Why do Democrats Hate the Bill of Rights?

Right now, Americans are more divided politically than at anytime since the Civil War. The reason is that half the country–Democrats–have moved so far to the left that they no longer support the traditional and uniquely American freedoms enshrined in the Bill of Rights.

Democrats gave up on the Second Amendment decades ago. Thirty years ago, Democratic candidates often won the endorsement of the National Rifle Association. Now they rarely do.

Democrats are shakey at best on the Fourth Amendment, as evinced by their lack of concern over the government’s domestic spying. They think the Tenth Amendment is a joke. And now they are turning on the First Amendment. Here’s a former Chairman of the Democrat Party:

And here’s the same statement from the Democrat Mayor of Portland.

Hate speech is not protected by the First Amendment of the Constitution.

Polls show that also the Democrat rank and file oppose free speech.

If the government is allowed to censor ‘hate speech’ then the government will be in the business of censoring speech, and the First Amendment will effectively become null and void. Anybody who claims some sort of ‘hate speech’ exception to the First Amendment has, as Reason‘s headline correctly states, abandoned the First Amendment.

If you require more evidence that the left opposes speech, just take a look at the college campuses. The universities are dominated by the political left. That’s where the left, more than anywhere else in America, gets to set the rules. And under the left’s rules, free speech is suppressed more than anywhere else in America. Speech is tightly regulated officially by speech codes, and unofficially by leftist mobs. Both faculty and students fear to speak their minds. The campuses offer a peek at what the left would do if it had the power. It would crush free speech.

Interestingly, the modern liberal’s hostility to free speech is a relatively recent development. Fifty years ago, Democrats were actually more strongly committed to free speech than were Republicans. James Burnham in his classic 1964 analysis of modern liberalism, The Suicide of the West, comments several times throughout the book on the modern liberal’s almost fanatical devotion to free speech. But that was following a period during the Cold War when attempts were made to censor the speech of communists. In those days, unlike today, liberals also liked Russia. They flipped on both Russia and speech for the same reason–both ceased to be communist causes.

American freedom is uniquely defined by the Bill of Rights, and in particular the First and Second Amendments. In the rest of the world, only a very few isolated places, such as San Marino, recognize anything like a citizen’s Second Amendment right to self defense. And essentially no place else in the world respects anything like a First Amendment right to free expression. Even in the English-speaking countries like the U.K. and its Commonwealth, which share a common legacy of political rights with the U.S., ‘hate speech’ is illegal and the state can and does persecute and prosecute citizens for their speech.

In their indifference (at best) or hostility (at worst) to the First and Second Amendments, Democrats are definitely in the majority, if not in the United States, then in the world. If Democrats had their way, the Bill of Rights would effectively whither away, and the United States would become a lot more like the rest of the world.

Becoming more like everyplace else might not sound so bad, but here’s the thing–the U.S. is supposed to be different. The U.S. was founded to be different, primarily in elevating the ordinary man. In America, unlike Europe and the rest of the world, the ordinary man was very big. He was a citizen, not a subject. But now when the ordinary man tries to exercise his uniquely American rights, Democrats condemn him for ‘clinging to guns and religion.’ Essentially Democrats have given up on America.

If Hillary Clinton had won the election, she would have appointed a Supreme Court majority hostile to both the First and Second Amendments, and a Court that also would have acceded to her administration’s inevitable lawlessness. This would mark the end of America as an oasis of ordered liberty.

If the Democrats succeed in destroying American freedom, then maybe it’s time for some of us to plan our escape. Brazil, for instance, starts to look relatively good. No Bill of Rights, but at least the food and weather are better.

The Administrative State is a Betrayal of American Values

The foundational promise of America was that the government would be accountable to the people. “Here, the people rule,” said President Gerald Ford. But that promise was broken one hundred years ago when the Progressive Era gave birth to the Administrative State. Since then, most of our laws have been enacted not by elected representatives accountable to the people, but by unaccountable bureaucrats. Law professor Glenn Reynolds summarizes the sorry state of affairs in today’s USA Today.

[Philip] Hamburger explains that the prerogative powers once exercised by English kings, until they were circumscribed after a resulting civil war, have now been reinvented and lodged in administrative agencies, even though the United States Constitution was drafted specifically to prevent just such abuses. But today, the laws that actually affect people and businesses are seldom written by Congress; instead they are created by administrative agencies through a process of “informal rulemaking,” a process whose chief virtue is that it’s easy for the rulers to engage in, and hard for the ruled to observe or influence. Non-judicial administrative courts decide cases, and impose penalties, without a jury or an actual judge. And the protections in the Constitution and Bill of Rights (like the requirement for a judge-issued search warrant before a search) are often inapplicable.

How did a system designed to provide government of, by, and for the people devolve into a system in which bureaucrats unaccountable to voters (though exquisitely accountable to political players and special interests) produce masses of law that was never voted on by an elected official? Simple: on purpose.

In the early days of the Republic, the franchise was limited. But as the mass of voters became larger, more diverse, and less elite, those who considered themselves the best and brightest looked to transform government into something run not by those deplorable unwashed voters but by a more congenial group. As Hamburger says, “They have gradually moved legislative power out of Congress and into administrative agencies — to be exercised, in more genteel ways, by persons like … themselves.”
It has been, in essence, a power grab by what Hamburger calls the “knowledge class,” or what others have called the New Class: A group of managers and intellectuals who, although they may not actually be especially knowledgeable or elite in practice, regard themselves as a knowledge elite.

The Administrative State stands as an affront to democratic values and violates both the spirit and letter of the Constitution on a daily basis. It’s really the biggest unknown scandal in America today. Unknown because hardly anybody ever mentions it.

Schoolchildren are taught, if anything, that laws are made by Congress with no mention of ‘informal rulemaking’ by bureaucrats. And the ongoing depredations of the bureaucrats are hardly ever reported by the news media. Turn on ‘conservative’ Fox News and they’re reporting on Washington’s latest pointless diversions like the ‘scandal’ of Donald Trump’s son-in-law maybe having spoken with some Russians, or the self-serving reminiscences of former bureaucratic operative James Comey. Sorry, but I can’t make myself care about any of that political theater while Americans are forced to live under the rule of unelected clowns in the bureaucracy. Priorities, you know?

Let me keep this simple for those playing at home. If Congress didn’t vote on it, and the president didn’t sign it, then it’s not a valid law, and Americans have no obligation to abide by it.

The Treason of the Bureaucrats: Part Deux

Last summer, I spoke before a civic group of about 35 prominent local citizens and warned them that the permanent federal bureaucracy in DC–which Franklin Roosevelt termed the 4th branch of government–was gearing up to undermine the presidency of Donald Trump. At the time, I also wrote a blog post entitled “The Treason of the Bureaucrats.”

“I do not rule Russia,” Czar Nicholas is reputed to have said, “ten thousand clerks do.” Those words might take on particular significance for Donald Trump, should he be elected president. Like Czar Nicholas, a President Trump might find himself thwarted and undermined by the clerks–the federal civil servants.

Since then, events have borne out my prediction, to the extent that commentators are for the first time starting to apply the old Ottoman term ‘deep state’ to the willful and partisan Washington bureaucracy. At a conference last week, bureaucrats met with Democrat activists and discussed openly their strategies for thwarting the Trump Administration.

The deep state is not actually hidden very deep. It’s right out in the open.

Forlorn liberals took refuge at the American Constitution Society’s national convention in Washington this week, discussing whether to encourage the growth of the “deep state” resistance inside the government or fight President Trump from outside.

“The election of Donald Trump was an assault on the federal bureaucracy,” William Yeomans said to a room full of students and civil servants, including those recently displaced by Trump’s administration. “His values are simply not consistent with the values of people who are committed to public service and who believe deeply in the importance of public service.”

Hey, anybody deeply committed to public service can easily find ways to serve without working as a federal bureaucrat. If a ‘public servant’ cannot in good conscience implement the agenda of the president, the honorable thing to do is to resign and find some other way to serve, like working for a non-profit. We’re constantly told by federal bureaucrats and their union leaders how talented and hard-working they are, and that they could be earning so much more in the private sector. Well, here’s their chance to prove it.

Yeomans, an American University law professor with more than 25 years of experience at the Justice Department, was holed up inside the Capital Hilton hotel downtown on a sunny Friday afternoon leading a panel of bureaucrats and scholars divided about how best to fight Trump.

On a Friday afternoon, aren’t bureaucrats supposed to be, you know, at work?

UCLA law professor Jon Michaels said he favors filling the Trump administration with liberals opposed to Trump’s agenda.

“We hear a lot of language about draining the swamp and this idea about a deep state that somehow was going to thwart the intentions or the political mandate of the president,” Michaels said. “I kind of embrace this notion of the ‘deep state.'”

His embrace of the notion of the deep state is a reason why I embrace the notion of draining the swamp.

Michaels listed his ideas for how to ensure the success of the “deep state.” Act as a group — a department, across agency lines, as a community — rather than as an individual when pushing back against Trump from the inside, he said. Once such a coalition is formed, he suggested “rogue tweeting” or “leaking to the media” as options for fighting the president.

Since this was a meeting of the American Constitution Society, maybe the participants can point me to the part of the Constitution that empowers the civil servants to serve as a check on the authority of the president.

If you think about it, the arrogance is breathtaking. Here are unelected bureaucrats deciding for themselves that they’re going to “push back” against the duly elected Administration. It’s essentially an attempt to overturn the result of an election, just because the bureaucrats disagree with the voters. And those voters also happen to be the people who pay their salaries. Apparently, the public spiritedness of these dedicated public servants does not extend to respecting the will of the voters.

The GOP Senate is supposedly working hard right now on a bill to repeal Obamacare, but the GOP should instead be working on repealing the Civil Service Act of 1883. Obamacare is already collapsing due to it own internal contradictions. But we’re never going to clear the DC swamp without drastic legislation reforming the civil service.

If the GOP were smart (LOLOLZZ) they’d stop worrying about helping their hedge fund buddies with carried interest and start going after the left’s power bases: academia, Hollywood, the corporate media, and not least, the federal bureaucracy. They must all be destroyed.

Thank you and have a nice day.

Berkeley Officials in Conspiracy to Violate Civil Rights?

A lot of people have been wondering why Berkeley police haven’t done more to contain rioting, both in February and earlier this month.

The February rioting in particular involved a suppression of free speech–a Civil Rights violation–as an appearance at UC by Milo Yiannopolous had to be canceled. We’ve noted previously that conspiring to violate people’s Constitutional Rights is a federal felony under 18 U.S. Code § 241. Now evidence suggests that, in Berkeley, the criminal conspiracy may have gone all the way to the top.

Berkley [sic] Mayor Jesse Arreguin was revealed to be a member of the anti-fascist group, By Any Means Necessary (BAMN), on Facebook. BAMN orchestrated the violence that shut down a scheduled lecture at UC Berkeley featuring Milo Yiannopoulos in early 2017. Arreguin is allegedly also friends with BAMN leader, Yvette Felarca, on Facebook.

Attorney General Sessions, please call your office.

Aside from criminal prosecution, federal law also allows victims of civil rights violations to sue for damages.

[I]n any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

I’m not a lawyer, but it seems to me that Milo Yiannopolous might have a case against Berkeley officials. At the very least, the discovery process would be quite interesting.

If some of the Big Money men on the political right really want to strike a blow for freedom, they should stop funding loser pols like Jeb Bush and Little Marco Rubio and start bankrolling some civil rights lawsuits.

Reminder: Campus Violence that Suppresses Speech is a Federal Crime

A New York Post editorial offers a good roundup of prominent speakers who have recently been prevented from giving speeches by what Ace calls the “feral humanoids” who infest university campuses.

UC-Berkeley this week canceled an April 27 Ann Coulter speech, fearing riots….

Masked, rock-throwing thugs prevented a February speech by Milo Yiannopoulos….

Berkeley’s move follows the Black Lives Matter disruption of a UCLA speech by the Manhattan Institute’s Heather Mac Donald, and efforts to muzzle her the next night at Claremont-Pomona College….

Last month, goons stopped American Enterprise Institute scholar Charles Murray from delivering a moderately conservative talk at Middlebury College, with Professor Allison Stanger hospitalized by the violence.

Of course, only speakers on the political right are muzzled; the commandant of a North Korean gulag could probably speak unimpeded, as did Iran’s Ahmadinejad at Columbia a few years ago. And the excuse given by university officials is always the same: safety. Here, for instance, is Berkeley’s statement on nixing Coulter.

“We have been unable to find a safe and suitable venue,” said the letter from Vice Chancellor Scott Biddy and Vice Chancellor for Student Affairs Stephen Sutton. “Given current active security threats, it is not possible to assure that the event could be held successfully.”

“Active security threats,” you say? And where might those threats be coming from? ISIS? North Korea? Why no, the threat of violence is coming from Berkeley’s own students and employees. So what the Berkeley Vice Chancellors are saying is that they cannot maintain order among their own people. This is a huge admission of failure on the part of the university administration.

The primary mission of the university is to maintain an environment of free intellectual inquiry. But instead of fulfilling that mission, the university administrators prefer to run their institutions as left-wing indoctrination camps. The administrators probably have it within their power to maintain order. The universities (scandalously) even have their own armed police forces. They could arrest, and subsequently suspend or expel students who engage in disorderly conduct. As Thomas Lifson points out,

There are plenty of law enforcement resources available to the University of California if it wished to preserve the tradition of open inquiry upon which the many public (i.e., taxpayer) subsidies and privileges available to U.C. are premised. When Governor Ronald Reagan faced a campus insurrection at Berkeley, he called in the National Guard and tear-gassed the protesters in Sproul Plaza – the very place the anti-Milo rioters used to destroy property and threaten lives.

If they took action, Berkeley officials could insure freedom of speech and assembly. But they choose not to. They willingly allow the Heckler’s Veto to censor speech, because they agree with the hecklers.

Unless these universities restore free speech and inquiry, they are not worthy of continued support from the public. Maybe a few lefties are willing to pay tuition and taxes to support far-left camps posing as institutions of intellectual inquiry, but most people are not. It is high time that taxpayers and their elected representatives insist that universities clean up their act. When administrators like Berkeley’s Scott Biddy and Stephen Sutton claim that they cannot allow speech–because safety–the state legislature should respond by asking for their resignations. Or as the New York Post put it,

Increasingly, US campuses are the exact opposite of the bastions of free thought and debate they’re supposed to be. If the schools can’t save themselves, society has every right to demand new management.
[Emphasis added.]

Not only should people lose their jobs, but the civil rights division of the Justice Department would be justified in launching a criminal investigation, particularly in the case of Berkeley. Many of these schools including Berkeley are state-run institutions, which means they must abide by the First Amendment. Back in February, Berkeley city and university officials let rioters run wild, making no arrests, even though they were beating people and causing over $500,000 in damages.

Moreover, complicity in violence and intimidation that prevents people from exercising their Constitutional rights is a crime under 18 U.S. Code § 241.

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same;…They shall be fined under this title or imprisoned not more than ten years…

Every time campus leftists organize to use intimidation to shut down conservative speakers, they haven’t just been rude or unsporting, they have committed a federal crime. It is a crime, and long overdue that the Justice Department start treating it as such.

I also agree with Professor Glenn Reynolds that President Trump would be justified in sending in the National Guard to protect campus speakers, as Eisenhower did in Little Rock to allow black students to safely attend high school. Both cases involve not just public safety, but also an essential issue of Civil Rights.

Reminder: Federal judges are just bureaucrats, not entitled to rule us

I was taken aback today by the title of an article at Breitbart.

The part that concerned me was not the refugee issue but that a lowly federal trial judge could issue an “order” to the President of the United States. Is that really the way our constitutional system is supposed to work?

Last month, a different federal trial judge, this one in Seattle, placed a restraining order on President Trump’s ban on travel from seven terrorist nations, and the president obeyed the order. Leaving aside whether or not Trump’s policy or motives are wise or moral, the question I have is: How can a trial judge give orders to the POTUS? I understand that a judge can issue an opinion. After all, everybody’s entitled to their opinion! But where does the Constitution grant a trial judge the power to give orders to the president?

Well, the answer is that the Constitution grants federal trial judges no such power. Even in the case of the Supreme Court, it’s not clear that the president has to obey–Andrew Jackson certainly didn’t believe he had to obey the Supreme Court.

But in any event, for a long time now presidents have acceded to the decisions of the Court. An argument can at least be made that the Court is constitutionally co-equal with the presidency. But the same cannot be said of the federal courts below the Supreme Court.

As Michael Walsh reminds us, the Constitution created the Supreme Court, but the lower federal courts are all creations of Congress.

[F]ar from being a “co-equal” branch of government, almost the entirety of the federal court system is a creature of Congress, and can be restructured or abolished at any time. Don’t believe me? Take a look at Article III, here presented in its entirety.

That’s right–Congress brought the federal courts into the world, and Congress can take them out. Congress, if it wants, can remove that Maryland trial judge and abolish his job.

Congress has it within its power to re-organize the judiciary below the Supreme Court level in any way it sees fit. It can also change the rules concerning lifetime tenure, removal and anything else it chooses.

A federal trial judge basically serves at the pleasure of Congress. So a trial judge is not co-equal with Congress. But the president is.

It follows that the constitutional status of the Seattle trial judge is no more exalted nor secure than that of a bureaucrat at the FAA or the Consumer Product Safety Commission. Nobody would accept that such a bureaucrat could issue orders to the president and unilaterally block presidential policies. And yet the president obeyed the Seattle judge, and in the weeks following the order, thousands of people entered the United States contrary to the president’s policy.

I would submit that the president had absolutely no obligation to obey the Seattle judge’s restraining order. The president could have and should have continued to implement his travel ban as the case made its way through the appellate courts. If eventually the Supreme Court had ruled against the president, then perhaps in that case the president would have had to yield. But that would mean yielding to the Supreme Court, not to some robed bureaucrat in Seattle.

Now, many people no doubt view this conflict as a kind of David vs. Goliath situation, and believe that it’s a good thing that even a lowly federal trial judge can check the power of the President of the United States. But that’s the wrong way to look at it. Unlike Congress and the president, the trial judge is unelected and not directly accountable to the people. The people can express their will only through the elected branches. The trial judge is therefore checking not just the power of the president but the power of the people. The trial judge is not David. The people–you and me–are David, and allowing judges to rule as petty tyrants over us diminishes our liberty and is intolerable.

The problem here is not just the arrogance of the judges who think they can overrule the people’s representatives, but that the judges are granted so much deference. These judicial opinions are nothing more than that–opinions–and should be treated as such. The idea that the president is obligated to defer to the Supreme Court is questionable enough. But how did we get to a place where lowly trial judges issue orders that the president must obey? The idea is not just absurd, but anti-democratic and unconstitutional. Some degree of judicial deference is to some degree desirable, but the practice has been taken much too far.

My solution to this sort of judicial tyranny is simple: ignore them. To paraphrase a hero of the left, Joe Stalin, how many divisions does the Maryland trial judge have?

Bureaucrats Butthurt over Regulatory Repeal

As we reported a couple of weeks ago, Congress recently revived a dormant law–the Congressional Review Act of 1996–in order to repeal last-minute Obama regulations, including a so-called ‘stream protection rule’ that would have destroyed jobs in the coal industry. Well, now Politico reports that the bureaucrat who wrote the stream rule is all salty that his handiwork is getting flushed. Almost every line of the article is unintentionally hilarious.

Joe Pizarchik spent more than seven years working on a regulation to protect streams from mountaintop removal coal mining.

Ulysses S. Grant, while dying from cancer, wrote his two-volume memoirs in less than a year. Handel composed his Messiah in 24 days. This bureaucrat takes seven years to write a stupid stream regulation.

“My biggest disappointment is a majority in Congress ignored the will of the people,” said Pizarchik, who directed the Interior Department’s Office of Surface Mining Reclamation and Enforcement from 2009 through January.

Unlike Pizarchik, the members of Congress who nixed his rule were actually elected by the people.

Pizarchik and other former Obama administration officials called the rapid repeal process intensely unfair. The 1996 law says any repeal must come within 60 legislative days after a rule becomes final.

“If there had been more time and Congress had not rushed this through but had actually deliberated on what was in the rule, [then] the results would have been different,” Pizarchik said.

Yeah, no. Later in the article we learn that the GOP has opposed the stream rule since at least 2011. They had plenty of time for deliberation, and a little more time wouldn’t have changed their minds. Furthermore, if Pizarchik hadn’t taken seven years to write his rule, he could have had it enacted prior to the 60-day window, which would have made it immune to repeal.

[T]he swiftness has former Obama officials wondering if lawmakers even understood the regulations they voted to kill.

“I can’t venture to say that that many people, when they’re being honest, have actually read the rule,” said Brandi Colander, who was Interior’s deputy assistant secretary for land and minerals management before leaving in September for the National Wildlife Federation.

I’m guessing Brandi wasn’t complaining when Congress voted on Obamacare without reading it.

“I think that when cooler heads really can prevail and you push the politics to the side, we should really be asking ourselves, should we be able, with the stroke of a pen, without requiring people to read it and not even giving these rules a chance to see the light of day — is that actually good governance?” she added.

Apparently, Brandi’s idea of “good governance” is unelected bureaucrats imposing rules with the force of law while the elected representatives of the American people just STFU.

Teitz similarly argued that the Bureau of Land Management’s methane waste rule would have generated revenue for the energy industry, which could have sold the gas that the regulation would make it capture. But Republicans — backed by oil and gas companies — still made it a top target.

“People are looking for scalps,” she said. “‘It’s an Obama rule so let’s drag it down whether or not it’s actually costly to industry.’”

LOLZ. The bureaucrats would have us believe that they understand the industry’s interests better than the industry itself does. ‘Don’t those dummies know they can SELL the methane that we force them to capture!’

Before this year, the only time Congress successfully used the review act to repeal a regulation was in 2001, when it blocked the Labor Department’s Occupational Safety and Health Administration from enforcing an ergonomics rule intended to reduce the risk of musculoskeletal disorders in the workplace.

Sixteen years later, wounds are still open for some officials who helped write that rule…

Still butthurt after sixteen years!!

Jordan Barab, who had worked on the ergonomics rule, fought to save it when he moved to the AFL-CIO after the 2000 election.

Wait, this guy makes a regulation that benefits Big Labor, and then takes a job with…the AFL-CIO. And didn’t we just see above that the lady who did the environmental rule took a job with…the National Wildlife Federation? Gee, it’s almost as if they’re already working for the interest group while still on the government job.

Pizarchik is already working on ideas to write a new version of the stream rule under a future president, though he declined to share any details.

Presidents come and go, but the bureaucracy is eternal.

He also hinted someone could mount a constitutional challenge to the review act itself, which critics have long argued tramples on the separation of powers.

“I believe there’s a good chance that, in a legal challenge, that a court will overturn Congress’ actions here as an unconstitutional usurpation of the executive branch’s powers,” he said.

Who knows what some hack Democrat judge might someday decide, but only in a bizarro, anti-matter, parallel universe is it unconstitutional for laws to be written by the legislative branch rather than the executive.

The Civil-Service System is Unconstitutional

Some of our readers believe that the U.S. presidency has grown too powerful, and in some ways, like the ability to unilaterally impose barriers to international trade, I agree. But in other ways, the presidency has been stripped of its most elementary powers. For instance, most people I talk to are surprised to find out that the president has no authority to fire ordinary federal bureaucrats for incompetence or malfeasance. This has created an unaccountable bureaucracy that freely pursues its own agenda as an unelected 4th branch of government.

Writing at the Wall Street Journal, Philip K. Howard argues persuasively that the civil-service system unconstitutionally undermines the president’s executive authority.

Executive power is toothless without practical authority over personnel. “If any power whatsoever is in its nature executive,” James Madison once observed, “it is the power of appointing, overseeing, and controlling those who execute the laws.” Taking away the president’s power over executive branch employees is synonymous with removing his executive power altogether. Yet this is exactly the case today. Because of civil-service laws passed by Congress many years ago, the president has direct authority over a mere 2% of the federal workforce.

Two percent! TWO. PERCENT.

The question is whether those laws are constitutional. Does Congress have the power to tell the president that he cannot terminate inept or insubordinate employees? The answer, I believe, is self-evident.

Federal bureaucrats are so insulated from accountability, they are the only people in America who hold their job by right. No, really. The Supreme Court in the 1970s ruled that bureaucrats have a right to keep their jobs and so cannot be removed except by due process of law, similarly to being convicted of a crime. That effectively makes the bureaucrats a kind of privileged aristocracy.

The slow dissipation of presidential power over subsequent decades is a story rich with irony. Designed to avoid capture by special interests, the civil service became a special interest of its own. First, public employees got Congress to legislate modest protections against termination. Then JFK, as payback for their support, signed an executive order allowing public unions to collectively bargain. The Supreme Court held that these legal protections made public jobs a property right protected by the Constitution’s Due Process Clause. Then Congress enshrined these protections in statute.
We’ve come full circle: Instead of guarding against public jobs as political property, civil service has become a property right of the employees themselves. Federal workers answer to no one.

Changing the system would require the president to issue an executive order and the Supreme Court to uphold it. We need somehow to appoint a Court that acknowledges the patent unconstitutionality of the present civil-service system.

When is it OK to Ignore Federal Law?

When is it morally justifiable for cities and states to willfully break or obstruct federal law?

Most would agree that it was morally justifiable in the 1850s for Northern states to resist Dred Scott and the ‘fugitive slave’ laws.

Historians, however, are less sympathetic to John C. Calhoun’s doctrine of nullification, which propounds that states can ignore federal statutes they deem to be unconstitutional.

Currently, Democrat mayors of big cities across the country are refusing to enforce federal immigration law.

providence

People who support open borders believe they have a strong moral case. In particular, many libertarians believe that borders and citizenship laws are just means of oppressing people, denying them the basic right to move freely in search of work and a better life.

This argument clearly has some merit, but I don’t find it entirely convincing. Effective borders serve to reduce chaos and ethnic strife. Moreover, open borders, as a practical matter, are incompatible with the modern welfare state. As Milton Friedman said long ago, you can have open borders or a welfare state, but not both. If libertarians want to open up borders, they should first work on setting the necessary preconditions by rolling back the welfare state.

Deciding which federal laws we can ignore is a tricky and dangerous business. If liberals and libertarians think that their moral arguments trump federal law, then can conservative localities do the same? In particular, can a conservative state like Utah or Oklahoma choose to ignore Supreme Court case law and enforce a statewide ban on abortion or gay marriage? Libertarians may disagree, but most citizens of those states believe they have a strong moral case.

How do we resolve conflicts between the law and our moral conscience? I’m not sure I know the answer, but Lincoln’s dictum that a nation divided against itself cannot stand should serve as a cautionary warning.

And as long as we’re on the subject of morality and the law, I have a question about when it’s OK for a private business to refuse service. For instance, Twitter this past week implemented a purge of numerous clients who were using the medium to propagate right-wing views. Many of the users who had their accounts terminated had never tweeted threats of violence, nor had they singled out other users for harassment. Some of the banned users even possessed accounts that had previously been ‘verified’ by Twitter, a distinction usually reserved for celebrities and public figures. Yet Twitter banned them on the basis, apparently, of their political views.

twits

Many commentators defended Twitter’s actions by asserting that, as a private company, Twitter is not bound by the First Amendment, and can therefore censor views it doesn’t like. This argument was made repeatedly in the comment threads of both conservative and liberal websites. For instance, at the USA Today, the most ‘liked’ comment among hundreds made essentially this point. usatoday

If Twitter were a newspaper or a book publisher, I would agree. But in the case of Twitter, the legal analysis does not seem so obvious. Twitter, it could be argued, is less like a private club and more like a public accommodation that offers a service to the public like a phone company. And the fact is that public accommodations are not legally free in all cases to censor speech. The phone company cannot terminate your service for telling an offensive joke over the phone. And under the Supreme Court’s 1980 “Pruneyard” decision, a California shopping mall–a private entity, to be sure–was told that it had to accommodate free speech.

In any event, I am not a First Amendment lawyer, but I do wonder about the apparent legal double standard. How is it that Twitter, as a private platform, can refuse service to right-wingers merely on the basis of their political views, but a private bakery cannot legally refuse to participate in a gay wedding? Can someone clarify that for me?

Furthermore, the foregoing discussion concerns only the law, and not what is morally right. Twitter might be able to censor speech legally, but that does not imply that it is moral for them to do so. As we have seen, morality and the law are often in conflict.

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