Aurora Theater Shooting “Foreseeable,” Federal Judge Rules

Image: Ari Armstrong
Image: Ari Armstrong

U.S. District Court Judge R. Brooke Jackson declined to toss lawsuits against Cinemark regarding the 2012 mass murder at the Century Aurora 16 theater on the grounds that such an attack was “foreseeable,” John Ingold reports for the Denver Post. Jackson wrote, “Although theaters had theretofore been spared a mass shooting incident, the patrons of a movie theater are, perhaps even more than students in a school or shoppers in a mall, ‘sitting ducks.'”

I tend to agree with Lenore Skenazy’s views on the matter, as expressed for Reason:

The judge seems to be saying that because we do not live in a perfect world, free of all violence, all businesses open to the public should be constantly on guard against psychopathic killers. . . . [T]he ruling . . . endorses what I call ‘worst-first thinking’—dreaming up the worst case scenario first (‘What if someone comes in and shoots up our book club?’) and proceeding as if it’s likely to happen. Worst-first thinking promotes constant panic. The word for that isn’t prudence. It’s paranoia.

That said, Cinemark’s no-guns policy did render the movie patrons “sitting ducks” and almost certainly made the theater more enticing for the psychopath against whom the no-guns policy obviously did nothing.

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

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.

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.

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.

Yes, A National Sales Tax is Constitutional

Some have questioned whether a national sales tax is Constitutionally permissible (without an amendment). The answer is yes.

Milton Wolf is among those who question this: “Mr. [Herman] Cain’s 9 percent national sales tax [and by extension any other national sales tax] simply isn’t constitutional. Among the enumerated powers in our Constitution, there is no federal jurisdiction over the purchases you make at your local stores, aside from those involving interstate transactions.”

But it turns out I looked this up in the course of researching my article forThe Objective Standard“‘Fair Tax’ Looks Ugly in the Details.” (See also my more detailed follow-up article on the same topic.)

While I am no expert on the Constitution, thankfully we in Colorado have just such an expert now working in the state: Rob Natelson. (Recently Natelson delivered a seminar on the Constitution with Dave Kopel.)

In his book The Original Constitution (Second Edition), Natelson discusses the types of taxation permitted under the Constitution (see pages 158-161). He mentions the two relevant sections of the Constitution (as originally written):

Article I, Section 2, Clause 3

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons [etc.; this section was modified by the Fourteenth Amendment].

Article I, Section 9, Clause 4

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. [This section was modified by the Sixteenth Amendment.]

Of course, the other obviously relevant section is Article I, Section 8: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises…”

The question is whether a national sales tax constitutes a “direct” or an “indirect” tax. Based on Natelson’s remarks, I counted it as an “indirect” one:

Direct taxes included capitations and levies on real property, business assets, and other capital items, on the ownership of basic household necessities, and on wages, rents, and other income. Probably taxes on wealth (such as inheritance and estate taxes) were direct. Indirect taxes were exactions on imports and on consumable goods and services. This line of division was not flawless, for an import duty probably was indirect even if imposed on an item destined to serve as a capital good. (p. 161)

I wasn’t entirely sure of my interpretation, so I asked Natelson whether a “sales tax [is] an ‘indirect’ tax and therefore constitutionally allowed.”

He replied, “Yes. A national sales tax is clearly constitutional, so long as uniform throughout the country.”

He was quick to point out that his evaluation of the Constitutional matter did not reflect his opinion of a national sales tax.

I will state flatly: even though a national sales tax is Constitutionally allowed, it is still a really, truly, horrendously stupid idea, at least if enacted without repealing the Sixteenth Amendment (which permits the income tax). The worst situation we could possibly end up with (in terms of taxation) would be a national sales tax added to a national income tax. One or the other is bad enough, but both would cripple the economy and severely infringe our liberty.

Does TABOR Violate the U.S. Constitution?

As the Denver Post reports, a Colorado group is suing to invalidate the Taxpayer’s Bill of Rights [TABOR], on the grounds that it violates “the U.S. Constitution guarantee that states have a ‘republican’ government.”

I think the lawsuit is complete bunk, basically a PR stunt, and I predict it will be quickly tossed out of court.

As Professor Robert Natelson concludes in a 1999 paper, “[T]he Framers clearly acknowledged that republican government need not be purely representative[;] that it may contain significant elements of direct democracy. … The continued pressing of Guarantee Clause arguments against I&R [initiative and referendum] in defiance of unanimous historical and legal authority results in delay, vexation, and a waste of judicial and other resources. The courts should put those arguments to rest forthwith by classifying them as frivolous and imposing appropriate sanctions on the parties who raise them.”

But it is worth looking a bit more into the arguments surrounding the suit.

First I want to point out three bad arguments against the suit. One goes something like this: “Because TABOR is itself a state constitutional provision, it cannot violate the federal constitution.” Obviously that’s wrong. Originally the U.S. Constitution prevented the states from doing all sorts of things, such as putting up trade barriers. Indeed, restraining state governments was a major motivation for creating the U.S. Constitution. The Fourteenth Amendment restricts state governments even more severely (and thank goodness). I have argued that the Colorado campaign laws — also part of the state constitution — violate the First Amendment.

Others have pointed out that several state governments permit citizen initiatives and referendums and have done so for a long time. But that by itself does not justify the citizen initiative; many governments have done the wrong thing for long periods of time. If something is wrong or unjust, it hardly becomes justified merely by being compounded.

Another bad argument against the suit is that “the people” have the right to impose whatever they want through law. Obviously that’s inconsistent with the principle of individual rights. The Founders rightly feared mob rule and tried to protect against it.

Clearly Article IV, Section 4 of the federal constitution restrains state government in important ways, stating, “The United States shall guarantee to every State in this Union a Republican Form of Government…” Clearly, then, Colorado voters could not pass a constitutional amendment imposing a state-level hereditary dictator.

The question, then, is whether the citizen vote on law is compatible with a “republican” form of government. I think the Colorado Senate Republicans explained the point nicely in a release: “The plaintiffs in this lawsuit display a profound misunderstanding of what the founders of our nation and authors of the US Constitution meant by guaranteeing a ‘republican form of government.’ A republican form of government is above all a government with lawmakers bound by a constitution.”

Another question entirely is whether direct citizen vote is a good idea, though compatible with the U.S. Constitution. I can think of no good reason why citizens should not be allowed to vote on some statutory matters. I see no inherent problem with raising the bar for citizen votes to change the state constitution. Even advocates of the current rules must admit that the voters have at times made a mess of things. The unfortunate incentive is for groups to run unalterable constitutional amendments even for issues best left to the statutes. A constitution is supposed to be the most basic and fundamental law, not a repository of special-interest group finagling. Regardless of the rules of our state and era, we as individual voters should take revisions of the the constitution with utmost seriousness.