Libertarians are Cool on Kavanaugh

Constitutional Republic
In a constitutional republic, why would you not want a constitutionalist justice?

Progressives not surprisingly, hate President Trump’s pick of Judge Brett Kavanaugh. He won’t create rights not enumerated in the Constitution, nor will he legislate from the bench.   Conservatives like him, as he was vetted and approved by the Federalist Society for consideration.  They love him for the same reason the Left hates him. Libertarians have given the choice a cooler reception, citing concerns about privacy rights, especially when it comes to Fourth Amendment protections.  Judge Andrew Napolitano, a libertarian-leaning judge had this to say about the pick:

Now he has given us a nominee to the highest court in the land who typifies the culture he railed against when he claimed he’d drain the swamp. This man and this culture accept cutting holes in the Fourth Amendment because they don’t believe that it should protect privacy. This man and this culture accept unlimited spying on innocent Americans by the National Security Agency because they don’t believe that the NSA is subject to the Constitution.  — Judge Andrew Napolitano

Judge Napolitano’s concerns have been echoed by others on the libertarian side:

Kavanaugh is not another Gorsuch—not even close. Disappointing pick, particularly with respect to his record. Future decisions on the constitutionality of government surveillance of Americans will be huge. We can’t afford a rubber stamp for the executive branch.  –Rep Justin Amash, (R) MI

Restore the 4th

Senator Rand Paul, arguably the most notable libertarian on Capitol Hill was also cool on Kavanaugh, reserving his judgment for now…  “I’m not going to make any comment until we’ve had a chance to look through and really go through a discovery process, meet the nominee,” — Sen Rand Paul, (R) KY

Liberals don’t like Kavanaugh, they are deathly afraid of him overturning Roe v. Wade, and would prefer a justice who believes in a “living Constitution”.  Conservatives like him because they think he won’t legislate from the bench.  Libertarians are concerned that he will opt for an interpretation of the Constitution that favors the government over individual rights.  Will Senator Rand Paul, who might well be the deciding vote in the Senate, be able to overlook past rulings on the Patriot Act and NSA surveillance?  Will he decide that perfect is the enemy of good-enough, or will he find he has irreconcilable differences with Kavanaugh’s judicial philosophy when it comes to privacy versus security?

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Remembering our fallen heroes on Memorial Day: Are we worthy of their sacrifice?

Memorial Day 2016
Pray for those who gave their lives that we may be free. Appreciate every bit of that freedom, and guard it jealously.

So many brave Americans have fought and died for our freedom.  What would they think of the country we’ve become?  Would they lament what some have done with that freedom?  Would they still think it was worth their last breath or drop of blood, or would they shed tears for the liberties we gave away without even a shot having to have been fired to take them? Would they weep at the sight of groups like Antifa rioting and destroying property seeking to deny people their freedom of speech?  Would those who died in the American Revolution shudder at how many people would forfeit their rights to keep and bear arms, to be free from unwarranted search and seizure for the illusion of safety and security?  Would all those hundreds of thousands of Union soldiers cut down in battle throw their hands up dismay at how racially divided we’ve become?  What would those who died on foreign soil in WWII think of a Europe, the continent they freed of one form of malignant socialism opt for a more palatable one?  How would those who died in the War of 1812 react to football players not honoring the Star Spangled Banner, a song written about the flag some of them literally died to defend?  Remember this Memorial Day, those heroes died for more than a piece of land, they died for an idea, an idea that freedom is worth fighting and dying for.  They died so that those they left behind could be safe from tyranny and oppression.  Let’s not surrender easily what they paid the ultimate price for, that idea of that “shining city on a hill”, of American Exceptionalism.

Constitution Memorial Day

U.S. ConstitutionSaturday marked the 229th anniversary of the ratification of the U.S. Constitution.  It established the United States as the world’s first constitutional republic.  We may be mere months from the end of America’s existence as such.  2017 could be the first year of a new, post-Constitutional era.  If Hillary Clinton is elected president her choices of Supreme Court justices will tip the balance in favor of a Court that sees the Constitution as a “living document”, one that can be interpreted to mean whatever they need it to mean.  On that day, the Constitution, already in exile, will cease to function as a constraint on government.

“A Bill of Rights that means what the majority wants it to mean is worthless.”  -Antonin Scalia

The Bill of Rights, in particular, will be eroded to such an extent as to become meaningless.  Rights favored by the new majority will be created out of whole cloth, while rights not favored, such as the right to bear arms, will be made virtually impossible to exercise.   Consider this:  The subject of marriage does not come up anywhere in the Constitution, but the tenth amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” So anything not specifically mentioned in the Constitution, such as marriage, would seemingly be governed by that amendment. It establishes what is often referred to as “state’s rights”.  When some states wanted to outlaw same-sex marriage, and some states wanted to legalize it, the Supreme Court stepped in with the Obergefell v. Hodges and legalized ‘gay marriage’ nationally.  Many social conservatives objected to the decision on moral and religious grounds, setting those objections aside the decision created a number of problematic consequences for the Constitution. Many, including Justice Roberts, believe the majority in that ruling used arguments with no constitutional basis:

“Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be”

A ruling based on what the majority thought the law should be seems to be exactly what happened.  The Court invented an individual right at the expense of the rights of the states.  The tenth amendment seems to exist only at the whim of the majority.  Impatient with the legislative process that requires consensus building, activists used the Court to do what they could not wait for the state legislatures to do.  Now they have the law but necessarily a consensus.  Because the ruling was based on emotional arguments more than constitutional ones, there is now no constitutional argument to place any limits on marriage between adults, not based on the sex of the participants, not based on the number, nor kinship nor likely even age.  Polygamy laws could be struck down tomorrow, were the cause popular enough.  What would be the argument against?

What other amendments are as disposable as the tenth?  What if the courts because of some public pressure due to security decided to give similar treatment to the fourth amendment?   Our right to privacy would be gone.  Proponents of so-called common sense gun control have already called for legislation (no fly no buy) that would simultaneously abridge our second, fifth, and fourteenth amendment rights.  What if the Court decided to do what a powerful voting bloc such as the anti-gun lobby demanded?

“As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.” – Antonin Scalia

Another example of how SCOTUS justices chose to use extremely contorted logic to arrive at the decision they wanted was National Federation of Independent Business v. Sebelius, the ruling that effectively legalized the Affordable Care Act, A.K.A. Obamacare.  This allowed the government to compel its citizens to engage in commerce, whether they chose to or not, whether they felt like they needed the product or not.  If you remember your grade school history, the American revolution was fought to end this sort of thing.  A government that can compel its citizens to spend money, determine how much, and on what does not serve the populace, it rules it.

The Constitution was meant to act as the guardrails of our government.  It was meant to act as a constraint to the federal government while protecting the rights of the states and individuals.  The idea of the Constitution as a ‘living document’ then makes about as much sense as playing football on a field with no sidelines, with no objective means of determining what is in or out of bounds.  Liberal justices, believing that the Constitution must adapt to the present society have little compunction against following only those parts of it that are convenient to their objectives while ignoring others.  When the Constitution gets to the point where it can mean anything the justices need it to mean, it will at once come to mean nothing.  We will be living in a post-constitutional America.  The three Supreme Court justices that our next president is expected to appoint, if they are liberal, activist judges, will be more than enough to effectively end the era of the United States as a constitutional republic.

Rand Paul Was Right

GOP DebatesThe now famous dust-up between Rand Paul and Chris Christie during Thursday’s Republican debate over our fourth amendment rights versus national security was a microcosm of the one held nationally in the months leading up to the PATRIOT Act’s renewal in June. Christie maintained that its renewal, minus the controversial section 215 would be insufficient to keep our country safe. Paul argued that the mass collection of phone data by the NSA was a violation of the fourth amendment. Christie’s seemed to suggest that you needed everyone’s data to figure out who the bad guys were. He won the argument on stage by most accounts, but winning an argument is not the same as proving you are right.

Christie was suggesting that the nation needs a dragnet in which all citizens’ phone records are caught up. That is the very definition of a general warrant, the kind that the framers of the Constitution expressly sought to forbid by enacting the fourth amendment. Moreover, the trade of liberty for security he advocates is just not worth it. To put it into business terms, the return on investment, in this case, how much liberty we give up in exchange for security does not balance out. At best, mass data collection, (which still exists) so far has only proven itself as a supplement to good intelligence and police-work, not a good source intelligence on its own. First, there is just too much data. We can’t look at it all, it’s impossible. Even if we know of someone with terrorist ties, someone presumably that the NSA or FBI could easily obtain a warrant for, even that is not always enough to prevent terrorist attacks. Such was the case with the Boston bombers, an act of terror done by individuals known to have overseas terror ties. We certainly did not get our lost liberties worth of security on that day.Restore the 4th

Some suspicion of an impending act, or someone being radicalized has to come first, then you can start searching for evidence to support your suspicions using lawful methods. The Founders were quite clear they did not want it to be the other way around. The suspicion must precede the search, period. Trolling trough the phone records of millions of innocent people in hopes of stumbling upon someone doing something wrong isn’t just bad for liberty, it’s a waste of resources. If on the other hand, law enforcement or intelligence picks up an inkling that someone is up to no good, the records are still available. Our God-given rights, including our right to privacy is one of the very things are fighting this war on terror for in the first place, let’s not forget that.

The Fourth Amendment Just Caught a Break

Restore the 4th
Mass data collection by the U.S. Government is a thing of the past… At least for now.

Section 215 of the PATRIOT Act was allowed to expire thanks to Rand Paul’s objection to Sunday’s proposed vote on the U.S.A. Freedom Act compromise passed by the House.  Some in the Republican party have predicted doom if this happened.  We’re now on day two of no Sec 215 and are still alive.  To be sure, this will be a short-lived victory, the Senate will eventually have its vote.    It is telling though that the Senate allowed the Act to expire at all.  My guess is that a good number of Senators did not agree with Karl Rove and Chris Christie that the sky was falling.  Truth is, Section 215 has had a negligible effect on our national security so far.  No doubt some in the Senate will sweat out the hours before ‘U.S.A. Freedom’ is passed, bringing back mass collection of our data.  It is possible that (God forbid) something bad could happen in the interim that the mass collection of data could have prevented.  If the past is any indication, it won’t.  What is for sure is that for now at least, our right to privacy is a little stronger.  Enjoy the feeling while it lasts.

Deadline Looms for Patriot Act

A patriot act of courage…

In a few days, we commemorate the 71st anniversary of the WWII Normandy landings known as “D-day”.  On that day, thousands of Americans risked all so our rights here at home would not be lost to an evil adversary who would have done away with them.  Today marks another “D-Day” of sorts, a day not nearly as dramatic or dangerous, but one that will require some of our fellow Americans to show courage and a willingness to sacrifice themselves for our rights.  100 of our fellow Americans to be exact.  They will do battle today, not on some far off beach, but on the floor of the U.S. Senate.

Section 215 of the Patriot Act is due to expire on Monday, June 1st. It allows for the bulk collection of data, all without a warrant describing the specific persons, places, and things to be searched as required by the Fourth Amendment to the Constitution. It would seem a straight-forward proposition, drop or amend Section 215 and restore our constitutional right to privacy.  I, Rand Paul, and many others would have it that way, but I am not naive, the senators are making a political calculation.  They know that if they let the sun set on Section 215 and there is a terrorist attack, they probably will face a severe penalty at the polls.  If they renew 215 and if no major attack occurs, they will risk losing the libertarian vote, something Republicans in particular can ill afford. That’s where the courage comes in.

Those who would trade liberty for security should get neither
Ben Franklin knew there’d be times like these.

There is a middle ground of sorts, it’s called the U.S.A. Freedom Act and has already been passed by Congress.  It still allows for mass collection of data, not by the Government, but by the phone companies.  It’s still an abridgment of our Fourth amendment rights, but a somewhat less egregious one.  It may have one advantage in that it would not drive the mass collection of data underground, as surely would happen if 215 were to go away en toto.

Today the Senate has a choice:  Keep the status quo in the name of security, or go with at least modest protections of our Constitutional rights.  Risk the ire of Americans in general if they fail to act at all and we’re attacked, or risk facing the ire of Libertarians and Constitutionalist Conservatives for not looking out for our rights.  Will we have a small window into the working of our intelligence agencies with regards to data collection, or none at all?

We’re not asking our Senate to show the kind of courage it took for our soldiers to take Omaha Beach nearly 71 years ago, we’re just asking them to risk their political lives, which for many politicians is almost as scary.  It would be a risk they would be making for our freedom and our Constitution, a risk that all Americans will ultimately share together.