Why are the Bill of Rights failing?

Walter Williams of the Capitalism Magazine talks about the reasons why the founding fathers included the Bill of Rights along with the Constitution. Wasn't the Constitution enough to guarantee us those rights? Why did they feel the need to explicitly state those rights and was it enough to protect those right? Unfortunately in this current political scenario, even those explicitly stated rights have failed to stand up to the assault of the American politicians.

In fact the rot had started a long time ago and one of the first and most important contributors to start it was Justice Oliver Wendell Holmes Jr. of the Supreme Court. In his article in The Objectivist Standard "Justice Holmes and the Empty Constitution" Thomas A. Bowden mentions the April 17, 1905, dissenting opinion of the Justice Holmes in the case of Lochner v. New York. The New York law setting maximum working hours for bakers was struck down by the majority but what really made this a landmark case was Holmes dissenting opinion.

The majority interpreted the Constitution as if it embodies a principled commitment to protecting individual liberty. But no such foundational principle exists, Holmes asserted, and the sooner judges realize they are expounding an empty Constitution—empty of any underlying view on the relationship of the individual to the state—the sooner they will step aside and allow legislators to decide the fate of individuals such as Joseph Lochner.

Health has been offered as one of the prime reason for violating the individual rights, like smoking in recent times. Its origins lie in the last century which can be seen in this case when the first New York appellate court held public’s power to promote health more important than the parties’ right to make employment contracts. The court held that the state held the "police power" as a part of its sovereignty to regulate for health reasons (even though there is no mention of police power in the Constitution.) It failed to define this power and pronounced it as proper for the purpose of the public benefit.

The New York court at least used the excuse of health as the reason for violating the individual rights, Justice Holmes's in his dissenting view didn't bother to use any excuses. He simple stated the Constitution placed no limits on this police power of the state and made no reference to protecting the individual rights. What was the basis for this argument which challenged the view of Constitution as placing limits on the power of the government? Amazingly it was supported by Justice Holmes's examples of other violations which routinely took place even in those days to further violate the individual rights.

How could liberty of contract possibly be a principle capable of yielding a decision in Lochner’s case, Holmes asked, when violations of such liberty are routinely permitted by law? “The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same,” Holmes observed, “is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.” For good measure, he cited several cases in which the Court had recently approved laws prohibiting lotteries, doing business on Sunday, engaging in usury, selling stock on margin, and employing underground miners more than eight hours a day—each law a clear interference with contractual liberty.

That wasn't true, of course.

Holmes had to evade large swaths of evidence tending to show that the Constitution indeed embodies a substantive commitment to individual liberty. In the Declaration of Independence, the Founders clearly stated their intent to create a government with a single purpose—the protection of individual rights to life, liberty, and the pursuit of happiness. Consistent with the Constitution’s Preamble, which declares a desire to “secure the blessings of liberty to ourselves and our posterity,” every clause in the Bill of Rights imposes a strict limit on government’s power over individual liberty and property.

Holmes's dissenting view had a profound effect. His denial of Constitution as a protector of liberty was eagerly grasped by those who would have settled for any excuse to deny it.
Paul Rahe: Obama's tyrannical ambition:

Back in 1912, when Woodrow Wilson successfully ran for the presidency, he told his compatriots, "We are in the presence of a new organization of society." Our time marks "a new social stage, a new era of human relationships, a new stagesetting for the drama of life," and "the old political formulas do not fit the present problems: they read now like documents taken out of a forgotten age." What Thomas Jefferson once taught is now, he insisted, quite out of date.

Holmes's dissenting view become his most damaging and lasting legacy. According to Bowden, Ayn Rand once observed that Justice Holmes “has had the worst philosophical influence on American law.”

In his bleak universe, there exists no principled limit on government power, no permanent institutional barrier between ourselves and tyranny—and the government can dispose of the individual as it pleases, as long as procedural niceties are observed. This pernicious Holmesian influence is reflected in the declining stature of America’s judiciary

Today the rot has reached the level where the debate between the main parties is about the extent that the government violate the individual rights and not whether the Constitution allows it to or not. Thomas Bowden does a masterful job of refuting Holmes's case for the "empty Constitution" and shows it to be full of content which without a doubt protects the individual rights. Read the full article.

Ayn Rand's Atlas Shrugged and the World Today

“Ayn Rand's Atlas Shrugged and the World Today”: An Interview with Yaron Brook

"Yaron Brook: In Atlas Shrugged we see a world crumbling under the weight of government interventions and regulations. The economy has ground to a halt. Roads and bridges are breaking down, buildings are falling apart, new inventions are few and far between, and each day more and more businesses are shutting their doors. The government blames greed and the free market, frantically imposes further controls, but the crisis only deepens.

The similarities to today are striking. Since the start of our current crisis, we’ve been told that the free market and “greedy” businessmen are to blame, and that the only solution is to hand progressively more power over to the government. We’re hearing the same charges, and seeing the same policies, with the same destructive consequences that Rand wrote about more than half a century ago.

In Atlas, we even read about a “banker with a heart of gold” who went out of business after lending to borrowers on the basis of their “need” rather than their ability to repay. Anyone who understands how the government’s “affordable housing” crusade led to an orgy of subprime lending can appreciate Rand’s foresight [see Richard M. Salsman, “Altruism: The Moral Root of the Financial Crisis”]. "

Read the complete article.

Immigration and Individual Rights

One of the best articles I have read on TOS is "Immigration and Individual Rights" by Craig Biddle. I have a special interest in this issue as I plan to immigrate to America one day. Craig says in this article:

Every year, millions of people seek to immigrate to the United States, and with good reason: Opportunities to improve their lives abound here. Immigrants and would-be immigrants want to pursue the American dream. Whether or not they would put it in these terms, they want to be free to think and act on their best judgment; they want to produce wealth and keep and use it as they see fit; they want to make better lives for themselves and their families. In other words, foreigners want to come to America for the same reason the Founding Fathers established this republic: They want lives of liberty and happiness.

Immigration is the act of moving to a country with the intention of remaining there. Morally speaking, if a person rationally judges that immigrating to America would be good for his life, he should immigrate; a rational morality holds that one should always act on one’s best judgment. But does a foreigner have a right to move to America? And should America welcome him? Yes, he does—and yes, she should. Recognition of these facts was part and parcel of this country’s founding.

The bosom of America is open to receive not only the Opulent and respectable Stranger, but the oppressed and persecuted of all Nations And Religions; whom we shall wellcome to a participation of all our rights and privileges, if by decency and propriety of conduct they appear to merit the enjoyment.

Unfortunately this pro-immigration attitude, expressed by George Washington in 1783, has all but vanished from American politics. Indeed, the policies of America—the republic built by and for immigrants—have become hostile to immigrants.

People today in most countries who even want to visit are interrogated at the embassies during the interview with suspicion. When they ask if you intend to settle in U.S. and if you hesitate even for a second, you can wave your tourist visa goodbye. Craig goes on to mention some brilliant American immigrants like Ayn rand, Issac Asimov and a lot others who would have been denied entry under today's laws and how immigration to the land of liberty is now largely prohibited by American law. He goes on to say:

This prohibition, however, is un-American and immoral. The basic principle of America—the principle of individual rights—demands a policy of open immigration.
Open immigration does not mean that anyone may enter the country at any location or in any manner he chooses; it is not unchecked or unmonitored immigration. Nor does it mean that anyone who immigrates to America should be eligible for U.S. citizenship—the proper requirements of which are a separate matter. Open immigration means that anyone is free to enter and reside in America—providing that he enters at a designated checkpoint and passes an objective screening process, the purpose of which is to keep out criminals, enemies of America, and people with certain kinds of contagious diseases.2 Such a policy is not only politically right; it is morally right.

He further explains at length why it is moral and that to prohibit a person from immigrating to the U.S. is to violate his right to act on his judgment; it is to retard his ability to live a life proper to man; it is to commit a moral crime. I almost got up and applauded when I read this. He then explains the invalidity of the arguments against open immigration one point at a time. They include protection of culture, crime, jobs, welfare, terrorism, and more. One of the more controversial issue's he discusses is the solution to the problem of the estimated 12 million “illegal” immigrants currently residing in the America. His solution is:

In light of the immoral and illegitimate law they “broke” by moving to (or remaining in) America—and in light of the suffering they have endured by being labeled “illegal” (e.g., having to live in the shadows, not being able to market their goods or services openly, not being able to use banks or credit cards, etc.)—the solution to the problem of so-called “illegals” is to grant them unconditional amnesty and a presidential apology. Just as the principle of individual rights mandates open immigration, so too it mandates amnesty for those whose moral actions were made “criminal” by immoral laws. (“Amnesty” is really the wrong word, as one logically should not have to be “pardoned” for having acted morally, but there is no accurate word for what has been necessitated by our irrational immigration policy.)

Some argue that granting amnesty to “illegal” immigrants would make a mockery of the rule of law and that “illegals” broke our laws and should be held accountable for having done so. On the contrary, what mocks the rule of law is the existence and attempted enforcement of anti-immigration laws...

Upholding the rule of law does not mean upholding whatever laws happen to be on the books. Should the citizens of Nazi Germany have turned Jews over to the Gestapo? Nazi law dictated that they must. Would the refusal to obey that law have been a mockery of the rule of law?

Upholding the rule of law does not mean enforcing illegitimate laws; it means establishing and maintaining a government and legal system based on the objective social requirements of human life—namely: the recognition and protection of individual rights. Laws that violate individual rights are illegitimate laws, and such laws morally must be repealed.

He ends this article by offering a five-point plan to achieve a rights-respecting and thus moral immigration policy for the U.S. which as he says," will require substantial time, effort, and intellectual activism, but there is no shortcut; these are the actions necessary to solve the misnamed “immigration problem,” which is, in fact, a problem of too few Americans recognizing, embracing, and upholding the basic principle on which America was founded."

Happy Exploit-the-Earth Day

Principles in Practice: "On April 22, Celebrate Exploit-the-Earth Day
Posted by Craig Biddle at 2:51 PM
Because Earth Day is intended to further the cause of environmentalism—and because environmentalism is an anti-human ideology—on April 22, those who care about human life should not celebrate Earth Day; they should celebrate Exploit-the-Earth Day.
Exploiting the Earth—using the raw materials of nature for one’s life-serving purposes—is a basic requirement of human life. Either man takes the Earth’s raw materials—such as trees, petroleum, aluminum, and atoms—and transforms them into the requirements of his life, or he dies. To live, man must produce the goods on which his life depends; he must produce homes, automobiles, computers, electricity, and the like; he must seize nature and use it to his advantage. There is no escaping this fact. Even the allegedly “noble” savage must pick or perish. Indeed, even if a person produces nothing, insofar as he remains alive he indirectly exploits the Earth by parasitically surviving off the exploitative efforts of others." Read more.

Meaning of a Tea Party

Principles in Practice: "John Lewis on the Proper Meaning of a Tea Party
Posted by Craig Biddle at 9:47 AM
Here’s a video of John Lewis’s excellent speech at yesterday’s tea party in Charlotte, North Carolina. (Thanks to Andy Clarkson for recording it)"