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Principles to Strengthen Rule of Law

James Goldston is the founding executive director of the Open Society Justice Initiative, which promotes human rights, justice, and accountability law reform worldwide.  Goldston has litigated several groundbreaking cases before the European Court of Human Rights and the United Nations treaty bodies, and has served as Coordinator of Prosecutions and Senior Trial Attorney in the Office of the Prosecutor at the International Criminal Court.  A graduate of Columbia College and Harvard Law School, Goldston has engaged in law reform fieldwork and investigated rights abuses in more than 30 countries in Africa, Asia, Europe, Latin America and as prosecutor in the office of the United States Attorney. He has taught at Columbia Law School and Central European University.  Written by James Goldston in the Open Society Foundation Blog dated January 26, 2012.




This September the United Nations Secretary General will convene what is called, in UN parlance, a "high level segment" of the General Assembly to discuss "the rule of law at the national and international levels." What does that mean? It’s not entirely clear. Nor is that surprising.

While "justice" is a series of aspirations for a better world, and "human rights" consists of internationally agreed and/or legally binding restraints on state power, "the rule of law" falls somewhere in between.

Lawyers and non-lawyers spend a lot of time discussing what the rule of law is. The definition the UN employs is quite a mouthful:

The term rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

Perhaps it is easier to see what the rule of law is not.

In recent weeks, we've seen three striking examples that illustrate the politicization of law.

In Spain, on January 17, Judge Baltasar Garzon, who has advanced the frontiers of justice abroad by prosecuting war criminals—like former Chilean dictator Augusto Pinochet and members of the former military junta in Argentina—went on trial for doing the same at home. Among other things, Garzon is accused of abusing his power in opening a case into the deaths of more than 100,000 people under the Franco regime. One need not be an expert in Spanish law to fear that a judge is being punished for displaying in Spain the very independence which won him praise elsewhere.

The same week, a court in Istanbul acquitted most of 19 defendants accused of involvement in the 2007 murder of Hrant Dink, a Turkish-Armenian newspaper editor who had provoked outrage in Turkey by labeling as “genocide” the 1915 massacres of 1.5 million Armenians by the Ottoman Turks. Before his death, Dink had been repeatedly prosecuted for expressing his opinion on matters deemed controversial. In 2005, he was given a six-month suspended prison sentence for "denigrating Turkishness" in writing about the identity of Turkish citizens of Armenian origin.  In 2010, the European Court of Human Rights held that the Turkish authorities had failed to act on information that could have prevented Dink's murder and to investigate the role of state officials in his death. Although the latest verdicts may be reviewed on appeal, the failure to secure justice for Dink’s killers sends a disturbing message about Turkey’s commitment to equal protection of the law for government supporters and dissidents alike.

Finally, just this week, the United States Department of Justice charged John Kiriakou, a former CIA officer, with disclosing classified information to journalists about the apprehension, interrogation and torture in 2002 of a suspected member of Al-Qaeda. This is the sixth criminal prosecution—more than all previous presidents since World War II—brought under President Obama against current or former government officials accused of providing classified information to the media. Rights advocates have expressed concern that this systematic effort to punish whistleblowers may silence others who have information about abuses, including those committed during the Bush Administration’s war on terror. Some suggest that is precisely the point—to hinder the search for criminal accountability.

Each of these examples highlights the danger, even in democracies with well-developed institutions, that political motivations may infect the judicial process in a manner which erodes impartiality and even-handedness. While misappropriation of the criminal law may seem to offer short-term gains to political actors, in the long run it undermines the legitimacy of government.

Taken together, these cases make clear, by its glaring absence, that one core component of the rule of law is the separation of law and politics. To give meaning to that principle, states might commit at the UN’s rule of law summit in September to the following:

First, effectively and thoroughly investigate all crimes, including—and indeed in particular—where there is reason to suspect the involvement of state officials.

Second, refrain from using the criminal process to punish anyone for political expression, or to infringe upon the principle of judicial independence.  Relatedly, do not prosecute judges for carrying out well founded investigations of politically sensitive crimes.

Third, provide effective legal protection for government whistleblowers who release information of public interest to the media or the public.

The mere restating of such common sense principles, in a public forum attended by senior dignitaries from around the world, would underscore their importance. Better yet, states might even agree to a process whereby, over the next several years, they would  articulate specific “stretch” commitments for each, with progress transparently monitored. That might make the High Level Segment this September worth following.

This is the second in an occasional series by the author looking at the issues facing this year's United Nations meeting on the rule of law.

 

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The Open Society Foundation makes available this blog to bring their work a little closer by giving their experts and grantees a platform to reflect on their issues, sharpen their thinking, and engage in a conversation on how to advance open society values around the globe. Reprinted with permission under the Creative Commons License.


 

 
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The Constitution and Limited Government

Edward J. Erler is professor of political science at California State University, San Bernardino, and a senior fellow of the Claremont Institute. He earned his B.A. from San Jose State University and his M.A. and Ph.D. in government from Claremont Graduate School. He has published numerous articles on constitutional topics in journals such as Interpretation, the Notre Dame Journal of Law, and the Harvard Journal of Law and Public Policy. He was a member of the California Advisory Commission on Civil Rights from 1988-2006 and served on the California Constitutional Revision Commission in 1996. He has testified before the House Judiciary Committee on the issue of birthright citizenship and is the co-author of The Founders on Citizenship and Immigration.

The following is adapted from a speech delivered at a Hillsdale College National Leadership Seminar on May 24, 2011, in Dallas, Texas.

 

Two cases that are currently making their way to the Supreme Court may well in the short term decide the constitutional issue of the reach and extent of the federal government. At stake, in other words, is the future of limited government. And together, these two cases present an exceedingly odd situation. In the case of the Arizona illegal alien law, the federal government is suing a state for constitutional violations; and in the case of the Patient Protection and Affordable Care Act—that is, Obamacare—more than half the states are suing the federal government, contesting the Act’s constitutionality. It is indeed a litigious season.

But the Supreme Court’s decisions in these two cases may not be the last word, because both of them present eminently political issues that will have to be decided ultimately by the American people.

The administrative state, of course, always seeks to extend its reach and magnify its power. This is an intrinsic feature of a system where administration and regulation replace politics as the ordinary means of making policy. If there are to be limits to the reach of the burgeoning administrative state, they will be political limits imposed by the people in the ordinary course of partisan politics. The advent of the administrative state poses the greatest challenge to limited government, because it elevates the welfare of the community—whether real or imagined—over the rights and liberties of individuals. The task today is to confine the federal government to its delegated powers. The minions of the administrative state seek to destroy constitutional boundaries in their desire to replace politics with administration. This is tantamount to denying that legitimate government derives from the consent of the governed, or that limited government rests on the sovereignty of the people.

One of the proofs offered in the Declaration of Independence that King George was attempting to establish an “absolute Tyranny” over the American colonies was the fact that “He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.” Obamacare certainly fits the description of the activities denounced in the Declaration. The number of regulations and the horde of administrators necessary to execute the scheme are staggering. We have only to think here of the Independent Payment Advisory Board. It is a commission of 15 members appointed by the President, charged with the task of reducing Medicare spending. This commission has rule-making power which carries the force of law. The Senate, it is true, will have the power to override its decisions—but only with a three-fifths majority. There are no procedures that allow citizens or doctors to appeal the Board’s decisions. The administrative state—here in the guise of providing health care for all—will surely reduce the people under a kind of tyranny that will insinuate itself into all aspects of American life, destroying liberty by stages until liberty itself becomes only a distant memory.

The advent and extraordinary success of the Tea Party movement, with its emphasis on restoring limited government, has made this a propitious time to rethink what the Framers meant by limited government and how they understood the relationship between limited government and the protection of rights and liberties. It is rare to see a people acting spontaneously in a political cause. The Tea Party movement must be regarded as a testament to the independent spirit—the freedom-loving spirit—of the American people.

How did the Framers understand limited government? In the first place, limited government was not for the Framers identical with small government, as the Tea Party sometimes tends to believe. The identification of limited government with small government was the position of the Anti-Federalists who opposed the ratification of the Constitution. Limited government, for the Anti-Federalists, meant government that was too weak to threaten the rights and liberties of the people. Small government was, therefore, both the necessary and sufficient condition of political freedom. Consequently, the Anti-Federalists preferred a purely confederal form of government in which the states assumed priority.

The Federalists, on the other hand, regarded confederal government as an attempt to do the impossible: to create a sovereignty within a sovereignty. Conflicting claims to sovereignty would be debilitating and would render the government of the whole ineffective—as was surely the case under our first constitution, the Articles of Confederation.

The Framers of the Constitution settled upon a novel design for government, one that Madison said was “partly national, partly federal.” For some purposes, Madison explained, we will be one people; for others, we will be multiple peoples. With respect to the national features—those things that concern the nation as a whole—the federal government will have sovereignty—complete and plenary power to accomplish the objects entrusted to its care in the Constitution. Those objects are principally found in Article I, Section 8 of the Constitution. National defense, for example, is exclusively delegated to the federal government. And since the exigencies that face nations in foreign affairs are unpredictable and innumerable, the federal government must have sovereignty to fulfill this delegated trust. And if that trust is to be fulfilled, the federal government must also be accorded the necessary means to achieve that end. If this entails large government—and today it surely does—then large government must be compatible with limited government. Similar reasoning applies to all the objects delegated to the care of the federal government.

The Declaration of Independence provided the authoritative statement of America’s political principles. For the first time, government was said to derive its legitimacy—its just powers—from “the consent of the governed.” This was a turning point in world-historical consciousness: no longer would it be possible to argue that sovereignty belonged to governments or kings—even if kings claimed appointment by divine right.

In order to form just government, the people delegate a portion of their sovereignty to government to be exercised for their benefit. The fact that only a portion of sovereignty is ceded by the people is the origin of the idea of limited government. The people delegate only some of their sovereignty to government, and what is not granted is retained by the people—the people, for example, always reserve (and can never cede) the ultimate expression of sovereignty, the right of revolution. The Declaration describes this right as “the Right of the People to alter or to abolish” government when it becomes destructive of its proper ends—namely, the protection of the safety and happiness of the people. This right of revolution, as understood by the Founders, was the right that secures every other right, because it serves as a constant reminder of the sovereignty of the people.

The Anti-Federalists never understood these revolutionary implications; they seemed to believe still that governments, not the people, were the ultimate repositories of sovereignty, and that the only way to secure the rights and liberties of the people was to weaken the power of government—as if freedom existed only in the exceptions to government power. But as Madison wrote, “Energy in government is essential to that security against external and internal danger and to that prompt and salutary execution of the laws which enter into the very definition of good government.”

What limits the federal government is not a limit on its power to act, but the limited range of objects entrusted to its care—the enumerated powers of government. The powers not delegated to the federal government nor forbidden to the states in the Constitution (e.g., ex post facto laws, bills of attainder, and laws impairing the obligation of contracts) are reserved to the states. These are the police powers, which are generally described as the power to regulate the health, safety, welfare and morals of the citizens of the states.

In cases of conflict, the supremacy clause of the Constitution gives preference to the federal Constitution and laws made in pursuance of the Constitution. The supremacy clause was described by Madison as an essential improvement over the Articles of Confederation. Where there is no final authority to arbitrate disputes between the federal government and the states in this “compound Republic,” government will be paralyzed. Madison confessed, however, that the exact boundary between the powers of the federal government and the state governments will be impossible to determine in advance. The precise lines of demarcation will have to be worked out in practice. The Supreme Court—and through the supremacy clause, the state courts—will have to determine conflicts on a case by case basis.

An illustration of the difficulties of drawing clear lines between federal and state authority in our “compound Republic” is the Arizona illegal immigration bill, passed in April 2010. The law allowed police officers to verify the immigration status of any person after a valid stop or arrest if there “is a reasonable suspicion that the person is unlawfully present in the United States.” Everyone remembers the hysteria that was unleashed when the bill passed. The President called the law irresponsible, saying that it threatened “basic notions of fairness.” Others said the provision of the bill relying on “reasonable suspicion” would mandate racial profiling; and some of the more hysterical commentators even insisted that the law was tantamount to genocide. The Assistant Secretary of State felt compelled to apologize to members of a Chinese delegation visiting the United States for this egregious assault upon human rights. One can only imagine the bemused looks on the faces of the Chinese delegation.

The President ordered the Justice Department to intervene. And to the surprise of many, the Justice Department’s lawsuit did not seek to enjoin the law based on racial profiling or equal protection or due process, arguing instead that the law conflicted with the federal government’s exclusive power to regulate immigration. Perhaps someone had explained to the Attorney General that “reasonable suspicion” has been a part of our due process jurisprudence for many years. It means that a police officer can question on suspicion that is less than probable cause; reasonable suspicion, of course, must be something more than a hunch or a guess or an intuition—it must be based on articulable facts. In addition, the Supreme Court in 1975 ruled that ethnicity could be one of the factors determining reasonable suspicion. The Arizona law, in contrast, disallowed any use of ethnicity in determining whether a person could be asked about his immigration status.

In United States v. Arizona, the Federal District Court judge enjoined the operation of the law because it intruded upon the federal government’s exclusive power to regulate immigration and control foreign policy. On appeal from the District Court, one piece of evidence adduced by the Ninth Circuit Court of Appeals that the Arizona law was an unconstitutional impingement upon the federal government’s exclusive power to conduct foreign policy was the fact that the President of Mexico and the heads of several other Latin American countries had expressed severe criticisms of the bill both in the press and in amici briefs! Rarely do we encounter such humor in court opinions, however unintended the humor might be.

The Constitution, of course, does not specifically grant control over immigration to the federal government. Instead Congress has power to “establish a uniform Rule of Naturalization.” Control over naturalization, however, seems to imply control over immigration—so uniform rules governing immigration would seem, by necessary implication, to fall within the scope of federal power. The real question here—although it was not addressed by the District Court or the Court of Appeals—was what power, if any, devolves upon state governments when the federal government fails to carry out its obligations. The District Court had candidly noted that the Arizona law was passed “against a backdrop of rampant illegal immigration, escalating drug and human trafficking crimes, and serious public safety concerns.” In the face of federal inaction or manifest indifference, does Arizona have the reserved power—indeed the obligation—to secure the safety of its citizens? The President’s recent remarks that the border has been secured and that it is now time to think of providing a path to citizenship for illegal aliens is, in reality, a statement of declared indifference to the people of the State of Arizona and to all the border states similarly situated. Surely those states have the constitutional right, sustained by their police powers, to protect themselves through laws that are as unobtrusive as the Arizona law. But in the District Court’s judgment, the Arizona law invoked “an inference of preemption” because it placed an “impermissible burden” on federal “resources and priorities” and inevitably “will result in the harassment of aliens.” The burden on federal resources stems from the fact that there will be an increased number of requests to verify immigration status. This increased burden will in turn force the immigration services to reallocate resources away from other priorities. Such is the logic of the District Court.

These reasons seem trivial when compared to the real and pressing dangers that Arizona faces as a result of federal inaction and indifference. Surely this is not what the Framers had in mind when they crafted the supremacy clause, while at the same time reserving to the states the essential responsibility of protecting the safety and welfare of their citizens. Madison wrote in The Federalist that “the powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the State.” This extensive power reserved to the states should weigh heavily on preemption decisions. In this light, the Arizona law seems to have been a clear exercise of the state’s police powers, and any burden imposed on the federal government to have been incidental and insignificant.

Obamacare is another issue that tests our understanding of the Constitution and the role of limited government. In federal courts, the Obama administration has defended the bill as a legitimate exercise of Congress’ power to regulate commerce. At issue here is the individual mandate that forces individuals to purchase health care insurance and carries a penalty for failure to do so. Congress has the power to regulate commerce; but does it, as here, have the power to create commerce—i.e., to force individuals to engage in interstate commerce by purchasing health care insurance from private providers? Another way to look at the issue would be to ask whether, under the commerce clause, Congress has the power to regulate inactivity, i.e., the refusal to buy insurance. This would indeed be a novel extension of commerce clause jurisprudence and utterly impossible to square with any notion of commerce that was held by the framers of the Constitution.

In addition to the commerce clause argument, the Obama administration maintains that the individual mandate is authorized by Congress’ power to tax and spend for the general welfare. Congress’ power here is extensive. Over the years, the Court has generally deferred to Congress in determining what constitutes the general welfare. This is proper, since Congress represents the nation and what promotes the general welfare is essentially a political question. If Congress determines that a universal health care system serves the general welfare, then the courts will not interfere. The power to “lay and collect Taxes,” however, has been subject to judicial scrutiny. While Congress may tax for the purpose of raising revenue, it may not use the power of taxation for the express purpose of regulation. A tax that is merely a subterfuge for regulating activities will not be allowed, although a tax that only incidentally regulates behavior will pass constitutional muster as long as the principal purpose is raising revenues.

Madison argued that the general welfare clause was actually a limitation on the federal government. Taxes could be imposed and money spent only for the general welfare—meaning the welfare of the whole of the American people. It is true that Alexander Hamilton had a more extensive view of the general welfare clause, but throughout much of our history Madison’s view prevailed. Today, however, the idea that the general welfare clause was ever intended as a limit on the reach of government has been destroyed by the progressive architects of the welfare state.

In any case, if the individual mandate is to be defended under the general welfare clause, what the plain language of the bill calls a penalty must be regarded as a tax for the express purpose of raising revenue. If the penalty can be sold as a tax, the Obama administration argues, then Obamacare is authorized by the general welfare clause. In the Florida District Court case, the Justice Department made the wholly tendentious—not to say absurd—argument that since the IRS was charged with administering the individual mandate and collecting the penalties, this was sufficient to convert a penalty into a tax. But as Florida District Court Judge Roger Vinson remarked: “Besides the fact that President Obama confidently assured the American people that there would be no new taxes to support the medical insurance scheme, no amount of administrative indirection should be allowed to convert a penalty into a tax for raising revenue. This is not a revenue raising measure and therefore cannot be justified under the general welfare clause.”

But here is a somber thought: If, instead of using the individual mandate, Congress had relied on its general revenue-raising powers, under current Supreme Court doctrine, it is almost certain that Obamacare would be constitutional. It would be an example of Congress spending money for the general welfare.

In conclusion, the only certain method of defeating universal health care and other cases of federal overreach—as it appears that the American public desires to do—is political opposition. A political party dedicated to genuinely limited government—not small government—is an urgent political task. Whether the Tea Party is up to this task remains to be seen—but it is probably our best hope. The Tea Party will have to learn, however, that the task today is not to weaken the power of government—it is to confine the government to the exercise of its delegated powers and to restore to its full vigor the partly national, partly federal form of government that was the legacy of the Founders.

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Reprinted by permission from Imprimis, a publication of Hillsdale College.  Subscription free upon request.   Imprimis trademark registered in U.S. Patent and Trade Office #1563325.

 
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450,000 Israelis peacefully demonstrate for social values
  • Largest demonstration in Israel’s history
  • Jews, Arabs march together for a better future
  • Netanyahu: We are committed to genuine reform


Jerusalem, Sept. 4 - Nearly half a million Israelis took the streets around Israel last night in peaceful demonstrations for social change. Representing seven percent of Israel’s total population, a cross-section of Israelis – young and old, religious and secular, Jews and Arabs, and people professing support for a broad spectrum of Israeli political parties, came together in what is considered to be the largest protest in Israel’s history.

Protests were held in Jerusalem, Tel Aviv, Eilat, Afula, Karmiel, Hod Hasharon and other cities around Israel. In Haifa, a city with large Arab and Jewish populations that live together peacefully, protests focused on coexistence and peace.

Ori, a 22-year-old medical student who lives in Kfar Saba, a suburb of Tel Aviv, told The Israel Project: “These protests are so special because everyone has their own beliefs, and that’s OK. It’s just an amazing sight to see so many kinds of people here.”

“A new hope was born this summer. It was a miracle” said another one of the protests’ main organizers, Daphni Leef.

Saturday night’s peaceful demonstrations were the climax to an ongoing public debate in Israel about economic and social priorities. The debate has been led by Israel’s middle class and includes issues related to jobs, housing prices, the taxation burden, public welfare and the high-cost of living for average Israeli families.

Many young Israelis around the country set up tents as make-shift homes during the past month to symbolize their desire for economic reform.

“We are the new Israelis,” said Itzik Shmuli, National Student Union Chairman, to a crowd of some 300,000 Israelis in Kikar Hamedina, an affluent residential neighborhood in northern Tel Aviv.

Israel’s Prime Minister Benjamin Netanyahu quickly responded and convened the Trajtenberg Committee to address the distribution of expenses and housing shortages in Israel. The Committee met throughout August to work on ways to lower the cost of living in Israel. It will submit recommendations to the government within two weeks.

“My Government is committed to carrying out tangible changes in order to ease the cost-of-living and correct social distortions. I believe that the public dialogue that has developed, as well as the discussions of the Trajtenberg committee, will offer us a unique opportunity to implement genuine and responsible changes in this sphere,” Netanyahu said at the start of his weekly cabinet meeting today.

“Israel has never had a committee that has begun such an open and serious dialogue with thousands of citizens…I intend to act quickly, pursuant to its recommendations, and maintain the correct balance between social sensitivity and responsible economics,” added Netanyahu.

The High Court of Justice ensured on Friday that trains that were set for maintenance work would remain open so that citizens from all over the country could get to Tel Aviv for the protest.

In Tel Aviv, police and security guards stood calmly as the crowds rallied. They were deployed to ensure public safety. MDA, Israel’s emergency rescue service, was also on-hand and helped evacuate a few people who fainted.

Press Release September 4, 2011 by The Israel Project - a non-profit educational organization that provides factual information about Israel and the Middle East to the press, policy makers and the public.

 
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The Debt Limit Debate Has Just Begun

By Gary Wolfram, William Simon Professor of Economics and Public Policy, Hillsdale College.  Article originally posted on Ricochet.com and hillsdale.edu.


The deal which raised the debt ceiling did not meet with the stock market rally that some had expected.  This was in large part because, despite the media hype, the markets knew that the U.S. was not going to default on its debt obligations.  The fact that 10 year Treasuries were yielding around two and a half percent indicates that the markets were aware that the U.S. always had enough revenue to make interest payments on our bonds and to refinance maturing debt.   

Without further borrowing ability the Treasury would not have been able to make all payments due, however.  A choice would have had to be made as to whether Social Security payments would be delayed, Medicare providers’ checks would be reduced, or government vendors would not get paid on time.  But given the 14th amendment’s provision that the validity of the debt of the United States shall not be questioned, it is almost certain that U.S. Treasury bondholders would have been paid. 

Who would not have been paid would have been a political choice.  AARP reported that its members “flooded the White House and the halls of Congress with 557,249 letters and 387,018 phone calls.”  This might give an indication that the politically correct thing for the President to do would have been to reduce and delay Social Security payments that are received by 60 million Americans, and blame it on the “Tea Party Republicans.”  While the President would appear on prime time national television to make his point, the Speaker of the House would have had a hard time beating out The Voice to give his response.

In 1995-96 I took a leave from Hillsdale College to be Congressman Nick Smith’s chief of staff.  A similar battle was taking place with the newly elected House Republican majority and President Bill Clinton.  The Republicans had control of the Senate as well and sent a balanced budget and debt ceiling increase to President Clinton, who vetoed it.  The federal government was temporarily shut down and President Clinton was able to win the issue politically.  Newt Gingrich ended up losing his position as Speaker of the House and Senate Majority Leader Bob Dole was firmly trounced by Clinton in the 1996 election.

Given the political realities, including that the Republicans only control one House this time, the outcome of the debt limit legislation was as good a deal as was going to be made.  The gain, however, was not in the details of the deal itself, other than it avoided raising taxes, but in pushing to the front pages of America the fact that federal government spending is not sustainable.

Friedrich Hayek wrote in The Constitution of Liberty that a primary benefit of democracy is that debate over the issues will advance the state of knowledge.  The “intransigence of the Tea Party Republicans” accomplished what it needed to—push the debate on federal government spending into the national spotlight.

The debt ceiling legislation does little to address the unsustainable degree of federal government spending, particularly in entitlement programs.  The media has trumpeted the “cuts” by adding them up over ten years.  For example, we know that the basics of the deal are about $1 trillion in cuts from discretionary spending, and then the Super Committee will find another $1.2 trillion in deficit reductions.  To put this in perspective, the Congressional Budget Office projects federal spending over the next decade to exceed $50 trillion. Little wonder that the markets did not rally in the face of the deal.

What this all means, however, is that the debate over federal spending has at least begun.  Most Americans now realize that the national debt is in excess of $14.3 trillion, and that Medicare and Social Security, as well as Medicaid, are in an unsustainable position.  What is vital is that those who believe in a limited federal government and in the importance of freedom keep the debate alive by noting that nothing has been done yet to address the long run unfunded liabilities of Social Security and Medicare. 

It is not sustainable for Americans over the age of 62 to expect their retirement and health care to be paid for by someone else for the final 20 to 30 years of their life.  Common sense tells us that this cannot possibly happen.  The debt limit debate has forced our Congressmen to admit to this.  The next step is to address the problem.

 
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The Tea Parties and the Future of Liberty

Stephen F. Hayes  is a senior writer at The Weekly Standard and a FOX News Contributor. His work has been featured in the Wall Street Journal, the Los Angeles Times, Reason, National Review and many other publications. He is the author of two New York Times bestsellers: The Connection: How al Qaeda's Collaboration with Saddam Hussein Has Endangered America and Cheney: The Untold Story of America's Most Powerful and Controversial Vice President. His great-great uncle was a president of Hillsdale College and many of his relatives have attended Hillsdale, including two grandparents.

The following is adapted from a speech delivered on June 6, 2010, during a Hillsdale College cruise from Rome to Dover aboard the Crystal Symphony.



Barack Obama was inaugurated on January 20, 2009. Within a month he signed a $787 billion “stimulus package” with virtually no Republican support. It was necessary, we were told, to keep unemployment under eight percent. Overnight, the federal government had, as one of its highest priorities, weatherizing government buildings and housing projects. Streets and highways in no need of repair would be broken up and repaved. The Department of Transportation and other government agencies would spend millions on signs advertising the supposed benefits of the American Recovery and Reinvestment Act. I saw one of them on Roosevelt Island in Washington, D.C. It boasted that the federal park would be receiving a generous grant to facilitate the involvement of local youth in the removal of “non-indigenous plants.” In other words, kids would be weeding. We need a sign to announce that? And this was going to save the economy?

Then there was American Recovery and Reinvestment Act project number 1R01AA01658001A, a study entitled: “Malt Liquor and Marijuana: Factors in their Concurrent Versus Separate Use.” I’m not making this up. This is a $400,000 project being directed by a professor at the State University of New York at Buffalo. The following is from the official abstract: “We appreciate the opportunity to refocus this application to achieve a single important aim related to our understanding of young adults’ use of male [sic] liquor (ML), other alcoholic beverages, and marijuana (MJ), all of which confer high risks for experiencing negative consequences, including addiction. As we have noted, reviews of this grant application have noted numerous strength [sic], which are summarized below.”

So what were those strengths? “This research team has previous [sic] been successful in recruiting a large (>600) sample of regular ML drinkers.” Also, “the application is well-written.” Well-written? With three spelling mistakes? But who am I to judge? As for the other strength, there is no question that the team’s recruitment had been strong. But is that really a qualification for federal money? After all, they were paying people to drink beer!

These same scholars were behind a groundbreaking 2007 study that used regression analysis to discover that subjects who got drunk and high were more intoxicated than those who only abused alcohol. The new study pays these pot-smoking malt-liquor drinkers at least $45 to participate. They can buy four beers per day for the three-week project—all of it funded, at least indirectly, by the American taxpayer.

Perhaps not surprisingly, when President Obama visited Buffalo in May, he chose to highlight other stimulus grants. On the other hand, he could have pointed out that the beer money goes right back into the economy. Think of all those saved or created jobs! In any case, the findings of this new study are expected to echo those of the first study, which found: “Those who concurrently use both alcohol and marijuana are more likely to report negative consequences of substance use compared with those who use alcohol only.” Reading results like this, I tend to think that those who concurrently get drunk and high are also far more likely to believe the stimulus is working.

And have I mentioned that the estimated cost of the stimulus was later increased from $787 billion to $862 billion? That’s a cost underestimate of nearly ten percent. Anyone in private business who suddenly had to come up with ten percent more in outgoing funds than previously anticipated would likely go out of business.

All of this set the stage for a revolt. The accidental founding of the Tea Party movement took place in February 2009, when CNBC commentator Rick Santelli let loose a rant against the stimulus package, and in particular the proposal to subsidize what he called “the losers’ mortgages.” He proposed a ceremonial dump of derivative securities into Lake Michigan, and a few hours later a website popped up calling for a Chicago Tea Party. The video clip raced around the Internet, and it was soon clear that many average Americans were furious about the massive new spending bill and the plan to subsidize bad mortgages.

The stimulus was bad, but by itself it was probably not enough to sustain an entire movement. This is why the larger context matters: Under President Obama, federal spending has been growing at an unprecedented pace. We are adding $4.8 billion to the national debt every day. The long-term viability of Medicare and Social Security isn’t merely uncertain—as so many analysts would have us believe. In fact, their failure is a sure thing without structural changes. By adding a massive new entitlement with the health care bill, we are simply going to go broke faster. Americans understood much of this even before Mr. Obama was elected.

Consider this story from the recent presidential campaign: In July 2008, Republican nominee John McCain stopped in Belleville, Michigan, to par-ticipate in a town hall. After several friendly questions, he took one from Rich Keenan. Wearing a shirt with an American flag embroidered over his left breast, Keenan told McCain that he would not be voting for Obama. But then he said: “What I’m trying to do is get to a situation where I’m excited about voting for you.”

The audience laughed, and many in the crowd nodded their heads. Keenan explained that he was “concerned” about some of McCain’s views, such as his opposition to the Bush tax cuts and his views on the environment. Keenan allowed that he was grateful that McCain had begun taking more conservative positions. But he concluded: “I guess the question I have, and that people like me in this country have, is what can you say to us to make us believe that you actually came to the right positions? We want to take you to the dance, we’re just concerned about who you’re going to go home with.” The audience laughed again. McCain laughed, too, but then he grew serious: “I have to say, and I don’t mean to disappoint you, but I haven’t changed positions.” He defended his vote against the Bush tax cuts and, at some length, reiterated his concerns about global warming. Later, he went out of his way to emphasize his respect for Hillary Clinton and boast about his work with Joe Lieberman, Russ Feingold and Ted Kennedy.

I talked with Rich Keenan after the town hall. He described himself as a conservative independent. He said he often votes Republican but does not consider himself one. He added, “I do think that there are millions of Americans out there like me who are fairly conservative, probably more conservative than John McCain, and I think a lot of them are concerned about what’s going to happen if he does get elected.” Keenan was right. There were millions of people out there like him—conservatives, independents, disaffected Republicans, and many of them stayed home on election day. These people form the heart of the Tea Party movement.

In recent years, the Republican Party has seen its approval levels sink to new lows. In 2005, 33 percent of registered voters told Gallup they considered themselves Republican. By 2009, that number was 27 percent. The number of voters who identified themselves as independent showed a corresponding rise. But what’s interesting is that over that same time-frame, the number of voters self-identified as conservative stayed relatively constant: 39 percent in 2005 and 40 percent in 2009. (Self-identified liberals constituted 20 percent of respondents in both 2005 and 2009.) So even as the number of self-identified Republicans declined and the number of self-identified independents grew, the number of self-identified conservatives was constant. Of course, it’s too simple to postulate a one-for-one swap, but the trend seems clear. The Tea Party movement arose in an environment in which a growing number of Americans believed neither party was voicing its concerns.

All of this has liberals in the mainstream media and elsewhere flummoxed. At first they were dismissive. Think of the footage of Susan Roesgen of CNN going after Tea Party enthusiasts at a Chicago rally, suggesting they were irrational and stupid. And consider a few of the many other examples:

Eugene Robinson of the Washington Post wrote: “The danger of political violence in this country comes overwhelmingly from one direction—the right, not the left. The vitriolic, anti-government hate speech that is spewed on talk radio every day—and, quite regularly, at Tea Party rallies—is calibrated not to inform but to incite.”

MSNBC’s Ed Schultz said: “I believe that the Tea Partiers are misguided. I think they are racist, for the most part. I think that they are afraid. I think that they are clinging to their guns and their religion. And I think in many respects, they are what’s wrong with America.”

Actress Janeane Garofalo: “This is about hating a black man in the White House. This is racism straight up. These are nothing but a bunch of tea-bagging rednecks.”

Comedian Bill Maher: “The teabaggers, they’re not a movement, they’re a cult.”

Perhaps the most stunning comment came from prominent Democratic strategist Steve McMahon: “The reason people walk into schools and open fire is because of rhetoric like this and because of attitudes like this. The reason people walk into military bases and open fire is because of rhetoric like this and attitudes like this. Really, what they’re doing is not that much different than what Osama bin Laden is doing in recruiting people and encouraging them to hate America.”

We’ve seen this before. On November 7, 1994, the Washington Post ran an article about the loud, hateful fringe on the right: “Hate seems to be drifting through the air like smoke from autumn bonfires. It isn’t something that can be quantified. No one can measure whether it has grown since last year, the 1980s, or the 1880s. But a number of people who make their living taking the public’s temperature are convinced it’s swelling beyond the perennial level of bad manners and random insanity. It’s fueled, they say, by such forces as increasingly harsh political rhetoric, talk radio transmissions, and an increasing sense of not-so-quiet desperation.” The next day, Republicans took Congress.

Are today’s Tea Party supporters on the radical fringe? In a National Review/McLaughlin Associates poll conducted in February, six percent of 1,000 likely voters said that they had participated in a Tea Party rally. An additional 47 percent said they generally agree with the reasons for those protests. Nor is the Tea Party movement “monochromatic” and “all white,” as Chris Matthews claimed. Quite the contrary: the National Review poll found that it was five percent black and 11 percent Hispanic.

Perhaps that poll could be dismissed as the work of a right-leaning polling firm and a conservative magazine. You can’t say that about the New York Times and CBS. Their poll, which has a long history of oversampling Democrats, found that Tea Partiers are wealthier and better educated than average voters. It also found that 20 percent of Americans—one in five—supports Tea Parties. That’s an awfully big fringe.

Other polls confirmed these findings: a Washington Post/ABC poll found that 14 percent of voters say the Tea Party is “most in synch” with their values; 20 percent say Tea Parties are “most in tune with economic problems Americans are now facing.” The most interesting poll, in my view, came from TargetPoint Consulting, which interviewed nearly 500 attendees at the April 15, 2010, Tax Day rally in Washington, D.C. Here are some results:

Tea Partiers are united on the issues of debt, the growth of government, and health care reform.

They are socially conservative on the one hand and libertarian on the other, split roughly down the middle.

They are older, more educated, and more conservative than average voters, and they are “distinctly not Democrat.”

This new information complicated the mainstream media’s narrative about the Tea Party movement. This was not a fringe. Nancy Pelosi, who had earlier dismissed Tea Parties as “Astroturf”—meaning fake grassroots activism—revised that assessment, telling reporters that, in fact, she was just like the Tea Partiers.

This brings us to the present day. The president’s approval ratings are low, and Congressional Democrats’ are even worse. Members of the president’s party are not only running away from him in swing districts, but even in some relatively safe ones. Many analysts are suggesting that control of the House of Representatives is in play, and perhaps even that of the Senate.

This dissatisfaction flows directly from the president’s policies and those of his party. It is not simply “anti-incumbent,” as many of my press colleagues would have it. This voter outrage—and it is outrage, not hate—is specific and focused: Americans are fed up with big government and deeply concerned about the long-term economic health of their country. The stimulus was unpopular, and most Americans do not believe it’s working. Obama’s health care plan was unpopular when it passed. The American people understood the rather obvious point that it wouldn’t be possible to cover 30 million additional people, improve the care of those with insurance, and save taxpayers money, all at the same time.

Does all of this add up to big Republican gains in November? Not according to the mainstream media. The Boston Globe’s Susan Milligan recently wrote: “The Tea Party movement is energizing elements of the Republican Party and fanning an anti-Washington fervor, but the biggest beneficiaries in the mid-term elections, pollsters and political analysts say, could be the main target of their anger: Democrats.” CBS News reported the same thing just a few days later. What nonsense! I think there is little question that the Tea Parties—and the enthusiasm and energy they bring—will contribute to major Republican gains in November.

One final point: For many Tea Partiers, the massive and unconstitutional growth of government is the fundamental issue. But I think there’s something deeper, too. After her husband had won several primaries in a row in the spring of 2008, Michelle Obama proclaimed that for the first time in her life she was proud of her country. It was a stunning statement. It also foreshadowed what was to come: Since Barack Obama took office in January 2009, he has devoted much of his time to criticizing his own country. He apologizes for the policy decisions of his predecessors. He worries aloud that the U.S. has become too powerful. He has explicitly rejected the doctrine of American exceptionalism.

And this is not mere rhetoric. For the first time ever, the U.S. is participating in the Universal Periodic Review—a United Nations initiative in which member countries investigate their own nation’s human rights abuses. The State Department has held ten “listening sessions” around the U.S. during which an alphabet soup of left-wing groups aired their numerous grievances. These complaints are to be included in a report that the U.S. will submit to the United Nations Human Rights Council. It will be evaluated by such paragons of human rights as Burkina Faso, Saudi Arabia, Pakistan, China, and Cuba.

When President Obama spoke before the United Nations General Assembly in September 2009, he declared that a world order that elevates one country or group of countries over others is bound to fail. So he’s changing that order. If his domestic policy priority is the redistribution of wealth, his foreign policy priority seems to be the redistribution of power.

Most Americans don’t agree with the president’s priorities. And many of these Americans are now active in the Tea Party movement, a movement that has succeeded in starting a serious national conversation about a return to limited government.

* * *


Reprinted by permission from Imprimis, a publication of Hillsdale College. SUBSCRIPTION FREE UPON REQUEST.

 
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