Institute for Justice Event This Wednesday

Posted by on Apr 14 2014 | Events, U.S. Constitution

It isn’t easy being illiterate. My dyslexia makes everything more interesting, just like those dyslexic atheists. They don’t believe in dogs.

Anyway, when my staff emailed me all excited about getting the author of Terms of Engagement to speak here, I said “okay, do it.” You see, I thought they said the author of Terms of Endearment. Seemed like a chick flick to me, but Jack Nicholson was way cool in it so, you know, whatever.

Apparently Terms of Engagement is a book. Who knew?

Clark Neily is a senior attorney for one of the greatest outfits around – the Institute for Justice. He litigates economic liberty, property rights, school choice, First Amendment, and other constitutional cases in both federal and state courts.

Thee new book, which doesn’t even have a forward by Jack Nicholson, argues that judges need to take a lot of the blame for the hard turn to the left our nation has taken. And he offers a solution.

Well, come hear him speak at the Independence Institute offices (727 E. 16th Ave. Denver, CO 80203) this Wednesday, April 16th. Event starts at 5:30p with light refreshments. Did I mention the event is FREE? All you’ve got to do is RSVP either online here or over the phone at 303-279-6536.

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UPDATED! Article V Symposium featuring Rob Natelson

Posted by on Apr 09 2014 | Article V, Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, U.S. Constitution, Video

The other day I posted 4 of the 7 videos of the Article V Symposium that Rob Natelson moderated/MC’d. Below you’ll find the 3 missing videos for the whole collection!

Here are Rob’s opening remarks (8 minutes)

Author Bob Berry outlines several amendment ideas (20 minutes)

Michael Farris’ remarks (17 minutes)

Here’s the roundtable discussion (48 minutes)

Senator Kevin Lundberg and Representative Lori Saine’s resolution (13 minutes)

Questions and Answers (33 minutes)

Here’s Mark Meckler’s closing comments (11 minutes)

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Article V Symposium featuring Constitutional Scholar Rob Natelson

Posted by on Apr 07 2014 | Article V, Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, U.S. Constitution

Our senior fellow in Constitutional Jurisprudence Rob Natelson was asked to be the moderator for this Article V “Convention for Proposing Amendments” symposium. Below you’ll find Rob’s remarks and the rest of the symposium for your viewing pleasure.

Here are Rob’s opening remarks (8 minutes)

Author Bob Berry outlines several amendment ideas (20 minutes)

Here’s the roundtable discussion (48 minutes)

Here’s Mark Meckler’s closing comments (11 minutes)

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April Fools’

Posted by on Apr 01 2014 | Purely Personal

I thought you might get a kick out of our April Fools’ joke press release we sent out today. Since the Left claims every organization that promotes Liberty (including us) is funded by the evil Koch brothers, we thought we should make their dream come true. At least one AP reporter ran with the story on twitter, then had to retract it.

Enjoy,

Jon

 

 

 

 

 

FOR IMMEDIATE RELEASE

April 1, 2014

Contact: Mary MacFarlane, 303-279-6536 ext. 102, Mary@i2i.org



Independence Institute announces partnership with Koch Brothers
 

Today the Independence Institute, Colorado’s premiere think tank, is pleased to announce an exciting new chapter in its nearly 30 year history as Charles and David Koch commit to a sizable investment in Colorado.

Jon Caldara, president of Independence, announced, “After months of negotiation with the Koch brothers we have reached an agreement on ownership of the Independence Institute which preserves the integrity and effectiveness of this great free market organization. This arrangement ensures our future and our impact in Colorado.”

Under the terms of the agreement the Koch brothers have invested an undisclosed amount of funding into the Institute, in exchange they will receive 51% ownership of the organization. This will provide Independence with the resources necessary to continue operations and serving the cause of freedom in Colorado.

Caldara said that the change in ownership will not have a sizable change in the operations or the direction of the Institute saying, “We are thrilled about keeping the name “Independence” in the new iteration of our organization.”

Caldara declared that the newly titled “Koch Institute at Independence” pays tribute to our proud history but also points to our new and properly funded future.

The Independence Institute is a non-partisan, non-profit public policy research organization based in Denver.


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Just the Fracking Facts: Hydraulic Fracturing Debate

Posted by on Mar 17 2014 | energy, Events

Just a reminder of our fracking debate coming up this Thursday at the Denver Post building.

Here’s the Facebook event page.

Fracking_Debate_Final

To RSVP online, go here. Or you can call Mary MacFarlane at 303-279-6536, ext. 102.

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Debate inside the mysterious Denver Post building

Posted by on Mar 14 2014 | energy, Events

Ever been inside the Denver Post building? Well, I have, and it’s frightening. Framed pictures of Karl Marx on the walls, everyone wearing those little gray Mao uniforms, and a soup line in the lunch room. Filing into the building, workers must pass 10-foot-tall reprints of the Post’s endorsements of Amendment 23, Fastracks, Ref C and D, last year’s Amendment 66, and scores of other tax and debt increases.

It’s like Cuba, except with a Starbucks.

Well, here’s your big opportunity to see it for yourself! We are hosting a debate on hydraulic fracturing in Colorado. And we’re doing it in the Post’s swanky auditorium this Thursday, March 20, at 5:00 pm. It’s going to be a conversation with both sides of the issue. We’re glad to have the Left-leaning Alliance for Sustainability partnering with us, and the always dapper Eric Sonderman serving as moderator. Tickets are free, but required, to get in.

 

Get info and reserve a seat before they’re all gone on our events page here.

And I hope you know I was just kidding around about the inside of the Post building. There’s no Starbucks.

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The Lamp of Experience: Constitutional Amendments Work

Posted by on Mar 09 2014 | Constitutional Amendments, Constitutional History, Constitutional Law, Constitutional Theory, First Amendment, Fourth Amendment, Freedom of Speech, History, Natelson Rob', Rob Natelson, U.S. Constitution

(This article originally appeared in the American Thinker.)

Opponents of a Convention of States long argued that there was an unacceptable risk a convention might do too much. It now appears they were mistaken. So they increasingly argue that amendments cannot do enough.

The “too much” contention was first promulgated in modern times by apologists for the liberal, ultra-activist Earl Warren/Warren Burger Supreme Court. Specifically, these apologists feared a convention might propose amendments to reverse their favorite judicial decisions. Their tactic was to claim that an amendments convention, even if legally limited, could turn into a “con-con” that disregarded its limits, repealed the Bill of Rights, and restored slavery. (Yes, some of them really said that.)

The liberals who promoted this scenario must have been amused when some deeply conservative groups fell into the trap and began using the same argument to kill conservative amendments.

The “too much” line, however, has been losing its persuasiveness. New research shows it to be legally and historically weak, and Americans increasingly are pondering the very real dangers of not resorting to the convention process the Founders bequeathed to us.

Hence the shift to the “too little” argument. Its gist is that amendments would accomplish nothing because federal officials would violate amendments as readily as they violate the original Constitution.

Opponents will soon find their new position even less defensible than the old. This is because the contention that amendments are useless flatly contradicts over two centuries of American experience — experience that demonstrates that amendments work. In fact, amendments have had a major impact on American political life, mostly for good.

* * * *

The Framers inserted an amendment process into the Constitution to render the underlying system less fragile and more durable. They saw the amendment mechanism as a way to:

* correct drafting errors;
* resolve constitutional disputes, such as by reversing bad Supreme Court decisions;
* respond to changed conditions, and
* correct and forestall governmental abuse.

The Framers turned out to be correct, because in the intervening years we have adopted amendments for all four of those reasons. Today, nearly all of these amendments are accepted by the overwhelming majority of Americans, and all but very few remain in full effect. Possibly because ratification of a constitutional amendment is a powerful expression of popular political will, amendments have proved more durable than some parts of the original Constitution.

Following are some examples:

Correcting drafting errors

Although the Framers were very great people, they still were human, and they occasionally erred. Thus, they inserted in the Constitution qualifications for Senators, Representatives, and the President, but omitted any for Vice President. They also adopted a presidential/vice presidential election procedure that, while initially plausible, proved unacceptable in practice.

The founding generation proposed and ratified the Twelfth Amendment to correct those mistakes. The Twenty-Fifth Amendment addressed some other deficiencies in Article II, which deals with the presidency. (My reference to a particular amendment does not mean I agree with every provision in it.)

Both the Twelfth and Twenty-Fifth Amendments are in full effect today.

Resolving constitutional disputes and overruling the Supreme Court

The Framers wrote most of the Constitution in clear language, but they knew that, as with any legal document, there would be differences of interpretation. The amendment process was a way of resolving interpretative disputes.

The founding generation employed it for this purpose just seven years after the Constitution came into effect. In Chisholm v. Georgia, the Supreme Court misinterpreted the wording of Article III that defines the jurisdiction of the federal courts. The Eleventh Amendment reversed that decision.

In 1857, the Court issued Dred Scott v. Sandford, in which it erroneously interpreted the Constitution to deny citizenship to African Americans. The Citizenship Clause of the Fourteenth Amendment reversed that case.

In the 1970, the Court decided Oregon v. Mitchell, whose misinterpretation of the Constitution created a national election law mess. A year later, Americans cleaned up the mess by ratifying the Twenty-Sixth Amendment.

All these Amendments are in full effect today, and fully respected by the courts. Some argue, in fact, that the Supreme Court actually over-enforces the Eleventh Amendment — a contention with which I do not agree.

Responding to Changed Conditions

The Twentieth Amendment is the most obvious example of a response to changed conditions. Reflecting improvements in transportation since the Founding, it moved the inauguration of Congress and President from March to the January following election.

Other amendments as well were wholly or partially triggered by changed conditions. The Seventeenth Amendment, which transferred elections for Senators from the state legislatures to the people, is still controversial in some quarters. But it was adopted only after social changes had caused widespread breakdown in the prior election system. (That is why the state legislatures themselves sought the change.) With the partial exception of Mark Levin, few if any of its critics address the very real problems the Seventeenth Amendment was designed to solve.

Similarly, the Nineteenth Amendment, which assured women the vote in states not already granting it, was passed for reasons beyond simple fairness. When the Constitution was written, overwhelming domestic duties and very short female life expectancies effectively disqualified most women from politics. During the 1800s, medical and technological advances made possible by a vigorous market economy improved the position of women immeasurably and rendered their political participation far more feasible. Without these changes, I doubt the Nineteenth Amendment would have been adopted.

Needless to say, the Seventeenth, Nineteenth, and Twentieth Amendments all are in full effect many years after they were ratified.

Correcting and forestalling government abuse

Avoiding and correcting government abuse was a principal reason the Constitutional Convention unanimously inserted the state-driven convention procedure into Article V. Our failure to use that procedure helps explain why the earlier constitutional barriers against federal overreaching seem a little ragged. Before looking at the problems, however, let’s look at some successes:

* We adopted the Thirteenth, Fourteenth, Fifteenth, and Twenty-Fourth Amendments to correct state abuses of power. All of these are in substantially full effect.

* In 1992, we ratified the Twenty-Seventh Amendment, 203 years after James Madison first proposed it. It limits congressional pay raises, although some would say not enough.

* In 1951, we adopted the Twenty-Second Amendment, limiting the President to two terms. Eleven Presidents later, it remains in full force, and few would contend it has not made a difference.

Now the problems: Because we have not used the convention process, the first ten amendments (the Bill of Rights) remain almost the only amendments significantly limiting congressional overreaching. I suppose that if the Founders had listened to the “amendments won’t make any difference” crowd, they would not have adopted the Bill of Rights either. But I don’t know anyone today who seriously claims the Bill of Rights has made no difference.

In fact, the Bill of Rights continues to have a huge impact more than two centuries after adoption. The courts enforce, to at least some extent, all of the original ten except, arguably, the Ninth. Some, such as the First Amendment, have been “super enforced.” Others, such as the Second and Fourth are under relentless pressure, but remain far better than nothing at all.

What about the Ninth and Tenth? They are certainly under-enforced today, but we must remember that they enjoyed full effect for nearly 150 years. No reasonable person would classify 150 years of effect as anything but a stellar political success. Even today, the Tenth retains some of its power, as Congress learned when the Supreme Court upended its effort to corral all the states into the Obamacare Medicaid expansion.

“I have but one lamp by which my feet are guided; and that is the lamp of experience,” Patrick Henry said. “I know of no way of judging of the future but by the past.”

In this case, the lamp of experience sheds light unmistakably bright and clear: Constitutional amendments work.

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A New Triumph for the Right to Keep and Bear Arms (and for II’s Dave Kopel)

Posted by on Feb 14 2014 | Constitutional History, Constitutional Law, Dave Kopel, guns, Kopel Dave, Natelson Rob', Rob Natelson, Second Amendment, U.S. Constitution

A federal court of appeals has just vindicated the Second Amendment right to keep and bear arms in a big way. And II’s own Dave Kopel was largely responsible.

California denied citizens the right to carry firearms outside their homes, unless they obtained a concealed weapons permit. But to get such a permit, citizens had to demonstrate “good cause”—and fear for one’s personal safety was not sufficient to show “good cause.” The effect of the statute was to allow the local sheriff to deny the right to bear arms to all but a favored few.

On February 13, the U.S. Court of Appeals for the Ninth Circuit (the largest of the nation’s federal court of appeals districts) issued Peruta v. County of San Diego. It held that the California statute violated the Second Amendment. In doing so, the court cited one of Dave Kopel’s articles. But that citation went nowhere near showing the extent of his influence.

To clarify the historical understanding of the term “bear arms,” the Court spent much of its opinion citing and discussing obscure 19th century cases and commentaries on the right to keep and bear arms. It was Dave Kopel who first re-introduced these materials to public notice.

In 1998, Dave wrote an article called The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. Rev 1359. This was a massive compendium of cases, commentaries, and other materials. (By “massive,” I mean 188 pages, roughly three times the size of the typical law journal article.)

This article placed into the legal databases for the first time the full story of how the public viewed the Second Amendment during the century after the Constitution was ratified. By collecting and publishing this material, Dave made the collection readily accessible to later commentators, who built on his work. He also thereby made this material available to the courts.

The Court of Appeals cited Dave’s article in Peruta, but didn’t fully explain how that contribution made possible much of the later work that the court also cited. Pioneers don’t always get the credit they deserve.

This incident is only the latest example of how II, although a Colorado think tank, also advances freedom nationally and internationally.

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You’ll Like This Story

Posted by on Jan 30 2014 | Politics, Purely Personal

In a good story or movie, something happens which then makes something else happen. Luke Skywalker buys a droid. The droid has a message. Luke brings the droid to Obi-Wan Kenobi. Obi-Wan makes a deal with Han Solo for transport to another planet…

If Luke didn’t buy that damn droid in the first place, there’d be no Star Wars, and George Lucas would be working at Olive Garden today.

This idea that something causes another something, which causes yet another, well, it works in our world of politics, too. Here’s an example:

Our investigative reporter, Todd Shepherd, walks into my office asking for money. This is a pretty common occurrence (usually due to his gambling habit), but this time he wants it for an open records request. While Colorado has open records laws, it can cost quite a bit to make public records actually public. Anyway, Todd’s in my office paddling on about his great idea, and it’s only going to cost us around $400. After wearing me down like a teen-aged girl asking her daddy to borrow the car, I finally give in.

Days later, he breaks the story that U.S. Senator Mark Udall’s staff was pressuring state employees to change the official number of Coloradans who got insurance cancellation notices thanks to Obamacare. Accuracy is rarely good in an election year. Not only does this story become front page news in Colorado, but it also makes national news and highlights Udall’s key role in passing Obamacare.

Now, when Chris Christie’s folks were caught intimidating state workers, he fired them and apologized. Senator Udall, by contrast, doubled down and stood by his staff. So the story continues. Pressure built for an ethics investigation. So a “neutral and objective” Ethics Panel was convened and quickly determined that Udall’s staff did nothing inappropriate. Story ends? Nope.

Other media outlets made their own records request of the “neutral” Ethics Panel only to find there were no records. The head of the state regulatory agency wouldn’t release any of the panel’s records, saying there were none. So that causes everyone– from the Denver Post, to legislators, to candidates for governor– to demand an investigation into the investigation. But they still wouldn’t even release the names of those who made up the “neutral and objective” Ethics Panel.

But all that causes the agency head to leak the names to just one news source. And that causes all of the other news sources, like the Post, to cry foul. So that causes the state to release the names of the “neutral and objective” panel officially. And we find out the panel was made up of that same head state regulator, who is a Hickenlooper appointee, her deputy, and her legislative liaison, the former chief of staff for the state Senate Democrats.

So now we know what “neutral and objective” is. And the story will continue.

Imagine. All that wouldn’t have happened if Todd Shepherd didn’t walk into my office to sell me his simple idea for an open records request.

Remember, your support made this happen. To fund future projects like this, donate here.

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Bennett-Burr “Bipartisanship” = Yet Another Federal Power Grab

Posted by on Jan 01 2014 | congress, Constitutional History, Constitutional Law, Economics, federalism, Growth of Government, Health Care, Natelson Rob', obamacare, Op-eds, Rob Natelson, supreme court, Tenth Amendment, U.S. Constitution

When politicians start talking about “bi-partisan cooperation,” smart citizens get nervous. It usually means another transfer of freedom and taxes to the federal government at the expense of individuals, families, localities, and states.

Case in point: a Denver Post op-ed by two U.S. Senators (or their staffs) on their latest “bipartisan” deal. The Senators are Michael Bennett (D.-Colo.) and Richard Burr (R.-N.C.). The op-ed is pure political blather, a haze of almost incomprehensible feel-good rhetoric. But the upshot is this: The two distinguished solons are very proud of themselves for managing yet another transfer of authority from the states to the federal government.

You can read the op-ed here. As you can see, it is filled with mind-deadening phrases refined by pollsters and focus group research: “we have worked with,” “bipartisan,” “ensure the safety,” “stakeholders,” “pragmatism and hard work,” etc., etc.

As for the law itself, it has the kind of title we have come to expect from Congress in recent years: The Drug Quality and Security Act. (Doesn’t that title make you feel good?) Of course, many of these labels have about as much correspondence to the real world as the “Patient Protection and Affordable Care Act.”

The text of the measure is almost impossible for anyone without legal training to understand. (You can see for yourself here.) Essentially, however, it transfers to the federal government areas of drug compounding and distribution traditionally controlled by the states. It imposes new obligations, licenses, and/or paperwork on manufacturers, repackagers, wholesalers, and your local pharmacy. It takes major steps toward federal control of our state pharmacy boards, and restricts state regulatory choices in the areas it covers.

The bill is also about revenue: It authorizes the federal government to collect various new “fees.” (I put the word in quotation marks because those “fees” are really taxes.)

Like the op-ed, the text of the law is filled with mind-numbing, and sometimes deceptive, language. Consider this provision:

Nothing in this section shall be construed to preempt State requirements related to the distribution of prescription drugs if such requirements are not related to product tracing as described in subsection (a) or wholesale distributor and third-party logistics provider licensure as described in subsection (b) applicable under section 503(e) (as amended by the Drug Supply Chain Security Act) or this subchapter (or regulations issued thereunder).

At first, you might think the bill leaves state regulations in effect. But look closer: The provision really is about where federal law does preempt: “requirements . . . related to product tracing . . .. [and] wholesale distributor and third-party logistics provider licensure.” Another passage makes it clear that much state flexibility is gone:

Beginning on the date of enactment of the Drug Supply Chain Security Act, no State or political subdivision of a State may establish or continue any standards, requirements, or regulations with respect to wholesale prescription drug distributor or third-party logistics provider licensure that are inconsistent with, less stringent than, directly related to, or covered by the standards and requirements applicable under section 503(e).

The measure does not set forth its constitutional justification. In other words, it does not cite any of Congress’s enumerated powers as the basis for the authority it claims. Occasional mentions of “commerce” suggest that it relies on the Constitution’s much-abused grant of power to “regulate Commerce . . . among the several States.” In fact, however, the bill sweeps deeply into in-state commerce and into activities that really are not “commerce” at all.

The op-ed touts the bill’s “strong [meaning "intrusive"], uniform” [meaning "centralized"] standards. But the Constitution limited congressional powers precisely to protect us from too many centralized standards. The federalism created by our Constitution is about local control, responsiveness to local preferences, better government, diversity, and the ability of each state to learn from the experience of others. Moreover, as the Supreme Court has pointed out repeatedly, federalism is also about fracturing power to preserve freedom.

Our Founders and generations of Americans have concluded that human freedom and the other benefits of federalism are worth the occasional inconvenience arising from lack of uniformity. This should be particularly true today, when technology has reduced both the benefits of uniformity and the costs of diversity.

“The Drug Quality and Security Act,” however, appears to have been the product of one of those classic deals among politicians and lobbyists. The two Senators assure us that all the “stakeholders” (i.e., groups with lobbyists) were consulted.

But were you?

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