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Book Review: Our Republican Constitution (2016)

OurRepublicanConstitution

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Taking account of the United States Constitution, Georgetown University scholar Randy Barnett, whom I interviewed about ObamaCare after it became law (read it here), makes the case that this historic document is essentially republican in his simply titled new book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People.

The author proves his thesis. It’s worth mentioning the book’s problems, however, which, in general, are to be found with works by most right-wing, libertarian intellectuals: the intended audience appears to be fellow libertarians and conservatives, so the assumed context of knowledge may not apply to the leftist, liberal or general reader. Also, given the dense material, certain sections are uneven. Barnett writes like the legal scholar he is, so the back and forth can be exhausting. And, as he did in our interview about ObamaCare, Barnett declines to name the correct moral premise of his argument.

With the republic urgently at stake, though, Our Republican Constitution is extremely informative and Randy Barnett makes a powerfully important case for activism in order to save the American republic. He accomplishes this by reducing multiple ideas, if circuitously, to the rights of the individual.

As he observes in the introduction:

At its core, this debate is about the meaning of the first three words of the Constitution: “We the People.” those who favor the Democratic Constitution view We the People as a group, as a body, as a collective entity. Those who favor the Republican Constitution view We the People as individuals.”

From here, incorporating the ideas of John Locke, Montesquieu and Jean-Jacques Rousseau, Barnett tells stories based on facts, quotes and history, of American government in decline, from major mistakes during the nation’s founding to the suspicious Supreme Court decision to uphold ObamaCare, in which he notes that “it was reliably reported” that the nation’s Chief Justice—conservative John Roberts—switched his vote on the individual insurance mandate, possibly due to intimidation.

The central conflict in Our Republican Constitution is between these two opposing views, the Democratic Constitution—”first comes government, then come rights”—tied to Rousseau’s notion of the General Will, which Barnett eviscerates, and the premise of the Republican Constitution: “first come rights and then comes government.” After outlining his case with ample historical sourcing and documentary evidence, the author sets it up, asking the reader: “Were the founders really against democracy? You bet. They blamed the problems in the states under the Articles of Confederation on an excess of democracy.”

Differentiating between both sides’ views of popular sovereignty, which he acknowledges are both consistent with the idea of representative government, Barnett breaks down the story of slavery in the United States, which he develops throughout the book. He points out that Democrats defended slavery as a form of socialism, as against capitalism, because, Democrats argued, slaves are cared for from cradle to grave. He digs into details and aspects of whether, “given the sovereignty of the people as individuals, the people cannot be ‘presumed’ or ‘supposed’ to have confided in their legislature any power to violate their fundamental rights.” The answer is No.

Not according to Democrats, of course, who believe that a majority of the people gets to speak for everyone (President Martin Van Buren’s idea of democracy, he writes, was close to Rousseau’s: “He ‘seems to have conceived of the democracy almost as a unified body with a single true will’). Barnett adds: “And the majority, if it wishes, can even authorize the enslavement of the minority!”

Along the journey, which is in turns jaw-dropping, illuminating and, given today’s political context, terribly depressing, the reader learns about an Ohio senator who, in 1854, demanded to know “[w]hat kind of popular sovereignty is that which allows one portion of the people to enslave another portion? Is that the doctrine of equal rights? Is that exact justice? Is that the teaching of enlightened, liberal, progressive Democracy? No, sir; no! There can be no real democracy which does not fully maintain the rights of man, as man.” Or that the Civil Rights act of 1866 granted that:

citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude…shall have the same right…to make and enforce contracts, to sue, be parties, give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens…any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.

Midway through Our Republican Constitution, it is evident that that’s not the civil rights act that today’s students learn about in state-controlled U.S. history classes (to the extent American history is taught in government schools) and the state of the union today might be very different, which is to say better, if they did!

Piling on shocking tales of early American acts of anti-capitalism, Barnett goes on. Democratic Constitution proponents include Democrats, Rousseau and Oliver Wendell Holmes, whom Barnett demonstrates believed that “if there exists anyone who is rational and fair who thinks that a measure is constitutional, then it is.” Other arch-opponents to a republican Constitution were Woodrow Wilson, who sought to subject America to parliamentary rule, and Theodore Roosevelt who once said of the judiciary: “our prime concern is that in dealing with the fundamental law of the land, and assuming finally to interpret it, and therefore finally to make it, the acts of the courts should be subject to and not above the final control of the people as a whole.”

After establishing the arguments for and against and setting the contrast, the Georgetown University professor sums up the cold, hard truth that America’s “system of voting does not [in fact] allow the sovereign people to ‘rule,’ and it is a pernicious myth to claim that they do.”

Though he never fundamentally, philosophically challenges “the social compact” or General Will, it’s easy to apply the detailed, persuasive points of Barnett’s thesis to today’s ominous possibilities. The prospect of Donald Trump‘s proposed strongman rule comes to mind as Barnett quotes Montesquieu, who explained that: “There is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

Barnett delivers a good explanation of the rise of the omnipotent state, closing the loop with an excellent summary and warning from Supreme Court Justice Clarence Thomas:

we have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.”

To his credit, Barnett, who has written several Constitutional volumes and whose new book includes a foreword by George Will, is aware that this thoughtful, timely and intelligent book isn’t exactly what you’d buy for reading at the beach—after one section, he admits that “perhaps you had difficulty even following it”—but he doesn’t identify the ends where we’re heading, merely referring to “whatever progressive political agenda may be at any given time”. Our Republican Constitution would benefit from stronger connecting of the dots, as Barnett himself seems to grasp. For instance, perhaps sensing that an outright socialist such as Bernie Sanders might follow the disaster of a Trump or Clinton presidency, he rightly observes that “[f]or our modern-day progressives, what matters is the end, not the means. Social justice, not democracy.”

Though he does not spell out what this really means in practice, let alone demonstrate why socialism is evil, a chronic libertarian deficiency, and in the following chapter, he magnifies the minutiae, Randy Barnett leaves the reader with an abundance of historical facts and useful intellectual weapons with which to fight for Our Republican Constitution, all but daring the reader to use it or lose it with the words of President Calvin Coolidge: “We live in an age of science and abounding accumulation of material things. These did not create our Declaration. Our Declaration created them.”

And, while his defense manual for “securing the liberty and sovereignty of We the People” was undoubtedly written before the rise of the orange-haired, state-bred crony and the impending end of the Republican Party, Barnett clearly anticipates danger ahead. Referring to Coolidge’s above quote on freedom as the precondition for progress, Barnett boldly concludes that “we need a Republican Party that can say this, understand this, and truly believe this once again – and, if not the existing Republican Party, then a new one to replace it.”

With an index, extensive notes and a poignant acknowledgment of his father, a victim of Alzheimer’s—”this book is dedicated to the memory of the man who had the greatest influence on my political convictions: my father and personal hero, Ronald Evan Barnett — who was a true “Republican” as I am defining the term”—Our Republican Constitution is a thoughtful Father’s Day present and an eye-opening self-defense for the rational American which offers historical enlightenment about America’s true origins.

Report: Apple’s Atlases May Shrug

Today’s edition of the New York Times reports that if Apple is forced by the Obama administration to make a government-dictated operating system, its key employees and software engineers may quit the company (read the article here). Apple refused comment for the article in the Times, which often sides with the Obama administration and rarely risks incurring the government’s wrath.

Will Atlas shrug? That’s what Lavabit, a company cited in the Times piece which was also ordered by the Obama administration to act against Lavabit’s rights and self-interest, did when its founder chose to exterminate his company rather than submit to statist oppression. Apple, led by heroic CEO Tim Cook, is challenging the United States government in a court battle which may end up in the Supreme Court (read about Apple’s case here).

Whatever Apple workers choose to do if and when faced with the threat of force by the FBI, this report should be seen as part of the epic contest between Apple and the U.S. government. The Democratic Party’s leading candidate for president and presumptive nominee, Hillary Clinton, presumably would mimic the unconstitutional policy of Barack Obama, who went before SXSW last week to impose unearned guilt and shame on Apple and its customers, whom he complained “fetishize their cell phones” at the expense of national defense. Presidential frontrunner Donald Trump, running as a Republican, supports the Obama administration and opposes the rights of Apple, which Trump said he would “boycott”. Unfortunately, Texas Senator Ted Cruz also rejects Apple’s argument, though not as unequivocally as Clinton and Trump.

81px-Apple_logo_black.svgApple, however, is unyielding in the commitment to its products, customers and rights and is winning the argument, gaining support from Silicon Valley businesses such as Google, Twitter and Microsoft, key policy groups such as the Cato Institute and the Electronic Frontier Foundation and Rep. Justin Amash, a leading opponent of Obama’s surveillance statism. In a recent judicial filing, Apple rightly argued that America’s founders “would be appalled” by Obama’s dictate.  Tim Cook told ABC News in an interview that Apple’s defiance against the order is a “matter of principle”.

That may also be true for Apple’s men of the mind, according to the report. Will Obama force Apple employees to work under executive order in their current positions and effectively seize operational control and nationalize the Cupertino, California-based company? Do not be surprised if he does—and count on the fact that Trump, whose candidacy is predicated on the promise to use physical force against the individual at his whim, will not hesitate to do the same or worse. The same goes for Hillary Clinton, who once proposed outlawing divorce for couples with children. The notion that Americans may again be physically forced by the government to work—slavery—is a distinct possibility. As the terrible Obama presidency comes to a climactic end, and the reality of a more diabolical presidency looms, the thinking man knows that tyranny not only can happen here—it is, in fact, happening here and now.

Whether Apple in whatever form goes on strike may prove crucial in this major battle between America’s worst big government and America’s best big business. In this sense, what the state does to Apple—and what Apple does in its self-defense—foretells America’s immediate future.

Tim Cook for Man of the Year

I did not fully appreciate the heroism of Apple’s principled stand against the state until I watched the full, extended interview with CEO Tim Cook (watch it here).

ABCNEWSlogoThough ABC News should have disclosed its parent company Disney’s historically close relationship with Apple and the interviewer’s questions are generally slanted toward Obama’s administration or uninformed and often hostile, with no regard for individual rights, the interview only underscores Mr. Cook’s outstanding communication skills. He’s unequivocal, he answers each question, raising the stakes here and there and challenging the interviewer. It’s apparent from the interview that Apple, its leadership and Mr. Cook, who persistently and powerfully emphasizes that Apple’s refusal to comply with the government’s order to make new software in violation of Apple’s and its customer’s rights is a stand on principle, has studied, examined and contemplated the deepest issues and context of the false dichotomy between national defense and individual liberty. Tim Cook concisely, slowly and fundamentally gives Apple’s position clarity. One may dispute a word choice or phrasing but I can’t recall another recent example of a businessman so prominently, bravely and historically refusing to be persecuted by the state.

Bravo to Tim Cook for standing up for individual rights—his company’s and his customer’s—and to Apple for earning its status as the greatest American business. Whatever the outcome in this climactic conflict between the inalienable rights of the individual and the ominous role of the American state (read my thoughts on “Apple vs. the State“), the fact is that, while presidential candidates rage against Big Business and fraudulently pose as rebels for positive reform, a big business in California led by one man honors the proud American practice—from the Boston Tea Party to Rosa Parks and Edward Snowden—of rebelling against the omnipotent state and fighting for one’s rights.

Apple vs. the State

In an extraordinary act of defiance against the state, Cupertino, California-based Apple, Inc. refused to comply with the Obama administration after a judge ordered the company to breach its customers’ privacy and contracts, act against its own policies, terms and self-interest and “help” the government decode and destroy the company’s invention and property, the iPhone—all under compulsion in the name of national security.

Leave aside legal, ethical and philosophical consideration of national security implications inherent in the FBI’s public admission that it can’t hack a dead terrorist’s government-issued cell phone, contradicting the Obama administration’s claims that such authority is both successful and crucial to the nation’s defense. As Apple’s chief executive officer explains in his February 16 response, the Department of Justice’s demand that Apple create a means of decoding a single iPhone possessed by the state after an Islamic terrorist attack amounts to all of the above violations of Apple’s individual rights. And, as the Supreme Court’s Citizens United decision affirms, a company is properly regarded as an individual with absolute individual rights.

Democrat Ron Wyden, a U.S. senator from Oregon and staunch advocate for Americans against the surveillance state, agrees with Apple, declaring that the judge’s order is “unconstitutional”. Wyden, like Edward Snowden in a post on Twitter, correctly implies that the Obama administration’s demand is an inversion of government’s proper role. As Snowden (who is said to have been moved to his heroic whistleblowing by The Lives of Others) posted, “the FBI is creating a world where citizens rely on Apple to defend their rights, rather than the other way around.” I made a similar and related point in defense of Sony contra the U.S. government over the government’s abdication of national defense in the wake of an attack on one of the Culver City, California company’s movies (“The Undoing of Sony’s ‘The Interview‘”).

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Click to Read Letter

By posting the letter, Apple is fighting back. Exercising its right to absolute freedom of speech, asserting its property rights and the right to run its own business, the company co-founded by Steve Jobs issued the unprecedented public warning against the dangers of mass, unchecked government surveillance and made what amounts to a call to citizen action. In his letter to Apple customers, CEO Tim Cook refuses to accept the legitimacy of the judge’s order and instead insists upon recognition of Apple’s individual rights.

Apple’s letter is a declaration of independence against the oppressive state. The company leads in defending man’s rights against the surveillance state—to my knowledge, not a single technology company has publicly and unequivocally supported Apple’s letter and position—and, whatever its flaws and contradictions, such as referring to the United States as a “democracy” when, in fact, the U.S. is fundamentally a republic, Apple is, in today’s context, 100 percent right and should be supported by advocates of liberty and capitalism.

Former New Mexico Governor Gary Johnson, whom I interviewed in 2011 when he ran for president in 2012 (read the interview), reduces Apple’s persecution to essentials with a good example: “[I]f the FBI comes across a safe in [a legally sanctioned search of a criminal’s] house, the warrant and permission do not mean it can force the company that manufactures the safe to create a special tool for opening its safes, especially a tool that would make other safes completely useless as secure storage. That’s the situation that Apple’s dealing with here.” Indeed, other than the Clinton administration’s proposed V-chip censorship mandate for all television sets, which failed, I can’t recall a more sweeping manufacturing mandate to violate the rights of individuals.

I’m also not aware of any support for Apple among the field of 2016 presidential candidates.

On the contrary, bombastic GOP frontrunner Donald Trump, appearing on Fox and Friends, denounced Apple’s position. “Who do they [Apple] think they are?” Trump asked. “They have to open it up.” Trump—who supports government-controlled medicine, the massive surveillance state and arbitrary government seizure of private property—said: “I agree 100 percent with the [judge]. In that case, we should open it up.” […] “We have to use common sense.”

In this context, “common sense” means faith in the statethe massive, unchecked surveillance state that can order any company or individual at its arbitrary discretion to create a means to absolutely violate the individual’s rights. Not surprisingly, a Fox News panel with Washington Post columnist Charles Krauthammer, columnist A.B. Stoddard and conservative columnist Stephen Hayes concurs with Trump’s opposition to Apple. They are the embodiment of what Ayn Rand called “Faith and Force: Destroyers of the Modern World,” which was Rand’s first major campus talk, delivered 56 years ago today at Yale University.

As left and right commune in faith—belief without evidence—in the omnipotent state (the NSA, ObamaCare, TSA), one voice of reason opposes in principle and action the initiation of force against the individual; Apple, which refuses to go silently to its—and America’s—doom. As usual, a private, for-profit enterprise, in keeping with the nation’s history of singularly great acts of rebellion against tyranny such as the Boston Tea Party, sets an example in achieving the moral, i.e., egoistic, ideal in action. What happens next will be interesting, potentially decisive and either encouraging or horrifying, and possibly crucial to whether the nation remains in any sense a republic based on individual rights.

TV Review: The Hunt with John Walsh

TheHuntJWCNNThe second season of CNN’s The Hunt with John Walsh premiered this week. After an extraordinary first season resulting in catching—and, in some cases, killing—criminals, it gets better.

There’s nothing else like The Hunt with John Walsh on television. The 60-minute original program hosted by anti-crime activist and America’s Most Wanted creator and ex-host Walsh, father of Adam, a child who was abducted and murdered, is a rare, non-fiction procedural program with unyielding moral judgment. Whatever legitimate criticism applies to Walsh, who appears in ads as a celebrity spokesman, too, The Hunt, like America’s Most Wanted, gets real results. The program, produced in cooperation with police detectives, who are also not above reproach on the show, has already led to the arrest, capture or killing of several of its first season criminals, who include those accused, detained or convicted of sexual assault, vehicular manslaughter, attempted murder and mass murder. Walsh tells the story of a crime from the victim’s perspective and solicits tips, assuring the viewer that “you can remain anonymous”—before each commercial break. Tastefully produced, and serious, not gratuitous, The Hunt lets each victim’s loved one or loved ones speak in their own voice.

Moral judgment extends to those who ignore, deny, evade, enable or abet crime, too, however, as is the case with the second season premiere’s episode profiling double murderer Egyptian Moslem Yaser Abdel Said, whose wife of 20 years all but brought her beautiful young daughters back from Oklahoma to Texas to be slaughtered by their father—whom they had accused of sexually abusing them—in what was apparently what’s known in Islam as an “honor killing”. More in this episode should have been reported about Said’s Arab culture and the role of his religion. But, other than John Walsh, who else on cable television, let alone broadcast TV, has the courage to call criminals “bastards” at the start of each episode, mean it to the end of seeking justice and claim this successful a track record? Unlike the predator trap show on NBC networks, The Hunt is not a sting to entice the criminal to commit the crime. Walsh deals in facts, law enforcement, crime recreations, certain victim perspectives and, in particular, the relentless pursuit of apprehending the fugitive from justice. Hence, the title The Hunt, which proceeds without an air of vigilantism. The show is relatively new—America’s Most Wanted ran for 25 seasons—so its effectiveness should be measured, scrutinized and judged, like sex offender laws, over time.

But a show predicated on getting justice for the innocent when injustice by the guilty often goes unpunished is an outstanding addition to TV programming. Walsh talks about being the victim of crime and shares insights based on what he’s experienced, learned and investigated since he lost his son in 1981 and the personal viewpoint adds to the show’s credibility. Like his predecessors in true crime television, Robert Stack and other fine hosts, Walsh deserves praise for seeking a responsible approach to solving, preventing and punishing crime. The fact that he survives a devastating, personal loss underscores the importance of his work.

The Hunt with John Walsh (go here for more info) airs on CNN Sundays at 9 pm ET/PT.