Month: February 2016

The suspension of Rand Paul’s 2016 presidential campaign is bad news when it comes to the crucial issues of constitutional law and the future of the U.S. Supreme Court. In stark contrast to his fellow GOP candidates, Paul repeatedly championed libertarian legal ideas and priorities, such as vigorous judicial enforcement of economic liberties and widespread judicial protection for the unenumerated right to privacy. Paul’s exist means that there’s no longer a major-party candidate challenging the reigning legal orthodoxies on both the left and the right.

Rand Paul first revealed his libertarian legal tendencies during his famous 13-hour Senate filibuster in March 2013, in which the Kentucky Republican invoked the Supreme Court’s 1905 decision in Lochner v. New York as a positive example of the judiciary rejecting majority rule and standing up for unenumerated individual rights. In Lochner, the Supreme Court struck down an economic regulation because it violated the right to liberty of contract protected by the 14th Amendment. “The powers given to the government are few and defined,” Paul declared from the Senate floor. “The freedoms left to you are many and undefined. And that’s important.” Paul’s riff on Lochner came as part of a larger discussion about getting the government to stop trampling on the Constitution.

Less than two years later, Paul went further, telling an audience of conservatives that the legal philosophy known as judicial restraint has been a dismal failure. As an alternative, Paul urged conservatives to support an “activist” Supreme Court that would aggressively police the other branches of government. “I’m a judicial activist when it comes to Lochner,” Paul declared. “I’m a judicial activist when it comes to the New Deal. But I’m also a judicial activist when it comes to Brown [v. Board of Education]. I think the [Supreme Court] was right to overturn state governments that were saying separate but equal is fine.” When governments “do wrong we should overturn them,” Paul said. “There is a role for the Supreme Court to mete out justice.”

Paul also used that speech as an opportunity to champion the right to privacy, a right that many top conservative legal theorists do not recognize, since the right itself is not spelled out in the text of the Constitution. But as Paul argued on a different occasion, “Your rights are many and infinite. Your rights are unenumerated and you do have a right to privacy.”

Such views have long been championed by libertarian lawyers, law professors, and activists, who maintain that conservative doctrines of judicial restraint and judicial deference have resulted in the scales of justice being tipped overwhelmingly in favor of big government.

Unfortunately for such libertarians, the remaining GOP contenders are not so attractive on legal issues.

Donald Trump, for example, is an outspoken advocate of eminent domain abuse who has repeatedly praised the Supreme Court’s 2005 decision in Kelo v. City of New London, a disastrous ruling that undermined property rights while empowering government officials and their crony capitalist allies.

Ted Cruz, meanwhile, stands in direct opposition to the libertarian legal movement on the central issue of economic liberties and the Constitution. For example, in July 2015 Cruz attacked the Supreme Court’s Lochner decision as a regrettable example of the Court’s “imperial tendencies” and “long descent into lawlessness.”

Unfortunately for Cruz, he undercut his own position in that speech by mangling the facts of Lochner, which he incorrectly described (while reading from a prepared text) as a case where “an activist Court struck down minimum wage laws” on behalf of an individual right “that has no basis in the language of the Constitution.” (Cruz’s opposition to Lochner also happens to be indistinguishable from Barack Obama’s negative view of the case.)

In reality, Lochner was not a minimum wage case at all; it was a maximum working hours case, plain and simple. What’s more, there is significant historical evidence showing that the individual right at issue in Lochner—liberty of contract—is deeply rooted in the text and history of the 14th Amendment.

With Rand Paul now gone from the 2016 race, the libertarian legal movement has lost its most promising potential ally in the White House. If any GOP candidate was likely to nominate libertarian-leaning judges and shake up the status quo, Rand Paul was it.

Rand Paul is out, and with him the hope that criminal justice reform will be anything more than a signaling exercise (on both sides) in the 2016 presidential campaign.

Ted Cruz, whose campaign strategy has been to adopt whatever ideology fits the voting population he’s trying to woo on that particular day, has already abandoned much of his criminal justice reform positions in the quest to win social conservative votes. He’s flip-flopped on marijuana too—he now opposes the federal government cracking down on states that have legalized it. That may be one of the few criminal justice reform bright spots left in the Republican race.

John Kasich is the other. The Republican governor of Ohio has actually made progress in his state on criminal justice reform. A state police-community advisory panel that wasn’t just packed with political cronies came up with nearly two dozen recommendations, including limiting use of force policies and requiring the use of body cameras. Unfortunately, it’s part of his record that doesn’t often come up in conversations about the Republican race.

Most of the remaining candidates have spent almost no time substantively engaging issues of criminal justice reform. A year ago it looked like criminal justice reform would be an unavoidable topic in the 2016 elections. “There is an emerging consensus that the time for criminal justice reform has come,” Marco Rubio wrote in a book released by the Brennan Center that featured essays from many of the presidential candidateds. “A spirited conversation about how to go about that reform has begun.”

And now the conversation is over. The blame belongs to the candidates but also to voters. The presidential candidates who have succeeded in getting this far have largely done so by appealing to their bases’ emotions—class envy for Democrats and fear for Republicans.

Dr. Ben Carson has used his upbringing in inner city Detroit to call on “intensifying” the war on drugs. In a BET candidate forum, he said restoring respect between police and the communities they serve was important, and blamed police reform activists on “sowing division.” He did, at least, use the venue to oppose mandatory minimum sentencing laws.

“We need to take care of police officers because they take care of us,” Carson said, avoiding the issue of police unions like every other Republican who is usually skeptical of public unions in other contexts. “For those who don’t like police officers, I’d like you to think about what your life would be like if they weren’t around for 24 hours. It would be awful.” Carson doesn’t sound like someone who understands how the small government principle of having less laws would apply to the issue of police brutality.

Marco Rubio, now the closest thing the establishment has to a frontrunner, has promised to crack down on states that legalized marijuana. And while he’s said he knows people who have been racially profiled and found it “deeply disturbing,” he didn’t see a role for Congress in the debate about race and policing. So much for a conversation.

That betrays a poor grasp of the problems surrounding police brutality, and a too-eager willingness to ignore the role the federal government has played in militarizing local police over the last thirty years. Like Carson, Rubio also ignores the federal government’s role in propagating the idea of more laws and imposing more controls on people, controls that trickle down and are ultimately the driving forces of many of the most questionable interactions between police and residents.

As governor of Florida, Jeb Bush pushed a strict mandatory-minimum sentencing proposal that would require a mandatory sentence of 20 years if a gun was fired in the commission of certain felonies, and 25 to life if the use of that gun caused an injury or death. He supports more spending the war on drugs, and has argued narcotrafficking and “lawlessness” have hampered economic growth. But de-escalating the drug war and even legalizing marijuana would have profound positive effects on economic growth and would do more to end lawlessness than any amount of spending on the drug war ever could.

It’s important to remember the situation is not much better on the Democratic side. Sen. Bernie Sanders (I-Vt.) has hit most of the right notes on mass incarceration and criminal justice reform, but the union booster is highly unlikely to do anything to tackle the power of the police and corrections officer unions that profit off the prison-police-industrial complex and work to maintain that status quo. Instead he fetishizes the “problem” of private prisons, which account for just 7 percent of prison beds in the U.S. and can actually be incentivized, via the proper contracts, to reduce recidivism by, for example, getting paid less if their charges end up back in prison. Bernie Sanders says he wants socialism and that that’s no big deal because things like police departments are socialist institutions. Stated differently, state violence is socialism.

And Hillary Clinton is awful. Her husband didn’t apologize for the 1994 crime bill and its contributions to the ballooning prison population and the overpolicing of minority communities until last year, in that brief moment the political class thought voters might hold them accountable for the failures of the criminal justice system to protect constitutional rights. It never happened. Clinton’s supporters refuse to engage the Clintons’ position on criminal justice and how it exacerbated the problem of police violence. Instead, the 90s are written off as “ANOTHER GODDAMN WORLD ENTIRELY.”

That’s probably why Martin O’Malley, the former Baltimore mayor and Maryland governor, escaped the presidential race unscathed by his fundamental role in creating a law and order culture that systematically violated the constitutional rights of black people in Baltimore. That history should have made O’Malley a non-starter in the Democratic race. Instead, his lack of celebrity and inability to channel unbridled socialism was his downfall. In the meantime, the strongest Democratic candidate on criminal justice reform, Jim Webb, who was an advocate for criminal justice reform before that became the it issue of the moment, earned no traction. Instead, a comment pointing out that the right to defend yourself shouldn’t be limited to the rich, caused the left to throw a fit about him, and he dropped out shortly thereafter. It’s not a good sign for how engaged the base that insists it cares about criminal justice reform the most actually is.

While Sen. Rand Paul (R-Ky.) has dropped out of the Republican presidential race, he will not be endorsing any other particular candidate as the primaries crawl on, said Paul’s campaign strategist Doug Stafford in a telephone press conference with Paul’s top campaign staff this morning.

Paul does, though, intend to endorse whoever the Republican Party eventually settles on.

That’s something his father Ron didn’t do, and to at least a small extent that difference in political styles and attitudes may have kept big portions of Ron’s support from surrounding Rand, in either giving or polling. I asked Stafford what the Rand campaign thought might have gone wrong with sustaining the perceived “Ron Paul movement.”

Stafford was sure that the “Ron Paul movement does exist” but couldn’t say precisely why Rand didn’t seem to fully re-ignite it. “Voters shift from time time and what’s most important to them is hard to capture” but he did see that there were many hundreds of kids still volunteering eagerly for Rand.

Most importantly, Stafford is sure that the issues Rand brought to the fore are still those that should energize anyone who was really into the Ron Paul thing. While “there are many issues that decide how people are going to vote, some within a candidate’s control and some not” he reiterated what Rand has said: that the liberty movement is “definitely alive, marching on, and Rand will continue to be its voice in the Senate.” 

Stafford admits even Bernie Sanders might have had some appeal to the old Ron Paul coalition, especially if they were only/mostly in it for the foreign policy, and that “we saw for ourselves, sometimes [students] seem to be attracted to a candidate who spoke their minds directly, who seemed not quite the normal politician.”

But he admits, when asked if Cruz might have captured some of the elusive “Ron Paul vote,” that “I don’t know if anyone knows where people went. It’s hard to tell. Someone might have voted for Ron and went somewhere else, to others in the Republican Party or even to another party if they were purely foreign policy supporters.” That said, Stafford is confident that “as we talked to liberty voters across Iowa, it is clear to us Rand was standing up for their issues.”

Asked about their prediction of 10,000 student caucusers for Rand in Iowa after fewer than 9,000 total votes went to him, well, “we came short in the number of folks who came out, which is not unheard of in trying to do things with organizing students” and other campaigns were fighting for same votes so “we were not operating in a vacuum” but still think the student efforts there “lit a fire of ideas” in thousands of kids and was good preparation for “a future fight for liberty.”

Chip Englander, Paul’s campaign manager, thinks that even their 5th place showing proves their organization paid off, beating “every single governor” in the race including ones who spent millions of tens of millions in advertising. But “macro messaging things” that he did not specify were “beyond their control, and that happens in political campaigns. 

Why did Rand Paul quit? Mostly, he realized there was little chance of winning. “We think he finished well for Iowa…but not well enough to seem like he had a chance at the nomination.” Stafford stressed the good the campaign did for the ideas of liberty in general, how especially in the debates Paul was a passionate and forceful voice for his issues, from foreign policy to the Fourth Amendment to criminal justice reform. If not for Paul, in no case would his unique perspectives on those matters have been aired.  

Paul wants to return to concentrating on being a “leader of an ideological movement and a leader in the Senate” and the trajectory of the race post-Iowa seemed beyond his ability to shape. 

Even in immediately forthcoming New Hampshire, which most people assumed Paul would try to fight through, while the campaign believed their ground game was solid, the media attention and money that the leading candidates had, plus the blow of being blocked from the debate prior to the primary, made them decide that “ground game couldn’t overcome numerous obstacles in our path a little larger than that.” Chip Englander also alluded as above to not-precisely-specified “macro message” issues, which might mean, though no one said it this bluntly, that Paul’s message just isn’t what a lot of Republican voters want to hear right now.

Of course, Trump changed everything, and as Stafford said “took all the oxygen out of the room” and commanded the discussion. He admitted it was “very difficult to have what you believe is a stronger message and a stronger candidate but you can’t break through because celebrity became the largest thing.” Paul faced a “brand new environment, for most involved in presidential politics we’ve never seen anything like it” and it hobbled Paul’s ability to take flight “in a critical time of the race.”

Stafford also acknowledged that the seeming rise of ISIS and the California terror attacks may have at least for a while shifted any possible GOP attraction to Paul’s more measured foreign policy. While Stafford believes that hawkishness is “not an issue the Republican Party is fully on one side of the other,” that it is likely that current events affected the ebb of public opinion in this “time of extreme events” that might have made Paul’s calmer approach less appealing.

In a separate email, Steve Grubbs, who ran the Iowa operation for the campaign, said that “Senator Paul is very practical. With limited financial resources and the unlikely potential of making the debate stage this week, he chose to make the decision to refocus his time and efforts on his senate campaign. He believes in doing his job as senator which also limited his opportunity to campaign in New Hampshire this week.”

Stafford in today’s call also stressed that Paul was in D.C., on the Senate floor, doing his job, and had maintained a 95 percent voting record while running for president. This is something his people hope and assume will help ensure that his Kentucky voters have no interest in firing him from that job, the race for which will take up Paul’s campaigning time for the rest of 2016. Chris LaCivita with the campaign insists that Paul will keep his presidential issues alive in the Senate race and that Kentucky’s Democrats are on the ropes this year and worried more about their state positioning than able to meaningfully challenge Rand for the Senate seat. The Paul campaign continues to insist the shift from primary to caucus for Kentucky, which the campaign helped finance and was intended to allow Rand to be on ballot for both president and Senate, is still a good idea for the state as it moves them further up in time when their vote might still matter to the outcome. 

From the SuperPAC world supporting Paul, Edward Crane, co-founder of the Cato Institute and chief of PurplePAC (which ran a TV ad for Rand in Iowa in the week prior), is disappointed by the whole thing. “Rand dropping out is a blow to the GOP and to the nation,” Crane wrote in an email this morning.  

“A plurality of Americans support market (not crony) capitalism, are socially tolerant and skeptical of the efficacy of the U.S. trying to be the world’s policeman,” Crane believes. “Rand should have been the candidate of that plurality but he failed to mobilize it.”

How did he fail? “The summer downplaying of his libertarianism when he should have been escalating it was huge mistake.  A huge lost opportunity.  I have tremendous respect for what Rand tried to do — the psychological, physical and financial stress are substantial — but he is not a natural leader.  He came across as someone who would rather not be there.  And who can blame him?”

Ultimately, Crane is “glad to have him in the Senate.” While PurplePAC still has what Crane calls “some” money, he sees it as in effect held like a bank for his donors and supporters needs, and later “we may play in some congressional races.”

Did police avert a mass shooting in the picturesque mountain town of Whitefish, Montana, when they apprehended a young man following a string of disturbing social media posts? A handful of citizens and activists believe so.

“We do a lot of hand-wringing and praying and calling for action after school shootings. Here’s a case where, potentially, a school shooting was averted,” says Francine Roston, one of two rabbis living in Montana’s Flathead Valley.

When does constitutionally protected free speech cross the line into threatening speech? For deeper look at this case and its implications for free speech in the social media age, watch the Reason TV video above, and check out Elizabeth Nolan Brown’s previous coverage.

Approximately 7:37. Produced by Zach Weissmueller. Field producers are Paul Detrick and Alex Manning. Additioinal camera by Alexis Garcia. Music by Chris Zabriskie and Lee Rosevere. Additional photography provided by Greg Lindstrom and the Flathead Beacon.

Full text and downloadable versions at the link below.

View this article.

Rhode Island’s Brown University has long been recognized as a punchline for virtually any and every joke about political correctness (its reputation as a safety school for the dimmer lights of the Kennedy clan also doesn’t help people take it more seriously).

Now the school has officially renamed Columbus Day as “Indigenous People’s Day.” The school stopped using the term Columbus Day back in 2009. Yesterday, the faculty voted for the new name, citing the following reasons:

Prior to the vote, faculty discussed the following goals presented by NAB [Native Americans at Brown]when advocating for the change:

• to express the need for opportunities to increase visibility of Native Americans and recognition of Native Americans at Brown;
• to celebrate the contributions of indigenous communities and cultures; and
• to acknowledge a legacy of displacement and oppression of Native American peoples.

Full account here (hat tip: Insider Higher Ed).

As a private university, Brown is of course welcome to do whatever it wants for the most part and the faculty’s stated goals are all swell by me. Just 0.4 percent of the undergrad student body (and just 0.1 percent of the grad student body) identify as “American Indian of Alaska Native.” But there’s an irony here, too, that goes beyond simple political correctness, as the elite (read: expensive) educational institution is brushing aside one commemoration of ethinc aggrievement for another.

Columbus Day is far less a celebration of the New World’s objectively racist and morally awful “discoverer” than it is a celebration of Italian Americans (the Genoese explorer Christopher Columbus sailed for Spain, arguably the most brutal of the European colonial powers in the Americas). Although the first celebration took place in 1792, it only became a national holiday (and one fully attached to Italian Americans) in 1937, after intense lobbying by the Knights of Columbus, a Catholic fraternal organization highly identified with Italians. In other words, Columbus Day is an ethnic-heritage celebration every bit as fake—and purely American—as St. Patrick’s Day or Cinco de Mayo.

While Italian Americans have faced nothing like the systematic discrimination that Native Americans have, it’s not as if they’ve been in the driver’s seat for much of American history, especially when the nation’s worst crimes were being waged against Indians. For instance, Italians were singled out not only as a reason for New York City’s early 20th century gun-control laws (they come from the land of the vendetta, don’t you know, and are really emotional!) and were targeted by explicitly racist immigration laws passed in the 1920s (Africa begins at Rome and all that, amirite?).

So while Brown’s overwhelmingly wealthy students and faculty congratulate themselves for pushing aside one relatively powerless ethnic group in the name of an even more powerless group, they might at least give a nod to the idea that pitting groups against one another like this is exactly how the really powerful keep their own power from being challenged.

Take it away, Sopranos: