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Rights for a River? An Effort to Undermine Democracy and Make the Law Unfair

Rights for a River? An Effort to Undermine Democracy and Make the Law Unfair

This article originally appeared in the Colorado Springs Gazette.

An environmental organization is asking a court to grant a river status as a “person” with the rights of personhood, thereby launching an attack on judicial fairness, the rule of law, and democracy.

The group is Deep Green Resistance, and it argues the Colorado River should have rights of its own. On what reasonable basis Deep Green purports to know better than others what the river needs is anyone’s guess. How a judge would know better what the river needs than local users, lawmakers, and residents is another mystery. But observe this significant fact: The river has not actually filed the suit. Deep Green is doing the legal work.

Deep Green Resistance has to do the work because rivers can’t prosecute lawsuits. Nor can animals, trees, or other entities for which pressure groups sometimes claim “rights.” So what’s really behind such suits? The unstated goal is to change the balance of power among humans—and to undermine democracy and the rule of law.

Suppose I convince a court to grant “rights” to the entity known as “the U.S. economy.” The “rights” I convince the court to adopt include the right to prosper, grow, and flourish. Thereafter, a dispute arises over whether a tract of land should be developed. A developer representing the owner wants to put up a factory. A neighborhood organization claims the tract is a valuable wetland and, under state law, should be preserved.

In the ensuing lawsuit, each side has certain claims and privileges under existing law. But if the prospective developer can introduce “the economy” into the lawsuit along with its “rights to prosper, grow and flourish,” then the developer has the neighbors at an unfair disadvantage from the start. All through the lawsuit, the neighbors will have to fight uphill.

With the sides flipped, that’s what Deep Green wants to do: create a crooked system in which its opponents are always at an unfair disadvantage.

Aside from its unfairness, there are two other negative effects that would be caused by granting “rights” to non-humans.

First, skewing the courts to favor some people and disfavor others undermines public respect for the judiciary. People understand the courts are supposed to administer “equal justice under law,” and they look at them suspiciously when the courts act unfairly. Right now, the courts don’t need any more bad press; the public is already skeptical about judges because so many have ventured into policy making.

Second, granting “rights” to non-humans replaces democracy with oligarchy. When judges define the scope of an object’s “rights,” they are effectively making legislative policy. Legislators are democratically elected to make policy, but judges are not. Judges are chosen to administer the law, and they usually are either appointed or chosen in ways that severely restrict voter choices.

A good example of what not to do arises from the state of Montana. Although that state’s courts have not created “rights” for things, they have used vague and undefined “rights” in the state constitution to engineer a massive policy making transfer from the democratically elected branches of government to themselves. As a result, much policy is made by a judicial oligarchy rather than by elected officials.

Bottom line: Seeking “rights” for non-humans is an authoritarian ploy to undercut democracy and the rule of law. The court should toss Deep Green’s complaint. And it should assess costs against the group for bringing a frivolous lawsuit. If the court does not do so, Congress and state legislatures should move quickly with corrective legislation.

Why Removing Historical Monuments is a Bad Idea

Why Removing Historical Monuments is a Bad Idea

This article originally appeared in The Hill.

While most Americans watch helplessly, our stateside Taliban vandalizes and removes long-standing public monuments. As some commentators point out, this destruction weakens our consciousness of history, including history’s darker side.

Even more importantly, however, erasing monuments of once-revered figures upsets an unspoken, but long-prevailing, consensus governing our decisions of whom to commemorate.  The consensus renders the commemoration process more meaningful and less political than it otherwise would be.

The standard traditionally applied is as follows: When deciding whom to commemorate—by statues, place names, monuments, holidays, currency, or coins—we select individuals who performed extraordinary feats that, on balance, made the world a better place. We disregard or discount those faults common to the individual’s time and place. We do not erect monuments to people who performed extraordinary feats that were unquestionably evil, even if their characters included some virtuous traits. Thus, George Washington is memorialized in statues and place names, although he held slaves. Adolph Hitler gets none, although he was kind to dogs.

George Washington is one example of the traditional standard in action. Other examples are the decisions to name towns in New York State, Illinois, and Indiana after the Roman consul, Marcus Tullius Cicero. Cicero was a great orator, an outstanding lawyer, a spokesman for balanced government, and the single person most responsible for transmitting the Greek philosophical tradition to Western Europe. It does not disqualify him that he selected a husband for his daughter rather than allowing her to select one for herself. Parental selection of spouses is anathema today, but in Cicero’s society, “everybody did it.”

Stupendous vision, energy, competence, and courage distinguished Christopher Columbus from others of his generation. His explorations united a world previously divided by hemispheres. His disreputable actions reflected attitudes and practices common to his society. Thus, we honor Columbus by monuments, place names, and a federal holiday.

Our domestic Taliban has made Robert E. Lee a target, allegedly because he held slaves and fought for his home state rather than the nation. But so did tens of thousands of others similarly situated. Lee was distinguished from his contemporaries by an exemplary career, both in the U.S. and Confederate armies, of competence and honor. In later years, Lee also distinguished himself as an educator: As president of the institution that is now Washington and Lee University, he was largely responsible for fashioning the modern college honor code.

There are at least two reasons for not permitting contemporaneous vices to disqualify historical figures from favorable commemoration.  First, virtually everyone acts in ways consistent with contemporaneous social norms—norms of which later generations may disapprove. Common faults are, by definition, common. If we disqualified all figures because we now reject their society’s practices, we would commemorate few people indeed, and we would deprive ourselves of many sources of inspiration.

Second, because almost everyone conforms in most respects to prevailing social practices, disqualification for such conduct is necessarily arbitrary and driven more by politics than by merit. The fact that a particular vice prevailed in a person’s place and time becomes an excuse for stripping recognition from people whose lives contradict the propaganda of those in power. Today “progressives” vandalize statues of Columbus and Lee, allegedly because of actions motivated by racism. Tomorrow a “white nationalist” majority may uproot monuments to Martin Luther King, allegedly because of his adulteries and other indiscretions. Or a religiously-conservative majority may blacklist outstanding women who in private life opted for legal abortions.

Admittedly, the traditional consensus is not an infallible guide to deciding whom to commemorate. For one thing, it can be a close question whether a person’s extraordinary feats made the world a better place: Franklin D. Roosevelt is widely commemorated, even though scholars still argue over whether his leadership during the Great Depression actually improved American life. Politics plays a role in answering close questions.

In some cases, moreover, politics induces decision makers to ignore the traditional standards. It is hard to explain on other than political grounds why so many more monuments and places are dedicated to John F. Kennedy than to much better presidents.

But the traditional standard does help minimize political manipulation of history. Perhaps that is precisely why the standard is flouted by those who want to politicize everything.

 

Balancing Local Control and Individual Rights

Balancing Local Control and Individual Rights

This article originally appeared in The Hill.

“Local control” is something politicians promote or ignore at their convenience. The U.S. House of Representatives, led by a Republican majority supposedly dedicated to returning power to the states, just voted to override state design and safety rules for self-driving cars. In Colorado, opponents of hydraulic fracturing (fracking) began touting “local control” over fracking only when they lost a bid for a statewide ban. And their so-called “local control” proposal would have allowed cities and counties only to tighten anti-fracking rules, not to loosen them.

Political hypocrisy aside, keeping government close to the people is generally a good idea. Most of the famous bursts in human intellectual and technological progress have occurred in places featuring considerable — sometimes extreme — political decentralization. They have included the city states of ancient Greece and of Renaissance Italy, 17th and 18th century Britain, and 19th century America, among others.

So when is local control good in reality rather than merely as a slogan?

In drafting and ratifying the U.S. Constitution, the American founders devoted much principled consideration to this question, and as long as their formula was respected the system usually worked very well. Indeed, the seeds of current federal dysfunction were sown when the courts stopped enforcing the Constitution’s boundaries on federal power.

Based on our experience under the Constitution, therefore, some argue for granting cities and counties the same freedom from state control as states are supposed to enjoy from federal control.

However, the analogy is not wholly valid. This is not merely because local governments are creations of state government, while the states are semi-sovereignties. A more important reason is that local governments do not feature the checks and balances — and therefore the protections for individual rights — characteristic of all, or almost all, states.

All states but one (Nebraska) have bicameral legislatures. But nearly all local councils are small, unicameral bodies. State constitutions divide power among the legislative, executive, and judicial branches. Local charters usually blend legislative and executive authority, and in practice municipal law enforcement and courts may serve as revenue-raising agencies.

Most states harbor a variety of special interests (or in James Madison’s term, “factions”) that monitor and check each other. Local units frequently are dominated by so few special interests that they can readily (in Madison’s words) “concert and carry into effect schemes of oppression.” Most state governments are monitored by a vigorous local press; many municipalities are too small to support an effective working press.

Under such conditions, it is no wonder that “local control” may become local tyranny.

On the other hand, the Constitution does offer at least one idea for how to divide state and local spheres: The Constitution grants the federal government extensive authority to protect individual rights from state assault.

The original Constitution banned states from adopting certain kinds of laws, such as ex post facto laws, that violate individual rights. The document also required the federal government to ensure that states not degenerate into monarchies or dictatorships.

Constitutional amendments have carried this further. Today the Constitution allows the federal government to prevent states from re-instituting slavery or unduly infringing voting rights. In addition, the Fourteenth Amendment permits the federal government to interfere if a state denies equal protection of the laws or violates certain protections in the Bill of Rights.

This allocation of federal and state power offers a clue for allocating state and local power. Local governments should be free to operate schools, parks, and police forces, but the state should ensure local government does not oppress individual rights.

Some states have been implementing this idea. Several have passed or are considering laws to protect the free speech rights of students at state universities, which are functionally a kind of local government. Colorado recently adopted a measure curbing municipal judges from abusing their fining power. After a long struggle the Montana legislature restricted cities’ practice of effectively taxing people who neither resided within the city nor owned land there.

State protection of landowners is crucial, because they can’t escape oppression merely by picking up their land and moving away. The same regulations that infringe their rights as owners may prevent them from selling their property at a reasonable price so they can relocate.

Accordingly, Arizona now largely forbids localities from regulating away property rights without compensation, while Colorado curbs local laws that purport to restrict landowners’ oil and gas rights.

To define the ideal boundaries between state and local control, we should ignore the political hypocrites and weigh sound principles. One such principle is that state governments should protect citizens’ fundamental rights from local oligarchs who try to take them away.

John Dickinson’s ‘Farmer’ Letters on Their 250th Anniversary

John Dickinson’s ‘Farmer’ Letters on Their 250th Anniversary

This article originally appeared in the Washington Times.

This year, 2017, marks the 250th anniversary of one of the most influential series of writings in American history: John Dickinson’s Letters from a Farmer in Pennsylvania, the first of which appeared in 1767.

These “Letters”—12 newspaper op-eds later collected in book form—asserted the colonial cause against imperial British overreach and helped to lay the groundwork for the U.S. Constitution drafted two decades later. The letters also presented important ideas about resisting usurpation.

John Dickinson (1732-1808) did not sign the Declaration of Independence, but in other respects, he was an American Founder of the first rank. With homes in Delaware and Pennsylvania, he served both states. Pennsylvania sent him to the 1765 Stamp Act Congress and, after publication of the Farmer letters, to the Continental Congress in 1774. Dickinson authored most of those assemblies’ public pronouncements. He also chaired the congressional committee that drafted the Articles of Confederation.

During the Revolution, Dickinson served two stints in the American armed forces, after which Delaware returned him to Congress (1779). In 1781, he was elected president (governor) of Delaware. The following year, he was elected president of Pennsylvania. In 1786, representing Delaware, he chaired the Annapolis Convention, which recommended a constitutional convention the following year. Delaware sent Dickinson to the latter meeting, where he impacted the results in ways not fully understood until his convention notes were rediscovered a few decades ago.

Dickinson wrote the Farmer letters in response to the British Parliament’s Townshend Acts (1767). (The Townshend Acts imposed duties on goods imported to America.) They explained why the Townshend duties were improper and how and why Americans should resist them.

The Farmer letters took America by storm. They were reprinted in Britain and Europe. In accordance with the Founding-era understanding of freedom of the press, Dickinson had written anonymously, but the authorship soon became known. Dickinson eventually became one of the most famous Americans in the world, second only to Benjamin Franklin.

The letters maintained that the colonists, as British subjects, had the right not to be taxed without the consent of lawmakers elected by them. They also contended the Townshend duties were “taxes” because they were imposed to raise revenue rather than to regulate behavior. Thus, only the colonists’ elected legislatures could impose them on Americans. Parliament, where Americans were unrepresented, could not.

Dickinson’s case was largely legal and constitutional, but he supported it with appeals to natural law and human welfare. “We cannot be happy without being free … We cannot be free without being secure in our own property … We cannot be secure in our property, if, without our consent, others may take it away,” Dickinson wrote.

In furtherance of the same principle, Dickinson worked two decades later to ensure the Constitution prescribed that revenue bills could originate only in the House of Representatives.

The Farmer letters went well beyond asserting the case against taxation without representation; they also helped clarify American constitutional thinking on other questions, including: Which government responsibilities should be exercised centrally and which locally?

Dickinson argued the central government should regulate commerce among the political units of the British Empire, but individual colonies should control civil justice and other domestic matters. In this respect, the letters foreshadowed the split between federal and state powers embodied in the Constitution 20 years later. Early in the convention, Dickinson advocated dividing federal and state authority by “enumerating” federal powers. His fellow delegates eventually adopted the idea.

The letters defended the existence of the British House of Lords by observing the nobility needed a separate legislative chamber to protect them against the king and the commons. At the Constitutional Convention two decades later, Dickinson persuaded his fellow delegates to extend similar protections to the states. He successfully advocated the United States adopt a Senate that represents the states equally and is composed of legislators who are selected by state legislatures for long, staggered terms.

The Farmer letters further examined how a free people should respond to governmental usurpations. Dickinson recommended opposing small usurpations immediately to prevent them from acquiring the force of precedent. “A perpetual jealousy regarding liberty is absolutely required in all free states … Slavery is ever preceded by sleep,” he wrote.

But Dickinson also emphasized opposition should be carefully calibrated, avoiding both under- and over-reaction. Violence should never be the first step. Citizens should begin by petitioning for redress. If that proved unsuccessful, the next resort was lawful resistance, followed by peaceable civil disobedience.

Dickinson, like other Founders, emphasized the need to protect liberty by frequently resorting to “first principles.” This 250th anniversary offers Americans an opportunity to do just that.

Convention of States: How the States Meet to Bypass Congress

Convention of States: How the States Meet to Bypass Congress

This article was originally published in Townhall.com.

The idea of a convention of states such as the one scheduled for Phoenix, Arizona on September 12 may be unfamiliar to most people, but similar conventions have gathered throughout American history.

British-American colonies first met in convention in 1677 to negotiate an Indian treaty. After that first meeting, inter-colonial conventions gathered on average every four to five years, up to the time of Independence. They considered Indian relations, defense, and other common issues. The famous Stamp Act Congress (1765) and the First Continental Congress (1774) were both inter-colonial conventions, and the Founding generation referred to them as such.

After the Declaration of Independence, the pace of conventions accelerated. State commissioners (delegates) met ten times between 1776 and 1786, including conclaves in Providence, Rhode Island (1776-77), Yorktown, Pennsylvania (1777), New Haven, Connecticut (1778), Philadelphia, Pennsylvania (1780), and Annapolis, Maryland (1786). These gatherings focused mostly on defense and economic matters. The 11th convention of the Founding era became the most famous: the 1787 Philadelphia conclave destined to draft a new Constitution.

Not all these early conventions were successful, but the convention mechanism proved invaluable. Conventions frequently resolved difficult problems that otherwise would have gone unsolved. And contrary to some of the claims you hear today, commissioners stuck by their agendas and did their jobs. This is why Article V of the U.S. Constitution authorizes a convention of states as a way to propose needed constitutional amendments Congress refuses to propose.

Each convention of states is a temporary task force of duly authorized state representatives convened to address and propose solutions to one or more specific issues. A convention results when states accept an invitation (referred to as a “call”) sent by a state, a prior convention, or, occasionally, Congress. The 2017 Phoenix convention was called by Arizona’s state legislature to prepare for the likelihood that a convention will soon meet to propose an amendment requiring Congress to balance the federal budget.

The Phoenix convention is not the first to be held since the Constitution was adopted. In fact, some of the most interesting conventions of states met in the 19th and 20th centuries. The New England states met in 1814 in Hartford, Connecticut to discuss how those states should respond to the unpopular War of 1812. The Hartford Convention proposed several amendments to the U.S. Constitution.

Southern states assembled twice in Nashville, Tennessee in 1850 to coordinate a response to what they saw as overreach by the North. In early 1861, Virginia called a general convention for Washington, DC. That assembly proposed a constitutional amendment it hoped would stave off the Civil War. (The amendment was not adopted.) At the same time, several seceding states met in Montgomery, Alabama to draft the Confederate Constitution.

Lasting success was enjoyed by the 1889 convention of states called by Kansas for St. Louis, Missouri. It successfully proposed state and national anti-trust laws. During the 20th century, a series of small conventions negotiated the allocation of western river waters. The best known of these was the seven-state Colorado River Compact Commission of 1922. The latest was the five-state convention that divided the waters of the Upper Colorado River in the 1940s.

Historically, most conventions of states have consisted of only a few states within a particular region, such as New England or the Midwest. But seven have been national in scope (“general conventions”). Whether regional or general, however, conventions have followed certain common protocols, including the rule by which participating states have equal votes.

The Article V Information Center in Denver recently posted a list of prior conventions of states. The list shows there have been 38 fully verified conventions and another five for which the Center has partial information. The Center website contains a great deal of additional information about conventions of states and the constitutional amendment process.