Archive for June, 2005

Court Empowers the State to Help the Politically Powerful

Sunday, June 26th, 2005

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” — Fifth Amendment to the US Constitution.

The Fifth Amendment to the US Constitution provides important rights to individuals against arbitrary action by the state. These zones of individual protection have generally grown wider over time. An important exception in this expansion is the “Takings Clause,” whose protections have dwindled over time. The Takings Clause of the Fifth Amendment basically requires two things: that private property seized by the state only be taken for “public use” and such taking needs to be accompanied by “just compensation.”

Typically this clause has been invoked when the state seizes land under eminent domain for public use as in a park, hospital, highway, or sewage treatment plant, where the public actually comes to own the land. In other cases, the court has permitted the transfer to a private entity when the land will be used for the broad public purpose of a “common carrier.” Principle examples include railroad and power line right-of-ways.

In its latest ruling in Kelo v. City of New London, by a slim 5-4 majority, the Court erased any residual protection against arbitrary state condemnation. Essentially the words of the Takings Clause have been changed from, “…nor shall private property be taken for public use, without just compensation” to “…nor shall a person be deprived of just compensation, when private property is taken at arbitrary public discretion.” One key requirement of the Takings Clause is thus removed.

Even Justice John Paul Stevens, writing for the majority, concedes that under the “public use” provision the state “may not take the property of A for the sole purpose of transferring it to private party B, even though A is paid just compensation.” Moreover, the Court concedes that the state may not cavalierly assert a public purpose as a pretext for a taking on behalf of a private entity. Nonetheless, the Court just made that very thing much easier to do.

Pfizer, a large and influential pharmaceutical company, is building a new research facility in New London, Connecticut in conjunction with a city redevelopment plan. By taking the land of the petitioners under eminent domain as part of the redevelopment plan, the city of New London asserts that the concept of “public use” is expansive enough to include the potential increase in jobs and government revenue when property is transferred from one private concern to another. The petitioner Susette Kelo and nine others involved in the suit are pushed out to make room for the economic development based on Pfizer’s new facility. The property of the petitioners was not blighted, just inconvenient. The Supreme Court in the Kelo opinion endorses the expansion of state power.

In her pointed dissent, Justice Sandra Day O’Conner argues that under the logic of the Court in this case, “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” Moreover, private negotiations in transactions may be altered with the knowledge that a powerful company might be able to persuade a local government to take property under the auspices of an economic development plan.

In the majority opinion, Stevens argues that the state can be restrained from abuse of the takings powers by the political process. The people can vote out those leaders who use eminent domain excessively. However, if the political process were a sufficient and entirely reliable protection of individual rights, there would be no need for the Bill of Rights and little need for judicial review. Indeed, there are many times that the majority of a local area would be happy at the use of eminent domain against an unpopular land owner. Tyranny is tyranny, even if practiced by a majority. Indeed, it is precisely against potential public tyranny that the Bill of Rights was enacted.

The case should be especially illuminating for Liberals who devote excessive faith in the power of government for good. The Libertarian part of the Conservative soul realizes that while government power can be used for good, it will inevitably be applied in the service of the politically powerful. Big companies like Pfizer will likely always be able to persuade local governments of the public benefit pursuant to the use of eminent domain on the company’s behalf.

This is why even dependably groups Liberal groups like the National Association for the Advancement of Colored People (NAACP) actually sided with the land owners in this case. The NAACP recognizes that frequently it is the poorest and the least influential, oft times African-Americans, who bear the greatest burden of aggressive urban renewal and economic development. African-Americans have too often been exploited by local governments to be as sanguine as the Court about reliance on the wisdom of local governments unfettered by Constitutional restraints. It should not go unnoticed that it was the Conservative side of the Court with its devotion to an “original understanding” jurisprudence that is protecting the individual against the predations of activist governments acting on behalf of large moneyed interests.

Liberals have always been vocal about seeking Constitutional protections for privacy rights, but often fail to appreciate the intrinsic linkage between property rights and personal liberty. Freedom and ability to control our lives increases with increasing property. Without diminishing the value and ability of those without resources, who typically has a greater scope of action, one with resources or one without? Limiting property rights directly reduces personal freedom.

Fortunately, the victory against freedom represented by the Kelo decision was a narrow 5-4 one. If a more Conservative Supreme Court emerges during President Bush’s second term, despite inevitable Liberal Democratic opposition, perhaps this ravaged ground of freedom, strip-mined by recent Court decisions, can be reclaimed to a more pristine condition.

Court Empowers the State to Help the Politically Powerful

Sunday, June 26th, 2005

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” — Fifth Amendment to the US Constitution.

The Fifth Amendment to the US Constitution provides important rights to individuals against arbitrary action by the state. These zones of individual protection have generally grown wider over time. An important exception in this expansion is the “Takings Clause,” whose protections have dwindled over time. The Takings Clause of the Fifth Amendment basically requires two things: that private property seized by the state only be taken for “public use” and such taking needs to be accompanied by “just compensation.”

Typically this clause has been invoked when the state seizes land under eminent domain for public use as in a park, hospital, highway, or sewage treatment plant, where the public actually comes to own the land. In other cases, the court has permitted the transfer to a private entity when the land will be used for the broad public purpose of a “common carrier.” Principle examples include railroad and power line right-of-ways.

In its latest ruling in Kelo v. City of New London, by a slim 5-4 majority, the Court erased any residual protection against arbitrary state condemnation. Essentially the words of the Takings Clause have been changed from, “…nor shall private property be taken for public use, without just compensation” to “…nor shall a person be deprived of just compensation, when private property is taken at arbitrary public discretion.” One key requirement of the Takings Clause is thus removed.

Even Justice John Paul Stevens, writing for the majority, concedes that under the “public use” provision the state “may not take the property of A for the sole purpose of transferring it to private party B, even though A is paid just compensation.” Moreover, the Court concedes that the state may not cavalierly assert a public purpose as a pretext for a taking on behalf of a private entity. Nonetheless, the Court just made that very thing much easier to do.

Pfizer, a large and influential pharmaceutical company, is building a new research facility in New London, Connecticut in conjunction with a city redevelopment plan. By taking the land of the petitioners under eminent domain as part of the redevelopment plan, the city of New London asserts that the concept of “public use” is expansive enough to include the potential increase in jobs and government revenue when property is transferred from one private concern to another. The petitioner Susette Kelo and nine others involved in the suit are pushed out to make room for the economic development based on Pfizer’s new facility. The property of the petitioners was not blighted, just inconvenient. The Supreme Court in the Kelo opinion endorses the expansion of state power.

In her pointed dissent, Justice Sandra Day O’Conner argues that under the logic of the Court in this case, “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.” Moreover, private negotiations in transactions may be altered with the knowledge that a powerful company might be able to persuade a local government to take property under the auspices of an economic development plan.

In the majority opinion, Stevens argues that the state can be restrained from abuse of the takings powers by the political process. The people can vote out those leaders who use eminent domain excessively. However, if the political process were a sufficient and entirely reliable protection of individual rights, there would be no need for the Bill of Rights and little need for judicial review. Indeed, there are many times that the majority of a local area would be happy at the use of eminent domain against an unpopular land owner. Tyranny is tyranny, even if practiced by a majority. Indeed, it is precisely against potential public tyranny that the Bill of Rights was enacted.

The case should be especially illuminating for Liberals who devote excessive faith in the power of government for good. The Libertarian part of the Conservative soul realizes that while government power can be used for good, it will inevitably be applied in the service of the politically powerful. Big companies like Pfizer will likely always be able to persuade local governments of the public benefit pursuant to the use of eminent domain on the company’s behalf.

This is why even dependably groups Liberal groups like the National Association for the Advancement of Colored People (NAACP) actually sided with the land owners in this case. The NAACP recognizes that frequently it is the poorest and the least influential, oft times African-Americans, who bear the greatest burden of aggressive urban renewal and economic development. African-Americans have too often been exploited by local governments to be as sanguine as the Court about reliance on the wisdom of local governments unfettered by Constitutional restraints. It should not go unnoticed that it was the Conservative side of the Court with its devotion to an “original understanding” jurisprudence that is protecting the individual against the predations of activist governments acting on behalf of large moneyed interests.

Liberals have always been vocal about seeking Constitutional protections for privacy rights, but often fail to appreciate the intrinsic linkage between property rights and personal liberty. Freedom and ability to control our lives increases with increasing property. Without diminishing the value and ability of those without resources, who typically has a greater scope of action, one with resources or one without? Limiting property rights directly reduces personal freedom.

Fortunately, the victory against freedom represented by the Kelo decision was a narrow 5-4 one. If a more Conservative Supreme Court emerges during President Bush’s second term, despite inevitable Liberal Democratic opposition, perhaps this ravaged ground of freedom, strip-mined by recent Court decisions, can be reclaimed to a more pristine condition.

Charter Schools in Washington

Friday, June 24th, 2005

It was clear that Robert Crane of FOCUS (Friends of Choice in Urban Schools) was a little uncomfortable in addressing a group of partisan Conservatives at a small restaurant outside the District of Columbia. The group meets monthly under the auspices of Townhall.com for the exchange of ideas and just to enjoy the company of Conservatives in a city that is not particularly hospital to Conservative. Crane did not hide the fact that he came from a different political perspective. However, it is a safe bet that he was the only person at the gathering who did not vote for George W. Bush in the last presidential election. Nonetheless, Crane bravely spoke to what could have been a hostile group. It turned out that Crane had more in common with those gathered than one might have expected.

FOCUS is a group that believes that the chronic problems of low achievement in urban schools can be addressed by proliferating the number of alternative schools, independent of the school system bureaucracy. A large number of different pedagogical approaches will more likely find those modalities that work better than the sclerotic systems many urban school systems have become. Moreover, children with different needs are likely to prosper at different types of schools.

The charter school movement in the District of Columbia seems to have fallen below the national radar. The movement was jump started during the Newt Gingrich Congress. Then Congress, over the venomous objections of the District of Columbia government, particular the school system, permitted the formation of charter schools. These charter schools would receive funding roughly equivalent in per-pupil-expenditure as the public school system. The latest figures available from the US Department of Education, lists the average per pupil expenditure in the US at $7,734 of which 61.5% is spent on instruction and the majority of the rest on support services. For the District of Columbia, the per-pupil-expenditure is $12,102 with only 49.6% spent on instruction.

At present about 20% of DC’s children are educated in charter schools. Moreover these children come disproportionately from underprivileged backgrounds. Schools, especially elementary schools, in the affluent northwest sector of the District of Columbia are doing reasonably well. It is the less affluent parents in poorer areas who are rushing to send their children to charter schools. Charter schools must accept any child for admission. If the number of applicants exceeds the number of places, the children must be randomly selected. Charter schools are not permitted to skim the easiest to educate students. For example, 73% of the high school students in charter schools are eligible for free and reduce (price) lunch, a rough proxy for family poverty. The value for regular public schools is 51%. According to FOCUS, “a close examination of the performance data … shows that, on average, students at the 11 charter high schools significantly outperform students at non-selective DCPS (District of Columbia Public School) high schools.”

Mr. Crane conceded that the impact of charter school on educational performance was yet to be determined. There needs to be more q comprehensive and systematic measures of performance. In particular, cohorts, similarly situated students, must be tracked in different schools over a period of time. This will provide a measure of how well schools have educated the students they started with.

Because the charter schools are not bound by union contracts for teachers, the National Education Association (NEA) strongly opposes charter schools. However, this may be a very short-run perspective. NEA is composed of both classroom teachers and administrators. The more efficient use of school resources may help teachers as the expense of administrators.

Consider the numbers for the District of Columbia schools system. Only 49.6% of expenditures are devoted to instruction. If the District of Columbia just devoted to instruction the same percentage as all US schools systems, far more money would be available for paying and retaining teachers. More specifically, if the DCPS devoted 61.5% (still too low a number) to instruction and if we assume 20 students per teacher, there would be about $28,000 more available to pay teachers.

One can often find the true nature of systems when they are put under stress. Now that the DCPS school system is faced with competition, the response is interesting. Since the charter schools spend more of their allotment on instruction and less on administration, Crane told the group that there are law suits against both DCPS and charter schools because of the inequitable spending. Perhaps one measure of success is the resort of others to the courts, the last refuge of those who can win neither in the market place nor at the polls.

Charter schools may be the way to wean teachers for their blind support of the NEA and moribund public school systems. They may also be a way to wean liberals from their dependence on government to the embrace of free markets and choice. Robert Crane will not soon be a Conservative, but his successors will more intuitively understand the virtues of markets and choice and not be afraid of the Conservative label.

Father’s Day 2005

Sunday, June 19th, 2005

There is more than a small measure of truth in the cynical notion that Father’s Day is promoted less out of a reverence and respect for fathers and more as a means to generate sales in cards and gifts. It is also well-documented that Father’s Day generates far less enthusiasm than Mother’s Day. BusinessWeek reports that while consumers spend $11.25 billion on mothers, they manage to spend a substantially less $8.23 billion on dear old dad. By such a metric, fathers are honored 27% less than mothers. There is a scholarly paper to be written someday based on the observation that on Mother’s Day, there is a record number of phone calls made, while on Father’s Day, there is a record number of collect phone calls made. Why are things not as American as “fatherhood and apple pie” as well as “motherhood and apple pie?” While fathers receive less attention, there is ample evidence that they can be as important in child rearing as mothers. However, dwelling on such observations or slights is a little too self-centered and unbecoming for fathers. Father’s receive two important gifts they too often overlook. Mothers receive the same gifts, but they seem to need them less than fathers.

Children provide to fathers the gift of perpetual youth. Without children, fathers would likely not avail themselves of the opportunity to re-read the wealth of children’s literature they long ago forgot. The morality stories of fairy tales, the rhymes of Dr. Seuss, and wonders of Bill Peet books would otherwise be lost. Fathers get to look again at the world through the unjaded eyes of youth, to relive the joy of Christmas morning, to share the excitement of losing a first tooth, and to bask in the reflected glory of accomplishments from driver’s licenses to graduations. Without children, many fathers would have less of an opportunity to ride a skateboard down a hill, warm up an old mitt with a game of catch, or get a chance to explain the infield fly rule to a puzzled face. Children keep fathers from becoming grumpy old curmudgeons. It is no coincidence that the descent into curmudgeon-hood for fathers accelerates when children leave the home unless abated by the elevating presence of grandchildren.

Children create adults of out parents. It is too easy for those without children to indulge themselves in dissipating pursuits. The responsibility of children means creating a household that children can thrive in, and this requires work on the part of fathers. It also requires building neighborhoods by helping out at the school or coaching a ball team. More importantly, fathers provide an important example of behavior for children. Fathers learn to act in ways that teach the right lesson. Being a good father means becoming an adult and children hasten this process.

My children have already honored their father without the special attention of Father’s Day. Despite the fact that it is statistically true that conscientious fathers (and mothers) tend to produce better-adjusted children, that is by no means an absolute certainty. We all know of cases where children overcame rather abusive homes to become honorable and responsible adults. We all know of other cases where diligent parents have children who have severe emotional problems. Ultimately, children become adults and make their own choices. My gift from my children is that they have generally made good personal decisions, despite any mistakes I may have made. This, far more than any tie, or book, or dinner, says thank you.

Bad Law Sixty Years Later

Saturday, June 11th, 2005

”Congress shall have the power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” — Article I, US Constitution.

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” — Amendment X, US Constitution.

In 1941,Claude Filburn,a farmer in Montgomery County, Ohio sowed 23 acres of wheat. This acreage exceeded his 11.9 acre allotment under the Agricultural Adjustment Act of 1938. However, Filburn never intended his crop for commerce, interstate or otherwise. The wheat was consumed on his farm by his family and his livestock. The Federal government fined Filburn for his deliberate, wanton, and excessive farming. Filburn challenged these fines and the case found its way to the US Supreme Court.

The US Constitution grants Congress the explicit power to regulate interstate commerce, the so-called “Commerce Clause” of Article I. Filburn’s position was that his wheat production did not represent commerce and certainly not interstate commerce. Hence, it could not be regulated by the Congress. Looking back we can understand the economic foolishness of central control of the agricultural economy, but in during the Great Depression and its aftermath, the power of the Federal government was expanded to meet economic exigencies. After a few judicious appointments to the Supreme Court by President Franklin D. Roosevelt, a largely compliant Court searched for ways to justify these extensions of Federal power.

In Wickard v. Filburn, the Court ruled for the Federal government by arguing that “interstate commerce” included intrastate production and consumption. Certainly, in the Court’s view, local private consumption can have consequences on interstate commerce. Justice Robert H. Jackson, a judge recently appointed by President Roosevelt and writing for the Court in the case, argued that economic necessity “has made mechanical application of legal formulas no longer feasible” and that interstate commerce “extends to those activities intrastate which so affect interstate commerce.”

The thread of effect from farmer Filburn’s 23 acres of wheat produced and consumed entirely within a single state, within a single county, indeed on a single small private farm to interstate commerce is extremely thin. Under such an aggressively broad definition, the power to regulate interstate commerce grants the Federal government the power to regulate virtually any activity. Thus, a Constitutionally enumerated power of Congress grows into an expansive license. Jackson and Roosevelt’s Court were certainly more fecund in producing Federal power than poor farmer Filburn was in producing wheat.

The consequences of such foolish precedents tend to propagate indefinitely. Over sixty years later, California and a number of other states explicitly permitted private cultivation and use of marijuana for medicinal purposes. This time, a usually Conservative President George W. Bush and his Attorney General Alberto Gonzalez sought to use the Federal government’s interstate commerce powers to prohibit such activities. Last week, the US Supreme Court in Gonzales v. Raich, again ruled for the Federal government. Pursuant to a broad interpretation of the interstate commerce clause as given in Wickard v. Filburn, the Court decided that the Federal government can prohibit the private production and use of marijuana.

The decision was 6-3, with Justices Sandra Day O’Connor, William H. Rehnquist, and Clarence Thomas dissenting. Unfortunately, Justice Antonin Scalia, usually a reliable adherent to an “original understanding” jurisprudence, sided with the majority. However, even Scalia’s vote would not have made a difference. Justice Thomas’s dissent was the most direct and eloquent:

The respondents “use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything — and the Federal Government is no longer one of limited and enumerated powers.”

Media Reports – We Decide

Sunday, June 5th, 2005

“…the only way in which a human being can make some approach to knowing the whole of a subject, is by hearing what can be said about it by persons of every variety of opinion.” — John Stewart Mill, On Liberty.

A couple of weeks ago, Linda Foley the President of the Left-leaning Newspaper Guild, speaking at the National Conference for Media Reform accused, without the courtesy of providing proof, the American military of deliberately targeting journalists. Perhaps more revealing was that Ms. Foley’s remarks were greeted with applause and cheers confirming that her audience was sympathetic to her remarks. One gets the sense that there is an incestual reinforcement of views between Ms. Foley and her audience that blinds both to alternative points of view.

After the firestorm that followed Ms. Foley’s remarks, one might have thought she would be more circumspect in her comments, at least for a little while. But the lure of an enthusiastic, like-minded audience proved too great a temptation. Following Ms. Foley around with a microphone in search of an incendiary statement is akin to following a fuse to a bomb. The inevitable happens. On a discussion panel on media reform at the Take Back America Conference held at the Washington Hilton in Washington DC this last week, Ms. Foley seemed to eschew balanced news reporting. She said: “The conservatives have got us, as a country, now believing that balance — giving both sides — is the same as truth, and there are some things that are just false.”

Deconstruction of the statement provides and interesting insight into the maelstrom of ideas swirling around what counts for modern Liberal minds. By “balance,” Ms. Foley is referring to equal coverage of competing ideas. Ms. Foley believes that the press should identify ideas or notions that progressive minds have decided are settled and not open to debate, upon which there is no longer legitimate controversy. In such cases, according to Ms. Foley’s prescription, giving both sides is misleading. It gives people the false impression that both sides of the argument have equal merit. Foley’s argument reveals an arrogant distrust in the public’s ability to properly weigh the arguments.

Josh Silver of the Fair Press, on the same panel, offered an example of a settled issue that does not require balanced presentation: global warming. The media should not present both sides, because one side has been so discredited. Leaving aside for the moment the fact that there remains considerable scientific debate as to the rate of global warming, what fraction of it is associated with anthropogenic sources, and the relative costs between reducing green house gas emissions versus dealing with the consequences of warming, would not a balanced presentation on global warming inevitably lead the public to a the fair conclusion based on the evidenc? Given the difficulty Ms. Foley has in choosing her words carefully, one is not inclined to allow her the discretion to decide what issues have or have not been settled.

There are other social questions that have been decided empirically, but which Liberals have chosen to ignore. The correlation between intact families and positive outcomes for children is undeniable, but is certainly not given much attention by progressive journalists. Such a settled question would not be politically convenient for some. That home schooling and private and charter schools are generally at least as good for children as government-run schools does not receive much attention. Such a settled question would politically harm school teacher unions, an important Liberal constituency. That a promiscuous gay-male lifestyle bore considerable responsibility for the rapid spread of lethal AIDS infections is a settled question. However, this settled issue is not given much media attention for fear that it would reflect badly on gays. Intolerance for alternative view points is a Liberal “fundamentalism” more severe, rigid, and exclusionary than the much caricatured religious fundamentalism.

There indeed may be some settled questions that we need not continually debate. Journalists need not spend time presenting both sides on the issue of whether the Earth is flat. That is a settled question among for nearly all of us. However, there are some questions that Liberals might considered settled that many do not. Part of good journalism is recognizing those issues for which there is real disagreement in the public, even if the journalists themselves have reached their own conclusions.

The inability of Ms. Foley to see the danger of unbalanced reporting, it precisely why people are migrating away from Liberally-biased sources of news. People perceive the imbalance and do not appreciate a one-sided presentation. If a question is settled, then it would not be news and need not be reported at all. If there is significant disagreement among a large number of people, a decent respect for the consumer of news requires a balanced presentation. Why should people trust those news sources that don’t trust them; that eschew the necessity for balance and arrogantly presume the wisdom to decide which issues ought to be controversial and which ought to be settled? The comments of Foley and her Liberal compatriots are an outgrowth of the extreme frustration that when both sides are presented, some people arrive to different conclusions than they do.

Reporters should report, we should decide.