Category Archives: regulation

Political Power

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Here come the Progressive-Democrats, and they’ve made their priorities clear in the House with the first things they want to get done.  Here’s some of what’s in their HR1:

  • “campaign-finance reform”—requires some advocacy groups to publicly disclose the names of donors who give more than $10,000, even if the groups aren’t running ads that endorse candidates but merely inform voters about the issues. Except when rich folks like Tom Steyer or Mike Bloomberg are spending on Progressive-Democrats.  Those names aren’t required to be exposed.
  • provisions from the Honest Ads Act—just regulates online political ads the same as broadcast television. Regulation: name those donors, again. Never mind that even nefarious ads intended to “influence” the 2016 elections accounted for all of 0.01%—that’s 1 in 10,000—of all the online ads in that cycle.
  • expanded definition of “electioneering communications” to include communications targeted to any particular constituency. An online ad running only in Texas that mentions a New York politician would be “regulable.”
  • The Federal government would gain control over the means by which States run elections. Because a remote, isolated central government, especially one run by Progressive-Democrats, Knows Better than a local State government how that State should run its elections.

For Progressive-Democrats, it’s all about personal political power.  Remember this in the coming election season.

The California Magnet

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Newly sworn-in California governor Gavin Newsom (D) has a plan to expand on the State’s sanctuary “status” and draw even more illegal aliens into the State and into the country:

…an unprecedented new health care agenda for his state, aimed at offering dramatically more benefits to illegal immigrants….

As Newsom noted,

People’s lives, freedom, security, the water we drink, the air we breathe—they all hang in the balance

And Newsom wants to increase that risk by encouraging a flood of illegal aliens to enter the State. It’s true enough that the vast majority of those illegals are harmless beyond the economic burden they’ll inflict in Newsom’s brave new world of hugely expanded, and hugely more expensive, health care for all, citizen and illegal alike.  However, it’s also that the few who are dangerous are capable of inflicting vast damage—as the families of MS-13, et al.; the survivors of 9/11 (which terrorists entered legally, but they’re not the only terrorists entering); the victims and their families of the cartels’ drug epidemic; the families of Kate Steinle, Ronil Singh, Pierce Corcoran, Silvano Torres, and a host of others can attest.

His health care “expansion?”  He intends to implement the erstwhile Obamacare Individual Mandate at the State level.  Everyone will be required to purchase health coverage whether they need it or not, whether they want to or not.  Except those like illegal aliens, who can’t afford it.  Those coverages will be paid for by the State’s citizens and legal residents.  Somehow.  Oh, and “children?” They’ll be allowed, under Medi-Cal, to stay on mumsy’s and pop-pop’s health coverage plans until they’re 26, instead of the current age limit of 19.

Newsom has had no words on how this expansion is to be funded.  Apparently, he’s channeling Congresswoman Alexandria Ocasio-Cortez (D, NY):

People often say, like, how are you going to pay for it, and I find the question so puzzling because “How do you pay for something that’s more affordable? How do you pay for cheaper rent?” You just pay for it.

Because vastly expanding a program makes it cheaper.  Sure.

But Newsom and his clan of Progressive-Democrats in the State’s legislature don’t care about that.  They only care about the bennies flowing from their expensive, and dangerous, virtue signaling.

A Conservative’s View….

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My latest effort, a pamphlet on the American legal system (because I don’t lack for ego), A Conservative’s View of the American Concept of Law, has been released, and it can be found on amazon.com: https://amzn.to/2L4iVXx .  Links also can be found on my Books page.

Our legal system is explicitly founded on natural law through our Creator’s endowment—the origin and source of our fundamental principles.

Though government should not legislate morality beyond a very narrow arena (vis., a measure of specificity regarding types of homicide and theft; strictly limited controls on bearing false witness, etc.), with natural law as the foundation of our legal system, morality inescapably informs it.  This is so because morality flows from the Creator-endowed and individually-imbued nature of our inalienable rights to life, liberty, and the pursuit of happiness. Our social compact was founded explicitly to protect these.  From that, our statutes are at their best when limited to attempts to implement and protect those foundational principles and nothing more. Any further legislation should be limited to improvements on those strictly circumscribed efforts. In particular, legislation should not be used to generate new morals.

The nature of our American judiciary and the proper role of judges in our jurisprudence has been argued throughout our history, but the argument has been especially virulent over the last dozen or so years.  The current dispute (I don’t call it a debate) centers on whether our Constitution means what it says and neither more nor less, or whether it’s a living document that should grow and adjust to meet a judge’s understanding of changing times and mores.

In this pamphlet, I lay out three key propositions.  The first is that only Congress may make law.  The second is that judges may strike a law before them as unconstitutional, but if they do not, they must apply the law as written.  The third is that the Constitution must be applied as it is written.  Alterations or updates to it are political decisions, and thus only We the People may make them.

Understand: I’m not writing about the origins of the idea of law or of systems of law.  A plethora of legal philosophers (HLA Hart, Jeremy Bentham, John Austin, and Gustav Radbruch to mention a few Western ones) treat these subjects should the reader wish to explore them. I begin later, with the principles underlying our American legal system.

 

Keep in mind, too, that government, per se, does not make law; the men who populate the government do.

 

Finally, Justice Antonin Scalia made this claim in his A Matter of Interpretation,

Surely this is a sad commentary: we American judges have no intelligible theory of what we do most.
Even sadder, however, is the fact that the American bar and American legal education, by and large, are unconcerned with the fact that we have no intelligible theory.

I agree, and in my hubris, I offer the beginnings of such a theory here.

Guns and Killings

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This, from no less a Liberal outlet than the Chicago Tribune.  John Lott, Jr, Crime Prevention Research Center President, provided some gun-related killings statistics for the Tribune.  He began by defining what constitutes mass killings, a term too often bandied about without definition.  The FBI’s definition is what he used.

  • shootings must claim four or more lives in a public place
  • shootings must be carried out simply with the intention of killing
    • excluded are gang fight killings because they tend to be motivated by battles for drug turf
    • excluded are murders incidental to other crimes
    • excluded are politically motivated attacks, such as assassinations or killings pursuant to guerrilla conflicts

The he came to the actual data.

Of the 97 countries where we identified mass public shootings,

  • the US ranks 64th per capita in its rate of attacks of the 97 countries with mass public shootings
  • the US ranks 65th in fatalities.
  • Tightly gun-controlled European countries, such as Norway, Finland, France, Switzerland and Russia, each have 25%+ higher per capita murder rates than the US

In the interval from 1998 to 2015, there were

  • 2,354 attacks and at least 4,880 shooters outside the US
  • 53 attacks and 57 shooters in the US

The US has 4.6% of the world’s population but only 1.49% of the murders, 2.20% of the attacks, and less than 1.15% of the mass public shooters worldwide.

And: of all the mass public shootings that have occurred since 1950 98% have occurred in places where citizens are banned from having guns.

What’s missing from the research is all the mass shooting attempts that have been short-circuited or stopped altogether by citizens on scene when the incidents began—the true first responders—who had firearms on their person and so could respond inside the two-five minutes that even a talented, trained, and motivated policeman and police force will need to arrive—after the call, with its intendent delay, goes out.  Occurrences illustrated by these anecdotes.

  • a concealed handgun permit holder stopped an alleged killer who was shooting blacks at a Kroger grocery store in Louisville, KY
  • armed off duty policemen stopped a mass killer wannabe before he could get started at a Draw Mohammed contest in Dallas, TX
  • two gunmen in College Park, who herded party-goers into separate male-female groups and then compared the number of bullets they had with human targets were stopped by one partier who was able to reach his pistol, engaged the two, killing one

A Judge’s Ruling on Female Genital Mutilation

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Charges related to female genital mutilation were dismissed last week against Detroit doctor Jumana Nagarwala, who has a history of performing such “surgeries.”  Federal District Judge Bernard Friedman, of the Eastern District of Michigan, ruled that Congress had overstepped its authority in passing a law banning this FGM.

Sadly, the judge was right.  That law, passed in 1996, was done under our Constitution’s Commerce Clause, which authorizes Congress to regulate interstate commerce (along with trade with foreign nations and with the Indian Tribes).

However, Friedman wrote,

That clause permits Congress to regulate activity that is commercial or economic in nature and that substantially affects interstate commerce either directly or as part of an interstate market that has such an effect. … There is nothing commercial or economic about FGM.  As despicable as this practice may be, it is essentially a criminal assault…. Nor has the government shown that FGM itself has any effect on interstate commerce or that a market exists for FGM beyond the mothers of the nine victims alleged….  There is, in short, no rational basis to conclude that FGM has any effect, to say nothing of a substantial effect, on interstate commerce.

The law as passed is plainly unconstitutional.  But why not allow the law to stand, anyway, given its attempt to bar [a]s despicable [a] practice as FGM?  Because, as Chief Justice William Howard Taft wrote 100 years ago in the Child Labor Tax Case,

The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

As Friedman noted, seemingly in consistence with Taft, in his 21st century opinion,

As laudable as the prohibition of a particular type of abuse of girls may be…federalism concerns deprive Congress of the power to enact this statute.

And

FGM is “local criminal activity” which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

Here, though, Friedman has understated the case.  This is a Federal concern, and it is within the scope of Congressional authority to address FGM.

Congress must repass this law—though why it chose the Commerce Clause as the underpinning is beyond me—and it must address Friedman’s Federalism concerns.  One obvious path is that the protection of all Americans collectively and the liberties of each American individually are the role of the Federal government; some protections cannot be left to the individual States to effect—or to choose not to effect.  This is why free speech and religion, the right to keep and bear arms, protections against excessive searches—indeed, the entirety of our Bill of Rights—are Federal concerns, with only the means of implementing them left to the States.

Certainly, there needs to be a limit on what is considered a Federal crime (or civil prohibition or requirement)—even murder is a State crime and not a Federal one, as it should be.

But surely our inalienable right to the pursuit of Happiness, which John Adams explained so eloquently carries within it the rights of personal property and of personal security, is a Federal concern, not a matter to be left, federalistically, to the States.  That property right necessarily includes the property every individual has in his own person, and that security right necessarily includes the safety of that property in person (and more generally, the safety of the person himself), especially.  This was acknowledged overtly when we fought—and won—a civil war over slavery.

It must be the case, too, that that property and that security must include control over what is done with any part of an individual’s body and who permits the doing or refuses it, and FGM can and must be as protected against as the evil of enslaving the whole of an individual’s body or mind.

Accordingly, Congress must repass this law, or something very like it, but it ought to be passed under 5th Amendment’s due process clause

nor shall any person…be deprived of life, liberty, or property, without due process of law

and under the 14th Amendment’s due process clause

…nor shall any State deprive any person of life, liberty, or property, without due process of law

And that due process plainly allows a Congressional bar against clitorectomy/female genital mutilation.

That won’t put Nagarwala back on the hook for her past practices of mutilation—criminal laws that are retroactive are anathema to liberty—but it will allow for criminal prosecution and jailing of future such butcheries.

 

Friedman’s ruling can be read here.