July — 2010 — VOICES for REASON

In light of Elena Kagan’s impending confirmation for the Supreme Court, I’m troubled by the clash between her legal philosophy and that of America’s Founding Fathers. As I wrote recently in The Christian Science Monitor, “Kagan’s testimony before the Senate Judiciary Committee shows that she rejects the Founders’ view of the Constitution as a charter of liberty whose purpose is to protect individual rights. Instead, she adheres to the modern view that it’s a mechanism for establishing unlimited majority rule over the individual.”

I suppose you could call it black humor, but I’m imagining what the results might be if Kagan were called upon to edit Thomas Jefferson’s most famous passage in the Declaration of Independence. What if Kagan’s own views, as inspired by Justice Oliver Wendell Holmes, Jr., were to replace America’s founding ideals? I’m thinking the result would look something like this:

“We hold these personal opinions to be pretty important for us, but not necessarily for anyone else—that all people are equally subject to society’s arbitrary command—–that they are endowed by majority vote with various uncertain and alienable privileges—that among these are life spent in the service of others, liberty to achieve the public interest, and the pursuit of everyone’s happiness but one’s own—that to create these privileges out of thin air, governments are fastened onto humankind, deriving their arbitrary powers from the consent of the ruling faction at any particular moment.”

It’s technically not too late for the full Senate to do the right thing and vote to reject Kagan—but unfortunately, most of our senators see nothing amiss in her philosophy of governance.

(If you need to cleanse your palate, the full text of the original Declaration of Independence is here.)

Image: WikiMedia Commons

If someone were to propose today that the United States implement a “new,” “exciting” economic idea called “socialism,” in which government central planners effectively owned and controlled the entire economy, we would surely point out that such a system has already been tried and implemented, with disastrous results.

We should do the same with the supposedly “new,” “exciting” economic idea known as the “green energy economy”–in which government central planners mandate that practical energy sources (coal, oil, natural gas, nuclear) be replaced by solar panels, windmills, dung piles, and corn fields. (Thomas Friedman’s latest column is a typical endorsement of such policies.)

There is nothing new and exciting about the “green energy economy.” There is a place overseas that has already provided stark evidence of what it means to pursue a “green energy economy,” and it’s not pretty. That place is called Europe, and it’s a testament to what happens when you force unproven, inefficient energy down people’s throat. A recent post at the free-market energy blog Master Resource explains:

Renewable energy has proved an expensive and unreliable source of energy everywhere it has been tried on a significant scale…Italy, Spain and Germany are cutting back on their taxpayer/ratepayer-funded generosity toward politically correct energies….In all, Europeans have tested the theory of a “clean energy revolution” to destruction.

For the gory details, read the whole article here.

Image: Wikimedia Commons

Investor’s Business Daily has published an essay from ARI’s executive director Yaron Brook on  Atlas Shrugged. The piece begins:

In the years leading up to 2008—09′s financial meltdown, government control over mortgages, interest rates and America’s banking system was at an all-time high.

And yet when crisis struck, free enterprise took the blame.

The cure, therefore, was to give government even wider powers. Washington can now bail out any company, fire CEOs, override contracts and print billions of dollars to “stimulate” the economy — all in the name of the public interest. The result? Our deficits and debt continue to mount, and there’s a real possibility of a future like Greece’s.

This is the state of our world today. It’s remarkably similar to the state of the world in Ayn Rand’s “Atlas Shrugged,” a mystery story about a future America whose economy is disintegrating and whose government is accumulating power faster than anyone thought possible. This parallel is a big reason a record 500,000 people bought “Atlas Shrugged” last year.

So what can we learn from a book that foresaw in 1957 what few believed possible in 2007? We can learn a lesson the heroes of the novel learn: the cause of the government’s greater, destructive control of business. And we can learn how to oppose it.

Read the whole thing.

The Senate Judiciary Committee has approved the nomination of Elena Kagan to the Supreme Court. In a just-published op-ed in the Christian Science Monitor, my colleague Tom Bowden argues that Kagan does not understand the Constitution–the document which, if she confirmed by the Senate, Kagan will have to swear to uphold.

Alarmingly, Kagan’s testimony before the Senate Judiciary Committee shows that she rejects the Founders’ view of the Constitution as a charter of liberty whose purpose is to protect individual rights. Instead, she adheres to the modern view that it’s a mechanism for establishing unlimited majority rule over the individual.

As a matter of historical fact, the Founding Fathers wrote the Constitution for a certain purpose. They wanted a government that would respect and protect the individual’s rights to life, liberty, property, and the pursuit of happiness. Aside from certain contradictions (the worst of which, toleration of slavery, required a bloody civil war to expunge), the Constitution is dedicated to protecting the individual from society by means of a limited government. The Supreme Court cannot objectively interpret the document’s language apart from this essential purpose.

Regrettably, however, too many of today’s judges reject this approach to constitutional interpretation.

Read the whole thing.

The other day I blogged about an antitrust class action suit against Apple and AT&T, relating to Apple’s hugely successful iPhone. That post was based on press reports. I’ve now had a chance to read the plaintiffs’ complaint as filed in court, and a subsequent court decision. They provide interesting detail, but the basic injustice of this antitrust case remains.

As I mentioned in my earlier post, Apple sells “locked” iPhones. That means they work only on AT&T’s network. Consumers know the phones are locked into one network—there’s no mystery or fraud involved.

Okay, so what about the plaintiffs in this class action? They managed to scrape together enough money to buy iPhones and enter into two-year contracts with AT&T. They used their phones for the full two years. Then their contracts expired. Now they want to unlock their phones and use them on T-Mobile or some other network. There’s only one small problem with that—their individual software license agreements with Apple forbid such tampering. That’s not to mention violation of Apple’s software copyrights. But none of that bothers the plaintiffs and their class action lawyers.

Elsewhere, I have called antitrust laws a “war against contract,” and this case is a perfect illustration. These plaintiffs don’t want to be bothered with the contracts they signed. “I promise” means nothing to them. Instead, they assert what amounts to a divine right of hacking—to be achieved with the help of the infamous Sherman Act.

Here’s the plaintiffs’ legal theory: Apple and AT&T are monopolizing the so-called aftermarket for the iPhone. This “aftermarket” is not to be confused with the market for smartphones—that’s a huge market in which Apple is a significant but by no means dominant player (Blackberry, anyone?). No, the “aftermarket” amounts to the various ways of hacking the iPhone to make it work outside AT&T. Do you get this? Since the only way you can keep making calls on an iPhone after two years is sign up with AT&T for another two years, that’s evidence the companies are “monopolizing” the “aftermarket.”

Now you might say, wait: This “aftermarket” sounds more like an illegal enterprise than a market. If licensing agreements forbid unlocking, then why would the law protect an “aftermarket” devoted to unlocking? Well, in the wonderland of antitrust, anything is possible. If this class action is successful, Apple and AT&T may have to pay damages and abandon their policies against unlocking.

So much for sanctity of contract, which is but a distant memory in American law.

Image: WikiMedia Commons

In my article, “Justice Holmes and the Empty Constitution,” I discussed the widespread doctrine that the Constitution’s underlying purpose—protection of individual rights to life, liberty, and property—has no legitimate role in interpreting the document’s language. I summarized this view, pioneered by Justice Oliver Wendell Holmes, Jr., in the early twentieth century and prevalent among judges today, as holding that “the Supreme Court presides over an empty Constitution—empty of purpose, of moral content, of enduring meaning—bereft of any embedded principles defining the relationship between man and the state.”

In recent hearings, Supreme Court nominee Elena Kagan confirmed her allegiance to this modern orthodoxy.

Kagan’s views came out under clumsy questioning from Sen. Tom Coburn, an Oklahoma Republican and religious conservative. Coburn’s questions mixed together several ideas: that individuals have natural rights—that those rights pre-exist the Constitution—that such rights are God-given—and that those rights include owning guns for self-defense.

Rather than try and untangle Coburn’s mish-mash of truth, falsehood, and controversial detail, Kagan used the knife of Holmesian orthodoxy to slice them away with a single stroke. Inquiries about man’s natural rights are irrelevant to her fitness for the Supreme Court, she testified, because they are “outside the Constitution and the laws.” As such, she told Coburn, “you should not want me to act in any way on the basis of such a belief.” Read the rest of this entry »

In California, a federal judge has ruled that an antitrust class action suit can proceed against Apple and AT&T. What have those companies done to warrant being hauled into court? Basically, they agreed to sell only “locked” iPhones. A locked phone is one that works only on a specific mobile network—in this case, AT&T’s network.

So, let’s get this straight. Both Apple and AT&T want to make money. Apple makes money by creating cool mobile devices like the iPhone—creating, as in designing and manufacturing phones that didn’t exist before Apple’s brilliant designers and engineers thought of them. AT&T makes money by creating a mobile phone network–creating, as in erecting a complex array of electronic equipment capable of transmitting messages from handheld phones, a network that didn’t exist before AT&T created it.

Then Apple and AT&T decide to make money by working together. Although details of their deal aren’t public, it’s clear that AT&T saw an opportunity to increase its subscriber base by becoming the only retailer of iPhones. Apple, for its part, looked forward to receiving payments from AT&T based on a percentage of every iPhone subscriber’s monthly bill. Was this collaboration a good idea? You be the judge: consumers have bought 50 million iPhones in three years. Read the rest of this entry »