Archive for May, 2010

Finally — what the Constitution was REALLY supposed to mean (or, why I haven’t been posting much on The Cauldron recently)

Posted by on May 30 2010 | Constitutional History, federalism, Legal professor, PPC, U.S. Constitution

One question I often get (that is, I, Rob Natelson, not Jon Caldara, although he may get the question, too)  is “Can you recommend a book I that will tell me in simple language what the entire Constitution was originally supposed to mean?”

I haven’t been able to recommend one, so I wrote The Original Constitution: What It Actually Said and Meant. It is now available in e-book form. Hard copy will follow in a few weeks.  (Folks at the Independence Institute assisted with production.)

The book surveys in fairly easy language the legal meaning of the entire Constitution as of late 1791, just after adoption of the Bill of Rights.

(Another shameless plug:  For those interested a more academic approach, Cambridge University Press will be publishing my co-authored work, The Origins of the Necessary and Proper Clause, later this year.)

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2010 Legislative Wrap-Up Playlist

Posted by on May 28 2010 | Idiot Box (TV Show)

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2010 Legislative Wrap-Up

Posted by on May 28 2010 | Idiot Box (TV Show)

Longtime veteran of the show Lynn Bartels from the Denver Post and Ed Sealover of the Denver Business Journal are in studio with me for the 2010 State Legislature review. Topics include medical marijuana, teacher tenure reform, and the legacy that Governor Bill Ritter will leave behind. Check our 2nd episode of Devil’s Advocate, airing tonight at 8:30PM on KBDI Channel12; repeated the following Monday afternoon at 1:00PM.

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Regulate This FCC!

Posted by on May 27 2010 | Events, Regulation

If you didn’t get a chance to attend our Net Neutrality event yesterday afternoon at the swank Pinnacle Club downtown, there’s a good chance you tuned in via our live-stream. We not only had a great turnout at the event, we also hit some fantastic numbers on our live-stream. Additionally, the press took notice of this important topic and our event made the rounds at the Denver Post, Denver Daily News, and the Colorado News Agency.

Live Broadcast by Ustream.TV

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How Many Laws Did You Break this Week?

Posted by on May 27 2010 | Government Largess, Justice, PPC

Those who claim to believe in “limited government” or “smaller government” or “Individual liberty” tend to focus on spending and government growth, entitlement programs and other forms of wealth transfer, and that’s all well and good.  But all too often, the coercive power of criminal law, and criminally enforceable regulatory law is overlooked.

In the 2004 Cato Institute book Go Directly to Jail: The Criminalization of Almost Everything, James V. DeLong writes, “It seems as if the Left and Right have entered into an agreement whereby each side gets to criminalize conduct it abhors so long as it lets the other side do the same.”

It has been a dysfunctional relationship to say the least.

As described in Go Directly to Jail, there are now thousands of federal crimes filling some 27,000 pages of the U.S. Code, plus an untold numbers of criminally enforceable regulations expressed in the tens of thousands of pages of the Code of Federal Regulations.

And it looks like things are only getting worse.

In early May, the conservative Heritage Foundation teamed up with the National Association of Criminal Defense Lawyers to publish Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.

The report finds that, “…the 109th Congress alone proposed 446 non-violent criminal offenses, 57 percent of which lacked an adequate guilty-mind requirement.”  Twenty-three of those inadequately protective offenses were enacted into law.

Other findings of egregious lawmaking activity by the 109th Congress includes:

  • Criminal legislation was riddled with vague, far-reaching and imprecise language;
  • Congress routinely delegated its authority to make criminal law to unaccountable regulators;
  • Over half of all new criminal offenses were not sent to the House or Senate Judiciary Committees for review.

These findings  should set off loud alarms with limited government conservatives, civil libertarians, and anyone else who cares about unjust government encroachment into American liberties, and the integrity of the American justice system.

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Bringing a case against Arizona before the Inter-American Commission on Human Rights

Posted by on May 26 2010 | immigration, International Human Rights Law

(David Kopel)

Apparently that is the plan of several Mexican and Arizona legislators. (Original story in Spanish from El Semanario here.)

The Inter-American Commission on Human Rights is the Oranization of American States administrative body responsible for hemispheric human rights enforcement. Generally speaking, if the Commission finds that the government has violated human rights, the Commission attempts to resolve the matter by issuing recommendations to that the government. However, if the Commission considers the case unusually important, or if the government obdurately ignores the recommendations, the Commission can bring the case to the Inter-American Court of Human Rights.

That Court, ocated in San José, Costa Rica, has the duty is to interpret and hear cases on the American Convention on Human Rights. Significantly, however, the Convention has only been ratified by 24 of 35 OAS members, and the United States is not among the ratifiers.

Accordingly, the United States is not currently subject to the Court’s “adjudicatory function.” (In an adjuticatory function case, the defendant government can be ordered to pay money, or to do particular things). The adjuticatory function is available only if the defendant government has accepted the Court’s jurisdiction, and has ratified the American Convention on Human Rights. A state can accept the Court’s jurisdiction on a case-by-case basis, or can submit to blanket jurisdiction.

Besides adjudicating cases, the Inter-American Court can also act in an Advisory function. It does so when asked by an OAS agency or OAS member state. In the Advisory role, the Court can interpret the American Convention on Human Rights, or any other treaty which applies to human rights in the Americas. The Court can also advise whether existing or proposed domestic laws are compatible with those treaties.

Thus, unless the Senate ratified the American Convention on Human Rights and the US government accepted the jurisdiction of the Inter-American Court, neither the Court nor the Inter-American Commission on Human Rights can issue a legally binding decision against the Arizona laws against illegal aliens. Either the Commission or the Court could issue non-binding advisory opinions as to whether the Arizona laws violate international law.


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The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school

Posted by on May 24 2010 | Academia, congress, Constitutional History, Counter-Terrorism Policy, Criminal Law, Economic LIberties, education, guns, History, Law schools, Legal professor, Militia, Rehabilitating Lochner, William Simkins

(David Kopel)

My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for three decades in the early 20th century. He was also a founder of the Ku Klux Klan in Florida, and every year at UT he gave a formal speech extolling the Klan.

Most of Russell’s paper concentrates on Simkins’ career at UT, as well as the 1954 decision (five weeks after Brown v. Board was announced) to name the dormitory after him. I was curious to learn more about Simkins had actually done with the Florida Klan, so I read Michael Newtown’s book The Invisible Empire: The Ku Klux Klan in Florida.

The Florida KKK organized in 1867–68. Simkins later described himself at the Klan leader in Taylor, Madison, and Jefferson counties. These three contiguous counties are part of the eastern panhandle, east of Tallahassee. As far as the record shows, Simkins never claimed that any Klan actions in those counties had been carried out contrary to his orders, or that he regretted anything the Klan did in those counties. Accordingly, it is plausible to hold Simkins personally responsible Klan activity there.

Federal troops were withdrawn from Florida in July 4, 1868. From July 8 through 14, five blacks were murdered by “white regulators.” In mid-July through October 1868, the Madison County KKK murdered seven more blacks, including Randall Coleman, a leading Republican.

In Taylor County, “masked night riders paraded with KKK flags and threatened farmers who refused to join the Klan.”

Florida’s Governor Reed had purchased two thousand muskets for the state militia. On the night of November 5, 1868, while the train carrying the muskets had stopped at the Greenville station in Madison County, Klan raiders removed all two thousand muskets–destroying some, and keeping the rest. Simkins later bragged that “Every telegraph operator, brakeman, engineer and conductor on the road was a Ku Klux.”

The Jefferson County Klan coerced white farmers into refusing to sell land to freedmen, or to taking the money, and then having the Klan drive the freedmen off his new freehold.

According to Newton, Madison County was the second-worst county in Florida for Klan violence, with 25 murders from 1868–71. The victims were always members of the Republican party.

On the night before the November 7, 1870, election, “armed riders invaded” the town of Madison, “harassing black voters.” On election day in Monticello, Jefferson County, “Georgia Klansmen joined the local mob and hundreds of shots were fired in a rioutous demonstration of white solidarity,” intended to frighten blacks against voting.

The election results left the state government weakly in reconstructionist hands. The store belonging to Madison County Sheriff Montgomery was burned on December 17.

Congress passed a new, stronger Enforcement Act in April 1871, and in November, a congressional subcommittee held four days of hearings in Tallahassee about Klan crimes. Even so, another Republican’s store was torched on November 6, 1871. However, President Grant’s October declaration of martial law in nine South Carolina counties had a chilling effect on the Klan, and by 1873, Florida Klan supporters were denying that there have had been a Klan in Florida, or were claiming that if there had been one, it was no longer active.

Simkins himself happened to leave Florida for Texas in either 1871 or 1873. (Sources conflict.) He particpated in two 1894 U.S. Supreme Court cases, Reagan v. Farmers’ Loan & Trust Co. and Reagan v. Mercantile Trust Co. He supported the Texas Attorney General’s argument that the judiciary had no power to review the reasonableness of railroad rates which had been established by the Texas Railroad Commission. The Supreme Court, in an unanimous opinion by Justice Brewer, disagreed.

That Simkins was an advocate of the unreviewable power of unreasonable government economic regulation should be no surprise. As David Bernstein explains in his book Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal, the caste system of Jim Crow was founded on government power to prevent black and white people from freely choosing to engage in economic relations.

Last Friday, the University of Texas announced the formation of a special working group which will issue a report on the Simkins naming controversy by the end of June.

Simkins should have been denied admission to the Florida bar in 1870, based on his admitted role in the theft of firearms from the militia of the state of Florida, and his role in organizing and leading a terrorist organization which appears responsible for numerous homicides and many other violent felonies. In 1870, the Florida Supreme Court did not know of the evidence regarding Simkins’ terrorist crime spree in 1868–70,  but the 2010 working group will have more information.

Of course the fact that a person is an unrepentant, retired, terrorist is not necessarily a bar to being a professor at a prestigious law school–not for William Stewart Simkins at Texas in the early 20th century, or for Bernardine Rae Dohrn at Northwestern in the early 21st century.

Readers who are interested in more on the Simkins controversy may enjoy the blogging thereon at The Faculty Lounge, which has been covering the story since Russell released his paper.


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Solution to Government Failure: More Government

Posted by on May 24 2010 | Government Largess, PPC

In the May 12 Denver Post, President Barack Obama wrote that the financial crisis “forced taxpayers to foot the bill for irresponsible practice on Wall Street” and that the financial regulation bill (what the president calls “Wall Street reforms”) moving through Congress will, among other things, end the “worst abuses and irresponsible practices we’ve seen in recent years.”

In other words, the financial crisis demands a massive new dose of government intervention.

Independence Institute Senior Fellow Barry Poulson begs to differ.  From the May 23 Denver Post opinion page:

Re: “Reforming Wall Street is essential,” May 12 op-ed by President Barack Obama.

President Obama makes the case for Sen. Chris Dodd’s financial regulation bill that will end “too big to fail” bailouts of financial institutions. He writes that the cost of this proposed financial market regulation will be paid for by financial institutions, not taxpayers.

But the president’s arguments are incorrect. The financial crisis was the result of flawed governmental institutions and financial market policies. So what we need are some reforms in Washington, D.C.

The origin of the financial crisis can be traced to policies encouraging unqualified borrowers to assume risky mortgages, and to mandates that financial institutions extend loans to these borrowers. The Federal Housing Authority loosened standards applied in non-prime lending. Through the Community Reinvestment Act and Department of Housing and Urban Development, the government pressured lending institutions to extend credit to unqualified borrowers.

The crisis was exacerbated by the quasi- governmental institutions Fannie Mae and Freddie Mac, which created a moral hazard by implicitly guaranteeing mortgages. By the time they collapsed in 2008, they together held $5 trillion in mortgages and mortgaged-backed securities. They continue to incur billions in losses, requiring taxpayer bailouts. The regulation the president favors does nothing to reform these institutions.

The mortgage bubble was also exacerbated by the cheap money policies pursued by the Federal Reserve System. Following the recession in 2001, the Fed reduced the federal funds rate to 1 percent. This policy fueled an unsustainable growth in liquidity, ending in the credit market collapse.

The Dodd bill would give the FDIC expanded powers, including the discretion to take over financial institutions, using the “orderly liquidation fund.” In fact, the bill provides for unlimited bailouts of financial institutions. The funding for these bailouts would come from assessments levied on financial institutions. But in reality, Americans invested in the markets would pay for these bailouts through higher costs on financial transactions and fees levied by these financial institutions.

The FDIC should not be given this expanded power over financial markets. Private markets are best at signaling when financial institutions are insolvent or illiquid, and a new bankruptcy code is the best way to address failed financial institutions.

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President Calderon’s claim about “assault weapons”

Posted by on May 21 2010 | guns, International Law

(David Kopel)

Examined in this blog post by my Heritage Foundation co-author Ted Bromund.

Our Background about the CIFTA gun control convention, which President Obama has urged Congress to ratify as a favor to Mexico, is here.


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Local Protectionism You Won’t Believe

Posted by on May 20 2010 | Economics, PPC

Our friends over at the Institute for Justice (IJ) are taking up another fight on behalf of liberty. This time it’s in a small town in Minnesota, where instead of embracing property rights and free markets, Lake Elmo has instituted left-wing style local protectionism. Farmers are being threatened with fines and jail time for engaging in mutually beneficial economic activity! You have to see this video to believe it.

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