Saturday, June 30, 2018

Justice Kennedy's Retirement Is A Reminder That Every Day Is A Time For Choosing

A great deal of speculation, pontification, and blatant posturing followed Justice Anthony Kennedy's June 27th announcement of his retirement from the Supreme Court. Predictions of a coming reversal of newly-won (some would say newly-created) civil rights abound. Celebrations of the first decidedly conservative Supreme Court in seventy years flow with equal abandon.

As is common when politics intersects the law, both sides are missing the point.

Justice Kennedy's retirement--as is the case with all outgoing Supreme Court justices--is a moment that calls each citizen to remember the role the Court plays not only in our government but in our society.  It is a reminder that our elected officials, our Presidents and Senators, are empowered to impact both government and society not only for this generation, but for all subsequent generations. If our elected officials typify the society we are today, justices illuminate what manner of society we will be tomorrow. The composition of the Supreme Court is not a "liberal" or "conservative" question, nor even a purely political question, but is an "American" question.

Justice Kennedy's retirement is an invitation to reread what the Constitution says about the Supreme Court, and understand what role it plays in Constitutional government.

The Supreme Court is the only court in the United States mandated by the Constitution (Article 3, Section 1):
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.
The Supreme Court is an appellate court for almost all cases within Federal jurisdiction (Article 3, Section 2), " both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Appellate jurisdiction empowers the Court to review both the verdicts of lower courts within the Federal judiciary and their interpretations of Federal law, which includes assessment of the Constitutionality of Federal law.

Under the Constitution, the Supreme Court is the highest judicial authority. Its interpretations of Federal law are binding upon all Federal courts, and its rulings are applicable to the whole of the Federal government--as Chief Justice John Marshall wrote so powerfully in Marbury v Madison, "It is emphatically the duty of the Judicial Department to say what the law is." Yet it does not possess unlimited power or unlimited authority. The 11th Amendment sharply limits its jurisdictions where disputes involve a single state, and by inference John Marshall's own assessment of the role of the Court does not extend to saying what the law should be--that duty is reserved to the Congress.

The truth of the Supreme Court is that its Constitutionally-defined construction and jurisdiction are distinctly non-partisan and non-ideological. Political ideologies are the foundations of advocacy for what laws we should have, and what laws we should discard, but no advocacy can alter the text of the laws as they are written. The role of the Court is to apply the law--apply the letter of the law--to cases brought before it, and the law is neither liberal nor conservative; rather, the law merely is.

Naturally, both liberals and conservatives desire judges and justices who will interpret the law in ways that favor their political aims.  This has always been true, and it will always be true. It is also true there have been judges and justices who have contorted and distorted the law (including the Constitution), to arrogantly impose their views on society--such cases are etched permanently in our judicial comprehension: Dredd Scott v Sanford, Roe v Wade, Obergfell v Hodges. Yet the Constitution calls for a Court that rises above both partisan and personal ideology, that dispassionately reads the law as it is written and just as dispassionately applies it to the cases brought before it.

The Supreme Court is not merely the balancing third branch of the Federal government, acting as a brake upon the predations of both the legislative and executive branches against the rights of the people. By its explicit charter within the Constitution, it is the guarantor that the rule of law shall remain the foundation of this Republic. John Marshall was not the first to conceive the idea that no act of Congress could contravene the Constitution--the Kentucky and Virginia Resolutions argued that exact idea in much the same language as Marshall some five years prior to Marbury--but it was the Court's finding in Marbury that put the matter beyond all dispute, "...an act of the Legislature repugnant to the Constitution is void." The Court is this nation's assurance that not even the Congress can contradict the Constitution.

Thus it is that the promise of the Court, if not always its legacy, is that, under our Constitution, within the limits of the Constitution, the rights of all people shall always prevail.  The Court thus becomes the embodiment of the Constitutional ideal, that this Republic be governed by laws rather than men.  This is the Court we can have, so long as sober and serious justices occupy its bench.

Yet justices are but men, and they are appointed by men, who are in turn elected by men. So it is that Justice Kennedy's retirement is a reminder to us all that Constitutional government only works when We The People are prepared to do the work of governance.  We will only have the Court the Constitution promises us if we elect Presidents and Senators who understand, appreciate, and esteem that promise, and who are serious in their oath of office to ensure they appoint justices who will give us that Court.

Justice Kennedy's retirement, as is the retirement of every justice, is the periodic reminder that, in a republic, every day is a time for choosing. Every election is a matter of consequence, and every vote is of significance. Justice Kennedy's retirement is our periodic invitation to engage with our government, with both the President and the Senate, to petition that we might get the justices and the Court the Constitution has promised to us.

The Court may say what the law is, but ultimately it is We The People who will say what the law should be, and it is We The People who will say how the Court shall be. As Justice Kennedy closes his long and distinguished tenure on the bench, the best honor we could show him would be to remember this simple truth, and to put this simple truth into action, today, and every day.

Sunday, June 3, 2018

Tommy Robinson exposes the dark underbelly of the GDPR: censorship

Well, that didn't take long.

On Friday, 25 May 2018, the European Union's sweeping privacy-oriented General Data Protection Regulation (GDPR) went into effect. On that day, faced with sudden exposure to steep, even crippling fines for potential "breaches" of user privacy, many Internet and social media sites ceased or suspended their European operations, and "went dark" across the continent.

That same day, British activist and citizen journalist Tommy Robinson was arrested, and--in the space of less than six hours--sentenced to 13 months in prison for "breaching the peace", the charge brought on by his online reporting of the trial proceedings of a rape gang trial in the the UK city of Leeds. In the same proceeding that whisked Tommy Robinson off to prison, the court declared a media ban on all reporting surrounding Tommy Robinson, his detention, trial, and 13-month sentence. So emphatic was the ban that regular British media outlets such as The Independent have actually scrubbed their websites of news articles published immediately following his arrest. 

Note: The media ban was lifted a few days later, thanks to the efforts of the Rebel Media and others, although mainstream media coverage of Tommy Robinson's arrest and incarceration remains virtually nonexistent.

I am not going to comment on the propriety of his arrest other than to say that a number of notable citizen journalist, members of the so-called "alternative media", or "alt-media", have expressed a fair amount of horror and dismay, believing the charge to be essentially a manufactured one, one used with the specific and sinister intent of silencing a dissenting voice and critic of UK government policy. I am not in the UK, I am hardly an expert on UK law, so I leave the legal particulars of the matter to those more qualified in that subject than I.

Similarly, I am not going to comment on Tommy Robinson's activism. My opinion on his activism can best be summarized by Clark Gable's classic closing line from Gone With The Wind: "Frankly, my dear, I don't give a damn." Tommy Robinson is a man with a point of view and a political agenda, no more but certainly no less. His views can and should be investigated, critiqued, even criticized. That he should be heard is certain; more than that is a choice each of us should make in the privacy of our own conscience.

However, I am going to comment on the propriety of the media ban and the efforts of the UK government to muzzle any and all mention of Tommy Robinson, his arrest, detention, and incarceration. Rather, I point out the complete lack of propriety, of respect for the principles of free speech and a free press that are essential to sustain any level of freedom in any society. It may very well be within the scope of UK law for the courts to declare Tommy Robinson a non-person; it is not within the scope of decency, of ethics, or of any respect for fundamental civil liberty. Whether or not Tommy Robinson is guilty of a crime, whether or not Tommy Robinson's political views or agendas are in keeping with the aims of either the British government or the British people, he is still retains the basic human right to be heard, as do those who would advocate on his behalf. That right has been summarily eradicated by the British courts.

Coincidentally--or perhaps intentionally--the Brussels diktat known as the GDPR is aiding and abetting this deplorable deprivation of civil liberty. British media sites of course are complying with the media ban decreed by the courts--and the stifling confines of the GDPR's "privacy" protections have ensured that few other media sites, mainstream or alternative, are available to give Tommy Robinson or his supporters the voice that is their due. The platforms that would otherwise be the natural vehicles for those voices are suddenly less available. Fear of the GDPR's onerous penalties and the fascistic EU bureaucracies charged with levying them is creating a great silence where the voices of dissent otherwise would be. Regulation enacted to "protect" Internet users has almost immediately been turned into a tool with which to silence them. The price of privacy, at least in Europe, is the cessation of free speech--indeed, the cessation of civil liberty itself.

To the avowed libertarian such as myself, this comes as no surprise. In all of human history, there are no examples where an expansion of government power produces an expansion of human freedom, and there are far too many examples where the expansion of government power produces an expansion of human misery. The regulatory power of government, being coercive rather than persuasive, flowing solely from the barrel of a gun, is by its very nature antithetical to individual liberty. Regulation which inhibits or controls speech is by its very nature a diminution of the free speech that is essential to the preservation of individual liberty in any society. As Thomas Jefferson is oft quoted as having said: "When government fears the people, there is liberty. When people fear the government, there is tyranny." The GDPR is tyranny.

Free speech matters more than the technical proceedings of a court. Free speech matters more than the particulars of any law in any one nation. Ultimately, free speech must matter more than technical concerns regarding privacy. Free speech is the essence of free society. It is the basis by which we have free markets. It is the cornerstone of free enterprise. When free speech is attacked, freedom and all the blessings thereof are diminished. When free speech is attacked, we are all diminished. Without free speech, personal privacy is rendered meaningless.

Giving up essential liberty for the preservation of privacy is too high a price to pay. No matter how noble the intentions used to justify the GDPR, the silencing of dissidents such as Tommy Robinson is too high a cost. And there is no denying that the GDPR is helping to silence Tommy Robinson's dissent, merely by making alternative platforms by which his dissent might be heard too risky and expensive a proposition to sustain. When news sharing sites such as Instapaper block European viewers, when online advertising firms suspend their European operations, the availability of platforms for dissenting voices--for those contrarian views essential for a thriving marketplace of ideas--is immediately reduced. The draconian fines and byzantine compliance structures imposed by the GDPR have the inescapable--and I dare say intentional--effect of winnowing and reducing platforms by which dissent of all kinds can be heard.

For the sake of free speech, for the sake of us all, Tommy Robinson's dissenting voice must not be silenced. Shame to the British courts for silencing that voice, and double shame to the Brussels bureaucrats who authored the GDPR for aiding and abetting that silencing. The Internet was created as a tool for communications, for the free exchange of ideas; the GDPR is the expressed intent of too-powerful bureaucrats to bring that exchange to an end, and for proof of that evil intent we need look no further than the silencing of Tommy Robinson. That is reason enough to denounce the GDPR. That is reason enough to call for its immediate and permanent revocation.

Saturday, April 7, 2018

Immigration: a question of law, not "justice".

Immigration is a contentious issue, not just in the United States but throughout the Western world. Immigration is a central theme of Hungarian President Viktor Orban's re-election campaign. Immigration is a major divide within the American polity, with states such as Texas and Arizona enthusiastically supporting President Trump's call for National Guard troops to protect the US border with Mexico, while states such as California applaud the efforts of state and local officials to thwart enforcement and deportation actions by ICE.

Amazingly, despite all the rhetoric coming from all sides of the immigration debate, very little attention is given to what should be the core of the debate--the state of immigration law.  More than any other public policy question, immigration is almost exclusively a matter of law, of what the law is, and what the law should be.

What the law is:

  • Article I, Section 8, Paragraph 4 of the United States Constitution explicitly charges the Congress with drafting immigration laws.

  • The body of US Immigration Law is codefied under Title 8, Chapter 12 of the US Code.

  • Every President, upon inauguration, swears an oath to "preserve, protect, and defend the Constitution of the United States", as mandated in Article 2 Section 1 of the Constitution. Every President is explicitly named as Commander-In-Chief of the Armed Forces in Article 2 Section 2.

  • The Constitution is the supreme law of the United States. Article 6 of the Constitution makes this explicit, and explicitly binds all public officials to respect that supremacy.

Americans can--and should--debate what the substance of immigration law should be. That is our right and our duty as citizens.  Yet it is absurd and even asinine to ignore or deny what the substance of immigration law is. 8 USC §1151 establishes explicit numerical limits on immigration. 8 USC §1182(f) specifically empowers the President to bar certain classes of aliens "by proclamation" (meaning no Congressional involvement is required or even allowed). Whether these laws are good or bad, wise or unwise, just or unjust is immaterial. These are the laws we have. These are the laws government officials take an oath to enforce. On this point there can be no debate, there is no argument.

Nor can there be any debate that every US President has the right and responsibility to secure the borders of the United States. Every President is duty bound from his oath to defend the Constitution, and that necessarily includes defending the territory of the United States. Every President is explicitly named as Commander-In-Chief of the Armed Forces in order to secure that defense.

No immigrant has any right or expectation of admission into the United States. 8 USC §1361 explicitly assigns to the immigrant the burden of proving he or she is eligible for admission. Lacking such proof, the mandate of the law is that said immigrant be denied entry into the United States. Congress has the power to alter that mandate, but thus far it has declined to do so.

No immigrant can simply cross the border into the United States, but must enter through established checkpoints. 8 USC §1325 makes it a crime to enter the United States but through established checkpoints. 8 USC §1326 enhances the sanctions for repeat violations of this statute. Congress can alter these statutes but thus far has declined to do so.

Laws can be changed. Where laws are seen as unjust one hopes they will be changed. Yet until they are changed, the laws on the books are the laws of this land, and, as such, they must be enforced. If we are to remain a nation of laws, these laws must be enforced until they are changed.

On this, there can be no debate.

Friday, February 23, 2018

The Parkland Shooting: Failure By Design

The mass shooting at Marjory Stoneman Douglas High School was a barbarity. The wanton slaughter of 17 people was--and is--an outrage.  If you are not angry reading about it, you are either mentally ill or not really paying attention.

As our minds grapple with the sheer inhumanity of such an act, we seek to bring order and structure to the madness.  We want to know who did what, who did nothing, who had a hand in the commission of this crime. We point fingers, because as human beings that is what we do.

There is but one person to blame for this shooting, and that is the shooter himself. He alone opened fire on defenseless high school teens.  He alone decided to take human life.

But while the shooter is to blame for the shooting, let us not fail to note that, regardless of the choices the shooter made or did not make, this tragedy was absolutely preventable. This tragedy should have been prevented. That it was not is every bit as horrific as the shooting itself.

The most galling aspect of the failure to prevent this shooting is that the steps needed to prevent the shooting are uncontroversial and not terribly expensive. No curtailment of civil liberties are needed to stop school shootings, no problematic gun laws that inevitably run afoul of the Second Amendment need be enacted. We need not rely on law enforcement to diligently follow protocols, and investigate every tip and warning given. Had the school been properly secured, this shooting would never have happened.

Consider the timeline that has developed of the shooting itself:
  • 2:19 -- The shooter exits an Uber car and walks into the school
  • 2:21 -- The shooter opens fire in several classrooms.
  • 2:28 -- The shooter drops his weapon and exits the building.
How does someone--someone not even a student at the school--simply walk into the school unimpeded? How is any person able to carry a firearm through the front door of the school without being stopped?

That is the real horror in this: that the shooter had easy access not to firearms, but to the school. With or without a weapon, he should never have gotten through the front door, or even on school grounds. There is no reason that should be allowed in any school anywhere.

Yet Marjory Stoneman Douglas is a typical high school in the United States. And--unsurprisingly--this was a typical high school shooting. By some measures, Parkland was the 208th school shooting since the 1999 Columbine tragedy. In every single one of these incidents, the same galling questions must be asked: how does someone merely walk into a school unimpeded, and how are they able to carry a firearm onto school grounds? In every single one of these incidents, there are no good answers to be had.

Add to those questions this further damning interrogation: how is it that, after more than 200 such events, almost nothing has been done to make schools more secure? 

It is true that some schools, such as Southwestern High School in Shelbyville, Indiana, have implemented strong security systems, but they are by far the exception and not the rule. By and large, America's schools are as unprotected and vulnerable as they were two decades (and 200 shootings) ago.

Nor is it necessary to have a state of the art security system to stop the would-be shooter.  A few basic security elements, such as a "man trap" at the main entrance to the school, make unauthorized access far more difficult. Nearly every courthouse in the nation has metal detectors at their main entrances, as do all airports as well as most concert venues--yet security "experts" argue that their use in schools is a bad idea!

In his classic treatise on strategy and tactics, Sun Tzu wrote "You can ensure the safety of your defense if you only hold positions that cannot be attacked." This is the goal of all security: invulnerability to attack. It should be the goal of school security--and it has not been.

Yet hardening schools, and making them invulnerable to these attacks, has not been at the forefront of the media coverage of this event.  We have heard of the evils of guns, and the need to shred the Second Amendment to confiscate guns. We have heard of the multiple failings of law enforcement, from the FBI on down to the Broward County Sheriff's Office. We have heard of the wisdom or unwisdom of arming teachers. We have not heard much of man traps, nor of metal detectors, nor other basic security mechanisms that would impede the miscreant and make doing mischief within a school that much more difficult.

The horror of Parkland that every parent in America must now face is this: our schools are not safe--by design. Our schools are not built to keep our children free from harm during the school day. Our schools are not built to thwart attacks by evildoers. Our schools are the antithesis of secure--they are vulnerable when they should be invulnerable.

Tragically, even after Parkland, there is no indication that will ever change.

Monday, January 29, 2018

The DACA Trap: Donald Trump and the demise of the Democrats.

The current immigration debate in this country centers on four broad topics: 1) amnesty for the "Dreamers", 2) a border wall and border security, 3) chain migration, and 4) the visa diversity lottery.

The Democrats want #1, the Republicans want (or claim to want) #2, #3, and #4. Donald Trump proffers a compromise where both sides give the other side their ask. Democrats get #1, Republicans get #2, #3, and #4.

As a matter of political pragmatism, it is highly likely some form of amnesty provision will be needed to secure Democrat votes for the Republican ask. As a matter of historical appraisal, legislation with bipartisan elements is more successful and more enduring than purely partisan legislation (and one should note that Democrats had ample opportunities to participate in the tax reform legislation, but that their "Resist!" strategy overpowered any impulse to compromise on the substantive issues).

As a matter of political pragmatism, one achieves legislative success by accepting what is possible today, without categorical insistence on what is ideal. For Democrats especially, this would mean accepting the conditional amnesty offered by Trump to at least remove the threat of deportation from the Dreamers.

Why, then, are Democrats so hostile to this compromise? Why is it that when Donald Trump expands the amnesty offer the Democrats expand their hostility?

I suspect it is because the Democrats' self-interest lies more in preventing the Republicans gaining #2, #3, and #4 than in gaining for themselves #1. Amnesty might regularize those who are already here--but border security and moving to a merit based immigration system will change the political dynamics of immigration for decades to come. Merit-based immigration is fundamentally what Milton Friedman termed "immigration to jobs"; the Democrats are unequivocal champions of "immigration to welfare". While Democrats cynically hyperventilate about the travesty of deporting "Dreamers", if they take the deal that is being offered they must surrender all hope of sustaining immigration to welfare (by which they seek to import and otherwise buy votes from the electorate).

What the Democrats have done with their derisive dismissals of President Trump's compromise is admit to wanting more immigration to welfare. What they have made clear is that amnesty is not half as important as perpetuating the current broken immigration system which encourages immigration to welfare and prioritizes immigration to welfare over immigration to jobs. One need not hold a PhD in economics to realize that such a stance is a stance against the economic interest of both America and the American worker--indeed, that's a very easy case to make.

By accident or by design, Donald Trump is steadily branding the Democrats as the party of illegal immigration, the party of immigration to welfare, the party that stands explicitly against obvious American interests and those of American workers--long a traditional bastion of Democratic strength. This can only weaken them heading into the midterm elections, and could do permanent damage to their credibility as a major political party.

It is too soon to tell, but if this debate continues in this fashion, Donald Trump come November could be presiding over the complete dismantling of the Democratic Party, and completely eviscerating progressivism as a political force in this country.