From the Archives: Attorney General Ken Cuccinelli says Obamacare decision is 'a win for liberty'

Attorney General Ken Cuccinelli says Obamacare decision is 'a win for liberty'
June 28, 2012 11:30 AM MST

In a press conference today, Virginia Attorney General Ken Cuccinelli said that the Supreme Court’s health-care decision was a “victory for individual liberty” and that his initial reaction to the ruling was more negative than it ought to have been.

Speaking to reporters in Richmond and via telephone conference call, Cuccinelli called the ruling “a win for liberty” and explained that for the first time in 85 years, the Supreme Court had set “an outer limit” on the expansion of federal authority through the Commerce Clause.

He said that by its 5-4 ruling on the limits of the Commerce Clause, the Court had put in place a “critically important containment of federal power” and that in the parts of the ruling dealing with Medicaid, the justices had for the first time since the New Deal said that Congress has limited power to compel states to act through its spending authority.

Politics and legislation
Moreover, Cuccinelli argued, by defining the individual mandate as a “tax,” as Chief Justice Roberts did in his majority opinion, the Court opened up political challenges to the law because Congress’s taxing authority is the most accountable and sensitive of its powers to popular will.

By calling it a tax, he said, the Court (specifically the Chief Justice) removes the political cover for those legislators who claimed not to have voted for a tax increase. They can no longer go back to their home districts and say they did not vote for a tax, he said, and thus they will be subject to the judgment of voters on Election Day.

Given that, Cuccinelli predicted that, with the impending elections this November, the ruling will show the critical role that voters play in “ensuring that their liberties are preserved.”

‘Bipartisan failure’
As a policy matter, Cuccinelli said, health-care legislation has been “a bipartisan failure” and that the Affordable Care Act is such a “bad policy” that even the people who supported it are backing away from it, as a constitutional matter, “individual liberty has been substantially preserved in this case.”

He also noted that, apart from the aspects of the law addressed in the decisions delivered by the Court today, there are still matters about the ACA that continue to be litigated. He gave as an example the lawsuit filed by the Catholic bishops with regard to contraceptives.

Federalism preserved
Cuccinelli said that the justices came to their decision in an “unlikely way,” but that “if there had been five votes to compel us into commerce, federalism would have been dead,” pointing out that Justice Ruth Bader Ginsburg, in her dissent on the Commerce Clause part of the ruling, claimed that the “Commerce Clause power is plenary,” that is, unlimited.

Wrapping up, the Virginia Attorney General said that upon reflection, his analysis of the Supreme Court’s health-care ruling is more muted than his initial reaction was, and that “by and large” the decision preserved individual liberty.


Publisher's note: This article was originally published on Examiner.com on June 28, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: 5 years after Kelo v. New London: Are property rights safe?

5 years after Kelo v. New London: Are property rights safe?
June 23, 2010 7:54 PM MST

In its 1972 ruling in Lynch v. Household Finance Corporation, the U.S. Supreme Court explained:

“Property does not have rights. People have rights. The right to enjoy property without unlawful destruction, no less than the right to speak or the right to travel, is in truth a ‘personal’ right.” The court went on to declare that “a fundamental interdependence exists between the personal right to liberty and the personal right to property.”

Property rights – a shorthand term for the rights of people to own and use property – and human rights are indistinguishable. One cannot exist without the other. The right to a free press is impossible without the right to own ink or a photocopier or a typewriter. The right to free exercise of religion is not possible without the right to own churches and seminaries and cemeteries and Talmuds and schools.

Kelo v. New London
It is fitting today to remember these fundamentals because five years ago, on June 23, 2005, the Supreme Court undercut Americans’ property rights in the case of Kelo v. City of New London. In that case, the Court ruled that governments can take the property of one person, using the power of eminent domain, and hand it over to another person, who may be able to generate more tax revenues from the property than the original owner was able to do – or chose to do.

The U.S. Constitution guarantees the right to hold property and to make contracts using that property. The Fifth Amendment makes plain that “no person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.”

Property Rights Under Attack
Still, property rights are under assault throughout the United States. Through taxation and regulation, state and federal governments are impeding our rights to do what we please with our property, even if we are not harming other people or their property.

Towns and cities across the country, for example, have begun to designate certain neighborhoods as “historic districts,” usually without the consent of homeowners in those neighborhoods. This designation is accompanied by hundreds of restrictions regarding what homeowners can do with their property, such as whether they can repaint their homes, put up aluminum siding, replace a roof, cut down a tree, and so forth.

This is not a trivial issue. It affects any person who owns property, whether a residence or a business. “Historic district” designations strike at the root of individual liberty and should not be dismissed lightly. Much is at stake. In fact, the Pennsylvania Supreme Court ruled a similar law unconstitutional because it took away the decision making capacity of homeowners in favor of a politically defined “public good,” thus taking private property for public use without just compensation.

Environmental regulations do much the same. Thousands of acres of farms, ranches, and residential areas have been declared “wetlands” that deserve government protection. The owners of the designated property are not permitted to plant crops, graze cattle, or build homes or factories on government-designated “wetlands” unless they can cut through miles of red tape.

Kelo’s Legacy
The Kelo decision states that it is permissible for the government to use eminent domain to seize one person's property and give it to another. The recipient is almost invariably wealthier and better connected politically than the victim of the seizure.

In the aftermath of Kelo, the good news is that the American people demanded that laws be made to reject the Court’s decision. Across the country, state legislatures have passed statutes or even constitutional amendments to protect people against eminent domain abuse. (In Virginia, the law is somewhat better than it was but still weaker than it should be.)

The bad news -- sadly ironic news -- is that the situation that started it all, Pfizer's demand that the city of New London, Connecticut, destroy a working-class neighborhood to create housing for its high-paid executives, turned out to be moot. Pfizer pulled out of the project, which was never built, and Suzette Kelo's former neighborhood is a desert, populated only by "feral cats," as one chronicler noted. New London took a vibrant cityscape and turned it into blight.

Kelo’s lesson is that nobody’s property is safe, even though property rights should be seen, properly, as one component the bundle of basic human rights that each individual possesses.

Publisher's note: This article was originally published on Examiner.com on June 23, 2010. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Virginia GOP Senate candidates share thoughts on 17th Amendment repeal

Virginia GOP Senate candidates share thoughts on 17th Amendment repeal
May 1, 2012 7:41 PM MST

Three of the four candidates seeking the Republican nomination for the U.S. Senate in Virginia agree that efforts to repeal the 17th Amendment to the U.S. Constitution – which authorizes the direct election of senators – are impractical at best.

In post-debate interviews in Roanoke on Saturday, where all four candidates participated in a forum sponsored by the Republican Party of Virginia, the candidates expressed their views on the 17th Amendment in response to questions posed by the Charlottesville Libertarian Examiner.

‘Repeal Amendment’ alternative

Jamie Radtke said that she does not think the repeal efforts are viable, “so I’ve been very supportive, as you know, of the Repeal Amendment,” proposed by William Howell, speaker of the Virginia House of Delegates, and Georgetown University law professor Randy Barnett.

The Repeal Amendment, Radtke explained, “says that if two-thirds of the state legislatures agree,” Americans can use that method to “repeal any act of Congress, any rule, any regulation, or any tax.”

That, she said, “gets to the heart of the 17th Amendment without taking any people’s right to vote away.”

Exponential corruption

E.W. Jackson said that he has “been asked that question on numerous occasions and my response is always the same: I’m not convinced it’s a good thing to do.”

Jackson explained that, “while people may feel” indirect elections “may make a senator more responsive to the needs of the state and the state legislature,” he thinks “the potential for corruption is exponential” because of “the deals that need to be cut to select who that person is going to be.”

As a result, Jackson said, “I’m in favor of leaving it as it is but I’ve made a commitment to those who have that concern that I will regularly go and visit the General Assembly and regularly meet with our delegates and our senators [to] talk to them about what their needs are and what I can do to either help them with federal policy or get federal policy off the backs of our state.”

‘Cheaper to campaign’

Guest Post: The Slippery Slope to a Constitution-Free America

By John W. Whitehead

“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”—Benjamin Franklin

The ease with which Americans are prepared to welcome boots on the ground, regional lockdowns, routine invasions of their privacy, and the dismantling of every constitutional right intended to serve as a bulwark against government abuses is beyond unnerving.

I am referring at this particular moment in time to President Trump’s decision to deploy military forces to the border in a supposed bid to protect the country from invading bands of illegal immigrants.

John W. Whitehead

This latest attempt to bamboozle the citizenry into relinquishing even more of their rights is commonly referred to as letting the wolves guard the henhouse.

Never mind that using the U.S. military as a police force constitutes a direct violation of the Posse Comitatus Act of 1878. Never mind that America’s police have already been transformed into a standing army. Never mind that the borders have always been porous—a fact that the government and its corporate partners profit from greatly when convenient. Never mind that Trump’s infatuation with heavy-handed military and police power could pave the way for far greater threats to our liberties than a few underfed, unemployed migrants entering the country.

We are long past the stage where the government—at any level—abides by restrictions on its powers.
What we are dealing with is a run-away government hyped up on its own power, whose policies are dictated more by paranoia than need.

Watching the state of our nation unravel, I can’t help but think of Nazi Field Marshal Hermann Goering’s remarks during the Nuremberg trials. As Goering noted:

It is always a simple matter to drag people along whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. This is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in every country.

It works the same in every country.

The same propaganda and police state tactics that worked for Adolf Hitler 80 years ago continue to be employed with great success in a post-9/11 America.

We keeping returning to the same sticking point, forced to make the same choice over and over again: essential liberty or temporary safety.

Time and again, we keep sacrificing our liberties for phantom promises of safety.

Whatever the threat to so-called security—whether it’s rumored weapons of mass destruction, school shootings, or alleged acts of terrorism—it doesn’t take much for the American people to march in lockstep with the government’s dictates, even if it means submitting to martial law, having their homes searched, and being stripped of one’s constitutional rights at a moment’s notice.

Moreover, it doesn’t really matter whether it’s a Democrat or a Republican at the helm, because the bureaucratic mindset on both sides of the aisle now seems to embody the same philosophy of authoritarian government.

The lesson is this: once a free people allows the government to make inroads into their freedoms or uses those same freedoms as bargaining chips for security, it quickly becomes a slippery slope to outright tyranny.

This is fast becoming a government that has no respect for the freedom or lives of its citizenry.
Yet there are warning signs we cannot afford to ignore.

First off, there is no such thing as a “border” in the eyes of these military patrols. The entire United States of America has become a Constitution-free zone.

According to journalist Todd Miller, the “once thin borderline of the American past” is “an ever-thickening band, now extending 100 miles inland around the United States—along the 2,000-mile southern border, the 4,000-mile northern border and both coasts... This ‘border’ region now covers places where two-thirds of the US population (197.4 million people) live… The ‘border’ has by now devoured the full states of Maine and Florida and much of Michigan.”

As part of its so-called efforts to keep the nation safe from a host of threats, the U.S. government has declared that ever-expanding border region a Constitution-free zone.

Miller explains:

“In these vast domains, Homeland Security authorities can institute roving patrols with broad, extra-constitutional powers backed by national security, immigration enforcement and drug interdiction mandates. There, the Border Patrol can set up traffic checkpoints and fly surveillance drones overhead with high-powered cameras and radar that can track your movements. Within twenty-five miles of the international boundary, CBP agents can enter a person’s private property without a warrant.”

To recap: 66% of Americans (2/3 of the U.S. population, 197.4 million people) now live within this 100-mile-deep, Constitution-free zone.

That’s a lot of ground to declare off limits to the Constitution.

The result, as Miller notes, “is a permanent, low-intensity state of exception that makes the expanding borderlands a ripe place to experiment with tearing apart the Constitution, a place where not just undocumented border-crossers, but millions of borderland residents have become the targets of continual surveillance.”

Be warned: government agents continue to roam further afield of the so-called border as part of their so-called crackdown on illegal immigration, drugs and trafficking. Consequently, greater numbers of Americans are being subject to warrantless searches, ID checkpoints, transportation checks, and even surveillance on private property.

Second, this de facto standing army that has been imposed on the American people is in clear violation of the spirit—if not the letter of the law—of the Posse Comitatus Act, which restricts the government’s ability to use the U.S. military as a police force.

America’s police forces—which look like, dress like, and act like the military—have undeniably become a “standing” or permanent army, one composed of full-time professional soldiers who do not disband, which is exactly what the Founders feared. With the police increasingly posing as pseudo-military forces—complete with weapons, uniforms, assault vehicles, etc.—a good case could be made for the fact that SWAT team raids, which break down the barrier between public and private property, have done away with this critical safeguard.

Unfortunately, the increasing militarization of the police, the use of sophisticated weaponry against Americans and the government's increasing tendency to employ military personnel domestically have all but eviscerated historic prohibitions such as the Posse Comitatus Act.

Indeed, there are a growing number of exceptions to which Posse Comitatus does not apply. These exceptions serve to further acclimate the nation to the sight and sounds of military personnel on American soil and the imposition of martial law.

This begs the question: if the borders constitute a Constitution-free zone, who will police those policing our borders and hold them accountable for misconduct and wrongdoing?

We’ve seen what happens to domestic police charged with wrongdoing: they get little more than a slap on the wrist. Just recently, in fact, the U.S. Supreme Court shielded a police officer who shot a woman four times in her driveway as she stood talking to a friend while holding a kitchen knife. As Justice Sonia Sotomayor acknowledged in her dissent in Kisela v. Hughes, “It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Third, there’s the Customs and Border Protection (CBP) agency, an arm of the Department of Homeland Security made up of more than 60,000 Customs and Border Protection employees, and supplemented by the National Guard and the U.S. military. 

A national police force imbued with all the brutality, ineptitude and corruption such a role implies, the DHS—aptly described as a “wasteful, growing, fear-mongering beast”—has been ruthlessly efficient when it comes to establishing what the Founders feared most: a standing army on American soil.

The third largest federal agency behind the Departments of Veterans Affairs and Defense, the DHS—with its 240,000 full-time workers, $40 billion budget and sub-agencies that include the Coast Guard, Customs and Border Protection, Secret Service, Transportation Security Administration (TSA) and the Federal Emergency Management Agency (FEMA)—extends its tentacles into every aspect of American life.

In fact, just about every nefarious deed, tactic or thuggish policy advanced by the government today can be traced back to the DHS, its police state mindset, and the billions of dollars it distributes to police agencies in the form of grants to transform them into extensions of the military: militarizing police, incentivizing SWAT teams, spying on protesters, stockpiling ammunition, distributing license plate readers to police agencies, contracting to build detention camps, tracking cell-phones with Stingray devices, carrying out military drills and lockdowns in American cities, using the TSA to carry out soft target checkpoints, directing government workers to spy on Americans, conducting widespread spying networks using fusion centers, utilizing drones and other spybots, funding city-wide surveillance cameras, and carrying out Constitution-free border control searches.

Finally, there’s this whole question of martial law.

Technically, a good case can be made that the Constitution-free border regions within the United States are already under martial law carried out by a standing army comprised of militarized police and the U.S. military.

Then again, for all intents and perhaps, the American police state is already governed by martial law, is it not? Battlefield tactics. Militarized police. Riot and camouflage gear. Armored vehicles. Mass arrests. Pepper spray. Tear gas. Batons. Strip searches. Drones. Less-than-lethal weapons unleashed with deadly force. Rubber bullets. Water cannons. Concussion grenades. Intimidation tactics. Brute force. Laws conveniently discarded when it suits the government’s purpose.

This is what martial law looks like, when a government disregards constitutional freedoms and imposes its will through military force, only this is martial law without any government body having to declare it. This is martial law packaged as law and order and sold to the public as necessary for keeping the peace.

It doesn’t matter whether the so-called threats to national security posed by terrorists, extremists or immigrant armies ever became a reality. Once the government acquires—and uses—additional powers, it does not voluntarily relinquish them.

The damage has been done.

For those who can read the writing on the wall, it’s all starting to make sense: the military drills carried out in major American cities, the VIPR inspections at train depots and bus stations, the SWAT team raids on unsuspecting homeowners, the Black Hawk helicopters patrolling American skies, the massive ammunition purchases by various federal agencies such as the Department of Homeland Security, the Department of Education, the IRS and the Social Security Administration.

Viewed in conjunction with the government’s increasing use of involuntary commitment laws to declare individuals mentally ill and lock them up in psychiatric wards for extended periods of time, the NDAA’s provision allowing the military to arrest and indefinitely detain anyone, including American citizens, only codifies this unraveling of our constitutional framework.

Throw in the profit-driven corporate incentive to jail Americans in private prisons, as well as the criminalizing of such relatively innocent activities as holding Bible studies in one’s home or sharing unpasteurized goat cheese with members of one’s community, and it becomes clear that “we the people” are the real enemies of the state.

We’re the ones in the government’s crosshairs.

That wall being built at the border won’t be just for keeping illegal immigrants out—it’s to keep us trapped within the punishing confines of the American police state.

Our freedoms—willingly relinquished in response to endless scare tactics—have been breached, undermined, and eroded time and time again. We’re being conditioned to this life in a police state.
As for this latest maneuver, it’s just another means of poking a hole in the already-tattered fabric of the Constitution.

In other words, it’s a test to see how hard we will fight to hold onto what remains of our freedoms.

If this is a test, we’re failing abysmally.

Face it: we are sliding fast down a slippery slope to a Constitution-free America.

We’ve been heading in this direction for some time now, but this downward trajectory has picked up speed since Donald Trump became president.

This state of near-lockdown has been helped along by government policies and court rulings that have made it easier for the police to shoot unarmed citizens, for law enforcement agencies to seize cash and other valuable private property under the guise of asset forfeiture, for military weapons and tactics to be deployed on American soil, for government agencies to carry out round-the-clock surveillance, for profit-driven private prisons to lock up greater numbers of Americans, for homes to be raided and searched under the pretext of national security, for American citizens to be labeled terrorists and stripped of their rights merely on the say-so of a government bureaucrat, and for pre-crime tactics to be adopted nationwide that strip Americans of the right to be assumed innocent until proven guilty and creates a suspect society in which we are all guilty until proven otherwise.

All of these assaults on the constitutional framework of the nation have been sold to the public as necessary for national security.

Time and again, the public has fallen for the ploy hook, line and sinker.

We’re being reeled in, folks, and you know what happens when we get to the end of that line? We’ll be cleaned, gutted and strung up.

Incredibly, no matter how many times Americans are lied to, cheated, swindled, robbed, manipulated, and doublecrossed, they still keep falling for the government’s tired, thinly disguised ploys to amass more power at the expense of the citizenry.

Remember when George W. Bush claimed the country was being invaded by terrorists post-9/11 and insisted the only way to keep America safe was to give the government and its gun-toting agents greater powers to spy, search, detain and arrest?

The terrorist invasion never really happened, but the government kept its newly acquired police powers made possible by the USA Patriot Act.

Remember when Barack Obama claimed the country was being invaded by domestic terrorists and insisted the only way to keep America safe was to give the military the power to strip Americans of their constitutional rights, label them extremists, and detain them indefinitely without trial?

The invasion never really happened, but the government kept its newly acquired detention powers made possible by the National Defense Authorization Act (NDAA).

Now you have Donald Trump claiming the country is being invaded by immigrants and insisting that the only way to keep America safe is to empower the military to “assist” with border control.

Mind you, Trump is not the first president to deploy military forces to the border.

Nevertheless, you can rest assured that this latest call for boots on the ground (whether those boots belong to the National Guard or the armed forces is mere semantics) to police the American border is yet another Trojan Horse that will inflict all manner of nasty police state surprises on an unsuspecting populace.

As I make clear in my book Battlefield America: The War on the American People, the menace of a national police force—a.k.a. a standing army—vested with the power to completely disregard the Constitution, cannot be overstated, nor can its danger be ignored.

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

Reprinted by permission of The Rutherford Institute.

From the Archives: Legal scholar Richard Epstein discusses new book ‘Design for Liberty’

Legal scholar Richard Epstein discusses new book ‘Design for Liberty’
February 23, 2012 4:01 PM MST

Already well-known for such works as Takings: Private Property and the Power of Eminent Domain, How Progressives Rewrote the Constitution, and a widely used legal textbook on torts, New York University law professor Richard A. Epstein has just published Design for Liberty: Private Property, Public Administration, and the Rule of Law (Harvard University Press).

At a recent Cato Institute event, Professor Epstein spoke to the Charlottesville Libertarian Examiner about his new book and his next project, a book about classical liberalism and constitutional law.

What is ‘Design for Liberty’?
Design for Liberty, he said, differs from his previous books in that “it’s a little bit more philosophical. It spends much more time talking directly about public administration, which I have not talked about much in previous books.”

Moreover, Epstein added, it reflects his “newfound interest in public administrative law, which is usually missing from the earlier works, and of course, it has material which I could never have covered earlier because things like the Dodd-Frank [banking] statute and the current health-care [law] are creatures of the last year or so and therefore I never spoke about them before.”

Digging further beneath the surface, Epstein pointed out that his new book contains “a fairly detailed explanation of first and second order rules, a sort of technical subject,” which involves the question of “when is it that you have to have to resort to reasonableness rules?”

That happens, he said, when “it turns out that hard-line rules don’t work and what you have to do in order to make the rule of law work is to understand that the mere fact that there’s a reasonableness in some legal system doesn’t disqualify from the rule of the law.”

“On the other hand,” he argued, “you can’t let reasonableness determinations overwhelm the whole system, so I try to develop protocols to how it is that you separate those things.”

Future project on classical liberalism
Also a columnist for the Hoover Institution's online journal, Defining Ideas, where he writes regularly as "The Libertarian," Epstein is working on his next project, which will be what he describes as “a very long book” with the working title “The Classical Liberal Constitution.”

That book, he said, is “about 90 percent done.”

In it, Epstein “takes the fundamental insights that I’ve developed over the years and basically gives a comprehensive analysis of every major constitutional area with a hell of a lot of compression, but it starts with basic theories of constitutional interpretation. It talks about the conflict between the progressive and the classical liberal visions. Those,” he said, “are things I’ve talked about before.”

Epstein’s forthcoming book “goes through systematically the judicial, the executive, and legislative branches, and then does all the various threads of individual rights, each getting a chapter.”

Unlike Design for Liberty, “which is slim,” The Classical Liberal Constitution “will be fat,” he said, with a likely publication date in late 2012 or early 2013.

“It’s been a book that’s been in the making for many years now,” Epstein explained. “It’s an effort to give a comprehensive way in which, if you take the positions that I do, various cases and various issues have to come out.”

Given Epstein’s past work, The Classical Liberal Constitution will have “some stuff on takings, but that’s not the main focus of it. It has things on freedom of religion and executive power and foreign affairs and so forth.”

Epstein concedes that his “knowledge base is not uniform across all these areas" but notes that "what makes it possible to do this project is that the Supreme Court doctrine generally tends to be comprised in a relatively few key cases.”

Consequently, “if you have a strong theory, and you pick the right cases to read, you can write the kind of book that I’m talking about.”


Publisher's note: This article was originally published on Examiner.com on February 23, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Del. Rob Bell explains why property rights belong in the Va. Constitution

Del. Rob Bell explains why property rights belong in the Va. Constitution
February 7, 2011 10:02 AM MST

With a vote of 16 yeas to 2 nays, a proposed constitutional amendment introduced by Delegate Johnny Joannou (D-Portsmouth) passed the House Privileges and Elections Committee on Friday, February 4.

Under the proposal, statutory language passed in 2007 that protects property owners against eminent domain actions by overreaching state or local government would be inserted into the Bill of Rights of the Virginia Constitution.

Joannou’s proposed amendment was identical to another submitted by Delegate Rob Bell (R-Albemarle County), who stood by Joannou’s side at the committee meeting and offered his strong support, indicating that he will become a co-patron of the resolution, styled HJ 693.

After the committee’s vote, Delegate Bell spoke with the Charlottesville Libertarian Examiner about the importance of property rights, the process this resolution must undergo, and the value of having bipartisan support for the constitutional amendment.

‘Guardian of every other right’
Bell cited Arthur Lee, a Virginia representative to the Continental Congress and diplomat during the Revolutionary War, who said that “The Right of property is the guardian of every other Right, and to deprive the people of this, is in fact to deprive them of their Liberty.”

In other words, he said, protection of private property “undergirds all the other rights. Without it you don’t have any.”

The reason Bell and Joannou have proposed enshrining the 2007 statute into the state constitution is that a simple law passed by the General Assembly can be eroded or easily repealed.

“It’s like all constitutional protections,” said Bell. “It’s not to protect the majority, it’s to protect the minority. Specifically, it’s to protect a Susette Kelo, who was doing nothing wrong and who didn’t have a blighted house,” but the city of New London said it wanted to take her house and give it to a private entity.

Result of the Kelo decision
“That’s what the Fifth Amendment’s supposed to protect and it doesn’t any longer,” Bell explained, at least since the U.S. Supreme Court’s 2005 Kelo ruling.

Bell, a lawyer, went on to explain that “the Kelo decision leaves to the states the ability to impose protections through statute or constitution.”

Virginia passed a statute in 2007, he noted, “and our statute is good. It’s just that it’s always reversible or changeable or a statute can be nibbled at. Putting it in the constitution will stop that.”

Mainstream, not extreme
Bell said that his support of individual property rights is not, as some opponents have alleged, an extremist view. Instead, he said, “I have no doubt that this is the mainstream position.”

He pointed out that, when citizens are faced with an eminent domain claim against their property, “on the individual project level, there will always be a reason why the legislature, supervisors, [or] government will say, ‘We agree with [the principle] generally, but on this one we’ve got an especially good reason not to comply with the property rights protections of the individual.’

“Unfortunately, if you do that every time, obviously you’ve nibbled away until there’s nothing left.”

Now that the House P&E Committee has approved the resolution, it goes to the full House of Delegates for consideration. Passage by the House is expected – similar resolutions have passed in 2007 and 2009 – and then it goes to the state Senate, which Bell describes as having been “stumbling block” in past years.

If the Senate passes HJ 693, however, both chambers must pass an identical resolution next year, and then it will be presented to the voters as a referendum in the November 2012 election. Should a majority of voters approve it, the language will become part of Section 11 of the Virginia Constitution’s Bill of Rights.


Publisher's note: This article was originally published on Examiner.com on February 7, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: ‘Intellectual Activist’ Robert Tracinski traces origins of the Ninth Amendment

‘Intellectual Activist’ Robert Tracinski traces origins of the Ninth Amendment
January 2, 2011 12:58 AM MST

In an interview last month with the Charlottesville Libertarian Examiner coinciding with the Jefferson Area Libertarians’ celebration of Bill of Rights Day, Robert Tracinski expressed his view of the meaning and importance of the Ninth Amendment to the U.S. Constitution.

Tracinski is editor and publisher of The Intellectual Activist (TIADaily.com), a position he has held since 1996 with the three-decade-old publication. He is also an active member of the Jefferson Area Tea Party.

Ratification debates
The origin of the Ninth Amendment can be found in the debate over ratification of the Constitution and whether it should include a bill of rights.

“The argument in favor of a bill of rights was very strong,” Tracinski said, because “we need to have these protections to keep government in check.”

Yet, he added, there was “one really good argument against a bill of rights” made by James Madison and others, which can be summed up as “the minute you put this down on paper and say, ‘these are your rights,’ it invites [the government] to say, ‘OK, those are your only rights, that’s all we have to limit ourselves to, and anything else we can do.’”

There was a desire among the Founders, Tracinski noted, to “not create this assumption that these are the only rights people have.”

Specifically to address this argument, in drafting the Bill of Rights, Madison included the language of the Ninth Amendment, which was based on a suggestion made by the Virginia ratifying convention.

Virginia’s “suggested wording was then fine-tuned and honed and brought down to this,” what we now call the Ninth Amendment, in order to “head off that idea that these are the only rights you have because they’re the only ones that are written down,” Tracinski explained.

Revival of constitutionalism

Reflecting on current affairs, Tracinski said that “what excites me about today is we are seeing a revival of constitutionalism.”

The American constitutional creed, he reiterated, “isn’t just a series of legal statements in a document [but] it’s a whole way of thinking about the role of government, a whole way of thinking about the limitations on government and the rights of the people.”

The concept of a constitutional creed, Tracinski concluded, “is something I see people taking more seriously, studying in more depth, and – hopefully -- reviving the constitution not just as a document but as a way of thinking, as a philosophy of government.”

Publisher's note: This article was originally published on Examiner.com on January 2, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Robert Tracinski celebrates the meaning of the 9th Amendment

Robert Tracinski celebrates the meaning of the 9th Amendment
January 1, 2011 6:14 PM MST

The New Year’s Eve edition of the Daily Progress published a letter to the editor from Edward Strickler of Albemarle County, who praised the Jefferson Area Libertarians for sponsoring a reading of the first ten amendments to the U.S. Constitution on Bill of Rights Day at the First Amendment Monument in downtown Charlottesville.

“It is great to have champions of liberty in our community,” wrote Strickler.

As it happens, the Charlottesville Libertarian Examiner interviewed one of the featured speakers at that event, Robert Tracinski, a member of the Jefferson Area Tea Party and publisher of The Intellectual Activist. (The other featured speaker was WCHV radio host Joe Thomas.)

Importance of 9th Amendment
The topic of Tracinski’s remarks was the importance of the Ninth Amendment to the Constitution, which reads:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Ninth Amendment, Tracinski explained, is not so much a legal statement as it is a “statement of political philosophy.”

The amendment, he said, states that “individual rights are the basis of this whole thing, that pre-existing individual rights retained by the people are the essence and everything the government does has to be limited by that.”

9th Amendment jurisprudence?
There is no “Ninth Amendment jurisprudence” among Supreme Court decisions, he noted, “because it’s so broad and abstract.”

Rather than being the basis of specific judicial decisions, Tracinski said, the importance of the Ninth Amendment lies “more [in] the idea that it’s a guide to constitutional interpretation, because it basically says, ‘when in doubt, err on the side of individual rights. Err on the side of individual freedom.’”

The Ninth Amendment, he continued, “invites the interpreter of the Constitution, including Supreme Court justices, to refer back to the Declaration of Independence and to the Lockean, pro-individual rights position in there, as the basis for and meaning of the Constitution and as the grounds for interpreting everything in the Constitution.”

Default position: individual liberty

In Tracinski’s view, the default position for the government is restriction, while the default position for individuals is freedom.

He cited a famous quotation from Thomas Jefferson “about how we should trust people to run their own lives.” When it comes to government, Jefferson said, “Let no more be heard of confidence in man but bind him down from mischief by the chains of the Constitution.”

This idea, Tracinski said, is that “for the individual out there in the world, you should be able to view the world as a field of unobstructed action, with only a few areas marked off saying you can’t go there.”

The exceptions are such things as armed robbery or assault, he explained, and “there are a few very evil deeds that we’re not going to let you do and we’re going to punish you if you do them. Other than that, the field’s wide open. You can do what you want.”

On the other hand, he said, “for the government, it should be the exact opposite: there should be a few little islands where we say, ‘OK, here, national defense, law enforcement, the courts, these things you’re allowed to do and you can operate in this area’ but [the government is] hemmed in around all sides and the rest of the world is off limits to [it] and [it] can’t go there.”

That, Tracinski said, should be “how we look at things in terms of the relationship of the government to the people. That’s what the Ninth Amendment basically tells us.”

In part two of this interview, Tracinski traces the origins of the Ninth Amendment.


Publisher's note: This article was originally published on Examiner.com on January 1, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Obama’s announcement prompts question, Is gay marriage a ‘new right’?

Obama’s announcement prompts question, Is gay marriage a ‘new right’?
May 9, 2012 4:02 PM MST

With President Barack Obama’s surprise announcement today that he supports the rights of gay and lesbian couples to legally wed, political pundits are debating whether this was a calculated move designed to help the president’s re-election bid, or whether it will help presumptive Republican nominee Mitt Romney, instead.

Obama’s statement came on the heels of North Carolina voters decisively adding a constitutional amendment to prohibit same-sex marriage and civil unions in that state. The president said, perhaps with that news in mind, that he thinks legalizing gay marriage should be decided on a state-by-state basis, without intervention from the federal government – or, presumably, through judicial decisions by the courts.

Some opponents of same-sex marriage assert that the Founders, in drawing up the Constitution, did not intend its protections to include gay individuals who wish to marry each other.

‘Life, liberty, or property’

Since the Fourteenth Amendment is usually cited by those who believe the Constitution does, in fact, protect a right to same-sex marriage (“nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”), opponents of gay marriage argue that the post-Civil War amendments were intended only to extend constitutional protections on the basis of race and that their authors would not have also extended those protections on the basis of sexual orientation.

To be fair, there are also people who favor extending equal marriage rights to all citizens but who argue that this should be done legislatively, because, they say, courts should not be creating new rights not present in the language of the Constitution or the minds of its authors.

Since the “new rights” meme is so common, it may be useful to consult a different analogy (unrelated to race) to reveal why this objection is logically flawed.

The argument of the opponents of same-sex marriage is that it is an entirely new concept and therefore courts should not extend the right of marriage to gay people.

‘Not a new concept’
Yet “marriage” is not a new concept, and it may be engaged in legally by most, but not all, people who desire opposite-sex marriages.

In every state except Mississippi and Nebraska, any adult from the age of 18 may wed another person without parental permission. (In Mississippi, the legal age to freely marry is 21; in Nebraska, it is 19.) In many of the states, the marriageable age was once 21 but has been changed to 18.

In all these states, the legal age of majority is 18 – people who have reached that age can enter into contracts, buy and sell goods and services, own a home, join the military, pay taxes, vote in elections and – in some cases – serve in elective public office, including the state legislature.

If someone in Mississippi sued for the right to marry at the age of 18 or 19, it would not be unreasonable for a court to rule that the current prohibition on marriage there before the age of 21 is unconstitutional, because it deprives that person of a liberty (to marry) guaranteed by the Fourteenth Amendment.

Nobody would argue that that court was creating a “new,” previously non-existent right. It would simply be expanding the pool of otherwise eligible adult citizens who can enjoy that right.

That is because, for virtually every other person in the country older than 18 years of age, marriage is legal and available to them.

‘Extending a right’
The point is that judges who recognize the right of gay couples to marry are not creating a “new right.” Rather, they are extending a right that is already recognized for all other adults.

“Marriage” is legal for all adults, except those who are gay or lesbian. To recognize that being gay or lesbian is no impediment to marriage is no more creating a “new right” than to say that 18-year-old adult citizens of Mississippi should be able to marry today rather than wait three years.

There may be compelling arguments, on policy grounds, to continue to prohibit gay marriage. Seven states, the District of Columbia, Canada, several European countries, and South Africa (among other governments) have rejected those arguments, if they exist.

But one argument that does not stand up to scrutiny is that same-sex marriage is a “judge-created right.” With President Obama’s return to a position he first held in 1996, the political debate over the rights of gay citizens to marry takes a new direction.


Publisher's note: This article is part of a series to mark June as Gay Pride Month. It was originally published on Examiner.com on May 9, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.