Tag Archives: Constitution

Judge Melgren defends Constitutional protections

By Karl Peterjohn

While it has become increasingly common for members of the U.S. Supreme Court to make news by public comments, particularly during their summer recess, Wichita Pachyderm Club members had the opportunity for Kansas federal district Judge Eric F. Melgren to quote from his judicial colleagues in a way of defending the Constitution’s concept of the separation of powers. Judge Melgren cited various appellate court rulings, particularly as they related to the largely little known Chevron decision, that damages that constitutional protection at his July 21 speech in Wichita.

Judge Melgren, a former member of this club before his selection as the U.S. attorney for Kansas that was followed by his 2008 elevation to a federal district court post, began by discussing this governmental paradox, “those who favor (government) efficiency, or inefficient, representative government,” and he quoted from three appellate decisions as well as several of Madison’s Federalist papers to make this point.

The founders feared tyrannical government and worried about this new government having too much power. That is the reason for the three separate branches where Congress writes the law, the executive branch administers the law, and the judiciary interprets it. This system of checks and balances make government very inefficient, and Melgren cited Madison’s Federalist 47.

Judge Melgren followed by quoting Supreme Court Justice Clarence Thomas’s opinion in the Department of Transportation v. American Railroads case on this point. Our progressive law has now put the power of taking a general federal statute and having a federal agency basically write the rules and regulations that are then administered by the bureaucracy, and if a dispute arises, is then settled in the agencies own administrative law courts. Congress, often the executive, and unless extensive litigation occurs, the courts are all bypassed. The Chevron decision pushed these legal disputes away from the courts and back to bureaucratic resolutions.

This creates an environment where the bureaucracy has assumed much of the law making powers, administers the law, and then has their own administrative courts to interpret it.

In theory, the bureaucracy is part of the executive branch and reports to the president. However, as U.S. attorney Melgren was reminded by his staff that they would be there after he had left that office. This also applies to the rest of the federal government’s bureaucracy.

To amplify upon this situation Melgren quoted from then federal appeals court judge Gorsuch in an immigration case that turned on the legal question of which conflicting rules from the government applied. The U.S. Supreme Court’s little known but legally controversial Chevron decision took this issue away from the federal courts and gave it to the professional bureaucracy. Gorsuch’s opinion was part of this 10th circuit (federal appellate court) case involving the U.S. justice department in 2016.

Then President Obama’s rule making authority was at issue, that created this legal problem in the realm of federal administrative law making. This was also a problem in Thomas’ opinion in the railroad case.

Justice Thomas warned about this dangerous trend. This amplified the warning Gorsuch bemoans in the weakening of the separation of powers in his appellate case. Thomas warned that too often we abrogated and allowed the power to make laws by administrative fiat. It might help make, as is often suggested, “make the trains run on time,” although Judge Melgren expressed serious doubts on this point there was no doubt about the cost to our Constitution, and the individual liberty it is supposed to protect.

Judge Melgren spoke about the Chevron decision’s impact where the courts must defer to administrative agencies. “Apply the law as it is, and not how they wish it to be,” citing Gorsuch’s opinion, this means that the separation of powers is being totally undermined by the Chevron edict. The solution is: legislation. Law writing is arduous and difficult, but this is not a bug in the system, but this difficulty is a constitutional protection.

This shift in power under Chevron would astonish the founders if they could see our current system as seen by the growth in the federal government in general. Judge Melgren pointed out that within the lifetime of some of the Pachyderm Club members the number of judges in the federal court system in Kansas had expanded from one in 1940 to six today, and that excludes a number of senior federal judges who have officially “retired,” but still on occasion hear about 1/3 of the total number of cases in the three federal courthouses (Wichita, Topeka, and K.C.) in Kansas. Melgren mentioned his late colleague Judge Brown, who was an appointee of President Kennedy and was still hearing cases while over 100 years old. Judge Brown passed away at the age of 104.

Melgren readily acknowledged that the separation of powers was not absolute. The federal court system underneath the supreme court is created by congress. The close to 1,000 federal district and appellate judges operate nationally within an organization structure created by Congress.

Melgren’s last case he quoted was from Kansas Supreme Court Justice Caleb Stegall’s opinion in the selection of district court judges, Sullivan v. Kansas. Stegall’s separation of powers argument cited Madison’s Federalist 51 concerning the concentration of power in any one government agency.

Stegall applied the warnings over the separation of powers and the direction that state law has taken going back to Kansas Supreme Court cases granting additional administrative power going back to a 1976 ruling that involved the complexity created by the separation of powers. The separation of powers was a critical constitutional concept that is a key to protecting our liberties from government expansion.

This cautionary litany of judicial rulings quoted by Judge Melgren served as a legal foundation concerning our Constitution and the separation of powers legal structure. The Chevron decision that weakens our liberty, and expands government’s powers, places a roadblock in the effort to preserve, protect and defend our liberty with this important constitutional protection of the separation of powers today.

Video of this speech is available on YouTube. Click here.

WichitaLiberty.TV: David Schneider on Convention of States

In this episode of WichitaLiberty.TV: David Schneider of Citizens for Self-Governance joins Bob Weeks and Karl Peterjohn to explain the Convention of States project. View below, or click here to view at YouTube. Episode 154, broadcast June 18, 2017

Shownotes

In Kansas, the war on blight continues

Kansas governments are trying — again — to expand their powers to take property to the detriment of one of the fundamental rights of citizens: private property rights.

Empty lots in northeast Wichita. Click for larger version.
Last year cities in Kansas lobbied for a bill that would expand their powers to take property from its lawful owners, all in the name of saving neighborhoods from “blight.” Governor Brownback vetoed that bill, explaining, “The right to private property serves as a central pillar of the American constitutional tradition.”1

The governor further explained: “The broad definition of blighted or abandoned property would grant a nearly unrestrained power to municipalities to craft zoning laws and codes that could unjustly deprive citizens of their property rights. The process of granting private organizations the ability to petition the courts for temporary and then permanent ownership of the property of another is rife with potential problems.”

The bill introduced this year is SB 31, titled “Rehabilitation of abandoned property by cities.”2 It is a slightly modified version of SB 338, the bill from last year.It deserves opposition for the same multitude of reasons. Last year John Todd summarized the reasons for opposition:

  • Senate Bill 338 appears to provide local governmental units with additional tools that they don’t need to “take” properties in a manner that circumvents the eminent domain statutes that private property rights advocates fought so hard to achieve in 2006.
  • The total lack of compensation to the property owner for the deprivation or taking of his or her property is missing in the bill.
  • Allowing a city or their third party take possession of vacant property they do not own and have not obtained legal title to is wrong.
  • Please take a look at a comparison between a free-market private sector solution as contrasted to a government mandated program to achieving affordable housing and the impact highly subsidized government housing solutions are having on adjacent home owners.

This year’s bill is a “committee bill,” meaning that no legislator was willing to be a named sponsor. We might call this the “Longwell-Meitzner bill,” as these two Wichita City Council members were particularly disappointed that the governor of Kansas blocked their power grab.3

Of note, Todd and I, along with others, had a luncheon meeting with a Kansas Senator who voted for last year’s bill. When we told him of our opposition, he asked questions like, “Well, don’t you want to fight blight? What will cities do to fight blight without this bill?” When we listed and explained the many tools cities already have, he said that he hadn’t been told of these. This is evidence that this bill is not needed. It’s also evidence of the ways cities try to increase their powers at the expense of the rights of people.

Following, John Todd’s testimony opposing SB 31. His exhibits are available via a link at the end of the testimony.4

January 26, 2017

Senator Elaine Bowers, Chair
Senate Ethics, Elections and Local Government

Subject: MY OPPOSITION to Senate Bill No. 31 scheduled for a public hearing in the Senate Ethics, Elections, and Local Government Committee on January 26, 2017

Dear Senator Bowers and members of the Senate Ethics, Elections, and Local Government Committee,

I OPPOSE the passage of Senate Bill No. 31 of 2017 since it is basically a slightly modified and expanded version of the Senate Bill No. 338 of 2016 that Governor Sam Brownback correctly vetoed. I see no new provisions in the 2017 bill that gives citizens any additional private property protection; rather, it strengthens local authorities “unmitigated power in determining which properties should be seized, allowing localities to write their own rules. It also cedes to municipalities the power to select which private organizations receive control of the property.”

This quote is from an e-mail the Governor’s office issued in announcing his Veto of the 2016 bill (see copy attached). A “Message from the Governor” dated April 11, 2016 provides his excellent reasoning for the Veto, explaining, “The right to private property serves as a central pillar of the American constitutional tradition (see copy attached).

Shortly after starting my career in the real estate business in 1976 I acquired my first rehab house. It was located in the Old Orchard area of Wichita that everyone considered one of the most economically challenged and difficult neighborhoods to work with in town. I paid the seller nearly $20 thousand her dilapidated house that included three vacant single family building lots. It cost me in the range of $10 thousand to rehabilitate the house that included repairing a caved in concrete block basement wall. I sold the rehabilitated house and the lot it was on for the $30 thousand I had invested in the transaction and wound up with the vacant lots free and clear. I sold the three lots to a builder for $9 thousand cash and he subsequently built three new affordable entry level homes on them.

Now let’s take a look at this private sector transaction:

  1. The seller of the house received cash for her property through a mutually agreed upon transaction without coercion (no eminent domain) involved.
  2. I rehabilitated the house and sold it to a young couple for their first home.
  3. The builder who purchased the 3 vacant lots built three new houses that he sold to owner occupant homeowners.
  4. The builder provided construction jobs and purchased building materials from local vendors.
  5. The Orchard neighborhood saw immediate improvement and felt the benefits of economic uplift.
  6. The City, County, and School District tax base was expanded providing with one rehabilitated and three new houses thus providing additional tax revenue to fund fire, police, public safety, and money to educate our children.
  7. I paid Federal and state taxes on the profit I made in the transaction and I suspect the builder did too.
  8. There was no need for government subsidies of any nature for this private sector transaction to work.

Now in contrast, let’s take a look at how our local government has been handling similar neighborhood opportunities. Please take a look at the attached Building Blocks Infill Project Area map to discover what has been happening in a predominantly African American neighborhood community in Wichita.

  1. The vacant green rectangles are dozens of vacant lots where houses once stood that were bulldozed by the city.
  2. The owners of these houses were paid $0 for the houses that were taken by the city’s bulldozer
  3. In my judgment, many if not a majority of these bulldozed houses had economic value and offered the potential for rehabilitation and the creation of low-cost entry level housing. (See exhibit A)
  4. The city charged the property owner $8 – $10 thousand for bulldozing charges leaving the owner with a vacant lot that was left to produce high weeds and collect trash.
  5. Most of the owners let their vacant lots go back for taxes and many were sold for $100 or less and they received $0 for their properties.
  6. Thus the existing and potential tax base was lost as well as the wonderful opportunity for clean low-cost affordable entry level home ownership that is part of the American dream.
  7. Some of the most vulnerable and economically challenged property owners of our city rightly feel helpless in the face of this devastation.

Now local governmental officials are asking you for additional powers through Senate Bill No. 31 to “deal” with this problem.

  1. They want the power to seize unoccupied houses without compensating the owners anything for their property.
  2. They want to empower non-profit (non-taxpaying) organizations of their choice to seize unoccupied houses without compensating the owners for their property.
  3. The non-profits involved in the redevelopment of this neighborhood community with the exception of Habitat for Humanity rely heavily on tax subsidies for wealthy taxpayers and generous Federal subsidies in the range of $50 thousand for each house built and sold.
  4. I hear talk of Tax Increment Financing (TIF) to finance redevelopment in this community. The TIF program is simply a diversion of tax revenue that needs to go to city, county, and school district treasuries and not flow back to developers.

I see nothing in Senate Bill No. 31 that does anything to promote private sector redevelopment.

Is there a private sector solution? I say YES and I see it happening. Private sector investors, contractors and homeowners are stepping up and seizing opportunity (See Exhibit B). This economic uplift is healthy for the neighborhood community, expands the tax base, and offers an opportunity for investor/contractor profit in some cases or low-cost affordable home homeownership in others.

The rehabilitation of existing houses and redevelopment on vacant “infill” is best achieved by the private sector and not by government planners or their favored non-profit entitles.

The taking of property by local government without compensation is wrong. I believe that was what Governor Brownback was saying in his veto message, “Government should defend and protect the property rights of all citizens, ensuring that the less advantaged are not denied the liberty to which ever other citizen is entitled.”

I urge you to OPPOSE passage of Senate Bill No. 31!

Sincerely,
John R. Todd
A Kansas Citizen

The exhibits referred to are available in pdf form. Click here.


Notes

  1. Weeks, Bob. Governor Brownback steps up for property rights. https://wichitaliberty.org/kansas-government/governor-brownback-steps-property-rights/.
  2. SB 31. Rehabilitation of abandoned property by cities. http://www.kslegislature.org/li/b2017_18/measures/sb31/.
  3. Weeks, Bob. In Wichita, revealing discussion of property rights. https://wichitaliberty.org/kansas-government/wichita-revealing-discussion-property-rights/.
  4. Todd, John. Exhibits on Blight in Wichita. https://drive.google.com/file/d/0B97azj3TSm9MMzFYZDQxRTRJb1U/view?usp=sharing.

Wichita Eagle opinion watch

Another nonsensical editorial from the Wichita Eagle.

Stop messing with Sedgwick County ZooThis is contained in an editorial urging Sedgwick County government to “stop messing” with the zoo.1

Nor is there any justification for a “non-disparagement clause” in the proposed operating agreement about the zoo director’s public statements, including a prohibition against doing anything to bring the county or society “unwanted or unfavorable publicity.” Even if the county is right — and the society wrong — about the constitutionality of such a gag rule on a public employee, it’s an insult to longtime director Mark Reed’s professionalism and another case of the county trying to pre-empt criticism and punish critics.

It’s common for employees, especially those in managerial and executive positions, to have such agreements. Companies don’t want their employees bad-mouthing the company. I would not be surprised if Holman herself has such an agreement with her employer, the Wichita Eagle. Even if there is no such agreement, can you imagine how long she would last in her job if she started complaining in public about her low pay, her drab office, how her editor censors her best editorials, the crappy publisher, etc.

Employees have protection through whistleblower laws, so if there is corruption or criminality, employees can report it. And the fact that the zoo director is a government employee: I don’t know if that makes a difference, constitutionally speaking.

  1. Holman, Rhonda. Stop messing with Sedgwick County Zoo. Wichita Eagle, July 20, 2016. Available at www.kansas.com/opinion/editorials/article90624332.html.

Kansas Supreme Court: Making law, part 3

Do the justices on the Kansas Supreme Court make new law? Yes, and here is another example.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

The question is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process? In his paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. Here, Ware explains one case:2

May a convicted criminal defendant pursue a legal malpractice action against this criminal-defense attorney without first obtaining any post-conviction relief? No, he may not, the Kansas Supreme Court held in Canaan v. Bartee, adopting what is known as the “exoneration rule.” In so holding, the Kansas Supreme Court acknowledged that it was making law. The Canaan court said that “Whether a plaintiff must be exonerated in postconviction proceedings before bringing a legal malpractice action against his criminal defense attorney is an issue of first impression in Kansas.” The court discussed earlier Kansas cases and concluded that they did not resolve the issue: “Thus, we are left to decide whether we will apply the exoneration rule in legal malpractice actions in Kansas.”

The Canaan court reviewed decisions from courts around the country and noted that most adopted the exoneration rule but some did not. The court also summarized what it candidly called “Policy Reasons Behind the Exoneration Rule.” The Canaan court’s punchline was: “After consideration of these authorities, the varying policy justifications, and the shortcomings of the various approaches, we find the majority view persuasive. We hold that before Canaan may sue his attorneys for legal malpractice he must obtain postconviction relief.”

Who considered “varying policy justifications” in deciding what Kansas law should be? Was it the Kansas Legislature? No, it was the judges on the Kansas Supreme Court did. As in all the examples discussed above, when it comes to the exoneration rule Kansas law is what it is because high court judges chose for that to be law based on what they considered “persuasive.” (emphasis added)

For more on this topic, see As lawmakers, Kansas judges should be selected democratically: While many believe that judges should not “legislate from the bench,” 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 highest court, violates this principle.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Id. at 31.

Kansas Supreme Court: Making law, part 2

Do the justices on the Kansas Supreme Court make new law? Yes, and here is an example.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

The question is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process? In his paper, Ware presents eleven examples of judges on the two highest Kansas courts engaging in lawmaking. Here, Ware explains one example:2

Does the state have a legal duty to control the conduct of parolees to prevent harm to other persons or property? When the Kansas Supreme Court confronted this question in Schmidt v. HTG, Inc., it noted a split of authority in other states. For example, a Washington court held that, yes, “a parole officer takes charge of the parolees he or she supervises despite the lack of a custodial or continuous relationship” and this had the effect of imposing liability on the state. However, the Kansas Supreme Court “reject[ed]” this rule and said “The better-reasoned and more logical approach is that taken in [a Virginia case] which held that state parole officers did not take charge” of a parolee in the relevant sense.

So Kansas law on this topic … was made, not by the legislative or executive branches, but by the judges on the Kansas Supreme Court. In Schmidt, … the lawmaking judges did not pretend that they were compelled by the legislature or anyone else to choose one possible legal rule over another possible legal rule. Instead, the judges decided which view was “better-reasoned” and then made that view the law. (emphasis added)

For more on this topic, see As lawmakers, Kansas judges should be selected democratically: While many believe that judges should not “legislate from the bench,” 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 highest court, violates this principle.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Id. at 31.

Kansas Supreme Court: Selecting Judges

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.

A paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the undemocratic method of judicial selection process used in Kansas.1

At issue is whether judges are simply arbitrators of the law, or do they actually participate in the lawmaking process. 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.2

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.

(In the Kansas version of the Missouri Plan, a nominating commission dominated by lawyers selects three candidates to fill an opening on the Kansas Supreme Court. The governor then selects one of the three. This process gives members of the state’s bar tremendous power in selecting judges.)

By the way: For those who criticize the support for judicial selection reform as partisan politics — since Kansas has a conservative governor — remember this: When Professor Ware first sounded the need for judicial selection reform, our governor was the liberal Kathleen Sebelius. There was also a liberal senate at that time, one which would undoubtedly have approved 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.


Notes

  1. Ware, Stephen J. Originalism, Balanced Legal Realism and Judicial Selection: A Case Study. Available at papers.ssrn.com/sol3/papers.cfm?abstract_id=2129265.
  2. Ware, Stephen J. Selection to the Kansas Supreme Court. Federalist Society for Law and Public Policy Studies. Available at www.fed-soc.org/publications/detail/selection-to-the-kansas-supreme-court.

The unprecedented campaign against free speech

The political left’s campaign to silence opponents and reorder society in accordance with their personal beliefs is in many ways the single greatest threat to America’s experiment in self-governance, writes Mark Holden.

The unprecedented campaign against free speech

By Mark Holden. Originally published in The Hill.

The liberal Supreme Court Justice Oliver Wendell Holmes once warned of the biggest danger facing free speech: “If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.”

Yet many lawmakers today are mistaking his wise warning as an invitation to restrict the First Amendment. At nearly every level of government, freedom of speech is under unprecedented attack. Many on the political left now seek to silence their opponents and reorder society in accordance with their personal beliefs. This is in many ways the single greatest threat to America’s experiment in self-governance.

This coordinated campaign has been underway for years. Its creation can be traced to the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, when the court refused to accept the Obama administration’s argument that it could ban books, mailers, advertisements or anything else that contained a political message during an election campaign. This simple ruling ensured that Americans retained the fundamental right to use free speech to praise or criticize a candidate running for office.

However, that is the very core of free speech itself. If Americans — individually or acting together through nonprofits, businesses or labor unions — cannot voice their views on public policy and elected officials, then the democratic process as we know it is dead. The result is a system that makes those already in power even more powerful; incumbents need not fear having those pesky voters learn about their statements, views and voting records.

In fact, liberal politicians and activists swiftly made opposition to Citizens United a defining part of their platform from the moment the Supreme Court issued its decision. By 2014, no fewer than 54 U.S. Senators — all Democrats or Democratic allies such as current presidential candidate Sen. Bernie Sanders (Vt.) — supported a constitutional amendment essentially rewriting the First Amendment so that the federal government could regulate and criminalize free speech. Congressional Democrats are once again preparing to make a push to roll back the court’s decision and stifle free speech.

Not to be outdone, leading Democratic presidential candidate Hillary Clinton has declared that she would only appoint judges who promise to overturn Citizens United and permit the censorship of political speech.

At the same time, lawmakers and their allies have found other ways to stifle their opponents’ speech. Americans learned in 2013 that the IRS had systematically singled out conservative nonprofits in the build-up to the 2012 election. The agency harassed many applicants and kneecapped others by refusing to grant them tax-exempt status, restricting their members and supporters from exercising their rights to free speech and free association.

Sadly, this abuse of power still occurs. The federal courts recently learned that multiple nonprofits still haven’t received IRS approval.

Even more attacks on free speech are happening at the state level. For example, New York and California are both demanding that some nonprofits hand over lists of donors to the state. Although the government invariably promises to not release this legally confidential information, California has “accidentally” posted at least 1,400 supporter lists online.

This fact, and ongoing harassment by California Attorney General Kamala Harris, led a federal judge to permanently stop her from obtaining the donor list of one organization, the Americans for Prosperity Foundation. (Full disclosure: I am a director of the related Americans for Prosperity.) However, the IRS has done something similar, conveniently disclosing confidential taxpayer information for several of the Obama administration’s political opponents.

And then there are the demands that government investigate organizations that hold unpopular or controversial views. Over a dozen state attorneys general (all of them Democrats), recently announced that they will go after companies such as Exxon Mobil that disagree with their views on climate change. The prosecutors’ goal is to intimidate these groups to change their position or else face criminal prosecution.

Federal lawmakers are in on the action, too. The Department of Justice has asked the FBI to begin similar investigations of major energy companies. Sen. Sheldon Whitehouse (D-R.I.) has even called for organizations that disagree with him to be prosecuted under the federal law banning racketeering — a law originally meant to target mobsters and drug kingpins.

This coordinated campaign is antithetical to the First Amendment’s guarantee of free speech. In our system of self-government, when someone finds other people’s ideas and opinions disagreeable or even reprehensible, the solution is more speech, not less. Yet instead of persuading others to see their point of view, many in today’s society would rather use government’s power to bully their opponents into silence instead.

Thankfully, Senate Majority Leader Mitch McConnell (R-Ky.) and House Speaker Paul Ryan (R-Wis.) have tried to combat this assault on free speech. They have championed a number of reforms to protect the First Amendment and prevent elected officials and the administrative state from stifling Americans’ right to free speech.

Their leadership should be praised, but much more needs to be done. This fundamental right won’t truly be protected until Americans of all political persuasions heed Justice Holmes’s wise words.

Holden is senior vice president and general counsel of Koch Industries, Inc. and a director of Americans for Prosperity. (The chairman of the Americans for Prosperity Foundation, David Koch, is also executive vice president and director of Koch Industries.)

AFP Foundation wins a battle for free speech for everyone

Americans for Prosperity Foundation achieves a victory for free speech and free association.

Must donors to non-profit organizations live in “fear of exercising their First Amendment right to support” any organization, which effect is to “diminish the amount of expressive and associational activity?” Should these people be denied the right to their speech? The constitution says, no.

Non-profit organizations file a form known as IRS Form 990, Return of Organization Exempt From Income Tax. 1 The first part of this form is public information and may be obtained from the organization itself or from services like GuideStar. Also part of the filing is Schedule B, Schedule of Contributors. 2 This form holds the names and addresses of donors, along with the amount donated. This information is not public, and generally non-profits do not disclose it.

But California Attorney General Kamala Harris wanted the names of AFP Foundation’s donors, and she demanded its Schedule B. AFP Foundation said no, and now a federal judge has ruled that “the Attorney General’s Schedule B disclosure requirement unconstitutional as-applied to AFP.”

AFP Foundation Board Member Mark Holden said “Federal District Court Judge Manuel Real issued a permanent injunction to enjoin the Attorney General of California from demanding AFP Foundation’s donor list. After a full bench trial, the Court found the Attorney General’s disclosure requirement was an unconstitutional violation of the First Amendment as applied to AFP Foundation. The Court also found that the Attorney General’s demand chills the exercise of AFP Foundation donors’ First Amendment freedoms to speak anonymously and to engage in expressive association.”

Holden added “From my perspective as an AFP Board member and a citizen is that it is a great day for First Amendment free speech and free association.”

The case is Americans for Prosperity Foundation v. Kamala Harris, In Her Official Capacity as Attorney General of California. The final ruling is here.

Anonymity

Why might donors choose to be anonymous, and why is protecting that right important? In his decision, the judge wrote “During the course of trial, the Court heard ample evidence establishing that AFP, its employees, supporters and donors face public threats, harassment, intimidation, and retaliation once their support for and affiliation with the organization becomes publicly known.”

Disclosure has been used as a political weapon, as the Wall Street Journal noted in its reporting: “The judge is an LBJ appointee who can recall when disclosure was used as a political weapon in the Jim Crow South.” (Judge Manuel L. Real was born in 1924 and appointed to the Court in 1966 by President Lyndon Johnson.) In his opinion, Judge Real wrote “[A]lthough the Attorney General correctly points out that such abuses are not as violent or pervasive as those encountered in NAACP v. Alabama or other cases from that era, this Court is not prepared to wait until an AFP opponent carries out one of the numerous death threats made against its members.”

Today, those who advocate for free markets, limited government, and economic freedom are often verbally assaulted and threatened, and sometimes threats are physical and real. But it is not only those who this ruling benefits. Today, there are people who may want to donate to controversial matters such as supporting gay rights, but may still be “in the closet.” Conservatives who support issues like abolition of the death penalty, criminal justice reform, and legalization of drugs are often branded by their fellows as closet liberals who are soft on crime. Should these people be denied the right to their speech? The constitution says, no.


Notes

  1. Form 990, Return of Organization Exempt From Income Tax. (2016). Irs.gov. Available at www.irs.gov/uac/About-Form-990.
  2. Schedule B (Form 990, 990-EZ, or 990-PF), Schedule of Contributors. (2016). Irs.gov. Available at www.irs.gov/uac/About-Schedule-B-(Form-990,-990EZ,-or-990PF).

Kansas Supreme Court judicial selection

Kansas progressives and Democrats oppose a judicial selection system that is used by U.S. Presidents, both Democrats and Republicans.

What is the substantive difference between these two systems?

A) A state’s chief executive appoints a person to be a judge on the state’s highest court. Then the state’s senate confirms or rejects.

B) A nation’s chief executive appoints a person to be a judge on the nation’s highest court. Then the nation’s senate confirms or rejects.

Perhaps there is a difference that I’m not smart enough to see. I’m open to persuasion. Until then, I agree with KU Law Professor Stephen Ware and his 2007 analysis of the way Kansas selects Supreme Court judges as compared to the other states.1 That analysis concludes that “Kansas is the only state in the union that gives the members of its bar majority control over the selection of state supreme court justices.”

Ware has made other powerful arguments in favor of discarding the system Kansas uses: “In supreme court selection, the bar has more power in Kansas than in any other state. This extraordinary bar power gives Kansas the most elitist and least democratic supreme court selection system in the country. While members of the Kansas bar make several arguments in defense of the extraordinary powers they exercise under this system, these arguments rest on a one-sided view of the role of a judge.”2

Judges, Ware says, make law, and that is a political matter: “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.”3

Kansas exhibits a pattern of selecting governors from alternate political parties.
Kansas exhibits a pattern of selecting governors from alternate political parties.
For Kansas progressives and Democrats to oppose Kansas adopting the same system that has enabled Barack Obama to appoint two liberal justices to the U.S. Supreme Court, with perhaps more to come — don’t they realize that Kansas will (likely) have a Democratic governor someday? As Clay Barker noted, for the last 50 years, no Kansas governor has been followed by a successor of the same party (except for Mark Parkinson filling the remainder of a term after Kathleen Sebelius resigned). If that pattern holds — and there’s no guarantee that it will — the next Kansas governor will be a Democrat, just three years from now.

Superficially, it doesn’t seem to make sense for Kansas Democrats to oppose the governor making judicial selections while supporting the President of the United States having the same power. It does make sense, however, when we realize that Kansas Democrats are comfortable with the state’s bar selecting the judicial nominees that the governor may consider. (Which gives truly useful and enjoyable bars a bad name.) Lawyers, especially lawyers that take an active role in politics, tend to be Democrats, and progressive Democrats at that. If the Kansas bar was dominated by constitutional conservatives, would Kansas Democrats feel the same?

I’m not claiming that the motives of conservative Kansas Republicans are pure. Will they change their stance on the desirability of the governor appointing Supreme Court judges if there is a Democratic governor? I don’t know, but I have a suspicion.

Defenders of the current Kansas system claim that the system is based on merit, not politics. To which we must note that this year the Kansas Supreme Court was reversed by the United States Supreme Court. It wasn’t even close, with justices voting eight to zero that the Kansas court was wrong in its application of the law. (The other Supreme Court justice said “I do not believe these cases should ever have been reviewed by the Supreme Court.)

  1. Ware, Stephen J., Selection to the Kansas Supreme Court. Fed-soc.org. Available at: http://www.fed-soc.org/publications/detail/selection-to-the-kansas-supreme-court.
  2. Ware, Stephen J., The Bar’s Extraordinarily Powerful Role in Selecting the Kansas Supreme Court (September 25, 2009). Kansas Journal of Law & Pubic Policy, Vol. 18, No. 3, p. 392, 2009. Available at SSRN: http://ssrn.com/abstract=1478660.
  3. Ware, Stephen J., Originalism, Balanced Legal Realism and Judicial Selection: A Case Study (August 3, 2012). Available at SSRN: http://ssrn.com/abstract=2129265.

David Bobb: Free speech and its importance

David Bobb, President of The Bill of Rights Institute, explains freedom of speech and its importance. View below, or click here to view at YouTube. Wichita, Kansas, February 18, 2016.

Notes

WichitaLiberty.TV: David Bobb, President of Bill of Rights Institute

In this episode of WichitaLiberty.TV: David Bobb, President of The Bill of Rights Institute, talks about civic education and the importance of humility. View below, or click here to view at YouTube. Episode 110, broadcast February 21, 2016.

Shownotes

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 highest court, violates this principle.

A 2012 paper by Kansas University School of Law Professor Stephen J. Ware explains the problem with the judicial selection process 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 court that uses the method of judicial selection described in the paper — the Missouri Plan — is the Kansas Supreme Court. (Prior to July 1, 2103, the Kansas Court of Appeals also used the Missouri Plan for judicial selection.)

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 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.

In the paper, 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. In 2012 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.”

Contrary to Schodorf, 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 the composition of the Kansas Senate, the climate became favorable for reform of the way judges are selected for the Kansas Court of Appeals. In 2013 legislation reforming judicial selection for this court was passed and signed into law, taking effect on July 1, 2013. Now these justices are selected by appointment of the governor with confirmation by the senate. The law governing how judges for the Kansas Supreme Court are selected is part of the Kansas Constitution, and would require an amendment to alter the process. That 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.