Archive for June, 2011

Denver Post, Durango Herald Reporters Join Me

Posted by on Jun 30 2011 | Idiot Box (TV Show), PPC

Tune in to the Independence Institute’s public affairs television show, Devil’s Advocate, this Friday at 8:30PM on Colorado Public Television 12 as I am joined by Durango Herald reporter Joe Hanel and Denver Post reporter Tim Hoover for an update on summer time political happenings around Colorado. Episode airs tomorrow night on Colorado Public Television 12 at 8:30pm, with a repeat showing this Monday at 1:30pm.

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Podcast: Rob Natelson on the Time Mag Article

Posted by on Jun 29 2011 | Constitutional History, Constitutional Law, iVoices.org, PPC, U.S. Constitution

Our Constitution scholar Rob Natelson’s deconstruction of the highly inaccurate Time Magazine article on the Constitution has received a ton of attention. (Thanks Instapundit)! I also wanted to point you towards a podcast Rob did on this very subject. You can find it over on iVoices.org here. In it, Rob goes into some more detail about certain illogical and inaccurate statements made in the Time Mag article. I just can’t get enough of this stuff!

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Suggestions for your periodical reading list

Posted by on Jun 29 2011 | Media, Press, Self-indulgent Academic Rumination

(David Kopel)

Although on-line reading continues to grow, many people still enjoy old-fashioned printed periodicals. In the spirit of gratuitous advice, here are some suggestions for print subscriptions.

First of all, if you’re conscientious about registering for the frequent flyer program every time you step on an airplane, you may accumulate a few thousand points on various airlines which you fly only occasionally. You’ll never get to the level of a free ticket, but the points expire if you don’t use them. So use them for magazine subscriptions. I’ve been enjoying the daily Wall Street Journal that way for several years, and have used low-level points for dozens of other year-long or half-year subscriptions over the past decades.

Second, there’s a lot to be said for trying many different periodicals with one-time subscriptions. You may find a magazine that becomes indispensable for you (as The New Republic was for me, for about 15 years), but just reading something for a year or a half-year can broaden your knowledge, and then you can move on to something else.

Some category recommendations:

Newsweeklies: Back in the olden days of the 1970s, these were truly great. Then, the daily New York Times wasn’t available outside of the New York area, and the Wall Street Journal was sparse on non-business news. Time and Newsweek, and to a lesser extent U.S. News & World Report, provided in-depth, thoroughly-reported stories of the major issue of the week, the deep inside of presidential campaigns, and so on. These days, it’s hard to make a case for reading the remnants of those once-important magazines.

The Economist is still probably the most influential periodical in the world. If you read its U.S. coverage, you’ll quickly discover that the analysis is not nearly so sharp and insightful as the omniscient tone would imply, and that the coverage has numerous blind spots and biases. Knowing how flawed the U.S. coverage is makes me question The Economist’s accuracy on topics for which I don’t know enough to judge the coverage. So in a sense, the less you know about something, the more useful The Economist is. For example, the latest issue had an article explaining that Poland is going full speed ahead with natural gas development via fracking. Because I previously had never thought about Polish natural gas, I learned a lot by reading the article. Overall, The Economist is still a strong source for weekly world news, as long as you don’t take its editorial judgements too seriously.

If you read French, Courrier International is definitely worth a trial subscription. This Paris-based weekly takes stories from newspapers all over the world, and translates them into French. You’ll get acquainted with many fine newspapers. I ultimately gave up on Courrier because their story and source selection leaned so heavily to the official left. If the choice is between a particular nation’s version of The Guardian vs. The Telegraph, Courrier almost always goes with the former. Their special issues were particularly tendentious and one-sided. But since tastes vary, I’d recommend that people who read French give it a try.

Le Figaro, one of the leading French daily newspapers, publishes a weekly edition for a U.S. audience. It’s well-written, and has good coverage of all the Francophone world, including African analysis that is hard to find in U.S. papers. As with The Economist and Courrier International, there’s also plenty of European news that you won’t find in the U.S. dailies. Le Figaro is right-wing by French standards, which places its approximately in the same zone as the New York Times. Le Monde, which is left-wing by French standards, also has a weekly; I’ve read occasional issues, but never subscribed, and, ideology aside, Le Figaro has bigger print and better layout.

Business and Finance: If you’re a law student, or in the same general age group, the time to start learning about business and investing is now. Don’t wait until you’ve saved $50,000 in a 401(k)  and have to figure out where to put it. The sooner you start reading and thinking about investing and business, the more you’ll see fads and bubbles come and go, and the less likely you’ll be to invest foolishly 25 years from now, or to allow yourself to be led around by a self-dealing financial advisor. Besides, whatever kind of lawyer you become (or whatever other career), you’ll almost certainly be more useful to clients and yourself if you have some background knowledge of business–whether you’re serving as a volunteer on the Board of a small non-profit, or urging your friend not to spend his life savings on program trading.

Forbes, Fortune, and Business Week remain the big three of the business magazines. Give each of them a try, and pick your favorite. I life Forbes, for excellent writing, and its pro-capitalist orientation. Barron’s is worth a trial subscription. It’s purely about investing, not about business in general. For a person just starting to think about the stock markets and other financial investments, Barron’s is a good choice. You may not want the avalance of daily information that comes in the Wall Street Journal or Investor’s Business Daily. Rather, in the learning stage, you may be better off with the weekly perspective. Especially useful are the big articles which provide the viewpoints of numerous experts on a major topic (e.g., how will the economy perform in the next 12 months?). As you’ll find, experts, even well-qualified and sincere ones, are often wrong about economic predictions. One of the reasons to start reading the business/finance press early in life is to develop a healthy skepticism about following any single expert’s advice.

Money is OK if you know absolutely nothing about money, and have to start at the very beginning.

New York City:  If you’ve ever lived there, it’s fun to stay in touch. Of course the New York Times takes care of this for plenty of readers who used to live in The City, but there are other options. New York magazine is lively and interesting, and captures the NY feel in a way that the Times doesn’t. It also sometimes has strong reporting on national politics. Also worth trying is the weekly New York Observer newspaper, which has great coverage of state and city politics. As with New York, the political slant is firmly to the left, but the factual reporting can sometimes be very good. The New Yorker remains, for eight decades running, the best cartoon magazine in the world. It has, unfortunately, also become a favorite vehicle for character assassination–sort of a highbrow version of ProgressNow. I’d trust its non-fiction articles only on topics which don’t involve U.S. politics.

Legal newspapers: Especially if you can get a law student discount subscription, the National Law Journal (general national news), Legal Times (D.C. focus), and American Lawyer (corporate lawyers) are all worth trying. The same goes for any local/regional law paper in your area, such as New York Law Journal. Because of the Internet, none of these are probably as influential as they were 20 years ago, but they’re still a good way to diversify your diet of legal news.

Daily newspaper: Coverage of legal issues in the mainstream daily press is typically horrible, with stories tending to concentrate only on who won or lost, while leaving the reader in the dark about the precise legal issue in dispute. But for general coverage of the state where you live, there is still nothing that comes remotely close to the daily newspaper. So if you live in the Denver area, you ought to be a daily reader the Denver Post; in Dallas,  the Dallas Morning News, and so on. Yes, those papers can be biased and selective, but they’re still far superior to any other single source for state and local coverage.

On top of that, I’d recommend a high-quality national newspaper. In other words, the Wall Street Journal or the New York Times. The Times has a much larger “news hole,” except for business news. But the Journal’s new stories are much less likely to be DNC opinion essays misplaced in the news section. While both papers are well-written, the Journal is better-written. And the Journal’s Friday/Saturday culture and leisure coverage has gotten quite good. For the Times, I’d recommend a partial weekly subscription (e.g., Monday to Friday), rather than the Sunday paper. You’ll get a better variety of stories in the weekday editions, and the weekly special section on Science and Technology is sometimes excellent.  The Sunday Times does have the Book Review, which is now more important than ever, given the harsh cutbacks in book reviews at almost every other newspaper. But you can always subscribe to the Book Review separately, if it’s important to you.

For a change of pace, London’s Financial Times can sometimes be obtained with airline points. Like the Wall Street Journal, it’s a business newspaper which covers lots of regular news, and some culture. And of course plenty of U.K. news. The editorial viewpoint might, roughly speaking, be considered somewhat similar to The Economist: supportive of free markets and globalization in general, but not at all afraid of big government activism.

Gun Week: Despite the title, published tri-monthly by the Second Amendment Foundation. Pre-Internet, the indispensible source of news on the firearms industry and the gun control issue. Even today, the best single source for people who follow the topic closely.

Bonus on-line reading: One of the big differences between the Wall Street Journal and the New York Times is reporting on the United Nations. The Journal has done excellent investigative reporting on the U.N. The Times has also done some good work, as in coverage of the “peacekeeping” fiasco in the Democratic Republic of the Congo. But Times coverage of U.N. HQ often consists of running p.r. interference on behalf of the U.N. For daily coverage of the U.N., by far the best source in the world is the indefatigable Matthew Lee, of the on-line Inner City Press. Lee’s personal viewpoint is definitely from the Left, but he is relentless at digging into the corruption, lies, and human rights abuses perpetrated by an organization which too often escapes serious journalistic scrutiny, all the more so because of budget cuts in international coverage in most of the rest of the media. To his credit, the United Nations Development Programme temporarily convinced Google News to disappear Inner City Press.

p.s.: In response to some of the comments: Legal Times and National Law Journal merged last year; all the more reason for law students to give NLJ a chance, I guess. The above periodicals are only a small fraction of the periodicals to which I subscribe, and those to which I’ve subscribed in the past. Not included are categories including public affairs (e.g., Mother Jones, Natonal Review, Reason), Congress (National Journal etc.), hobby/lifestyle (Sky & Telescope), sports (Field & Stream), or scholarly journals. I’ll write about some of those when mood strikes.


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Natelson’s reply to Time magazine’s essay on the Constitution

Posted by on Jun 28 2011 | Constitutional History, Constitutional Law, Originalism

(David Kopel)

Time magazine managing editor Richard Stengel has penned a cover essay about the Constitution, One Document, Under Siege. My Independence Institute colleague Rob Natelson wrote a response addressing some of the many illogical or inaccurate claims therein.

For example:

Stengel: “The framers . . . gave us the idea that a black person was three-fifths of a human being, that women were not allowed to vote and that South Dakota should have the same number of Senators as California, which is kind of crazy.”

Answer: The three-fifths compromise was a way of resolving a particularly thorny political difficulty; it was not an anthropological statement. In fact, the framers did recognize—repeatedly—the personhood of African-Americans. Nor did they “give us the idea” that women couldn’t vote; this was left up to the states, and in 1787 women DID vote, formally or informally, in some states. That may be one reason the Founders deliberately left the Constitution gender-neutral. (See p. 63 in my book, The Original Constitution.)

Whether equality of states in the Senate is a good idea is a matter of opinion, but enough very sane people think so to disqualify the idea from being “kind of crazy.”

For Natelson’s point about personhood, see Federalist 54, explaining that the Constitution recognizes that slaves are “moral persons,” not mere property. That’s why Madison was careful to refer to them as “persons.” In New Jersey,  women had the formal right to vote until the legislature changed the law in 1807.

Stengel: “Your doctor’s stethoscope was made in one state and was shipped to and sold in another.”

Answer: Yes, and Congress may regulate the stethoscope sale.  But the Constitution, properly understood, generally does not permit Congress to regulate what the physician does with the stethoscope, and certainly not how he is paid for his services.

My favorite:

Stengel: “There is an old Latin phrase, inter arma enim silent leges, which roughly translates as “in time of war, the Constitution is silent.”

Answer: I included this because ignorance of Latin and of the Founders’ latinate English has led to many constitutional misinterpretations, and because the mangled, ungrammatical version Stengel uses suggests that he got it from Star Trek (Deep Space Nine) rather than from Cicero.

The phrase is actually “Silent enim leges inter arma.” One reason the Founders were better qualified to address constitutional issues than Mr. Stengel is that they HAD read Cicero, and in Latin.

Incidentally, the correct translation is “For laws are silent amid arms.”


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VIDEO: Cato’s Patrick Michaels on the Climate Coup

Posted by on Jun 28 2011 | energy, Environment, Events, PPC

If you were one of the many who did not make it to our Patrick Michaels event last Thursday (it was sold out), then boy do I have a treat for you. Here is the lecture that Patrick gave to our sold out crowd. Enjoy!

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Independence Institute Writers In The News

Posted by on Jun 28 2011 | Constitutional Law, Health Care, health control law, Kopelization, obamacare, PPC, U.S. Constitution

Independence Institute writers have been a busy crew recently, publishing works on issues that include out-of-control public sector hiring, challenges to Obamacare, Governor Hickenlooper’s poor veto choices, and correcting misinterpretations of the U.S. Constitution. Let’s get to it.

Senior Fellow Fred Holden’s piece on how public sector hiring has dramatically outpaced private sector hiring in Colorado can be found here in the Salida Mountain Mail newspaper, or here in the Summit Daily newspaper. This article is a must read, but fair warning, there is math involved. Money quote:

To meet the rate of government job growth, 165,000 more private sector jobs would have been necessary. “Created government jobs,” however, increased by 7,299 – 707 “classified” and, 6,644 “non-unclassified.” For comparison, a more recent analysis from 2005-10 showed total jobs grew by 1 percent – government up 6.9 percent, private down .2 percent, with 132,000 non-government jobs required to match government job growth.

In short, public sector growth is out of control.

Over at the Health Policy Solutions website, Research Director Dave Kopel lays out all the ongoing constitutional challenges to the “Patient Protection and Affordable Care Act” (PPACA, aka Obamacare) that the U.S. Supreme Court could potentially hear in its next session. Writes Dave:

When the PPACA was moving through Congress, there was a lot of bluster from proponents of the law, who insisted that there were absolutely no potential constitutional problems. Most famously, House Speaker Nancy Pelosi scoffed “Are you serious?” to a journalist’s question about the law’s constitutionality. As it turns out, there are a lot of serious questions. Rather than being solidly grounded in established constitutional law doctrine, the PPACA pushes into several gray areas. That doesn’t mean that the appellate courts and then the Supreme Court will rule against the PPACA, but it does mean that to uphold the PPACA, courts will have to break new doctrinal ground.

Writing in the Boulder Daily Camera, research associate and health care blogger Brian Schwartz makes the case that Governor Hickenlooper erred in vetoing Senate Bill 213, which would have raised enrollment fees for some families in CHP+, a state-run heath plan for children. As Brian notes:

CHP+ and its counterparts in other states “crowd out” commercial insurance such that parents drop commercial coverage to enroll. MIT economist and past Obama advisor Jonathan Gruber finds a “crowd-out rate of about 60 percent.” The reverse is also true. When parents drop CHP+, some buy insurance. The Congressional Budget Office reported that in 2005, between 50 and 77 percent of kids in households with incomes affected by SB 213 had commercial insurance.

Also, be sure and check out Constitutional Scholar Rob Natelson’s takedown of Time magazines’ recent cover story by Richard Stengel on the (incorrect) meaning of the U.S. Constitution.

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Brown v. EMA casts doubt on the “weapons effect” justification for gun control

Posted by on Jun 27 2011 | Child Protection, Constitutional Law, Expert Evidence, First Amendment, Freedom of Speech, guns, supreme court

(David Kopel)

The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport toshow a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,6 and with good reason: They do not prove that violent video
6See Video Software Dealers Assn. v. Schwarzenegger, 556 F. 3d 950, 963–964 (CA9 2009); Interactive Digital Software Assn. v. St. Louis County, 329 F. 3d 954 (CA8 2003); American Amusement Machine Assn.
v. Kendrick, 244 F. 3d 572, 578–579 (CA7 2001); Entertainment Soft-ware Assn. v. Foti, 451 F. Supp. 2d 823, 832–833 (MD La. 2006); Enter-tainment Software Assn. v. Hatch, 443 F. Supp. 2d 1065, 1070 (Minn. 2006), aff ’d, 519 F. 3d 768 (CA8 2008); Entertainment Software Assn. v. Granholm, 426 F. Supp. 2d 646, 653 (ED Mich. 2006); Entertainment Software Assn. v. Blagojevich, 404 F. Supp. 2d 1051, 1063 (ND Ill. 2005), aff ’d, 469 F. 3d 641 (CA7 2006).
games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the researchis based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between expo-sure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or mak-ing louder noises in the few minutes after playing a vio-lent game than after playing a nonviolent game.7
—————— 7One study, for example, found that children who had just finishedplaying violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App. 496, 506 (internal quotation marks omitted). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest. 8JUSTICE ALITO is mistaken in thinking that we fail to
thatviolent video games produce some effect on children’s feelings of aggression, those effects are both small and indistinguishable from effects produced by other media.In his testimony in a similar lawsuit, Dr. Anderson admit-ted that the “effect sizes” of children’s exposure to violent video games are “about the same” as that produced bytheir exposure to violence on television. App. 1263. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, id., at 1304, or when they play video games like Sonic the Hedgehog that are rated “E” (appropriate for all ages), id., at 1270, or even when they “vie[w] a picture of a gun,” id., at 1315–1316.8

Today’s Supreme Court decision in Brown v. EMA casts doubt on one of the shibboleths of gun prohibition.

Since the 1960s, some social scientists have been attempting to prove that guns cause violence. They do not make this claim in the straightforward sense that guns, as tools, can be used for malign purposes–for example, that a criminal with a gun might attempt a robbery which would he would consider too risky if he did not have a gun. Rather, the claim is that the presence of makes ordinary people more aggressive, anti-social and violent. Thus, as one study put it, “the trigger pulls the finger.” The hypothesis is known as “the weapons effect.”

Over the subsequent decades, researchers tried, with little success, to replicate experiments proving a weapons effect. To the limited extent that any effects could be found, they tended to be confined to subjects with no prior experience with firearms, and they never succeeded in finding any actual resulting violence. Instead, they found, at most, trivial results, such as how some subjects reacted to various words after being prompted with gun imagery.

Among modern scholars, one of the best-known advocates for the weapons effect is Dr. Craig A. Anderson,  Distinguished Professor & Director, Center for the Study of Violence, at Iowa State University. See C.A. Anderson, A.J. Benjamin,  & B.D. Bartholow, Does the gun pull the trigger? Automatic priming effects of weapon pictures and weapon names, 9 Psychological Science 308 (1998) (summarizing prior literature, arguing for a weapons effect, and reporting a new study involving word responses).

My Independence Institute colleagues Paul Gallant and Joanne Eisen, in an article scrutinizing the weapons effect literature, addressed the Anderson study:

Stimuli were presented to the subject on a computer screen in the form of “prime” words, and “target” words which were categorized as either “aggressive” or “non-aggressive.” Two categories of prime words were used: weapon words (shotgun, machete, fist, bullet, dagger, and grenade), and animal words (rabbit, bug, dog, bird, butterfly, and fish).

For the experimental procedure, a prime word was presented to each subject for 1.25 seconds, followed by a blank screen of 0.5 seconds duration. Then, a target word was presented. The subject’s task was to recite the target word as quickly as possible. The computer was equipped with a microphone to measure the time between the presentation of the target word and the first sound made by the subject.

In this part of the study, the researchers found that, on animal-primed trials, subjects were 0.005 seconds slower at naming aggressive target words than at naming non-aggressive words. For weapon-primed trials, however, subjects named aggressive target words 0.009 seconds faster than they named non-aggressive words. The authors claimed that these results provided “clear support for the priming interpretation of the weapons effect,” i.e. that “the mere cognitive identification of a weapon increases the accessibility of aggression-related concepts in semantic memory.”

In the second experiment. . . the prime stimuli consisted of black-and-white line drawings of weapons (guns, swords, and clubs—3 different pictures for each category, for a total of 9 weapons) and of plants (fruits, trees, and flowers, also 3 different pictures for each category). The prime stimulus was presented as in the previous experiment, and the subject was instructed to call out the category as quickly as possible. Again, a blank screen appeared for 0.5 seconds. Then the target word was presented and remained visible on the screen until the subject called it out.

The researchers found that after exposure to plant pictures subjects were 0.005 seconds faster at naming aggressive target words compared to non-aggressive words. However, after exposure to weapon pictures, subject reaction time decreased, and subjects were 0.011 seconds faster at naming aggressive target words compared to non-aggressive words. . . .

The authors concluded: “These two experiments demonstrate that simply identifying weapons increases the accessibility of aggressive thoughts . . . that thinking about weapons increases accessibility of aggressive concepts in general….Does the gun pull the trigger? Extant research suggests that it does. Our research demonstrates one way that exposure to weapons might increase aggressive behavior—by increasing the accessibility of aggressive thoughts.”

But did the authors really demonstrate what they claimed?

Insomuch as “gun” might well be associated with “shoot” or “murder,” when it comes to the non-weapon primes they selected, there is no such logical link. For example, while butterfly was used as a prime word, the words “flutter,” “fly,” and “cocoon” were nowhere to be found. If the idea was to explore whether a certain word would trigger a class of words, such as “gun” triggering the entire class of aggressive words, why did not the authors compare this effect with similar effects for animal primes? The word “rabbit” is likely to trigger “carrot,” “ears,” “chew,” and “hop,” but that was not tested. In addition, potentially threatening primes like “lion,” “shark,” or “rattlesnake” should have been used to determine whether these would have elicited the same aggressive tendencies.

Paul Gallant & Joanne D. Eisen, Trigger-Happy: Re-thinking the “Weapons Effect”, 14 Journal on Firearms & Public Policy 89 (2002).

As it turns out, very similar research by Dr. Anderson played a major role in today’s Brown v. EMA decision, and the majority sharply rejected the utility of Dr. Anderson’s experiments. According to the majority opinion:

The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport toshow a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them,6 [FN 6 lists 3 Circuit and 4 District Court decisions] and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.7

[Note  7.] One study, for example, found that children who had just finished playing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“explore”). App. 496, 506 (internal quotation marks omitted). The prevention of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.

. . . those effects are both small and indistinguishable from effects produced by other media.In his testimony in a similar lawsuit, Dr. Anderson admitted that the “effect sizes” of children’s exposure to violent video games are “about the same” as that produced by their exposure to violence on television. App. 1263. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, id., at 1304, or when they play video games like Sonic the Hedgehog that are rated “E” (appropriate for all ages), id., at 1270, or even when they “vie[w] a picture of a gun,” id., at 1315–1316.

Thus, EMA  v. Brown rejects the “violent video game effect” studies for failing to demonstrate a compelling state interest. Indeed, EMA suggests that the studies do not even rise to the level of a trivial state interest. Quite significantly, for Second Amendment purposes, the very similar “weapons effect” hypothesis likewise is presented as something which is equally non-compelling, and no more than trivial.

The studies on video games have led, at worst, to some minors being unconstitutionally deprived of video games. In contrast, the “weapons effect” has become an article of faith among many anti-gun advocates, who are convinced that guns turn peaceable people into dangerous aggressors. Many anti-gun laws have been enacted in part because of this wrongful idea, and some of those laws have deprived the victims of violent crimes from having the means of effective self-defense. Indeed, continuing belief in the non-existent weapons effect is a major reason why nine states still deny law-abiding trained adults the constitutional right to carry licensed firearms for lawful protection in public places.

In examining the legislative history of anti-gun laws, courts will not have to look far to find the “weapons effect” as a crucial motive for many of the laws which aim to reduce gun ownership or accessibility by ordinary citizens (rather than merely keeping guns away from actually dangerous people). Legislative animus against the exercise of constitutional rights can be, in itself, an important reason to find a law unconstitutional. When that animus is based on the same type of social science which the Supreme Court has recently dismissed an unrelated to any serious state interest, then courts have especially good reason to recognize the unconstitutionality of the legislation.


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Time Magazine: Meet Professor Rob Natelson

Posted by on Jun 27 2011 | Commerce Clause, Constitutional Amendments, Constitutional History, Constitutional Law, Economic LIberties, health control law, obama, obamacare, PPC, U.S. Constitution

The fiery debates over our national debt, ever expanding undeclared wars, and Obamacare have resurrected a new found interest in Constitutional matters. This is great for us because we happen to have one of the leading scholars on the Constitution in our Independence Institute offices, Senior Fellow in Constitution Studies Rob Natelson. He writes a great blog for us over at constitution.i2i.org and does weekly podcasts with a minion of mine over at iVoices.org.

I’d like to point out his blog post for this week that completely eviscerates the cover article on our Constitution by Richard Stengel in Time Magazine. In it, Rob deconstructs some points Mr. Stengel was trying to make in regards to the meaning of our Constitution. As an expert on the meaning of the Constitution, Rob was able to point out the many flaws in Mr. Stengel’s points. The Time Mag article is instructive as I believe it reflects many people’s thinking about our founding document. As such, Rob wrote an entire book exploding many of the common myths that Mr. Stengel repeats tirelessly in the article. To keep yourself from making many of these popular mistakes, keep following Rob’s work on constitution.i2i.org.

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K-12 Education Funding and Mothers Against Debt

Posted by on Jun 27 2011 | education, Government Largess, Idiot Box (TV Show), PPC

Lobato v. Colorado K-12 education funding debate:

Amy Oliver discusses her organization of “MAD” Moms against the national debt:

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The Incidental Unconstitutionality of the Individual Mandate

Posted by on Jun 24 2011 | Constitutional History, Constitutional Law, Health Care, Individual Mandate, Necessary and Proper, Originalism

(David Kopel)

A recent Yale Law Journal Online article by Northwestern law professor Andrew Koppelman argues that the Obamacare individual mandate is obviously constitutional, especially in light of how McCulloch v. Maryland construed the Necessary and Proper clause. Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform (April 2011).

Gary Lawson (Boston Univ.) and I partially agree:

Professor Koppelman evidently believes that the constitutionality of the individual mandate begins and ends with McCulloch v. Maryland. He is absolutely right about that. He simply has the wrong beginning and ending.

Professor Koppelman gets the beginning wrong because he starts his analysis in the middle of the McCulloch opinion instead of where John Marshall began. Chief Justice Marshall‘s famous discussion in McCulloch of the causal connection required by the word “necessary” was preceded by a seven-page analysis of the constitutionality of a federal corporation under the Necessary and Proper Clause. Those seven pages dealt with an issue that Marshall recognized had to be addressed before he decided whether a corporation was a causally “necessary” (or otherwise “proper”) means for implementing federal powers. The threshold question was whether the power to incorporate was incidental or principal.

Our article, Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, elucidates the original meaning of the Necessary and Proper clause, which Chief Justice Marshall considered so important, but which professor Koppelman overlooked:

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must exercise a subsidiary rather than an independent power, must be important or customary to achievement of a principal end, and must conform to standard fiduciary obligations.

From administrative law, the Necessary and Proper Clause embodies the closely-related principle of reasonableness in the exercise of delegated power, which independently requires conformance with a similar set of fiduciary norms, including the norms of acting only within delegated jurisdiction and of treating all persons subject to a public agent‘s power impartially.

Evidence from eighteenth-century corporate law – and the Constitution was widely recognized in the founding era as a type of corporate charter – confirms these conclusions about the meaning of the phrase “necessary and proper for carrying into Execution . . . .”

The power to order someone to purchase a product is not a power subordinate or inferior to other powers, such as the power to regulate voluntary commerce. The power to compel commerce is at least as significant – or, in eighteenth-century language, as “worthy” or of the same “dignity” – as the power to regulate insurance pricing and rating practices. It is therefore not incidental to other powers exercised by Congress in the PPACA and must be separately enumerated if it is to exist.

Second, the doctrine of principals and incidents and the principle of reasonableness both embody the fiduciary norm that agents exercising delegated power must treat multiple principals subject to those agents’ power impartially. Interpreting the Necessary and Proper Clause to allow Congress to force private dealings with preferred sellers of products fails that basic fiduciary norm, as illustrated by founding-era concerns about Congress invalidly using the Necessary and Proper Clause power to create monopolies.


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