Judicial Inconsistency

Jacob Sullum

Gun Shy: Four Supreme Court Justices Make Case Against Constitutional Rights

On Monday, the Supreme Court ruled that the Second Amendment applies to states and cities as well as the federal government. Judging from their objections, the four dissenters were still reeling from the court's landmark 2008 decision recognizing that the amendment protects an individual right to keep and bear arms.

In their dissenting opinions, Justices John Paul Stevens and Stephen Breyer (joined by Ruth Bader Ginsburg and Sonia Sotomayor) worry that overturning gun control laws undermines democracy. If "the people" want to ban handguns, they say, "the people" should be allowed to implement that desire through their elected representatives.

What if the people want to ban books that offend them, establish an official church or authorize police to conduct warrantless searches at will? Those options are also foreclosed by constitutional provisions that apply to the states by way of the 14th Amendment. The crucial difference between a pure democracy and a constitutional democracy like ours is that sometimes the majority does not decide.

Likewise, Stevens defends "state and local legislatures' right to experiment," while Breyer is loath to interfere with "the ability of states to reflect local preferences and conditions -- both key virtues of federalism." Coming from justices who think Congress can disregard state decisions about the medical use of marijuana because a plant on the windowsill of a cancer patient qualifies as interstate commerce, this sudden concern about federalism is hard to take seriously.

Another reason to doubt the dissenters' sincerity: They would never accept federalism as a rationale for letting states "experiment" with freedom of speech, freedom of religion or due process protections. Much of their job, as they themselves see it, involves overriding "local preferences" that give short shrift to constitutional rights.

Second Amendment rights are different, Breyer says, because "determining the constitutionality of a particular state gun law requires finding answers to complex empirically based questions." So does weighing the claims in favor of banning child pornography or depictions of animal cruelty, relaxing the Miranda rule, admitting illegally obtained evidence or allowing warrantless pat-downs, dog sniffs or infrared surveillance.

When they decide whether a law or practice violates a constitutional right, courts cannot avoid empirical questions. In cases involving racial discrimination or content-based speech restrictions, for example, they ask whether the challenged law is "narrowly tailored to serve a compelling state interest" and is the "least restrictive means" of doing so.

But unlike equal protection or freedom of speech, Stevens says, "firearms have a fundamentally ambivalent relationship to liberty." How so? "Just as they can help homeowners defend their families and property from intruders," he explains, "they can help thugs and insurrectionists murder innocent victims."

Every right can be abused, with results that are immoral, illegal or both. Freedom of speech can be used to spread hateful ideas, promote pernicious political philosophies, slander the innocent or engage in criminal conspiracies. If there were no potential for harm from exercising a right, there would be no need to protect it, because no one would try to restrict it.

The dissenters' most frivolous objection is that making states obey the Second Amendment "invites an avalanche of litigation," as Stevens puts it. Every day we hear about cases in which people argue that the government has violated their rights under the First, Fourth, Fifth, Sixth or Eighth amendment. Neither Stevens nor Breyer wants to stop this "avalanche." Only when the Second Amendment is added to the mix do they recoil in horror at the prospect that Americans will use the courts to vindicate their rights.

Stevens warns that "the practical significance of the proposition that 'the Second Amendment right is fully applicable to the states' remains to be worked out by this court over many, many years." But that's because the court for many, many years ignored the Second Amendment while gradually defining the contours of its neighbors in the Bill of Rights. There is a lot of catching up to do.

Do laws even matter today?

Do laws even matter today?

As soon as Arizona passed its recent immigration law, some reporters and commentators were quick to cast the story with the usual actors: "Tea Partiers," race activists, conservatives and liberals. Like our politics, much of our news media coverage has become a clash of caricatures — easily categorized groups with one-dimensional motives for mass consumption. Some commentary even suggested that supporters of the law are either open or closeted racists. Rep. Keith Ellison, D-Minn., recently called the law both "fascist" and "racist."By Jonathan Turley

Though I am a critic of the Arizona law, I do not view its supporters in such one-dimensional terms. Indeed, I do not view the public response in purely immigration terms. Whether it is illegal immigration or the mortgage crisis or corporate bailouts, there seems to be a growing sense among many citizens that they are expected to play by the rules while others are exempt.

With polls showing about 60% of people supporting the Arizona law and almost half supporting similar laws in their states, it is implausible to suggest that all these people are racists or extremists — let alone fascists. Notably, a majority of Americans also opposed the bank bailouts and mortgage forgiveness. In each of these controversies, there is a sense that the government was stepping in to protect people from the consequences of their actions.

In the mortgage crisis, tens of thousands of people accepted high-risk, low-interest loans while other citizens either declined to buy homes or agreed to higher monthly payments to avoid such deals. When Congress intervened with mortgage relief, some of those who had acted responsibly wondered whether they acted stupidly by rejecting low rates and later federal support.

Bailouts and immigration

Then there were the corporate bailouts. For citizens to secure a loan, they have to meet exacting terms and disclosures. Yet, when banks and firms concealed risks or engaged in financial wrongdoing, Congress bailed them out and allowed their executives to reap fat bonuses. The laws on fraud and deceptive practices simply did not seem to apply to them. Just as several companies were declared "too big to fail," many of their executives appeared too big to lose money — unlike the millions of citizens burned by their business practices.

Those prior controversies coalesced with the immigration debate. The last time Congress granted amnesty to illegal immigrants was 1986 — and it was criticized at the time for rewarding those who had evaded deportation. Complaints over the lack of federal enforcement had been percolating for years but exploded along Arizona's long desert border. When a law mandated state enforcement of federal laws, the Obama administration moved to block it.

Indeed, high-ranking Obama officials such as John Morton, head of the Immigration and Customs Enforcement, have suggested that they might refuse to deport those arrested under the Arizona law. While we continue to tell millions around the world that they must wait for years to immigrate legally, Congress and the White House are considering a new amnesty proposal to benefit an additional 11 million illegal immigrants.

In each of these areas, the perception is that the law says one thing but actually means different things for different people. It is a dangerous perception, and it is not entirely unfounded. Such double-standards have become common as Congress and presidents seek to avoid unpopular legal problems.

•Torture: While acknowledging that waterboarding is torture and that torture violates domestic and international law, President Obama and members of Congress have barred any investigation or prosecution of those crimes.

•Pollution: While citizens are subject to pay for the full damage they cause to their neighbors and are routinely fined for their environmental damage for everything from dumping in rivers to leaf burning, Congress capped the liability for massive corporations such as BP and Exxon at a ridiculous $75 million. Though BP is likely to spend much more in litigation (particularly if prosecuted criminally), the current law requires citizens to pay the full cost of their environmental damage while capping the costs for companies producing massive destruction.

•Privacy: When the telecommunications companies found themselves on the losing end of citizen suits over the violation of privacy laws, Congress (including then-Sen. Obama) and President Bush simply changed the law to legislatively kill the citizen suits and protect the companies.

An arbitrary system

The message across these areas is troubling. To paraphrase Animal Farm, all people are equal, but some people are more equal than others.

A legal system cannot demand the faith and fealty of the governed when rules are seen as arbitrary and deceptive. Our leaders have led us not to an economic crisis or an immigration crisis or an environmental crisis or a civil liberties crisis. They have led us to a crisis of faith where citizens no longer believe that laws have any determinant meaning. It is politics, not the law, that appears to drive outcomes — a self-destructive trend for a nation supposedly defined by the rule of law.

Self-Esteem, Self-Destruction

Self-Esteem, Self-Destruction

By George Will

WASHINGTON -- Memo to that Massachusetts school where children in physical education classes jump rope without using ropes: Get some ropes. And you -- you are about 85 percent of all parents -- who are constantly telling your children how intelligent they are: Do your children a favor and pipe down.

These are nuggets from "NurtureShock: New Thinking About Children" by Po Bronson and Ashley Merryman. It is another book to torment modern parents who are determined to bring to bear on their offspring the accumulated science of child-rearing. Modern parents want to nurture so skillfully that Mother Nature will gasp in admiration at the marvels their parenting produces from the soft clay of children.

Those Massachusetts children are jumping rope without ropes because of a self-esteem obsession. The assumption is that thinking highly of oneself is a prerequisite for high achievement. That is why some children's soccer teams stopped counting goals (think of the damaged psyches of children who rarely scored) and shower trophies on everyone. No child at that Massachusetts school suffers damaged self-esteem by tripping on the jump rope.

But the theory that praise, self-esteem and accomplishment increase in tandem is false. Children incessantly praised for their intelligence (often by parents who are really praising themselves) often underrate the importance of effort. Children who open their lunchboxes and find mothers' handwritten notes telling them how amazingly bright they are tend to falter when they encounter academic difficulties. Also, Bronson and Merryman say that overpraised children are prone to cheating because they have not developed strategies for coping with failure.

"We put our children in high-pressure environments," Bronson and Merryman write, "seeking out the best schools we can find, then we use the constant praise to soften the intensity of those environments." But children excessively praised for their intelligence become risk averse in order to preserve their reputations. Instead, Bronson and Merryman say, praise effort ("I like how you keep trying"): It is a variable children can control.

They often cannot control cars. In 1999, a Johns Hopkins University study found that some school districts that abolished driver's education courses experienced a 27 percent decrease in auto accidents among 16- and 17-year-olds. Odd.

Not really. Bronson and Merryman say driver's ed teaches the rules of the road and mechanics of driving, but teenagers are in fatal crashes at twice the rate of other drivers because of poor decisions, not poor skills. The wiring in the frontal lobe of the teenage brain is not fully formed. Driver's ed courses make getting a license easy, thereby increasing the supply of young drivers who actually have holes in their heads.

Their unfinished heads should spend more time on pillows. Only 5 percent of high school seniors get eight hours of sleep a night. Children get a hour less than they did 30 years ago, which subtracts IQ points and adds body weight.

Until age 21, the circuitry of a child's brain is being completed. Bronson and Merryman report research on grade schoolers showing that "the performance gap caused by an hour's difference in sleep was bigger than the gap between a normal fourth-grader and a normal sixth-grader." In high school there is a steep decline in sleep hours, and a striking correlation of sleep and grades.

Tired children have trouble retaining learning "because neurons lose their plasticity, becoming incapable of forming the new synaptic connections necessary to encode a memory. ... The more you learned during the day, the more you need to sleep that night."

The school day starts too early because that is convenient for parents and teachers. Awakened at dawn, teenage brains are still releasing melatonin, which makes them sleepy. This is one reason why young adults are responsible for half the 100,000 annual "fall asleep" automobile crashes. When Edina, Minn., changed its high school start from 7:25 a.m. to 8:30 a.m., math/verbal SAT scores rose substantially.

Furthermore, sleep loss increases the hormone that stimulates hunger and decreases the one that suppresses appetite. Hence the correlation between less sleep and more obesity.

Bronson and Merryman slay a slew of myths. But perhaps the soundest advice for parents is: Lighten up. People have been raising children for approximately as long as there have been people. Only recently -- about five minutes ago, relative to the long-running human comedy -- have parents been driving themselves to distraction by taking too seriously the idea that "as the twig is bent the tree's inclined." Twigs are not limitlessly bendable; trees will be what they will be.

We Need a VAT? We Already Have One

We Need a VAT? We Already Have One
Bruce Bialosky
Monday, June 07, 2010

Democrats in Washington are struggling to find a solution to the huge deficits created by the Obama Administration spending spree. The Commission on Fiscal Responsibility and Reform recently had its first meeting, and they are widely expected – after the November election, of course – to recommend a national VAT tax as the best way to solve the revenue crisis. The problem is that we have a VAT already.

For those not familiar with the term, a Value Added Tax (VAT) taxes the estimated market value added to a product at each stage of manufacturing or distribution. It’s similar to a sales tax, but it’s built into the price of the product (whereas a sales tax is added onto the product’s final sales price). The great thing for the political class is that the VAT is a stealth tax. You don’t know you are paying it because it’s not separately itemized.

But we already have a tax like that – it’s called the Corporate Income Tax – and, like all taxes imposed on corporations, it is passed through to the buyers of their products and services. Taxes are an expense to a corporation just like rent, employee salaries, and office supplies, and corporate profits are realized only after all expenses are paid. Corporations calculate their projected profits backwards, first by determining their expected revenue (based largely on competitive market conditions and public perception of their products) and then subtracting their anticipated expenses. To put it simply, corporations do not pay taxes – customers do.

And do we ever have a doozy of a corporate tax. Of the 30 top industrial countries, the United States has the second highest corporate tax rate, exceeded only by Japan. That is not the full story. The U.S. (unlike other countries) not only has a federal, but a state income tax. In 24 states, the combined state and federal tax exceeds the single corporate rate in Japan. That means in about half the country, the corporate tax rate is the highest in the world.

Let’s say you’re the CEO of a large corporation. You understand that corporate taxes are costs that are added into the mix just like wages and health insurance. You have to compete with companies developing products all over the world. You look around and see that you can have your headquarters in the U.S. and pay an average 39.7% corporate tax rate, or you can move your company (and many well-paying jobs) to Ireland, which has a 12.5% rate. You can now charge less for your products than your competitors in New Jersey, Massachusetts, or Pennsylvania, each of whom pays a combined rate of over 41%. Are you keeping those good American jobs at home or moving them to stay competitive?

Speaking of health insurance, during the recent health care debate, there was a lot of discussion about how high health care costs were causing companies to lose out to foreign competitors. Where is the same discussion about corporate tax rates? They are certainly making American companies non-competitive, so why no discussion about cutting those rates? Could it be that one expands government and the other is perceived to cut government?

Yet that is a false trade-off. If we cut corporate rates, we would create more jobs and attract more companies to America, causing even more job creation and in turn more government revenue. But some left-wing political elements see corporations as evil and want to punish them. They feel that corporations are not paying their fair share already and should kick in more. What a foolishly naïve understanding of today’s global marketplace, where companies can move between nations just as easily as they move between states.

The business-bashers in Washington also fail to realize that corporate taxes fall into the most evil class of taxes -- regressive. Because corporations simply pass the costs on to their customers, the taxes fall disproportionately on the backs of the less fortunate citizens of the country. The working stiff is bearing the same share of the burden of Gillette’s tax bill as the millionaire when he buys his shaving cream or blades. Where in the left-wing bible does that make sense?

Corporate taxes are just another example of the left’s misguided economic policies based on their perception of winners and losers; good and evil. Congressman Eric Cantor and Senator John McCain have proposed cutting federal corporate tax rates to 25%, which is a start. They understand the current policy just causes the little guy to lose jobs and bear the costs passed to him. In fact, we need to enact even greater cuts, but one step at a time. After the fall elections when the discussions about putting the VAT in place will inevitably heat up, you can now tell the foolish backers of it that we already have one. Let’s see how they react to that.