Tuesday, June 27, 2006

What Does The 1st Amendment Mean?

Michael Barone:
"The Supreme Court today ruled by a 6-to-3 margin that Vermont's stringent limits on campaign expenditures and contributions are unconstitutional infringements of the First Amendment.

Hurray! Alas, there were six separate opinions filed. Chief Justice John Roberts may be trying to winnow down the number of separate concurring and dissenting opinions, but in this case he did not succeed (though he filed no opinion himself). But rightly so, in my view; I think Justice Clarence Thomas, joined by Justice Antonin Scalia, got it right in his separate concurrence. Thomas argues that the 1976 precedent of Buckley v. Valeo, to the extent it allows contribution limits, is an unconstitutional infringement of the First Amendment. But Thomas didn't have five votes, and so our First Amendment jurisprudence still stands for the proposition that the Founding Fathers intended to give blanket protection to nude dancing, student armbands, and flag burning—but not to political speech. If only we could channel James Madison and ask him if that was what he had in mind"

Right on.

Monday, June 26, 2006

Freedom of our Founders

NY Times Executive Editor Bill Keller has written a letter about a recent story reported in the NY Times. I think he has an odd understanding of our Constitution:
"It's an unusual and powerful thing, this freedom that our founders gave to the press. Who are the editors of The New York Times (or the Wall Street Journal, Los Angeles Times, Washington Post and other publications that also ran the banking story) to disregard the wishes of the President and his appointees? And yet the people who invented this country saw an aggressive, independent press as a protective measure against the abuse of power in a democracy, and an essential ingredient for self-government. They rejected the idea that it is wise, or patriotic, to always take the President at his word, or to surrender to the government important decisions about what to publish.

The power that has been given us is not something to be taken lightly. The responsibility of it weighs most heavily on us when an issue involves national security, and especially national security in times of war. I've only participated in a few such cases, but they are among the most agonizing decisions I've faced as an editor."
I specifically point to the idea that Mr. Keller says the founders gave freedom to the press, and that the press was given some power. I'm guessing he is referring to the First Amendment:
"Congress shall make no law. . . .abridging the freedom of speech, or of the press . . ."
The language here is neither a grant of freedom, nor a grant of some power. The founders did not give freedom to the press. Nor did government give freedom to the press. The language found in the First Amendment says that Congress (and government more generally) cannot make a law that abridges freedom of speech or freedom of the press. These freedoms are inalienable rights of individuals that Jefferson wrote about in the Declaration of Independence. Those who drafted and ratified the Constitution did not give individuals the right of free speech or of a free press. Instead, they wrote that Congress was specifically not being given the power to constrains these inalienable rights of individuals.

I think this is an extremely important distinction to make and to hold to. Writing as Mr. Keller does makes it far to easy to think we get our individual rights and liberties from government, that somehow government is gracious and giving to us. It seems to become easy to think that government has it all, and that we get what we have from the good graces of a good democratic form of government. This is not the view which is the foundation of our constitution, and I think the constitutional foundation is much, much better. Government gets what it gets from We the People, and it is not supposed to constrain our individual liberties unless we make specific grants of such powers to Congress in our written Constitution.

Senator Byrd -- King of Earmarks & Pork?

Michael Grunwald has commentary on Senator Byrd:
. . . He is one of the last of the 'old bulls' who controlled congressional purse strings when the Senate was a true gentlemen's club, and his top priority hasn't changed in a half-century: shoveling pork into his home state.

Is that so terrible? Byrd once promised to be 'West Virginia's billion-dollar industry,' and he has more than kept his word, dotting his state with the Robert C. Byrd Bridge, the Robert C. Byrd High School and the Robert C. Byrd Center for Legislative Studies, where academics can research how Congress came to give West Virginia six technology centers, two community centers and about two dozen additional projects named for Robert C. Byrd. One man's pork is another man's 'domestic infrastructure,' and Byrd savors his reputation as the King of Pork. His memoir details hundreds of his earmarks in loving detail, along with gleeful tales of moving Navy and Coast Guard offices to his landlocked state. Appropriately, he moved the Bureau of the Public Debt to West Virginia, too.

This is why Byrd was named "West Virginian of the 20th Century," and is revered as the savior of an impoverished state. But even after Byrd's half-century of largesse -- new prisons, new labs, new subsidies for fish farms, dairies and steelmakers -- West Virginia is still an impoverished state, ranked 49th in per-capita gross state product. "Those earmarks haven't solved West Virginia's problems," says Michael Hicks, an economist at Marshall University in Huntington, W.Va. "I'm trying to be careful here -- I like my job -- but after 40-odd years, we're still at the bottom of every economic indicator." Byrd was ahead of the curve on welfare reform, complaining as early as 1965 that "relief has become a way of life for some people." But he never noticed that relief could become a way of life for his state. West Virginia is now a ward of the federal government, dependent on Robert C. Byrd.

Lately it seems our Congressional leaders have been wont to hide their earmarks from public view. Perhaps Senator Byrd does so these days as well. But, with his practice of having his name put highways, bridges, high schools, research centers, technology centers, and community centers (is that all?), at least Senator Byrd doesn't seem to hide his love of pork projects for home.

Perhaps pork is just what legislatures do best, eh?

Saturday, June 24, 2006

Corrupt Government?

I've posted several times recently about the Congressional practice of earmarking. I know many people seem to think individual members of Congress should be able to earmark budget monies, but I tend to the conclusion that the practice of earmarking suggests our Congress has been corrupted. There are more stories in the news all the time that point in this direction as well. Here's something from one story in the Washington Post:
"House Speaker J. Dennis Hastert (R-Ill.) made a $2 million profit last year on the sale of land 5 1/2 miles from a highway project that he helped to finance with targeted federal funds.

A Republican House member from California, meanwhile, received nearly double what he paid for a four-acre parcel near an Air Force base after securing $8 million for a planned freeway interchange 16 miles away. And another California GOP congressman obtained funding in last year's highway bill for street improvements near a planned residential and commercial development that he co-owns.

In all three cases, Hastert and Reps. Ken Calvert and Gary Miller say that they were securing funds their home districts wanted badly, and that in no way did the earmarks have any impact on the land values of their investments. But for watchdog groups, the cases have opened a fresh avenue for investigation and a new wrinkle in the ongoing controversy over earmarks -- home-district projects funded through narrowly written legislative language.
Here's something from the Wall Street Journal ($$$):
"More broadly, the Lewis episode underscores the link between Member-steered earmarks and the opportunity for corruption. Convicted super-lobbyist Jack Abramoff openly boasted that earmarks were his political currency and he called the Appropriations Committee that doles them out a 'favor factory' for lobbyists. Duke Cunningham parlayed earmarks into a Rolls Royce in his driveway, until his greed landed him in the pokey. We also now know that one of the major beneficiaries of the most notorious earmark from last year -- the $300 million Bridge to Nowhere in Alaska -- is a relative of GOP Senator Lisa Murkowski.

This spring, House Republicans elected new leaders and promised to restrain earmarking. But this week the House is busily approving a $68 billion Treasury, Transportation and Housing and Urban Development spending bill stuffed with more than 1,500 new earmarks at a cost of some $900 million.

They include $500,000 for a scenic trail in Monterey, California; $1.5 million for the William Faulkner Museum in Oxford, Mississippi; $500,000 for a swimming pool in Columbus, Ohio; and $500,000 for an athletic facility in Yucaipa, California. Several of these projects, including the athletic facility, have been promoted by Bill Lowery's lobbying firm -- the very firm in the middle of the Jerry Lewis probe.

Yesterday, Jeff Flake of Arizona and other Members offered amendments to strip the earmarks, but they lost those floor votes by a wide margin. Our favorite: a $500,000 earmark for renovating a swimming pool in Banning, California. The same pool had already received a $250,000 earmark in each of the previous two years. Mr. Flake's floor proposal to strike the swimming hole subsidy got all of 61 votes.

The Washington Times has an interesting editorial regarding Congressman Murtha:
"Last June, the Los Angeles Times reported how the ranking member on the defense appropriations subcommittee has a brother, Robert Murtha, whose lobbying firm represents 10 companies that received more than $20 million from last year's defense spending bill. 'Clients of the lobbying firm KSA Consulting -- whose top officials also include former congressional aide Carmen V. Scialabba, who worked for Rep. Murtha as a congressional aide for 27 years -- received a total of $20.8 million from the bill,' the L.A. Times reported.

In early 2004, according to Roll Call, Mr. Murtha 'reportedly leaned on U.S. Navy officials to sign a contract to transfer the Hunters Point Shipyard to the city of San Francisco.' Laurence Pelosi, nephew of House Minority Leader Nancy Pelosi, at the time was an executive of the company which owned the rights to the land. The same article also reported how Mr. Murtha has been behind millions of dollars worth of earmarks in defense appropriations bills that went to companies owned by the children of fellow Pennsylvania Democrat, Rep. Paul Kanjorski. Meanwhile, the Center for Responsive Politics, a nonpartisan campaign-finance watchdog group, lists Mr. Murtha as the top recipient of defense industry dollars in the current 2006 election cycle. "
In this last "clipping" I almost forgot to mention House Minority Leader Nancy Pelosi along with Congressman Kanjorski. I think by some accounts in the news and commentary industry the corruption resides only on the Republican side of the isle, but of course, as this story suggests both sides of the political isle probably have excellent examples to offer.

And, from Bloomberg we have:
"Representative Alan Mollohan helped funnel at least $179 million in U.S. government contracts over the last six years to companies that gave to the West Virginia Democrat's family-run charity, tax records and other documents show.

The money went to 21 companies and nonprofit groups that contributed $225,427 to the Robert H. Mollohan Family Charitable Foundation in 2004 -- almost half of the charity's revenue, according to the documents. The congressman, an Appropriations Committee member whose finances are under federal investigation, is the secretary of the foundation, which is named for his father.

The charity, which distributes scholarships to West Virginia students, raises most of its money from corporate sponsors of an annual golf tournament attended by Mollohan, 63. The event gives company executives an opportunity to meet with him in a casual setting without having to report the donations as lobbying expenses."
Man, this is starting to get depressing. How many more stories are there? Well there is this from The Washington Times:
"When most people hear the word 'Enron,' they mentally complete the phrase by adding the word 'scandal.' As reporter Lester Holt of NBC's 'Today' put it in a Jan. 1 story, 'Enron has been the poster child, if you will, of corporate scandals.'
It isn't the only one, though. There's $40-billion scandal with most of the same elements -- even connection to prominent politicians. Just don't expect to see much about it on TV. After all, the top people involved here are Democrats.
Welcome to Fannie Mae, the government-sponsored mortgage giant. As part of a scandal that's been running nearly two years, Fannie Mae has 'misstated earnings' to the tune of $10.8 billion. That's some tune.

So far, the Fannie fiasco has cost Chief Executive Officer Franklin Raines and several other top executives their jobs. The stock has dropped from nearly $80 a share to around $50 -- roughly $30 billion in lost value. And the company recently settled with the federal government and agreed to pay $400 million in fines, stemming from allegations the firm fiddled with the books to ensure bigwigs got performance bonuses. "
It's not about Congress (unless we can wonder about Congressional oversight responsibilities), but it is still about our national government. It may not be corruption, but it sure doesn't look like good government.

Let's not forget the Executive Branch of government. This from the Washington Times:
"A jury found former Bush administration official David Safavian guilty yesterday of covering up his dealings with Republican lobbyist Jack Abramoff.
Safavian was convicted on four of five felony counts of lying and obstruction."
Maybe this isn't pointing to a corrupt national government, but it sure isn't what I want in Washington. How about you?

Self-Serving Profiteering

Instapundit quoting from one of his readers:
What the NY Times has essentially done is open up to the terrorists the trails of all their transactions and how the banking procedures of money laundering was done for them by the system. They have essentially stopped dead the ability to track this money and keep it from being put in the hands of our worst enemies. Whether the terrorists might have guessed that their money was being transferred is a moot point. The NY Times had told them that their worst fears have been realized and that they need to find another way to move money around the world. They know it for sure now. Thank you, Bill Keller, and when the nice young man or woman from down the street is killed by one of these terrorists I can thank you for that as well.

And the instapundit commentary:
When big companies dump toxic waste into rivers to enrich themselves, they're criticized by the press. But this is the same kind of thing -- self-serving profiteering at the public's expense.

Wednesday, June 21, 2006

Rapanos: Victory for Property Owners

TIMOTHY SANDEFUR interviews Reed Hopper, an attorney in the Rapanos case. Here are some of the questions and answers I find interesting:
1. Do you see Rapanos as a victory for property owners, or as a victory for government regulators?

I see this case as a victory for property owners. While Mr. Rapanos did not get what he hoped—a clear delineation of federal authority under the Clean Water Act—he did get what he asked—a majority of the court rejected the agency view that it can regulate any area over which water flows and reversed the Sixth Circuit decision. Property owners have at least some protections now from unlimited federal regulation.

2. Why did you take Mr. Rapanos' case?

We took the case to clarify the scope of the Clean Water Act and to ensure constitutional safeguards against federal overreaching are maintained. In this case the Army Corps of Engineers and the EPA assumed they had a blank check to define their own authority. They simply went too far. In 2001, the Supreme Court told these agencies it could not regulate every wet area in the country and that the language of the Act is controlling. But the agencies ignored that decision. We took the Rapanos case so that the Supreme Court could affirm that it meant what it said.

5. Linda Greenhouse says that the Rapanos case "came close to rolling back one of the country's fundamental environmental laws." Is that right?

Well, it's odd to say the court is "rolling back" the law when the justices are simply reading the act as written.

The challenged provision does not even mention wetlands, and the Corps has not been regulating drainage ditches until recently. In fact, the Corps has publicly affirmed time and time again that it does not regulate drainage ditches. But it did so in this case, without so much as a formal rulemaking.

But I think we came close to rolling back the country's fundamental charter—the U.S. Constitution. Had the dissent had its way, federal agencies would have had a green light to define their own jurisdiction no matter what their statutory authority said. In other words, federal agencies could have been authorized to become a law unto themselves. This was a near miss.

6. What do you say to people who portray Scalia's decision as "anti-conservation," or say it will destroy the government's power to protect the environment?

Nonsense to both. It is not anti-conservation to require federal agencies to comply with the law. If the environment is worth protecting—and it is—it's worth protecting by legal means. Enforcing the rule-of-law protects us all from arbitrary government. Liberty has a price. Justice Scalia, as well as Justices Thomas, Alito and Roberts, should be commended for remembering that. And, of course, in this case the price would have been small both because the majority would have placed only a constraint on federal Clean Water Act authority, not a prohibition, and because the states have authority to fill in any regulatory gaps.

Iraq & the Media

Gay Patriot:
They’re killing their own people to make it appear that we are losing. And the Western media is helping them make their case. In the very AP article on the murder of the U.S. soldiers, the reporter writes that “Violence was unabated Tuesday, with at least 18 people killed in attacks nationwide, including a suicide bombing of a home for the elderly in the southern city of Basra.

[ . . . . ]

To the terrorists’ fighting our troops and the Iraq people, indiscriminate murder is merely a means of manipulating the media.

[ . . . . ]

Al Qaeda’s remaining leaders in Iraq know that by murdering innocent civilians and relying on a compliant Western press, they will make it appear that despite numerous successes, U.S. and Iraqi forces are unable to control the situation in Iraq. Thus, Al Qaeda attacks the targets they can most easily attack, not the ones with any strategic value in a traditional military sense. That’s because their strategy is getting headlines and winning this one not on the battlefield, but in the U.S. media. And to that end, it doesn’t matter how many Iraqis they murder.

The barbarity of the murder of Pfcs. Kristian Menchaca and Thomas Lowell Tucker shows the evil nature of the opponents we face. These terrorists show no respect for conventions of warfare or for human life. And no respect for the dead, booby-trapping bodies in order to use them to kill even more people. It’s just too bad that some bloggers are using the murders of these servicemen as just another excuse to attack the Administration.

Once again, we see the evil of our enemies in Iraq for what it is. As our hearts go out to the families of these two brave young men, let’s not mince words and call their murderers what they are. And do what we can do defeat them.

Monday, June 19, 2006


I just started reading Justice Scalia's opinion in Rapanos v. United States, and had to stop to make this short post. I had not followed this case, nor any of the commentary prior to the opinion, nor have I really read any commentary after the opinion was issued. I must say that my reaction to the opening paragraph of Justice Scalia's opinion is utter disgust. Here is the opening paragraph:
In April 1989, petitioner John A. Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and sought to develop. This parcel included 54 acres of land with sometimes-saturated soil conditions. The nearest body of navigable water was 11 to 200 miles away. . . .Regulators had informed Mr. Rapanos that his saturated fields were 'waters of the United States'. . . . that could not be filled without a permit. Twelve years of criminal and civil litigation ensued.
The entire set of circumstances indicated in this opening paragraph I find appalling. Twelve years of criminal and civil litigation over a property owner developing his own property because government told the owner his property represented waters of the United States. Oh my. How would a person ever come to be owner of "waters of the United States" if it were really true that his land was not land but instead water? Oh, I forgot, Congress can't just regulate waters of the United States, the water in question must be navigable water, at least according to the Constitution. Oh my. . . .sometimes saturated land = navigable waters!!!!!

Note it is now some 17 years of litigation later than the United States Supreme Court cannot even today see that Congress should have no constitutional power to regulate the use of Rapanos's land. WE ARE TALKING ABOUT LAND. WE ARE NOT TALKING ABOUT NAVIGABLE WATERS OF THE UNITED STATES.

Can government really be more unjust than this? 17 YEARS. How is it possible that our system of political economy could be so messed up? Apparently there are learned justices, learned attorneys, and learned law professors who by some means can come to think it is legitimate in a system of political economy such as ours to cause so much trouble for a property owner because they somehow find it rational to conclude that "sometimes saturated land" is the same thing as "navigable waters."

How disheartening.

Eminent Domain Jokes

I linked to a news story over at Eminent Domain Institute about an interesting use of the power of eminent domain. Here is how the story sounds to me:
If I understand the story line here, I'm thinking someone is telling a joke: 'You see, there was this guy in Framingham. He's the guy who owns Ken's Steakhouse, but his name isn't Ken. It's Timothy. Over 10 years ago now, government told Tim that it was going to take his property over on Worcester Road because it needed it for a Turnpike or a parking lot or something. Tim got kind of mad at the idea so he took government to court to try to keep his land from being taken. Of course, the court was a government court, and the court said Tim couldn't stop government from taking the land, that it was important for the Turnpike Authority to have his land for a parking lot or whatever the Turnpike Authority thought it was important to have the land for. So Tim's land got taken by government for the Turnpike Authority to own. Now after that, the Turnpike Authority built a parking lot, but almost no one ever uses it. And, there is an old 'historic' building called the Rugg-Gates house that no one uses either, and that the Turnpike Authority doesn't even try to keep up. It just sits there now, on what used to be Tim's land. So, Tim carries this grudge about all of this over the years. And, now, over 10 years later Tim gets a bright idea. He goes down to city hall and asks the city to take the property by eminent domain from the Turnpike Authority, and then give it back to him (the rightful owner of course). After all, there is an old blighted building on the property, and almost no one ever parks in the lot. Tim promises that if the city government will take his property back from the Turnpike Authority that he will pay out of his own pocket the amount of money the city has to pay in just compensation for taking his land back. But there's more, Tim promises economic development because if the city takes his land back he will build a new restaurant on his old land, land that almost no one makes any use of right now. He's thinking he might call this new restaurant Tim's Steak House. . . . .'

Wednesday, June 14, 2006

Half-Empty Media?

"MORE BAD NEWS FOR BUSH: 'Aided by surging tax receipts, President Bush may make good on his pledge to cut the deficit in half in 2006 — three years early.'

The New York Times headline: 'Bush deficit reduction plan falls off-schedule.'"
Huh? Nice, accurate headline, eh? Should we say the New York Times is the half-empty media?

Tuesday, June 13, 2006

The Fuller Court & Economic Prosperity

Mancur Olson suggests there are 2 necessary conditions for economic prosperity: (1) strong protection of property rights, including enforcement of contracts, and (2) minimum economic predation or rent seeking. I've posted on Olson's necessary conditions before, e.g., here and here. I'm interested in looking at the Supreme Court's opinions from the perspective of theses necessary conditions for economic prosperity. I think the so-called Lochner era of Court constitutional jurisprudence got many opinions correct from the point of view of economic prosperity, and that means the Lochner opinion is one of my favorites.

It was the Fuller Court (1888-1910) that decided Lochner in 1905. Today, many in the judiciary, as well as many in the law schools, see Lochner as a foolish mistake. Many even assert that not only the Lochner opinion, but more generally the Fuller Court’s general jurisprudence regarding regulation of the economy was either a radical departure from earlier Court jurisprudence or was primarily an effort by the Court to protect the interests of the business community.

James W. Ely, Jr., explains in The Fuller Court that neither of these negatives views of the Fuller Court make sense. Most importantly from my perspective, the Fuller Court was not a departure from the past, nor was it a political court seeking to protect a specific segment of our system of political economy:

Fuller and his colleagues built upon a constitutional tradition that assigned a high value to property rights, private economic ordering, and limited government. Recall that protection of property rights had been a central concern of the Court under Chief Justice John Marshal (1801-1835). Closer to Fuller’s era, the Supreme Court under Chief Justice Morrison R. Waite . . . also manifested its willingness to uphold the rights of property owners. . . .

The Fuller Court, therefore, represented not a sharp break with the past but a flowering of time-honored themes of constitutionalism. . . .

An essential element of Fuller Court jurisprudence as the traditional Anglo-American premise that the law should safeguard private property in the name of liberty. For Fuller and his colleagues property and liberty were inseparable, and both were closely related to freedom of contract and private economic ordering. Like most Americans of the age, the justices of the Fuller Court tended to define liberty primarily in economic terms. . . .The Fuller Court championed private property and contractual freedom in order to limit the reach of government and thereby protect liberty.

The Fuller Court’s solicitude for the rights of property owners stemmed from utilitarian considerations as well as philosophical imperatives. Investment capital was vital to finance economic development. Associating the security of private property with industrial growth, Fuller and his colleagues persistently sought to protect capital formation. . . . (189-190)

I think it is important to note that the Fuller Court’s jurisprudence, as described by Ely, fits very well with Olson’s necessary conditions for economic prosperity. Specifically, the Fuller Court’s jurisprudence emphasized the protection of economic liberty by safeguarding property rights and enforcing the freedom to contract. Further, it seems that a reason for such commitments to property and contracts was an interest in securing the types of property rights that would encourage saving and investment, and the development of the capital markets that would allow people to look to the future. In addition, because the Fuller Court represented a “flowering of time-honored themes of constitutionalism,” one reads in Ely’s book an indication that the Constitution, as well the opinions of the Supreme Court, was consistent with the institutional framework for a system of political economy that would promote and encourage the economic choices of people that allow the development and enjoyment of economic prosperity over time.

But, there was also an interesting tension in the Fuller Court’s opinions between the protection of property rights and a commitment to federalism also found in the Constitution.

. . .Consistent with its dedication to a limited federal government, the Court was anxious to preserve the traditional distribution of power between the national and state government. Consequently, Fuller and his colleagues tended to defer to state governance of criminal justice, race relations, and public morals. This belief in federalism also led the justices to reject an expansive application of the Bill of Rights to the states.

. . . .Not only were most state business regulations upheld, but the justices hoped to maintain a balance between federal and state authority over the economy. . .

. . . . In the late nineteenth century state legislatures, acting under their police power to advance public health, safety, and morals, took the initiative in seeking to harness the new economic forces transforming America. Such exercises of state authority often impinged the prerogatives of property owners and employers, stimulating a stream of legal challenges. (190-191)

It seems to me that while the Fuller Court protected economic liberty well against the United States Congress, it did not do well in general with respect to state legislatures, and this is really the tension Ely notes. Perhaps this tension between what appears competing values might seem a “natural” tension found in the Constitution itself, but I think the tension may result from a definition of police power that was not consistent with government’s role as the protective state. The quotes above from Ely’s discussion point to where I think the problem can be found, i.e., in defining police power so broadly as to include public morals as well as public health as involving issues that are really private rather than public.

Many issues can and should be left to state legislatures, and this is surely the point of principles of federalism for the organization and structure of government in our system of political economy. Saying this does not preclude the Court constraining state legislative power when economic liberties are threatened by state legislatures. Police power should be defined primarily from the perspective of individual liberty by saying that such state government power involves using force and coercion to reduce or minimize the actions of some that harm the person or property of others. I do not see “public morals” as fitting within this definition. I suggest there are only private or individual morals. The term “public morals” has been used largely in ways that amounts to some in the community trying to enforce their own view of moral behavior on others in the community. The term “public health” has been used in similar ways, not just when the policy issue involves risks to life and health from communicable diseases.

My sense is that while the Fuller Court was quite good with respect to Congress in constraining the national legislature’s efforts to infringe property rights, and in constraining the national legislature’s efforts to embrace rent seeking legislation, it’s federalism encouraged state legislatures to infringe property rights and contracts, and it encouraged states to engage in rent seeking legislation. Some may argue that this is indeed the constitutional structure for state versus national governments in our system of political economy, I suggest a more sound and consistent definition of the police power reserved for state governments would have strengthened the institutional foundations for economic prosperity.

Sunday, June 11, 2006

Kennedy Special Interest

In the Washington Post:
"More than 130 wind turbines are proposed for the hilltops of central Wisconsin, but that project and at least 11 others have been halted by the Defense Department as it studies whether the projects could interfere with military radar.

Wind farm developers, Midwestern legislators and environmentalists say the farms pose no risk, noting that there are already numerous wind farms operating in military radar areas. They say a renewable, domestic source of energy such as wind is crucial to energy security and independence.

They say their wind turbines are victims of the ongoing dispute between Cape Cod residents and developers of the proposed Cape Wind farm in Nantucket Sound. The Defense Department study was put in the 2006 Defense Authorization Act -- inserted, say wind farm developers, by senators who want to block Cape Wind."

I wonder which Senators might want to block Cape Wind? I've read in the past that the Kennedy family was opposing the project. Should we guess that Senator Kennedy was involved in inserting the study in the defense appropriation bill?

I wonder if the news article even mentions Senator Kennedy? Yes, here is the mention:

"Critics of Cape Wind, including Sen. John W. Warner (R-Va.) and Sen. Edward M. Kennedy (D-Mass.), have said that the 130 proposed turbines about six miles offshore would hurt views, tourism and migratory birds."

But, I still wonder which Senator or Senators inserted the study in the bill?

Supreme Court justices are supposed to recuse themselves from matters bearing on their personal interests. Perhaps members of Congress should have to recuse themselves from participating (proposing studies) in issues bearing on their personal interests, unless of course we want members of Congress to essentially be their own personal special interest group, eh?

Friday, June 09, 2006


GLENN REYNOLDS points to what looks like more earmark corruption.

What They Fight For

Scott Adams:
Al-Qaida issued a statement saying, “We want to give you the joyous news of the martyrdom of the mujahed sheik Abu Musab al-Zarqawi. The death of our leaders is life for us. It will only increase our persistence in continuing holy war so that the word of God will be supreme.”

Death Tax Deceivers

Yesterday, a Democrat filibuster in the Senate continues the death tax. Here is an except from WSJ.com commentary ($$$):
"But special credit belongs to four Democratic Senators who voted against repeal yesterday after they'd run for office pledging the opposite. They are Evan Bayh of Indiana, who perhaps had in mind Democratic Presidential primary voters, not the home folks who elected him; Mary Landrieu of Louisiana; Mark Pryor of Arkansas; and Ron Wyden of Oregon. These flip-floppers voted not only to retain the tax but to increase it -- from zero in 2010 back to 55% in 2011 and forever after.

Mr. Pryor's Web site says he 'supports the permanent repeal of an estate tax.' No word as to when that comes down. Ms. Landrieu and her colleague Maria Cantwell of Washington were so torn on the vote that Senate Minority Leader Harry Reid wouldn't let them out of his sight until it was over. These Democrats no doubt fear the fate of former South Dakota Senator Tom Daschle, another Dem who supported the tax in 2004 and was dispatched to private life by current Senator John Thune, a Republican. In 2008 South Dakota voters will get a crack at Tim Johnson, their other Senator, who cast his vote for the death tax.

And an honorary flip-flop award goes to New York's Hillary Clinton, who during her 2000 Senate campaign declared: 'You ought to be able to leave your land and the bulk of your fortunes to your children and not the government. . . ."
I agree, don't you? You ought to be able to leave your land and any remaining fortune to your children and not to Congress. Too bad these 5 politicians can't agree with themselves on this.

Ethanol Efficiency?

Many have pointed to ethanol as an alternative to "our dependence on foreign oil." The interest in ethanol as an alternative energy source has led to many studies, and apparently a significant dispute over whether ethanol requires far more energy in production than is returned for use as a fuel. The Wall Street Journal ($$$) has an interesting discussion of this issue written by Carl Bialik, "The Numbers Guy". He makes the following observation:
"It can be disorienting to discover that reputable researchers can so seriously disagree on a single number. In an article last month, the Toledo Blade counted studies, as if that might help settle things. The newspaper noted Prof. Pimentel's work, and added, 'Five other researchers have done studies and agree. Thirteen other studies, including one paid for by the Department of Energy, show the opposite.'"
I guess I don't find this disagreement surprising. After all, I've written here on numerous occasions that when science and politics meet, politics wins.

Perhaps in this issue we can once again see the beauty in the economic analysis of public policy. A sure way of discovering if ethanol is "efficient" is to let the market test the hypothesis.

Thursday, June 08, 2006

Noonan on Immigration Politics

PEGGY NOONAN has an interesting commentary on politicians and the immigration issue:
"A thought today about complexity and politics.

The American people right now are not in a mood to trust any political plan, proposal or policy that seems complicated--highly involved, technical, full of phased-in elements and glide paths and Part C's.

They are against complexity not because they don't think life is complex. They know it's complex. They know it because they live it every day. They assume public policy issues are also complicated. They know there are facts they don't know, which probably have to be factored in as policy is developed. But more and more they recoil from complicated, lengthy, abstruse proposals.


Because they think--they assume, at this point, reflexively--that slithery, slippery professional politicians are using and inventing complications to obfuscate and confuse. They think politicians are using complexity to create great clouds in which they can make their escape, like a cartoon character, like Road Runner.

They think modern politicians hide in complexity. They think politicians evade responsibility with it. We can't do the right thing, it's too complicated! Americans don't trust 'comprehensive plans,' because they don't trust the comprehensive planners.

This, I think, is the essential problem with Congress's immigration proposals. All the phased-in-partial-assimilation-glide-paths-to-guest-worker-status stuff seems like a big 500-page con. It's all too complicated to be understood by anyone who's not a tenured political science professor with a second degree in accounting.

What people will trust, and understand, is this: We will close the border tomorrow, and then figure it out from there."
I agree with her that many of our fearless leaders in Washington hide behind assertions of "complex" issues. I'm not so sure she is correct in suggesting that people see the assertions of complexity for what they really are.

Tuesday, June 06, 2006


Michael Yon's essay offers context for Haditha. Here are a couple of excepts I hope will capture your attention so you will read his entire piece:
The enemy rammed a car bomb into a Deuce Four Stryker in Mosul while kids were all around. They could have just as easily attacked our men a few blocks away from the kids. Instead, they cruelly wounded 15 children and killed two of them. I saw American soldiers furiously trying to save one little girl named Farah. One American officer, Major Mark Bieger, actually took Farah and her family in his Stryker and raced them all to the hospital. We needed that firepower at the scene in case of follow-on attack — we were in fact attacked there the next day — yet Major Bieger and his section, with permission from LTC Erik Kurilla who was on the scene, raced through the streets of Mosul to the hospital. Unfortunately, Farah died, and on that day some of our soldiers cried.

[ . . . ]

Ben was the first up the stairs, and he took four bullets. Only then did his buddies throw flash-bangs and eventually shot down the terrorist who killed Ben. All the Iraqi kids were fine. But Ben Morton died. Soldiers cried that night.

[ . . . ]

I visited their grave. We lost two fine Americans, and their parents lost their children, because our people are taught to control their fire.

[ . . . ]

Until the facts are released by the investigating authorities, we might benefit from a new sign:
Speculating is Strictly Forbidden —
Violators Will be Fined

What They Fight For

"Why don’t they just blow up the city and erect tents instead? It would make life much easier. We could go to school or work riding on camels. We could sit at the mosque all day, stroking and scratching our filthy beards and waiving flies away, while our women recline in their harems.

In short, they are trying to take us back to the 7th century, so we can experience the simple life of the prophet and his pious companions. We should abandon everything and anything that was not available at the time of the prophet in order to be true Muslims.

Yet the followers of this simplistic, backwards ideology have no problem with using hi-tech explosives, IEDs, machine guns and RPGs. According to their sick creed, it is not against Islam to detonate a car bomb at a bustling market or to shoot a kid twice in the head because he had gel on his hair. No, that is okay in Islam."

More Sowell on Immigration

"Far from 'controlling the borders' as advertised, this bill reduces our existing control of the borders. Under a provision inserted at the eleventh hour by Senator Arlen Specter, the Senate bill forbids the federal government from building a fence without first consulting with the Mexican government.

In fact, state and local governments are also forbidden by this bill to take any border control actions without first consulting with their Mexican counterparts. In other words, if the city of San Diego wants to put up any sort of barriers, it would have to consult with the municipal authorities in Tijuana before doing so.

This legislation was never about border control. The laws already on the books at this very moment allow us to control the borders, to build any fence we choose, without consulting the government of Mexico.

The laws already on the books allow any illegal alien to be arrested and expelled. Those laws are simply not being enforced. If a Los Angeles policeman arrests an illegal alien and reports him to the federal authorities, it is the Los Angeles cop who will be in big trouble."
What is going on with our fearless leaders in the Senate? Talk, talk, talk, and so much of their public talk seems aimed at fooling us.

It seems to me the first thing the current immigration policy debate should be about is "enforcing our borders," or can we just say, enforcing our laws. The fundamental purpose of government is as the protective state, and the government in Washington seems to simply be trying to avoid that fundamental responsibility.

Sowell also writes:
"In other words, we have make-believe border control and the current Senate legislation will weaken even that, all the while talking about "tough" enforcement. That "tough" enforcement is a promise but legalizing illegal aliens is immediate and irrevocable and its consequences irreversible and lasting far into the future.

"Border control" is just political cover for legalizing illegal aliens. The two things are put together in a package deal that is like horse-and-rabbit stew, whose ingredients are one horse and one rabbit. Border control is the rabbit.

The word games played about "amnesty" deliberately confuse the issue of violations of American law with the issue of acquiring American citizenship.

The fact that the Senate bill has requirements -- described as "tough," like everything else -- for acquiring citizenship is irrelevant to the question of letting the violations of law go unpunished."

Monday, June 05, 2006

Senate Unconstitutional

Now here is something interesting. Robert Novak discusses recent secrecy and unconstitutional actions by the Senate:
"On May 23, as the Senate raced toward passage of the comprehensive immigration bill before their Memorial Day break began, Sen. Charles Grassley moved the adoption of a new Title III to the measure. It passed easily without anybody mentioning that the amendment raises revenue, which was a violation of the U.S. Constitution's requirement that all such measures originate in the House of Representatives.

That adds another new obstacle to the formidable task of reconciling seemingly irreconcilable Senate and House immigration bills. To surmount the constitutional problem, Senate Majority Leader Bill Frist, in effect, must pass a new bill -- either under a procedure requiring unanimous consent or starting over with a bill subject to amendment. Considering the negative comments about the bill that senators heard from constituents last week, this may encourage new legislative attempts to control immigration.

There is no sign that Grassley intentionally sought to sabotage the immigration bill. Rather, what happened May 23 appears an extension of his normal procedure as Senate Finance Committee chairman to keep what he and his staff are doing shielded from colleagues, not to mention the public. While Grassley was amending the immigration bill, it also became known for the first time that he had quietly enacted -- and President Bush had signed -- a retroactive tax increase on Americans living abroad.

The Grassley touch on taxes may seem distinctive, but it fits the pattern of secrecy in the 21st-century Senate. When I told a senior Senate staffer last week that as a reporter I had no idea of what was happening to legislation, he replied that he had trouble keeping up himself even though this is his full-time occupation."
I think it is bad enough the Senate explicitly violated the Constitutional provision that revenue increasing measures must originate in the House. But what are we to make of Novak's reference to "the pattern of secrecy in the 21st-century Senate?" Do the fearless leaders in our Senate seek to serve their constituents? Or, do they seek to serve themselves at the public expense? If our Senators tend these days to a "pattern of secrecy" perhaps many of them no longer seek to serve their country nor their constitutents?

Friday, June 02, 2006

Protests Iran

Read Gateway Pundit for some of the details.


Dan Murphy & Awadh al-Taee:
"Former resident Aqeel says once the insurgents moved in, his neighbors began joining their ranks.

0ne Sunni Arab neighbor had joined the insurgents, and explained their choices of targets, he says. 'This guy told me that 'if we focus on the Americans they grind us into dust,' ' says Aqeel. 'So they prefer to hit the Iraqi police, Shiites, translators, people they think are too secular. That's easy for them.'

Aqeel decided to move his family to a Shiite district after going to buy groceries on Public Works Street one afternoon in early February. While there, a white Opel with four gunmen screamed to a halt at that corner, pulled a bound man from the trunk, shot him twice in the head and sped off.

And, more often than not, Shiites were the ones targeted.

'They started killing Shiites, just one every couple of days, in November 2004,'' says Harith, who remembers his first neighbor killed was Umm Saad. The 70-year-old widow ran the small grocery that he and his classmates used to crowd into after school when they were kids.

'Then this year it expanded. You'd see bodies on the streets all the time. A policeman was left dead in his car on my street for 24 hours, until I went to the National Guard and told them to collect the body.'

"I now see that, little by little, Amariyah was falling under takfiri control,'' he says, using the popular pejorative term for Sunnis who share Al Qaeda's vision of an intolerant and violent Islam.

In late April, the neighbors to the right of his home, also Shiites, made the mistake of bringing a moving truck when they decided to abandon the neighborhood, and were gunned down before they reached the highway.

In early May, his neighbor in a small house to the left - a divorced mother of two and a Sunni who worked as a maid, was gunned down. "She had been warned to stop working." Harith and his family fled soon after - leaving all their possessions behind."
Read the whole thing.

[Via The Mudville Gazette]