Prof. Bernard H. Siegan

Bernie Seigan, a professor at my law school, passed away this week. Here is a nice tribute written by 2 of his colleagues also at USD:

Two of Ronald Reagan's lower-court appointments went down in flames. One was Jefferson Sessions, whose nomination never made it to the Senate floor. Another was our colleague Bernard H. Siegan, Distinguished Professor of Law at the University of San Diego, who died Monday at the age of 82. Bernie's nomination was defeated in committee in 1988 on a party-line vote (making him the first "borking" victim after Bork).

Sessions went on to be elected to the U.S. Senate in 1996 and reelected in 2002 — quite a feat for a person accused of being out of the mainstream. Bernie, a kind and gentle soul, took a somewhat different direction. He changed the way America understood a fundamental human right.

Bernie Siegan was a stalwart voice for economic liberty under the Constitution. A law professor at San Diego from 1973 until his death this week, Siegan's books and articles — and his winsome but tireless public speaking — made him one of the key legal and constitutional thinkers in the movement of ideas which became the Reagan Revolution.

Richard Epstein at the University of Chicago Law School calls Bernie's Economic Liberties and the Constitution the opening salvo in the revival of the property-rights movement. "With great attention to historical detail," Epstein says, "Siegan effectively questioned the conventional wisdom of the day that Congress and the States had broad powers to restrict the use of property rights. He was a wise and humane figure."

Bernie's unconventional idea can be summarized, with just a little bit of license, this way: What's yours is yours, what's mine is mine, and the government does not have unlimited power to take that property or to tell us what to do with it.

Who could have given him such a crazy idea? Well, James Madison for one. Madison wrote:

Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.

Bernie set out in the 1970s to convince the country that the right to private property and the right to earn an honest living in the marketplace were every bit as important as the right to free speech and the right to vote. By the 1990s, Bernie's ideas were becoming increasingly well known — not just in conservative and libertarian think tanks, but in wider legal circles. A movement was being born.

In 1991, the Institute for Justice, a libertarian public-interest law firm, was founded in Washington in significant part to pursue Bernie's vision and that of fellow thinkers in the property rights movement. Other conservative public-interest law firms around the country soon joined in.

The greatest victories so far have been in the minds and hearts of Americans. No longer is the idea of "property rights" hopelessly out of date. To the mantra that property rights should always take second place to human rights, there is a cogent reply: Property rights are human rights. This is well understood in the former Communist lands. It is also becoming increasingly well understood in Detroit and in New London, Connecticut.

The Michigan supreme court's 2004 decision in County of Wayne v. Hathcock is one of the more tangible victories of the movement to date. In that case, the court overruled its infamous 1981 Poletown decision, which had allowed the City of Detroit to bulldoze an entire neighborhood with more than 1,000 homes, 600 businesses, and a number of churches, so General Motors could build an auto plant. Calling Poletown "a radical departure from fundamental constitutional principles," the court acted "in order to vindicate our constitution, protect the people's property rights and preserve the legitimacy of the judicial branch as the expositor, not creator, of fundamental law."

Kelo v. City of New London, a case uncomfortably similar to Poletown, was, of course, a major setback before the U.S. Supreme Court. But Kelo had four dissenters — something that would have been unthinkable in the days before Bernie Siegan and the property-rights movement. And the overwhelmingly negative public reaction to Kelo is likely, if anything, to strengthen Americans' insistence on fundamental property rights and basic economic liberties.

Flirting with the “Enemy”

“Andy, Andy, don’t you know your place? What are you thinking? Everyone knows that the role of a black-American activist is to protest against Walmart, not advocate on its behalf…” Tiss tiss. Someone is going to take away your membership card – just ask Clarence Thomas.

On that note, I find it sad and beyond unfortunate that individualists and free-thinkers like Justice Thomas and Thomas Sowell are excommunicated from their race simply because they fail to tow the general line. And if an insider, like Andrew Young, appears to have any inkling of independence or a desire to act in a manner contrary to that line, the ground begins to rumble. Why? Why is there an expectation that the color of your skin, or even your gender, religion or sexuality for that matter, should automatically dictate your politics? Talk about regressive...

Jealous?

My congressperson boxes better than yours....

Open the Doors

Although the recent protests have caused me to flinch a bit, I am still wholly in favor of opening our borders to all of those of wish to flock about our grand land. This is certainly a step. Don't get me wrong - I think that citizenship should be "earned." And the Senate Bill mandates the same. What we are talking about here is merely habitation. Most of those who tend to wander across our southern border do so in search work. They are not after free healthcare or a seat on the school board. Rather, they are just looking to make a few bucks. Indeed, from what I hear, many foreign workers can earn a lifetime’s wages, relative to earnings in their home country, in just a few years in the States. This is what makes the global economy so magnificent and why the anti-globalization whack jobs will, thankfully, always lose the argument. Capitalism – the real laissez faire model – efficiently allocates resources in a way that always, over time, results in a positive sum gain for all. Earth to Sean Hannity – that means we are all better off. We (you, me, Sean and Home Depot) create a pretty hefty labor demand, and the hombres y mujeres keep on keepin’ on across the boarder to meet those demands. To be certain, I don’t want to pay a premium price to some nativist redneck who thinks he can charge more than his worth simply because he was lucky enough to be born within the confines of these arbitrary borders. This country was designed to be meritocracy – such is the essence of the American Dream and similarly served as the fountainhead for our collective achievements. On that note, I think that the kid who built my tile floors and painted my house in a single fourteen-hour day deserves a place in my world. Certainly more so than the Katrina-evacuees, many of whom do nothing more than suck the blood of their fellow citizens by day while robbing them by night. Maybe we should just set up an exchange program? "Dear President Fox, for every worker you send to us, we'll send one subsidy leach your way..."

Leaches

Have a nice future, France.

Temporary Relief

I suppose that we should be happy with this...

After all, the almighty government has now weighed in to announce to us plebes that we may continue blogging without fear of government interference (for now, anyway). Got that?? The state says they are going to allow us to continue conversing freely. Thanks.

P.S. - McCain wrote the law and Bush signed it... Don't you love Republican conceptions of freedom?

Licensing Idiocy

Give it up, grandma... How dare you attempt to sell cakes without state sanction. Where do you think you are? America?? Heh...

Biblical Showdown

The Georgia Legislature is on the verge of legally sanctioning the teaching of the Old and New Testament in Georgia's "government" schools. We all know where this is going. If the law could pass the academic-seriousness test, I think it could have a legitimate shot at actually passing constitutional-muster; but, alas, this is the "Bible-belt" and a presumption of indoctrination will attach itself like a tick to the motives of the legislature - perhaps rightfully so... Anywho..., I agree with Prof. Volokh's view of what it will take to be constitutionally-permissible:

The trouble is that for the classes to be thoughtful, intellectually rigorous, and educationally valuable, they'd have to deal with lots of things that many students (and others) might find quite troubling. If you teach the Merchant of Venice as literature, you probably ought to discuss criticisms of the moral view that the Merchant of Venice seems to express. If you teach classic-era histories (e.g., Livy) in a class on Roman history, you certainly ought to discuss whether the historians are reliable, and whether they might be repeating myth as truth. If you teach historical legal systems in a class on ancient law and culture, you need to discuss ways in which those legal systems may have been unjust by today's standards, or inconsistent even by their own standards.

Are Georgia voters and legislators prepared to have Georgia high school teachers raise these hard questions about the Bible? If so, great. But if the hope is that the teachers will teach the Bible without the same willingness to critique the work -- and to encourage students to think critically about the work -- that we'd expect in serious classes on other works, then that would be a pretty bad step for the Georgia school system to take: It would suggest that the school system is just trying to reinforce students' existing beliefs, rather than teaching them to analyze historical sources carefully and thoughtfully.

I like the idea of a "biblical history" class and I certainly like the idea of critical analysis. Indeed, why should the bible receive a pass while Homer, Ovid and Livy are picked to the bone? If the book is historically valuable and presents facts, then why not look at it with a critical eye? What's the danger? I just can't believe that this will get very far. If the teachers apply a "Sunday-school" approach to their classes, the usual suspects will (correctly) seek and receive an injunction. Or, should any teacher promote skeptical analysis, the crazies will have melt-down. In any event, it all might prove to be entertaining.

Why Conservatives Love Bush

David Boaz of CATO has a nice point:

Why do conservatives like Bush? After all, even his defenders call him a "big-government conservative," which was once an oxymoron. He's increased federal spending 48 percent in six years, further centralized education (which on this side of
the pond we consider both un-conservative and un-[classical] liberal), inaugurated the biggest expansion of entitlements since the profligate President Lyndon B. Johnson, lured 17 percent more people onto the welfare rolls during five years of economic growth, and declared that "When somebody hurts, government has got to move."

So why do conservatives who grew up on Reagan like Bush? I can think of several
reasons:

1. Tax cuts. Defying the establishment media and the class warfare of the Democrats, he has persisted in the Reaganite mission of cutting taxes, especially income tax rates.

2. The war. He stands up to the Islamo-fascists, as Reagan stood up to the evil empire. And as long as conservatives believe that the war in Iraq is part of the war on terrorism, they will support Bush there.

3. Religion. Conservatives like his willingness to talk about his born-again faith and to bring conservative Christian values (as he defines them) to political issues such as abortion, gay marriage, stem cell research, and government funding for religious charities.

And finally,4. As a nominating speech for President Grover Cleveland once put it, "They love him most for the enemies he has made." Conservatives love Bush because the left hates him. If the New York Times would run a front-page story headlined "Bush Delivers the Big Government Clinton Never Did," and the leftybloggers would pick it up and run with it, maybe conservatives would catch on.

So here's your challenge, lefty bloggers: If you don't like the tree-chopping, Falwell-loving, cowboy president - if you want his presidency fatally wounded for the next three years - then start praising him. One good Paul Krugman column taking off from that USA Today story on the surge in entitlements recipients under Bush, one Daily Kos lead on how Clinton flopped on national health care but Bush twisted every arm in the GOP to get a multi-trillion-dollar prescription drug benefit for the elderly, one cover story in the Nation on how Bush has acknowledged federal responsibility for everything from floods in New Orleans to troubled teenagers, and maybe, just maybe, National Review and the Powerline blog and Fox News would come to their senses. Bush is a Rockefeller Republican in cowboy boots, and it's time conservatives stopped looking at the boots instead of the policies.

Very nice.

Krugman the Divine

Paul Krugman never seems to tire of using his NYT pulpit to endorse bad policy. Apparently, Krugman does not like the fact that I can choose to schedule an MRI on Monday morning if I should twist my knee on the court this weekend or that my old man makes annual visits to see an internist for a colonoscopy. Paul calls this “Premium Medicine” and believes that such practices will ultimately debilitate the American healthcare system (e.g., public-financed health care). I admit - he is correct in one sense. As technology advances, and undoubtedly becomes more and more expensive, the public-assistance programs such as Medicare and Medicaid will crumble under their own weight. As the baby-boomers hit senior-status, we cannot economically sustain the current system (even without GW’s new prescription med boondoggle). So, Krugman’s suggestion is state-enforced, ergo: poltically-determined, rationing. Yea, you heard me. Nothing less than Soviet-style (British/Canadian/Swedish/Austrialian) choice-limitations. “So, you have a few new moles on your back and want to see a dermatologist? - - “Sorry, the Bureau of Health does not think it is prudent or necessary at this time - - the guidelines explicitly state…” Marvelous. “Oh, you have been experiencing pro-longed and severe headaches? Sorry, you’ll have to wait in line at CT-Mart – it should only take 4 -6 weeks and we’ll get you right in…” Get the point?

I prefer Arnold Kling’s suggestion:

The opposite approach is to have consumers bear more of the cost of health care decisions, with a safety net consisting of long-term catastrophic insurance with very high deductibles. This would put an unfamiliar burden on Americans to assess the costs and benefits of our specialist visits, MRI exams, and so on. No doubt, some of us would make mistakes. But these would be our individual responsibility, not a collective crisis.

How novel. The United States has the best health care in world – for those who can afford it. That is a sad reality. But, what is the alternative?? Brit-care? Canada-care? I know it sounds cold-hearted – in fact, I think some ice just dripped from nose. So it goes. Facts are facts. When you are talking about scarce resources, all that “equality” means is that we will all, equally, have sub-standard healthcare. Well, all of us except for the political elites like Krugman and the congressmen who vote for such measures. As usual, some animals are more equal than others…

The Role and Judges and Voters

The Boston Globe reports that in a recent speech to a law school audience, Justice Scalia:

…railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage…

“Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check…"

He is absolutely right. Within our system, it is emphatically the province and duty of the judiciary to say what the law is, not what it should be (to borrow from the Federalist Society). To be certain, a group of robed-braniacs has absolutely no authority (moral or otherwise) to decide how we should live our individual lives. The Constitution does not provide for it, and natural law, the philosophical foundation of our system, completely precludes it. Unfortunately, Nino, like many conservatives, tends to stray from this foundation to sanction “political” decision-making, via democratic principles, when confronted with questions of personal, moral and individual behavior. Indeed, Scalia is famous for proclaiming that the “public,” as opposed to judges, should decide the outcome of the culture wars. I respectfully dissent. For the same reason that judges should not make lifestyle decisions concerning you and me, Danny Democrat and Robbie Republican, bumbling around the ballot box, should not either. Lockean principles hold that the government may only exercise those powers delegated to it by men as those men voluntarily surrender their personal rights as they leave the state of nature and enter civil society. Just as I have no right, as an individual qua individual, to tell my neighbor how to live his life, the collective cannot use their votes to tell me how to live mine. For some unknown reason, Scalia and the democratic-moralists tend to ignore this obvious truth. Too bad.

Quote of the Day

"Know all men by these presents, that I, Henry Thoreau, do not wish to be regarded as a member of any society which I have not joined."

-- H. D. Thoreau, On the Duty of Civil Disobedience

Awesome

The Bokononist Grandmother wins $1000 large from a Bank Grand Opening in Petal, MS.

The Elephant in the Room

I am afraid that this is only going to get worse. What amazes me, however, is that we (in the collective political sense) ever believed that we could change the character of the place with some good intentions and the mobilization of a few divisions and camera-savvy general or two. Seriously. Who would ever believe that a self-described conservative-Republican (insert joke here) would ever strive toward such ends? Reagan and Gingrich-revolution be damned. I suppose it must be more empowering to govern like Wilson or LBJ, rather than Coolidge. I know. I know. It is quite cliché to throw around the term “neo-con” nowadays, especially when criticizing the Administration’s policies in the foreign realm; but, it is inescapable. A is A after all, and the current policy in Iraq is nothing less than social-engineering on a grand scale. What ever happened to the belief that government intervention is a bad thing? What was once the tried and true dogma of the conservative movement has become the antithesis of the Bush Doctrine and is, obviously, completely foreign to the contemporary Republican spend-thrifts in D.C. (Highway Bill anyone?). Man, what a difference a decade makes. Just 10 years ago Bill Clinton told us all that the “Era of Big Government is Over.” That very proclamation was spawned by the Republican takeover in Congress and a growing consensus among ordinary Americans that the only thing that government does well is break things. Well, that theorem has certainly proven true in Iraq. Nice going.

Cry Baby

Isaac Hayes quits South Park. According to Mr. Hot Buttered Soul:

There is a place in this world for satire, but there is a time when satire ends and intolerance and bigotry towards religious beliefs of others begins.

Yeah. He did not seem to have a problem with slamming Evangelical-Christianity, Catholicism, Mormonism, Islam, or Judaism on a regular basis, but when it comes to suggesting that L. Ron Hubbard and his sheelpe are anything less than legit - it suddenly becomes "intolerance and bigotry." What a hypocrite.

For the record, South Park rules. And so does this. Trey and Matt are the kings of political and cultural satire (and libertarians to boot).

Only in Fulton County...

... and perhaps Los Angeles... can a man like Bill Campbell be vindicated by a jury of idiots. Racist inquisition indeed. Direct evidence aside ("put the cash in my golf bag"), my favorite "lie" produced by the prosecution is the fact that the illustrious, and spend-happy, mayor only made $69 in bank withdrawals during the entire 1999 calendar year. Yeah..., he's innocent alright. Juries.

As I was saying...

See my discussion re Harry Browne below.

Geez.

Whole Foods Gestapo

Neal Boortz reports that my local Whole Foods Market is doing its best, "strive not to offend lest ye be offended," Euro-wimp impression:

Good afternoon everyone.

I need everyone's cooperation on an important issue that has come to my attention here at the regional office.

Recently, on numerous occasions, I have found copies/printouts of articles such as: Today's Nuze, The Hill, and Townhall.com in either the TM break room or the restrooms. This is not acceptable and cannot continue.

We have to ensure that this is a pleasant and welcoming working environment for all of our TMs and visitors. As you all know, on any given day, the regional office has a variety of different visitors (vendors, TMs from other stores/regions, central TMs, candidates for interviews, etc.). We need to make all of our visitors and TMs feel welcome here.

If you have any questions, please refer to the "Solicitation and Distribution Policy" and "Offensive Material" on page 55-60 of our GIG (General Information Guideline).

Thank you for your cooperation.

Vanessa Hall
Team Member Services Director
Whole Foods Market - South Region
1180 Upper Hembree Road
Roswell, Ga. 30076

What a shame. And to think that Whole Foods CEO, John Mackey, proclaims himself to be (and is, in fact), an “ardent libertarian” of the “Misean” persuasion. Well, here is your chance John – show us (and, more importantly, your employees) what it means to embrace freedom and the Misean marketplace. If The Nuze, The Hill, and Townhall are “offensive,” as your ever-so enlightened Team Member Services Director suggests, then the market will quash them as such. Show us that you have a pair, John.

Harry Browne

The Presidential candidate for whom I voted in 2000 passes on. He was a decent man, with fairly good ideas - ideas simple enough to be correct and also simple enough to be dismissed by the intellectual elites as lunacy. So it goes. The LPs have an unfortunate, yet self-inflicted, history of nominating weak candidates to the Presidential ticket that have a hard time articulating their ideas to the great unwashed. Harry was no exception. For the life of me, I cannot figure out the Party's motivations. A profound and unwavering loser-complex perhaps. While I agree that it is important to rally behind someone that embraces the core libertarian philosophy, in the modern glitz and glam era -- a winning ticket mandates a show. Think John Kerry's $1000 haircut. Or GW mending fences at sunrise for the Fox News cameras. We live in the age of earthtones and the soundbite. Unfortunately for us all, neither this guy, nor this guy, or even this guy would have the slightest shot at the big time today. So, the LPs need to face these facts and choose their candidates accordingly. The Republicans managed to learn this lesson with Bob Dole in '96. Anyway, peace be to you, Mr. Brown and thanks for this book.

Europe is Sinking

Fareed Zakaria's recent Newsweek piece describes the "Decline and Fall of Europe:"

It's often noted that the European Union has a combined gross domestic product that is approximately the same as that of the United States. But the EU has 170 million more people. Its per capita GDP is 25 percent lower than that of the U.S. and, most important, that gap has been widening for 15 years. If present trends continue, the chief economist at the OECD argues, in 20 years the average U.S. citizen will be twice as rich as the average Frenchman or German...

People have argued that Europeans simply value leisure more and, as a result, are poorer but have a better quality of life. That's fine if you're taking a 10 percent pay cut and choosing to have longer lunches and vacations. But if you're only half as well off as the U.S., that will translate into poorer health care and education, diminished access to all kinds of goods and services, and a lower quality of life. Two Swedish researchers, Frederik Bergstrom and Robert Gidehag, note in a monograph published last year that "40 percent of Swedish households would rank as low-income households in the U.S." In many European countries, the percentage would be even greater.

Amazing. But this is no real suprise. Europe is dominated by cultural and political collectivists that are now beginning to reap the results of their misguided and disasterous endeavours. Zakaria nails the problem:

Whenever some politician makes tiny, halting efforts at reform, strikes and protests paralyze the country.

So shortsighted. This topic seems to be quite hot of late. Here is an article from Mark Steyn that I quoted a few weeks back which suggests that the continentals will be forced to rely on immigration to prop up their crumbling social benefit structures - a remedy that will ultimately, according to Steyn, lead to the same result suggested by Zakaria: the end of Europe as we presently know it. So, pick your poison: death by economic collapse or death by Sharia. Oh, how pleasant.