Category Archives: rights

Obama, Roosevelt, and New Nationalism

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As we look at President Obama’s New Nationalism speech, delivered today at Osawatomie, KS, while cloaking himself in Theodore Roosevelt’s mantle, it’s useful to review Roosevelt’s own New Nationalism speech, which was so seminal for the Progressive movement.  I’ll skip over the boilerplate rah-rah that both speeches have and stay with some highlights.

By way of background, this is what Roosevelt and Herb Croly, one of the most articulate Progressives, had to say, presaging Roosevelt’s 1910 speech.

In his 1904 address to Congress, Roosevelt said:

The Government must in increasing degree supervise and regulate the workings of the railways engaged in interstate commerce…

In his 1908 address to Congress, just two years before his New Nationalism speech, he repeated the theme:

The proposal to make the National Government supreme over, and therefore to give it complete control over, the railroads and other instruments of interstate commerce is merely a proposal to carry out to the letter one of the prime purposes, if not the prime purpose, for which the Constitution was founded.

Here is what Croly had to say about government and Americans’ role in it in 1909.

To be sure, any increase in centralized power and responsibility, expedient or inexpedient, is injurious to certain aspects of traditional American democracy.  But the fault in that case lies with the democratic tradition; and the erroneous and misleading tradition must yield before the march of constructive national democracy….  [T]he average American individual is morally and intellectually inadequate to serious and consistent conception of his responsibilities as a democrat.

One connection between this from Croly, and Roosevelt (and by extension, Obama) is that Roosevelt’s “New Nationalism” phrase was borrowed directly from Croly’s The Promise of American Life, the source of the quote above, and from Croly’s own adulation of Roosevelt as the proper sort of democrat:

The new Federalism or rather new Nationalism is not in any way inimical to democracy.  On the contrary, not only does Mr. Roosevelt believe himself to be an unimpeachable democrat in theory, but he has given his fellow-countrymen a useful example of the way in which a college-bred and a well-to-do man can become by somewhat forcible means a good practical democrat. The whole tendency of his programme is to give a democratic meaning and purpose….

Roosevelt then opened his New Nationalism speech with all the right words.

Our country—this great Republic—means nothing unless it means the triumph of a real democracy, the triumph of popular government, and, in the long run, of an economic system under which each man shall be guaranteed the opportunity to show the best that there is in him.

But then he threw it all into a cocked hat.  He spent the next several years trying to utterly remake our economy and to place the Federal government firmly in charge of it and of the decisions that the economic players—free Americans—were supposed to be making for themselves.  And he spent the rest of his speech trying, at once, to disguise the coming effort and to justify it.  For instance [emphasis added]:

I stand for the square deal. But when I say that I am for the square deal, I mean not merely that I stand for fair play under the present rules of the game, but that I stand for having those rules changed so as to work for a more substantial equality of opportunity and of reward for equally good service.

Thus, government, not Americans, must decide the basis of “equality.”  It’s not possible, though, to have equal opportunity and equal outcomes.  Mandating equality of results necessarily deprives each man equality of opportunity because it deprives each man his right to achieve his own fullest potential.

Further:

It has become entirely clear that we must have government supervision of the capitalization, not only of public-service corporations, including, particularly, railways, but of all corporations doing an interstate business.

and

We have come to recognize that franchises should never be granted except for a limited time, and never without proper provision for compensation to the public. It is my personal belief that the same kind and degree of control and supervision which should be exercised over public-service corporations should be extended also to combinations which control necessaries of life, such as meat, oil, or coal, or which deal in them on an important scale.

and

The effort at prohibiting all combination has substantially failed. The way out lies, not in attempting to prevent such combinations, but in completely controlling them in the interest of the public welfare.

These constitute Roosevelt’s demand for big government determining what Americans might do with their market decisions and their businesses.

Roosevelt continues:

We grudge no man a fortune in civil life if it is honorably obtained and well used. It is not even enough that it should have been gained without doing damage to the community. We should permit it to be gained only so long as the gaining represents benefit to the community. This, I know, implies a policy of a far more active governmental interference with social and economic conditions in this country than we have yet had, but I think we have got to face the fact that such an increase in governmental control is now necessary.  …every man holds his property subject to the general right of the community to regulate its use to whatever degree the public welfare may require it.

Thus, Roosevelt insists that big government must be the final arbiter of what Americans might do with their own property and wealth.

and

Let us admit also the right to regulate the terms and conditions of labor, which is the chief element of wealth, directly in the interest of the common good.

Roosevelt’s big government even demands the final say over what Americans might do with their most fundamental property—their own bodies and minds.  Because, repeating Croly:

[T]he average American individual is morally and intellectually inadequate to serious and consistent conception of his responsibilities….

So it is, and has been, with President Obama. Here is what Obama said on the site of that seminal Progressive speech.  He, too, opened with the right phrases:

[His grandparents] believed in an America where hard work paid off, responsibility was rewarded, and anyone could make it if they tried — no matter who you were, where you came from, or how you started out.

These values gave rise to the largest middle class and the strongest economy the world has ever known.

Then, like Roosevelt before him on this spot, he threw it all into a cocked hat.  Like Roosevelt, Obama has spent these last three years trying to utterly remake our economy and to place the Federal government firmly in charge of it and of the decisions that the economic players—free Americans—are supposed to be making for ourselves.  Like Roosevelt, he spent the rest of his speech trying, at once, to disguise the effort and to justify it.

We all know the story by now: Mortgages sold to people who couldn’t afford them, or sometimes even understand them…. Regulators who were supposed to warn us about the dangers of all this, but looked the other way or didn’t have the authority to look at all.

So we need more regulators and more regulations.  And folks should bear no responsibility of their own for buying mortgages they couldn’t afford or understand.  Big government will take care of them.

and

…a crisis from which we are still fighting to recover. It claimed the jobs, homes, and the basic security of millions—innocent, hard-working Americans who had met their responsibilities, but were still left holding the bag.

Never mind that that basic security had already been nationalized by big government in the form of wealth redistributive taxes to pay for a national social security system that was on the verge of bankruptcy before the present crisis, a national health care system that was on the verge of bankruptcy before the present crisis, a big government that already was increasingly deep into debt and in these last three years three times deeper.  Yes, innocent, hard-working Americans are, indeed, left holding the bag.

and

At the turn of the last century…we had to decide: would we settle for a country where most of the new railroads and factories were controlled by a few giant monopolies….

Theodore Roosevelt disagreed.

Indeed, he did.  As we saw above, Roosevelt believed that big government should be the monopolist.  Because big government knows better.  Because Progressives Know Better.

Additionally:

Remember that in those years…we had weak regulation and little oversight….

Aside from the misstatement of the facts, this is just a Rooseveltian plea for even bigger government.  For example:

We need to up our game. And we need to remember that we can only do that together.

It starts by making education a national mission—government and businesses….

and

We should be giving people the chance to get new skills and training at community colleges, so they can learn to make wind turbines and semiconductors and high-powered batteries.

and

And by the way—if we don’t have an economy built on bubbles and financial speculation, our best and brightest won’t all gravitate towards careers in banking and finance.

and

But as a nation, we have always come together, through our government, to help create the conditions….

and

…last year we put in place new rules of the road that refocus the financial sector

and

There are also limits on the size of banks and new abilities for regulators to dismantle a firm that goes under. The new law bans banks from making risky bets with their customers’ deposits, and takes away big bonuses and paydays from failed CEOs, while giving shareholders a say on executive salaries.

and

For the first time in history, the reform we passed puts in place a consumer watchdog who is charged with protecting everyday Americans from being taken advantage of by mortgage lenders, payday lenders or debt collectors.

and

Too often, we’ve seen Wall Street firms violating major anti-fraud laws because the penalties are too weak and there’s no price for being a repeat offender. No more. I’ll be calling for legislation that makes these penalties count—so that firms don’t see punishment for breaking the law as just the price of doing business.

The push for more government involvement, bigger government is breathtaking in its scope.  The Progressive government of Obama must be the final arbiter of what Americans and our businesses will be allowed to do.  Obama’s Progressive government looks for the elimination of the judiciary from its role (vis., bankruptcy court) in favor of Executive Branch fiat—just as Roosevelt before him.   Obama’s Progressive government demands a “watchdog” that is not at all accountable to Americans, or to our representatives in the Federal government, our Congress; a “watchdog” that’s accountable only to itself and to the President.

Obama’s Progressive government isn’t interested in enforcing existing law and having existing regulators do their jobs, as Judge Jed Rakoff has forcefully suggested.  This would not expand government.

The parallels are plain.  Roosevelt wanted to control the railroad industry from his Executive office, pre-empting the Judiciary, and to tell the other industries what they might do.  Obama wants to control the financial and health services industries from his Executive office, pre-empting the Judiciary, and to tell the other industries what they might do.

Both men demand(ed) the following.  Government, rather than Americans, must decide what is “fair.”  Government, rather than Americans, must decide what market decisions Americans will make.  Government, rather than Americans, must decide how Americans’ wealth must be (re)distributed.

What’s the Value of National Sovereignty?

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I ran across this comment in Spiegel Online International:

…when the EU ambassadors agreed to a common statement at the World Health Organization in Geneva, the British representative vetoed the move, saying the issue wasn’t a matter of foreign policy but of health policy — and therefore fell under national sovereignty.

The British have been using similar nit-picking arguments in other UN organizations….

This is the model followed by our home-grown Progressives, who also think national sovereignty is a nit-pick.

It’s part and parcel with the meddling of our government in other nations’ internal affairs: sovereignty be d***ed; they should listen to their betters.  Our State Department, for instance, presumes to instruct Israel on its internal legislative workings, decrying the alleged endangerment of democratic principles that must result from proposed legislation that would limit foreign funding of their domestic NGOs.

It’s also of a kind with the Progressives’ respect for the sovereignty of American citizens in our own country.  While there is legitimate argument over the efficacy and the legality of State-passed illegal immigration laws, for instance, these arguments are domestic matters.  Their progress through the American Federal Court system is a purely internal discussion that can be resolved only by American citizens among themselves and through their government representatives.  Yet the Obama administration has turned these domestic concerns over to foreign nations for resolution: Obama actively encourages Mexican, Argentinian, Brazilian, et al., intervention into the court cases currently in progress concerning Arizona’s and Georgia’s illegal immigration laws.

Interstate Concealed Carry

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HR 822, the National Right-to-Carry Reciprocity Act of 2011, is wending its way through Congress this week, and as one might expect with a gun-law bill, there is some controversy attached.  Much of the discussion centers on whether this is this a 2nd Amendment or a 10th Amendment issue: which should hold sway.  I suggest that it’s not either/or; it’s both.

For completeness’ sake, these two Amendments are quoted below.

2nd Amendment:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

These are short, sweet, to the point, and crystalline in their meaning.  Every American is authorized to possess (and so to use) firearms; the Federal government cannot interfere with that.  Every State has the sole authority to set the conditions under which this right can be exercised; the Federal government cannot interfere with that, either.  The NCRCA simply makes clear the lack of conflict between the two Amendments.

(Indeed, one could, based on the 2nd and 9th Amendments, call into question the Federal government’s Commerce Clause regulation of interstate trafficking of firearms, but that’s an argument for a different thread.)

Much of the argument against the bill centers on the premise that the NRCRA will trample on states’ rights as guaranteed by the 10th Amendment, potentially to the destruction of the Federalism principles of our country.  Each State should be able to set its own laws regarding gun possession and how they are to be moved about within the boundaries of that State—including guns brought in from other States.  Those arguing for the bill insist either that we need to cure the patchwork of gun control laws and have a single, national law, or that, as Congressman Charlie Bass (R, NH) puts it, “The fact is, we have a tradition in this country of upholding other states’ laws [and] allowing them to apply in other states.”

All of these arguments are bogus.  Congressman Trent Franks (R, AZ) draws a useful analogy: “It’s kind of like having a driver’s license.  There are some states that have stricter driving laws than others.”  Now certainly the analogy breaks down pretty quickly: no one has a Constitutional right to own cars, with its inherent right actually to use those cars, while all of us have a Constitutional right to own firearms, with its inherent right actually to use those firearms.  However, the analogy serves well as far as it goes.

Each State, does in fact, set its own conditions for obtaining a driver’s license, including the level of training that must occur, who is authorized to conduct that training, even the driving conditions under which that training occurs (compare, for instance a license obtained in Wyoming, with its level of urbanization and traffic density, with a license obtained in Rhode Island or New York City).  Every other State must honor that issuing State’s license.  Each driver, though, must honor the driving laws of the State in which he drives—he cannot carry his issuing State’s laws with him to another State.

So it is with the NRCRA.  Each State, under this bill, sets its own conditions for obtaining a concealed carry license, including the level of training that must occur, who is authorized to conduct the training, and the conditions under which that training occurs.  The NRCRA also is quite clear about the gun owner’s obligation when he’s carrying his firearm in another State.  The Congress’ summary of the bill says this (the text of the bill itself can be found here) [emphasis added]:

[The bill will] authorize a person who is carrying a government-issued photographic identification document and a valid permit to carry a concealed firearm in one state…to carry a concealed handgun…in another state in accordance with the restrictions of that state.

There is no Federalism threat here.  And just as it’s on the motorist to know the driving laws, or the boating laws, or the hunting laws, or the you-name-it laws of the State in which he’s doing those things, so it is the obligation of the gun owner to know the relevant laws of the State in which he’s carrying and using his firearm.

On the question of “curing” a patchwork of laws, this is a simple Sophistry.  We have a patchwork of State-level laws in nearly every milieu—this is, in fact, what Federalism is all about.  Looking to our driver’s license analogy, again, here is a prime example of a patchwork of laws.  The speed limits on the state highway systems and in the several residential zones, for instance, vary wildly.  Indeed, it’s necessary to consider whether a drive to cure such patchworks is, itself, the greater threat to our federal system of governance.

Finally, concerning the argument that there is a tradition of “allowing [one state’s laws] to apply in other states,” what’s “applied” are permitting and licensing laws, not laws governing their use.  Illinois “applies” my driver’s license, but it “applies” its own driving laws.  Indeed, many of the licensing requirements aren’t even set by the States, but by the relevant guilds: medicine and law, for instance.  It is only within these guild boundaries that the States then set their own licensing and operating conditions.  And so on.

This is a bill that clarifies the relationship between two Amendments; there is no conflict here.

GPS Tracking, Privacy, and the Government

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Today, the Supreme Court began hearing a case, United States v Jones, concerning among other things, whether the police need a warrant to plant a GPS tracker on a suspect’s car: is doing so without a warrant a violation of the suspect’s 4th Amendment rights? Is even the mere use of such a device a violation of the suspect’s 4th Amendment rights?

The government makes the following arguments, among others:

the device “did not meaningfully interfere” with Jones’s property rights, because it didn’t affect the Jeep’s gas mileage, drivability or other characteristics.

and

using technology to enhance surveillance, without a warrant, was condoned in the 1983 case United States v. Knotts, a case in which police hid a beeper in a vehicle to track a suspect.

These arguments seem deficient to me.  With regard to the first, it’s disingenuous. A telephone wiretap placed on a person’s telephone system doesn’t “meaningfully interfere” with a person’s property rights, because it doesn’t affect the telephone’s clarity of speech communication, dialability or other characteristics, either, yet a warrant is required.

On the other hand, requiring a warrant to place a GPS tracker on a person’s car won’t meaningfully interfere with the government’s investigation any more than the warrant does in placing a tap on a person’s telephone.

The second argument is equally disingenuous; it’s just a Brandeis-ian excuse to perpetuate judicial error and the ensuing injustice.  Further, the argument is nothing more than a cynical red herring.  The government knew, in Jones, that a warrant would be necessary for this sort of surveillance; they had, in fact, gotten one.  They’d just let it expire before they acted on it, and then the GPS tracker was planted outside the warrant’s jurisdiction: in a Maryland parking lot, rather than in DC, where the warrant had been issued.

The Court, on the other hand, asks these questions.

How does technology change traditional law enforcement?

and

Could [police] get the same information from 30 deputies [devoted to surveillance]?  What you’re saying is police have to use the most inefficient methods.

and

…how are peoples’ privacy expectations [changing] as technology changes….  Technology is changing people’s expectation of privacy.

The answer to the first question is clear: it does not change it at all.  The Constitutional limits and authorities concerning police surveillance and investigation remain entirely intact.  All that changes is police’s capability to operate—still within those traditional limits and authorities.

As to the second question, no, we’re not.  We’re saying get a warrant for the activity, and then (properly) use the most efficient methods at your disposal.  The need for a warrant to do these things is both unchanged and technology agnostic.  Just execute it without the idle delays that led to the original warrant, in Jones, for instance, expiring before the surveillance was carried out.  As I noted above, getting the warrant only interferes with the police’s “methods” if the investigation isn’t…warranted…in the first place.

Additionally, the convenience of the government is not an excuse for abridging individual liberties.  The convenience of the government is limited by our Constitution to 17 enumerated powers, and nothing else.  Just to saucer and blow this, our Constitution also notes that the contents of that “nothing else” are explicitly reserved to the States and to the People.

As to the third question, it shows a misunderstanding of privacy.  Privacy remains the property and the business of the individual, independently of the technology available with which to penetrate that privacy.  Most especially, privacy is not something our government will choose to allow according to its convenience and magnanimity.  Indeed, the fact that there is an ongoing hue and cry over the abuses of our privacy by the various social media and the various cell phone software providers demonstrates that, even in today’s technologically-driven openness capability, we still demand our individual privacy be respected.

Welfare and the General Welfare

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It has been argued that providing welfare for the least fortunate among us serves the common good—our “general Welfare.”  This is certainly true when that welfare flows from individual to individual or group, or from private group or the community to the individual or the group.

However, when that welfare flows, as a first resort, from government, it cannot be for the general Welfare—both by design and by logic.  That government welfare is not in the design of our government, not in our Constitution, is made plain by Representative James Madison in the 3rd Congress, on the matter of providing welfare to Haitian revolution victims:

Mr. Madison wished to relieve the sufferers, but was afraid of establishing a dangerous precedent, which might hereafter be perverted to the countenance of purposes very different from those of charity.  He acknowledged, for his own part, that he could not undertake to lay his finger on that article in the Federal Constitution which granted a right of Congress of expending, on objects of benevolence, the money of their constituents.

Rep Madison clearly recognized the dangers inherent in government-driven welfare: our Constitution has given our Federal government authority to pursue certain limited ends only.  These ends do not include authorization to provide the vast array of goods and services that today reduce so many of us to government dependency.  Instead, assistance is properly first the obligation of private individuals and private organizations, where dependency is not automatically created, and where it is accidentally, the scope of that dependency is far more limited.

Thomas Jefferson recognized, as well, the danger of ascribing a welfare component to the “general Welfare”—the national welfare—clause of our Constitution.  To interpret, wrote Jefferson, “general welfare” as granting the Federal government an independent power to “do any act they please, which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless.”  He wrote on another occasion, “Congress has not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated….”  Plainly, this includes a lack of Constitutional authority to provide welfare to individuals or to government-selected groups of individuals.

Nor can the government, as a first resort, provide welfare—under the guise of the general Welfare—as a matter of logic.  The general Welfare is the common good; it is the benefit of all of us as a national whole.  Thus, it cannot the benefit only some of us, and it cannot diminish any of us.  Yet, when government serves as the provider of the first instant of welfare, it can do so only by taking from some and giving it to others through a wealth redistribution mechanism—by taking from a disfavored group and giving the proceeds to a favored group.  Plainly, setting some groups above others cannot serve the common good: it can serve only a part of the whole, and it can do so only at the expense of the rest of the whole.

In the end, then, if there is to be welfare, and there needs to be, it must come from us directly.  Welfare is a matter of our personal obligations—from our Judea-Christian heritage and from those First Principles of our Declaration of Independence.  All men have an inalienable endowment, imbued in us by our Creator.  We have, then, a personal obligation to be the first source of welfare for those less fortunate than us, who actually need the hand up.  But it must come first from us to us, and not first through our government as intermediary.

A question was asked recently of the Estonian Economics Minister Juhan Parts.  “[D]oesn’t the government have to help those on the losing end of social change?”   “Of course,” he answered, “it’s important to help a society’s losers, the ones who are left behind. It would be wonderful to have a fantastic healthcare system and offer social guarantees for every emergency.  But you have to have the money.  We…have to reflect on what’s important for a society’s development….  If all you do is administer, nothing comes of it. The state must clear the way for those who want to achieve something. That’s the function of the state.”

We knew that once.  We would do well to relearn it.  Together with that uniquely American perspective (absent, you’ll notice, from Parts’ answer): we are first to help each other.