way are we headed, tiny steps at a time: towards more liberty, or towards more government control of our lives?” He said that the answer, unambiguously, is the latter.

It is the tiny steps that concern Williams, as they ultimately lead to their destination. Quoting Hume, he said “It is seldom that liberty of any kind is lost all at once.” Instead, Williams said it is always lost bit by bit. If anyone wanted to take away all our liberties all at once, we would rebel. But not so when liberties are taken bit by bit, which is what is currently happening.

It is people’s desire for government to do good — helping the disadvantaged, elderly, failing businesses, college students — that leads to the attack on private property and economic freedom. But Williams explained that government has no resources of its own, meaning that for government to give one person money it must first — “through intimidation, threats, and coercion” — confiscate it from someone else.

Williams told the audience that if a private person used coercion to take money from someone and give it to another person, that would universally be considered theft and a crime. It doesn’t matter how needy or deserving the recipient, it would still be theft. But Williams asked if there is any conceptual difference between that act and when agents of the government do the same. Williams says no, except that in the second act, where Congress takes the money, the theft is legal.

But mere legality doesn’t not make something moral. Slavery was legal in America for many years, but not moral. The purges of Stalin and Mao were legal under the laws of those countries. So legality does not equate to morality, Williams explained, and he said he cannot find a moral case for taking what belongs to one person and giving it to another to whom it does not belong.

Charity is “praiseworthy and laudable” when it is voluntary, but it is worthy of condemnation when government reaches into others’ pockets for charity. Those who accept the forced takings are guilty, too, he explained.

“The essence of our relationship with government is coercion,” Williams told the audience. This, he said, represents our major problem as a nation today: We’ve come to accept the idea of government taking from one to give to another. But the blame, Williams said, does not belong with politicians — “at least not very much.” Instead, he said that the blame lies with us, the people who elect them to office in order to get things for us. A candidate who said he would do only the things that the Constitution authorizes would not have much of a chance at being elected.

The further problem is that if Kansans don’t elect officials who will bring federal dollars to Kansas, it doesn’t mean that Kansans will pay lower federal taxes. The money, taken from Kansans, will go to other states, leading to this conundrum: “That is, once legalized theft begins, it pays for everybody to participate.”

We face a moral dilemma, then. Williams listed several great empires that declined for doing precisely what we’re doing: “Bread and circuses,” or big government spending.

But there is a note — only one — of optimism, Williams believes. The first two years of the Obama administration, along with the Democratic Senate and House of Representatives, has been so brazen in their activities in “running roughshod over our liberties” that people are starting to argue and debate the Constitution. State attorneys general are bringing suits against the federal government over Obama’s health care plan. State legislatures are passing tenth amendment resolutions. The tea party and other grassroots movements give him optimism, too.

We must also ask ourselves if we are willing to give up the benefits we get from government, he said. But most people want cuts in spending on other people, not ourselves, as “ours is critical and vital to the national interest.” With all of us feeling this way, Williams said the country is in danger.

Young people have the greatest stake in the struggle for limited government and economic freedom, as the older generations have benefited from a relatively free country and the economic mobility that accompanied it. He said he’s afraid we’re losing that: “I’m hoping that future generations will not curse us for bequeathing to them a nation far less robust, far less free, than the nation that our parents and our ancestors bequeathed us.”

In answering a question from the audience, Williams said he would be afraid of a constitutional convention to be held today, as some are advocating. We wouldn’t be sending people like John Adams. Instead, he said we’d be sending people like Barney Frank and others who have “deep contempt” for personal freedom.

In response to a question on regulation, Williams said that regulations like health care and uncertainty over taxation cause businesses to be afraid to commit money to long term investments. Uncertainty “collapses the time horizon” causing firms to look for investments that pay off in the short term rather than the long term. This contributes to unemployment, he said.

Williams also talked about the economic history of America. From its beginning to 1930, there were recessions and depressions, but there were not calls for the federal government to intervene and stimulate the economy. It wasn’t until the Hoover administration and the New Deal that the federal government intervened in the economy in order to “fix” the economy. Williams said that what should have been a “sharp two or three-year downtown” was turned in to the Great Depression — which was not over until after World War II — by government intervention. The measures being taken today are similarly postponing the recovery, he said. He added that most serious economic downturns are caused by government. It’s also futile for the government to spend the country out of a recession, which he likened to taking water from the deep end of a pool to the shallow end in order to raise the level of the shallow end. Government taking money from one person, giving it to another, and expecting the economy to rise is similarly futile.

A question about mainstream media and their representation of the issues of today brought this response: “You have to make the assumption, I believe implied in your question, that those people are ignorant, and if only they knew better, they would change their behavior. Human ignorance is somewhat optimistic, because ignorance is curable through education. I’m very sure that many of these people want government control. The elite have always wanted government control, and the media was very responsible in getting President Obama elected.”

In an interview, I asked what President Obama should say in his jobs speech tonight. Williams recommended the president should reduce regulation and lower taxes, especially capital gains and corporate income taxes. The spending programs of the past will not help. But Obama’s constituency will not favor this approach. The spending on roads and bridges benefits labor unions, for example.

On those who accept who accept and benefit from government spending, Williams said that “one of the tragedies of our nation” is that the growth of government has turned otherwise decent people into thieves, because they participate in the taking of what belongs to someone else. But because of the pervasiveness of government, sometimes this is unavoidable.

I asked do we need better politicians — ones who will work to limit government — or do we need different rules such as a balanced budget amendment or spending constraints? Williams said that the bulk of the blame lies with the people, as politicians are simply doing what voters ask them to do. “The struggle is to try to convince our fellow Americans on the moral superiority of liberty and its main ingredient, limited government.” Politicians will then follow, he added.

I asked if we’ve passed some sort of tipping point, where people look first to government rather than voluntary exchange through markets. He said perhaps so, and mentioned another problem: Close to 50 percent of Americans pay no federal income tax. These people become natural constituents for big-spending politicians. As they pay no taxes — “no stake in the game” — they don’t care if taxes are raised or lowered.

On the issue of the subsidy being poured into downtown Wichita, Williams said the issue is an example of the “seen and unseen” problem identified by Frederic Bastiat. We easily see the things that government taxation and intervention builds, such as a convention center. But what is not easily seen is what people would have done with the money that was taken from them through taxation. While the money taken from each person may be small, it adds up.

On government funding for arts, an issue in Kansas at this time, Williams said that it ought to be an insult to artists that their work has to be funded through government forcing people to pay, as opposed to voluntary payments.

Born in Philadelphia, Pennsylvania, Dr. Walter E. Williams holds a B.A. in economics from California State University, Los Angeles, and M.A. and Ph.D. degrees in economics from UCLA. He has served on the faculty of George Mason University in Fairfax, Virginia, as John M. Olin Distinguished Professor of Economics, since 1980. His website is Walter Williams Home Page.