Posts

Why The Parties Line Up That Way in Montana Zoning Battles

Missoula has been suffering one of those land use wars so typical of some Montana cities. The city council, which is controlled by “progressives,” has voted to ease zoning restrictions to allow backyard houses in all neighborhoods, thereby feeding its ideological devotion to crowding. Or, to use their euphemism, “infill.”

A striking aspect of infill battles is that the position of the parties is just the opposite of what you might expect. Leftists, normally eager to restrict property rights, want to allow owners develop their land more intensively. Conservatives favor retaining the restrictive laws that prevent crowding.

Why are the parties lined up this way?

Property rights are based largely on expectations of the future. When we say that owners have legal rights to land, part of what we are saying is that government will avoid inflicting unforeseeable loss on landowners. A government that inflicts sharp and unpredictable losses on owners is one that doesn’t respect property rights.

I believe there is a place for municipal zoning. Ideally, though, zoning should be limited mostly to protecting people against nuisances they otherwise would have to sue to prevent. Most other usage issues can be handled by land covenants. But in Missoula, as in many other places, zoning laws impose rules far wider than necessary to prevent nuisances. They become a way for politicians and bureaucrats to impose their own preferences and fantasies (and the preferences and fantasies of their political allies) on everyone else.

Fortunately, in most places zoning rules change quite slowly. Existing schemes last a long time, and they create their own expectations and assumptions. Those expectations and assumptions become part of owners’ property rights.

For example, if the city says a zone may be used only for residential purposes, then people will buy and sell land in that zone on that assumption. A person looking for a home protected from commercial or industrial activity will pay a higher (or at least a different) price for land in that zone than if the property were unzoned.

But there is a big underlying problem with basing property rights on zoning: Sometimes politicians and bureaucrats change their preferences and fantasies. In cities that, like Missoula, are plagued by constant “progressive” tinkering, this can lead to sudden and radical change in the land use rules.

Conservatives and moderates who oppose radical change in zoning laws actually are protecting property rights, at least as the government has distorted them. That is, they are protecting owner expectations about what can and cannot be done in certain areas of the city. A lot of financial and other human value has been tied up in those expectations.

In Missoula, a series of “progressive” victories on zoning issues has inflicted huge losses on innocent owners—people who bought their homes at agreed prices based on existing zoning, settled their families there, and planned their retirement there. Many of their expectations and assumptions, along with a good chunk of their property values (financial or otherwise), have been destroyed.

Leftists seem to take a perverse enjoyment in using the government to inflict harm on innocent people, particularly people they don’t care for. They also like imposing their preferences and fantasies on others. That helps explain their delight in sudden zoning changes that upend established rules and expectations. Conservatives, as their name implies, generally favor only gradual change so as to protect people against unforeseeable loss.

In the long run, property owners don’t stick around for bad treatment if they can leave. That’s one reason that when I took early retirement from UM, my family and I sold our Missoula home and moved elsewhere.

Rob Natelson: Some Reasons Why There Is Probably A Lot More Improper Tax Agency Targeting You Don’t Hear About

The news outlets tell us the IRS has been targeting conservative non-profits for unfavorable treatment.

Based on my own experience, my guess is that these things happen far more often than reported—both on the state and federal levels.

In the 1990s, I was the subject of some suspicious audits by the Montana Department of Revenue (DOR). There were several reasons those audits were suspicious. First, my accountant told me it was quite rare for DOR to audit anyone who had not previously been audited by the IRS—and I had not been. Second, the audits came just when I was publicly criticizing then-Gov. Marc Racicot for promoting and signing large tax hikes and endorsing an early form of Obamacare. In fact, I was seriously considering running against him in the GOP primary, which I later did.

Third, I had annoyed Racicot’s revenue director by loudly refusing to join one of those phony “tax review commissions” that officials were often setting up in those days to induce Montanans to swallow a sales tax. Fourth, I had always kept my personal taxes squeaky clean—if anything, I had a tendency to overpay. And there was a fifth reason for my suspicions, but to reveal it would involve publicly disclosing a particularly burdensome audit that DOR inflicted on a person who has not authorized disclosure.

Anyway, I weighed whether to say anything publicly about the audits, but decided against it. Despite my suspicions, I had no absolute proof (and still don’t) that I was being targeted. If I made the charge, it would of course be denied. And in those days, the daily newspaper editorial writers and reporters were almost all huge Racicot supporters, and a lot of them didn’t think much of me. I could foresee them staunchly defending the administration and dismissing me as a paranoid or “whiner” (a term the Great Falls Tribune actually did apply to me).

And because I was controversial, I knew that many Montanans would be willing to believe the worst of me. If I was being audited, in their eyes I must be guilty.

So I never said anything publicly about these audits till now.

There’s more: I’m told that under the Clinton administration (1993-2001), the IRS audited just about every free market think tank in the country. Late in the ‘90s, several of us tried to get non-profit tax exemption for a Montana think tank—a prototype of MPI. Not surprisingly, in view of what the IRS was doing elsewhere, the agency denied the application—again, on suspicious grounds. But I said nothing publicly for the kind of reasons listed above.

And for those same reasons, I don’t regret being silent. But my decision explains, I think, why we don’t hear about this sort of thing more often.

****
P.S.: Just to satisfy your curiosity: After a great waste of my time and that of my accountant, the DOR audits found no wrongdoing. Because of miscalculations on my tax return, I got a modest refund for one year, and paid a modest deficiency for another. As for the application for non-profit tax exemption for our think tank, the application was denied, and we saw the handwriting on the wall and did not renew it. It was several more years before Montana had the consistent free-market voice she now has in MPI.

Why We Must Act Now To Use the Constitution’s Amendment Process to Restore Fiscal Sanity

When they wrote and adopted the Constitution, the Founders inserted a way for the states to amend the document if they had to rein in an abusive federal government. The procedure says that if 2/3 of the state legislatures pass “applications” for an amendment, Congress must call a convention (meeting) of the states to draft and propose one.

In the 2011 and 2013 state legislative sessions, Senator Art Wittich introduced resolutions to force Congress to do just that. (About 15 other states have similar resolutions.) Each time, his proposal was sabotaged by uninformed people making wild claims about the procedure. The most common claim was the procedure would trigger a “constitutional convention”—which is clearly not the case.

Obviously, unless the states use this procedure, the federal government will continue to careen toward bankruptcy. The speech below, which I delivered in Orlando, Florida late last month, explains why we need to use the Constitution’s state-driven amendment process to cure the federal fiscal crisis:

My initial background was in the private sector, but I served many years in academia. I spent much of that time teaching constitutional law and constitutional history to aspiring lawyers. Four years ago, when I was still on a law school faculty, I was looking for a new topic to write on, and turned my attention to the Constitution’s amendment process. I have to admit to you that back then I didn’t know any more about Article V than most constitutional law professors do—which is to say, not much. For some reason, Article V is not typically taught in law school curricula. I also found that there hadn’t been much scholarly writing on the subject. And as often happens in constitutional law, most of the writing that had been published really wasn’t very good. By that I mean it was incompletely researched, or it was driven by the author’s personal agenda—and usually both.

[It is sometimes said that] . . . our biggest problem usually isn’t what we don’t know. Our biggest problem is all the things we know, but that just aren’t so.

When I started my research on Article V, I knew a lot about the subject that just wasn’t so. For example, I thought that a convention for proposing amendments is a “constitutional convention.” I thought that it was uncontrollable. I was wrong.

My research opened my eyes to a part of the Constitution and to a part of American history that was entirely new to me. As it turned out, it was entirely new to a lot of other people who read my work, including other constitutional scholars, some of whom are now building on my research and learning even more new things. Later, I’ll mention some what we’ve learned. But first let’s look at what really brings us together this evening.

America is in trouble. Perhaps the biggest peacetime trouble she has been in since our country was founded. And for perhaps the very first time since the Civil War, the very idea of America—the fundamental concept of America—is in trouble.

The fundamental concept behind America of course, is that all people are endowed by nature and by nature’s God with rights to life, liberty, and the pursuit of happiness, and that to secure those rights, governments are instituted among men, deriving their just powers from the consent of the governed. Adherence to that simple idea freed Americans to propel this country to a level never before seen.

America’s truly explosive rise occurred during our first 150 years—the period beginning with our Founding and continuing until the time when the federal government’s mistakes helped cause, and prolong, the Great Depression of the 1930s. We began that period as a ramshackle country on the outer edges of civilization. We ended it as the greatest nation in the world. This was the time when motorized transportation and instant communication were invented and perfected, mostly in America. It was when we learned to harness electricity. It was when we developed modern medicine, and a hundred thousand devices to make life easier. It was also when we freed the slaves and brought about the emancipation of women.

Our progress since the Great Depression has been considerable, but much of that progress represents momentum from our first 150 years. If you doubt this, think of the extent to which modern Internet and computer technology rests on a single 19th century accomplishment: the taming of electricity.

Why was America so successful? Because between the time from the Founding and the Great Depression most Americans enjoyed a degree of economic liberty that is almost unimaginable today. As historian Samuel Eliot Morison has observed, in most facets of life, government—especially the federal government—was almost invisible. Government peacetime spending averaged around 5% of the economy, compared with 40% now.

Americans enjoyed far more freedom from government taxes, regulation, and control. They enjoyed almost unrestrained freedom to innovate, earn a living, run a business, hire workers, take a job, join or not join a union, keep their own pay, form contracts on their own terms, keep and bear arms, open schools, build charities, and worship and speak as they pleased. They could do all these things without worrying about what the government might do to them—like my friend in Libby, Montana who was almost driven out of business by the EPA, which for political reasons persecuted him for years over a small drain that wasn’t even polluting anything. Or like me, when I had employees and received almost simultaneously from the unemployment insurance authorities a letter demanding that I immediately pay up a $30 deficiency, and another letter telling me I’d overpaid by $30.

America became great during a period when people simply didn’t have to deal with this sort of aggravation and expense. If you needed to start climbing the economic ladder, you could go to any local business and get a job with just a handshake. No intrusive paperwork. No social security numbers. No payroll withholding. Just a few state or local regulations to protect life and health. If the boss liked your work, he could keep you on without worrying about whether you were the 50th employee who would trigger the Obamacare health insurance mandates or just the 49th employee, who would not. You didn’t need health insurance anyway, because despite the limited technology and the fact that doctors still made house calls, medical care was far less expensive then. And if you had a catastrophic illness, there was a vast web of local relief agencies, mutual benefit societies, family networks, and private charities to help you out. If your boss couldn’t keep you on, well, you could freely move to another job that might be better.

Or you could go into business for yourself, without the government imposing insurmountable fees and barriers to your doing so. You could buy and own land without suffering the kind of official harassment now inflicted on so many landowners. You could keep almost everything you earned for the support and enjoyment of yourself and your family. Maybe become rich. Those times were empowering, exhilarating, exciting beyond belief.

And unlike today, young Americans could actually get jobs. They didn’t have to live in their parents’ basements leeching off daddy’s savings. They could earn their own way . . . start saving money in sound, uninflated, gold coin. . . raise their own families on their own resources. . . and build their own careers.

The politically-correct text books tell you that America’s success was the result of natural resources, ethnic diversity, government programs, and the oppression of minorities. This is largely balderdash. It is true that some minorities were much less free than the majority. It is also true that we have great natural resources and ethnic diversity. But those were not the fundamental reasons for America’s success. Because those things were true of many other countries as well—countries like Russia, Brazil, China, and India that, unlike America, remained backward and poor. What made the critical difference for America was freedom under law.

Freedom under law became compromised, though, when the federal government used the excuse of the Great Depression to break down constitutional limitations and greatly expand its reach. By 1960, just a few decades after the Depression ended, government was absorbing 25% of what had once been a free economy. Today, as I mentioned, it is absorbing nearly 45%.

A government founded to protect liberty has become an instrument for destroying liberty. A government founded to enable all to pursue happiness has become an instrument of envy, theft, and greed. To a great extent our economy has changed from one driven by people aspiring to greatness to one dominated by the scramble for political favors.

Most of us here this evening are among those who understand the problem. For the past few decades, we have tried to cure it. We have sponsored programs of civic education. We have worked to elect good people to office. We have attempted to reclaim the Tenth Amendment. Sometimes we have gone to court. And we have had a few real successes.

But the few successes should not obscure one glaring truth: Over the long haul, we continue to lose the fundamental concept of America. Twenty years ago when Bill Clinton was President the situation was worse than it had been 20 years before that. Today it is so much worse than when Bill Clinton was President that conservatives have begun to think of Hillary Clinton, of all people, as a more reasonable alternative to President Obama.

In my view, we are losing because we have tied ourselves to a handful of losing tactics. We have become comfortable fighting losing battles.

But if our goal is not merely to feel comfortable—if our goal is to win back for ourselves and our children that which has been slipping away—then we have to stop limiting ourselves to the things that don’t work, and start doing things that will work.

Let me give you a sobering historical example that may cast some light on what is in store for us if we do not adopt a new approach. More than 2000 years before our Constitution was written, another people located on what was then the outer edge of civilization established a free republic. They were only a small town in those days, but they were destined to become the greatest people in the world. Our own Founders looked to them for inspiration. Their system was based on principles of stoic virtue, respect for tradition, political accountability, military valor, and—to an extent unusual in the ancient world—human freedom. The Roman Republic lasted for 500 years, and its record still stands as the longest-lived major republic in the history of the planet.

Roman civilization eventually expanded throughout the Mediterranean World. Colonies of Roman citizens were established from Asia to Spain.

Roman leaders faced the challenge of making this extended state work while preserving the essence of the Roman constitution. One way they might have done so would have been to replace their system of lawmaking by the urban mob with an assembly of representatives from citizens throughout the Roman world. But they did not make those changes. And slowly, over a period of nearly a century, their constitution deteriorated. Great statesmen like Marcus Cicero were aware of what was happening. But they failed to arrest the decline.

They failed to arrest the decline because they tried to do so mostly by hitting the reset button until it wore out. In other words, they repeated over and over the same tactics that had failed before. Rome could have survived as a free government if its statesmen had shown more vision. But they did not.

When a system is wearing out, time is always limited. And so it happened that, for the Roman Republic, time to make the necessary changes did eventually run out. When elected Roman leaders failed to make the decisions necessary to preserve liberty, the decision was taken away from them. It was taken away by Julius Caesar and by his grand-nephew Augustus, who appropriated the state to their own purposes. For Romans, free government was gone forever.

But nothing was inevitable about this. Rome could have preserved its free constitution by making the changes necessary to keep it healthy while there was still time.

We Americans must not repeat their mistake. We must make the changes necessary to preserve freedom while there still is time.

Fortunately, we have the tools right at hand. They are our inheritance as Americans. Our Founders bequeathed them to us. They are lying right here, in Article V of our own Constitution. They are still fresh and new, and ready to use.

Article V is the Constitution’s provision for amendment. Today we think of constitutional amendment mostly as a way of responding to new conditions. The Founders recognized that purpose, but they also saw amendment as a way to prevent and correct government abuses.

Because the Framers recognized that the federal government might abuse its power, in their early drafts of the Constitution all amendments would come solely from a convention of the states. It was only when Alexander Hamilton pointed out that Congress might have good amendment ideas as well, that the Framers decided to give Congress, as well as the states, power to propose amendments. But to prevent an abusive Congress from obstructing needed changes, the states also retained their authority to propose. Their vehicle for doing so was what the Constitution calls a “convention for proposing amendments.”

So what is this “convention for proposing amendments?” That was one of those things I thought I knew four years ago, but what I knew wasn’t so.

The answer to the question comes from a great tradition of American interstate conventions, and from the experiences during the 224 years since the Founding.

When the delegates to the Constitutional Convention met in Philadelphia in 1787, it was only the latest in a very long series of diplomatic meetings among the different colonies and states. These meetings were called conventions. In the century before the Constitution was written, colonies and states met in convention on average of once every 40 months. They addressed subjects like Indian relations, foreign relations, common defense, currency inflation, and interstate trade. They met in Albany, New York in 1754. . . in New York City in 1765 . . . in Philadelphia in 1774, 1780, and 1787 . . . in York Town, Pennsylvania in 1777 . . . in Hartford, Connecticut in 1779 and 1780 . . .in Providence, Rhode Island in 1777 and 1781 . . . in Boston, Massachusetts in 1780. . .and in Annapolis, Maryland in 1786. And that list represents less than half of the conventions held.

After the Constitution was adopted, there were fewer interstate conventions, since the U.S. Senate served as a place where states could meet. Yet the American convention tradition continued. For example, there was an interstate gathering in Nashville, Tennessee in 1850 and a convention of 26 states in Washington, D.C., in 1861.

Each of these conventions was given a specific task or tasks to perform. Each had to remain within its prescribed limits, and not stray into other areas. This was true also of the 1787 Constitutional Convention. I mention this because there is an old myth that the Constitutional Convention was called only to amend the Articles of Confederation, but that it ignored its prescribed limits. But this old myth is just that—a myth—another thing I once thought I knew, but didn’t. . . .

Besides this great convention tradition, our understanding of Article V is informed by 224 years of experience and by important decisions from the United States Supreme Court and other arms of the judiciary. Here is one example: You may have heard the claim that a convention is sovereign and, despite limits on its authority it can do anything it likes. But we already have court cases showing us that that is not true. In fact, actions outside a convention’s legal instructions are void.

In the same way, some people persist in claiming that the convention for proposing amendments is “constitutional convention.” By using that phrase, they display a lack of knowledge about the American tradition of gatherings among the states. In our history, we have had at least 31 conventions among the colonies and states, and only one has been a constitutional convention. Thirty have not been, and a convention for proposing amendments is not one, either.

In his recent decision for the U.S. Supreme Court rejecting the Medicaid mandates in Obamacare, Chief Justice Roberts famously said, “The states are separate and independent sovereigns. Sometimes they have to act like it.” Article V gives them a chance to act like it.

When a state legislature thinks an amendment might be a good idea, it sends a resolution to Congress, and if two thirds of the legislatures send resolutions for the same kind of amendment, then under the Constitution, Congress must call an interstate convention on that topic.

This interstate convention is essentially a diplomatic task force among representatives of the state legislatures acting as sovereign entities. At the designated time, each legislature sends a delegation (it’s called a “committee”) of delegates (they’re called “commissioners”) to the designated place. These committees of commissioners decide whether to propose amendments, and, if so, they draft the language. The convention adopts its own rules, and elects its own officers. Because sovereignties are inherently equal, each state committee has one vote. And as its name suggests, a “convention for proposing amendments” has power only to propose, not to ratify. Any proposal becomes part of the Constitution only if 38 states ratify it.

Now I’d like to remind you of a point I made earlier: The Founders added the convention for proposing amendments to the Constitution precisely to correct the federal government if it ever became dysfunctional. They predicted that if Congress got out of line, Congress probably would not propose amendments to correct itself. And their prediction was on target. Because in the 224 years since Congress proposed the Bill of Rights, it has never—with the minor exception of repealing Prohibition—has never proposed an amendment that reduces its own power. It has passed several amendments increasing its own power, but not reducing it.

Now—imagine that James Madison and John Dickinson were here in this room today. Suppose we told them that the federal government had far exceeded its constitutional authority. That Congress had become an auction-house for special interests. That Congress had run up a huge debt because 45 times in the last 50 years it had refused to even balance its own budget. That federal politicians had created a dependent class of citizens whom the politicians could manipulate for their own purposes. In other words, suppose we admitted to James Madison and John Dickinson that the federal government had re-created the very situation the British government tried to foist on the colonies in the 1770s, and that their generation had fought the American Revolution to prevent.

When we told them all this, no doubt James and John would ask us a very natural question. They’d ask if we had tried to correct the problem through the state-driven process in Article V. And when we sheepishly admitted that, no, we had not—that we had been deterred by ignorance and by the hysteria of alarmists and cranks—then what would these Founders say?

They would tell us that the whole mess was our own darn fault.

And they would be right.

It has been our own fault. But because we have been at fault, it does not mean we must stay at fault. The time to correct the situation is now!

If we want to save America. . . if we want to save the fundamental concept of America—then I suggest we act on five principles. Those principles are Vision, Unity, Determination, Legality, and Organization. Together, they add up to Victory!

First: Vision. We must have a clear idea of the kind of America we want to have. One where individual rights are respected. An America where people understand the difference between rights, to which you are entitled, and government largess, to which you are not. An America of limited government, personal responsibility, and self-reliance—an America prosperous and free.

Unity. Many of us have different ideas about how to use the Article V tools our Founders bequeathed to us. That discussion is normal and very healthy. We also must remember, however, that we are all on the same side.

Later this year, a committee of activists of which I am a member will be inviting state lawmakers from throughout the country to an informal “conference on proposing amendments” to be held far away from Washington, D.C., in the entrepreneurial and growing city of Denver, Colorado. The purpose of this conference is to develop common approaches we can all live with. Let your state lawmakers know about it, so they can start planning now. Unity.

Determination. Like the Founders, we must be willing to commit our lives, fortunes, and sacred honor. Many in this room have already done so.

You see, it requires determination to accomplish any real political change. The world recently lost a very great woman who showed what determination can do. It will take determination to overcome those well-intentioned but misguided souls who fear the cure our Founders gave us more than they fear our descent into national destruction. But once we get past them, we’ll need even more determination to overcome the power-brokers in national politics, the media, and academia.

Those people control much of the high ground in American power politics. But just as the late Margaret Hilda Thatcher overcame similar forces in Britain, largely by the force of sheer determination, so also will we overcome them in America.

Legality. If we keep our activities strictly legal, this will not prevent us from being vilified in the media by the most unfair sort of slander. The history of the Tea Party proves that. But if we keep our activities strictly legal, it will help us prevent failure and achieve victory.

Those with vested interests in the status quo have plenty of money for lawsuits. If we do not follow legal procedures, those lawsuits will undo all our hard work. The experience of the Term Limits movement is instructive in this regard. In the 1980s and 1990s, advocates for term limits tried to use Article V, but they violated the Article V rules as the courts had applied them. Their opponents sued, and the term-limits supporters lost in the courtroom many of the battles they had won in the political process.

Make no mistake: Once this campaign starts to succeed, we will be sued. So don’t give the opposition any reasonable way they can win their lawsuits.

Vision, Unity, Determination, Legality—and finally, Organization. To win, we need grass roots support and financial help in every state. In other words, we need your help—your help, the help of your state lawmakers, and of financial contributors, and of your friends and neighbors. The campaign to save America will succeed only if it is a mass movement, in which all understand that our future and the hopes of our children and grandchildren are at stake.

Like the Romans who tried to save their republic, but did too many ineffectual things for too long, until they lost their freedom entirely, we do not have unlimited time. Eventually, of course, our country will go bankrupt. But there is another deadline, too. If we do not apply Article V correctly and for good ends, then we will see it used by others incorrectly, and for bad ends. Many people of influence in academia and politics, are beginning to speak of their own version of Article V—one where they really do have a new “constitutional convention”—which they use to grow government further, and further curtail our liberties. To prevent being pre-empted by those people, we must move, and do so now.

Fortunately, the moment is promising. The American people understand the debt problem and they properly blame Congress. Most state legislatures are controlled by majorities who also understand the problem. Encourage those lawmakers to apply for a convention to address our national fiscal crisis. Contribute to groups working to restrain federal deficits through Article V. Set up websites. Talk to your friends—both your Facebook friends and your real friends—and support state legislators who understand the problem.

This is more than a fiscal issue, more than an issue of current politics. It is a long-term issue with moral and historical overtones. It is the question of whether the fundamental concept of America can endure. It is also a question of how those who come after us will live, and how those of us alive today will fare in the history books they write.

May they say of our generation that we labored rightly in a just cause, and in so doing we rose to greatness.

New Evidence Suggests Obama’s “Recess Appointments” Are Not Valid

Litigation over President Obama’s “recess appointments” to the National Labor Relations Board is going to the Supreme Court. A similar battle is being waged among lawyers about whether the President’s appointments to that Board, and to the Consumer Financial Protection Bureau, are constitutional.

At stake is the legal validity of hundreds of administrative decisions and regulations.

There are two constitutional issues involved. President Obama, like earlier Presidents, maintains that when the Constitution allows him to appoint officials without Senate approval so as to fill vacancies during “the Recess,” the latter term includes breaks within a session of the Senate, not just formal breaks between sessions. In addition, he claims (like many others before him) that for the vacancy to “happen,” as that word is used in the Constitution, it is enough that the vacancy continue into a recess. It doesn’t have to be created then.

I investigated Founding-Era legislative records to see if the President was correct. Over the years, most U.S. Attorneys General and judges have sided with his positions and most commentators have argued the contrary. But neither side has cited much in the way of true Founding-Era evidence. I looked at records, mostly legislative records, of the time, and found that the President is wrong on both issues, while the majority of commentators are correct.

You can find a draft of my paper here.

Rob Natelson: Three Cheers for Speaker Blasdell and the State House!!! (to which is appended a heads-up from past experience)

Carl Graham and I were in the legislative galleries in Helena last Friday, when the state stepped back from the brink.

Democrats and some Republicans were pushing for the state to yoke itself to the Obamacare Medicaid expansion, enticed by “free federal money.” So they amended a bill designed to keep the state free from the expansion to one chaining the state to the expansion.

The rules of the state House of Representatives generally provide that when the purpose of a bill is changed, it should go back to committee for review. So in a courageous move guaranteed to irritate the state’s “opinion leaders,” Speaker of the House Mark Blasdel decided to just that.

Advocates of the expansion immediately moved to appeal the Speaker’s ruling. All of us in the House chamber held our breaths to see what the roll call vote would be. At the end, the motion to overrule lost—but by the closest margin possible: 50 for, 50 against. Then the bill was physically transmitted to the committee.

At least one, and possibly two, Democrats claimed to have pushed the wrong button while voting, but some Republicans may have made off-setting errors. Anyway, advocates of the extension pushed for a second vote, while hospital lobbyists—eager to pad their employers’ pockets by throwing more people into government dependency—vigorously worked on lawmakers, trying to flip some to their cause. They actually wound up losing people: The second vote to reverse Speaker Blasdell lost 48-52.

Some in the Montana political establishment can be ruthless in finding ways to overrule the state legislature when it makes a fiscally conservative decision. Montana lawmakers have to be careful they are not overruled this time.

For example, in the 1990s, the state House rejected federal funding for a controversial education program. Instead of respecting the legislative will, the governor and superintendent of public instruction decided to thwart it. They arranged for the money to bypass state government and go directly from the feds to local school bureaucrats.

A little later in the decade, Montana lawmakers rejected CHIP, one of those federal health care programs that are (1) promoted as improving access to care but instead (2) always make care more expensive and less accessible. So the Montana state auditor (insurance commissioner) decided to violate a central canon of our constitutional government: He decided, as an executive branch officer, to invade the sole right of the legislature to appropriate money.

First, he threatened insurance companies with prosecution for allegedly breaking regulations. Next, he dropped the cases when the insurance companies handed over large cash payments. Finally, he used the extorted funds to erect the CHIP program himself.

Voila! more dependency, less affordable care, and a new spending constituency.

Montana lawmakers must ensure they are not overridden this time. But if their decision holds, they will have made an important step toward more fiscal sanity and physical health.

Rob Natelson:The Constitutional Issues In Same-Sex Marriage

I’ve found that most of the discussion about same-sex marriage, even among lawyers, tends to mis-characterize the constitutional issues. This is particularly true of the “equal protection” issues.

Under the Constitution as originally understood, jurisdiction over domestic relations outside federal enclaves and federal territories was reserved to the states.

State laws dealing with domestic relations are, however, subject to the mandates of the Fourteenth Amendment. That provision requires states to honor “due process of law” and to grant all citizens “equal protection of the laws.” (The Supreme Court has added that the Fifth Amendment imposes a similar equal protection standard on the federal government; a more credible reading of the Constitution would derive some federal equal protection obligations from the “proper” component of the Necessary and Proper Clause.)

Modern Supreme Court Due Process cases recognize a constitutional right to make free sexual and co-habitation choices, both heterosexual and homosexual. People also have the right to obtain religious sanction for unions not recognized by state civil marriage laws. But there is no general federal constitutional right to the government benefits bestowed by state civil marriage laws; indeed, the states are not required to adopt civil marriage laws at all. Some commentators argue we would be better off if they didn’t, and formal recognition of marriage were left to the private sector.

It is important to understand what civil marriage laws are. They are enactments authorizing the grant of special state benefits for certain kinds of unions. In other words, they give to people in qualifying relationships what the Framers called “privileges and immunities”—an 18th century legal phrase that refers to benefits bestowed by government on some people to the exclusion of others. American governments traditionally have conceded the “privileges and immunities” of civil marriage only to a social union complying with certain exacting requirements. With some variations, state laws traditionally require that the union be (1) of a man and a woman, (2) who undergo certain procedures in advance, (3) obtain a valid license, (4) have consented, (5) are above a certain age, (6) are not married to any one else, (7) are not too closely related to each other, and (8) meet certain other requirements of ceremony and/or cohabitation. States traditionally have excluded from special benefits all other groupings—including, but not limited to, same-sex marriages, polygamous marriages, polyandric marriages, other plural clusters, designated intra-family unions (e.g., brother/sister and uncle/niece), and unions that are unlicensed or that otherwise fail to meet the states’ rules.

Now we come to the big question: Does a state’s decision to grant benefits to just one sort of union violate the equal protection doctrine? A grant of special privileges to one group while excluding others does violate that doctrine unless the state can point to legitimate public reasons for its decision. How strong the reasons have to be depends on the kind of case. For better or worse, the Supreme Court is very tolerant of government discrimination among economic classes. In social-issue cases, on the other hand, the Court sets more exacting standards.

It is clear that for constitutional purposes civil marriage laws that include one man/one woman unions do meet those exacting standards. This is because of the overwhelming evidence of social benefit deriving from such unions. This evidence arises both from formal empirical studies and from practical experience gathered, quite literally, over millennia.

What about extending the “privileges and immunities” of civil marriage to other groupings? That’s a much tougher case to make because, with the arguable exception of polygamous marriage, the supporting evidence is so much weaker. Particularly in the case of same-sex marriage, the evidence of social benefit is spotty and highly politicized. Under Supreme Court Equal Protection jurisprudence, it is not strong enough to require states to recognize such unions.

Thus, under existing Supreme Court Equal Protection doctrine, the real issue is not whether the evidence is sufficient to compel states to recognize same-sex marriage. The real issue is whether that evidence is sufficient to justify states granting to same-sex couples “privileges and immunities” that most other groupings—such as polygamous and polyandrous unions—do not receive.

My own view, for what it is worth, is that such questions are best left to the individual states to resolve. That doesn’t address the special problems arising under the federal Defense of Marriage Act, but it’s a good general principle.

Rob Natelson: Protect Democracy: End Election Day Registration

Carting uninformed, transient voters to the polls to vote for the political boss-man is a time-dishonored practice of demagogues everywhere. It has no place in Montana.

House Bill 30, currently pending in the Montana legislature, would curb this abuse by ending the practice of voting-day registration. It would require voters to register at least four days before the election instead.

In my view (and this is not necessarily the view of MPI, which does not promote particular legislation), the bill does not go far enough, but it is a good start.

Some historical perspective: America has a long tradition of democratic governance. By the time our American Constitution was adopted, nearly all states had broadened their electorates greatly from colonial days. Property requirements were loosened. Several states allowed women to vote (formally in New Jersey, informally elsewhere). Free African-Americans cast ballots in at least five states.

This was all to the good. But the Founders also understood that democracy is not the same as ochlocracy (mob rule). They understood that, for democratic governance to work, the electorate must (1) be reasonably well informed, and (2) stand to lose personally as well as gain from the choices they make.  One of the Founders’ solutions—an imperfect one, to be sure—was to retain some modest property requirements. Several states also provided exemptions for people meeting other qualifications, such as gainful employment.

Note that the Founders did not consider suffrage a “right” in the sense that, say, freedom of speech or self-defense was a right.They classified it as a “privilege”—that is, a grant from society, although a very, very important one.

One result of the difference was that while any law-abiding citizen could exercise a right, getting a chance to vote was something to be earned.

I wouldn’t want to go back to property requirements for general elections. But it does seem like a pretty minimal “qualification” to ask someone to pay enough attention to be able to register a few weeks before a pending election. In my view, it would be fair to require voters to register for a general election by Labor Day, when the formal general election campaign traditionally begins. However, the Supreme Court has effectively limited the maximim to 30 days. That hardly seems enough time to become educated on local issues. And we certainly don’t need more “low information” voters.

I lived in Missoula for 24 years, a town that hosts many people who are really transients—that is, their true homes are elsewhere. I don’t just mean students, but people who come to Missoula just to hang out for a while. Unfortunately, transients are are encouraged to vote in Missoula. Again and again, I watched as they made decisions for our city that we long-term residents would have to live with, and pay for, decades after the transients were long gone. In 2008, I watched as one of the national campaigns took advantage of Election Day registration to herd into the Missoula County courthouse people so incompetent they couldn’t get it together enough to fill out a simple form without it being stuffed in their hands on Election Day.

This is not good government. And it is heartbreakingly unfair—especially to the retirees and others on fixed incomes who have to pay, year after year, for mistakes made by voters who have long left for greener pastures.

Adopting a 30-day requirement would only begin to solve the problem. But at least it would begin to do so.

Rob Natelson: A Federal Lawsuit Threatens Constitutional Limits on the State Legislature

Most state constitutions limit the financial powers of the state legislature. They have to: In the 19th century several states nearly went bankrupt from bad fiscal practices.

Now a federal lawsuit puts those protections in danger.

The Montana constitution requires the state to run a balanced budget. And it requires that before the state can go into debt, the proposed debt must be approved either by 2/3 of each house of the legislature or by a vote of the people.

In 2011, a group of government employees and apologists sued the State of Colorado in federal court, arguing that the Colorado constitution’s limit on the legislature’s taxing, borrowing, and spending powers violates the U.S. Constitution. The plaintiffs argue that unless a state legislature has absolute power to tax, borrow, and spend as it wishes, that state does not comply with the U.S. Constitution’s requirement that it have a “republican form of government.”

The suit is ridiculous on a number of levels, as my co-author and I show in Independence Institute issue papers here and here. Nevertheless, last year an Obama-appointed federal judge refused to dismiss it, and ruled that it could proceed.

That judgment is now on appeal. On April 19 I’ll be in Helena on behalf of MPI to discuss the suit and how it threatens both the Montana Constitution and the fiscal health of Montana and the livelihood of her citizens. Keep tuned for more details.

Rob Natelson: Some Humor on the Corruption of Modern Universities

A high school senior who has just gone through the college admissions process humorously reflects on her experience in this Wall Street Journal op-ed. Her column is a good P.S. to my recent posting on what’s wrong at modern universities.

Beneath the humor, the analysis by Suzy Lee Weiss of the skewed criteria many admissions officers use is dead-on right—most notably some of the “political correctness” factors that assure that left-leaning students get a better chance of admission to prestige colleges than right-leaning and moderate students receive. Not mentioned, though: The ethnic groups favored in the “diversity” game are selected to be those at the core of the national Democratic Party’s base (African-Americans, Indians, Hispanics). You won’t find Mormons on the list, for example, even though they historically have been the victims of severe discrimination. You see, they mostly vote Republican.

Rob Natelson: Protecting People Against “Gun Control”

    Like the Montana Constitution, the Colorado Constitution guarantees citizen gun rights. Nevertheless, Colorado recently became the first Rocky Mountain state to impose sweeping limits on gun and gun-magazine ownership in violation of its own basic law and of the Second Amendment of the U.S. Constitution. The action is concerning for Montana, because Rocky Mountain trends often start in Colorado.

    Attracting considerable notice has been my speech to the Pro-Second Amendment Committee of Grand Junction, Colorado, where I explained the original meaning of the Second Amendment, including the significance of the words “the right” and “infringe.” Particularly noticed has been the part where I show that you can use the same arguments the gun controllers use to restrict other constitutional rights, including free speech and sexual choice.

    I’ve reproduced part of the speech below. In it, I refer to the Colorado Constitution’s gun-rights provision. The Montana Constitution’s comparable section is Article II, Section 12: “The right of any person to keep or bear arms in defense of his own home, person, and property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but nothing herein contained shall be held to permit the carrying of concealed weapons.”

    The speech also mentions that the Colorado Constitution defines the “militia” be include, essentially, all able-bodied men of military age. The comparable provision in the Montana Constitution is Article V, Section 13(2): “The militia forces shall consist of all able-bodied citizens of the state except those exempted by law.”

    Here are the excerpts:

My talk tonight will address three different, but related, topics.

    First, I’ll speak about the right to keep and bear arms as that right is enshrined in both the United States and Colorado Constitutions. I will be speaking about what those rights actually mean as the constitution-writers understood them, not as the courts have distorted them. I’ll discuss why those rights are there, what their scope is, and what it means to infringe them.

    Second, I’m going to speak about the politicians in the Colorado legislature who voted for bills designed to control and harass Colorado gun owners. I’ll say something about the convoluted thinking of those politicians, and what I think really motivates them.

    Finally, I will suggest a way citizens can respond to what those politicians have done.

    * * * *

    The Second Amendment of the United States Constitution states that:

    “A well-regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

    What does this amendment really mean?

    In recent years, people offering answers to that question have often focused on the militia part of  the Second Amendment: “A well-regulated militia being necessary for the security of a free state. . .”

    But in my view, that’s the wrong place to begin. The militia phrase is what lawyers call a “preamble”—a non-binding explanation of intent. It is not the effective, or operative, part of the amendment. In other words, it is only a guide to interpretation, not the actual law. The actual law is “the right of the people to keep and bear arms shall not be infringed.”

    Notice two things about the phrase I just read.  First, it refers to “THE right of the people to keep and bear arms.” Like “the freedom of speech” and “the freedom of the press” in the First Amendment. The Founders were referring to a right already existing before the Constitution was ever adopted. In the Founders’ view, it was a natural right, given by God and not to be impaired by government. On the contrary, it was a right that government must guarantee.

    Another thing this phrase—THE right to keep and bear arms—implies is that the Founders knew the scope of the right. In other words, they understood what it did and didn’t include. We can understand what it did and didn’t include by examining the history of the Founding. It has always bothered me that so many judges and constitutional writers merely speculate about what First and Second Amendment rights mean, rather than going to the historical records and finding out.

    I’ll say more in a moment about what is and isn’t encompassed by the Second Amendment.

    So—this phrase refers to “THE right to keep and bear arms.” It also says that this right “shall not be infringed.” What does that mean? On this subject, also, there’s no need to speculate. Because 18th century dictionaries tell us exactly what “infringe” meant.

    In this context, the word “infringe” meant to reduce or impair in any way. In other words, government shall not reduce or impair in any way “THE right to keep and bear arms.” Today, political demagogues talk about imposing “common-sense” or “reasonable” restrictions on the right to keep and bear arms. But the Constitution, properly understood, is clear that there are NO permissible restrictions on the right, however much the politicians may think they are “common sense” or “reasonable.”

    On the other hand, the Founding-Era record also tells us that not every use of every weapon is part of the right that cannot be infringed. So let’s look now at what the right does and doesn’t include.

    History makes it clear that the Second Amendment is designed to serve four principal purposes.

    First, it guarantees the states militia power of their own to balance the military power of the federal government;

    Second, it promotes the God-given right of personal self defense;

    Third, it enables the citizenry to repel foreign invasion; and

    Fourth, it enables the citizenry to overthrow domestic tyrants and intimidate or discipline those who otherwise would be tyrants.

    [The speech passed over the first purpose as more relevant to federal rather than state gun control, and then continued as follows:] . . . I’ll discuss here the other three principles. We begin with the right of self-defense.

    In order to enable people to defend themselves, the right to keep and bear arms has to include weapons sufficient for that purpose. Which weapons are sufficient for the purpose of self-defense will vary according to changes in technology and in society.

    Advocates of gun control tend to be the same sort of people who argue in favor of the idea of a “living Constitution.” Of course, usually when people argue for a “living Constitution,” what they really want is a dead Constitution. Specifically, they want to eliminate almost every constitutional limit on the power of federal politicians and allow those politicians to control almost everything except abortion, which they want the politicians to subsidize.

    Yet some of the people who think the Constitution should be manipulated to meet allegedly new conditions take a very different tack when applying the Second Amendment. To them, the Second Amendment, if it protects individual rights at all, should be limited to militia duty with muskets and flintlocks.

    But if the Second Amendment is based partly on a right to personal self-defense—and it is—then this narrow view is wrong.  The Second Amendment cannot be limited to muskets and flintlocks any more than the power of Congress to regulate interstate commerce can be limited to trade in sailing ships and horse-drawn wagons.  Even an old-fashioned constitutionalist like myself believes that Congress can use the Commerce Power to regulate railroads and air travel, although those forms of travel did not exist when the Constitution was ratified. Otherwise, the Commerce Power would mean nothing. For the same reason, the right to keep and bear arms must include the free use of modern technology appropriate for self-defense.

    It is true that when the Second Amendment was ratified, a standard capacity 30 round magazine would not be necessary for personal self-defense. But now, when when mass murderers and terrorists have modern weapons, citizens need standard capacity magazines for self defense. They also need handguns and a range of other weapons. That is one reason the Second Amendment protects their use today.

    In addition to self-defense, the Second Amendment was adopted to enable citizens to defend against tyrants foreign and domestic. At this point it becomes helpful to turn to the Second Amendment’s preamble: The Amendment seeks a “well regulated militia.” In 18th century language, “a well regulated militia” meant a “well-trained militia.”

    The “militia” that the Second Amendment says should be well trained consists of all able bodied men. Article XVII, Section 1 of the Colorado Constitution expresses this well: It says, “The militia of the state shall consist of all able-bodied male residents of the state between the ages of eighteen and forty-five years; except, such persons as may be exempted by the laws of the United States, or of the state.” That was pretty much the American Founders’ view of the matter. Read Madison’s language in Number 46 of The Federalist Papers, and you’ll see what I mean. It is pretty much the understanding of our fathers and grandfathers when gun use and safety was commonly taught in public school.

    So according to the Second Amendment, we want all men of military age well trained in the use of weapons. And why is this? Because, as the preamble tells us, this is “necessary for the security of a free state.” By “a free state,” the Constitution means “a free country.”

    So all men of military age should be well-trained in weapons so that America survives as a free country.

    Well, what weapons? Obviously, the muskets and single-shot rifles in use when the Second Amendment was adopted are no longer sufficient to do the job. Today the Second Amendment protects a range of weapons appropriate for citizen militias resisting foreign invaders and tyrannical politicians.

    Now at this point someone favoring gun control always comes up with the line, “Well, does that mean that citizens have the right to hoard naval artillery and atomic bombs?”  And the answer is “No, the Second Amendment doesn’t encompass naval artillery or atomic bombs any more than the First Amendment includes falsely shouting ‘fire’ in a crowded theater.” The language and purposes of the Second Amendment, as well as its history, tell us what it excludes as well as what it includes.  Naval artillery and atomic bombs are not customary for personal self-defense and they never have been militia weapons used for repelling foreign invaders and domestic tyrants. In fact, the Second Amendment itself refers to the right to bear arms—that is, to carry arms—referring to weapons that normally are carried by a human being.

    Let’s focus for a minute on another purpose of the Second Amendment: protecting against domestic tyrants. We tend not to discuss this purpose much, but it might possibly have some relevance to the authoritarian types who currently dominate the Colorado legislature.

    Politicians in America right now tend to fall into either of two groups. There are those who generally favor freedom but also strongly support law enforcement. And there are those who are skeptical toward law enforcement but nevertheless seek to expand the power of government in many areas of life, and particularly in economic affairs. It’s not intuitively obvious which group should be for gun control.  You might think that those who favor economic freedom might be for gun control as a way of backing law enforcement. Or you might think those who favor more economic regulation might be against gun control because they are skeptical about law enforcement and might not want to give the police a monopoly over weapons.

    But we all know what the situation is in real life: In real life, the biggest advocates of gun control are precisely those who want to lord it over the rest of us in nearly every other aspect of life.

    Why is this? Well, reflect on the fact that the modern era of gun control began with the federal Gun Control Act of 1968. This law—if an unconstitutional act can be called a “law”—was passed in the wake of some ghastly political assassinations. I don’t think this is a coincidence. It’s reasonable to assume that those who wish to fasten more and more fetters on the productive people of American society might consider that one day they might go too far, and face physical and armed opposition.

    Indeed, just the fact that many citizens are armed may have a moderating influence on authoritarian politicians.

    The author of the first draft of the Second Amendment was James Madison. Madison’s favorite book of political theory was Aristotle’s Politics. Several times in that work Aristotle makes the point that all citizens should be should have weapons, and that only those with weapons should be citizens. Otherwise, he wrote, those that are disarmed are the slaves of those who are armed.

    The point was made another way by Jean Louis DeLolme, a Swiss jurist. DeLolme wrote a book on the English constitution that we know Madison read, and that was a source for other American Founders as well. In speaking of the need for an armed citizenry, DeLolme wrote:

    The Power of the People is not when they strike, but when they keep in awe. It is when they can overthrow every thing, that they never need to move; and Manlius [a Roman consul] included all in four words, when he said to the People of Rome, Ostendite bellum, pacem habebis. [Look toward war, and you shall have peace].

    The widespread ownership of firearms, therefore, helps to preserve freedom, usually without the need for armed violence. When politicians limit or harass gun ownership, the threat is far wider than the threat to guns alone. By reducing the number of citizens who are armed, gun control emboldens the authoritarian politicians to control everything else we do, thereby imperiling freedom generally.

    And this brings us specifically to the majority that now controls the state legislature.

    Certainly, their political views are pretty skewed. Consider one example.

    The same politicians who voted for gun control were by and large the politicians who voted for civil unions. If you have read that bill, you know it goes far beyond civil unions: It is really a same-sex marriage bill that is labeled a civil union measure in an effort to evade the marriage rules of the Colorado Constitution.

    Now, one basis for the civil unions bill is the U.S. Supreme Court’s holdings that the right to engage in sex outside of marriage, both heterosexual and homosexual, is a federal constitutional right. The Founders would have been astonished at this for a number of reasons. But that is what the modern Supreme Court says.

    Now, ask yourself: What would be the reaction of the Colorado legislature’s majority to a proposal requiring a background check before anyone could exercise the constitutional right of non-marital sex? What would be the reaction to a bill saying that the eager couple had to pay the fee for that background check? What would be the reaction of Speaker Ferrandino or Senate President Morse to a bill stating that the eager couple was limited to “15 rounds,” so to speak?

    No doubt those legislative leaders would explode in outrage. How can you limit a constitutional right that way?” they’d sputter.

    “Well,” we might respond. “You’re doing just that with an enumerated constitutional right—the Second Amendment.”

    When they stopped sputtering, they might argue that, well, “Guns are different. Fifteen thousand Americans die from gun violence each year.”

    “Are they?” We might say. “In fact, 17,000 Americans die from AIDS each year, primarily as a result of non-marital sex—and that figure doesn’t even count other sexually-transmitted diseases. So if you can impose background checks and the like on our right to keep and bear arms, then we can impose similar restrictions on your right to bare other parts of your body.”

    The same sort of argument that applies to the unenumerated right of non-marital sex and the enumerated right to keep and bear arms also applies to the enumerated rights of freedom of speech and freedom of the press. As a child of the 1960s and 70s, I remember how free use of the First Amendment allowed protesters to pressure the federal government into some fatal mistakes in Southeast Asia—mistakes that, as widely predicted, led inevitably to a bloodbath in which 2 million people died. You see, free speech can be very dangerous.

    But this is emphatically NOT an argument for government restrictions on free speech—nor is an argument for government restrictions on non-marital sex. As the courts properly hold, the state and federal constitutions protect even rights with potentially-dangerous consequences. For example, the courts hold that the government generally may NOT impose prior restraints on a person seeking to exercise First Amendment rights.

    Yet the worthies who run the Colorado legislature think nothing of imposing burdensome prior restraints on the entirely innocent enjoyment of Second Amendment rights.

    I think we can explain the difference partly because authoritarians understand, at some level, that disarmed citizens are easier to push around than armed citizens.

[The speech concluded by suggesting responses such as a lawsuit, recall efforts, and a citizen’s initiative to overturn the law.]