David Boaz

Paul Helmke, president of the Brady Campaign to Prevent Gun Violence, has a column on HuffingtonPost and the Atlanta Journal-Constitution arguing that the Supreme Court should uphold the D.C. gun ban and reject the idea that when the Constitution says “the right of the people to keep and bear arms shall not be infringed,” it means that people have the right to keep and bear arms. His basic argument, summed up in the title, is that “The will of the people must not be overruled.” He pounds away at that theme:

Last March, the District of Columbia saw judicial activism replace the will of the people….

More than 30 years ago, the elected representatives on the D.C. City Council decided to enact a system of strict gun laws to help protect public safety. The people in D.C. strongly support these laws….

[The Court of Appeals] imposed their own policy preferences on the people of D.C.

It was a textbook example of judicial activism at its worst….

If the justices reject judicial activism and refrain from substituting their own policy preferences for the people’s elected representatives, then the District of Columbia will prevail. And so will the American people.

As a lawyer and a lifelong Republican, I have deep respect for judicial precedent, for American history and for a close reading of all the words in the Constitution. As one who served as mayor of Fort Wayne, Ind., for 12 years, I also believe in the importance of local communities being able to pass the laws they believe will help keep them safe.

It’s a powerful argument, and it may well resonate with the conservative justices who think that judges often overreach and “substitute their own policy preferences” for those of the people’s elected legislators. But I wonder if Helmke really believes that judges should respect the will of legislators and not strike down laws. Does he believe that the Warren Court should not have struck down school segregation, which was clearly the will of the people’s elected representatives–and no doubt the people–in Kansas, as well as in South Carolina and Virginia, whose similar cases were combined with Brown? Does he believe that the Supreme Court was wrong to strike down Virginia’s law against interracial marriage in 1967? The Texas law outlawing sodomy in 2003? The Communications Decency Act in 1997? Does he indeed think the John Marshall Court was wrong to invalidate the Judiciary Act of 1789 in Marbury v. Madison? That’s the implication of his ringing words in defense of legislative absolutism.

I don’t think he believes this for a minute. I am sure he agrees with Cato’s constitutional scholars that the Supreme Court has an obligation to strike down laws that exceed the powers granted to Congress or that violate the rights protected in the Bill of Rights. He just doesn’t want the Court to apply that rule to the right to keep and bear arms. But in fact there’s an increasingly broad consensus among scholars that the Second Amendment protects an individual right to bear arms. And thus the Court should do its duty and find that an absolute ban on gun ownership by law-abiding citizens clearly exceeds any power of reasonable regulation that might be permitted under a properly understood Second Amendment.

Stephanie Coontz, a historian, suggests in the New York Times that government get out of the marriage business. Why, she asks, “do people — gay or straight — need the state’s permission to marry?”

For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.

For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

So, she says, “Let churches decide which marriages they deem ‘licit.’ But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship.”

It’s a great idea. Indeed, it’s such a good idea that I proposed it in Slate back in 1997:

So why not privatize marriage? Make it a private contract between two individuals. If they wanted to contract for a traditional breadwinner/homemaker setup, with specified rules for property and alimony in the event of divorce, they could do so. Less traditional couples could keep their assets separate and agree to share specified expenses. Those with assets to protect could sign prenuptial agreements that courts would respect. Marriage contracts could be as individually tailored as other contracts are in our diverse capitalist world. For those who wanted a standard one-size-fits-all contract, that would still be easy to obtain. Wal-Mart could sell books of marriage forms next to the standard rental forms. Couples would then be spared the surprise discovery that outsiders had changed their contract without warning. Individual churches, synagogues, and temples could make their own rules about which marriages they would bless.

One of the problems with this whole idea is that, as usual, the state has entangled itself in our lives. There are 1049 federal laws that mention marital status, most of them dealing with taxes or transfer payments. If marriage becomes a matter of private contract, the federal government will still have to decide whether to recognize all such contracts for the purpose of handing out marital benefits. And that doesn’t even get into custody, inheritance, property, next-of-kin, hospital visitation and other sorts of laws usually handled at the state level. Just another example of how the intrusion of the state into every corner of society makes it difficult to privatize any aspect of life. But it’s good to see the idea getting some discussion.

Kudos to Nick Gillespie and Matt Welch for dominating the Washington Post’s Sunday Outlook section the way Ron Paul supporters dominate online polls.  And kudos to the Post for running an article on the Ron Paul phenomenon by writers who actually sympathize with it. Gillespie and Welch write about “a new and potentially transformative force . . . in American politics”:

That force is less about Paul than about the movement that has erupted around him — and the much larger subset of Americans who are increasingly disillusioned with the two major political parties’ soft consensus on making government ever more intrusive at all levels, whether it’s listening to phone calls without a warrant, imposing fines of half a million dollars for broadcast “obscenities” or jailing grandmothers for buying prescribed marijuana from legal dispensaries.

Paul, who entered Congress in 1976, has been dubbed “Dr. No” by his colleagues because of his consistent nay votes on federal spending, military intervention in Iraq and elsewhere, and virtually all expansions of federal power (he cast one of three GOP votes against the original USA Patriot Act). But his philosophy of principled libertarianism is anything but negative: It’s predicated on the fundamental notion that a smaller government allows individuals the freedom to pursue happiness as they see fit. …

Paul’s “freedom message” is the direct descendant of Barry Goldwater’s once-dominant GOP philosophy of libertarianism (which Ronald Reagan described in a 1975 Reason magazine interview as “the very heart and soul of conservatism”). But that tradition has been under a decade-long assault by religious-right moralists, neoconservative interventionists and a governing coalition that has learned to love Medicare expansion and appropriations pork.

The Reason editors cite a 2006 Pew Research Center poll that found 9 percent of libertarians holding basically libertarian values. I’m sorry that out of all such calculations they picked the one that found the smallest number of libertarians. As David Kirby and I pointed out in “The Libertarian Vote,” Gallup found 21 percent. Using somewhat more restrictive criteria, Kirby and I found that libertarians were 13 percent in the Gallup and American National Election Studies surveys, 14 percent in a different Pew survey, 15 percent of actual voters in the ANES survey, and 15 percent in a Zogby survey of 2006 voters.

Of course, some of the Ron Paul supporters wouldn’t show up in any of those estimates. They’re conservatives who are fed up with Republican spending, liberals who want to stop the war, and previously apolitical folks who are attracted to straight talk. Gillespie and Welch do a good job of describing the quintessentially American spirit that draws them together.

Naomi Wolf has an article in today’s Washington Post tied to her new book, The End of America: A Letter of Warning to a Young Patriot. The essay is actually a lot less leftist than the book. She deplores the civic illiteracy among young people that leaves them feeling ”depressed, cynical and powerless.” And she blames influences on both left and right: the Bush administration’s portrayal of “freedom and checks and balances as threats to national security,” of course, and also the No Child Left Behind Act’s emphasis on math and reading rather than civics and history. But also, she notes, “When New Left activists of the 1960s started the antiwar and free speech student movements, they didn’t get their intellectual framework from Montesquieu or Thomas Paine: They looked to Marx, Lenin and Mao.”

Perhaps her most interesting claim is this:

Teenagers and young adults often have no clue why the United States is different from, say, Egypt or Russia; they have little idea what liberty is.

Few young Americans understand that the Second Amendment keeps their homes safe from the kind of government intrusion that other citizens suffer around the world; few realize that “due process” means that they can’t be locked up in a dungeon by the state and left to languish indefinitely.

I rather suspect that this lefty writer who has written a whole book and launched an organization to “protect and defend the Constitution from assault by any President” meant to cite the Fourth Amendment, not the Second Amendment.

But maybe I’m being cynical. Maybe Naomi Wolf knows full well that it is the Second Amendment that ”keeps [our] homes safe from the kind of government intrusion that other citizens suffer around the world.” The Fourth Amendment may promise “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But without the Second Amendment, and the well-armed citizenry it protects, how secure would our rights be? Certainly there’s no Second Amendment in Egypt or Russia, the countries she notes in contrast. The Soviet Constitution guaranteed its citizens freedom from search and seizure. But it did not guarantee the right to keep and bear arms.

So welcome, Naomi Wolf. And as the effort moves forward to protect our Fourth Amendment rights and to get Congress to remember its Article I powers, remember that there’s also an effort currently underway in the Supreme Court to protect our Second Amendment rights.

In Sunday’s “Opus” cartoon, Berkeley Breathed suggests that Opus, becoming middle-aged, will naturally find himself sliding straight into the welcoming arms of the Republican party. The general idea of middle-aged conservatism is understandable enough. There’s an old saying, attributed to many different authors, that “if you’re not a socialist at 20, you have no heart. If you’re still a socialist at 40, you have no brain.”

But Breathed reveals his own advancing age when he depicts the Republican organizers wooing Opus with the promise of “Balanced budgets — and smaller government! And no nation building! We’re not the world’s policemen!” When’s the last time Republicans offered such a platform?

Oh, right, George W. Bush in 2000. But seven years is a lifetime in politics. Today’s Republican party offers massive deficits, a government virtually unlimited in size and scope, and a Wilsonian-neocon foreign policy that is both policeman and nursemaid to the world. I wonder if even a middle-aged penguin would sign up for that.

In Friday’s Washington Post, Michael Gerson hails “a groundbreaking essay by Peter Wehner and Yuval Levin in Commentary magazine, which notes that most “social indicators” have improved:

“Over the past fifteen years, on balance, the American family has indeed grown weaker,” the authors argue, “but almost every other social indicator has improved.” Crime rates have plunged, teen drug use and pregnancy have declined, educational scores are improving, welfare caseloads have fallen 60 percent, and the number of abortions has dropped.

That is indeed important news, often lost in conservative jeremiads about the state of the culture. But I’m not sure it’s actually “groundbreaking,” considering that you could have read it more than a year ago in Cato Policy Report or indeed right here at Cato@Liberty. As Radley Balko wrote in the September/October issue of Cato Policy Report,

Nearly every social indicator is trending in a direction most of us would consider positive.

Here are just a few examples, culled from government agencies and advocacy groups: Teen pregnancy is at its lowest point since government researchers have been keeping statistics. Juvenile crime has been falling for 20 years (though there was, admittedly, a slight uptick last year). Crimes against children are down. The number of reported rapes has dropped dramatically over the last two decades, even as social stigma against rape victims has subsided. Despite a negligible increase last year, overall crime in the United States has also been in decline for 15 years.

(more…)

The New York Times reports:

Buried deep in the largest domestic spending bill of the year is money for a library and museum honoring first ladies. The $130,000 was requested by the local congressman, Representative Ralph Regula, Republican of Ohio. The library was founded by his wife, Mary A. Regula. The director of the library is his daughter, Martha A. Regula.

Other “namesake projects” in the bill include the Charles B. Rangel Center for Public Service at City College of New York, named for the chairman of the House Ways and Means Committee; the Thad Cochran Research Center at the University of Mississippi, named for the senior Republican on the Senate Appropriations Committee; and the Thomas Daschle Center for Public Service at South Dakota State University, honoring the former Senate Democratic leader.

The bill also includes “Harkin grants” to build schools and promote healthy lifestyles in Iowa, where Senator Tom Harkin, a Democrat, is running for re-election.

The federal government is taking $2.9 trillion of our hard-earned money this year. That will include the need to borrow $155 billion because even the record $2.8 trillion tax haul isn’t sufficient to cover all of America’s vital needs. Like the National First Ladies Museum and the Charles B. Rangel Center for Public Service. Really, have they no shame? Politicians tax Americans to build monuments to themselves, or to provide jobs for their families.

Projects that are actually needed–federal courthouses, perhaps, or highways–might appropriately be named for great Americans of the past. But naming monuments for living politicians is a bit too reminiscent of North Korea or Turkmenistan. Perhaps if we’re going to name public works projects for living people, they should all be named for the people who actually pay for those projects–the taxpayers. So we could name them Taxpayers’ Highway, Taxpayers’ Federal Courthouse, Taxpayers Airport.

But at least those are useful projects. The earmarks mentioned above are for fripperies and indulgences and monuments to the ego of politicians. Members of Congress should be ashamed to spend the money taxed away from working people on these tributes to themselves.

John Boehner, the leader of House Republicans, responds to a Washington Post editorial challenging him to identify what he would cut out of the budget to avoid “an irresponsible tax increase” to offset a reduction in the Alternative Minimum Tax. Seeking to restore the GOP’s fiscally conservative image, publicly challenged to offer a plan, employing all the resources of the House Republican Caucus, these are the budget cuts that Minority Leader Boehner came up with:

* $3.2 billion to revive outdated programs, such as one funding exchanges “with historic whaling and trading partners.”

* $1 million for the Clinton School of Public Service in Arkansas.

* $300,000 for an “Exploratorium” in San Francisco.

* $100,000 for an educational program conducted aboard a catamaran in California’s Monterey Bay.

So out of the $2.9 trillion federal budget, the leader of the House Republicans manages to come up one $3.2 billion appropriation and three tiny earmarks that appear to be personal projects of Hillary Rodham Clinton and Nancy Pelosi.

Boehner is right when he goes on to say, “Moreover, the editorial missed the point. Congress doesn’t have a revenue problem. Revenue is at an all-time high after the 2001 and 2003 tax cuts, which have triggered economic growth that is ‘paying for’ an AMT patch many times over.” But he then notes, “Rather, Congress has a spending problem.”

Indeed. The Republican Congress of which Boehner has been a leader has increased spending by a trillion dollars in six years. And out of that massive gush of taxpayer dollars, Boehner can find only $3.2 billion in unnecessary spending. Which is perhaps why polls now show that voters trust Democrats more than Republicans on the issue of cutting government spending.

William Kristol, a top Republican strategist and editor of the Weekly Standard is pushing Democratic senator Joe Lieberman for vice president, on the strength of Lieberman’s full-throated support for the war without end. Pete Wehner, the leading intellectual in the Bush White House (OK, but still–that carries some weight in the Bush party), backs the idea in National Review. 

True, Lieberman is one of the few Americans still solidly behind Bush’s war. But that couldn’t be sufficient for Republicans to put himself a heartbeat from the presidency, right? He must share Republican values on other issues, right?

Not really. As Robert Novak pointed out back when Republicans were endorsing Lieberman for reelection,

Lieberman followed the liberal line in opposing oil drilling in ANWR, Bush tax cuts, overtime pay reform, the energy bill, and bans on partial-birth abortion and same-sex marriage. Similarly, he voted in support of Roe vs. Wade and for banning assault weapons and bunker buster bombs. His only two pro-Bush votes were to fund the Iraq war and support missile defense (duplicating Sen. Hillary Clinton’s course on both).

Lieberman’s most recent ratings by the American Conservative Union were 7 percent in 2003, zero in 2004 and 8 percent in 2005.

I actually agree with him on a couple of those votes, though I wouldn’t expect that conservatives would. The National Taxpayers Union said that he voted with taxpayers 9 percent of the time in 2005, worse than Chris Dodd or Barbara Boxer. Maybe because of all the Republican love in 2006, he soared to a 15 percent rating.

In a previous speech, Lieberman called for a tax increase so that we could continue the war without “squeezing important domestic programs, as we have been doing”–his view of a period during which federal spending rose by one trillion dollars:

During the Second World War, our government raised taxes and we spent as much as 30 percent of our Gross Domestic Product to defeat fascism and Nazism. During the war in Korea, we raised taxes and spent fourteen percent of GDP on our military…Today, in the midst of a war against a brutal enemy in a dangerous world, we have cut taxes and are spending less than five percent of GDP to support our military…It is not an acceptable answer to push the sacrifice of this war against terrorism onto our children and grandchildren through deficit spending, as we have been doing. And it is not an acceptable answer to pay the costs of this war by squeezing important domestic programs, as we have been doing.

Only if you believe that continuing to support the war in Iraq outweighs all other issues combined–for the next five years–could a conservative reasonably support Joe Lieberman. And apparently some Republicans and conservatives are willing to toss aside his commitment to high taxes, higher spending, more regulation, and entitlement expansion in order to get a vice president firmly committed to long-term entanglement in Iraq.

Scholars argue about what Shakespeare’s famous line in Henry VI really means, but I prefer to think that the wise playwright understood that law is a protection for the people and a constraint on rapacious rulers. Which brings us to the situation in Pakistan, where President/General Musharraf must be contemplating Shakespeare’s proposition. The glamorous Benazir Bhutto gets the headlines, but the real conflict is between Musharraf and the judges and lawyers who uphold the rule of law.

The latest crisis began last March, when Musharraf suspended Supreme Court Chief Justice Iftikhar Chaudhry. The rest of the Supreme Court then reinstated the chief justice. After questions arose about the legitimacy of Musharraf’s reelection, the general suspended the constitution and brought lawyers into the streets.

Lawyers. In the streets. In suits, as a Washington Post essayist noted. It’s not the usual image of a revolution. The people leading the rebellion against Musharraf’s undemocratic rule are not embattled farmers, or sans-culottes, or proletarian mobs, or even Buddhist monks. They’re lawyers, people normally committed to quiet meetings, legal briefs, formal argument, and decisionmaking processes both judicial and judicious.

But as Husain Haqqani, a former adviser to three Pakistani prime ministers, wrote in the Wall Street Journal:

Pakistan’s burgeoning civil society, led by lawyers and encouraged by judges ousted from the Supreme Court, is refusing to be cowed. Protests are spreading despite thousands of arrests and the use of tear gas and batons against peaceful demonstrators. More than 1,700 attorneys have been jailed but still more are taking to the streets. University students have joined the lawyers, and former Prime Minister Benazir Bhutto has vowed to violate a ban on public meetings by leading a rally on Friday.

There are a number of important reasons why Pakistan’s attorneys are leading the protests against Mr. Musharraf. They have a long tradition of activism for rule of law and human-rights issues. In 1968-69, the lawyers started the campaign that resulted in the ouster of Pakistan’s first military ruler, Field Marshal Ayub Khan. They also were at the forefront of the campaign against Mr. Zia-ul-Haq, whose 11-year military rule ended when he died in a 1988 plane crash.

The sympathies of Americans should be with the Pakistani people and the rule of law, not with any political player in the current struggle. It is not for the United States government to pick winners in Pakistan, but we should free ourselves of the belief that Musharraf is the only force capable of opposing radical Islamic terrorism in the country. Chief Justice Chaudhry, in Haqqani’s words, “has become a symbol of resistance to arbitrary rule — the man who refused to roll over and disappear, unlike earlier judges who cooperated with military rulers or simply went home when their conscience dictated otherwise.” He may one day be seen as the Joan of Arc or the George Washington of his country’s revival.

Haqqani writes, “Mr. Musharraf seems determined to put his own political survival before the rule of law — actions that warrant the label dictator. Pakistan’s attorneys, and increasingly the rest of its citizenry, seem equally determined to prevent this from happening.” Americans should wish them well.