Are people inherently born with the right to an important and well-paying job? How about a decent house? The author of a recent article in the St. Louis Beacon certainly thinks so. He advocates a larger government role in job creation and cites Franklin D. Roosevelt’s “Second Bill of Rights,” or a similar economic bill of rights, as the prism through which the entire economy should be viewed.

FDR’s Second Bill of Rights includes:

The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

The right of every family to a decent home;

The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

The framers of the Constitution saw the need for a Bill of Rights as a means of protecting the people from an overbearing and oppressive government. They drafted a bill of negative liberties, or protections that define what the government cannot do. They gave no guarantee of housing, food, or employment because they saw the dangers that the notion of positive rights pose as a potential threat to liberty — the idea that, just by being born, people are entitled for others to provide them a comfortable life.

Because the government does not produce any wealth, even the most basic obligation to one individual must be paid for by taking from another. In order to guarantee one person a profitable job, a decent home, or adequate food, wealth must first be taken from those who have rightfully earned it, infringing on their liberty to do as they wish with their own money.

Unfortunate individuals who receive assistance do not receive those benefits because it is their inalienable right, but because it is irresponsible to let them starve or freeze in the streets. No one is entitled to anything that is not their own, no matter how basic of a necessity; however, it is the responsible duty of able individuals to help those in need through their charitable impulses.

Although the end result may be the same, in terms of the needy receiving necessary aid, there is a stark distinction between an unalienable right to something and the responsibility of an able man to care for their fellow man. The difference can be summed up in one word: liberty. The liberty of every individual to do as he pleases with his own money and resources. Although it is repulsive — and, at the very least, irresponsible — for an able individual to let those less fortunate starve, I have no right to infringe upon their liberty to do as they please with their own money.

This is by no means an argument against all government assistance. Obviously, the government cannot allow its citizens to starve or children to live on the streets, homeless. Rather, my objection is with the larger issue of entitlements justified through a notion of positive rights. When fully implemented positive rights lead to socialism, a concept that has been tried and found ineffective at growing economies, raising standards of living, or even helping the very poor. To paraphrase Margaret Thatcher, “The trouble with Socialism is that eventually you run out of other people’s money.”

The Columbia Missourian ran a story earlier this week about allegations of police abuse at a convenience store last fall:

Ricky Gurley has opened up his firm’s private investigative files on a Sept. 28, 2009, incident in which police said area car salesman David Riley, 31, tried to rob an undercover police officer at a gas station and then resisted arrest.

The case concluded Aug. 9 in the 13th Circuit Court of Boone County when Riley took a plea deal of two years in prison for a felony charge of resisting arrest. [...]

According to video recordings and witness statements, Riley, along with local woman Desiree Kemp went to buy beer at the Ultra Mart at 2102 Paris Road. Riley and Kemp were leaving the store when Columbia Police Department Officer Chris Hessenflow started watching Riley. Hessenflow was working undercover with a teenager to see if the gas station was selling alcohol to minors.

Video surveillance from the convenience store, provided by Gurley, shows Riley standing at the passenger door of his car as Hessenflow walks toward the entrance of the store. When Riley noticed Hessenflow looking at him, police said Riley cussed at the officer and demanded his wallet — a claim Gurley said is ridiculous.

“How do you rob a guy from 15 feet away?” Gurley said. “What do you say: ‘Throw me your wallet’?”

The store’s surveillance video shows Hessenflow drawing his gun on Riley. Then, Riley gets on his knees with his hands behind his back, facing away from Hessenflow.

Although the video is partly obscured, Hessenflow can be seen kicking Riley to the ground. That, Gurley said, led an angered Riley to resist arrest when more officers arrived on the scene. Gurley also said Riley was not handcuffed soon enough; handcuffs could have prevented at least some of Riley’s resistance to officers, as well as some of his injuries.

The justice of the arresting officer’s actions hinges on three questions, in my mind. Did Riley demand the officer’s wallet? Did the officer identify himself as a police officer when he pulled his gun? Did the officer use excessive force to restrain Riley?

I strongly recommend that you watch the video for yourself and read Gurley’s two blog posts on the topic, so you can make an informed judgment of evidence on your own, but, to me, the hardest question to answer is the first one. Both Riley and Kemp maintain that Riley said something antagonistic — not a demand for the officer’s wallet, although the officer could have misheard him. As to the second question, however, three witnesses claim that the officer did not identify himself as a member of the police force: Riley, Kemp, and Kendrick Hardrick, who is wearing a bright blue jacket in the surveillance video. Finally, as far as I’m concerned, kicking a man in the torso when he is already on the ground qualifies as excessive force in almost all circumstances. Unless the officer can show evidence that Riley was an imminent threat at that point, he acted inappropriately.

There is probably more evidence from this story yet to surface, and it deserves further investigation.

One hundred ninety years ago, on July 19, 1820, Missouri’s founders signed the state’s first constitution. It was far from a perfect document — it permitted the abhorrent practice of slavery and prohibited free blacks from moving into the state, among other deficiencies — but the Missouri Constitution of 1820 represents the beginning of self-government and constitutional protections for liberty in this geographical region. As such, it is a critical milestone on the path toward liberty for all Missourians. And, at roughly 9,400 words, it makes for far easier reading than our current 70,000-word monstrosity. I hope you’ll consider looking it over, or — at a bare minimum — that you’ll take a few moments to consider the words of Article XIII, section 16, which provides in part: “That the free communication of thoughts and opinions is one of the invaluable rights of man, and that every person may freely speak, write, and print, on any subject, being responsible for the abuse of that liberty.”

If you happen to be in the St. Louis area and near a radio (or at a computer pretty much anywhere) today around 11:00 a.m., please consider tuning in to KWMU 90.7 FM, where I’ll be a guest on Don Marsh’s Legal Roundtable. We’re planning to discuss a wide range of topics, including recent U.S. Supreme Court decisions, the ruling in the NorthSide redevelopment case here in St. Louis, and some other fascinating and timely legal issues.

If you missed the discussion about red light and surveillance cameras that the Show-Me Institute hosted on June 9, you can now watch the video online. Both Saint Louis city Alderman Antonio French, who represents the 21st ward, and Missouri Sen. Jim Lembke, who represents part of south Saint Louis city and south Saint Louis County, answered questions from our crack intern moderator Martha King and attendees:

Policing by Camera, a panel Q&A – Show-Me Institute
from Show-Me Institute on Vimeo.

French has spent nearly a year trying to get surveillance cameras installed in some of the high-crime areas of his ward. He maintains that the cameras will help police officers identify criminals, while deterring crime.

Lembke has argued against the use of red light cameras. The cameras, he says, violate due process because the owner of a car seen running a red light is presumed guilty — even if the camera cannot identify the driver.

If you are interested in how our local elected officials view the trade-offs between liberty and security, I encourage you to watch this video. Both the moderator and the public asked probing questions, which Lembke and French answered thoughtfully.

I hope that we can host similar, engaging discussions in the future. You can check back on this blog, join our email list, or become a fan of the Show-Me Institute to get updates about future events.

On Wednesday next week, the Show-Me Institute and the Saint Louis chapter of Liberty on the Rocks will co-host a discussion of the use of cameras in public places as a law enforcement tool. During the past few months, red light cameras and surveillance cameras have been in the news, and we’re excited to have Sen. Jim Lembke and Alderman Antonio French, both of whom have taken strong stances on these issues, speaking at this event!

The discussion will begin at 7:00 p.m. on Wednesday, June 9,
at the Show-Me Institute Office at 4512 W. Pine.
Please RSVP either by email, to info@showmeinstitute.org,
or by phone at (314) 454-0647,
or by commenting on this blog post.

Sen. Lembke, who represents part of the city of Saint Louis and Saint Louis County, has spoken out against the use of red light cameras, on the grounds that they entail the presumption of guilt. As he said in a Post-Dispatch article, “[the use of red light cameras] takes liberty away in that there’s no other crime that I know of on the books where I as a citizen am guilty until I prove my innocence.”

Alderman French, who represents the 21st ward, has been campaigning hard to have surveillance cameras set up near high-crime areas in his ward. In the Riverfront Times blog, French explained that the crime is coming from a small group of people, and that surveillance cameras might deter that activity. From the RFT:

“It’s the same group of bad guys doing bad things,” French says. “We’ll advertise the hell out if it, that there’s cameras. One of reason people do things is because they think that can get away with it. If they know somebody is watching it’s very likely they’ll go somewhere else to do drug activity and violence.”

One of the most interesting aspects about the use of both red light and surveillance cameras is that the cameras will likely soon be able to identify, without a doubt, the individual committing a crime. At that point, although camera surveillance seems to be a particularly un-American activity, is there any constitutional argument against it? Do cameras really infringe upon our liberties if they are placed in public places where any police officer could also be placed?

French and Lembke will have the opportunity to answer these questions, and others, on June 9. If you are free, please drop by. The discussion will be informal; it our hope that attendees can ask the elected officials questions directly, and be part of an engaging conversation about the trade-offs between liberty and security.

Liberty on the Rocks is a nonpartisan, nonprofit, social organization that seeks to unite individuals, regardless of political affiliation, who desire liberty. With the goal of facilitating networks, friendships, and intelligent conversation, Liberty on the Rocks seeks to initiate the energy and dialogue necessary to move America from the grassroots up, toward the constitutional principles of freedom used to found this nation.

According to the Columbia Missourian, an internal investigation into the SWAT raid of Jonathan Whitworth’s home (which I have also covered here, here, here, and here) has cleared all the officers involved of any wrongdoing. Given my vociferous criticism of using SWAT tactics to serve search and arrest warrants for nonviolent crimes, you probably expect me to decry this decision as a miscarriage, but you would be wrong. From everything I know of the case, the officers did not violate any policies or statutes, whether federal, state, or local — but that’s precisely the problem. We need stricter rules for SWAT raids because under the rules in place at the time, there was nothing technically wrong with the raid.

As Radley Balko puts it, “this wasn’t a ‘botched raid.’ It was a routine raid. The police got the correct house. They found the guy they were after. They arrested him. No one was killed. Most of these raids don’t turn up huge stashes of drugs or weapons. Most result in misdemeanor charges.”

There is some reason to hope that — in Columbia, at least — using SWAT teams for nonviolent crimes will become the exception rather than the rule. Columbia Police Chief Ken Burton concedes that the department has “utilized SWAT routinely in circumstances and situations where we should not,” and promises that new reforms should cause the number of SWAT raids to “plummet.” Those reforms should be strengthened and expanded statewide to help ensure that SWAT teams are used for the intended purposes and not to shock and awe nonviolent people.

Rand Paul, the newly designated Republican candidate for one of Kentucky’s seats in the U.S. Senate, has taken a lot of flack over the past couple of days as a result of his views on the landmark Civil Rights Act of 1964. MSNBC’s Rachel Maddow spent roughly 15 minutes of interview time with Mr. Paul trying to get him to directly express his belief that the government should not prohibit private business owners from engaging in racial discrimination. Rather than offer a soundbite that would allow political opponents to caricature him as a closet racist or opponent of civil rights, Paul first emphasized all that he found admirable and beneficial about the Civil Rights Act, then tried to express the difference between discrimination as a governmental policy, which he believes to be both abhorrent and unconstitutional, and discrimination as a private choice, which he believes to be both abhorrent and unwise, but beyond the proper authority of government to prohibit.

It’s true that a strict libertarian or free-market perspective might prevent the government from interfering when individuals choose to act in a discriminatory fashion. This may make people uncomfortable. But, as Mr. Paul pointed out, the very idea of freedom requires us to tolerate certain decisions that we might find distasteful, in order to ensure that we have the liberty to make decisions that others might find distasteful. For example: Our nation prizes freedom of expression so much that our constitutions deny governments the authority to restrict or punish speech, even if the ideas expressed are almost universally regarded as offensive. Respect for this form of freedom is so ingrained in our culture that its wisdom is only rarely challenged. Mr. Paul was trying to help Ms. Maddow understand that, similarly, if one believes in individual liberty then one must necessarily be prepared to tolerate the fact that some individuals will use that liberty in ways that others might find offensive.

The proper question, I believe, is how best to deal with those situations when they present themselves. Where speech is concerned, if someone says something offensive, the ideal solution for those offended would be either not to listen to that speaker or to respond with their own speech. Likewise, the best response to discriminatory business establishments would have been for others to boycott the offending establishments and/or to open non-discriminatory establishments of their own. The same principle can be applied to businesses that refuse to hire or promote qualified minority or female applicants. These discriminatory decisions create an opportunity for competing businesses to hire those same applicants — which, presumably, will allow them to offer higher-quality services than the discriminatory employer. The effect might not be immediate, but eventually it will become plain that discrimination is both foolish and costly.

It is also vitally important to remember that governmental power is a double-edged sword. A power that can be used in ways of which you approve can also be used in ways that you find repugnant. The problem of segregation/desegregation is a useful example, because the governmental action at issue represented flip sides of the same freedom-denying coin. In much of the Jim Crow South, segregation was not optional. Those allowed to vote — almost exclusively white people, many of whom had an interest in maintaining a privileged status in society — elected representatives who decided that individual business owners were not permitted to offer a desegregated environment. Thus, all people were forced to live with governmentally enforced segregation. After the Civil Rights reforms were enacted, individual business owners were not permitted to offer a segregated environment — all people were forced to live with governmentally enforced desegregation. At all times, individual citizens had only a limited ability to make these choices for themselves.

In a libertarian or free-market paradigm, the government would not have the authority to dictate these matters to individual in either direction. The government’s sole responsibility would be to ensure that those who sought actively to harm others would be brought to justice and, if necessary, their victims compensated for any demonstrable, quantifiable injuries suffered. Those who believed strongly in the importance of segregation would be permitted to live out their choice — but would also be forced to suffer the disadvantages that would flow from their choice. Those who favored integration would realize a unique competitive advantage that, eventually, would reveal the wisdom of that approach.

To sum up, governmental control over the decisions that individuals may make for themselves presents a seductive shortcut for those who believe that the world ought to be ordered in some particular way. But not only does it represent a denial of individual liberty, a government vested with the power to dictate decisions made by its citizens can very easily turn against those who had hoped to use it to pursue their vision of a “good” society. As George Washington once warned: “Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master.”

A commenter on this Show-Me Daily post about SWAT raids wondered how much worse military raids in Afghanistan might be compared to SWAT raids in this country. An Army officer writing to Radley Balko suggests that it is actually easier to obtain permission for a SWAT raid in America than a military raid in a war zone like Afghanistan, and that SWAT teams here use more aggressive tactics:

I am a US Army officer, currently serving in Afghanistan. My first thought on reading this story is this: Most American police SWAT teams probably have fewer restrictions on conducting forced entry raids than do US forces in Afghanistan.

For our troops over here to conduct any kind of forced entry, day or night, they have to meet one of two conditions: have a bad guy (or guys) inside actively shooting at them; or obtain permission from a 2-star general, who must be convinced by available intelligence (evidence) that the person or persons they’re after is present at the location, and that it’s too dangerous to try less coercive methods. The general can be pretty tough to convince, too. (I’m a staff liason, and one of my jobs is to present these briefings to obtain the required permission.)

Generally, our troops, including the special ops guys, use what we call “cordon and knock”: they set up a perimeter around the target location to keep people from moving in or out,and then announce their presence and give the target an opportunity to surrender. In the majority of cases, even if the perimeter is established at night, the call out or knock on the gate doesn’t happen until after the sun comes up.

Oh, and all of the bad guys we’re going after are closely tied to killing and maiming people.

What might be amazing to American cops is that the vast majority of our targets surrender when called out.

I don’t have a clear picture of the resources available to most police departments, but even so, I don’t see any reason why they can’t use similar methods.

I can’t personally vouch for anything this officer claims about Army protocol, but if what he claims is true, it’s very disturbing.

As many fans of the Show-Me Institute will already know, I have spent a lot of time during the past six months discussing the questionable constitutionality of Congress’ attempt to punish individual citizens who choose not to purchase government-approved health insurance policies. In fact, I’ll be discussing this issue tomorrow morning between 10:15 and 10:45 on Sarah Steelman’s radio show on KWTO 560-AM in Springfield. You can also listen in online.

Early in this year’s legislative session, members of the General Assembly asked me to offer testimony on the Health Care Freedom Act, which was proposed as a constitutional amendment that would recognize the fundamental right of citizens of Missouri to decide for themselves how they will pay for their health care, and that no government could rightfully interfere with that decision. In my testimony, I pointed out that if courts decided that nothing in the U.S. Constitution prevented the government from mandating the purchase of government-approved insurance policies, a constitutional amendment of the sort contemplated in the Health Care Freedom Act could offer a legal “Hail Mary” — a last line of defense that might prevent further congressional intrusion into citizens’ lives.

Despite overwhelming support in both the House and Senate, the Missouri General Assembly did not agree to let citizens vote on this constitutional amendment. Instead, the legislature placed the original bill’s language into House Bill 1764, which would allow voters an August referendum on adopting a new statute. Many of the legislators and citizen groups who had worked to pass the original bill are now hailing the passage of HB 1764, implying that if the people vote to adopt this statute, it will have the same effect as the proposed constitutional amendment might have. Unfortunately, this is simply not true. Missouri voters may well use this referendum as a political statement through which they can express their opinions about the federal health care reform law, but the text that might have been legally useful as a constitutional amendment will have zero legal effect as a statute.

The text that will be presented at the referendum states, in part: “No law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in any health care system.” A court called upon to evaluate whether this provision would be effective against any federal enforcement of the health insurance mandate will first point out that because the language makes no reference to any particular government, it must be assumed to apply only to law- or rule-making subdivisions of the state of Missouri. Not only is it virtually unheard of (and generally futile) for a state statute to attempt to bind the federal government or one of its agencies, the plain text of the bill says nothing to suggest that is its purpose. A court looking at this provision as a statute will almost certainly end its analysis there.

However, even if the court infers that the General Assembly intended to prevent the enforcement of certain federal laws, the statute will fail. In order for the Health Care Freedom Act to have any hope of being effective, it would have to give citizens the basis to argue that health care freedom is a fundamental right beyond any government’s rightful authority to transgress. If the citizen could make that argument, there would be a very slight chance that the U.S. Supreme Court might consider such a fundamental right sufficient to prevent the government from punishing those who chose not to abide by the individual insurance mandate. A statute, however, is not the mechanism by with citizens establish fundamental rights or liberties — they put those in their constitutions, where they are insulated from repeal or avoidance by future legislation. Thus, even if HB 1764 had purported to establish a fundamental right or liberty, courts would have been unlikely to take them seriously. It just so happens that HB 1764 does not even make such an effort, further diminishing any legal usefulness it otherwise might have had.

To be clear, I do not mean to suggest that proponents of the Health Care Freedom Act are intentionally misleading people as to the likely effect of HB 1764. But Missouri’s citizens deserve to know that the bill and the upcoming referendum it authorizes can only be considered a political statement. Even if the people adopt this statute at the August referendum, their rights and liberties will be no more secure than if the bill had been defeated.

Today’s Kansas City Star has a good summary of charter amendments being proposed in Jackson County. Charter counties like Jackson — there are only four of them in Missouri — go through this charter review process once each decade. I was pleasantly underwhelmed by the proposals, because I don’t think Jackson County’s government needs major charter changes.

It appears that they won’t be considering any changes to the partial at-large voting on their county council, which is unique among Missouri’s charter counties. There has been a good deal of work done on the question of at-large versus district representation. Public choice economics has provided some evidence that at-large voting leads to lower spending levels. The theory is simple enough: Officials elected at large have less of an incentive to engage in district-specific spending (think congressional “pork” writ local), because all of their constituents both benefit from and pay for all of the same things. My “Government in Missouri” study for the Show-Me Institute addresses this idea in detail on pages 25 and 26, and provides endnote citations to major public choice studies on the subject, for anyone who is interested enough to do further research. (This is usually the part of my government talks where people start to fall asleep.) When I compared the suburbs in St. Louis County that have at-large voting to those with the more common district voting found in city elections, I found limited evidence that the at-large cities spent less. I say “limited” because the differences were not huge, and the sample size was very small — but it’s all in the study.

The portion of the charter proposals that will generate a good deal of attention is the pay raise for local legislators. The charter committee report recommends:

• Set new pay levels for elected county officials, including boosting current legislators’ salaries by more than 10 percent to $28,916 annually. Legislators also would be guaranteed raises based on the local consumer price index.

I see nothing wrong with raising salaries to $28 K per year for nine council officials serving in a county of 650,000 people. There is nothing out of line with that. I do, however, disagree with the proposal to raise it automatically each year, according to the consumer price index. Raising your pay is one of the tough votes that elected officials have to make. Usually, moderate raises that are implemented rarely enough will be supported by the public, as I expect this one will be. However, it should still require a vote, rather than being turned over to a commission or a computer.

One of the hot topics in Missouri policy debate over the past several days has been Senate Bill 844, the legislature’s current attempt at ethics reform. Patrick Tuohey over at the Missouri Record just published a column I wrote assessing the constitutional questions raised by the bill that passed the House of Representatives last week. You’ll have to read the column to get the details, but suffice it to say that the bill merits some of the criticism that various media outlets have leveled against it.

It is no secret that I believe Congress has no constitutional authority to mandate that citizens purchase a product they do not want. But people who are eager to see this portion of the federal health care reform law struck down would be very wise to put the brakes on the current wave of litigation.

You see, it is a bedrock principle of American law that federal courts cannot offer “advisory opinions.” In order for a federal court to resolve a legal issue, the person or organization presenting that issue to the court must demonstrate that they have suffered, are suffering, or are in immediate danger of suffering some injury. If the complainant can’t show how they are being harmed, the court rules that there is no current “case or controversy” existing between the parties and the case gets thrown out.

In the weeks since Congress adopted the new health care reform law, state officials all over the country have been trumpeting their intent to challenge the law’s constitutionality. Attorneys general, governors, and lieutenant governors in 15 (or more) states have already joined or have pledged to join federal lawsuits intended to strike down the individual health insurance mandate. But there are two big, big problems.

First, the individual mandate is not scheduled to go into effect until 2014. In other words, no one will be required to comply with the mandate for another four years. And, until someone is bound by this requirement, it will be virtually impossible to persuade a court that anyone has been sufficiently harmed by this law to create the “case or controversy” necessary for the court to address the merits of the claim. The second problem is that federal courts do not generally allow one person to assert a claim based on injury suffered by someone else (although there are a few limited exceptions to this rule). Although these state officials could file lawsuits on their own behalves, if they did not have compliant health insurance policies, it is much tougher for them to suggest persuasively that these officials have any basis for asserting the rights of individual citizens, independent of any private citizen asserting a claim against the federal law. The state officials’ claims might have a bit more substance in states that have passed a statute or constitutional amendment limiting governmental authority to interfere with citizens’ decisions regarding health insurance, but it is still a tenuous legal position unless the state is intervening on behalf of a private citizen’s lawsuit.

So, in all likelihood, these impassioned crusades to knock down the health insurance mandate will prove to be utterly worthless until the targeted provision actually takes effect. And, in the meantime, those in support of the mandate will point to the failure of these lawsuits as proof of both the mandate’s constitutionality and the general wrongheadedness of those who oppose the mandate. My advice to these well-intentioned officials is to withdraw their lawsuits for the time being, and for the next four years focus instead on addressing the mandate through the legislative process. If the mandate remains in place after the elections of 2010 and 2012 pass by, then will be the appropriate time to take this issue to the courts.

The Patient Protection and Affordable Care Act was signed into law by President Barack Obama last week, but that won’t stop opponents from continuing to try to shoot it down, or at least shoot holes in it. If you have ever tried to read the provisions of the bill, you know that it is excessively lengthy and wordy, requiring patience and a certain level of commitment to read through in its entirety. Bill sponsors claim the legislation will ensure health care coverage for the 32 million Americans currently living without it, and provide more affordable access to health care. The most central provision, however, is that Americans will be required to purchase health insurance policies.

The signing of the bill has not ended the debate. In fact, it may only be the beginning. House Republicans have already begun fighting the bill, and some have suggested that the Supreme Court may overturn the bill because it violates constitutional provisions. Dave Roland, a Show-Me Institute policy analyst, has written about the potential legal pitfalls that may be faced by the requirement to purchase health insurance.

More information about the final provisions of the bill will undoubtedly become available to the public in the coming days, so that we may better grasp what exactly the bill entails. However, it may well be shot down before it is scheduled to take effect in 2014. We have three years to really understand the changes this legislation will bring.

As Harvard economics professor Jeffrey Miron pointed out at his Obamanomics lecture last week, such intense conflict could be a good thing for the American people. This butting of heads can lead to gridlock, which can help prevent either side from getting everything it wants. Taking into consideration all of the debate and conflict initiated by the bill so far, it may look completely different by the time 2014 rolls around.

Tomorrow (Tuesday), I’ll be a special guest for the Legal Roundtable segment on Don Marsh’s “St. Louis On The Air” radio show. The show will run from 11:00 a.m. to 12:00 noon on 90.7 KWMU — with live streaming over the Internet available here.

Our primary topic will be the constitutional issue swirling around the new federal health care reform law and Missouri’s Health Care Freedom Act, which would prohibit punishment for individual citizens who decline to purchase a product they may not want.

The Riverfront Times blog points out that a judge in the local U.S. District Court has determined that St. Louis city may choose which messages it permits citizens to express. In a case that we’ve previously discussed here, Jim Roos sued the city when officials demanded that he remove a mural on one of his buildings calling for an end to eminent domain abuse. Roos pointed out that the city’s laws would have permitted the mural if only he had chosen to communicate a different idea (such as displaying a flag, some other approved symbol, or “Go, Cardinals!”), and that the First Amendment does not allow government to make content-based distinctions in deciding when and where citizens can express themselves — especially when that expression is related to issues of political importance.

The court ruled today that the government does, in fact, get to choose which messages citizens can communicate. In the words of Michael Bindas, one of the attorneys from the Institute for Justice representing Roos in his lawsuit, “The court’s decision gets it precisely backwards.” Fortunately, IJ and Roos intend to keep fighting, and the Eighth Circuit Court of Appeals will have the chance to correct the lower court’s mistake.

The U.S. Supreme Court heard arguments today in McDonald v. Chicago, otherwise known as the Chicago gun ban case. The court’s decision in this case will determine whether the Fourteenth Amendment means that the Second Amendment right to bear arms should prevent state and local governments from prohibiting citizens’ possession of functional firearms in their homes.

This is a very, very important case — but maybe not for readily apparent reasons. The central question is not so much the meaning of the Second Amendment — that was largely decided by last year’s D.C. gun ban case. Rather, this case concerns the meaning of the Fourteenth Amendment.

When it was drafted and ratified, the first section of the Fourteenth Amendment was intended to do several things: First, to ensure that United States citizenship would be universal for those born within the country, and that no state could deny state citizenship to someone who is an American citizen; this was a pressing concern given that the recently Confederate states might well have denied citizenship to freed slaves. Second, to ensure that all citizens were assured of a certain baseline of liberty that could not be denied by any state or local government, because some state governments, when left to their own devices, had previously refused to offer the same protections for liberty enshrined in the U.S. Constitution. Under the new amendment, states were required to afford all U.S. citizens the “privileges and immunities” protected under the U.S. Constitution — including a right to travel freely across state lines, a right to earn a living in a common profession, etc. And, finally, the amendment was intended to ensure that all citizens must be treated equally under the law, so that no state could fashion laws that would discriminate against newly freed slaves or other “outsiders.”

Very shortly after the amendment’s ratification, however, the U.S. Supreme Court handed down The Slaughterhouse Cases. At issue was a law in New Orleans that created a butchering cartel controlled by the city, limiting the number of people permitted to practice the profession. The law made it so that citizens could only practice the profession with the city’s permission, and then only at a time and place of the city’s choosing. The city’s butchers sued, claiming that the Fourteenth Amendment prevented a state or local government from infringing upon their right to practice their profession. The Supreme Court responded with a ruling that the vast majority of legal scholars now consider one of the least-defensible in the court’s history (see p. 11 of the brief in the preceding link).

The court couldn’t negate the provision establishing universal citizenship, but its decision in Slaughterhouse completely eviscerated (so to speak) the other provisions of the first section — leaving the states free to limit access to professions, set up sweetheart deals for favored business interests and industries, institute poll taxes or other requirements that disenfranchised targeted segments of the population, and pass the Jim Crow–era segregation laws. Had the Fourteenth Amendment been properly applied from the outset, there might have been no need for a civil rights movement because segregation would never have been permitted in the first place, and freed slaves (as well as new immigrants) would have had easier access to self employment in entry-level professions.

Over time, the Supreme Court realized the evils that states were perpetrating against their citizens and so they came up with the doctrine of “substantive due process” as a way of selectively applying the Bill of Rights to strike down illegitimate state laws. It’s an absolute legal fabrication, but it has allowed the court to address issues of constitutional freedom in the way it has seen fit, without admitting that the court got Slaughterhouse wrong. So, almost the entire Bill of Rights has now been “incorporated” into the idea of substantive due process (meaning that 140 years later, the court has almost completely accomplished the original purpose of the Fourteenth Amendment), but several of the most important “privileges and immunities” — such as the right to earn a living — remain on the outside looking in. For whatever reason, the court has continued to hesitate in taking the final, proper, liberty-respecting step.

Taking that step would mean that federal courts could strike down state laws in violation of the privileges and immunities that have been neglected for all this time – but that is not only what the Constitution requires, it is inherently a good thing for liberty! Getting the history and constitutional theory correct would simply re-anchor the methods of analysis to their historical underpinnings, instead of allowing the unprincipled free-for-all that sometimes becomes apparent in the way the court addresses constitutional freedoms. I can’t help but think it would be a good thing, both at the philosophical and the practical level.

Oregon, a state that we talk about a lot on this blog because it seems to be in the forefront of a lot of good and bad ideas, just raised taxes through a ballot initiative. Meaning, the good people of Oregon used the power of initiative petition to just jack up the tax rates on business and the “wealthy” in Oregon. A famous anonymous quote (often misattributed to Alexander Tytler and Alexis de Tocqueville) observed, “A democracy cannot exist as a permanent form of government. It can only exist until the voters discover they can vote themselves largess out of the public treasury.” Luckily, the people of America have mostly proven that prediction wrong. However, votes like the one in Oregon, as well as the inevitable entitlement crisis we’ll face in about 20 years, may prove it right one day.

And, yes, I am aware that the entitlement crisis is just as much to blame on the elected officials who put the programs in as on the people who support them with their votes.

A Springfield News-Leader article about the Census doesn’t mention the Constitution. Nor does it characterize the Census as a medium for your life story, as the Census Bureau would like you to believe. Instead, it makes participating in the Census sound like a great opportunity to express your dependence on government.

As David Stokes pointed out in the comments to my previous post, local governments want as many people as possible to mail back their Census forms, because Census data determine the allocation of federal funds. A manager in the Springfield Census office puts it bluntly:

“We have to show that there is a need and that there are people here in the community,” she said.

Here’s another quote from her, this time referring to those who don’t participate in the Census as if they were no better than recalcitrant drug addicts:

“We’re trying to be very genuine about how we help the community, and we can’t help them unless they help themselves by cooperating.”

To this manager, civic duty and the Constitution’s directives take second place (if they factor in at all) to grubbing for cash — an effort that will succeed only if you prove that a lot of people in your area need the money. I don’t think this is going to resonate with people. I expect that more people will be enthused about submitting their autobiographies than about begging for handouts.

The “let the government help you” theme reminds me of something from a campaign in 2000. As part of his bid for lieutenant governor, Wendell Bailey ran an ad on the radio that went like this: First, the announcer said, “Seniors have problems.” Then you heard the distraught voice of a senior crying, “We need help!” The announcer came back on with the slogan, “Wendell will work.” Bailey ended up losing the election, and I don’t think the tone of his radio advertising made the campaign any easier for him. People just don’t rally around the idea that they’re helpless.

I’d prefer that officials stress the constitutional source for the Census, but if they’re not going to do that, they might do better to focus on the stories rather than the tax dollars.

This article in the Southeast Missourian features quotes from Missouri officials about why people should participate in the Census. No one mentions the reason I find most compelling: The Constitution requires us to take a census every ten years. Still, all of the quotes are more germane than the talk about “portraits” and “stories” that we’ve heard from the Census Bureau lately. At least the article discusses how government will use the information that’s collected.

When you look at all the media coverage of the Census marketing campaign, it’s easy to forget that most people won’t receive their forms until the middle of March. With each new Census, there’s more advertising and it starts earlier — kind of like how stores try to stretch the holiday shopping season by bringing out the Christmas decorations earlier and earlier in the fall.

I hope it’s another 10 years before we encounter a vast campaign promoting the 2020 Census.

The Constitution is a product of the Founders’ wisdom, and that includes its provisions for the national Census. Taking a census is a good idea. Performing government functions and writing new laws would be all but impossible if we didn’t know how many people lived in the United States or how the population was distributed across the country.

What the Constitution does not mandate (nor should) is that the Census serve as a vehicle for personal fulfillment. It’s not about your memories, hopes, and dreams. It’s just a bunch of numbers.

So I’m dismayed by the St. Louis Beacon’s announcement that the 2010 Census “Portrait of America” Road Tour is stopping in St. Louis on Monday morning. One of the activities listed is: “Record [your] story in one of two Portrait of America video kiosks.” Hoping that the video project might be a local initiative and not affiliated with the Census, I headed over to the Census blog, where I learned that the Census Bureau really is collecting personal videos from all these events. Visitors will also “have the opportunity to share their photos and stories.” To top it all off, the Census website states that “The 2010 Census is a portrait, and it belongs to all of us.”

The Road Tour activities are obviously voluntary; most people will mail in their Census forms without sharing any family stories with the government. Still, I see two problems with the campaign. First, it encourages people to adopt the attitude that the government is a member of our families — or, at least, our personal archivist. Second, it’s easily extended to children who aren’t yet able to differentiate between what citizens have to do to participate in the Census, and optional activities that aren’t required of them. Children may get the impression that giving a personal narrative to the government is just as important as filling out the Census form.

The Census Bureau is already trying to involve students. Here is another excerpt from the Census blog:

The first graders at Gateway Elementary School stole my heart today in St. Louis. I entered their library with a set of officials and there they were, dressed in little white t-shirts promoting the census.

Dressing up little kids to promote the Census is creepy, and I don’t think it’s what the Founders had in mind when they wrote Article 1, Section 2.

Here at Show-Me Daily, we have long documented the efforts of the Missouri Municipal League to prevent this state’s citizens from voting on constitutional amendments that would severely limit abuses of eminent domain in this state. For years now, the league (its leadership is made up of elected officials from across the state) has successfully persuaded cities to use your taxpayer dollars in order to help support their effort. Part of that effort has included litigation that the filers claimed to be an attempt to get a “fair” ballot title — but, in reality, it was intended to keep the measure off the ballot entirely by so delaying the signature-gathering process that it would be impossible to collect the necessary number within the limited time available.

Up until a few weeks ago, advocates of eminent domain reform had no real proof that the Municipal League’s lawsuits had this suspected insidious purpose. On Nov. 20, however, at a meeting of the Missouri Bar Association’s Eminent Domain Committee, a managing partner in the law firm representing the Municipal League was asked to give an update on the litigation. She had this to say (audio transcript; emphasis added):

It’s not a real big update, but … um … from the standpoint of the initiative petition, uh, we did partially win, uh, in the … at the trial court level, and it’s on expedited appeal for the western district, um, which will be argued in December, with the main objective being to delay the gathering of signatures and, um, hopefully we’re … we’re accomplishing that.

Missouri Citizens for Property rights, the group spearheading the petition effort, has asked the court for permission to supplement the record with the audio evidence of the attorney’s statement, and should hear today whether the court will agree. If the court chooses to take her statement seriously, it could assign sanctions against her firm for violating the ethical rules (yes, attorneys are supposed to understand ethics) governing the legal profession.

The story has started to gain interest nationwide — as it should. It is yet another example of powerful people trying to prevent ordinary citizens from having their own say on important issues. The AP article has so far been run by media outlets in Atlanta, Phoenix, Washington, D.C., Seattle, Miami, Philadelphia, Minneapolis, and Dayton, Ohio. Here in Missouri, the story has been reported in Kansas City, Springfield, Columbia, Jefferson City, Joplin, Cape Girardeau, and St. Louis — although it is interesting to note that the Ost-Pay Ispatch-Day, for some reason, has not yet covered this story.

Among the elements of the health bill being considered by Congress is a requirement that every adult would either have to purchase a health insurance policy or face punitive fines to be collected by the Internal Revenue Service. There has been widespread debate in legal circles about whether the courts would uphold such a requirement, but lawmakers in several states are trying to do what they can to insulate their citizens from such a requirement. In Missouri, state Sen. Jane Cunningham has already persuaded half of her colleagues to cosponsor Senate Joint Resolution 25, an amendment to the state Constitution that would recognize the citizens’ right to decide for themselves whether they will participate in any health care system.

Under this amendment, the government would be denied the authority to prevent citizens from offering or accepting direct payment for health care services, and it would not be permitted to substantially limit the purchase or sale of health insurance in private health care systems. In addition to recognizing that this is a sort of common-sense freedom that ought to be enshrined in the Constitution, the proponents of SJR 25 are aware that state constitutions are permitted to afford liberties above and beyond those secured under the U.S. Constitution, and that there is a possibility the courts might find that even a federal statute cannot violate those additional rights.

This proposed amendment has sparked the interest of some in the media, including an article from the St. Louis Beacon (authored by William Freivogel, director of the School of Journalism at Southern Illinois University–Carbondale) with a headline suggesting that, if passed, SJR 25 would itself violate the U.S. Constitution. I quickly posted a rejoinder in the comment section of that article, but I felt it would be worthwhile to restate in this forum the points I made in those comments.

There are four major constitutional issues raised by the potential federal health insurance mandate and Sen. Cunningham’s proposed amendment: 1) Does the proposed law fit within the powers that the Constitution gives to Congress? 2) Does the proposed law infringe upon powers reserved to the states by the Tenth Amendment? 3) Does the requirement to buy health insurance unconstitutionally infringe upon the individual liberties secured to American citizens under the First, Fifth, and Ninth Amendments? And, 4) Does the Supremacy Clause allow for the enforcement of a federal statute even if that statute conflicts with individual rights protected under a state constitution? I’ll address these points in order.

As we all remember from high school, congressional authority is limited to those powers explicitly granted by the Constitution. In this case, the question would be whether the Constitution gives Congress the authority to punish citizens for refusing to purchase health insurance.

Those backing the bill suggest that this authority is part of part of Congress’ power “to regulate commerce … among the several states[.]“ It is true that courts have generally interpreted this power very broadly, resulting in the decision that a farmer named Filburn was bound by agricultural regulations even though he was not taking his grain to market, as well as the decision that Angel Raich was subject to federal drug laws even though her medical marijuana was homegrown and neither bought nor sold.

But courts have also recognized limits to congressional authority under the Commerce Clause. In U.S. v. Lopez, the Supreme Court held that the Commerce Clause did not permit Congress to create a federal law banning possession of firearms in a school zone. In U.S. v. Morrison, the court struck down a law that addressed the subject of gender-based violent crime. The primary reason that the court struck down the laws in Lopez and Morrison was that the subjects Congress sought to regulate lacked a clear impact on commerce among the states.

While much of the health insurance industry is handled within the bounds of individual states (it is very unusual to be able to purchase insurance from a company in a state other than the one in which you are domiciled), I believe that courts will be inclined to find that health insurance as a whole is an issue with a sufficient connection to interstate commerce to permit congressional regulation. But, if Congress passes a bill mandating that individuals must either buy health insurance or face financial sanctions, courts will have to answer a very specific question: Does the power to regulate interstate commerce give Congress the authority to penalize citizens who do not wish to engage in commerce? As Prof. Randy Barnett pointed out at a recent Heritage Foundation debate, the Supreme Court has never faced such a question, so we cannot be certain how it will be answered. I tend to agree with Barnett that the Court’s response will likely hinge on the solicitor general’s ability to explain which aspects of citizens’ lives (if any) would remain beyond the reach of congressional regulation if the Court permitted these mandates to be enforced.

One of the law professors cited by Freivogel argued that even without relying on the Commerce Clause, authority for the health insurance mandate could be found in Congress’ power “to lay and collect taxes … [to] provide for the … general welfare of the United States[.]” I disagree. While this provision might permit the creation of a tax-based public health insurance system like Medicare that all workers pay into, this is not what is anticipated in the insurance mandate under consideration, which is neither tax-based nor public. Nor would the alleged “tax” be collected from all workers. Furthermore, even if the fees for failing to purchase health insurance were classified as a tax, Congress is specifically denied the authority to impose capitation taxes “unless in proportion to the census,” a requirement that this proposal does not seem to meet.

Assuming the courts were to determine that Congress does have the general authority to impose a health insurance mandate, the next question would be whether the issue should be reserved to the states under the Tenth Amendment. While Congress has for decades been active on the subject of health care, this does not necessarily imply that Congress may remove state governments’ ability to decide whether their citizens should be punished for failing to purchase health insurance. In fact, this is an issue that several states have previously dealt with, in which at least one state (Massachusetts) has adopted such a mandate and a number of other states have considered — yet refrained from — doing the same. Federal courts have previously been very willing to permit congressional interference even in areas that were traditionally the sole province of the states, but considering the current ideological composition of the Supreme Court, it is possible (although, admittedly, unlikely) that a majority might take this opportunity to redefine (or restore) the balance of power between the federal government and the states.

Most of the arguments I’ve heard so far regarding the proposed health insurance mandate have neglected to address whether it might violate the First, Fifth, or Ninth Amendments, but I think this is an oversight. The Supreme Court has previously recognized that the Constitution protects citizens’ rights to associate with others of their choosing, to enter into contracts, to make their own decisions regarding health care, and, of course, their right to privacy. A violation of any one of these rights could be sufficient to invalidate the health insurance mandate.

While some people may not carry health insurance because it is unaffordable, many choose not to purchase health insurance. Some people’s religions may not permit the use of modern medicine, while others may not believe it to be effective. Still others are simply confident enough in their propensity for health that they are willing to risk the costs of illness or injury in order to direct their money to concerns that they believe to be more pressing. And there are some who, recognizing that most people pay far more to insurance companies than they are ever likely to need for their own treatment costs, would prefer to self-insure by creating their own health fund. For each of these people, a congressional directive to purchase a health insurance policy would mean giving up a huge amount of money — as well as a significant amount of privacy — committing themselves to a contract for goods and services that they do not want, and in some cases may be prohibited from using.

There is a principle in American law that says the government may not punish someone for exercising a constitutional right, and neither may it offer a benefit on condition of the citizen’s willingness to refrain from exercising a constitutional right. In the case of an individual health insurance mandate, the government would be telling its citizens that if they choose not to associate with an insurance company by entering into a contract under which they will be required to pay large sums of money while also disclosing private information about their health, they will be subject to very large fines. I think that this is clearly an infringement of some, if not all, of the constitutional rights listed above.

Unfortunately, establishing an infringement of rights does not end the analysis. In fact, the Supreme Court has long permitted infringement of these kinds of liberty, as long as the government could advance what the court considered to be a sufficiently important interest in doing so. In the case of the individual health insurance mandate, the goal advanced by the government would be to bring about slightly lower insurance premiums and, thus, to increase the number of people with access to health care. This is just a hunch, but I suspect that courts will not find this interest sufficiently compelling to justify forcing citizens to purchase coverage that they do not want and may have no intention of using, particularly when doing so necessarily requires an invasion of their privacy.

My final point is that if the courts find that the U.S. Constitution does not afford citizens protection from being forced to participate in a health care system, the courts will have to decide whether the Supremacy Clause permits a federal statute to be applied in such a way that it violates an individual freedom recognized by a state constitution. As I pointed out in my first comment, it is very possible — perhaps even likely — that the courts will decide that these state constitutional amendments do not bind the federal government. It is important to note, however, that this sort of holding would not strike these provisions down as “unconstitutional.” Rather, it would simply prevent their application against the federal government — perhaps foiling the hopes of the state constitutions’ drafters, but certainly not preventing the effectiveness of the provision against state governments and their subdivisions.

As our regular readers will remember, on Nov. 18, the Show-Me Institute published a study that discusses recent research on the impact that charter schools are having on students’ academic achievement. At that time, we sent the study to newspapers across the state, along with an op-ed I had written discussing its findings. As is the case with any op-ed, my ability to address nuances in the research was dramatically limited by the need to keep it short enough for newspapers to consider publishing it. Thus, I was unable to go into great detail about the various studies and instead focused on the primary goal of the piece: making people aware of this new study so they could consider it for themselves.

When the Springfield News-Leader expressed interest in running the op-ed, they asked me to trim it down by 50 words so that it would fit their publishing parameters. As I hope readers will see, an op-ed’s final form rarely allows the author to offer a comprehensive picture of all the information they would convey if space were no constraint. Perhaps as a result of this necessary brevity, some of the News-Leader’s readers have posted a few skeptical comments about my op-ed, so I’d like to take this opportunity to respond to the points they raise.

The first issue I’d like to address is that of my motives for writing on this topic. The commenter writing under the name “Ray Smith” suggested that I am part of a general effort to “undermine public education,” and that I have simply seized upon President Barack Obama’s “Race to the Top” initiative (which, in part, promotes the expansion of charter schools) as an opportunity to promote my own agenda.

I do have one comprehensive, all-encompassing agenda when it comes to the subject of education, and I don’t care who knows it. I want to make sure that all parents have the greatest possible range of options when it comes to deciding where their children will be educated. While I, myself, am a proud product of an excellent public school system, it does not matter to me in the slightest if parents prefer traditional public schools, charter schools, parochial schools, or secular private schools. All that concerns me is that children get the best available educations — and I firmly believe that the greatest likelihood of achieving that goal is to fashion education policy in such a way that parents can vote with their feet if they decide a school is not meeting their child’s needs.

As should be clear, many parents do not believe that their local traditional public schools are the best educational option for their children — and, with that being the case, it makes the most sense to help those parents find alternatives that will serve their families better. I suggested in my op-ed that, to the extent that charter schools expand the range of options available to parents, they serve as a step toward this goal. Thus, expanding charter school availability represents good policy. In my mind, it is merely a bonus that the best academic research is showing that most (though far from all) charter schools are performing as well as or better than their traditional public school counterparts when it comes to certain measures of academic achievement.

Which brings us to Mr. Smith’s suggestion that I believe charter schools to be a “magic bullet” that will solve the education problems rampant in our state — and his intimation that I was ignoring evidence that I did not like. To the contrary, when writing the op-ed, I wanted to make sure that I pointed out the evidence in our own study that calls into question whether charter schools always generate better results than traditional public schools. Mr. Smith correctly points out that the Stanford study shows that a significant number of the nation’s charter schools appear to be attracting students, even though the schools do not currently appear to measure up to their traditional school counterparts in regard to academic achievement as measured by standardized tests. The reason I addressed the Stanford study in the op-ed was because the authors of the recently released Show-Me Institute study did not have access to research that isolated Missouri’s charter schools, and I believed that it would be valuable to highlight the fact that, in spite of the Stanford study’s broader findings, the data do suggest that Missouri’s charter schools are performing better than most.

Here at Show-Me Daily, I can address the Stanford study’s findings a little more broadly. For charter opponents, of course, the suggestion that some charter schools are not improving their students’ academic achievement is a clear signal that these schools need to close. Maybe … but maybe not. I have previously stated on this very blog that I do not generally oppose the closure of especially bad charter schools. But the facts also bear out that official action is not necessarily needed to close these schools, because in cases where the situation is truly bad, parents will voluntarily move their children to a different school and that bad school will fail for lack of funding (much as any other business would).

Also,as I note in the op-ed, parents consider a wide array of factors when deciding where to send their children to be educated — and, for many parents, academic achievement may not be the most important factor. So, if a charter school lags a little bit behind its traditional charter school counterparts in academic performance, but dozens of parents still want to send their children there, maybe government officials shouldn’t force its closure. After all, we don’t allow government officials to tell wealthy parents what factors they can consider in choosing a school for their children, so why should we assume that government officials are within their rights to tell lower-income parents what factors they can consider?

And, finally, I will add that I would actually prefer that Missouri not seek “Race to the Top” funding. In my opinion, the Tenth Amendment should preclude the federal government from interfering with educational matters, because they have always been reserved to the states. While I do think it would be good policy to expand the availability of charter schools in our state, if Missouri’s legislators are not persuaded that a particular policy is the best idea for our families, they certainly shouldn’t adopt it simply because the federal government is dangling money out there as an incentive.

A few days ago, the Joplin Globe ran an editorial that discussed the micro issue of the relationship between Gov. Jay Nixon and Lt. Gov. Peter Kinder and the macro issue of the role of the lieutenant governor in Missouri government. It was a nice article, using a recent news issue as an opening to discuss a much larger question, which was a lot of fun to read and consider.

The Globe thinks that the political infighting between the governor and the lieutenant governor could be ended by having them elected on a ticket, as opposed to the current system in which they each run independently. Our current system has resulted in Missouri having a governor and lieutenant governor from opposite parties five times, or for 20 cumulative years, since World War II. From 1977 to 1993, we had different parties holding the two offices every year. The Globe is certainly right that changing that system might end the infighting, although the governor and lieutenant governor in Illinois were both Democrats, and they hated each other before the governor was forced to (how should I put this nicely?) step aside in preparation for a lifestyle change. But anyway …

Even though the Globe is correct that political sniping might decrease, I don’t support electing the lieutenant governor on a ticket with the governor. My antennas go up whenever anyone advocates making government run more smoothly so they can go out and get things done for the working people of this state! (The last sentence should be read aloud, like a politician giving a stump speech.) The Globe quotes former state Sen. Richard Webster:

He proposed that the candidates for the two offices appear together as a unit on the ballot, thus encouraging a spirit of cooperation and heading off the sort of political gamesmanship evident now.

I take P.J. O’Rourke’s attitude that preventing politicians from governing is like preventing a pit bull from eating your child, so needless to say I don’t give a whit about making government function more smoothly. (Streamlining government services in order to save tax dollars is a different story.)

When Missourians go to the polls on vote on the lieutenant governor, they know (at least, some of them know) that they are electing someone for two main jobs: to step in as governor during extreme circumstances (which just happened in 2000), and to serve as a tie-breaking vote in the Senate. If the people of the state want someone who belongs to a different party than the governor to serve in those roles, that should be up to them.

The fact is that Missourians chose Jay Nixon to be governor and Peter Kinder to be lieutenant governor. If they had run on a ticket, Missouri would have gotten a lieutenant governor that the majority of the state did not want to elect. I think that giving people the fullest choice possible, so they can elect the person that they wanted to elect, is the most important thing. If we have to live with a poorly functioning tourism board as a result, that is fine with me.

I’ll be a guest on Charlie Brennan’s morning show on KMOX tomorrow from around 9:30–10:00 a.m. What will I be discussing? I’m glad you asked. …

Although we haven’t yet discussed it on the blog, I hope that all of our readers are aware that the St. Louis Police arrested Gustavo Rendon, husband of the president of the North Side Community Benefits Alliance. Why? Because he was distributing fliers that opposed the NorthSide redevelopment project recently approved by the city. Even worse, he just happened to be doing so outside the church of Alderwoman April Ford-Griffin, a staunch supporter of the project. So, two police officers arrived, threatened to put his kids in foster care if he didn’t stop distributing the fliers, then arrested him.

The charge? Affixing advertisements to private property.

Fortunately, the city attorneys quickly realized that the ordinance under which they arrested him didn’t, you know, prohibit what he was doing. And even if it had prohibited distributing fliers that communicated purely political ideas, the ordinance probably would have been unconstitutional anyway. So, today they announced that they were dropping the charges.

The bigger problem, which I hope to address with Mr. Brennan, is that Mr. Rendon’s arrest is suggestive of a much larger problem: powerful people trying to stop citizens from having their say on important public issues. In this case, it was police officers arresting someone for communicating opposition to a redevelopment project. In Jim Roos’ case, a city agency is trying to destroy a sign calling for an end to eminent domain abuse. In the Northeast Ambulance and Fire Protection District, officials tried to fine and ban from future meetings certain taxpayers who protested the district’s insane spending. And, of course, the Missouri Municipal League is using taxpayer money for a lawsuit with the primary goal of keeping off the ballot a constitutional amendment that would go a long way toward ending eminent domain abuse in the state — because they know it will pass if citizens are allowed to vote!

So, like I said, tune in tomorrow morning as Charlie Brennan and I discuss these issues. Who knows, there might even be some interesting surprises involved. And, if you can’t listen to tomorrow’s show, keep an eye on the Policy Pulse website, where Audrey Spalding is continuing to do excellent work reporting on abuses of taxpayer money and government authority.

As we have written previously, one of the great evils of tax increment financing (TIF) is that it offers special advantages to the beneficiaries selected by elected officials, forcing everyone else in the market to compete at a disadvantage. Sadly, there’s a new example of how destructive this sort of policy can be.

Months ago, the city of Rock Port, Mo., decided to approve a TIF project worth $175,000 in order to bring a new grocery store to town. The long-time owners of Rock Port Market (up to that time the only local grocery store serving the town’s residents) said they didn’t mind fair competition from a new store, but objected that the TIF would give the new store a gigantic financial advantage not offered to the existing business. Sadly, just six months later, the family that has operated Rock Port Market for nearly 80 years has decided to close the market’s doors.

True economic development happens best when governments allow businesses to compete on a field that offers no special advantages to any of the players. The government does a grave disservice to its citizens when it assumes the responsibility for picking winners and losers in the market, rather than letting businesses succeed or fail on their own merit.

This week, I was thrilled to have the opportunity to spend two consecutive afternoons being interviewed on St. Louis’ WGNU, a radio station with programming directed to the city’s African-American population. On Monday afternoon, I spent an hour as part of a panel conversation (with Sheila Rendon and Romona Williams of the North Side Community Benefits Alliance) discussing eminent domain and the proposed NorthSide Regeneration Project on Kuumba Nia’s radio show. (Audio available here.)

The conversation went so well that I was invited back the following afternoon to spend another hour discussing the same topic with co-hosts state Sen. Robin Wright-Jones and John Bowman on her show, “The Wright Side of Politics.” (Audio available here.) My conversation partners the second day were Barbara Manzara and Keith Marquard, also of the North Side Community Benefits Alliance. If you’re interested in hearing from those on the front lines of the upcoming battle over the proposed redevelopment effort, give these two shows a listen!

I think I have a new candidate for Missouri’s worst law: RSMo 94.270. What makes this law so awful is that it combines two of the things I loathe: government licensure and special laws written in blatant violation of our state Constitution that are somehow allowed anyway, probably because hardly anyone ever challenges them.

The first section of the law lists all the types of businesses cities are allowed to license and tax. A very revealing part of the law adds another word (emphasis added):

and to license, tax, regulate and suppress ordinaries, money brokers, money changers [...]

The law then proceeds to get even worse, where it specifically forbids three cities from applying hotel taxes larger than a certain (very small) amount. Now, far be it for me to argue in favor of letting cities tax more, but it is still ridiculous that the legislature allows some cities to enact hotel taxes and forbids others from doing so. This law limits the taxation options of only three cities: St. Peters, Woodson Terrace, and Edmundson. The mayor of St. Peters has recently asked for an investigation, but that is not the point of my post.

Missouri has way too many “special laws” that apply only to certain areas or municipalities. Many of those laws allow for higher taxes or increased government authority. Just because this one limits taxes is not a good reason for it to apply so selectively, although I guess that makes it very slightly better than the others. I hope the cities targeted by the law challenge this and win, and I hope that it leads to fewer specially targeted laws all around. More to come on this from the Show-Me Institute in the future.

The Show-Me Institute was pleased to be able to host Jeff Benedict, author of Little Pink House: A True Story of Defiance and Courage, for speaking engagements in both Kansas City and St. Louis earlier this month. The first of those events, held in conjunction with the Kansas City Public Library, is now available for your viewing pleasure on our website. Hear how Susette Kelo’s heroic fight to save her New London, Conn., home turned into the landmark Supreme Court case that outraged homeowners and sparked a legislative backlash across the nation. Kicking off the event is R. Crosby Kemper III, executive director of the Kansas City Public Library and chairman of the board of directors for the Show-Me Institute.

I’ve also posted it below, for your convenience. This playlist consists of seven separate parts. After each individual part has finished playing, the playlist should automatically load the subsequent part until the sequence has finished. You may also choose to view any individual part on its own:

Part 1 (10:00) | Part 2 (10:03) | Part 3 (9:47) | Part 4 (10:01) | Part 5 (9:59) | Part 6 (10:00) | Part 7 (5:58)