The 4th Amendment: A Right—Not a Privilege

By Julian Dunraven, J.D., M.P.A.

What is the difference between a right and a privilege? Answering that is a difficult task, for our legal system so often conflates the two concepts. Yet, in the simplest sense, a right is basic liberty intrinsic to being human, while a privilege is granted or purchased from someone else. Legal privileges, or government granted rights, are created, granted, and maintained by government. In this area, you will find your right to drive on public roads with a driver’s license, your rights to attend public schools, and your right to one vote at the age of 18 for government elections—often provided you are not a felon. These are lesser rights, more properly called privileges. Your greater human rights, however, are innate to you just by being. Governments do not create them, and cannot take them away. Governments can only recognize and respect them, or oppress them; in either case these fundamental rights remain absolute regardless of the government. In the United States, some of these greater human rights are expressly enshrined within the Constitution—especially the Bill of Rights and the 14th Amendment.

Within the Bill of Rights, the 4th Amendment is perhaps most foundational to this country’s origin. It expresses a principle we borrowed from our British forbearers, who already held it in great reverence. I think it was best stated by William Pitt, the British Prime Minister, in a now oft quoted speech, just a few years prior to the American Revolution:

"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,—but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement!"

Unwisely, the British forgot that brave and noble principle in their management of the colonies, and forced upon them the hated Writs of Assistance and General Warrants. When the colonists finally began to stand up to these dreaded instruments of oppression, as John Adams said, "there the child independence was born." And to ensure such atrocities never again occurred, the founders gave us the 4th Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This sounds very nice. Most people read this and believe themselves secure from government searches, seizures, and arrests unless there is probable cause and a warrant from a court. Unfortunately, most people would be wrong. All the forces of the Republic have proven much more pernicious than all the forces of the Crown, and warrants today are the rare exceptions to law enforcement activity.

Today, law enforcement can look through your phone records, your internet activity, your bank records, your trash, and many of your business operations, all without warrants. Schools or workplaces can offer no protection, and even your own body is open to inspection without warrant. Criminals—whether convicted or merely accused—get no privacy at all, and if you happen to be at an airport or a border crossing, neither do you. Indeed, the searches now conducted by the U.S. national security apparatus are indistinguishable from the General Warrants that led to the Revolution. So what happened to the 4th Amendment?

The problem stems from one little word: unreasonable. Over the years, the Supreme Court has held that the first and second clauses of the amendment are nearly separate. In short, a warrant, requiring probable cause and particularity is only necessary if a search is unreasonable. A reasonable search, according to the Court, does not require a warrant. So what is reasonable or unreasonable? To determine this, the court engages in a balancing test. On one scale it places your expectations of privacy which society is prepared to accept. On the other it places the interests and importance of the state getting the information it wants. This defines your right to privacy under the 4th Amendment—and it is no right at all.

The rights protected by the 4th Amendment are fundamental and innate rights. Yet the Court seeks to balance them against Government interests before it will recognize them. If a right is only recognized if the Government deigns to do so, but is reduced or eliminated whenever the government determines a matter sufficiently important, then it is no right at all. Such sufferance at will reduces a right to a mere privilege. And the government will, ultimately, always find its own interests outweigh individual liberty or privacy. The proof is all around us.

Try imagining a TSA agent telling George Washington to spread his limbs while their scanner took a photo of his nude body for security purposes, or their staff conducted a pat down which, anywhere else, would be called sexual molestation. Or perhaps imagine the reactions of Adams, Franklin, or Jefferson in discovering that anything they submit to another person or business, from email via an ISP, or a monetary deposit via a bank—effectively every record and transaction—is subject to warrantless and constant surveillance. Somehow I doubt they would have much sympathy for the idea that it is all an important state interest for the security of the nation.

The problem is now bad enough that at least one Justice of the Supreme Court, Sonya Sotomayor, has suggested abolishing the doctrine that information turned over to a third party (such as an ISP, bank, or phone service) is fair game. Unfortunately, she bases her argument on the idea that the modern electronic age simply allows for too much information to be snapped up by government watchers. This means only that she dislikes the consequential result of the doctrine laid down by the Court. It is not a principled objection; our rights remain subject to her subjective sense of what is or is not too much government intrusion, and mass traffic stops, random personal frisks, and other arbitrary exercises are at the whim of the justices. There is an alternative, however.

If the 4th Amendment were read as a whole, as it should be, rather than as separate parts, then it becomes clear that all searches and seizures must be supported by individualized probable cause. That being the case, the only reasonable searches or seizures which could take place without a warrant would be those crimes directly observed by law enforcement, or those emergency situations to which someone involved consensually invites law enforcement. Those are about the only instances where probable cause can be established directly by a law enforcement officer, and would thus be reasonable. Anything requiring indirect observation, or the compilation of disparate evidence, would of course require the judicial oversight of a warrant.

I have no doubt that governments at every level would scream that this view of the 4th Amendment would make it much more difficult for them to pursue criminals. They would be right. However, the primary function of government is not to pursue crime, or even establish order. Rather, it is to guarantee liberty: liberty of each individual against other individuals, certainly—but also liberty of the citizens against the government. Only through this holistic view does the 4th Amendment take on the power of an absolute principle—a human right—not a government privilege. Anything less leaves it to the subjective, arbitrary, and evolving preferences of the Justices, always with the heavy thumb of the government weighting the scales. Alas, I doubt this will come to pass anytime soon.

Every time I teach 4th Amendment jurisprudence in my Constitutional Law class, I find it fascinating to watch the students. Inevitably, by the end they will be in frothing rages against the almost total abolition of privacy that has befallen this nation, and demand to know why my class is the first time they are hearing about it. The tragic answer is that only Constitutional Law classes—and few enough of those—are even paying attention.

Unfortunately, few of our citizens guard their constitutional rights as they should. Thus, few even know how impotent the protections of the 4th Amendment have become. Elected leaders actually campaign on proposals that undermine 4th Amendment rights in the name of safety, of efficiency, of getting at bad guys and, above all—of national security. So far, the people have bought it all, happily selling their rights in exchange. And so Natural Rights become mistaken for government granted privileges. Until people remember what a right actually is, acknowledge how much they have lost, and demand it back from their government, nothing will change. Until then, we remain under near total surveillance. Liberty requires constant vigilance, and our people have been asleep.

Freedom, Responsibility, and the Inexorable Kant

By Julian Dunraven, J.D., M.P.A.

Freedom is a powerful idea. Every time I teach a course dealing with economic, political, or moral philosophy, it is not the social justice theorists with their noble causes who seem to capture the imaginations of my students. Rather, they overwhelmingly favor the Austrian Economists and libertarian thinkers such as Henry Hazlitt, Frederic Bastiat, and Robert Nozick. Even my Business Law students would prefer to attempt the type of anarchy proposed by David Friedman in The Machinery of Freedom rather than endure the current regulatory state.

Remarkably, this preference seems to hold regardless of individual background. Indeed, it is usually those students who have had to struggle the hardest to support themselves that argue most passionately for the minimalist state, and sneer at the paternalistic policy recommendations that issue forth from most of academia. Perhaps this should not be surprising. I do, however, find it marvelously encouraging. There is only one sticky problem.

While my students clearly and consistently prefer a libertarian approach to property, government, and justice, there is much less clarity about what to do with one's freedom once it is obtained. In a truly free system, how does one make morally good decisions? The best answer I have found comes from Immanuel Kant in his Groundwork for the Metaphysics of Morals. Through reason, Kant proposes a moral system to instruct any free and rational being. His Categorical Imperative instructs us to, "Act only according to that maxim whereby you can at the same time will that it should become a universal law without contradiction." He goes on to insist that, by this action, "you treat humanity, whether in your own person or in the person of any other, never merely as a means to an end, but always at the same time as an end." He then concludes that, "Therefore, every rational being must so act as if he were through his maxim always a legislating member in the universal kingdom of ends."

The system Kant proposes is incredible: universal self government of all rational beings, from mortals to gods, through reason. It is such a very demanding idea of freedom as to be utterly unworkable as a principle of government outside the Heavenly realm. However, it is certainly workable as a guiding principle of personal morality and conduct.

The daunting task Kant proposes is precisely why, every year, those same students who so passionately argue for freedom, begin to push back against the Categorical Imperative. Most think it is just too hard to live up to. Others are uncomfortable with its universal nature. Thus, every year I challenge my students to successfully refute Kant's theory. We then spend the remainder of the term searching thorough other thinkers, dissecting and arguing over their ideas, and always holding the best up to the looming standards of Kant. So far, Kant has always been victorious, and his defeated opponents among the students seem to become his greatest acolytes.

When graduation rolls around each year, I watch a line of confirmed Kantian liberty advocates parade across the stage. Whether they enter careers in law, law enforcement and government work, business, or policy, I never have long to wait before letters from the graduates start arriving, each telling me how they faced some ethical quandary, and resolved it after explaining liberty and the responsibilities of the Categorical Imperative to their co-workers, friends, or family. It seems freedom is truly a powerful idea--and an equally powerful responsibility.

http://www.inp.uw.edu.pl/mdsie/Political_Thought/Kant%20-%20groundwork%20for%20the%20metaphysics%20of%20morals%20with%20essays.pdf

Being a Polite Guest

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Recently, while attending the anniversary party of some old friends, I found myself in a rather disturbing conversation with a few executives from the banking world. Each of these gentlemen complained that their latest young hires out of college lacked any semblance of professionalism—even when commanding six figure salaries. This lack of professionalism, they noted, was especially pronounced in any social situation. They then asked me if colleges bother to teach any sort of professionalism or etiquette today. Sadly, I expect the answer is generally, “No.” Although, I certainly try to instill a sense of professionalism in my own students, it is difficult to train people in a classroom for how they should act in a ballroom—or even a dining room. Nonetheless, I shall try to address some of the biggest etiquette problems of the dinner party here.

The invitation:
Unless you receive an invitation to an open house party, you need to reply to the host and accept or decline the invitation—and not a mere hour before your arrival. The R.S.V.P. is not optional, despite the literal translation.

Never ask who else is attending. This is rude. You are at least supposed to pretend you are happy to see the hosts over anyone else. As most modern invitations are online with a visible guest list, this should not pose much difficulty for anyone.

Finally, once you accept, you should not cancel unless a true emergency arises. And no, a better invitation is not an emergency.

What to wear:
If the invitation does not stipulate a dress code, then ask the host. While most modern social gatherings are casual, this does not grant a license to wear anything. One should never wear flip-flops, shorts, or tee shirts to anything other than the beach, a pool party, or an outdoor barbeque. There is nothing wrong with being comfortably slovenly in the privacy of your own home, but when others have to look at you, try for at least a modicum of fashion.

When to arrive:
Arrive on time for an invitation with a set end time, and no more than half an hour late for an invitation with an open ending.

What to bring:
While it is never appropriate to expect a gift, there are few people as annoying as those guests who expect to be feasted and entertained, yet never bring anything to offer in exchange for such hospitality. Such people should not expect to be invited a second time. Each guest at any party should traditionally bring either a bottle of wine or loaf of bread as a guest gift in appreciation for the hospitality they will receive. The host, gets to set the menu, however, so do not be offended if your wine is carted off to the cellar; it is for the host’s use—not yours.

If you want to be truly helpful, call the host and ask if there is anything you can do to help, or something extra you can bring. Hosts often appreciate a salad, desert, or side dish, but are far too polite to request them. They will certainly appreciate them if you offer, however.

What not to bring:
Perhaps even more annoying than the guests who bring nothing are the guests who bring what is not invited. An invitation goes to the addressee alone unless it specifically states otherwise.

Do not bring a date. Unless the invitation says, “and guest,” or the host tells you to bring someone, assume a date is not welcome. Only spouses and engaged couples arrive together at a party. Even then, however, if the party is only for employees, or involves only men or women, spouses are not welcome. And no, you may not ask the host. That only puts pressures them to acquiesce. If the host asks why you did not bring a date, then feel free to do so next time. However, unless specifically told otherwise, the invitation goes to the addressee alone.

This applies doubly to children. Adult parties are no place for children and one should never assume children are welcome. Sometimes, however, a host will make accommodations for children. If you know this is often the case, you may discretely ask the host. Do not be surprised, however, if the host responds that this particular party will be for adults only. Also, never assume that the host’s own children will, or even should, be available to entertain your own, and never invite other children of like age to create an children’s play group to entertain themselves while the adults party. The host may choose to do that—but you may not. Adults often host such parties to get a break from parenting responsibilities. Do not deprive them of that rare pleasure by forcing them to accommodate uninvited children.

As for pets, assume they are never welcome. Unless a host specifically asks you to bring your pet, you should leave it home. Do not ask the hosts or pressure them to accept your pet. Do not bring your pet and leave it sitting in the car hoping that the host will take pity. Leave it home. No matter how much you love your pet, it is not ever appropriate to bring it to the home of another uninvited.

Many people keep delightful, well trained, and well-groomed animals. Of course, such conscientious folk would not dream of breaking this rule. The people who break this rule tend to be thoughtless knaves who keep obnoxious, barely controlled beasts who have not had a bath in over a month and smell as if they just rolled in a dung heap. Yet, these people always think the rest of us find their little dog as cute and adorable as they do. We don’t. Leave them home.

What to say:
Conversation at a social party should be light and genial. In reply to the question, “How are you?” You should answer, “Fine, thanks. And you?” This should be your reply even if you just suffered the worst heartbreak in history, lost your entire family fortune on the stock market, and are currently dying of cancer. Your best friends may want to hear about that—privately—but people come to parties to enjoy themselves. Conduct yourself with good cheer and decorum or do not come.

Similarly, do not get so drunk you make a fool of yourself or start confessing the intimate details of your love life to all and sundry. You might have gotten away with such antics in University when people assumed you were afflicted with existential angst and professors were busy scrambling your brains, but after that, you are expected to have some decorum. To engage in such behavior among colleagues is especially disastrous. They will find you either grossly uncouth or laughably pathetic, and in both cases you will undermine any respect they have for you as a professional.

As for those of you who love politics, try to keep your discussions civil and light. No one ever succeeded in converting the opposition during a heated shouting match or by hurling personal attacks. They have, however, managed to ruin many good dinner parties and irked many dutiful hosts with such antics. Keep it light or walk away. If you make a boor of yourself, you will not find yourself invited back very often.


When to leave:
As if getting people to arrive and behave themselves properly is not hard enough, one of the most problematic areas for hosts is getting their guests to depart. The rule here is easy. If the invitation listed a set time range for the gathering, make sure you are out by the appointed hour. If, however, the party is open ended, you should depart thirty minutes after the hosts’ last offer of refreshments. If they do not repeat the offer, make for the door. Similarly, if the host rises and refuses to sit, it is time to depart.

There. Was that so hard? You have now mastered basic dinner party skills. Next time we can move on to advanced silverware and table conversation. Now, go forth and socialize.

The Cyberbullying of Gay Youth

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

By now, most of you have heard the sad story of Tyler Clementi. He was that unfortunate freshman at Rutgers University whose sexual encounter with another man was secretly filmed by his dorm roommate and live streamed over the internet. Mr. Clementi then committed suicide by jumping of the George Washington Bridge, having first posted his plans to his Facebook page. The incident captured the attention of the national press, which has since worked diligently to highlight much of the bullying gay youth endure daily.

The Denver Post is no exception. In yesterday’s front page story, “Young, Gay, Bullied,” the Post focused on the high rates of depression and suicide among young gay students who are bullied by or isolated from their peers. Of particular interest is the relatively recent phenomenon of cyberbullying through blogs, YouTube, Twitter, Facebook, and other online sources. The Post cited several methods of addressing this problem, ranging from additional tolerance education and awareness programs to school administrative punishments to new legislation criminalizing cyberbullying. Such legalistic outcomes, however, would render an already tragic situation truly ghastly.

Do not mistake me. I truly do understand the problem and I do not doubt the plight of these young gay people. During my own time in high school, I was careful not to reveal my bisexuality to more than a handful of trusted friends. I was well liked, and had no desire to sacrifice social status to an identity which would have rendered me an instant pariah. Still, there were always rumors, inevitable suspicions, and occasional confrontations. Some of that was decidedly unpleasant. I was lucky, though. Those friends who did know accepted it without question. Many others would not have cared even if I had told them. And to my family it was a non issue. Not everyone is so fortunate.

Unlike other minority groups, gay students have no natural support network; their parents and siblings are generally straight. Often, families not only have difficulty relating to the problems faced by gay youth, they also actively disapprove of homosexuality. Peers, faced with overwhelming pressure to fit in, will often disassociate from gay students for fear of being labeled with the f- word themselves. Gay people faced with any one of these situations can and do feel incredible isolation and depression. That much is undisputed. Debates among scholars and theologians regarding the causes, nature, and morality of human sexuality, however, can fill volumes. It is not something to be addressed here at the Peoples Press Collective, which limits its scope to issues dealing with individual liberty, the free market, and limited government. Unfortunately, whatever one may think of their intent, many of the proposals listed by the Post to address the cyberbullying faced by young gay people negatively impact all three of those topics.

Focus on the Family correctly points out the danger to the marketplace of ideas and free religious expression with mandatory school programs and penalties specifically tailored to promote tolerance for homosexuality. Many mainstream religious traditions regard homosexual acts as mortal sins. For any public school administration or law to step in to enforce toleration and acceptance of homosexuality would usurp the province of religion to define virtue and thus violate one of the most cherished aspects of the first amendment. According to the Post, Focus on the Family instead would like to see bullying policies that protect all students against all forms of bullying for any reason. Even this, however, goes too far.

Apparently, our society has gotten to the point where at least some believe it is no longer acceptable to make gay people feel excluded or unwanted. Well and good. After all, gay marriage and civil unions are increasingly recognized in the various states and nations of the world. What about stoners though? I recall those semi-dazed individuals who would languish behind the main building of my high school, quietly smoking their marijuana while the rest of us went to class. Many students shunned them and sneered at the foul reek that hung about them. Yet, smoking marijuana for medicinal reasons is now legal in Colorado. California may soon legalize it for any reason. Should we now prohibit any exclusion or derision of such drug use? And what of students who espouse a belief in the doctrines of Stalinist Russia, Nazi Germany, or the KKK? Such beliefs are certainly legal. However, at my high school, anyone who publicly stated such beliefs quickly found themselves without a single friend and excluded from all social functions by their peers. Should such exclusion and public derision be prohibited? I think not.

The first amendment also protects the freedom of expressive association. We can choose with whom to associate. We are also free to state the beliefs and values that hold such associations together and exclude and disapprove of those who refuse to meet those values. Sports and athletics are perhaps the most obvious examples of this. While participation is voluntary, you must accept the rules in order to be included. Failure to play by those rules results in censure and exclusion. Though other human associations may not be so clear about their rules, the basic idea is the same. Politicians soon find themselves excluded from their own parties if they take positions in conflict with the party platform. Dinner guests, likewise, do not often receive a second invitation if they forgo the use of any utensils or decorum. Indeed, such behavior, if it becomes publicly known, can even cause a person to lose his employment.

While most of us appreciate our freedom of association, few people acknowledge the importance of disassociation and publicly expressed disapproval. While exclusion does make people feel terrible, it is the best tool we have to regulate social norms and values in a free society. In this way, everyone is free to choose their own social circles, promote the values which are important to them, and exclude those who do not share such values. The only alternative is to have a governmental authority dictate all values and associations. That is completely unacceptable—but it seems many people are calling for exactly that in an effort to address cyberbullying.

Obviously, any responsible school should have reasonable policies prohibiting bullying on its grounds. Name calling and similar behavior is not only rude, it is disruptive to the educational process and should be sharply corrected. In the event of a physical altercation, the law, in addition to any school policy, can bring severe penalties to the aggressor, though all people have a right to defend themselves and others. However, when school policy or legislation extends beyond the school grounds and classrooms into the social lives and online interactions of students, problems arise.

Unless an overt physical threat is expressed, cyberbullying, while often cruel and rude, is often no more than disdainful speech. Any attempt to limit it can run afoul of the first amendment. It has other unpleasant consequences as well.

By interfering in the social lives and expressions of youth, such policies take away any opportunity students may have to express and enforce their own values, and places that responsibility solely on a governmental authority. The proper response to a bully who is rudely or inappropriately deriding a friend in speech or in any online forum is to exclude the bully from social life. Conversely, if someone expresses legitimate condemnation of unacceptable behavior, the object of such condemnation should be excluded. In this way, students learn to stand up for their own values and regulate their own behaviors. It does wonders for their sense of self worth as well. When the state or school authority criminalizes such behavior and usurps all power to regulate associations and interactions, it teaches our youth to rely not upon themselves and their friends to solve problems, but on official authority. In later life, that produces well trained sheep without any self esteem who follow their employers without question and who expect governmental authority, not individual innovation, to solve all of their problems for them. That is not how a free people should live. That is how slaves and serfs live.

Every time law intrudes into the province of etiquette, these problems arise. As a lawyer, I know it for absolute truth that law is seldom the best solution to any given problem. It is vital to remember that the authority of law ultimately issues from the barrel of a gun. Law is force. It takes away any choice or option and imposes a permanent directive which must be followed lest one lose property, liberty, or even life. Etiquette, on the other hand, is wholly consensual, dynamic, and continually adaptable. Merely by exercising our right to associate and disassociate as we see fit, we express and enforce the values which we want to guide our individual lives.

At times, we will all face situations in which we are rudely or perhaps even unjustly excluded and demeaned by those who do not share our values. Certainly, young gay students face this more often than most, and I have the greatest sympathy for them and what they endure. The solution, however, is not to call for the school authorities or state legislature to enforce tolerance and acceptance of homosexuality, or whatever the case may be, upon everyone else.

Any victim of such ridicule should instead seek out a group of peers who share his values and stand ready to defend them and one another. Other students should express their own support of such individuals while publicly censuring and excluding anyone they believe is behaving rudely or inappropriately toward another individual. As families, friends, and community members, we should be encouraging our youth to express and defend our values. When we see others attacked for values we share, we should live by example and speak out in their defense, censuring and excluding bullies from our own social circles and networks. In this way, free people constantly foster and defend the values they live by—not by law, force, and compliance—but by individual choice, responsibility, and virtue. Moreover, unlike law, which imposes one standard on everyone, etiquette leaves each person free to find their own group of like minded individuals.

Having experienced the hardships bullies can impose first hand, I understand the deep desire people have to protect their children from enduring similar circumstances. As a current practitioner of corporate law with its stringent demands for professionalism, I abhor rudeness of any sort. Here at the PPC, we even created the “Political Breath” page to address issues of etiquette in political activism. However, much as I despise bullying and rudeness, I am unwilling to sacrifice my freedoms for the illusion of acceptance. Government cannot legislate social inclusion. It cannot grant self esteem. It cannot force virtue into human hearts. Only individuals have that power, and as individuals we must take the responsibility to do so.

Norton Attack Ad Improperly Taken From People’s Press Collective Video

By Julian Dunraven

Honorable Friends:

This morning, Eileen Mahony, D.C. Bureau Chief for the People’s Press Collective, put up a very amusing piece about how the Norton campaign borrowed rather liberally from PPC to produce their latest attack ad against Ken Buck. Well, borrowed might not be quite accurate. Given that they took video from PPC, edited it to remove the PPC copyright notices, cropped the size of the video to remove the PPC title bar, and then added it to their ad without any citation to PPC whatsoever, some might even call that stealing. Unfortunately, that seems to be the theme of this election.

Judging from the comments in Ms. Mahony’s post, some have mistakenly assumed PPC is favoring Ken Buck in the primary. This is not true. PPC does not endorse in primary elections. However, its members do tend to object when campaigns try to steal their material. It seems they have objected rather strenuously too. PPC has provided access to a series of documents detailing this matter, including the PPC cease and desist letter to the Jane Norton campaign, the Norton campaign’s response, and PPC’s reiteration of its cease and desist demands.

As one of the PPC commentators has already suggested, this incident reveals a disturbing and lack of character in the Norton campaign. Not only did the campaign grossly distort Buck’s words in its ad, it took material from the PPC without permission or even attribution to do so. The PPC’s final letter to the Norton campaign asks, “If even allies of the campaign cannot depend upon it for fair dealing, how is the rest of the state supposed to trust it?” That is a question I think many of us will be considering.

Plagiarism Renders Scott McInnis Unfit to Practice Law or Govern

By Julian Dunraven, J.D. M.P.A.

Honorable Friends:

Yesterday’s Denver Post reported that Scott McInnis plagiarized the work of Colorado Supreme Court Justice Gregory J. Hobbs in articles McInnis drafted for the Hasan Family Foundation. The foundation paid McInnis $300,000 for these articles.

After the story broke, Mr. McInnis blamed a researcher for the problem and claimed in his own press release that the plagiarism was unintentional. This is rubbish.

Mr. McInnis is certainly familiar with academic and professional writing standards; he is a doctor of law, after all. Thus, he should know he has an obligation to review any material submitted by a research assistant. However, he should also know that, if he intends to use whole pages of text submitted by his research assistant, then he has a responsibility to list the research assistant as a minor coauthor and cite his contributions. Mr. McInnis failed to do either of these things. Instead, he claims he took whole passages of text, supposedly submitted by an assistant, added them to his article, and represented it all as original and finished work, but somehow did so unintentionally. In order to believe such acts can be accomplished unintentionally, we have to believe that Mr. McInnis was not in control of his own body or mind. Perhaps he was possessed at the time. Otherwise, he is lying. Which do you suppose is more likely?

Plagiarism represents the height of intellectual dishonesty and reveals a complete lack of academic integrity. Not so long ago, virtually all conservatives and most liberals agreed that a similar lack of academic integrity rendered Ward Churchill unfit to teach at a university. I cannot now find any ethical way to apply a lesser standard to a man who seeks, not simply to lecture a few dozen students in a classroom, but to govern the entire state of Colorado.

During law school, I sat on the faculty’s academic affairs committee as a student member. During one of our meetings, we discussed what to do about a few students who had indulged in plagiarism. The guilty students put up the same defense McInnis now offers. They claimed they did not fully understand that they were plagiarizing and that it was all unintentional.

I had no sympathy for such excuses. The idea that anyone can get into a top tier law school like the University of Colorado and not understand plagiarism is absurd. Thus, I recommended immediate expulsion for these students. The professors, however, did not want to appear unmerciful. They simply gave the students failing grades in the classes in which they were caught plagiarizing. The law school then forwarded a report of the incidents to the Colorado Supreme Court’s Board of Law Examiners, detailing the penalties discussed and imposed. The Board of Law Examiners, however, agreed with me. None of these students were permitted to sit for the Bar Examination—they were not permitted to become practicing attorneys.

Already a practicing attorney, McInnis cannot be prevented from taking the bar exam. Nonetheless, I strongly suspect that the Colorado Supreme Court will soon review McInnis’ actions and sanction him for violating Rule 8.4 of the Colorado Rules of Professional Conduct. Anyone seeking to file a complaint about McInnis’ conduct should contact the Attorney Regulation Counsel.

Plagiarism renders a person unfit to teach at a university because academic dishonesty undermines trust in all legitimate scholarship. Plagiarism renders a person unfit to practice law because a person who would lie about a mere academic paper cannot hope to be trusted with protecting both the finances and liberties of his clients—not to mention the integrity of the justice system. The temptation to lie becomes too severe for such an unprincipled person. Yet, neither a professor nor any individual lawyer holds such public trust as a governor of a state.

The Tea Party movement, in its call for accountability in our public servants, reminds us that this issue of trustworthiness is of paramount importance today. The Republican Party is laudably attempting to address these concerns and redeem its past mistakes by demanding responsible limited government always accountable to the people. Mr. McInnis, however, has dishonored himself and proven totally unworthy of the people’s trust. Yet he has the audacity to ask the Republican Party to nominate him as its candidate for governor. After the Republican fury over Ward Churchill, nominating McInnis would be the height of hypocrisy and further alienate already disillusioned voters and Tea Party activists.

For these reasons, I must regrettably join in the call for Mr. McInnis to withdraw from the gubernatorial race in order to spare himself and our Party from further embarrassment. At this point, no ethical Republican could vote for him without shame or with any expectation of reform in government as usual. If plagiarism demonstrates such unprincipled character as to make a man unfit to teach and an attorney unfit to practice law, then it should certainly render a candidate unfit to be the governor of Colorado.

No Economic Recovery; Prepare For Inflationary “Meltup”

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Your government is lying to you. We are not in economic recovery. We are merely experiencing a cash bubble through printing—inflation—and every day that bubble is in greater danger of bursting. When it does, the American people will face national bankruptcy.

The following video comes to me on the recommendation of Gerald Celente, director of the Trends Research Institute, and The Trends Journal. For those of you who have not already subscribed to his journal, he is one of the best economic forecasters in the world.

To my friends in the Tea Party, this is why you are marching. Simply getting Republicans elected will not be enough to save this nation from economic collapse. Any politician, Democrat or Republican, who does not understand what is in this video must go.

In addition to Mr. Celente, this documentary, "Meltup," features some of the best economic experts available including:

• Peter Schiff, Austrian School economist, bestselling author of Crash Proof, owner of Euro Pacific Capital, former economic advisor to Ron Paul, and current candidate for U.S. Senate in Connecticut
• Dr. Ron Paul, Congressman from Texas , former presidential Candidate, bestselling author and voice of the Austrian School economists on Capitol Hill
• Marc Faber, renowned Austrian School economist.
• Jim Rogers, investor, author, and financial commentator
• Tom Woods, historian, bestselling author, and senior fellow at the Ludwig von Mises Institute.
• And several others.

The National Inflation Association has done a fine job in producing "Meltup." Our liquid fuels crisis, the manipulations and fraud in the precious metals markets, the debt problems and the looming threat of dollar collapse through inflation are all covered in detail. As Celente points out, we are on the verge of the second American Revolution. This video will give you a better understanding of what we face, and what the Tea Party and its supporters MUST achieve if it is to be successful.

Chatting with Tom Wiens: Colorado Republican Candidate for U.S. Senate

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Thanks to profligate spending policies, bailouts, stimulus packages, and unprecedented extensions of Federal power, I have a good deal of confidence that Democrats will suffer many defeats in the upcoming elections. I just wish I felt equally confident that the Republicans who replace them will do much better. Unfortunately, after chatting briefly with various candidates in the last few forums, I often had the impression that I was talking to some sort of annoying animatronic devices which, upon sensing motion, would begin to recite a list of talking points: “Drill, baby drill,” “All of the above,” “No more bailouts,” and “I’m against stimulus.” Any questions seeking more information about these subjects just triggered another recitation. If this is the depth of understanding we can expect from politicians, is it any wonder why even many Republicans in Congress voted for the so called Jobs bill—a stimulus by another name? Our Republican candidates have all figured out that they should oppose bailouts and stimulus packages, but if the only way they can recognize a bailout or stimulus bill is if it says so in the title, then we are all in a great deal of trouble.

In chatting with the various people vying for the Republican nomination to be the next U.S. Senator, I was impressed by the enthusiasm and decency of the candidates, but not by their grasp of the fundamental economic issues this country must face. I was almost ready to despair over the state of Colorado politics . . . until I overheard Tom Wiens answering a question about the gold market and displaying a depth of economic understanding I have almost never seen in a politician. I immediately requested an interview and, last week, he was kind enough to sit down with me for an hour and a half to chat about the state of the nation.

Now, I did not bring the PPC film crew to this interview; I did not even bring a voice recorder. I was not interested in sound bites or talking points. I was only interested to know what made Mr. Wiens any different from any other Republican candidate, and why anyone should trust him at all given the abysmal job Republicans have done so far in their half-hearted attempts to support limited government and a free market. Mr. Wiens exceeded all of my expectations and left me thoroughly impressed.

The difference in experience between Mr. Wiens and his fellow GOP contenders is fairly obvious. While his major competitors have spent virtually their entire careers in the public sector, Mr. Wiens, by contrast, has a strong background in the private sector as a Colorado banker, rancher, and entrepreneur. Thus, he knows the costs increased regulation and taxation place on small businesses – not just in money – but also in time and effort.

Of course, these days a strong business background is not always a great recommendation for politicians. Our federal government is absolutely full of private sector businessmen who seem all too happy to use the power of government to influence various industries. Many commentators have noted the unprecedented influence of former Goldman Sachs executives in the Bush and Obama administrations, and with the Federal Reserve. The American people are rightly angry that Wall Street so often persuades Congress to offer advantages to some businesses and industries over others.

Mr. Wiens certainly understands this. Rather than make the usual hollow attacks on special interests, however, he blames Congress for overreaching to the point they have created a business climate that almost requires government involvement. When Congress holds some industries accountable for their errors while providing bailouts to cover the mistakes of others and can be persuaded to create anticompetitive regulations to ensure the survival of favored businesses, it should surprise no one that lobbying has become a blood sport.

To Mr. Wiens, the solution to this is not to try silencing lobbyists and industry. That would just mean Congress could continue to meddle in the economy unimpeded—but with even less information on which to base their ill-considered policies. Congress, he says, needs to massively scale back spending, taxes, and much of its administration if it truly wants to aid the economy. Unfortunately, because so few members of Congress have any proper understanding of economics, even some Republicans can be convinced that stimulus packages and jobs bills are needed to help economic growth. In truth, all the stimulus bills have done is increase liquidity and inflation, pouring cash into an increasingly unstable financial market, without any increase in productive capacity at all.

Mr. Wiens suffers no such confusion about economics. He is an avid student of Austrian School free market economics and can speak eloquently and easily about the long term devastating effects bailouts and stimulus packages will ultimately have on our economy. According to him, if Congress really wants to help, it needs to stay out of the markets, lower taxes, pull back its administrative agencies, and massively cut spending—and not just the tiny bit of the total budget that goes to earmarks.

That is certainly sound policy, but I have heard other Republicans say something similar, then watched them vote on appropriations bills in lockstep with liberals. To this challenge, Mr. Wiens pointed out that, as a state senator, he was frequently the only ‘no’ vote in hearings despite the urgings of his own party. I checked with a few of his old colleagues at the state legislature and they all confirm that, even when every other Republican and Democrat was in agreement, if a bill violated Mr. Wiens’ principles as to the proper role of government, he would vote ‘no.’ This earned him a reputation as a bit of a curmudgeon, but also as a man of integrity and philosophical consistency. Though a smart politician can always feign devotion to principle, it is quite rare to find one who has a voting record to prove it.

All of this is rather encouraging and speaks well of Mr. Wiens. However, his many admirable traits are not what inspired my trust. It was his faults that impressed me most. You see, Mr. Wiens talks too much—far too much for talking points and sound bites. During the course of our conversation, he excitedly proposed a single subject rule for congressional bills, sunset provisions for virtually all laws and agencies, and an evaluation process to determine when an agency is bankrupt or failed and should be closed. He burbled on about the precious metal markets, the housing market, and the sovereign debt crisis of the states and much of the EU in great detail. Finally, we talked about energy policy and the liquid fuels crisis. I was impressed he could speak so fluently about supply shortages, increased usage, infrastructure problems, environmental issues, and national security concerns that affect the issue, and quickly decided we would have to discuss some of these issues in more detail on camera.

At one point, we were briefly interrupted by a member of his staff asking a question about provisions for a party. Mr. Wiens was somewhat irked by the interruption and apologized profusely. However, had it not occurred, I would have never known that, every year, he invites cadets from the Air Force Academy out to his ranch for a small celebration in appreciation of the service they do for this country. It just happened to be going on during our interview. While Mr. Wiens may not have thought to mention it, I was quite impressed.

This is why I did not want a video camera or voice recorder for this interview. When people know they are not going to be on video or quoted directly, they tend to speak more freely and you get a better picture of their true characters. When you get to know him, Mr. Wiens does not seem like a typical politician. In fact, I think trying to hold back his enthusiasm and speak only in prepared sound bites might actually kill him. Considering his passionate interest in free market economics and policy, and after examining some of the dense books on those subjects he reads for leisure, you might even call him a bit of a nerd. A distinctly private person, Mr. Wiens is more at home with his own family and business interests than with the megalomaniac self promotion required by a statewide campaign. I think he would not be running at all if he did not so clearly see the terrible financial storm building over this country and most of the world. Mr. Wiens certainly has the means to ensure he and his family can weather that storm. However, he is also a patriot, and he is trying to offer his knowledge and experience to the people of this state and nation to help them weather it as well. His knowledge, experience, and philosophical integrity impressed me greatly, and his personality is far too enthusiastic and quirky to be anything but honest. He may be exactly what we need. I strongly encourage all our honorable friends to take a good look at his candidacy as we approach the primary. I think you will be impressed. So far, I have yet to meet anyone better.

Rally to the Enemy: Protests that Harm Your Cause

By Julian Dunraven, J.D., M.P.A., & Eileen McGuire Mahony

On Monday, the anniversary of the battle of Lexington and Concord, dozens of gun rights activists gathered on Gravelly Point, across the Potomac River from the Capitol. They were all openly and heavily armed, and all reeking of political breath. Their honorable purpose was to rally in support of Second Amendment rights, which the District of Columbia continually attempts to subvert. As you might imagine, only fellow gun rights supporters seemed to like the rally, while gun control advocates were alarmed despite the fact that there were no injuries, overt threats, or even so much as a single shot fired.

One of our favorite politicos sent word of the rally to “Political Breath,” and asked us to address the persuasive value of such demonstrations. Mr. Dunraven simply chuckled darkly then rang our D.C. Beauro Chief, Ms. Mahony to solicit her view of the matter. Unfortunately, her staff informed him that, upon getting the news, she had simply requested a bottle of tawny port and a bendy straw, then retired to her chambers for the day.

It is not that we oppose gun rights, mind you. Indeed, Mr. Dunraven only stopped sleeping with a pistol under his pillow when he realized he had time to take afternoon tea every day or make a daily trip to purchase a new alarm clock–but not both. Ms. Mahony, in steadfast refusal to be parted with her gun, simply gave up television after going through a few sets. She claims that the evening news was bad for her health anyway. She now spends her evenings meditating serenely to the music of Elvis.

Despite our love of the Second Amendment, however, weapons wielding rallies cause us a good deal of consternation because they have almost no persuasive value. Far from persuading others to see the value of guns, such demonstrations only alarm and inflame the opposition. Frankly, we cannot much blame them. A large group of well armed citizens angrily protesting the growth of government and vowing that they will no longer tolerate it is indeed somewhat alarming. Of course, our founders did contend that a government should fear its people and thus be kept to good behavior. Perhaps that was the goal of the rally. If so, they may still have a ways to go before our government is convinced they represent the people rather than an angry militia group.

If, on the other hand, the goal was to persuade people that Second Amendment rights are vital to our republic, we have a few suggestions. First, it is generally prudent to consider who you are trying to appeal to and what your detractors will say about you. If your detractors generally say you are a bunch of angry unhinged loons wielding dangerous weapons, it is probably best if you avoid appearing in such a manner. After all, what do you suppose someone unfamiliar with gun rights causes thinks upon seeing a large group of well armed people protesting the government? Scary unhinged loons wielding dangerous weapons. Precisely. They might even associate it with the images of Islamic fundamentalists firing their guns into the air in the Middle East. It doesn’t matter that not a single shot was fired at the rally. That is the image that pops into people’s minds.

A better option would have been to stand on the Point and call attention to the fact that no guns can get any closer than that to our Capital City. Across the river, despite the crime high rate, people must depend solely on police for protection. Then go on to cite the crime reducing and life saving effects of concealed carry laws. Give profiles of profoundly normal people who have needed their concealed carry permits to save their lives or another’s life. Wax poetically about the history and purpose of the Second Amendment. But in all ways appear normal, peaceable, and civilized. Reasonable people can appreciate and relate to such arguments. Most people do not relate to the image of walking about with a semi-automatic assault rifle strapped to one’s back. In fact, they get downright uneasy about it and tend to start calling police with terrorist sighting tips.

Thus, unless you want to add ammunition to your enemy’s store of arguments, always consider your audience. Consider what would appeal to them—not others like you who do not need convincing. And keep in mind how your opponents are likely to portray you. Try not to make it easy for them to paint you as a villain.

If you are planning on hosting a gun rights rally and absolutely must have your weapons on display, however, we suggest you throw a mock fox hunt. Not a true fox hunt of course. We quite simply adore cute little foxes and our liberal friends would go into fits of apoplexy if you actually tried killing the darling creatures. Nonetheless, garbed in the proper dashing gear and riding about on horseback trumpeting to a pack of baying hounds is the very image of refined civilization. Best of all, after all the riding about looking splendid, you get to sit down to a lovely picnic, laid out by the small army of servants that will no doubt accompany any proper fox hunt, and refresh yourself with a Bloody Mary. Why, if you pull that feat off, Ms. Mahony and Mr. Dunraven may even deign to join your protest.

Colorado Supreme Court Overturns Amendment 54--As I Predicted

By Julian Dunraven, J.D., M.P.A.

Honorable Friends,

In its recent opinion , Dallman v. Ritter, the Colorado Supreme Court overturned Amendment 54 saying that it was "unconstitutionally vague, disproportional, overbroad, or otherwise infirm. Indeed, we find the Amendment’s deficiencies so pervasive that we must nullify the Amendment in its entirety."

As you may recall, Amendment 54 of the Colorado Constitution would have prevented those with no bid government contracts and their families from making campaign contributions for the duration of the contract and for two years thereafter. Supporters claimed it was intended to prevent the appearance of corruption in no bid government contracts. It was passed by voters in 2008.

If you have been a long time reader of the People’s Press Collective or Slapstick Politics, you may also recall that I advised against voting for this amendment, correctly predicting that its restrictions went too far and trampled first amendment rights. I am pleased to see that the Court agreed with me.

Never let it be said, however, the Conservatives are monolithic in their thinking. Many of my colleagues here at the PPC and other prominent conservatives supported this amendment. Though I was unable to join in their enthusiasm for the complete amendment, their stated goal of improving transparency in government is laudable. Indeed, the amendment contained one provision requiring that the state maintain a database of no bid contracts which the public can access and inspect at will. This alone would have addressed issues of transparency adequately, without any of the constitutional problems the rest of the amendment causes. It is also the section of the Amendment the Court found least objectionable. With minimal redrafting, it could be reenacted on its own. Jon Caldara of the Independence Institute has called for the legislature to do just that. Given that this was the only Amendment the voters actually passed in 2008, the legislature would be wise to heed his advice.

State of the Union Attack on the Supreme Court Extremely Inappropriate

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

After watching the State of the Union address tonight, I notice not much has actually changed in a year. Fashion, for instance, remains a foreign concept in Congress. We were back to the standard assemblage of wretchedly dull red and blue ties for men, and uninspiring cliché shades of red and blue suits for women. One elected official sitting next to John McCain even tried to combine the standards by pairing a blue tie with a bright red vest. Unfortunately, the result was so appallingly garish that I cannot even given him token points for creativity. At least the politician uniform makes them easy to spot and avoid on the street. I suppose I should just be happy that the President chose to forgo the imperial purple he often wore during the campaign; it would have made his tone even more alarming.

Mr. Obama’s policies were also remarkably unchanged. As many other sources will discuss, he held firm to his ultra liberal commitments to impose cap and trade legislation, impose massive government intervention into the economy and financial sector, and remain firm in his efforts to impose a radical government takeover of healthcare.

Nonetheless, I must admit that the speech carried an appealingly strong tone of disgust with Washington, political games, backroom deals, and irresponsible spending. I might be more impressed if I were able to forget that Mr. Obama and the Democrats have controlled both the White House and Congress for over a year, now, and even held a super majority in the Senate until last week. If politics in Washington are a bit dodgy, one can hardly blame the Republicans or, after a year’s time, continue to whine about the old policies of Mr. Bush.

Perhaps the most amusing point in the speech came when Mr. Obama asserted that responsible budgeting and economics required that we do not reign in spending until we are actually in recovery, and until then we should pour more money into a stimulus bill, which we will now call a jobs bill. I was pleased to see I was not the only one unable to contain my laughter at this absurdity. The Republicans in the chamber all seemed to erupt into derisive chuckles. As the Republican response pointed out, the way to recovery is not through increasing government interference in the economy—not financial, not energy, and not healthcare. Nor is it to excessively spend or tax the wealthy, or increasingly grant loans which we then forgive after 20 years. Rather, it is to roll back government in general, lower taxes across the board, and allow the economy to function on its own, free of the favors or penalties of government.

Mr. Obama did mention a few positives. He seemed willing to talk about nuclear power and off shore drilling, for instance. However, if he intends to include these things as part of larger cap and trade legislation, then he poisons the well of energy before we even start drilling it. He also talked about granting gays equal treatment in the military. However, as commander in chief, he has the power to do this at the stroke of a pen. Whatever you may think of the idea, do not expect his talks with Congress and the Pentagon to produce any results on this matter. The Democrats love to assure GLBT people that they should be treated as equals while doing absolutely nothing to support that idea beyond giving speeches. His other prior work on ending torture and closing Guantanamo Bay, while laudable, was not mentioned at all. His utter lack of progress on that goal might have been a bit embarrassing, I suppose, as would his incomprehensible failure to understand how to properly balance an interest in basic human rights with the need to secure against terrorist enemy combatants. Treating them all as if they were domestic criminals is so profoundly foolish that I believe he was wise not to raise the subject.

Commentators seem to be overlooking the most disturbing aspect of Mr. Obama’s speech, though. He openly criticized the decision making of the Supreme Court and allowed the chamber to applaud his remarks on that subject. It is one thing to express disagreement with the Court on matters of policy in his role as the Chief Executive. It is another to publicly censure the decision making capabilities and the very competence of a Supreme Court decision during the State of the Union address. This was a direct attack on the credibility of the third branch of government, the branch that depends entirely upon the respect of the public for its authority. It was completely inappropriate for the President to make such remarks, and I cannot recall the last time a President made such an overt assault on the authority of a coequal branch of government. It may indeed have been FDR. I suppose I should not be surprised by yet another frightening similarity between the two. Coupled with his arrogant demand that Congress deliver a jobs bill to his desk, I am increasingly alarmed at the astonishing imperial attitude which seems to exude from Mr. Obama.

The only true change I spotted this evening was in the Republican response. Delivering the response in front of a live audience in the Virginia House of Delegates was a splendid change this year. Despite the fact that much of the speech was still pre written, it did respond to parts of the President’s address, and did a lovely job of contrasting the approach of the two parties to our national economic crisis: Democrats believe more government regulation with targeted tax incentives is the answer; Republicans believe government in general should be scaled back and taxes should be lowered across the board. Voters will decide in November which approach sounds more appealing. I have little doubt as to which option they will favor.

U.S. Supreme Court Overturns Corporate Political Spending Ban

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Do you believe the government should determine what the media can broadcast? Do you believe the government should decide which businesses constitute “media” and which do not? This is exactly what the Supreme Court ruled on yesterday in Citizens United v. Federal Election Commission. As Justice Kennedy wrote for the conservative majority:

“The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations-- including nonprofit advocacy corporations-- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” 558 U.S. ___ (2010) at 20.

This law, according to the majority opinion, gives rise to “the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations,” on a whim. Even the People’s Press Collective, as private corporation not classified as traditional media, could have incurred criminal liability for advocating for or against any candidate within the statute’s time frame. Does this frighten you? It should.

The reason for this oppressive law is that it supposedly protects shareholders from being forced to fund political causes with which they disagree. It also prevents the appearance of corruption and quid pro quo arrangements between politicians and corporate interests. Finally, and most importantly, it allegedly prevents the distortion of the election process by the large accumulations of wealth held by corporations.

The Court swiftly dismissed the first two concerns. Corporate shareholders have the option of divesting if they do not like the actions of any particular company. However, even if this were not the case, limiting political speech only in the days immediately prior to an election but at no other time hardly shows a serious concern for shareholder interests. As to quid pro quo arrangements, we already have anti-bribery laws in force. Attempting to go further and prevent mere access or influence is not only impossible, it is an impediment to representative democracy itself. As it is, the law would continue to permit lobbying by those companies wealthy enough to engage in it, but prohibit other companies from engaging in fundamental political advocacy; hardly an equitable arrangement.

In his dissent, Justice Stevens argued passionately, if not plausibly, that the government has a strong interest in preventing the appearance of corruption corporate wealth can create. He further maintained that, as the First Amendment never mentions corporate entities, they should not be entitled to full speech and press protections. In fact, he maintains that corporate speech is adequately protected in the lengthy procedures set up to create 527 groups, PACs, and the cumbersome and expensive filing, reporting, and maintenance requirements such affiliations entail.

The Court maintains, however, that:

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’ The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation.” Id. at 7 (internal citation omitted).

The Court goes on to point out that corporations, as affiliations of individuals, have long enjoyed First Amendment protections. Moreover, the text of the First Amendment itself is not limited to individuals, but protects the freedoms of speech and the press in general. The Court, “rejected the premise that the Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections,” and stated that, “The First Amendment’s protections do not depend on the speaker’s financial ability to engage in public discussion.” Id. at 37 (internal citation omitted).

In short, the First Amendment exists to protect the political speech of citizens, as individuals, groups, or corporations. “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 24.

“The censorship we now confront is vast in its reach. The Government has muffle[d] the voices that best represent the most significant segments of the economy. And the electorate [has been] deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of destroying the liberty of some factions is worse than the disease. Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.” Id. at 38 (internal citation omitted).

This is as it should be. Despite this, though, the Court still upheld requirements for disclosing donors and issuing disclaimers as to who funds political advertisements. Only Justice Thomas objected to this. He points out the possible chilling effects on speech when activists target political donors with violence and intimidation, saying, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection.” Id at 6 (Thomas, J., concurring) (internal citation omitted). Thus, he maintains we have still one further step to take on the road to truly free political speech.

As it stands, the Supreme Court has overturned the ban on direct corporate political advocacy. Corporations are still subject to contribution limits in candidate campaigns, as are individuals, and they must still disclose their donors and take credit for any political advertisement they produce. Nonetheless, this decision should be celebrated by anyone who still believes in the First Amendment. Here in Colorado, I am certain some enterprising company will use this decision to overturn our own state ban on direct corporate advocacy, which so closely mirrors federal law. I look forward to that day.

Colorado Supreme Court Upholds Illegals’ Privacy Rights—Correctly

By Julian Dunraven, J.D., M.P.A.

Honorable Friends,

This evening, two of my honorable friends here at the PPC, Ben DeGrow and El Presidente, have called my attention to the Colorado Supreme Court’s decision in The People v. Gutierrez, in which a 4-3 majority ruled that the state violated the 4th Amendment privacy rights of the defendant in seizing his tax records without a proper warrant showing probable cause. The defendant also happened to be an illegal immigrant. Former Congressman Tom Tancredo, as quoted in The Washington Times, is outraged by the decision and would like our honorable friends at Clear the Bench Colorado (CTBC) to add this case to their ever lengthening list of judicial offenses. Holding the judiciary accountable is a laudable goal, but also one that requires a good deal of thought to accomplish in the interest of fairness and justice. It requires more than cursory analysis and gut reactions. It requires asking whether the Court remained faithful to the Constitution. Contrary to Mr. Tancredo’s objections, I believe CTBC can point to this decision as one in which the Mullarkey majority finally acted correctly.

Facts:

First of all, it is important to understand that anyone in this country, legal or otherwise, has 4th Amendment protections. The 4th Amendment is not limited to citizens, but considered one of the basic rights of humankind. The British once made the mistake of applying its protections only to British citizens, and the colonists responded with the American Revolution. For that reason, the 4th Amendment states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Also, it is important to understand that the U.S. expects all people in this country to pay taxes, regardless of immigration status. To accommodate both legal and illegal immigrants who often lack Social Security Numbers (SSN), they are permitted to file taxes with Individual Taxpayer Identification Numbers (ITIN).

Now that we have clarified those basic points, allow me to give you a few facts about this case. The Weld County Sheriff’s Department investigated an undocumented immigrant named Servando Trejo on charges of identity theft. Trejo admitted to being an illegal immigrant and that he used a false name and SSN to obtain work. He further informed police that he had filed income taxes using an ITIN rather than the false SSN. He then filed his taxes through Amalia’s Tax Service in Greeley. He said that Amalia’s had helped him obtain the ITIN and implied that all illegal immigrants in the area know to use Amalia’s.

The owner of Amalia’s, told investigators that she often prepared taxes for illegal immigrants. She further speculated that most people applying for ITINs were illegal immigrants and that most of her clients using ITINs have SSNs belonging to someone else.

On the basis of this information, the police secured a warrant to search Amalia’s Tax Service for all tax returns filed in 2006-2007 with ITINs which did not match SSNs on wage earning documents such as W2 forms. They speculated that this would be an effective method to fish for those engaged in identity theft, even calling it “Operation Numbers Game.” Unfortunately, the files were not kept by date, but by client. Thus, the police seized all 5000 client files. They proceeded to examine each file, irrespective of the date limitation in the warrant. One file with a mismatch between SSN and ITIN belonged to Ricardo Gutierrez, who was subsequently charged with identity theft. He argued, however, that the police violated his 4th Amendment rights in obtaining this evidence and should be barred from using it. The Colorado Supreme Court agreed with him.

The Right to Privacy and Probable Cause:

The Court’s reasoning is fairly simple. Most people expect their tax records to be fairly confidential. After all, they contain so much information about income, investments, property, family, et cetera as to paint a fairly basic picture of our lives. We do not want just anyone to have access to that. We do not even want any government agency to have access to that at will. Thus, the 4th Amendment, bolstered by Congress’s specific legislation, ensures that our tax papers enjoy the same privacy as we would have in our own home.

Of course, this means that, to invade our privacy, the police need specific warrants. They cannot simply say, “We want all tax records,” and hope they find something interesting. They have to have some reasonable and specific suspicion first, and identify us as particular suspects before they go rummaging about our things. This is the nature of probable cause, and exactly what the police failed to achieve in this case. Instead, they went fishing.

The warrant the police obtained was not limited to their original suspect. They did not even limit themselves to the dates the warrant specified. They examined all files of every individual client despite the fact they had no basis to suspect any of those individuals of wrongdoing. For these reasons, the warrant was overly broad, utterly eviscerating the purposes of the 4th Amendment. No reasonable police officer could have thought such a blatant fishing expedition would be valid. If it were, police might as well start randomly inspecting homes to see if they find any evidence of illegal activity. Dreadful thought.

In the dissent, Justice Coats makes the point that the police did have probable cause to suspect that the owner of Amalia’s knowingly aided and abetted instances of identity theft if she knew some of the SSNs were false. As such, the police could have obtained a warrant to search for mismatched ITINs and SSNs which would indicate a pattern of fraud on the part of Amalia’s. This would have allowed them to conduct the search exactly as they did—but this time without violations of the 4th Amendment.

However, this is not what happened. Neither the police nor the district attorney even suggested any wrongdoing on the part of Amalia’s. They were interested only in fishing for possible but unknown wrongdoing on the part of Amalia’s unidentified clients. Justice Coats fails to recognize that fact and Justice Bender’s majority opinion is correct to distinguish it. Although a search for fraud on the part of Amalia’s Tax Services would have provided the same information as an unspecified search of unknown clients in an attempt to find evidence of wrongdoing, the former has probable cause to support it while the latter is supported by nothing but the arbitrary will of law enforcement. Though the distinction is fine, it is also of vital importance. And that, my honorable friends, is the difference between a republic of laws and the tyranny of a police state.

Understand the Financial Crisis: The Lie of Recovery Will Devastate the Unprepared

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

At the People’s Press Collective Reeducation camp this past weekend, I was pleased to see so many people gathered to learn how to become more effective advocates for the cause of restraining government, promoting individual liberty, and restoring free markets. Truly, an army of Davids is indeed rising to oppose the Goliath of obscenely bloated government. Those who attended this camp hardly needed to be told that the U.S. government has become the biggest liar in the history of the world; they attended the camp to gain the tools needed to begin correcting that problem. They face an uphill battle, though. I was horrified to hear that at least a few of our government’s lies had penetrated even the PPC camp when one of the attendees claimed that, with the nation now in recovery, it is critical to elect Republicans so as to resist any further bailouts and allow the recovery trend to continue.

Make no mistake: whatever illusion of recovery we have entered into is just that—an illusion. Nothing has been altered in the fundamentals of our economic situation. In fact, we have done substantial damage to the soundness of our currency and the wealth of our people, leaving us in a much weaker position to face the problems quickly rushing toward us. Those who do not prepare themselves and their families now are likely to be ruined in the coming economic storms. The Obama Administration’s assurances that we are in recovery may be one of the most atrocious lies ever told in a long history of deceptions.

I wish I could agree with my honorable friend in thinking that merely electing Republicans will offer a solution to this problem. Yet, many in the Tea Party movement correctly understand that Republicans have been almost indistinguishable from Democrats in their profligate spending practices. Many of them voted in lock step with Democrats as Congress issued one bailout after another, assaulted our civil liberties, dismantled the free market, and shredded the Constitution.

While it is true that no Democrat will ever reform this obscenity, we can no longer afford the Good Old Boy mentality of deal making, back scratching, entitlement, and the politics of pull that has too long infected the GOP. We require men and women of true principle. Merely demanding principled politicians, however, will do nothing unless we understand the nature of the problem ourselves, and can hold our politicians accountable in how they address it. Otherwise, we are simply asking to be lied to once more.

At the PPC Camps, several attendees have asked me where they can obtain concise, reliable, and comprehensive explanations for our economic situations and what each of us can do to prepare ourselves and our families. In answer, I strongly recommend viewing the free "Crash Course" by Mr. Chris Martenson. Even if you have no background in economics, finance, or natural resources, you will find Mr. Martenson’s webinar easy to understand. His advice will leave you in a better position than many who graduate college with Economics majors. After that you may want to move on to "Smoke and Mirrors: The Story of Fiat Currency Abuse," a webinar presented by Richard Karn of Emerging Trends Report and hosted by the Bullion Management Group, Inc. While parts of this may be a bit dense, especially at the beginning, I advise you to stick with it. You will have a good grasp of our financial situation by the end.

These two webinars will give you the basic knowledge you need if you want to have any hope of holding our Republican candidates to anything resembling real principles. We cannot afford to get it wrong anymore. We cannot continue to watch our government pervert capitalism in favor of unequal patronage whereby favored insiders profit while all others struggle. We cannot allow our government to burn the savings of our people and spend away the wealth of this nation to leave our children, for the first time in U.S. history, a standard of living which is less than our own. We cannot let our government continue to weaken what should be the greatest nation on earth.

Child Safety Standards And The Idiocy of ABC

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

I know better. I really do. In truth, I was simply trying to be polite. Nonetheless, I opened the email from my honorable friend, clicked on the link, and suffered through a clip of ABC’s World News with Charles Gibson, a man who somehow manages to look grave while pronouncing utter rubbish.

The clip in question, "Lagging Safety Standards for Baby Products," was not news, but rather an inexcusably fear mongering advocacy piece calling for greater government regulation in response to the recent crib recall. My honorable friend sent it along to me in the hope that I could explain why the federal government does not already set strict safety standards for baby products.

Contrary to ABC’s histrionics over what it sees as a complete lack of regulation, the federal government does indeed impose rather exacting safety standards upon manufacturers and retailers of child products. The Consumer Product Safety Improvement Act of 2008 (CPSIA) stands as just one example of such regulation. This is nothing to celebrate, however. The CPSIA serves only to impose crippling costs on business, and actually undermines the safety of the children it purports to protect. All it successfully does is increase the size, scope, and power of government. Only Mr. Gibson could breathe a solemn sigh of relief over that. Sensible people should be alarmed.

The Economic Costs of Regulation

The economic costs of the CPSIA are fairly obvious. The CPSIA requires that any product intended for the use of children under age 12 must be tested by a third party and certified for safety under standards promulgated by the Consumer Product Safety Commission (the Commission). Other than prohibiting excessive levels of dangerous substances such as lead or phthalates, the CPSIA leaves it to the Commission to define and set safety standards. Once certified, a manufacturer must affix a proper label to each of its products. Even without knowing what additional testing standards the Commission will impose, this third party testing, certification, and labeling requirement imposes enormous expense.

For a large toy manufacturer such as Hasbro, these additional expenses, though irksome, are manageable. The company will simply pass the costs along to consumers, and young parents, struggling to pay bills, will marvel at the outrageous prices of baby products while no doubt cursing the "greedy" corporate executives they mistakenly blame for the cost. The consumer suffers, but the large company may survive with less profit. A small business, however, will suffer even more.

A stay at home mother who designs and creates baby bibs for her own children, then has them manufactured for public sale, will suddenly find her business faced with expensive new testing requirements for every fabric she uses, for every fastening device and material she attaches, and for any pacifier or toy she may include with the sale of such a creation. It makes no difference that she thoroughly researched the safest types of products and materials for use in her designs. She must meet the requirements of the regulations, though the cost of doing so is greater than all the revenue of her small start-up company. The time commitment alone is more than she has as a new mother. So she closes her business. Others like her are prevented from entering the market at all. Government has just set a high wealth barrier to market entry.

Regulation’s Cost to Safety

Perhaps even more worrying than the financial costs of the CPSIA, though, is the damage it does to the cause of child safety. This may seem counterintuitive given that CPSIA is intended to do the exact opposite. Make no mistake, though, the existence of the CPSIA ensures that baby products will be less safe than they would be without the CPSIA.

If the CPSIA and its like did not exist, children would not be in any imminent danger. Rather, the safety of products would be determined by the courts. If a child were injured by any given product, and the parents brought suit against the manufacturer, a judge would look to see whether the manufacturer knew, or should have known, that the product could be expected to cause injury. A judge would hold a manufacture responsible for knowing the best practices of his or her industry. Thus, even if a particular manufacturer was ignorant of a product defect or risk which others in the industry had discovered and corrected, he or she would still be held responsible in tort (and sometimes under criminal law) for failing to maintain best practices. The beauty of this system is that the safety standard is always rising as the industry gains new information. Manufacturers have great incentive to keep up with or exceed best practices as punitive damages can put them out of business and the safest products have great marketing appeal.

The CPSIA changes all that. Under the CPSIA, the Commission sets industry standards by law. That then becomes the minimum safety level, and as long as a manufacturer meets the legal standards for its products, it cannot be held liable for the injuries its products may cause. The industry may, in fact, develop best practices far in excess of the safety standard set by law. However, as these standards are more costly and the law does not require them, many manufacturers will not use them in the production of their goods. While the Commission will attempt to issue regulations modified for industry development, it cannot possibly keep pace. It is but one underfunded government agency charged with setting standards for millions of baby products in the industry. Inevitably, its regulations will lag by many years. That is the sole point ABC correctly reported. The government, acting through the Commission, cannot possibly set safety standards as exacting or as efficiently as the industry itself through the proper operation of our court system and the market.

ABC and Mr. Gibson seem to think government must involve itself in everything we do for our own good—especially to protect the children. As I hope you see here, though, further government regulation of child safety standards actually leaves our children more vulnerable while imposing crippling costs on our small businesses. Just ask yourself: do you want the products your child uses to be subject to the highest standards the market and toy industry can offer? Or do you really want to leave your child’s safety at the bottom of a federal bureaucrat’s inbox?

　

　

　

GOB United; GOP Undecided

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

I learned from yesterday’s front page headline of The Denver Post that my party now stands united behind Atty. Scott McInnis in the Colorado gubernatorial race. Odd that. I used to think we had primary elections for this sort of thing, but it seems they have fallen out of fashion in Colorado. It is, after all, far more efficient for the Party’s leaders to simply anoint a candidate. I am certain that Mr. Dan Maes would be overjoyed to know that he need not bother with a primary. Afflicted with the woeful ignorance of fashion so typical of Republicans these days, however, he still seems to be campaigning. I am sure someone will point out the faux pas, though.

I also learned that we have a new platform, again courtesy of Atty. McInnis and the GOP leadership, saving the rest of us a great deal of time and consideration. The Post even published a nice ten point summary of it on the front page. In fact, many of my Independent and Democrat friends called to chat about these bullets before I even finished reading the article. Although they are each greatly dissatisfied with Gov. Bill Ritter, and despite the fact that they agree with most of those ten points listed in the article, my honorable friends told me they were going to abstain from voting entirely, or else reluctantly support Mr. Ritter again, due to the fact that two of those bullet points were dedicated, yet again, to social issues. They had hoped the GOP would focus entirely on economic and liberty issues.

Hoping to restore the confidence of my honorable friends in the GOP’s potential, I visited Atty. McInnis’s web page to examine the full text of this new platform. Interestingly, what I found was substantially different from what the Post article reported. The Post reports that this new, “Contract for Colorado” includes promises to appoint conservative judges to state courts, to establish a school voucher program, to restore Former Gov. Owens’s ban on state funding for Planned Parenthood, and to establish a general statement defending the sanctity of human life.

In contrast, the “Platform for Prosperity,” on Atty. McInnis’s web page makes no mention of judges or the judicial system whatsoever. It speaks of school vouchers not at all. While it does indeed promise to revive the Owens era ban on state funding for abortion providers, a general statement defending the sanctity of human life is nowhere to be found.

I do not know whether these discrepancies are the result of poor reporting on the part of the Post, or whether Atty. McInnis and the GOP leadership who authored this plan simply provided the Post with faulty information. However, with such noticeable inconsistencies in the commitments of Atty. McInnis and the Party leadership, I can hardly blame my honorable friends for being distrustful. Indeed, many Republicans remain wary as well. Whatever they may think of any particular issue, they have had few reasons to trust the Party leadership and its mothballed candidates who so often seem far more interested in the politics of pull than in principled policy.

While it may be true that the Good Old Boys (GOB) of the Party leadership have united behind Atty. McInnis, the Grand Old Party (GOP) remains undecided and skeptical. Moreover, as the GOP has never been known for its fashion sense, it may well ignore the new trend against primary elections and continue to consider the candidacy of Mr. Maes. If Atty. McInnis truly wishes to unify the GOP and Independents in support of his candidacy, he should strive to show firm and consistent commitment to principle. That has never been his strong point, but I have always believed people are capable of positive change.