Showing posts with label constitutions. Show all posts
Showing posts with label constitutions. Show all posts

Monday, February 1, 2021

Belgian tribunal: mask mandate unconstitutional

Enforced wearing of masks declared unconstitutional | UK Human Rights Blog - Rosalind English: 

January 25, 2021 "The police tribunal in Brussels issued a judgment on 12 January acquitting a man summoned for non-wearing of a mask, according to his lawyer, Hélène Alexandris. The judge concluded that the enforced wearing of the mask in public space was unconstitutional. Interior Minister Annelies Verlinden said the public prosecutor has appealed against the decision.

"The court recalled that the two articles of law relating to public security, the ministerial order of 30 June 2020, on the basis of which the infringement was established, were exceptions to the principle of freedom of movement. The judge recognised that the current health situation justifies a restriction of freedom of movement and the imposition of certain measures. However, he considered that these measures must have a legal basis – parliament had not legislated to authorise the restrictive measures taken by the various ministers since the beginning of the crisis – and that they must be compatible with the other rights in force.

More specifically as regards the wearing of masks, it is clear that the minister is dealing in the same way with different situations, i.e. cases in which people find themselves alone on the street or, on the contrary, in a shopping street in the company of many fellow citizens. To settle different situations in an identical manner is a violation of the principles of equality and non-discrimination*....

"The Minister of the Interior reacted by stressing that

the ministerial decision, which is the legal basis for the application of the corona measures, remained. The rulings handed down by the Council of State in recent months also confirm the legal bases on which the measures of the ministerial decree are based.*

"Mrs Verlinden also pointed out that the public prosecutor’s office had appealed against this decision of the Brussels tribunal."

*Translated with http://www.DeepL.com/Translator (free version)

Read more: https://ukhumanrightsblog.com/2021/01/25/enforced-wearing-of-masks-declared-unconstitutional/

Tuesday, January 26, 2021

German court strikes down personal contact ban

German District Court declares Corona Ordinance Unconstitutional UK Human Rights Blog - Rosalind English:

25 January 2021 -"In a landmark judgement on January 11, a district court judge in Weimar declared the prohibition on social contact unlawful as contrary to the German Basic Law (Gründgesetz). Its order at the time had been unconstitutional because the Infection Protection Act was not a sufficient legal basis for such a far-reaching regulation as a contact ban, the ruling said. The order of the contact ban had violated human dignity and had not been proportionate. (Reported in MDR Thüringen on 22 January 2021). In this case a citizen of Weimar had been prosecuted and was to be fined €200 for celebrating his birthday together with seven other people in the courtyard of a house at the end of April 2020, thus violating the contact requirements in force at the time. This only allowed members of two households to be together.... 

"This is the first time a judge has dealt in detail with the medical facts, the economic consequences and the effects of the specific policy brought about by the Coronavirus pandemic... With Germany having a federal legal system, there is no uniform case law yet on this point....

"Part of the rule of law is the requirement that laws be definite. Laws may not simply make blanket decrees and thus encourage overenthusiastic interpretation by the authorities leading to arbitrariness. According to the Infection Protection Act, the 'competent authority shall take the necessary protective measures'. In the normal course of events, this means that infected people or those suspected of infection can be isolated or contaminated premises closed. The Infection Protection Act does not provide for a general ban on contact that also covers healthy persons. However, as has been argued by many administrative courts to date, an overstepping of the regulatory circle of the Infection Protection Act beyond the normal course of events can be justified if it is an 'unprecedented event' that is so new that the legislature could not possibly have made the necessary regulations beforehand.

"The judge did not accept this exception to the rule of law. As early as 2013, the Bundestag prepared a risk analysis of a pandemic caused by a 'virus Modi-SARS' with the cooperation of the Robert Koch Institute, in which a scenario with 7.5 million deaths in Germany in a period of three years was described.... In view of such an event, which was considered at least 'conditionally probable' ... the legislator could therefore have examined the regulations of the Infection Protection Act and adapted them if necessary. This policy failure, as a result of which Germany had run into the epidemic virtually unprepared – without legal precautions to combat it, without stocks of masks, protective clothing and medical equipment, could not now lead to politicians being allowed to close any regulatory gap as they saw fit....

"The judge’s conclusion: there were no 'unjustifiable gaps in protection' that would have justified resorting to general clauses. These measures would have violated human dignity, which is 'inviolably guaranteed' in Article 1, Paragraph 1 of the Basic Law'.... 

It is one of the fundamental freedoms of people in a free society to be able to determine for themselves with which people (assuming they are willing) and under what circumstances they enter into contact. The free encounter of people with each other for the most diverse purposes is at the same time the elementary basis of society. The state has to refrain from any purposeful regulating and restricting intervention. The question of how many people a citizen invites to his home or with how many people a citizen meets in public space to go for a walk, to do sports, to go shopping or to sit on a park bench is of no fundamental interest to the state....

"In January 2020, hardly anyone in Germany could imagine that the state could forbid them from inviting their parents to their home under threat of a fine, unless they sent the other members of their family out of the house for the time they were there. Hardly anyone could imagine that three friends could be forbidden to sit together on a park bench. Never before has the state thought of resorting to such measures to combat an epidemic. Even in the [2013] risk analysis ... which after all described a scenario with 7.5 million deaths, a general ban on contact (as well as curfews and the extensive shutdown of public life) is not considered. Apart from quarantining contacts of infected persons and isolating infected persons, the only anti-epidemic measures mentioned are school closures, the cancellation of major events and hygiene recommendations (BT-Drs. 17/12051, p. 61f)....

"The district judge meticulously examined studies that show how ineffective the no-contact order is. He weighed the restrictions on freedom against the fact that protection has been neglected in old people’s homes, while the less vulnerable population is no longer allowed on the streets. At the same time, the judge dealt in detail with the collateral damage of the lockdown decisions, which is now becoming increasingly apparent.... 

Based on what has been said, there can be no doubt that the number of deaths attributable to the lockdown policy measures alone exceeds the number of deaths prevented by the lockdown many times over. For this reason alone, the standards to be assessed here do not satisfy the proportionality requirement. Added to this are the direct and indirect restrictions on freedom, the gigantic financial damage, the immense damage to health and the non-material damage. The word “disproportionate” is too colourless to even hint at the dimensions of what is happening. The lockdown policy pursued by the state government in the spring (and now again), of which the general ban on contact was (and is) an essential component, is a catastrophically wrong political decision with dramatic consequences for almost all areas of people’s lives, for society, for the state and for the countries of the Global South.

"However, this ruling is by no means the end of the story.... Thüringen’s equivalent of the DPP has already appealed the matter to the LandesGericht. Their judgment will definitely be available online, and I will report on that when it comes through."

Read more: https://ukhumanrightsblog.com/2021/01/25/german-district-court-declares-corona-ordinance-unconstitutional/

Saturday, November 21, 2020

Covid-19 pandemic is a crisis of democracy

A Crisis of Democracy

by George J. Dance

It is no exaggeration to call the coronavirus pandemic a crisis. While the virus itself has turned out to be less dangerous than Covid Cultists believe – not one country has experienced the millions of deaths they have been prophesying since March – governments' responses to it throughout the democratic world have spawned numerous other crises, from mass unemployment to civil unrest, that have been progressively tearing away at the social fabric. The very idea of a democratic state, as a viable form of government, is being called into serious question. 

"Democracy" (rule by all the people) has always been not one concept, but a bundle of coexisting ones. Two of those concepts of democracy have always been in conflict. The coronavirus crisis has exposed those hidden conflicts as never before.   

One vision of democracy, which we can call liberal or libertarian democracy, was summed up by economist (and armchair sociologist) Ludwig von Mises this way:

For the sake of domestic peace liberalism aims at democratic government. Democracy is therefore not a revolutionary institution. On the contrary; it is the very means of preventing revolutions and civil wars. It provides a method for the peaceful adjustment of government to the will of the majority. When the men in office and their policies no longer please the majority of the nation, they will – in the next election – be eliminated and replaced by other men espousing different policies. 

Democracy, in other words, served a libertarian end: as a means of eliminating force from politics, it was a major step toward the libertarian ideal of eliminating force from social relations. So it was good in itself. As well, as many libertarian ideas do, it brought other significant benefits. 

One benefit was to instantiate what sociologist Vilfredo Pareto called the "circulation of elites". Every human society of record has been divided into an elite, which lives the good life and calls the shots, and the riffraff underneath; perhaps, given how humans live in groups, that division is a necessary part of society. In precapitalist societies, that division was fixed: if you were born a lord you could expect to be a lord all your life; if you were born a peasant, you could expect to always be a peasant. The rise of capitalism, though, abolished that fixed order, making it possible for individuals to move into and out of the elite; the lowest floor sweeper in a factory could theoretically become a factory owner, and vice versa. Democracy extended the 'circulation' principle into government: in America any native-born child could grow up to be President. 

As a further benefit of adopting the 'circulation' principle, members of the governing elite now had to consider the point of view of the non-elite as well. A Prime Minister might be able to pile high taxes on the private citizens; but now he had to face the real possibility of becoming a private citizen and having to pay those taxes himself. That brought about a common interest, on the part of governors and citizens alike, in limiting what government could do to its citizens. Thus democracy led to the idea of limiting government power constitutionally, through formal checks and balances that restricted how governments could make law – the Rule of Law not men – and through bills of human rights, which limited what governments were allowed to make laws about. 

To libertarians, then, democracy was seen as a good because it was a means to achieving good ends. However, there were other democratic thinkers, to whom "pleas[ing] the majority of the nation" was not a means to an end, but the very end itself. In their view, a democratic government was the expression and will of the people – achieving the will of the people was the supreme political good –and therefore whatever a democratic government did (unless, of course, it were taken over by bad people) was always good. It followed that restrictions on government like bills of rights were bad things, encumbrances that prevented governments from doing as much good as possible.  

This second view can be called the totalitarian view of democracy. The word 'totalitarian' is no stretch; at the limit, it implies that government may do whatever it wants to any individual it wants, so long as a majority wants it to; in short, it contradicts the very idea of human rights. Novelist (and armchair philosopher) Ayn Rand called it:

a social system in which one’s work, one’s property, one’s mind, and one’s life are at the mercy of any gang that may muster the vote of a majority at any moment for any purpose.... 

If we discard morality and substitute for it the Collectivist doctrine of unlimited majority rule [Rand also wrote], if we accept the idea that a majority may do anything it pleases, and that anything done by a majority is right because it’s done by a majority (this being the only standard of right and wrong) – how are men to apply this in practice to their actual lives? Who is the majority? In relation to each particular man, all other men are potential members of that majority which may destroy him at its pleasure at any moment. Then each man and all men become enemies; each has to fear and suspect all; each must try to rob and murder first, before he is robbed and murdered.

Those two visions of democracy have always co-existed in precarious balance in democratic states; but the Covid pandemic has utterly destroyed that balance. 

Democratic governments' interventions in the pandemic have been paradigm examples of totalitarian democracy. Contrary to what some may believe, lockdowns (and their component  measures) are enormously popular. The Covid Cult that swept the world convinced millions that they were going to die of this new plague, and that only governments could save them. Since then, massive majorities throughout the world have been demanding that their governments save them, rewarding those who acted quickly to close down society, and punishing those who held back. It is wrong for libertarians to call the result 'tyranny,' for it is the very opposite: it is the government carrying out the popular will.

Meanwhile, the rights of the people are being trampled. People have seen their livelihoods taken away. They are routinely arrested, and even roughed up, by the police, just for being in the wrong place at the wrong time. They are being arrested for their social media posts. They are being shot for breaking curfew. Life under lockdown is becoming a human rights nightmare. 

Even the Rule of Law has vanished; for this Covid totalitarianism has been happening, for the most part without any opposition, as if the constitution and the normal laws do not exist. Those have not been amended but are simply ignored, with the executive branch of government dictating whatever it wants done by executive order. Opposition parties, with their eyes on the same polls the government is reading, simply play along. A few courts have stood up for the Rule of Law by striking down some government actions; but those too have been demonized by the Covid Cult as "endanger[ing] thousands of lives," and in some cases their decisions have been ignored and the laws they struck down have still been enforced.  

In short, totalitarian democracy has become the official program of most democratic nations, while libertarian democracy has been discarded. This is an example of 'spontaneous order': No one planned for their country to become totalitarian; democratic governments have simply stumbled into totalitarianism, or been pushed into it by their citizens.

The silver lining to that cloud is that, while democratic majorities still support Covid totalitarianism, they have never approved of totalitarian democracy. As they gain experience of life in a totalitarian state, they cannot be counted on to support its continuance. Its tenets are being challenged by a growing number of scientists, philosophers, thinkers and even politicians. Official protests against Covid totalitarianism, though small and sporadic, are each week growing in number; while noncompliance (euphemistically referred to by governments as 'pandemic fatigue') is soaring, as the soaring case rates of Covid in America and Europe make clear. The liberal or libertarian ideal of people running their own lives, including assessing their own risks, may be down but it is certainly not out.  

I believe that in a straightforward conflict between totalitarian democracy versus liberal or libertarian democracy, the latter would win. However, that can and will happen only if enough people understand the nature of the underlying conflict.   

Tuesday, May 19, 2020

WI Supreme Court strikes down state lockdown

Wisconsin Supreme Court Says the State's COVID-19 Lockdown Violated the Rule of Law and the Separation of Powers | Reason - Jacob Sullum:

May 14, 2020 - "'After the Wisconsin Supreme Court overturned that state's COVID-19 lockdown yesterday, Gov. Tony Evers, a Democrat, declared that Republicans 'have thrown the state into chaos'.... But the justices were concerned about a different sort of [chaos]: the kind that happens when governments impose sweeping restrictions on individual freedom, backed by the threat of criminal penalties, without proper legal authority....

""Emergency Order 28, which acting Secretary of Health Services Andrea Palm issued on April 16, ... extended Wisconsin's original March 24 lockdown, which would have expired on April 24, until May 26.... Palm's order banned 'all forms of travel' except those she deemed essential; required 'all for-profit and non-profit businesses' she did not consider 'essential' to 'cease all activities' except for 'minimum basic operations' and work done at home; prohibited 'all public and private gatherings of any number' involving people who were 'not part of a single household'; closed all places of 'public amusement and activity,' whether 'indoors or outdoors,' except for golf courses; continued the closure of bars and restaurants (except for takeout and delivery) as well as salons, spas, K–12 schools, and libraries; imposed a 10-person limit on religious gatherings, including weddings and funerals; and required all residents of the state, except for members of the same household, to maintain a distance of at least six feet from each other. Palm said violations were punishable by a $250 fine, up to 30 days in jail, or both....

"Palm ... argued that her order was authorized by the statute that describes her department's powers. That law says the health department 'may authorize and implement all emergency measures necessary to control communicable diseases'.... The law also authorizes the department to 'promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, [and] for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease.'

"Another statute explains what the health department is supposed to do when it issues one of those rules. An 'emergency rule,' deemed necessary for 'preservation of the public peace, health, safety, or welfare,' ... has to follow certain procedures, including publication of a statement describing the scope of the rule in the Wisconsin Administrative Register, 'a preliminary public hearing and comment period' if a co-chairman of the Joint Committee for Review of Administrative Rules asks for them, approval of the proposed rule by the governor, and a 'fiscal estimate for the rule' sent to every state legislator.... Palm did not follow those procedures....

"Palm contended that her order did not qualify as a 'rule.' A four-justice majority of the Wisconsin Supreme Court disagreed, noting that state law defines a 'rule' as 'a regulation, standard, statement of policy, or general order of general application that has the force of law and that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency.'

"Even while insisting that her order should not be viewed as a rule, Chief Justice Patience Roggensack notes in the majority opinion, Palm purported to impose criminal penalties for violating it. 'It has long been the law in Wisconsin that in order for the violation of an administrative agency's directive to constitute a crime, the directive must have been properly promulgated as a rule,' Roggensack says.

"Furthermore, Palm's order defined the crime she purported to punish without referring to any statute. 'The prohibited "criminal conduct" to which Palm refers is factually defined solely by Emergency Order 28,' Roggensack notes. 'Counsel for Palm ... said that there was only one element that needed to be proved in a criminal prosecution for a violation of Emergency Order 28: that a provision of the order was violated. Such an argument is without legal foundation and ignores more than 50 years of Wisconsin law'....

"Even if Palm's order were not subject to rulemaking requirements, the majority says, it would exceed the scope of her legal powers. While the health department has the authority to 'quarantine those infected or suspected of being infected,' for example, the lockdown goes much further than that, telling 'all individuals present within the State of Wisconsin' they must 'stay at home or at their place of residence' except for Palm-approved purposes. 'She also prohibits "all public and private gatherings of any number of people that are not part of a single household or living unit,"' Roggensack notes. 'Again, this directive is not based on persons infected or suspected of being infected'....

"Justice Daniel Kelly suggests in a concurring opinion joined by Justice Rebecca Bradley.... 'In the Secretary's view, ... there are no statutory or regulatory limitations on her authority to address communicable diseases.... If we agreed with the Secretary's reading of [the law], we would have to conclude the statute violated the separation of powers by conferring on the Secretary the power to make laws without going through the rule-making process'....

"In a concurring opinion joined by Kelly, Bradley highlights the issues at stake in this case. 'However well-intentioned, the secretary-designee of the Department of Health Services exceeded her powers by ordering the people of Wisconsin to follow her commands or face imprisonment for noncompliance,' Bradley writes. 'In issuing her order, she arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process altogether'.... 'It is especially in times of emergency that we must protect the rights of the people,' Bradley writes, 'lest we establish a dangerous precedent empowering less benevolent government officials in the future to oppress the people in the name of exigency.'"

Read more: https://reason.com/2020/05/14/wisconsin-supreme-court-says-the-states-covid-19-lockdown-violated-the-rule-of-law-and-the-separation-of-powers/

Wednesday, April 27, 2016

Turkish constitution to be based on libertarian secularism, says PM

Turkeys new constitution to be based on libertarian rather than authoritarian secularism, PM says - Daily Sabah:

April 26, 2016 - "Prime Minister Ahmet Davutoğlu said on Wednesday that the Justice and Development Party (AK Party) will start to draft a new constitution that includes secularism based on libertarian principles rather than authoritarian values.

"Speaking at the AK Party's Extended Provincial Chairmen meeting in Ankara, Davutoğlu said there have been comprehensive discussions with academics and opinion leaders within the party this month on a civil constitution that will also include a presidential system....

"He pledged that the AK Party's draft constitution would guarantee secularism and dismissed claims that it would not include secularism, saying it is out of the question to debate the nature of the Turkish state as anything other than a secular democracy with the rule of law.

"'We will propose a libertarian sense of secularism rather than an authoritarian one,' Davutoğlu said, and added that the party is aware that they are preparing Turkey's first civilian constitution and it emphasizes and respects human dignity.

"He said the draft constitution would guarantee religious freedoms while it would ensure that the state has equal distance from all religions and faiths....

"Senior AK Party officials voiced their support for secularism, arguing that the new draft constitution readied by the AK Party committee retained the principle of separation of state and religion to ensure Turkey enjoys the full benefits of a democratic system of government.

"The chairman of the AK Party's Constitution Commission in Parliament, AK Party Istanbul Deputy Mustafa Şentop, said Tuesday that the AK Party commission will maintain secularism in its draft constitution and excluding it is out of the question. AK Party Group Deputy Chairman Bülent Turan also said on Tuesday that the party's stance regarding secularism is 'quite clear'....

"Turkey is preparing to reform the current Constitution, which was drafted after the Sept. 12, 1980 coup and creates a variety of impediments to legislation."

Read more: http://www.dailysabah.com/politics/2016/04/27/turkeys-new-constitution-to-be-based-on-libertarian-rather-than-authoritarian-secularism-pm-says
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Saturday, October 24, 2015

Activist SCOTUS needed to defend U.S. liberty

George F. Will: The Constitution Is A Libertarian Tool - Investors.com:

October 21, 2015 - "A supremely important presidential issue is being generally neglected ... presidential candidates should explain how they would select judicial nominees....

"Republicans can't speak their minds about the judicial supervision of democracy because their minds are unsettled. Fortunately, they are being urged, by thinkers like Randy Barnett, to adopt a vocabulary that disconcerts conservatives who have grown lazily comfortable with rhetorical boilerplate in praise of 'judicial restraint.'

"Barnett, a Georgetown law professor, recently took to a place that needs it — the University of California, Berkeley — this message: 'The judicial passivism of the Supreme Court has combined with the activism of both congresses and presidents to produce a behemoth federal government, which seemingly renders the actual Constitution a mere relic, rather than the governing document it purports to be.'

"In his lecture, 'Is the Constitution Libertarian?' Barnett acknowledged that in many respects American life 'feels freer' than ever, and that we have more choices. In other ways, however, freedom is too constricted, and individual rights are too brittle, because for decades America's Lockeans have lost ground to Hobbesians: 'The Lockeans are those for whom individual liberty is their first principle of social ordering, while the Hobbesians are those who give the highest priority to government power to provide social order and to pursue social ends'....

"Lockeans favor rigorous judicial protection of certain individual rights -- especially private property and freedom of contract -- that define and protect the zone of sovereignty within which people are free to act as they please.... Lockeans say the Constitution circumscribes the majoritarian principle by protecting all rights that are crucial to individual sovereignty....  And, Barnett argues, a properly engaged judiciary bears the burden of saying when the government has not justified its restrictions as necessary and proper.

"So, Barnett says, yes, the Constitution — 'the law that governs those who govern us' — is libertarian. And a Lockean president would nominate justices who would capaciously define and vigorously defend, against abuses by majoritarian government, what the 14th Amendment calls Americans' 'privileges or immunities.'

"Republican presidential aspirants must be forced to join their party's argument about the judiciary's proper function. Then we can distinguish the Lockean constitutionalists from the merely rhetorical conservatives whose reflexive praise of 'judicial restraint' serves the progressives' Hobbesian project of building an ever-larger Leviathan.""

Read more: http://news.investors.com/ibd-editorials-on-the-right/102115-776739-george-f-will-constitutions-focus-on-securing-natural-rights-makes-it-libertarian.htm
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Saturday, October 3, 2015

Is the U.S. Constitution a libertarian document?

“Is the Constitution Libertarian?” My Baxter Liberty Initiative Lecture on 10/6 - The Washington Post - Randy Barnett, the Volokh Conspiracy:

September 29, 2015 - "On Tuesday, October 6th, I will be giving the Baxter Liberty Initiative Lecture, sponsored by the Political Science Department of the University of California at Berkeley. The topic on which I was asked to speak is 'Is the Constitution Libertarian?'...  I just finished writing my lecture. Here is a portion of how it begins:

"Truth be told, libertarians have a love-hate relationship with the Constitution. On the one hand libertarians, like most Americans, revere the Constitution. Libertarians particularly appreciate its express guarantees of individual liberty and its mechanisms to preserve limited government. If being American is to subscribe to a creed, then the Constitution, along with the Declaration of Independence, are the foundational statements of this creed.

"But some libertarians have issues with the Constitution as well. And here I speak for myself, as well as others. There was a reason I eschewed writing about and teaching Constitutional Law when I became a law professor in favor of teaching Contracts. For, after taking Constitutional Law in law school, I considered the Constitution a noble, but largely failed experiment in limiting the powers of government. In my con law class, every time we got to one of the 'good parts' of the text that protected liberty, we turned the page to read a Supreme Court opinion explaining why that clause did not really mean what it appeared to mean....

"This fundamental failure of the Constitution to limit the size and scope of government has even led some libertarians to contend that the enactment of the Constitution represented a coup d’état by big government Federalists against the more preferable state-centered regime defined by the Articles of Confederation and favored by the Antifederalists.

"Yet many libertarians are genuinely torn, one might go so far as to say schizophrenic, about how the Constitution has actually worked out. Big and intrusive as government is today, it could be much worse. Few can point to other countries where individuals are freer in practice than in the U.S.... Libertarians still refer to the U.S. as a 'free country,' maybe still the freest on earth. That the Constitution deserves at least some of the credit for this freedom seems likely."

Read more: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/29/is-the-constitution-libertarian-my-baxter-liberty-initiative-lecture-on-106/
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Monday, July 13, 2015

Eyebrow threader licensing law struck down in TX

Is This the Most Libertarian Legal Opinion Ever Written? - Hit & Run : Reason.com - Damon Root:

July 8, 2015 - "In a resounding victory last month for economic liberty, the Texas Supreme Court struck down a state licensing law that required eyebrow threaders to complete 750 hours of costly and unnecessary cosmetology training in order to receive the state's permission to charge customers for the harmless act of removing unwanted eyebrow hairs with a loop of cotton thread.

"'The requirement of 750 hours of training to become licensed is not just unreasonable or harsh,' the Texas Supreme Court held in Patel v. Texas Department of Licensing and Regulation, it is 'so burdensome as to be oppressive'....

"As the Texas high court pointed out, 'persons licensed to apply eyelash extensions — a specialty involving the use of chemicals and a high rate of adverse reactions — are required to undergo only 320 hours of training.' Eyebrow threading, by contrast, is an entirely safe occupation that involves no chemicals and requires only that practitioners follow the most rudimentary of sanitary practices, such as the regular washing of hands. To force would-be eyebrow threaders to spend as much as $9,000 on 750 hours of pointless training in order to obtain a pointless license is practically the definition of arbitrary government....

"Texas Supreme Court Justice Don Willett filed a lengthy concurring opinion of his own, in which he launched a full-throated defense of economic liberty under both the Texas and U.S. Constitutions.... Here's an excerpt from Justice Willett's superb concurrence:
This case concerns the timeless struggle between personal freedom and government power. Do Texans live under a presumption of liberty or a presumption of restraint? The Texas Constitution confers power — but even more critically, it constrains power. What are the outer-boundary limits on government actions that trample Texans' constitutional right to earn an honest living for themselves and their families? Some observers liken judges to baseball umpires, calling legal balls and strikes, but when it comes to restrictive licensing laws, just how generous is the constitutional strike zone? Must courts rubber-stamp even the most nonsensical encroachments on occupational freedom? Are the most patently farcical and protectionist restrictions nigh unchallengeable, or are there, in fact, judicially enforceable limits?"
Read more: http://reason.com/blog/2015/07/08/is-this-the-most-libertarian-legal-opini
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Tuesday, March 17, 2015

Libertarian vs. Progressive constitutionalism

National Review Urges Conservatives to Reject 'Libertarian Constitutionalism' - Hit & Run : Reason.com - Damon Root:

March 17, 2015 - "Writing in the March 9 issue of National Review, conservative writer Carson Holloway examines my new book Overruled: The Long War for Control of the U.S. Supreme Court. His focus is on the book’s treatment of competing libertarian and conservative approaches to constitutional law. 'Conservatives are defenders of judicial restraint or judicial deference,' Holloway writes, which means they 'admonish the courts to show deference to the will of the majority' and uphold most democratically enacted statutes. 'Libertarian constitutionalism,' on the other hand, seeks vigorous judicial action “in defense of individual rights'....

"Holloway invokes the founding fathers, who, in his telling, consistently embraced the philosophy of judicial deference.... [Yet] James Madison, one of the primary architects of the original U.S. Constitution, argued in a 1789 speech to Congress that amending the Constitution to include a Bill of Rights would prompt the judiciary to serve as 'the guardians of those rights.' In fact, Madison wrote, the judiciary 'will be an impenetrable bulwark against every assumption of power in the legislative or executive.' Not exactly a roaring defense of judicial deference....

"In reality, today’s advocates of conservative judicial deference owe less to the 18th century founders and more to the turn-of-the-20th century Progressives, particularly to Progressive hero and thought leader Justice Oliver Wendell Holmes Jr. 'A law should be called good,' Holmes wrote, 'if it reflects the will of the dominant forces of the community, even if it will take us to hell.'

"Conservative hero Robert Bork expressed that same idea (albeit in less colorful terms) in his 1991 book The Tempting of America. 'In wide areas of life,' Bork wrote, 'majorities are entitled to rule, if they wish, simply because they are majorities.”

"What’s more, this Holmes-Bork/Progressive-conservative connection has never been a secret. When President Ronald Reagan nominated Bork to the Supreme Court in 1987, for example, Bork was explicitly advertised as a Holmes devotee. 'I would ask the committee and the American people to take the time to understand Judge Bork’s approach to the Constitution,' Sen. Bob Dole (R-Kan.) told the Senate Judiciary Committee during the Bork hearings. 'That approach is based on "judicial restraint".... Now, Judge Bork did not invent this concept,' Dole explained. 'It has been around for a long time. One of the most eloquent advocates was Oliver Wendell Holmes.'

"According to National Review, 'conservatives must decide whether to buy what the libertarian legal movement is selling.” I agree. But at the same time, conservatives must also decide whether to buy another round of what the Progressive legal movement already sold them."

Read more: http://reason.com/blog/2015/03/17/national-review-urges-conservatives-to-r
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Saturday, December 6, 2014

The long war for control of SCOTUS

Libertarians and Conservatives Battle Over the Supreme Court - Michael Greve, Wall Street Journal:

November 17, 2014 - "We have had wars over the direction of the Supreme Court — President Roosevelt’s 1937 court-packing plan or, more recently, the brutal fights over the judicial nominations of Robert Bork and Clarence Thomas . These partisan confrontations, however, are not what Damon Root has in mind in Overruled: The Long War for Control of the U.S. Supreme Court. His 'war' pits libertarians against conservatives. Libertarians, he says, want judicial 'action' and 'engagement.' Conservatives want 'restraint.'

"While legal historians may quarrel with the story here and there, the broader audience for which Overruled is intended will benefit from Mr. Root’s confident, competent telling. In particular, he powerfully illustrates that Holmes, Brandeis and Frankfurter—the most overrated justices in our history—had not the foggiest notion of the Constitution. To the extent that they comprehended it, they loathed it as inimical to their vision of government by experts.

"Mr. Root’s chronicle of these rival legal traditions sets the stage for the main parts of Overruled: its account of the conservative-libertarian debate of the past three decades and of litigation campaigns in which libertarian organizations have led the way. They include gun-control cases, spearheaded by the Cato Institute; the Kelo v. City of New London (2005) case, where the Institute for Justice argued (if unsuccessfully) that the 'taking' of private property requires a public purpose; the institute’s Lochner-style challenges to licensing requirements for hair braiders and casket makers; and the NFIB v. Sebelius (2012) litigation over the Affordable Care Act, where libertarian law professors played a central role. Mr. Root’s description of how those cases were conceptualized and litigated is fun stuff and informative even for insiders....

"Signally but obliquely, the author seems to recognize that the Supreme Court has also enhanced conservative-libertarian convergence in a different way.... Restraint-oriented conservatives never objected to freedom for hair braiders; rather, they worried that a libertarian-rights agenda might also entail abortion on demand (delicately omitted from Mr. Root’s 'landmark rulings') and gay marriage. Now that those battles have been fought and lost, conservatives might as well embrace the libertarian campaign for economic rights and an 'engaged' judiciary."

Read more: http://online.wsj.com/articles/book-review-overruled-by-damon-root-1416270073