Archive for the Constitution Category

A Final Conversation with Ken Gordon

Ken Gordon was always baffling to me—how could such an intelligent man be wrong about practically everything? Gordon was one of my favorite Democrats despite our frequent disagreements, and I was saddened to learn that he passed away suddenly Sunday.

If memory serves, I first met Gordon in the political aftermath of the horrific Columbine High School murders, when he wanted more restrictive gun laws and I defended people’s right to keep and bear arms. Among other things, Gordon wanted additional liability for gun owners; I argued the laws he proposed would be used to persecute gun owners and that existing laws adequately addressed such matters as child endangerment.

More recently, Gordon and I tangled over the campaign finance laws; you can view a first and second debate between us.

Just a couple weeks ago Gordon and I exchanged emails on the subject. Sadly, that is the final conversation we will share. I thought I’d reproduce it here in his honor.

On December 10, Gordon sent out an email to a list to the effect that people don’t like big money in politics. I thought I’d get in a quick dig by pointing out that, in the recent recall elections in which two Colorado Democrats lost their seats in the state senate, the politicians lost despite huge spending advantages. I wrote, “Yes, isn’t it just wonderful that Morse, Giron, and Am. 66 lost despite radical spending advantages?”

He responded:

You are cherry picking examples to suit your position. In the vast majority of cases the most well funded candidate wins, and you know this. Are you in favor of unlimited contributions and expenditures in campaigns? If so you are in favor of a Congress similar to the current one which cares more about the capital gains rate than it does about hunger, because that is what the funders care about.

A libertarian philosophy leads to vast concentrations of wealth and political power in the hands of the few and the destruction of the concept of political equality.

Ken

I wrote back:

“You are cherry picking examples to suit your position.”

I wasn’t making an argument here; I was merely responding positively to your point that many people do not respond to high-dollar campaigns.

“In the vast majority of cases the most well funded candidate wins, and you know this.”

In most cases, a candidate is well funded because the candidate has a lot of popular support. To a substantial degree you’re reversing cause and effect.

“Are you in favor of unlimited contributions and expenditures in campaigns?”

Yes. If contributions are limited, then who is doing the limiting? The answer is government. When government forcibly prevents people from spending their own resources on speech, then that’s censorship, and I oppose censorship.

“If so you are in favor of a Congress similar to the current one which cares more about the capital gains rate than it does about hunger, because that is what the funders care about.”

That’s a non-sequitur. (As a matter of fact, I think Congress should be involved with capital gains at the same level that it is involved with hunger, which is to say not involved at all.)

“A libertarian philosophy leads to vast concentrations of wealth and political power in the hands of the few and the destruction of the concept of political equality.”

a) I’m not a libertarian. b) My political philosophy calls for minimal political power, such that it can be concentrated neither in the hands “of the few” nor in the hands “of the many.” c) I advocate equal legal protection of individual rights, not coercively achieved “equality” of outcomes.

Thanks, -Ari

He replied:

Well I think we agree on some of this.  I don’t want coercively achieved equality of outcomes. I want equal opportunity, including the opportunity to fail.  To me this seems to be an argument for a good public education system.  How do you feel about this?

Ken

I thought we’d already had a pretty ambitious email exchange for one day, and I didn’t want to get into a deeper discussion about “public” education, so I let the matter go.

I was always pleased when I helped beat Ken in his political battles and always sorry when he beat me. But I was honored to trade barbs with him, and I’ll miss the opportunity to do so again.

How State Legislatures Can Initiate a Balanced-Budget Amendment

The U.S. Constitution has been amended 27 times. Never has it been amended by state-initiated conventions. Robert Natelson, a law professor for 25 years who now works with the Independence Institute of Denver, hopes to change that. Specifically, he hopes to help persuade state legislatures to initiate and then ratify one or more amendments to restrain federal spending. With a national debt of $16.4 trillion and growing, that may be the only hope for fiscal sanity.

Natelson explained the history and purpose of Article V at Liberty On the Rocks, Flatirons, on January 14. Here is his main presentation.

Natelson also answered a variety of questions about Article V amendments. Here he addresses the problem of state dependence on federal funding, generating grassroots support, passing state measures close enough in wording to trigger a convention, the myth of the “runaway convention,” and the need for “eternal vigilance.”

Does the U.S. Constitution allow for secession? No, argues Natelson:

Natelson argues the Supreme court of the late 1930s and 1940s largely failed to uphold the U.S. Constitution:

Would an Article V convention “run away” into an unrestrained effort to rewrite the Constitution? Did the participants in the Constitutional Convention act within their established authority? Natelson addresses both questions:

Natelson addressed one final question. What were the reasons for the adoption of the Seventeenth Amendment, which allowed for the direct election of U.S. Senators? There were real problems with the old system, Natelson argues.

Image: Independence Institute

Notes on Money in Politics

This evening I’m scheduled to talk about money in politics with a local college class. As I’m looking up some articles for this purpose, I thought I might as well provide some links and discussion here.

The main point of this evening’s discussion is to debate Amendment 65, about which I have written and spoken at length. Please see my collected commentary and links. However, my hope is to take the conversation in a broader direction tonight. The main question I want to examine here is how much “big money” actually influences politics. Of course, this issue represents only a small slice of the discussion, but a relevant one.

The main thesis in this regard is a simple one: People have brains. We are not mindless automatons, zombies passively influenced by whatever advertisements impinge on our senses. Rather, we have the capacity for reason, for thinking critically about the messages we see. When we’re talking about money in politics, we’re talking about people spending resources in an effort to persuade others (voters) to behave in a certain way. Because people have reasoning minds, the impact of money in politics is necessarily limited.

Let’s begin with some comments from Steve Simpson (shown in the photo), whom I interviewed this summer:

There are too many examples of expensive advertising flops or rich candidates who lost elections to take seriously the claim that money buys elections. Ross Perot, Michael Huffington, Meg Whitman, Jon Corzine—the list of candidates who have spent huge amounts of money and lost goes on and on. A certain amount of money is necessary to be a contender in an election. Beyond that, candidates win or lose because they have messages and support policies that the voters like.

To take a Colorado example, last year, Colorado voters rejected Prop. 103, a school tax measure, by a margin of 63 to 37 percent—an overwhelming defeat by any measure. And yet, as the Denver Post reported, “Supporters raised more than $600,000 in the effort to pass 103, while opponents raised less than a tenth of that.”

In 2003, Colorado voters rejected Referendum A, concerning water bonds, by even bigger margins: 67 to 33 percent.

A Denver Post article from November 5, 2003 (“Colorado In ‘No’ Mood,” by Joey Bunch) reviews:

Referendum A appeared headed for easy passage. Owens put his campaign aces on Referendum A and helped raise more than $750,000 to promote its passage.

He collected huge donations from corporations and residential developers.

The opposition group Vote No on A raised less than half that. High-profile opponents included Attorney General Ken Salazar and former governors Dick Lamm, Roy Romer and John Vanderhoof.

Moving to broader studies, Stephen Dubner summarizes a paper by his Freakonomics coauthor Steve Livitt finding that a candidate can double or halve campaign spending and impact the outcome only by a point in either direction.

Dubner continues:

What Levitt’s study suggests is that money doesn’t necessarily cause a candidate to win—but, rather, that the kind of candidate who’s attractive to voters also ends up attracting a lot of money. So winning an election and raising money do go together, just as rain and umbrellas go together. But umbrellas don’t cause the rain. And it doesn’t seem as if money really causes electoral victories either, at least not nearly to the extent that the conventional wisdom says. For every well-funded candidate who seems to confirm that money buys elections (paging Michael Bloomberg), you can find counterexamples like Meg Whitman, Linda McMahon, Steve Forbes, and Tom Golisano.

Dubner also rounds up the views of other economists, including Jeff Milyo, who writes:

[L]arge shocks to campaign spending from changes in campaign finance regulations do not produce concomitant impacts on electoral success, nor do candidates with vast personal wealth to spend on their campaigns fare better than other candidates.

These findings may be surprising at first blush, but the intuition isn’t that hard to grasp. After all, how many people do you know who ever change their minds on something important like their political beliefs (well, other than liberal Republicans who find themselves running for national office)? People just aren’t that malleable; and for that reason, campaign spending is far less important in determining election outcomes than many people believe (or fear).

But what of the left’s endless incantation, “Corporations aren’t people!” Besides the obvious fact that corporations are composed of individual people, each of whom with rights, it just ain’t true that corporate spending dominates politics.

Steve Chapman writes for Reason: “Of the $96 million donated to these political operations [Super PACs], 86 percent has come from individuals and less than 1 percent from publicly traded corporations. Major companies almost unanimously have concluded that they have more to lose than gain by wading into polarizing political campaigns.”

“But what about the rich people?!” The advocates of Amendment 65 explicitly call for the censorship of “the rich”—so apparently the wealthy aren’t people, either.

The problem of money in politics is not much of problem. But the “solution” of censoring political speech is extraordinarily dangerous. Liberty can survive stupid campaign ads. It cannot survive censorship.

Related:

Image of Steve Simpson: Institute for Justice

An Open Letter to My Westminster Neighbors

Update: The police have made an arrest in the Jessica Ridgeway murder. Remember that due process matters, the evidence matters, and suspects are presumed innocent until proven guilty. Yet, the possibility that this may be the guy, and that the perpetrator might now be off the streets, is a huge relief. Thank you, law enforcement, for your diligence.

Dear Westminter Neighbors,

The murder of Jessica Ridgeway has horrified the residents of the city.

Although we read about horrific crimes daily in the paper, this crime struck close to home. I have taken my nephews to play at Witt Elementary, the very school that Jessica attended. My wife and I vote at that school. My wife has walked alone on the very trails where a man tried to abduct a woman earlier in the year—the same man police suspect is responsible for Jessica’s murder.

We all want the perpetrator caught.

But not all means are justified toward that end.

When a neighbor told me that police asked to search her house, without cause, merely as part of a fishing expedition, I was surprised. I was proud of her for respectfully declining.

When I saw a claim on Facebook that police were swabbing people for DNA, I was shocked. And yet, “Investigators have gathered DNA samples from about 500 people as they search for Jessica Ridgeway’s killer, 9Wants to Know has confirmed.”

I hate to state the obvious here, but if the police have 500 “suspects,” that means the police have no suspects.

Although it is a reasonable guess that the perpetrator of this heinous crime is still in the area, apparently the police have no idea where the perpetrator lives, whether he ever resided in the area, or whether he is still in the area.

Now, I suspect that the real value to the police in asking for DNA samples is simply in observing how people respond to the request. (I don’t know whether the police actually have DNA from the perpetrator collected from the crime scene; I hope so.) Honestly, I have a hard time thinking badly of police officers who resort to this tactic; the desperation to arrest the perpetrator is palpable.

However, I do urge my neighbors—including members of the Westminster Police Department—to remember their Fourth Amendment rights and responsibilities. This is an excellent time to review the language of that important amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If the police ask to swab your cheek for a DNA sample, or to search your house without cause, the only appropriate answer by any self-respecting citizen is “no.”

We are citizens of a free republic, not subjects of a police state.

If the price of capturing a heinous murderer is to surrender our basic rights, then the price is too high.

However, as a practical matter, generally the police do far better to conduct a real criminal investigation rather than to go on fishing expeditions. Seriously, how many hours have the police wasted swabbing and testing (if the testing is even done, which I doubt) essentially random men in the area? Police officers could have spent that same time employing other, and likely more effective, means of investigation.

I am fully aware of the danger posed to the community by a callous and cowardly murderer—a man who brutalizes innocent and defenseless children—who may still be in the area. However, a far greater threat to our lives and safety would be the creation of a police state. America’s Founders hardly were ignorant of the evils of which men are capable. And yet they learned, by the examples of history as well as by their own hard experiences, that the police powers must be restricted. The Fourth Amendment is not some utopian scheme that prevents the police from doing their jobs; it is a needful recognition of our basic rights and of appropriate limits of police power.

In a previous article I used the term “civilian” to distinguish those who are not police. Someone appropriately corrected me. The police too are “civilians.” They are civil servants. Properly their job is to protect people’s rights, to act as peace officers. For the most part, based on what I’ve read in the media, I’ve been impressed by the way the police have approached this difficult and painful case. These police officers are our neighbors, too. We respect the rights-protecting work you do. I ask the police, as their neighbor and fellow citizen, that you stay focused on your mission of protecting individual rights, and not lose sight of the letter or the sprit of the Fourth Amendment.

If by some chance the perpetrator of this heinous crime reads this post, I say to you this: We are not your neighbor, we are your sworn enemy. We are watching, and we will do what we can to bring you down. Now, I cannot speak for the prosecutor, but I suspect that, if you voluntarily turn yourself in and throw yourself on the mercy of the court, you will have a better chance of avoiding the death penalty, as richly as you deserve it.

I do hope my neighbors remember that nearly everyone around us is a good, hard-working, family-loving person. It’s easy to be overwhelmed by the horror of a crime such as this one. But the goodness of humanity is revealed all around us, every day. Let’s remember that.

Sincerely,

Ari Armstrong

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The Secret Big Money Behind Amendment 65

Does it strike anyone but me as ironic that those wanting to “get big money out of politics” are spending big money to promote their political agenda?

Three groups are registered “Issue Committees” to promote Amendment 65, the Colorado ballot measure seeking a U.S. amendment allowing politicians to restrict campaign spending (i.e., censor political speech).

Those groups (and their leaders) are Coloradans For Equal Opportunity (Mary Phillips), Coloradans Get Big Money Out of Politics (Elena Nunez), and Fair Share Committee to Get Big Money Out of Politics (Kirsten Schatz). (There is no group registered against the measure; obviously a few individuals, including me, have spoken against it.)

The first group hasn’t raised much money. The other two groups, however, have raised and spent significant funds. Following are the amounts raised, as reported by the Secretary of State:

Fair Share Committee to Get Big Money Out of Politics

October 1: $175,000 monetary contributions. Interestingly, that entire amount came from the Fair Share Alliance in Washington, DC.

September 17: $2,691 non-monetary contributions. Can you guess the source? Yes, the Fair Share Alliance.

September 4: $41,197.90 non-monetary contributions, all from Fair Share Alliance.

August 1: $365,689.96 non-monetary contributions, mostly from Fair Share Alliance (mostly for signature gathering).

Coloradans Get Big Money Out of Politics

October 15: $930 monetary contributions plus $7,469.60 non-monetary contributions, mostly from Common Cause. (Note that Elena Nunez is the Executive Director of Colorado Common Cause.)

October 1: $5,300 monetary contributions plust $6,799.14 non-monetary contributions, mostly from Common Cause. (A number of individuals made monetary contributions.)

September 17: $4,795.48 non-monetary contributions, mostly from Common Cause.

September 4: $35,371.04 monetary contributions plus $1,002.15 non-monetary contributions. This includes $12,921.04 in monetary contributions from Common Cause and $15,000 from People for the American Way of Washington, DC.

August 1 (amended): $81,881.96 monetary contributions plus $31,867.77 non-monetary contributions, mostly from Common Cause.

July 2: $165 non-monetary contribution from Colorado Common Cause.

* * *

In sum, two main groups, Fair Share Alliance and Common Cause, have dumped hundreds of thousands of dollars—mostly “secret” money funneled from one group to another—into the Amendment 65 campaign to “get big money out of politics.” Interesting tactic, that.

Related:

Image of Elena Nunez hosted by Picasa

Top Ten Reasons Why Colorado Amendment 65 Is a Truly Horrible Idea

I just released a short (2:45 minute) video summarizing my case against Amendment 65. The transcript, from which I strayed only slightly, follows. See also my main document on Amendment 65.

Colorado Amendment 65 asks politicians to support “an amendment to the United States Constitution that allows Congress and the states to limit campaign contributions and spending.”

Why is this a truly horrible idea?

1. Amendment 65 would impose censorship, giving government power to forcibly restrict who may speak, how they may speak, or what they may say.

2. Amendment 65 would, for the first time in the nation’s history, repeal a portion of the Bill of Rights. The First Amendment begins, “Congress shall make no law” restricting free speech. Amendment 65 says Congress should make such laws.

3. Amendment 65 threatens to violate people’s right to speak out on political issues, whether alone or as part of a group, such as a corporation or a union.

4. Any censorship law will leave so-called “loopholes,” leading to calls for additional restrictions. The logical and inevitable result is the censorship of documentaries, books, and newspapers, in addition to flyers and television ads.

5. Amendment 65 would give incumbent politicians the power to silence their critics. That is inherently corrupt.

6. Amendment 65 would give powerful interest groups a means to silence their opponents with less political power.

7. Amendment 65 would create bureaucratic hurdles for small groups to speak out, while large groups with tons of money would just hire more attorneys to find the loopholes and comply with the bureaucratic rules.

8. Although it is true that “money isn’t speech,” we must spend resources to publicly advocate our ideas. Censorship by restricting how people may spend resources on speech is still censorship.

9. It is not true that people who spend more “drown out” others’ voices. For example, Pat Stryker, who is worth $1.4 billion, has spend millions on Colorado politics, yet she has not restricted my ability to speak at all. The only party who can restrict my ability to speak is the government censor.

10. You have a brain! We have the ability to think independently about political ads. We don’t need to forcibly restrict them. I’m as annoyed as anyone by these political ads, but the price of free speech is that we have to put up with speech we find annoying or even abhorrent.

For more about why Colorado Amendment 65 is a truly horrible idea, please see my web page at AriArmstrong.com. See particularly “Colorado Amendment 65: An Assault of Free Speech.”

Colorado Amendment 65: An Assault of Free Speech

I regard the Colorado ballot measure Amendment 65 as a threat to freedom of speech. Here I collect my writings, talks, and videos on the matter. See also the information about Amendment 65 at the Secretary of State‘s web page or in the Legislative Council’s “Blue Book.”

On September 30, the Denver Post published my op-ed, “Amendment 65: An Intrusion On Our Right to Free Speech.” Following are some excerpts:

Amendment 65 . . . asks the foxes to guard the hen house. It asks incumbent politicians and their appointed bureaucrats to restrict the very speech that criticizes them. . . .

You have no right of free speech if you cannot spend your resources how you want on speech. With the possible exception of shouting over panhandlers on a street corner, every form of speech requires the expenditure of resources. . . .

Amendment 65 claims that, somehow, censorship will establish “a level playing field” for speech. But small groups are the ones that tend to get ensnared in speech restrictions, while big groups pay legions of attorneys to guide them through the inevitable loopholes. . . .

It is the government’s proper job to protect each individual’s right to speak freely, whether alone or as part of a group, not to forcibly silence some voices so that others face less competition.

On September 27, I spoke briefly at a forum in Wheat Ridge:

On October 2, I joined Amy Oliver on 1310 am to discuss Amendment 65. The complete audio file is available. One of the points I make is that, based on the premise that money corrupts politics, the last thing we should want to do is put corrupt politicians in charge of censoring speech.

Also on October 2, Mike Rosen spent his first hour discussing Amendment 65. He mentioned my Denver Post op-ed but spent most of his time discussing why the measure has no legal force.

Dave Kopel and Ken Gordon debated Amendment 65 on September 19; their hour-long discussion is well worth listening to.

I debated Gordon October 4 at an event hosted by AFGE 3607 Union. (My presentation begins at minute 16:56.) One lady asked about my views of mandatory disclosure. I answered her in brief following the formal presentation; you may read my more complete statement in an op-ed I wrote for the Colorado Springs Gazette last year. Here is the entire 44 minute debate:

October 6: Although overall I was pleased with my case when debating Ken Gordon, I decided that, on one point, I needed to further clarify my position. So I wrote an article for The Objective Standard blog, “When Politics Corrupts Money.” Here is an excerpt:

In hindsight, I should not have conceded, as I did, that “money corrupts politics” in some cases. True, some interest groups spend money on campaigns in the hope of receiving special government privileges, such as corporate welfare subsidies or coercive “protections” against their competitors. However, to concede that “money corrupts politics” wrongly implies that the modern political system is pure and noble until it is corrupted by money.

The proper way to describe the problem is that, within modern government, politics corrupts money.

Read the entire piece.

October 7: The Denver Post published three letters, two critical of me. Neither of those letters is remotely responsive to the arguments I made in my Post op-ed. Near the end of the first hour of his radio show on October 8, Mike Rosen discussed these letters and reiterated his reasons for opposing Amendment 65. Also, on October 11 the Post ran Rosen’s column criticizing the measure as “absurd and ineffectual.”

October 10: The Colorado Social Legislation Committee and the League of Women Voters of Colorado hosted a Denver forum on state ballot issues. As part of this forum, Elena Nunez of Colorado Common Cause and I debated Amendment 65:

October 11: I might mention a couple other Denver Post op-eds that support Amendment 65, one by Stephen Justino and another by Elena Nunez and Danny Katz, the primary sponsors of the measure. They do not raise any arguments that I do not address in my talks and articles. Luis Torro writes a tangentially related article in which he asks why the government should not impose “a consumer protection law for campaign ads.” The basic answer is three-fold. First, there are many ways to combat campaign deception, such as the newspaper article Torro cites. Second, libel law already does (or should) provide the legal remedy for egregious lies. Third, and perhaps most important, putting politicians and bureaucrats in charge of deciding which speech about politicians and bureaucrats is “truthful” is incredibly dangerous and inherently prone to abuse.

October 12: I had jotted down the link to Shawn Mitchell’s excellent article of a few weeks ago, “Progressive War on Speech and Liberty Continues.”

October 15: The October 12 edition of Westsider features a column by Andrea Doray, who contrasts free speech in America with oppression in various other nations. She writes:

When I tire of hearing the ads, especially the negative ones, I try to remind myself that free speech and freedom of the press make this knowledge available to me, and that I am able to make my own decisions and vote for the candidate of my eventual choice.

On October 13 I had the opportunity to debate Danny Katz of COPirg, one of the sponsors of Amendment 65, in front of the Jefferson County Democrats. I’m not sure the audio turned out well enough for me to release the video; but, anyway, I didn’t really cover any issue I haven’t covered elsewhere.

On October 14 I wrote an article for The Objective Standard, “Why Forcibly Limiting Campaign Spending is Censorship—And Why it Matters.” I focus on the expansive nature of the censorship laws in question.

I released a short video (2:45 minutes) summarizing my case against Amendment 65, “Top Ten Reasons Why Colorado Amendment 65 Is a Truly Horrible Idea.”

October 16: Watch Dave Kopel debate Elena Nunez. Kopel argues: “The fundamental point is that the First Amendment protects the right of everyone to freedom of speech. Whenever the government gets in the business of limiting freedom of speech, it will be to the benefit of the incumbent politicians.”

October 18: Today The Objective Standard published my article, “The Egalitarian Assault on Free Speech.” I explain why the left’s egalitarianism in the realm of economics has led it to advocate censorship in the realm of political speech.

Also, my debate with Ken Gordon about money in politics and Amendment 65 is now online:

October 21: This is a secondary issue, but I do think it’s an interesting detail that two main groups, the Fair Share Alliance and Common Cause, have dumped hundreds of thousands of dollars into their campaign to “get big money out of politics.” See my write-up.

October 31: The Denver Post‘s Vincent Carroll offers an excellent critique of Amendment 65, pointing out it could also lead to restricting how much money individuals may spend on their own races. He writes, “Amendment 65 is a quixotic attempt to take politics out of politics by trampling on our freedom.”

November 1: In preparation for discussing campaign finance with a University of Denver class taught by Andrew Romanoff, I prepared some notes. Also, the New York Times has compiled the basic statistics about spending on the presidential race this year. Honestly I was surprised to find that the overwhelming amount of spending came from the campaigns themselves, while PACs played a relatively small role.

Also, I thought Dave Kopel aptly summarized the nature of Amendment 65 for a Collegian article: “Amendment 65 is a blank check for government censorship of political speech.”

November 2: Please watch this excellent video from Learn Liberty on campaign spending restrictions:

Image: Ari Armstrong, Hosted by Picasa

Am. 65 Versus Free Speech

Yes, free speech can sometimes be annoying, but the only alternative to free speech is censorship, letting politicians and bureaucrats decide who may speak, how they may speak, and what they may say.

Colorado’s Amendment 65 calls for political control of campaign speech. Last night I delivered a short talk against it at the Wheat Ridge United Neighborhoods Election Preview Forum.

Alcohol, Tobacco, and Firearms Party 2012: Complete Video

Following is all the video I captured at the Independence Institute’s tenth annual Alcohol, Tobacco, and Firearms party. See also my previous post and my photographs.

I edited together some video of people shooting clay pigeons along with interviews with various participants.

Jon Caldara explains the purpose of the event. He says, “Freedom is not allowing people to do things that you approve of, freedom is about protecting people’s rights to do things you find distasteful.”

Dave Kopel defends the right to bear arms.

David Martosko of The Daily Caller offered the main talk of the day.

Given that Mitt Romney had just selected Paul Ryan as his running mate, I asked people what they thought about that.

Finally, Constitutional scholar Robert Natelson discusses the likely impact of the upcoming election on the course of the Supreme Court. He also says, “There’s already been a tremendous resurgence of popular understanding of the Constitution.”

Kopel on ObamaCare SCOTUS Ruling

Constitutional scholar Dave Kopel discussed the ObamaCare SCOTUS ruling July 9 at Liberty On the Rocks, Flatirons. He argued that, despite the court’s troubling ruling on the taxing power, in other ways the ruling provides important Constitutional protections of our liberties.

Kopel spoke for about an hour to a crowd of around fifty people; I extracted a series of ten videos encompassing most of his remarks.

Kopel began by discussing the commerce clause, noting that the ruling offers a relatively restrained reading of that clause more consistent with original understanding:

Next Kopel addressed the meaning of the “necessary and proper” clause, noting that the court’s ruling moved interpretation of that clause closer to original understanding:

What about Medicaid spending? Kopel points out that the Court’s ruling has profound implications for states’ ability to manage their own budgets.

Of course, the Court dramatically expanded the Congressional taxing authority, and that part of the ruling is the most problematic. Kopel discusses ObamaCare’s “Seinfeld tax on nothing.”

Did Justice Roberts make a “switch in time” because of political pressure? Kopel discusses the possibility:

What is the state of legal academia? Kopel argues that it was bad but that it is getting much better.

Is the Tenth Amendment meaningless? Hardly, argues Kopel.

Ultimately, the Constitution lives in the hearts and minds of the American people. “It is up to the American people to maintain our political system of constitutional liberty,” Kopel argues.

Judicial review is proper, Kopel argues, but not sufficient to maintain liberty.

Finally, Kopel discusses other possible legal challenges to ObamaCare.

See also Randy Barnett’s op-ed and interview about the decision.

Coloradans React to the ObamaCare Ruling

At yesterday’s rally (see my previous post), I interviewed several participants. Here’s what they had to say:

Coloradans Rally Against ObamaCare, SCOTUS Ruling

Today around two hundred Coloradans rallied at the state capitol in Denver to protest ObamaCare and the Supreme Court decision upholding the individual mandate under the Congressional taxing authority.

Read Tim Hoover’s article over at the Denver Post—then check back here for the most important information (which Hoover ignored). I refer to the talks by Dr. Jill Vecchio (shown in the photo) and constitutional scholar Rob Natelson, the video of which is embedded below.

Vecchio explained that ObamaCare forces doctors to violate the Hippocratic Oath:

Natelson, one of the leading experts on the original meaning of the Constitution, argued that the Supreme Court’s ruling constitutes sophistry:

Below are a few additional images from the rally; see my Picasa album for more. (You’ll notice that I posted the photos as Creative Commons.)

Bob Beauprez meets Vecchio:

Bill Faulkner and Jason Letman:

Felix Diawuoh, an immigrant from Ghana:

Jeff Crank, Colorado director for Americans for Prosperity (the group hosting the rally):

More soon!

Westminster Police Used Dog for “Drug Checkpoint”

My wife and I drove past signs stating “Drug Checkpoint Ahead” on the night of June 12 as we headed northwest on Highway 36; the signs were placed before the Church Ranch exit, which we use on our route home.

Here are the basic facts already established about the incident based on direct observation and news accounts (see also my first, second, and third reports):

  • The police pulled over 23 vehicles, arrested one man for felony marijuana possession, and issued three citations.
  • The police did not stop every passing vehicle; rather, they pulled over people for an alleged “identified violation” (and yet, again, they issued only three citations).
  • My wife witnessed the police in the process of searching six vehicles, two along Highway 36, and four more along Church Ranch. I do not know how many vehicles in total the police searched.
  • The Department of Homeland Security was involved in training the Westminster police to conduct these sorts of “drug checkpoints.”

The new information is that the Westminster police used at least one police dog in the course of the “drug checkpoint,” and Randy Corporon, a defense attorney and fill-in host for Grassroots Radio, had a conversation with Trevor Materasso of the Westminster Police.

There’s a humorous aside regarding the bit about the drug dogs. Complete Colorado features a headline, “Homeland Security trained police dogs for HWY 36 checkpoints?!?” Accompanying this headline is a photo of a police dog. However, the link goes to my article about Homeland Security; there is no mention of a dog. So yesterday Ken Clark invited me on to Grassroots Radio to discuss the police dogs, and I had nothing for him on that topic. (Clark is one of the show’s two regular hosts.)

But it turns out Westminster Police did use a police dog, though my wife and I didn’t see it.

In the June 22 North Jeffco Westsider (front page, “Police enforce drug checkpoint”), Ashley Reimers cites Materasso: “One of the biggest resources we use in these checkpoints is K-9 units. We have a dog on scene that alerts us as to whether or not . . . drugs are in the vehicle, and then we search the vehicle.”

But that must not be much a police dog, given the police searched six vehicles that we saw and made only one arrest for drugs.

Today I went back on Grassroots radio to discuss this detail and hear Corporon’s additional insights.

Mostly Corporon verified previously reported facts, including Materasso’s claim that police pulled people over for “identified violations.” One example Corporon gave of an alleged violation was an illegal u-turn.

However, it seemed to me that Corporon was overly credulous regarding Materasso’s claims. My wife and I witnessed no cars pulled over on the other side of Highway 36, as would have been the case for an illegal u-turn. Moreover, as previously noted, the police issued only three citations (and made one arrest) out of 23 stops. These alleged “violations” were evidently mere pretexts, for the most part.

Again, the issue is not whether such police activity passes muster in court, but whether these “drug checkpoints” inappropriately harass citizens “guilty” of nothing more than going about their business.

Image: City of Westminster

Homeland Security Trained Westminster Police for “Drug Checkpoints”

What is Homeland Security doing training local police to operate “drug checkpoints”?

Today the Denver Post published an editorial condemning the Westminster Police “drug checkpoints” that I wrote about last week. The editorial follows Vincent Carroll’s June 15 piece on the same topic for the Post‘s opinion blog.

The Daily Camera, which the Post cites, published the first newspaper account (to my knowledge) of the “drug checkpoints”:

Westminster police stopped 23 cars and made one arrest at a high-profile drug checkpoint in the Boulder-bound lanes of U.S. 36. . . .

Of the 23 stopped, it’s unclear how many were searched for drugs, but three traffic tickets were issued, and one man was arrested on suspicion of felony marijuana possession, [police investigator Trevor] Materasso said.

The Post also cites a Colorado Independent story that contains the information about Homeland Security:

In a Friday email to the Independent, Materasso added that the drug stop operations have not been designed by the Westminster force in isolation but are a product of interactions with federal agencies.

“The operation [was] established based on training provided by the Federal Law Enforcement Training Center and Homeland Security, which has guidelines, protocols and procedures to ensure Constitutional rights are not violated. These govern how we conduct this type of operation.”

The Post rightly retorts, “[J]ust because a policy does not, strictly speaking [and according to the courts], violate constitutional rights hardly means it earns an A-plus for respecting civil liberties.”

I checked in with Cory Lamz, one of the two Camera reporters who covered the story, and he said his paper got a news tip about the “drug checkpoints” and that multiple staff members also saw the signs as they drove by on Highway 36. Once he started working on the story, he said, he saw my initial post on the subject and then asked my wife and me for a statement.

What I want to know is this: What does training local police to search innocent people’s cars for drugs without substantial reason have to do with “Protecting the Homeland”? In this case, the threats against which Americans need protection are the police abuses encouraged by the Department of Homeland Security and the other agencies involved.

Image: Wikimedia Commons

Westminster’s “Drug Checkpoint” Fishing Expedition

June 17 Update: Vincent Carroll wrote about this issue Friday for the Denver Post. He hopes these sorts of checkpoints don’t become a policing habit, and he agrees I make “a number of compelling arguments” in the post below:

On Tuesday night, my wife and I passed two signs stating “Drug Checkpoint Ahead” as we drove northwest on Highway 36, just before the Church Ranch exit. (See yesterday’s initial report.)

Here’s the statement my wife sent to Cory Lamz of the Daily Camera on the matter (a bit of which was quoted in the paper):

Here’s what I saw. We were heading westbound on Highway 36, and we saw two signs that said ‘drug checkpoint ahead.’ We exited on Church Ranch to head home, and there were two cop cars that had two civilian cars pulled over on the shoulder of the highway, just past the exist. They had orange cones flagged out for those cars. The trunks and doors were all open, so they were obviously doing a search. Then we were on Church Ranch, heading west, and we got to the Eagle Landing apartment complex—there’s a traffic light there—and to the left of the traffic light (by the apartment complex), there were four cop cars and four civilian cars. There were two cop cars paired with two civilian cars on each side of that road. There were cops mulling about, trunks open, people standing nearby.

The reporting of Lamz and Joe Rubino adds some important details about what happened:

Westminster police stopped 23 cars and made one arrest at a high-profile drug checkpoint in the Boulder-bound lanes of U.S. 36 on Tuesday night. . . . [T]hree traffic tickets were issued, and one man was arrested on suspicion of felony marijuana possession, [Westminster police investigator Trevor] Materasso said.

Materasso told the reporters that the cars were pulled over “for some identified violation,” but that’s obvious nonsense. If the cars had been pulled over for real violations, the police would have issued 22 citations rather than three. Quite obviously, the police pulled over these vehicles on mere pretexts in order to search the cars for drugs. This was a fishing expedition, pure and simple. Or, to put the matter another way, Westminster police used tax dollars to flagrantly violate the rights of Colorado citizens. (And please let nobody claim that these rights violations are fine just because the police can get away with them in court.)

Moreover, assuming that three of the drivers were in fact violating traffic laws, the police could have pulled them over and cited them without the “Drug Checkpoint” setup.

The police, then, pulled over 23 vehicles at a “Drug Checkpoint” and made one arrest. That’s a four percent success rate. And apparently the guy arrested didn’t actually have large amounts of marijuana, or Materasso surely would have trumpeted that fact.

To state these facts a different way, the police pulled over 19 drivers for no significant reason. For the “crime” of going about their business, they were harassed and intimidated by the police. That’s wrong. (And this is not the first time the Westminster police have employed this tactic.)

And how much did this cost taxpayers? Clearly the Westminster Police Department needs a budget cut, if they best way the police can spend a Tuesday night is to harass and intimidate innocent drivers.

Know Your Rights

The silver lining to this incident is that at least it has prompted many Coloradans to talk about police actions and abuses.

Mark Silverstein of the Colorado ACLU told the Camera:

One of the disappointing facts about the state of people’s awareness of civil liberties is many, many, many people don’t know they have the right to say “no” to a search. If a cop stops you and says, “Mind if I look in your trunk?” it’s your choice.

The ACLU offers some good material on the subject. The ACLU advises:

Stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel. Upon request, show police your driver’s license, registration and proof of insurance. If an officer. . . asks to look inside your car, you can refuse to consent to the search. But if police believe your car contains evidence of a crime, your car can be searched without your consent. Both drivers and passengers have the right to remain silent. If you are a passenger, you can ask if you are free to leave. If the officer says yes, sit silently or calmly leave. Even if the officer says no, you have the right to remain silent.

The state ACLU also published a multi-part video; here’s the first part.

The group Flex Your Rights offers the video, Busted: The Citizen’s Guide to Surviving Police Encounters.

Of course the problem of overzealous policing is a concern to citizens on the right as well. Grassroots Radio invited me on Wednesday from 5:30 to 6:30 to discuss the issue; I joined host Ken Clark and Randy Corporon, a defense attorney sitting in for Jason Worley. Listen to Part I (starting at minute 23) and Part II.

I argued the following (starting at minute 33 in the first hour):

Here’s my concern. With these quasi-random checkpoints, either for drugs or alcohol, without any other . . . serious cause of wrongdoing, or reason for the police to think you’ve done something wrong; with things like no-knock raids (which, as we know here in Denver, sometimes the police don’t even get the right address for those); with things like TSA doing these invasive types of searches, even for young children—my fear is that Americans are being conditioned to a state in which, instead of the police officers working for the citizens, and protecting our rights, and being our servants, instead we’re in a state where usually we’re afraid of the police officers, and afraid that we’re going to be intimidated or harassed, even when we’re doing nothing wrong. . . . While I dislike the checkpoint that I witnessed last night, in and of itself, I worry about this growing trend toward—it seems like police have control over the citizens, instead of vice versa.

Corporon, a defense attorney, added some excellent points about asserting one’s rights.

His main advice was to “shut up” if the police are questioning you without the presence of your attorney. He said his biggest headache is when clients call him after they’ve already gone down to the police station and given a statement, without legal representation.

A related video I’ve seen advises, Don’t Talk to the Police. See also my write-up of Boston T. Party’s talk at the University of Colorado about “You and the Police.”

Corporon also advised people never to voluntarily consent to a police search of one’s vehicle. He pointed out that consenting, when the officer has neither cause nor a warrant, only encourages abusive practices.

“Be polite,” Corporon urged.

He pointed out a great reason to roll your window only part-way down: in addition to protecting the driver from overly-intrusive policing, it offers the officer assurance that the driver can’t reach out the window aggressively.

Clark added that his personal practice, as a holder of a concealed carry permit, is to always have his permit in hand with his other paperwork—with his hands on the steering wheel—and to tell the officer right away that he has a permit. (Please note that I’m not an attorney and am not offering legal advice, but merely reporting what others said.)

The upshot is this. As a citizen, you need to assert your rights. By asserting your rights, you encourage decent policing and remind police officers that they work for us, not the other way around. You also need to defend your rights, to speak out against rights violations and injustices. Finally, we need to think seriously about the sort of political system that fosters rights-protecting government activity—and the sort of political system that fosters oppression and systematic rights violations by government agents. Yes, it is a large task, but it is a necessary one if we wish to continue to live in the Land of the Free.

Image: City of Westminster

Drug Checkpoint Outrage

I was shocked and outraged to see two “Drug Checkpoint Ahead” signs this evening along Highway 36 northbound ahead of the Church Ranch exit (in Westminster, Colorado). Even worse, the police had pulled over two vehicles along Highway 36, and another four vehicles along Church Ranch, and were in the process of searching those vehicles.

I do not know which police agency or agencies were involved in this frankly fascistic violation of the civil rights of the citizens. I called the “Administration” and “Desk Officer” lines of the Westminster Police Department but got a recording. (This was at 10:21 pm; I doubted that those at dispatch would be in a position to answer my questions on the subject.)

Apparently the police were pulling over cars totally at random; they did not pull me over (as they all seemed to be occupied searching others’ vehicles).

What is especially angering about this is that the police are spending MY tax dollars for the purpose of violating people’s rights.

Ironically, I witnessed this travesty as I returned from Liberty In the Books, where we had just reviewed an extraordinary set of lectures by Ludwig von Mises on the importance of limiting government to the protection of rights. In those lectures Mises criticizes America’s first “experiment” with Prohibition; I will conclude with his commentary:

[T]he notion that a capitalist form of government can prevent people from hurting themselves by controlling their consumption is false. The idea of government as a paternal authority, as a guardian for everybody, is the idea of those who favor socialism. In the United States some years ago, the government tried what was called “a noble experiment.” This noble experiment was a law making it illegal to buy or sell intoxicating beverages. It is certainly true that many people drink too much brandy and whiskey, and that they may hurt themselves by doing so. . . . This raises a question which goes far beyond economic discussion: it shows what freedom really means. . . .

[O]nce you have admitted [that government should stop people from drinking too much], other people will say: Is the body everything? Is not the mind of man much more important? Is not the mind of man the real human endowment, the real human quality? If you give the government the right to determine the consumption of the human body, to determine whether one should smoke or not smoke, drink or not drink, there is no good reply you can give to people who say: “More important than the body is the mind and the soul, and man hurts himself much more by reading bad books, by listening to bad music and looking at bad movies. Therefore it is the duty of the government to prevent people from committing these faults.”

Kopel: ObamaCare Mandates Unconstitutional

I caught up with Constitutional scholar Dave Kopel at the Independence Institute’s annual banquet February 16. In these two short videos, he explains why the Medicaid mandate as the individual mandate (to purchase health insurance) under ObamaCare are unconstitutional.

First Kopel argues that the Medicaid mandate violates the principles of federalism:

Next he argues that the Constitution never granted Congress the power to compel people to purchase products.

See also the complete briefs against the Medicaid mandate and the individual mandate.

Gessler Announces Reasonable Campaign Rule Changes

Colorado Secretary of State Scott Gessler has done to best he can to make the rules surrounding the state’s campaign-finance laws more comprehensible and less oppressive. For daring to stand up for the free-speech rights of Coloradans to the degree his office permits, Gessler has earned the scorn of the pro-censorship left.

Contrary to the complaints of some of Gessler’s critics, Gessler is required by the Colorado Constitution to “promulgate such rules… as may be necessary to administer and enforce any provision of” the campaign finance laws (see Article XXVIII, Section 9(1)(b)).

Given that federal courts have struck down some aspects of those laws, Gessler must therefore promulgate rules that take the relevant court decisions into account.

As the Denver Post reports, yesterday Gessler implemented rules based on those considered at a December 15 hearing.

I attended that hearing, and I spoke out in favor of Gessler’s proposed rules. (I also harshly condemned the campaign laws as a violation of free speech, though obviously that broader issue lies outside of Gessler’s administrative capacities.)

Today I release another video of that hearing in which three people—Allen Dickerson, Regina Thompson, and Natelie Menten—also voice their concerns about the campaign-finance laws but (at least mostly) support Gessler’s efforts to clarify the rules and make them as unburdensome as possible. (Some of the meaning of their comments is fully clear only in light of the particular laws and rule changes under consideration at the hearing.) For more details about the campaign finance laws and about the rules Gessler helped to rewrite, please see the links below.

See also:

Campaign Finance Rules: Collected Testimony

Braunlich: CO Campaign Laws Chill Speech of New Activists, Small Groups

Gessler Emerges as the Free Speech Secretary of State

SOS Looks to Mitigate Burden of Campaign Censorship Laws

Braunlich: CO Campaign Laws Chill Speech of New Activists, Small Groups

Last month Colorado Secretary of State Scott Gessler hosted a hearing about proposed rules for Colorado’s byzantine campaign finance laws. I supported (most of) his proposed rule changes, even while condemning the campaign laws as a violation of free speech. Please see the videos of testimony by Diana Hsieh, Paul Hsieh, Matt Arnold, and me.

I’ve decided that the issue is important enough to merit the release of additional video from that event. Here Mark Braunlich argues that the campaign laws chill the speech of new activists and small groups. He did praise Gessler for trying to make the related rules as comprehensible as possible.

Natelson Brings Original Constitution to Colorado Activists

The following article by Linn and Ari Armstrong originally was published January 20 by Grand Junction Free Press.

As Americans we live under the greatest Constitution ever devised. Unfortunately, few Americans know much about what our foundational legal document means or how it properly applies to modern life. And those who do study the Constitution often abuse (or artfully ignore) its text to advance a narrow political agenda.

Rob Natelson aims to remedy those problems. Natelson, one of the world’s foremost scholars on the original meaning of the Constitution, taught law at the University of Montana for over two decades. Now he has returned to Colorado, where he once practiced law, to serve with the Independence Institute. In recent months Natelson has lectured on the Constitution in Denver and Colorado Springs, most recently attending a meeting of Liberty In the Books (which Ari moderates).

Recently Natelson’s book “The Original Constitution” came out in a second edition. We encourage you to buy a copy and read it (search at Amazon), then share it with your friends. We are among the most fortunate people ever to walk the planet, because we have inherited the intellectual and legal traditions embodied in the Constitution. It is up to us to keep that heritage alive. We know of no better place to start than with Natelson’s book.

“The Original Constitution” embodies Natelson’s findings from years of research into stacks of documents, many in Latin, that informed the Founders. Yet the book is widely accessible and beautifully written. Natelson also offers a few hundred well-placed footnotes, as well as a descriptive bibliography, for those who wish to study further. The Constitution is a document for “We the People,” and so is Natelson’s book.

We especially admire the book’s integrity: “Among other academics, law professors are notorious for writing works of special pleading and calling them ‘scholarship’ — a practice I actively resisted during my long career in legal academia. I can assure the reader that this book is not a work of special pleading, but a depiction of a slice of history: the legal force of a particular legal document at a particular time.”

Natelson dismisses the notion, as expressed by Barack Obama, that it is “unrealistic” to “somehow discern the original intent of the Founders or ratifiers.” Instead, Natelson writes, “Competent Founding-Era scholars largely agree on what most of the original Constitution’s provisions mean. Much of the disagreement among constitutional writers results from unfamiliarity with the historical record or with eighteenth-century law.”

To offer an example of how Constitutional clarity can resolve today’s debates, consider what one writer claimed in the Washington Times: “Mr. [Herman] Cain’s 9 percent national sales tax simply isn’t constitutional.” Wrong. While we think a national sales tax is a really bad idea, it passes Constitutional muster. The Constitution grants Congress the power to impose “indirect” taxes such as a sales tax, as Natelson makes clear. In aninterview he confirmed, “A national sales tax is clearly constitutional, so long as uniform throughout the country.”

During the Liberty In the Books meeting, Natelson debunked another view of the Constitution that we have expressed. The idea is that the “commerce clause” grants Congress the authority only to “make regular” (regulate) interstate commerce, not restrict commerce. Not so, says Natelson. Instead, that clause gives Congress power to restrict commerce. However, Natelson explains, the “commerce clause” was intended to grant much less power than is commonly assumed today. For example, properly interpreted it would not allow Congress to force people to buy insurance, as ObamaCare proposes.

We are not convinced, however, that original intent always should dictate Constitutional interpretation. The literal meaning of the text also matters, as do the logical implications of the text.

Natelson offers an example in his book that we think supports this line of reasoning. Originally, Article III established that the “judicial power of the United States” extended to “controversies… between a state and citizens of another state.” Natelson convincingly argues that the Federalists thought this would not overturn “sovereign immunity,” or the power of states not to be sued by individuals. But the Supreme Court decided to read the text literally and allowed a man from South Carolina to sue Georgia. This unpopular decision quickly led to the passage of the Eleventh Amendment, which affirmed that a state cannot be sued by “citizens of another state.”

As Natelson pointed out, Chief Justice John Jay helped decide the Georgia decision. Jay, you’ll recall, was an author of the Federalist Papers. If even Jay looked to literal meaning over original intent, might that justify us doing the same?

It matters very much whether we look strictly to original intent, or whether we also examine literal meaning and logical implications, in evaluating the significance of the First Amendment, “due process of law,” and other key Constitutional provisions.

Yet, regardless of where we may ultimately end up in that debate, we acknowledge that it is critically important to understand the original intent of the Constitution. We thank Natelson for helping us do that.