Tag: Constitution

  • 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

    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

    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.

    [powerpress url=”http://wichitaliberty.org/wp-content/uploads/2013/02/steve-abrams-senate-judiciary-2013-02-13.mp3″]Sen. Steve Abrams responds to Sen. David Haley.

    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.

    [powerpress url=”http://wichitaliberty.org/wp-content/uploads/2013/02/dave-trabert-senate-judiciary-2013-02-13.mp3″]Dave Trabert, Kansas Policy Institute.

  • 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.