Obamacare is headed to the Supreme Court. Great news! The cherry on top is that The Independence Institute is filing not one, but TWO amicus briefs (amici) on behalf of liberty and against the health care takeover. Constitutional scholars Dave Kopel and Rob Natelson take on the Medicaid mandate in one and the individual mandate in the other. Before I get into the Obamacare briefs, let’s take a step back and understand what this means. Dave Kopel has a rich history of influencing major Supreme Court decisions. For example, both the Heller and McDonald decisions were influenced by Dave’s Second Amendment work. For Dave’s most recently submitted amici, visit his website DaveKopel.com and go to the “In the Courts” section. There’s a half dozen briefs listed there that are just from this past year. To say that Dave is prolific is an injustice. He’s more like Gandalf casting unconstitutional demons out of Mordor Washington, DC.

Ok, back on track. The first brief on how the Medicaid mandate is unconstitutional was filed earlier this week (PDF here). I won’t get into the details because, well, I’m not what you call a “reader,” but I was able to get through Rob Natelson’s summary on his blog. The gist of the argument is quite simple: the Feds are big bullies. If the country were a playground, they’d be going around giving all the state’s wedgies and stealing their milk money. But it’s actually worse than that. Rob makes the case that it’s not only bullying, but also hostage taking. In other words, a bully with a taste for kidnapping. Double bad. Built into the Medicaid mandate in Obamacare are requirements that the states expand their Medicaid programs… OR ELSE. The “or else” part is the threat of withholding federal Medicaid funding. Hence, a large sliver of each state’s budget held hostage. As Rob puts it,

Since federal Medicaid funds are a huge portion of all states’ budgets, the effect is to subordinate state fiscal policy to the whim of federal officials. This is clearly unconstitutional.

Stay tuned for details and PDF of the other amicus. It will focus on the unconstitutionality of the individual health insurance mandate. Word is, Rob and Dave work their magic on the Commerce Power and the Necessary and Proper Clause. I also hear that they plan to sit down for an iVoices.org podcast with my main minion Justin Longo on both briefs. I’ll post the brief and the podcast here when they come out.

Until then, say NO to bullying.

You may have heard about our Free People, Free Markets class, you may have even taken the course already. If not, I want to encourage you to learn more about something that is certain to enrich your life. Over the years, Free People, Free Markets: Principles of Liberty has taught hundreds of interested liberty lovers the fundamentals of economics, philosophy, and history regarding our country’s founding and economic foundations. If ever there was a time to deepen your love affair with liberty and freedom, THIS is it.

The class meets for 5 consecutive Saturdays, from 9am to noon, starting with the last Saturday in January, the 28th at Colorado Christian University’s business school, room 103 (8787 Alameda Ave, Lakewood). For more info, please call Andy Anderson at 303-829-9435.

Need more reasons why you should enrich your love of liberty? How about this:

You have a strong love of freedom. It’s a natural part of being human. But too few of today’s adults were taught the fundamentals of a free society. We have a wonderful seminar to offer you. It pulls together the basic principles of liberty and a free market, showing you that these cohesive fundamentals allow society to work well, and to honor the individual. The course material springs from the great thinkers and achievers who shaped America. It is designed for business and community leaders and the general public as well as for college students.

The course makes the moral and philosophic case for free-market capitalism. One of the most important concepts of Western Civilization is the acquisition of property as an unalienable right. The course develops the relationship between economic liberty and political liberty. Participants learn the principles behind wealth-creation. They are introduced to the philosophy of the Austrian School of Economics and its connection to the founding ideas of the American experiment. Participants are awakened to their heritage of economic liberty. It will be more than worth your time.

Classes held on five consecutive Saturdays. The course is designed for business and community leaders, college students, and the general public. If desired, you may obtain three college credits through the University of Colorado at Colorado Springs by paying the usual college per-credit fee.

Come if you love liberty. Come if you love collectivism, but need to understand the libertarian position. Come if you want to receive an inexpensive, thorough, and energetic exposure to the founding principles of economic and political liberty.

For more information about the course itself contact Penn Pfiffner at 303-233-7731 or constecon@hotmail.com. For more information about registering and any other matters contact CRBC at 303-829-9435 or principlescourse@smallbizgop.

Yesterday the Independence Institute held a press conference here in Golden to illustrate the job destroying results if Proposition 103, Sen. Rollie Heath’s tax hike, passes this November. Like I say in the video below, we wondered, “how in the world can we show the domino effect of job loss if Prop 103 passes? People’s jobs will fall like dominoes! How do we show this???” Well, after much thought and some whiskey, we finally came up with the perfect illustration… LET’S KNOCK THOUSANDS OF DOMINOES DOWN! So I got on the phone and called up 5-time domino world record holder Robert Speca to see if he wanted to come to Colorado to knock some dominoes down. Thankfully, he said yes and within a day, he was out near our offices in Golden setting up thousands upon thousands of dominoes to represent all of the jobs that will be lost if Prop 103 passes.

Yesterday at 2pm, we held the press conference and I was the lucky guy who got to push the first domino over. It was REALLY fun! In total, Robert the “Domino Wizard” set up 5,500 dominoes, with each domino representing TWO jobs lost due to this tax increase. Take a look at the video below to see the job killing destruction Prop 103 will wreak on our economy. Prop 103: Colorado’s job killing tax increase:

Fox31’s political reporter Eli Stokels also covered our event. Here is the article and video they took. You’ll notice in the video that Eli Stokols makes a mistake. He says that only 1,100 jobs will be lost because of Prop 103. Oops. It’s actually 11,000. Eleven thousand. Big difference.

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.

Using the Constitution’s system of a “convention to propose amendments” is likely the only way we’ll ever get a balanced budget amendment, a federal single-subject rule, or other reforms Congress won’t pass. Opponents of the process, however, try to convince people that a convention to propose amendments is a “constitutional convention” (which it is not) and that it could “run away” (which it almost certainly can’t).

Recently I traveled to Indianapolis to testify before the Indiana legislature. While there, I learned that opponents of an amendments convention are circulating questions about a convention, apparently designed to “stump” proponents.

Frankly, when I read what are supposed to be tough questions, I laughed out loud. All the questions are answered easily if you know the history and law applicable to such a convention.

The author of the questions obviously didn’t. He introduced them with this statement: “No convention has been held since 1787, and after two hundred years that experience has little relevance.”

The statement is ridiculous. Americans have held hundreds, perhaps thousands, of conventions since 1787. They also have amended the Constitution 27 times, and state legislatures have submitted hundreds of applications for an Article V conventions. This and related experience is a valuable source of precedent. And the legal disputes that arose out of this activity comprise a valuable source of decided case law.

But if what the author meant is that no interstate convention has been held since 1787, then the statement is still ridiculous because the Founding Generation’s copious experience with both interstate and intrastate conventions has tremendous constitutional and practical relevance. This is because the language and powers bestowed by Article V carry meanings and incidental powers fixed by Founding-Era custom and law, particularly the law of agency.

[By the way, that is not the sheet's only inaccuracy---another is the old myth that the 1787 convention was a runaway.]

Anyway, here are the 11 questions the author poses, with answers to each. For further information, see my writings, linked on this website. You can supplement them with the leading book on Article V conventions, Russell Caplan’s Constitutional Brinkmanship (Oxford University Press, 1988). Some of the book’s conclusions and language have been superseded, but it remains a valuable antidote to claimed uncertainty.

1. How is the validity of applications from the states to be determined?
A. Initially by Congress, although congressional decisions are subject to judicial review.

2. How specific must the state legislatures be in asking for amendment?
A. The legislatures may apply either for an unrestricted convention or one devoted to particular subject matter. There is no rule as to specificity, other than that the legislatures may not dictate specific wording to the convention.

3. Must all the applications be in identical language?
A. No. It is enough if they identify the same problem(s) or subject-matter(s). However, prudence suggests that state legislatures coordinate with one another.

4. Within what time period must the required number of applications be received?
A. Since adoption of the 27th amendment, it is clear that there is no time period. Because, however, some are still claiming that applications can go “stale,” prudence suggests that a campaign be completed within a decade or so. (The application campaign for direct election of senators took 14 years.

5. Can Congress refuse to call a convention on demand of two-thirds of the states, and if it does, can it be compelled to act by the courts?
A. No, Congress may not refuse, and the courts can compel it to act.

6. Who are the delegates, and how are they to be chosen?
A. Delegates are representatives of their respective state legislatures, and are chosen as state law directs.

7. Can the convention act by a simple majority vote, or would a two-thirds majority be required, as in Congress, for proposing an amendment?
A. The convention acts by a simple majority of the represented states. The convention may, by a simple majority of the represented states, alter that voting rule.

8. How is a convention to be financed, and where does it meet?
A. A convention for proposing amendments is a conclave of state delegates. It therefore is financed by the states. Congress, in the convention call, specifies the initial meeting place. The convention may alter that meeting place.

9. May the convention propose more than one amendment?
A. Yes—but only if they are all within the agenda of the convention, as prescribed by the applying states.

10. Is there a time limit on the proceedings, or can the convention act as a continuing body?
A. There is no fixed time limit—the convention can meet until it decides whether to propose amendments and which ones to propose. But a convention is, by definition, not a continuing body. It has no authority beyond proposing amendments within the subject matter prescribed in the applications, and once that is performed, it must adjourn. Additionally, states may recall and/or replace their delegates at any time.

11. Can controversies between Congress and the convention over its powers be decided by the courts?
A. Controversies over the scope of the convention’s powers may be decided by the courts. However, the states, not Congress, fix the scope of such powers. The most likely area of controversy between Congress and the convention would be if the convention suggests an amendment that Congress believes is outside the convention’s agenda as fixed in the state applications. If (as is proper) Congress then refused to prescribe a “Mode of Ratification” for the suggested amendment, the courts could resolve the dispute.

The Colorado Springs Gazette’s reliably pro-liberty, pro-free market editorial page editor Wayne Laugesen responds to President Obama’s recent call for business to “do for America” by hiring American workers and supporting the American economy:

Obama wants businesses “to hire American workers.” Because he says so? Businesses will hire workers when efforts to “do for America” result in the need for assistance from new employees. They will “support the American economy” and “invest in this nation” by providing goods, services and commodities that improve the lives of Americans. They will do for America just as an athlete will run fast. But they won’t enter the race unless they are certain it’s not rigged against them.

When businesses quit trying to do for America, it’s usually because government is choosing winners and losers. When farmers grow too much corn, rather than crops Americans want and need, it’s because government pays them to.

Remember when banks made big loans to businesses that sought to “do for America?” That was back when a bank had to “do for America” in order to make money and survive. Then the federal government, at the insistence of former President George W. Bush, handed out billions in bailout funds — even to banks that weren’t failing. That’s when large banks stopped trying to “do for America.” That’s when their business models changed and they began hoarding cash — without the need to do much at all for America.

President Obama, do what you have spoken of. Work to skillfully extract government from the marketplace. Let businesses fight for their lives, which will force them to “do for America” and hire new employees.

Read the whole thing here.

A story in today’s Denver Post illustrates the waste in many, if not most, of government’s so-called “economic development” handouts.

In 2008, the City of Aurora, Colorado gave a theater company a $250,000, fully-forgivable urban-renewal loan. The company promised to bring 12,000 people a year into what the city, in its planning wisdom, had decreed would be an arts district. The company further promised to offer public performances at least 40 weekends a year for seven years. Naturally, the theater company also rented space – probably too much space or at least at too much rent, because the tab was $7500 a month in the East Colfax Avenue district.

Fast forward to now: The company hasn’t paid its rent since April, 2009. The landlord cut the rent in half, but the company didn’t pay that either. It also hasn’t paid the actors or the royalties for the plays it has produced – not that it has produced so many: The Post tells us that this year the company put on fewer than half of the plays promised.

The tragedy here is not merely that the company is folding. There is much more to it than that. Because people tend to be more careful with their own money than with other people’s money, if the $250,000 had been left with its real owners in the private sector, chances are it would have been used in more productive ways. Instead, the true owners of the money have lost $250,000 and the opportunities it would have brought. The actors, landlord, and others have largely wasted their time and funds on a failed enterprise, when they might otherwise have won more success for themselves and those they serve. And there has been a very human, non-financial toll as well – as readers of the story can see.

And what about all those politicians who show up for “economic development” ribbon-cutting ceremonies? They almost always are curiously absent when the subsidized enterprises go belly-up.

Reason.tv has a great addendum so to speak to our show with Reason editor-in-chief Nick Gillespie that aired this past week. (side note: this Gillespie show is by far our most popular Devil’s Advocate / Independent Thinking show ever). In this Reason video, they continue the discussion that Nick and I had on my show, where we talk about the points of agreement and points of contention within the conservative and libertarian movements. Should libertarians and conservatives try find common ground and build upon the areas that overlap with each other, or are there just too many substantive differences to forge any meaningful alliance? Nick and I took those questions on as did the Reason guys in their video. Check it out!

Colorado taxpayers now have something to celebrate: the return of the Taxpayers Bill of Rights, the nation’s most effective tax-and-spending limits. July 1 marked the end of the Referendum C five-year “time out,” the largest tax increase in Colorado history.

On Tuesday, July 13 at 10:00 AM, a group of state and national organizations, including the Independence Institute, will gather in the third floor pressroom at the Colorado Capitol to highlight what the end of the Ref C “timeout” and the return of the best taxpayer protections in the country means to Colorado working families.

Participants include:
* Jon Caldara, President of the Independence Institute
* Amy Oliver Cooke, founder of Mothers Against Debt and director of the Colorado Transparency Project for the Independence Institute
* John Stephenson, State Government Affairs Manager, National Taxpayers Union
* Colorado State Senator Shawn Mitchell
* Joshua Culling, State Affairs Manager, Americans for Tax Reform
* Marty Nielson, President, Colorado Union of Taxpayers
* Laura Carno from Americans for Prosperity, Colorado.

“We plan to celebrate the return of TABOR, which is great news for Colorado families and bad news for big government spenders,” said Independence Institute President Jon Caldara.

He added, “There is a reason why the tax-and-spenders hate TABOR, it works. It forces lawmakers to do their job, prioritize the budget and live within their means.”

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.