Freedom First!

How the First Amendment Actually Works

2011-11-18T06:40:00.000-05:00

For people, the citizens of the United States, laws are directed at prohibited acts. Citizens assume, and rightly so, that unless something is explicitly outlawed--it is legal. Two sections of the Constitution ensure this ideal. The first is an outright ban on Ex Post Facto legislation. Congress may not pass a law retroactively to punish a citizen for an act committed before such legislation. Therefore, citizens performing unregulated acts, no matter how immoral or unethical, have immunity from future legislation. The second protection is the Ninth Amendment, stating that the rights guaranteed by the other amendments ‘shall not be construed to deny or disparage others retained by the people’. The fear was that by simply listing some of the rights of the people, other rights would be denied for their lack of mention.

For the government however, it is the exact opposite. The government, supposedly, can only act within the powers explicitly granted, by the people, in the Constitution. Therefore, unmentioned powers are unconstitutional if acted upon. As many know, the federal government is broken into three separate branches. Each of the three branches has its own article clearly defining the power and purposes of that branch. The legislative branch is defined by Article I, and Section 8 lists the specific seventeen powers which Congress is granted. Only within those enumerated powers is Congress supposed to provide, regulate, and legislate.

However, Congress is not unlimited within the Article I Section 8 powers, further restrictions exist to limit congressional powers. Article I Section 9, and several amendments place those additional limitations on the enumerated powers. This is where the First Amendment is often misinterpreted. The First Amendment does not give rights, it simply limits congressional actions. The first five, often forgotten, words of the amendment make that intention clear--“Congress shall make no law...”. Such amendments were placed into effect because it was feared that legislators would improperly regulate using their own interpretation of powers granted in the Article I Section 8. Essentially, if a legislator believes that eliminating free speech may be “necessary and proper” to “regulate commerce”, they may not do so because of the limitations imposed by the First Amendment. Therefore, the First Amendment does not give any power to anybody, instead, it further restricts a legislature that may incorrectly assume it had such powers granted to it.

So, to be clear, the First Amendment does not grant rights to anybody. It is by limiting congressional actions that de facto rights are, in turn, assumed by everybody. By limiting what Congress may legislate, the people are free to exercise those unregulated acts.

Very unpopular decisions arise from such a system. Frequently, the Supreme Court is tasked with the burden of striking down popular laws which, on technical grounds, overstep restrictions imposed by the First Amendment. For instance, cases like Snyder v. Phelps (2011) and Citizens United v. FEC (2010) show that the Supreme Court will deny government powers of regulation in anything deemed limited by the First Amendment.

In Citizens United v. FEC (2010) the Supreme Court was asked whether Congress had overstepped constitutional limitations by passing the “Bipartisan Campaign Reform Act” (BCRA), better known as “McCain-Feingold”. One of the main reasons for the BCRA was to prohibit unlimited corporate, foreign, and not-for-profit donations to American political campaigns. The fear of potentially unlimited influence coming not only from a corporation, but a foreign one, caused Congress to act. The problem is, donating to political campaigns has been classified as free speech under the First Amendment, and because of such a classification, no laws can exist to prohibit such actions. The Supreme Court was simply asked whether the act was an unconstitutional law.

So, the Supreme Court was not asked whether citizens would benefit benefit from the BCRA, or the popular opinion on the matter. The Supreme Court was tasked with ‘upholding’ the Constitution of the United States--which they did, by striking down the BCRA.

Public outrage ensued, often citing that the First Amendment ‘does not give protection to corporations, let alone foreign ones’. Well, that is correct, foreign corporations receive just as little protection under the First Amendment as citizens of the United States do. That is because, again, all protections offered by the First Amendment are de facto through Congressional limitations.

This misinterpretation of the First Amendment is cause for much debate. A majority of justices, all having gone to law school, correctly understand how the Amendment applies. Unfortunately, though, most people in the United States do not identify the distinction between interpretations. Therefore, much of the debate surrounding Citizens United was based on factually incorrect understandings of the Constitution.

If the First Amendment had included text prohibiting Congress only in the case of ‘citizens’, they could have properly exercised their Article I Section 8 powers to prohibit, limit, and regulate corporate donations. But, since the First Amendment makes no such distinction, Congress is prohibited from forbidding any political donations, foreign or domestic, corporate or individual.

In the United States, the rights of the people are assumed, therefore congressional powers are granted. Nowhere are rights given to people, because that would imply that the government has the authority to not only grant freedom, but take it too.

The Threat of the Enemy Within

2011-02-03T19:57:00.006-05:00

Liberty needs constant and overwhelming support to ensure its continued prosperity and correct implementation. While liberty will always be threatened by foreign powers, it is the enemy within that is most dangerous. Since liberty loving societies often embrace democracy, a simple majority has the ability to gain power and bring about the destruction of their own freedom. Once a foreign power is able to initiate such a domestic movement, that free society will collapse from within. Therefore, the foreign enemy does not need to complete the destruction, but simply influence internal powers to complete their work for them.

The only way to combat such a scenario would be to encourage large domestic support for all liberty, thereby ensuring majority protection in a democratic society. But, if the free citizens become complacent and indifferent to their liberty, they become easily persuadable. Worse yet, if these citizens are coerced to embrace the loss of their liberty, all hope is lost.

Therefore, all that is needed to initiate the collapse of freedom is to influence certain domestic movements. Foreign enemies found this opportunity soon after George W. Bush took office. On and after September 11th 2001, the United States was attacked by enemies, foreign and domestic. While it is no surprise that there exist enemies of liberty worldwide, it was unexpected that such people lived everywhere in the United States.

As it turns out, terrorists were not the only people who hated freedom, they found their largest ally within their target. Under an authoritarian president, the liberty of Americans was not only left undefended, but willingly sacrificed. Regardless as to whether or not increases in government power actually make people safer, liberty is the victim of such measures nonetheless. By terrorizing Americans, foreign enemies were able to trigger a domestic movement focused on heightened security and future prevention. Such initiatives made a collective safety a higher priority than individual liberties.

Even though it was the foreign enemies that initially terrorized Americans, it was Bush’s role to ensure continual paranoia. Using scare tactics, a frightened majority was coerced to believe additional security was a necessity. Fear mongering was employed so successfully, Bush was able to attain support for any initiative by simply dramatizing a potential imminent threat. From there on out, Americans were continually tormented to ensure they complied with a security-first agenda.

Americans were unjustly asked to trade their freedoms, rights, privacy, and liberty, all for security. In a truly free society, such a trade is outright unacceptable, and should never be burdened upon the citizen, or even considered an option. If the precedent of a majority relinquishing the liberty of the entire citizenry is established, that society may still be democratic, but is no longer free. Instead, that society is subject to the will of a mob-rule.

Simply stating that increased security measures may deter or prevent another attack is not a legal argument to allow such actions. A tyranny created by a majority, albeit democratic, is a tyranny nonetheless. In the United States, individual liberties are suppose to be Constitutionally protected, not subject to majority change, or popular interpretation. The collective authority cannot deprive any person of their liberty, no matter how imminent an attack may be.

An Idiotic Comparison

2011-01-19T20:38:00.008-05:00

Again and again politicians defending the individual mandate of the health care overhaul will use an incorrect comparison that misleads the public. The individual mandate requiring all Americans to buy health insurance is, for some reason, compared to mandatory automobile insurance for car owners. The argument is that since ‘the government’ can force someone to buy car insurance, it must be constitutional for ‘the government’ to force someone to buy health insurance. Unfortunately after hearing such an argument, the uninformed listener will be satisfied with such an explanation and incorrectly agree with the constitutionality. Even worse, the counter-argument explaining why such a mandate is unconstitutional is lengthy and complex. Maintaining people’s attention and ensuring a real understanding of such an explanation is incredibly difficult.

So please, follow the reasoning for why individual mandates are unconstitutional while mandates requiring auto insurance are indeed, legal.

First, mandatory automobile insurance is required by state law. So when it is said that ‘the government’ can force someone to buy car insurance, the person speaking is intentionally omitting that a state government is compelling the purchase. Whereas ‘the government’ compelling the purchase of health insurance is the federal government, a different government with different powers. The use of the overly broad term ‘the government’ is an intentional manipulation that incorrectly combines 51 different governments into one. Comparing a state power to a federal power is outright invalid, and making such a comparison incorrect to begin with.

Second, why is it that every person in the United States does not have car insurance? Every state requires it, therefore everyone should have it, right? Well, not everyone owns a car! If someone is not engaged in the commerce of automobiles they are exempt form mandates relating to that commerce. Therefore, people still maintain the ability to refuse a contract with an insurance company. The difference is that the federal government tried to require that everyone buy health insurance, whether they wanted it or not. Worse yet, the Department of Justice argued that since someone may eventually engage in the commerce of health, that mandate is somehow constitutional under the commerce clause.

The most unfortunate aspect of this debate is the ‘automotive’ comparison spouted by ignorant politicians intentionally misleads the public. Using a simple term like ‘the government’ allows for misleading associations and incorrect constitutional arguments. Countering such a comparison requires too much time and attention to be effective. Once people hear the words ‘state’s rights’ or ‘commerce clause’ they stop paying attention.

The silver lining is that federal judges, and especially Supreme Court justices, are not so naïve and impressionable. Individual mandates stand no chance in federal courts. In the end, the Supreme Court will likely agree, as they have done before, that inactivity is not commerce, and Congress does not have the ability to mandate everything they choose.

Tort Reform is Freedom Reform

2011-01-07T16:59:00.004-05:00

An unfortunate conservative suggestion to the health care reform debate was ‘Tort Reform’, the idea that doctors be granted immunity from malpractice lawsuits. The logic is that since doctors spend so much time practicing ‘defensive medicine’, money and other resources are wasted preventing potential lawsuits. Essentially, doctors are running tests that are supposedly unnecessary, but will prevent a lawsuit in the event a patient later claims malpractice. If doctors did not have to perform such tests, costs could arguably go down. When less tests are ordered, Medicare and private insurance providers do not have to pay so much money to hospitals and doctors. Then, the insurance providers could make their coverage cheaper, and ultimately cover more (poorer) people.

Since conservatives have long held a grudge against an ‘activist judiciary’, imposing any legislative regulation is generally supported. In this case, ‘lowering health care costs’ is simply the argument used to further a larger movement of ‘judicial reform’. Conservatives are well aware that providing immunity to doctors is not only immoral, but generally considered unconstitutional. Of course though, through a conservative interpretation of the Constitution, individuals to not have the right to bring a lawsuit.

While it is somewhat agreeable that providing immunity to doctors will allow them to stop practicing ‘defensive medicine’, it is still not constitutional. An individual has a right to bring a lawsuit, especially against a doctor who incorrectly performed medicine. Even though costs have a potential for lowering, it does not allow a legislature to remove a long standing right to bring those lawsuits. If and when an individual abuses the system, their case is likely to be dismissed, and there is the potential for that individual to be prosecuted. Simply because there is a high potential for abuse, does not allow a legislature to outright deny people’s ability to sue.

In addition, the conservative agenda to quash judiciary abilities is pure violation of the separation of powers among the branches. A Legislature passing laws limiting a citizens use of the court system is simply unconstitutional. Under no interpretation of the Constitution should such a dangerous ideology be accepted.

In all, this is like any long standing issue about sacrificing the rights of the few to better the majority. Even more with this issue though, the high potential for abuse, and long history of judicial activism in pursuing doctors has prompted many legislative attempts to provide immunity. While the health care reform debate was ongoing, there was a larger push for ‘tort reform’ than ever. The only problem was, ‘tort reform’ was a conservative suggestion to ‘fixing health care’, and thankfully, not included in the health care law, which already limits freedom enough.

The real way to provide health care to more people at a cheaper price is to break down the barriers of competition. If a legislature were to allow interstate health insurance, instead of the current intrastate restriction, people would have more options. When more companies are competing for the consumer, prices have nowhere to go but down. Unfortunately, if Republicans attempt their approach to reforming health care, they will probably be just as reckless in recognizing individual rights as Democrats were. ‘Tort reform’ is an extraordinarily dangerous practice of a legislature, and ultimately should not be instituted.

Progress, A Common Misconception

2010-12-29T23:18:00.002-05:00

It has been suggested that the libertarian ideology does not ‘progress the country’ forward. Well, it is not supposed to. Aside from the ridiculous idea of ‘national progress’, there are multiple reasons for why the government should not intervene. The notion that the government is capable of initiating some sort of social movement at the whim of a simple majority is an unfortunate misunderstanding. It is simply not the role of the government to facilitate the responsibility and burden of ‘changes’. Additionally, government forced ‘change’ on everyone does not work, and more often than not, such attempts are unconstitutional.

More and more though, people believe that electing progressive leaders will allow their ideology to be forced onto everyone. The founders of this country recognized that inevitable possibility and made sure the government was limited in power. Many misunderstand that when a problem arises in the country, they can elect a leader who is able to ‘fix the problem’. While in reality, problems that arise in the private sector, can only be fixed in the private sector. The only action the government should take, is inaction.

The health care overhaul is the best example of this common misunderstanding. People were unfairly being denied coverage, while others could not afford the insurance to begin with. So, a majority elected legislators who believed that such a system could be fixed by the government. Of all the possibilities for the overhaul, Congress instituted a system where individuals were forced into buying insurance, against their will. Congress was never given such a power, and therefore that section of the law was ruled unconstitutional. Thankfully.

Still though, the expectation is that the government can create jobs, spur growth, and further initiate a ‘change’. While in reality, it is not their role to do any of those things. Nowhere is the government given the power to act upon such initiatives, nor should they attempt to. Even when the country is in great need, the government should not be permitted ‘help’ through means of regulation.

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What needs to be fixed is people’s understanding of the government’s power and role. It needs to be made clear that the government is not a vehicle from which a frustrated majority can force their ‘change’ onto a minority. There will always be people angry at corporations, such issues need to be resolved privately. As much of annoyance as unions and boycotts are, they are the perfect example of a free capitalistic method for protest and organization. Private resolution is not just the best way, it is the only way. Allowing government intervention sets an extraordinarily dangerous precedent that will, without a doubt, be abused and cause the downfall of this republic.

Aside, the United States was designed so that the government intervention was supposed to be an impossibility. The original Constitution specifically stated that each branch of government only had the powers specifically granted to it. Immediately though, everyone had their own interpretation of the Constitution which, unfortunately, allowed for more intervention. So, amendments were added to further restrict government role. But since the passage of the Bill of the Rights, modern interpretations have still allowed for more government involvement.

The true battle is to correctly educate citizens about their government. A top priority should be to correct the common misconceptions about how the government operates. Then hopefully, the absurd idea of government imposed solutions will no longer exist, and people will understand that electing a ‘change’ is impossible. The very idea that the government can intervene into such matters is incorrect. People need to learn to how to organize and assemble privately to solve their problems, without the government.

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The libertarian ideology does not eliminate all progress, just government imposed ‘progress’. If an individual or groups of individuals decide to organize and protest privately, it is no business of the state.

More Executive Growth: Net Neutrality

2010-12-24T03:24:00.005-05:00

Net Neutrality, is its simplest form is government imposed regulations to ensure the Internet remains open and free. In reality, not allowing the provider of Internet services to censor or limit the content received by the end user. Although these ideals seem well intentioned, there are three reasons Net Neutrality should not be practiced. First, It is simply not the role of the government to regulate what an Internet Service Provider (ISP) may and may not do on their private network. Second, the Internet has largely been an experiment into how free expression and market coexist without any government intervention whatsoever, at least in United States. And third, this recent instance of Net Neutrality has been nothing short of unconstitutional.

The role of the federal government on a domestic front is to ensure the individual liberties of its citizenry. The Federal Communications Commission's very existence is questionable. Even though airwaves are owned by the public, the FCC has overreached its authority by trying to regulate private corporations on private networks. In no way does the government have any authority to regulate what an ISP may do with its servers, lines, and customers. Remember, the FCC can only regulate publicly owned systems, and only if the Legislative gives them permission to do so. Besides, it is wholly inconsistent with a free market system for the government to have any say in private policies. A contract between an individual and an ISP is strictly private, simply because more and more people decide to engage in a commerce, does not provide opening from which to regulate.

So far, the Internet has a been a technological utopia of information sharing, and has yet to need any government intervention. At no point, including now, was the government needed to intervene into the policy making of ISPs. The Internet has been an astounding success of marketing and expression lacking any censorship or regulation. On all levels, the Internet remains totally uncensored and untaxed. Although some content may be illegal to access, it is never filtered or restricted from that access. On the other hand, countries like North Korea and China have federal agencies dedicated to ‘protecting its citizenry’ from content it deems harmful. If the FCC continues with the dangerous precedent of asserting authority in private industries, rampant censorship and content control will be implemented. Knowing the FCC’s track record, once they have their foot in the door, any and all content deemed offensive is censored. It is only a matter of time before the FCC again overreaches its authority and starts implementing its ‘family friendly’ initiative on the Internet.

The FCC, under the executive branch of government, acted alone in imposing these regulations. This recent instance of ‘net neutrality’ is nothing short of a power grab and simply unconstitutional, as a check and balance of the government, executive power needs to be granted by the legislative. And still, the Judicial branch has been quite clear that the FCC has no authority to regulate these private industries, even with legislative approval. The Legislative has been intentionally inactive on pursuing such terrible initiatives, often recognizing that the Internet should go unregulated. But still, the FCC forced its way in, without any authority in an essential coup by liberal progressives. The FCC has tried to claim standing by saying that since the Internet is a means of communication, it may regulate. It should be noted, that the FCC is only allowed to regulate publicly owned communications, not privately owned systems. So, even if the Internet was considered a means of communication, the FCC would still lack standing. Like other initiatives of this administration though, these executive actions were falsely promoted through a necessity of government enforced ‘greater equality’.

Even more astounding is the lack of abuse, despite the large potential dramatized by the FCC. The only notable example of telecommunication abuse has been well publicized. It was when Comcast blocked the use of BitTorrent on their servers. Although this seemed unfair, especially to those who were paying for the services offered, Comcast had the right. Better yet, the free market was able to resolve this problem. What Comcast thought would be a small action to free up their servers, turned into a public relations nightmare. People had organized and reacted, without government intervention, and Comcast was so fearful of losing business, they rescinded their block. So, because of fear from losing customers, Comcast complied with the demand of a large consumer backlash, as they should have. Nowhere was the government needed to force Comcast into maintaining a freer Internet, the consumers successfully acted alone. Like any business, keeping costumers happy is a necessity. Ultimately, is the consumer that has the power anyway.

In all, the FCC is using an authority they do not have to fix a problem that does not exist, while eroding freedom, and ignoring checks and balances all at once. In this instance, progressives have dramatized a potential for abuse, pretending such problems actually exist, then using those imaginary problems, they argue the executive has a long standing right to intervene, which they do not. As if the FCC is not a symbol of oppression and fascism enough, these recent actions have taken another step down the slippery slope of regulation. If the FCC successfully defends a right to regulate the Internet, technological freedom, as we know it, will no longer exist.

Educating on Communism

2010-12-21T15:44:00.009-05:00

Note: There is no such thing a citizen of Communism, a citizen would, by definition, imply individuality. Communism, as self defined, forces collective thoughts and actions, all instances of individual thought and freedom are abandoned for a greater good. Therefore, the hypothetical individuals in a communistic state will be referred to as “victims” here on after.

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Communism, in the shortest definition, is the anti-freedom of government types. On both the economic and social spectra, Communism advocates that the state has absolute power under a single executive leader. Everything is done for a greater good, and individuals are sacrificed, as needed, for this higher cause. In practice, Communism needs to maintain absolute control of its victims so that the state monopoly of power is never jeopardized. Everything from thought to action needs to be policed as the state sees fit. In effect, Communism’s victims are forced to believe and do whatever is determined beneficial to everyone.

The individual is worthless. All ideas and actions directed at self promotion are strictly prohibited. Any action that furthers oneself, no matter how small, is considered greed and threatens the fragile stability of the state. Anything deemed self-promoting is therefore an action against the state, and an action against everyone.

The individual owns nothing. All work is done for the state, and the state gives back what it deems needed. Communism, in the economic sense, is the polar opposite of Capitalism. Collectively, everyone owns everything, and the state is tasked with dividing it upon everyone as needed. Wealth, innovation, and entrepreneurship have no place in a communistic society. A technological dark age exists because motivation lacks to innovate without the ability to reap the benefits of one’s own work. No one takes responsibility for maintaining the common goods because there is no incentive for such a burden, while the unintentional and purely natural tendency to want more than another person is constantly quashed by the state.

In a social sense, Communism has no place for discourse or activism. The state strictly controls every action taken by its victims. Anything deemed a danger to the state, and in turn everyone at large, is unacceptable. Any opposition that undermines the state’s actions will not be tolerated. Any such victim who dares question any aspect of their government will be silenced immediately. Any idea contrary to the state’s cannot be given the opportunity to grow into tangible opposition. No individual freedoms exist, only when something is deemed beneficial to society at large, is it permissible.

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The theory and practice of communism are not differentiable, anything suggesting otherwise is absurd. Stalin is undeniably inseparable from Communism, both the practice and theory. While Communists may speak of their theory of Communism, which is more peaceful than those in practice, do not be fooled, they are all the same. A system that advocates for no personal ownership needs an abusive and tyrannical executive to enforce such ideas. It is way too optimistic to believe that once a country adopts Communism that everyone willingly relinquishes their belongings. Stalin was a necessity to ensure that a forceful government takeover would accompany the national communistic ideology.

A Communist state cannot exist without the harsh and brutal enforcement of a tyrant acting in the name of a greater good. There is no such thing as a anarcho-Communist state, it is simply an impossibility. Human nature will always have someone wanting more than another, which, according to Communists, needs to be policed away. An extraordinarily large government controlling everything is an undeniable reality that will always burden a Communist state. A pseudo-utopia of everyone willingly sharing their belongings will only exist in a Communist’s imagination, no practice is ever achievable. Therefore, Communist states are always stuck in the middle ground between adopting the ideas, and enjoying the supposed benefits. Everyone who disagrees with the ideals posed needs to be coerced, ‘reeducated’, or most often killed.

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In the modern United States, Communism is not as reviled as it should be. Long gone are the days when America’s youth adequately understood the danger posed by these radical practices. Instead, students are now subjected to communism as simply ‘another type of government’ different from their own. To even suggest that Communism is simply another option, is downright idiotic and undoubtedly biased. Communism is the anti-United States. Individual ownership and responsibility are the ideals that should be preached. Instead, trendy youth wear their Che attire, simply to object to the system. Often totally unaware of who Che Guevara is, these youth are not educated into his methodical killings and ridiculous ideology. Nowhere are students informed of how speaking out, as they do, would be an unacceptable option anywhere but in a free Capitalistic state.

Normally, communists are correctly labeled fanatical freedom haters, a simple education into communist history has ensured this proper characterization. However, without that correct education, people will no longer dismiss these fanatics outright. Instead, American youths are being told half-truths about Communism to conceal its horrific history.

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Capitalism, although not perfect, is best able to take advantage of human nature. The drive for wealth and the inherent tendencies of greed are able to benefit everyone through free markets. While Communism will, undoubtedly, collapse because no one cares about their work or the collective belongings. Capitalism institutes a system where self ownership is idealized. In this system, the drive for wealth creates innovation and employs the nation. It is the competition to better oneself that allows for an ultimate greater good.

In the United States, economic and social freedoms are stressed equally. Also, individuals are born with these freedoms, no government has the power to grant or retract them. The tendency of greed is idealized in such ways to incentivize growth and innovation. Unlike Communism, a free capitalist state allows for opposition within. What is used to combat this domestic opposition is a good education. If the proper education into the history and brutality of communism is lost, an incorrect resurgence of such ideas is likely to occur.