My friend and fellow lawyer (and law clerk and TA at Penn State University’s School of Law) Josh Blackman has put out two new videos with his non-profit, the Harlan Institute. Named after the former justice, the Institutes mission is to facilitate learning about the supreme Court and the Constitution among high school aged students. Among other services, Harlon offers preset curriculums for teachers—great for rainy days! Josh has recently been able to multiply his institutes efforts by partnering with Justice Sandra O’Connor’s outfit dedicated to promoting created civic awareness. Check out Josh’s videos promoting the Harlan Institute and FantasyScotus—yes, a fantasy sports game that allows you to predict just like the justices predict:

In Louisiana, it is illegal for anyone other than licensed funeral home directors to sell caskets. The state is now after Saint Joseph Abbey in Covington, LA, for their nefarious casket-making activities.

The Institute for Justice is on the case and has put out this video:

The 6th Circuit struck down a Tennessee law that prevented anyone who was not a licensed funeral home director from selling caskets in Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002). Significantly, the court held that the law did not even pass rational basis review. My (liberal) constitutional law professor described the law as “So crazy — this law smells so bad, like unrefrigerated 5-week old fish.”

Civil liberties cases like these (i.e. the right to be left alone) create an interesting analysis as they do not fit well in the pedestrian definitions of “conservative” and “liberal.”

Of course, a favorite conservative battle cry around SA is “States’ Rights!”. For a while (the Lochner period) the Federal government was acting like a super-legislature, severely meddling in the States’ economic activity. Finally, we emerged from this period (via Nebbia v. New York) and the Supreme Court said it would uphold any state economic regulation that served a rational basis.

So what about cases like Saint Joseph Abbey? An unbridled pro-States’ rights viewpoint would say it is up to Louisiana to decide how they run their business. Despite my affinity for States’ rights, I think the Federal Courts should strike laws like this down when there is no rational basis supporting the law. The only reason for the Louisiana casket law is to protect funeral home directors. I love States’ rights, but I like to be left alone even more.

What are your thoughts: valid regulation or impermissible interference?

No surprise here. Neither is Judge Vaughn Walker’s reasoning that gay marriage is a constitutional right per the 14th Amendment. “Reasoning?”

As the GayPatriot blog reports, and I have no reason to question his analysis, since he’s “the most reliably conservative gay blog on the Internet” and I’ve always found him to be so:

I have now read or skimmed the entire opinion. I find that the judge makes some good arguments for gay marriage, but doesn’t succeed in relating them to the constitution. His legal analysis is sloppy at best and dismisses the sex-difference argument for traditional marriage by flippantly referring to what he calls “discredited notions of gender” as if the assumptions about a supposed social construction of gender had been proven true when, in fact, all serious psychological, sociological studies have shown the opposite. Not to mention studies of the human brain.

He fails to cite a provision of the federal constitution which prevents states from making distinctions based on sex difference, primarily because there isn’t one.

Either you believe two men or two women can make a “marriage,” or you believe it takes one of each gender. No big deal. It has nothing to do with the US Constitution or even its 14th Amendment. It’s a matter of belief.

BTW—and I’ve never heard it mentioned in all of this—the 14th Amendment itself makes a distinction on the “notion of gender,” see Section 2 of the 14th:

But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime…

[Bold face mine. I didn't even know there was an "Article 2" until I looked up the Fourteenth's text. What is this?]

“Discredited notions of gender?” Well, perhaps by modern social science, but not even by the 14th Amendment to the Constitution. “Discredited” is in Judge Walker’s head.

So “GayPatriot,” B. Daniel Blatt, writes with his customary accuracy:

Too bad he fails to cite any (of the many) serious studies on sex-difference.

If the “Living Constitution” and judges quoting social science are to become our rulers—throwing overboard the words of the Constitution and the 14th amendment itself, as well as the will of the people via California’s initiative process, let’s just be honest about it, OK?

And we ought to be honest about all that “social science” while we’re at it, wouldn’t you think? Not just pick the data we like?

These are “GayPatriot’s” two major arguments, one constitutional and the other empirical—each strong enough to stand alone, and that’s not even getting anywhere near the “morality” thing. Would that he’d have argued the Prop 8 case.

We call ourselves a “constitutional democracy,” or a “constitutional republic.” At least according to Judge Walker’s decision, we are none of the above. We are not self-governing citizens, we are the ruled.

Again, the eloquent Mr. Blatt:

I find that the judge makes some good arguments for gay marriage, but doesn’t succeed in relating them to the constitution. His legal analysis is sloppy at best and dismisses the sex-difference argument for traditional marriage by flippantly referring to what he calls “discredited notions of gender.”

…

Antiquated and discredited notions of gender? Discredited by whom? Sociologists writing in the 1970s, inventing a social construct out of thin air?

I meself have no problem with endorsing Mr. Blatt here as a “patriot,” gay or otherwise. Seems like an honest man. Perhaps he does hold that two persons of the same gender can indeed make a “marriage.” No matter: what we do know for certain is that Mr. Blatt respects the democratic process, republicanism, and the Constitution, and that makes him a patriot.

I reckon he makes many folks unhappy with this, gay and conservative, often mutually exclusive categories. Well done, sir.
____________

As for the actual “trial” before Judge Walker, by all accounts, counsel for Prop. 8 was strictly minor-league. Against Prop. 8 were legal superstars Ted Olsen and David Boies, the combatants in Bush v. Gore [2000], now both on the same legal dream team.

Heh heh. What a mismatch. Let’s get real here—nobody beats Spencer Tracy, not even Frederic March. Look at their faces. Who’s right and who’s wrong?

This is July 15, 2010 Cato Institute podcast featuring Todd Zywicki, professor of law at George Mason University.

Next to the 18th amendment, the 17th is the worst.

They could have gone further . . .

Article 1, Section 10, Cl. 3 of the Constitution of the United States of America provides that “[n]o state shall, without the consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

This section of the U.S. Constitution gives to the State of Arizona (or any other State) the right to engage in war if “actually invaded” or if there is “such imminent Danger as will not admit of delay.”

So opines The American Thinker.

When we read the stories from France, England, and Scandinavia about the gradual Islamicization of public space, we have a sense of distance.  But this video from Acts 17 Apologetics demonstrates that many American cities are becoming fronts in this same struggle.

This group planned to distribute English/Arabic copies of the Gospel of John outside an Arab cultural festival in Dearborn, Michigan.  Several members of the group, which includes Muslim converts to Christianity, were arrested last year in a similar endeavor.

Four members of the group–including one with a video camera who was across the street and not distributing the gospels–were arrested and released after processing.

“We did make four arrests for disorderly conduct,” Dearborn Police Chief Ron Haddad said Saturday. “They did cause a stir.” Detroit Free Press

There is no evidence of disorderly conduct in the video, or of any ‘stir’ created by the men’s presence (though there probably would have been).  The police are on the scene in force within three minutes, not to protect the free speech rights of the men, but to remove them from the scene.

According to the Acts 17 spokesman, the evangelists would have had to be five blocks from the festival in order to be free from harassment by the authorities.

The real problem here, of course, is not the actions of the Christians, but the response of the Muslims.   We are willing to stifle the most basic free speech rights in order to protect the sensitivity of others and to maintain ‘public order.’  The problem is those who would disturb the peace, not with those handing out whatever materials.

Do I enjoy collecting tracts (or more ‘progressive’ materials in hipper towns) as I walk down the street?  No.  But the tradition of handing out pamphlets has a long history in this country; in fact, it played a large role in our founding.

HT Powerline, where John writes, “Many people seem to believe that concerns about creeping sharia are exaggerated or misplaced. This incident demonstrates, I think, the contrary.”

Heh-heh. “The Bork hearings were great, the Bork hearings were educational.” So let’s have some education during your hearings Ms. Kagan. I’ll bet she’s fantasizing about it.

And his job description? Because apparently (and quite embarrassingly) Frank A. LoBiondo of New Jersey, 2nd District, does not….

The gotcha moments of Youtube are telling and quite informative.

I’m interested in what the legal eagles here have to say about this recent post at the American Thinker:

A young mother finds that the IRS has withheld several hundred dollars from her paycheck as a “penalty” for not having health insurance. (Despite whatever incentives are in the law, this woman did not want to fill out the forms or apply for aid, or she had other more pressing financial problems to address. In short, she simply didn’t want or perhaps did not have the time and resources to purchase health insurance.)

Because of the IRS “penalty,” the young mother cannot pay her rent. She and her child are suddenly without a place to live.

Constitutional legal foundations (and perhaps some state attorneys general) step in to represent the young mother. Their argument should go something like this: The woman’s constitutional rights under the 4th, 5th, 6th, 7th, 8th, and 9th Amendments have been violated . . .

From today’s NRO editorial:

A bill expected to pass the House today with overwhelming Democratic support would accomplish something peculiar for a liberal republic in the 21st century: It would partly disenfranchise a portion of one state’s residents, create a parallel government for those meeting a legislated criterion of ethnic purity, and would portend the transfer of public assets, land, and political power from those who fail to satisfy the standard of ethnic purity to those who do. For these reasons and many more, the Native Hawaiian Government Reorganization Act richly deserves opposition.

“To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” ~ Justice Scalia

While I’m not arguing for secession, since when did a war “resolve” a constitutional question?

More here.

After the State of the Union, a question hung out there: how would the supreme Court respond to President Obama. Well, they wouldn’t. They couldn’t. They shouldn’t. Though we have checks and balances, our branches are not co-equal. The President’s bully pulpit and executive authority truly is checked only by Congress. To any supreme Court decision the President may (and has in the past said…), “they have their decision, let them enforce it.” Thus the judges show deferential silence. That does not mean, however, a Justice cannot make a rather smart, off-the-cuff comment in rebuttal. Here’s what Clarence Thomas said yesterday to a group of law students concerning Citizens United: (more…)

Mr. Obama has his opinion; now let him render it.

“Education, after all, is typically described as a core, and possibly the core, state responsibility . . . Homeschooling is now such an entrenched practice, recriminalization is not a viable option in any event.” ~ Robin L. West, Georgetown University Law Center

Not a “viable option?” Well at least I can rest peacefully tonight knowing that jack-booted thugs won’t be knocking my daughter’s door down any time soon to arrest her for teaching “the state’s children.” (My daughter would want to know where the state was when she was going through those labor pains to deliver “their” children. By the way Professor, the youngest one has something stinky in her diaper – could you lend a hand here?) Professor West thinks that more government regulation of homeschooling is a good idea:

As the political philosopher and homeschool critic Robert Reich has persuasively argued, curricular review would give the state a way to ensure that the academic content is such as to protect the children’s interest in both acquiring the necessary skills for active, autonomous, and responsible citizenship in adulthood, and in being exposed to diverse and more liberal ways.

Well, gee whiz, that approach certainly has worked wonders in the public schools, hasn’t it? Diverse and more liberal – that’s what this is really all about. Professor West doesn’t like the fact that “the state” is losing the opportunity to indoctrinate OUR children.  Maybe she’s bucking for Secretary of Education in the Obama administration. More here.

I just got back from my sister’s where she had the long-form of the census sitting on her countertop. It included, I think, well-over twenty pages. The questions covered everything from who lived in her house to examinations on income, education, etc. So, I broke out my constitution and read the Census clause:

“[An] Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”

It seems to me that the only thing the constitution expressly authorizes Congress to legislate on is an “enumeration” that is a head count of people. No questions about income. Or education. Or pets in the house. Nothing. Just “how many people live at this address” and whatever information is reasonably necessary to prevent double counting (like the names of those people, sex and DOB). When I asked my sister what she thought of this she said, “well, how would the departments of commerce, labor, health and human services and all those other places be able to do their job without all this information?” Exactly.

Here’s a right of privacy I can get behind: the government can’t find out anything more about me in its census precisely because it doesn’t have the power to do so. Nothing in that clause gives it the power. The “in such a manner as they shall by law” refers to Congress deciding how and in what manner to undertake the “enumeration” and an “enumeration” most plainly and simply (and narrowly construed) means “1, 2, 3….350 million…”. That’s it. Why the left (from a Civil Liberties perspective) and the right (from a limited government/starve the leviathan goal) don’t both get behind this, I don’t understand…

…oh wait, yes I do: It’s all about the Benjamin’s Baby. Money for Congress to dole out and the Executive branch to play with…

There is nothing more distasteful, I find, than a sobriety checkpoint. The police have zero probable cause for creating a long-line on the road and detaining me for an hour or more just to ask if I have been drinking. The argument is basically this. You are driving. It is late. People like to drink late at night. Those who like to drink late at night sometimes also like to drive after they drink. Ergo, it is possible that you because you are out late at night and are driving,  you may be drinking and driving. The logic is faulty on a number of levels, not the least of which that drinking and driving are of course not legally wrong, but only drinking too much according to the standard set by the law (and even then, one might be legally drunk but perfectly capable of driving a car neither recklessly nor negligently). But say you are just out. What gives the police the right to stop you to ask if you’ve been drinking and driving? Under normal circumstances, the police need some sort of suspicious behavior or infraction (even if your taillight is out, that is enough). But here it is only because you belong to a potential class of people. Thus, based on a theory that everyone out that night is potentially a member of that class, you can be stopped. BUT FOR my driving, I wouldn’t be out that night. Is that really enough?

Well, thanks to Google Scholar, the following case is free and very readily accessible online: Michigan v. Sitz, 1990, US Supreme Court. In it, Rehnquist says it is a reasonable interest of the state to conduct such a search, notwithstanding the 4th Amendment, because drunk driving is a real problem. The dissents aren’t very helpful because the dissenters get into “effectiveness” of the stop rather than the logic that just by-passes the 4th amendments requirements for probable cause.

License and registration please!

Via DrewM. over at Ace of Spades, we are provided with another gleaming example of David Frum’s genius. David Frum is the self-styled intellectual leader of the conservative movement who regularly insults conservatives and conservative ideas.

In a recent article Mr. Frum attempts to correct the misguided idea among many on the right that Obamacare might be constitutionally defective. However, Mr. Frum’s period of instruction might have been more convincing had he actually read the Constitution first. Check out this example of keen constitutional analysis:

DeMint’s and Ensign’s argument against the constitutionality of the Obama-Reid health reform rests upon the ancient theory of enumerated powers. Under this theory, Congress may do only what the Constitution specifically authorizes Congress to do. Since (for example) the Constitution speaks only of a Supreme Court, Congress has no power to create lower federal courts. Since the Constitution does not mention a national bank, Congress may not charter banks.

Wow! According to Section 1, Article III of my Constitution Congress DOES have the enumerated power to create lower courts.

At any rate, the rest of the article mistakenly conflates Medicare and Social Security with Obamacare’s requirement that individual’s buy a product (insurance) from a private company.

I did find Frum’s equation of small government conservatives with the jurisprudence of Roger Taney more humorous than insulting. Taney was the author of the Dred Scott decision, a decision in which an arm of the federal government (the Supreme Court) stripped individual states of the power to define what was property within their borders or who could be a citizen. According to Taney, the citizens of Illinois, or any other state, lacked the authority to decide that a black man was more than just an article of private property. It is impossible to imagine a decision more antithetical to small government conservatism than Dred Scott. However, you would have to know something about both the constitution and conservatism to understand that point, something Mr. Frum apparently lacks.

If you want to read an intelligent constitutional take down of Obamacare then you should read this article from Richard Epstein.

With the Senate poised to ram through a horrendous, arguably unconstitutional piece of legislation that will do irrevocable harm to our country if eventually signed into law, it might seem a bit odd to muse on the success of Framers’ constitutional design.  But when you take a step back, you realize that the intent of the Framers to slow down the machinery of government continues to thrive today.

A year ago Barack Obama was elected president.  He has complete control of the Executive branch of government.  Democrats widened their majority in the House, and obtained a super majority in the Senate, ending up with a filibuster proof majority by the middle of this year.  Meanwhile, the federal judiciary remains somewhat divided as our Supreme Court is essentially a 4-4 split with the Nation’s legal balance at the mercy of Anthony Kennedy’s mood.

So the Democrats have complete control of two of the three branches of the federal government, along with control of a majority of state governments.  Yet this year they have accomplished little in the way of meaningful long-term legislation.  They rammed through a stimulus package that costs taxpayers near a trillion dollars and expanded our federal debt without doing much in the way of actual stimulus.  But this was a one-time only piece of legislation that does not create a new federal entitlement program.  Meanwhile, cap-and-trade legislation passed the House of Representatives, but it is stalled in the Senate, and it is fairly unlikely that any substantial bill will ultimately get passed (though the EPA could act).  And despite huge legislative majorities and a seemingly favorable political mood for reform, at least at the beginning of the year, Democrats have only managed to get some kind of reform near passage through heavy compromise, cajoling, and outright bribery, and it’s still only a 50/50 proposition that President Obama will ever get any legislation to sign.

So despite this considerable numerical advantage, Democrats have not been able to enact the sort of radical “reforms” their supporters believed were imminently on the horizon.  There are numerous factors – the economy made environmental reform less palatable, significant public support for health care reform never materialized, Blue Dog Democrats remained reluctant to sign on to change – but, ultimately, we can thank the constitutional design of the Framers for making radical innovation difficult to achieve.  The Framers did not intend to make change impossible – that would have been manifestly wrong – but they did seek to create a system that limited the power of the government to act swiftly thanks to mechanisms such as checks and balances and the separation of powers. The country has changed in myriad ways, and the constitutional system has been altered considerably especially over the past 80 years.  But the Constitution still has a strong heartbeat, one that is stronger than even the more pessimistic among us realize.

That’s what I’m rooting for. Honorary coaches for the coin flip: Barry Lynn (Patriots) and Jay Sekula (Saints). No matter what the toss’s result, Lynn attributes it to the laws of physics while Sekula credits providence (though, as a Thomist, I think they’re both right!)

According to Yeshiva University law professor, Marci Hamilton, the Stupak Amendment is unconstitutional because its supporters are motivated by religion. It’s not clear how Professor Hamilton knows the motivations of every single person who supports the amendment. But setting that question aside, why should “religious motivation” matter to the legitimacy of a citizen’s participation in the public conversation on an issue over which citizens from a wide variety of traditions disagree? Apparently, according to Professor Hamilton, a citizen who takes his or her religious beliefs seriously is the proper subject of civic disenfranchisement. As I write in an article I published in the Hastings Constitutional Law Quarterly in 2006 (“The Court of Disbelief: The Constitution’s Article VI Religious Test Prohibition and the Judiciary’s Religious Motive Analysis”)
(more…)

Before looking at Federalists 18, 19, and 20, I note that there’s some dispute about the authorship of these three.  Madison is universally credited with being at least the co-author of all three essays, and many sources give sole credit to him.  The Benjamin Wright edition that I use lists Madison singly as the author, but the website where I am linking to cites Madison and Hamilton as co-authors.  My own sense after closely reading them is that there is at least a trace of Alexander Hamilton present, especially in numbers 19 and 20.  At any rate, I’ll simply refer to the author as Publius for this group of papers.

Publius gives a bit of a history lesson in Federalists 18-20.  He traces the history of ancient confederacies and analyzes the causes of their collective failures.  He starts out in number 18 by taking a look at the Greek confederacies and observes that they all retained their independence and sovereignty. (more…)

Alexander Hamilton commences his discussion of the deficiencies of confederacy with Federalist 15.  Publius has alluded to this throughout the first 14 papers, but now he undertakes a concerted effort to demonstrate the insufficiency of the confederate form of government.  This particular essay is even more polemical than is usual for Hamilton.  So convinced is he that the confederacy falls short of meeting the needs of the Nation, he asserts that it is beyond debate.

In pursuance of the plan which I have laid down for the discussion of the subject, the point next in order to be examined is the insufficiency of the present Confederation to the preservation of the Union. It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as by the friends of the new Constitution. It must in truth be acknowledged that, however these may differ in other respects, they in general appear to harmonize in this sentiment, at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impending anarchy. The facts that support this opinion are no longer objects of speculation. They have forced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extremity at which we are arrived, a reluctant confession of the reality of those defects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the Union. (more…)

In November 2004 the board of the Dover Area School District of Pennsylvania formulated and promulgated a policy that required Dover High School ninth grade biology teachers to read in class a series of brief paragraphs:

The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part.

Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.

Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.

The policy never took effect. Soon after the school board’s action, several parents of Dover school children, assisted by attorneys from the American Civil Liberties Union of Pennsylvania, brought suit against the school district. These citizens argued that the policy violated the establishment clause of the Constitution’s First Amendment. Federal Districtt Court Judge E. Jones, III, agreed, and ruled in their favor.

(more…)

One story not yet getting play in “Nobelgate” is that the committee that selects the Nobel Peace Prize is based out of Norway—and selected by the Parliament of Norway—but Sweden-based committees formed from the various Swedish academies select all the other prizes. The bottom line? Talking to a few of my relatives this morning who live in Sweden (and these are left-of-center relatives) they together with most of Sweden are livid at Norway for letting such a folly and scandal happen because it lowers the prestige of the Swedish-based awards. My relatives said that in Sweden, Obama’s failure to decline the award has lowered his prestige there because they see it as a “no-brainer” that he should recognize that he has done nothing to merit the award. It really calls into question why exactly they gave Obama the award: Do they think the prize will somehow sway his actions in Iran and Afghanistan? Is it just a slap at eight years of Bush? Or, do they just not think at all?

One additional aside: this blog raises the question as to whether the emoluments clause (Article II, Section 9) requires Congressional authorization in order for a sitting-President to accept the award. For what it is worth, Teddy Roosevelt and Wilson did not get Congressional authorization, but that still doesn’t mean it’s right. One commenter to this post suggests that Congress’s own statutes pre-authorize the reception of this type of gift. Have at it.

Alexander Hamilton takes up his quill again to pen the next four Federalist Papers.  The underlying theme is still the importance of a united Nation, but now Hamilton discusses the discord that will arise between the states if they form rival confederacies.

At the start of the sixth paper, Hamilton touches upon a subject which will be the point of emphasis for James Madison down the line. (more…)

I have started a series on my personal blog where I take a look at each of the Federalist Papers.  Here is one, two, and three-five.  I will be cross-posting here as well from now on.

via Big Government

Rep. Nadler (D-NY) claimed today that the Republican-led initiative to defund ACORN is an unconstitutional bill of attainder. I am no expert on bills of attainder but this does not seem like one. Rather than a punishment for past action without trial (i.e. a bill of attainder), voting to cease funding ACORN is more of a decision that the appalling, systemic flaws present in the organization make it unfit to continue receiving federal funds. I would think there is a key distinction between discontinuing funding and a punishment that requires ACORN to do something.

Any thoughts on this?

(Cross-posted on Underdog Soldier)

There are A LOT of good, good polices officers out there. But this officer (in a rather calm and matter-of-fact manner) basically abuses this man’s free speech by forcing him to take down a sign he was holding up at last week’s town hall meeting with Representative Jim Moran in Virginia. Do I think the sign is particularly effective or in good taste? No. But I don’t think the officer had any right to actually ask this man to take the sign down or leave or even threaten arrest. My only sympathy is that the officer was just “doing his job as he was told.” But that still ain’t mean what he does is right:

There is a proposal kicking around the Senate to ban texting while driving.  Michael Denton disapproves, and I agree with him up to a point.  It is difficult – okay, frankly impossible – to see how the federal government has any power to implement this ban.  I dislike the method by which Congress gets around its lack of constitutional lack of authority: namely, withholding federal highway funds if the state refuses to comply with the federal mandate.  This is tantamount to legal extortion.  There is at best a tenuous connection to interstate commerce, though I suppose there have been worse applications in the past.

And then there’s the fact that Chuck Schumer is one of the people who introduced the ban.  Anything that Chuck Schumer proposes is automatically suspect.

All that being said, this is one of those rare instances where the government does possess reasonable justification in acting.  Studies, common sense, and lived experience all demonstrate that driving while texting is incredibly dangerous.  One would think you wouldn’t need to actually write a law to prevent people doing something so manifestly stupid and dangerous.  Furthermore, a texting driver is putting other lives at danger.  If government exists for any reason at all it is to prevent citizens from being able to kill other citizens.  This is kind of basic.

We’re not talking about something that is merely stupid.  There is barely any difference from driving while texting and driving while drunk.  Both activities severely impair one’s driving abilities to the point where you are a menace to other people on the road.  On the talk shows and other blogs I keep hearing the slippery slope argument.  “Well, if they can ban this, why not fiddling with the radio, eating, or picking one’s nose?”  While I am sympathetic to slippery slope arguments and do believe that every expansion of the government’s powers makes the next extension more feasible, we could make such arguments about practically anything the government does.  At some point we should be able to employ common sense and distinguish between rational and irrational uses of government power.  Texting while driving is clearly something different than just tuning the radio – though indeed the latter can be dangerous if one becomes too engrossed.  But I think pushing the up channel button involves a little less brain power than typing out a text message on one’s phone.

I have no problem with such bans.  Just let the 40 or so states that don’t already have such bans get around to it on their own.

(Cross-posted at CC)