An Open Letter to Andrew Kessler, AKA "Leftist Southpaw"

I'd originally written this as a comment response, but decided as I was finishing that it was better left as a solo post. By way of background, the "Leftist Southpaw" has made a number of comments to the blog, and I recognized fairly early on that it was the writings of a guy named Andrew Kessler. I've known Kessler for more than 25 years - we were in elementary school together, then middle school, junior high, and the first year of high school. I switched high schools in the fall of 1986 as the result of a shift in educational policy direction on the part of the school district, but kept in touch with many of my old friends (after all, we'd been together in school since kindergarten, at least).

Kessler and I are both lobbyists in DC, and I thought we were on good terms. He and I had lunch several times, and I'd been working on getting a group of us who'd been together in the early years and found ourselves in DC together again for lunch - folks that I'd been seeing on an individual basis. As I said, I've kept in touch with a lot of people, and despite having not graduated from the public school system, I was invited to participate in the planning of and attendance at the high school's 15-year reunion. I was unable to attend (regretfully), and was still corresponding with people and participating in the class' yahoo group.

I made the error of posting a link to a post on this blog about solidarity in the face of terror (an early post quoting Winston Churchill in response to the London bombings) on that Yahoo group, and was met with what a lot of people thought was an inappropriately harsh response from Andrew Kessler. It was surprising for me, filled with anger and vitriol. I apologized with a letter and sent a private one to Andrew, which was misunderstood. I did not reply.

Then he began commenting here.

Here is my response to his latest comments:

The leftist southpaw said... "'I'm not sure why _I've_ become the focus of your anger. I've got theories, but nothing certain. Nothing, certainly, that I'm going to share here.'"

"Please share, publicly or privately. You take such pride in your fortune-telling abilities."

Kess, I have no plans on turning my blog into an exploration of what motivates your psyche. Though I'm sure your ego would certainly appreciate the boost that such attention would create, I'm just not quite as interested in you as you seem to be in me.

"Apologies if you thought I was trying to hide my identity earlier. I thought I was making it pretty clear who I was via my alias."

If you weren't trying to hide your identity, Kess, then you would have simply come out and said, "This is Andrew Kessler, and I think that your post in memory of the late Chief Justice was misguided, and here's why." Instead, you launched into a pseudonymous diatribe.

To discern from your alias who you were would have required my remembering that you were left-handed. Honestly, it's not a detail that has kept me awake at night - on the list of many folks I know who are left handed, you probably wouldn't have made it.

No, it was your particular tone of vitriol which smoked you out - not your left-handed progressiveness.

"And who is this Ilena Rosenthal you refer to, who keeps posting on your site? It would appear the two of you have quite a past!"

Ilena Rosenthal is the titular head of a one-person operation called "The Humantics Foundation for Women" - an organization that purports to advocate for women harmed by voluntary breast implantation. Except they do little in the way of actual advocacy. For instance, in the two most-recent series of public hearings on the matter in Washington, DC - the most important events in the breast implant issue - Ms. Rosenthal was markedly absent. This would be like your organization missing the most important public meetings on substance abuse policy at HHS, two rounds in a row.

The organization was recently suspended by the state of California (then reinstated some time later), during which time Ilena Rosenthal continued to try and raise money for the organization. She may or may not be currently in the United States. The organization's only public address is a mail-drop box in San Diego, California, and there is every indication that for some time Ms. Rosenthal has been living in Central and South America.

Ilena Rosenthal and I went toe-to-to on Usenet some time ago. When she began to delve into personal details about my life, I began doing some research into her organization. When I pressed her on questions regarding financial irregularities on her organization's publicly-available financial documents (IRS Form 990s - the equivalent of non-profit tax returns. By irregularities, I mean that in successive years, Ms. Rosenthal's forms failed to account for monies left over from previous years, as called for on the form's instructions), Ms. Rosenthal e-mailed my wife.

This e-mail, filled with mistruths and the most alarming rhetoric, was written with the intent of having my wife put a stop to my inquiries into the operations of her non-profit - in other words, to bully me into silence.

It didn't work. I don't take kindly to such bullying, especially from folks who I believe are abusing a public trust. What's funny is that despite her protestations that if simply left alone, Ms. Rosenthal would leave me alone, she has never done so. I have routinely gone weeks, months ignoring her (I have said a number of times that I've grown tired of the general lack of civil discourse on Usenet, and for all sorts of reasons have posted less). Yet, despite her promises, Ms. Rosenthal continues to post on usenet about me.

She's a usenet kook of the highest order. I certainly hope you're not considering befriending her. As someone who's known you a long time, has mutual friends with you, still has some measure of affinity with you (though you are certainly trying desperately to destroy that) - I'd strenuously advise you against it.

Just about every ally Ilena Rosenthal has ever had has had that friendship either abused or completely blown-up. They have, by and large, all regretted ever coming into contact with her.

"I keep fighting the urge to post here, but it's so much fun watching you blow up via blog!"

You mean like your generally-regarded-as-inappropriate apoplectic response to my link to my blog-post with the Churchill quote?

Seriously, Kess - I'd be really intrigued to know what you consider "blowing up" via blog. At this point, I put it in the same category of your other claims that you've been unwilling to substantiate.

But as to your inability to control your urges, maybe that's why your own blog has been woefully neglected.

"I checked out cajun tiger's blog. Do you share his views comparing a woman who murders her chilld to one who opts for an abortion? Just curious where you stand on the issue."

See, this is something you still fail to understand. One can be friends with someone and not agree with them on certain issues (or many issues, for that matter). I don't need to be lockstep with my friends or have them be lockstep with me. What's more, I find there's a great deal to be learned from listening to the opinions of those who do not agree with me.

The Cajun Tiger is my friend. I've been friends with him for several years, and we're part of a larger circle of friends who have lunch on a regular basis. But that circle of friends contains people who have beliefs along a large swatch of the political spectrum, and it makes for some fascinating (and sometimes very heated) political and policy discussions.

Do you agree with 100% of your friends on 100% of the issues 100% of the time? I sure hope not. If so, how utterly boring and uneducational for you.

Now, if you had ever taken the time to actually get to know me over the years and understand my core philosophies (instead of playing into your self-created fantasy of me as some mindless conservative zombie), you'd have learned that I'm a solid libertarian (likewise, it's something you could have gotten had you taken the time to really read what I write on this blog, or do a little research into what I've written over the years on Usenet, etc).

As such, I don't agree with CT's equating abortion with infanticide or progenicde. I believe in a woman's right to choose - though I have certain moral and ethical problems with late-term abortions (with the exception of circumstances which impact the life/health of the mother). I do believe in parental notification laws (I am a parent, after all), and I have some concern with the federal funding of abortion.

By the same token, I take great issue with the federal laws initiated after the Laci Petersen murder. While I think there is some merit to charging someone with a double-homicide if they kill a woman who is pregnant at the time (I find such crimes heinously galling, and I would hope that you would, too), I don't think the federal government has any business legislating in that arena.

As I said, had you ever taken the time to really get to know me, then you would have known this already. Unlike you, I don't presume to know the entirety of the scope of someone's opinions on issues based upon who they consider to be their friends.

So, now we're left with this, Kess: I've politely and patiently answered the questions that you've asked of me, and responded to you point-by-point. I'm still waiting for answers to questions I have asked of you - for instance, you've had ample opportunity to substantiate your insinuation that I've "sold out", or, barring that, admit that it was a poor choice of quotes, apologize, and move on. The same holds true with a number of other claims and insinuations you have made.

I suppose it all comes down to the following: what's your point, Kess? Just what are you trying to accomplish here - and what have you been trying to accomplish by provoking me since July of this year? Are you trying to demonstrate to the readers of this blog that I'm not who or what I claim myself to be? Are you trying to make me feel bad for leaving the Greenburgh school system back in 1986? Are you trying to demonstrate that you or your personal beliefs are somehow superior to my own?

I mean, it's fairly clear to me that you're not interested in any sort of a meaningful dialogue. If you were, you wouldn't be posting in the tone that you have, and you'd be answering some of the responses that I've given to you.

So what is it you want, Andrew?

- Andrew Langer

Miers Out... Who Will The Nominee Be?

Well, I'm sure that you've all heard the announcement that Harriet Miers has withdrawn her name. So the question on everyone's mind now is, "Who will the President nominate to replace her?"

And while you're all expecting me to write that it will be Secretary Norton, I'm not going to do that. There are, unfortunately, too many issues surrounding the Interior Department right now for the Secretary's confirmation process to be any more smooth than a Miers process.

So who will it be? (drumroll, please....)

The Honorable Consuelo Maria Callahan, Judge of the 9th Circuit Court of Appeals
(s0rry, I know the pic is a bit small)

From her short bio on the Federal Judicial Center website:

Born 1950 in Palo Alto, CA
Federal Judicial Service:U. S. Court of Appeals for the Ninth Circuit
Nominated by George W. Bush on February 12, 2003, to a seat vacated by Ferdinand F. Fernandez;
Confirmed by the Senate on May 22, 2003, and received commission on May 28, 2003. Education:Stanford University, A.B., 1972
McGeorge School of Law, University of the Pacific, J.D., 1975

Professional Career:
Deputy city attorney, Stockton, California, 1975-1976
Deputy district attorney, San Joaquin County, California, 1976-1982
Supervisory district attorney, San Joaquin County, California, 1982-1986
Court commissioner, Municipal Court, Stockton, California, 1986-1992
Judge, San Joaquin County Superior Court, California, 1992-1996
Associate justice, Third District Court of Appeal, California, 1996-2003
Race or Ethnicity: Hispanic
Gender: Female

Comments of "Courting Influence" website: "As the first Hispanic woman to serve on 9th Circuit Court of Appeals, Callahan won unanimous approval (99-0) in the Senate. Sen. Leahy (D-VT) noted that, "Not a single person or organization has submitted a letter of opposition or raised concerns about her." (The Oakland Tribune, June 2, 2003)

Bob Novak claims that she was on the short list below Miers.

The American Constitutional Society characterized some of her noteworthy cases as follows:

"In Ileto v. Glock, 370 F.3d 860 (9th Cir. 2004), a mentally disturbed man, prohibited by law from owning a gun, opened fire on a Los Angeles-area Jewish Community Center wounding several children and killing postal worker Joseph Ileto. Callahan penned a dissent sharply criticizing the majority decision that allowed a suit filed by victims against the gun manufacturer to go forward. She wrote, "(t)he potential impact of the panel's decision is staggering ... the practical costs of forcing manufacturers to defend to juries all non-meritorious claims, as well as arguably meritorious claims, for all injuries that occurred in California cannot help but have a substantial impact on California's economy."

"In Arnold v. Runnels, Arnold, a criminal defendant, told police that he did not want his answers to be taped during questioning. When police turned on the tape recorder anyway, Arnold refused to answer the questions. The tape was admitted as evidence during trial with the prosecution arguing that Arnold's refusal to answer question should be construed against him. After conviction Arnold appealed to the 9th Circuit, which ruled that the prosecution's use of the tape violated his Fifth Amendment right against self-incrimination. Callahan dissented, arguing that Arnold did not sufficiently invoke his Fifth Amendment rights, and adding, "the error, if any, in admitting the tape, was unlikely to have had a substantial and injurious effect or influence in determining the jury's verdict." http://www.acsblog.org/judicial-nominations-2011-who-is-consuelo-callahan.html

And she apparently tap dances up a storm.

I need to read more about Judge Callahan - I don't know enough about her record on things like federalism, property rights, the regulatory state. But if I had to hazard a guess today, this would be it.

- Andrew Langer

Word Verification for Comments...

Sorry, all. I'd been thinking for a few days that I might need to institute "word verification" for those submitting comments. I hate that you have to take an additional step, but I wanna cut down on the spam comments.

Thanks for your understanding.

- Andrew

In Memorium - Rosa Parks

The Importance of Standing Up (Or Sitting Down) For Your Beliefs

Momentous things can happen when people do seemingly ordinary things at seemingly ordinary times. Without realizing it, they are committing extraordinary acts and create their own extraordinary times.

So it was fifty years ago when a woman simply said, "I am going to sit down right here. No, I am not going to step back off of this bus and walk to the back to sit there. I am a human being, and I have every right to sit where other human beings do."

That act of sitting, and in doing so, asserting one's civil rights, was the trigger event reinvigorating the struggle of a people to secure the full measure of their liberty. A momentous event out of what should be a routine one - sitting on a bus.

Rosa Parks, who passed away yesterday, made an affirmative choice. It wasn't just that she was tired from a long day of working in Montgomery, Alabama. She was tired of having her rights violated on an everyday and continuous basis. She was tired of the daily slap in her face every time she stepped up to ride that bus and was forced if, God forbid, there were white people in front, to step off the bus and walk to the rear door to enter after paying her fare.

So she made a choice. She sat down in a seat of her choosing, consequences be damned.

That's called courage. It was an especially courageous choice to be made by a woman of color in Montgomery, AL in 1955, and it is courageous acts like that which inspire the action of others. Movements are begun, leaders show themselves, causes are advanced, and society changes as a result.

Rosa Parks' act touched off what can best be termed a revolution in this nation - and a revolution over the best of things: the struggle for liberty. The struggle for individual rights. The Montgomery Bus strike was only the beginning. Out of that fire, leaders like Dr. Martin Luther King, Jr. arose. The barriers to racial equality began to come down. This nation was electrified and changes happened.

Because she made a choice.

Susette Kelo made a choice, too. Her rights were being violated by a systemic government policy – and like millions of others, she could have just taken what was being handed to her, and that would have been it. But instead, she decided to stand up – and that simple act has electrified people. A movement has begun to coalesce around that act (and the Supreme Court decision that has affirmed this horrible violation of civil rights). Changes will happen.

Now, I don’t wish to diminish or in any way lessen what Rosa Parks accomplished over her long and distinguished life. Nor am I trying to burnish or puff up what Susette Kelo did. But what I am saying is that many great things begin with the courage to take very simple acts, and it is up to history to weigh their importance in the grand scheme of things. A few months after Rosa Parks sat down on her bus, I’m certain that any writer who equated her act with Lincoln’s issuance of the Emancipation Proclamation would have been roundly criticized. It’s only with the perspective of time that we can talk about the two acts in the same sentence.

Who knows what people will write about Susette Kelo’s stand fifty years from now?

The freedom of a society requires the constant vigilance of the people, protecting their individual rights from abrogation by the state. The greatest heroes are those who stand up when their rights are being violated demand justice. And when individuals do this, their acts must be celebrated. There is no doubt that Rosa Parks is at the top of this pyramid. Her memory deserves our highest honor.

A Brief Word About Stadiums...

I got an e-mail from a friend asking me about the President's benefitting from the building of the Texas Rangers stadium, as discussed on the blog a few days ago (http://langrrr.blogspot.com/2005/10/kelo-defense-from-elitists.html ). She hadn't read the blog, yet, and I offered the pertinent section, but realized I hadn't been explicit in my position on them.

Traditionally, I've said, that one of the legitimate uses of eminent domain is to take land for public spaces, like public parks (within reason, though. There should be limits on the amount of land that government owns. Currently, the federal government of the United States owns over a third of all land in the United States. This is problematic for a whole host of reasons to say the least).

Stadiums, theoretically, could be considered such public spaces. But to me, the distinction is ownership and direct benefit. A stadium for a private economic enterprise (like a privately-owned sports team) should not be built using the power of eminent domain.

On the other hand, a stadium built as a public space - like the stadium on Randall's Island in New York, where I used to run track, or stadiums built for public educational institutions - can have eminent domain used to acquire the land upon which it will be built.

It's a subtle distinction, but an important one, and, in my opinion, the Constitutional difference.

Thanks for the question!!!

- Andrew Langer

In the News...

A Couple of Things...

http://www.foxnews.com/story/0,2933,172655,00.html

Maryland Lawmakers Seek to Limit Eminent Domain
Tuesday, October 18, 2005
By Elizabeth Coe

ANNAPOLIS — Republican legislators in Maryland said Tuesday they will propose an amendment to the state's constitution that would ban the seizure of private property (search) by government if it is to be turned over to private developers.

"Private property is private property," said state Republican Sen. Allan H. Kittleman. "When you own something it shouldn't be taken by the government."

This normally obscure issue of eminent domain (search) came to national attention with the controversial Kelo et. al. v. the City of New London, Conn., decision by the U.S. Supreme Court in June, which established that government could force the sale of private property for economic development.

"This is encouraging the displacement of low income residents," Kittleman said. "It's a reverse 'Robin Hood effect' — taking from the poor and giving to the rich."

The proposed amendment, announced at a news conference on Tuesday, is being called the Property Protection Act of 2006 and would limit the state to seizing property only for a public use — such as for schools, parks or roads, legislators said.

For the amendment to pass, it must receive three-fifths majorities of both the House of Delegates and Senate, and then must be approved by the state's voters in a referendum.
A spokesman for the Ehrlich administration said that the governor, a Republican, called the proposal a "very positive first step" but said Gov. Robert Ehrlich (search) would reserve judgment until he has seen the final draft of the amendment. Both Republicans and Democrats have emerged as supporters of the proposed amendment, or similar legislation, and have said economic development should not be considered a public use.

Sen. Jennie M. Forehand said she and several of her Democratic colleagues have been working toward legislation placing restrictions on eminent domain.

"There are different ways to solve this problem," she said. "But something needs to be done to solve it. It would be wonderful to find something we can agree on."

Andrew Langer, spokesman for the National Federation of Independent Business, Maryland's largest small business advocacy group, said this issue is especially important to small businesses and small property owners who can most easily be hurt when developers and government come together.

"The founders didn't envision that the power of eminent domain would be used this way," he said.

Eminent domain should only be used when a legitimate public use can be demonstrated and when just compensation to the property owner can be paid, he said.

"A loose definition of public use leads to an abuse of power when it comes to eminent domain," he said. "The power to physically take property away from citizens should be constrained."

Although the exact language of the proposed amendment has not yet been drafted, Langer said he thinks most members of small businesses in Maryland will come out in favor of acting on this issue.

Republican Delegate Anthony J. O'Donnell said this type of legislation makes sense because there are other ways the government could work toward economic development, such as by using free-market incentives.

"Eminent domain should be an issue of last resort," he said. "Everybody feels that the Kelo decision was very wrong."

Republican Sen. J. Lowell Stoltzfus said the issue of eminent domain is a "bedrock principle" for Republicans, but will be supported by legislators on both sides of the aisle.
He predicted that the House and Senate will work together during the next session to draft an amendment that both houses can accept.

Capital News Service contributed to this report.

Here's another (text not included):

http://www.mddailyrecord.com/pub/5_396_wednesday/businessnews/172771-1.html

- Andrew Langer

Kelo - A Defense From The Elitists

Besides the basic unjustness of it all (as if that weren’t reason enough), one of the aspects the eminent domain issue that raises its import is the ability it has to “grow” the property rights movement from its traditional base. It allows long-time property rights activists to not only reach to more moderate people (people who might not otherwise understand the “regulatory takings” issue, but really get the problem of government taking property for other private parties), but to reach more hard-core progressives, folks in the environmental community, say, who have no love for big business and supposedly look to stand up for “the little guy” (though we know that’s not usually the case).

With that in mind, I was interested in a debate between John Echeverria, from the Georgetown Environmental Law and Policy Institute, and the Cato Institute’s Roger Pilon. I’ve heard both before, on property rights, but I was intrigued to hear what Echeverria’s take on Kelo would be, given the nationwide reaction.

There’s a part of me that was surprised, and a part of me that was unsurprised. In spite of the clear injustice perpetrated when government takes private property from a small property owner at the behest of another private party, Echeverria’s anti-property rights orthodoxy extended to defending even this. And while I was disappointed, I really should have been surprised at Echeverria’s through-and-through statist views.

But it was an odd defense coming from a learned environmental activist. Let me say at the outset that there was one thing I agreed with Echeverria on – the issue of whether or not Kelo was “radical”. As I’ve written and spoken about for the last few months, Kelo wasn’t a radical decision – that’s part of its problem. Kelo was an affirmation of nearly a century of Supreme Court caselaw. What would have been radical would have been for the High Court to take a principled stand, show some courage, and fight for the right of the 87-year-old woman to live in her own house. It’s a prime example of the problem of judicial decisions being made in a vacuum.

So, Echeverria was right about that. But he missed the boat on a number of things.

First, there was the strange defense of this type of eminent domain as good for the economy and good for jobs. Now, notwithstanding the sheer hypocrisy of someone who advocates for, and whose organization advocates for, the very type of regulations that give America the $1.1 trillion economic drag that has been discussed here in the past (see, “Death by 7,647 Pinpricks” here on the Liberty Blog) trying to defend this injustice on economic terms, this issue is a non-starter.

First of all, small businesses create 60% of the new jobs in America. Condemnation of small businesses is devastating – businesses have relocation costs, costs in starting up from a new location, lost customers, etc.

Second, local economies need to diversify, and not rely on either large, single-unit employers (like a Wal-Mart or factory) or high-end retail and service businesses to grow their economies.

What’s more, there are serious ethical issues to be raised in justifying the violation of individual rights on simple economic grounds. Not to mention the displacement of lower-income families, etc. One of the examples used by Echeverria, for instance, was the building of an auto plant in Mississippi. Sure, there were jobs brought to Mississippi (and one wonders just what sort of hurdles Echeverria’s institute put in that plant’s path), but there were poor minority families and small businesses who lost their homes as a result.

Echeverria also launched a bizarre attack on the Administration for it’s hypocrisy regarding this, among other things, because the President benefited from the use of eminent domain in the building of the new Texas Rangers stadium. I didn’t have the heart to point out that, his post-Kelo rhetoric aside, the President hadn’t been on the “limiting eminent domain” side of things up to the actual Supreme Court decision being made. In point of fact, as discussed here, until some vociferous advocacy on the part of the pro-property rights crowd, the Administration had been planning to file a brief in support of the City of New London and their use of eminent domain in this way (to refresh your memory – the administration didn’t file a brief on the right side. They simply stayed out of the case.)

Finally, and I think this is what angered me, there was Echeverria’s general elitist attitude regarding this, that the families who are displaced for Home Depot are better off. He used the example of one woman he talked to, who simply loves her new home. In other words, if they get their just compensation (which is a big if, John, you and I both know that getting fair market value in condemnation cases is tough.), then they’re going to be happy.

At the outset, there’s the basic issue of choice. John wants us to think that it’s better for government to substitute its judgment as to what’s best for my property for my own. Absent a use which is going to violate someone else’s rights or harm them, then this is hogwash. I bought the property, paid for it, have improved it, and I desire to keep it. If someone else wants it, then they can find some way of inducing me to sell it to them. I don’t need some big brother government saying, “Come on, you don’t really want to keep the house that your parents raised you in.”

Maybe I do. Maybe I have some intangible attachment to that piece of real estate. Maybe I like the idea that my kids and their kids are going to learn to climb the same tree that I did as a child. That some sunny spring afternoon they are going to grab a favorite book and climb to the top of that tree to sit and read in the warm sunlight, as their grandfather did when he was their age.

But for whatever reason, it’s a matter of individual choice.

And in the end, we’re left with the fact that had the private enterprise wanting the property been forced to negotiate with the landowner, then chances are they would have gotten more money. Sure that lady was happy. But she would have been happier had the government stayed out of it and Wal-Mart been forced to negotiate directly with her.

Echeverria was, as usual, calm and charming. But he was also unconvincing. It was the quintessential statist argument for protecting government power. However, it in no way overcame the fact that this is nothing more than elitist injustice, however swaddled in the clothes of economic efficiency.

Oh, and on an unrelated note, Echeverria did take us on one interesting turn. Near the end of the event, he said he had a question for the crowd. Actually, it wasn’t a question –but a comment for my friend and colleague, RJ Smith. One of the points that RJ has raised in the past regarding eminent domain is that one company, Koch Industries (one of the nation’s largest privately-held companies, as well as one of its largest natural gas producers) has never used eminent domain in the acquisition of land for its pipelines. Echeverria raised this factoid, at which point I caught my breath, expecting him to uncover some salacious bit of research proving RJ wrong. On the contrary, Echeverria said that he’d found nothing in his research to demonstrate that it _was_ wrong.

This then led into an attempt on his part to demonstrate some hypocrisy on the part of libertarians because of carve-outs in recent congressional legislation protecting the right of natural gas companies to use eminent domain. It was nothing more than a strawman on his part, though, as it was generally agreed that such a carve out was ill-advised.

Sideways - The Big Deal Was What?

Okay - quick post on Sunday night.

Watched "Sideways" last night and this afternoon (Tivo'd it on HBO). I know it was critically acclaimed and all, but I'm not too sure what the big deal was. It was a road trip flick - two guys go off in search of wine and women. I've seen films that make you feel more uncomfortable, films that make you hate the main characters more, films that were more quirky, had better jazz music, etc. And it's not that I hated it - I didn't. I just didn't think it was "all that and a bag of chips".

I enjoyed Payne's "Election" far more. I dunno, I kept thinking, "It's two chimps on a davenport in a basement.

Maybe I just got caught up in the hype and was expecting something more. I thought that might happen with 'Napoleon Dynamite', but it didn't. Fun film.

I did happen to Tivo Mike Figgis' "The Browning Version" the other night. Now, that film affirms that Albert Finney is a tremendous talent. I can't recommend it enough.

- Andrew Langer

Why I Love Listening to Pacifica...

Those of you who know me know that I grew up in New York and when I was fifteen, I started attending the Fieldston School, the high school of the Society for Ethical Culture in New York. I'll reserve a discussion of ethical humanism for another time, suffice it to say that it's an ultra-progressive, ultra-statist philosophy - and while I was still formulating my pro-individual rights, small government views, I was definitely a heck of a lot more hawkish than my classmates. Let me put it to you this way: while we were being taught that the soviet flavor of socialism was still a viable societal enterprise, I knew that not only was it an evil force at work on this planet, but that I wanted to fight it.

But one of the things that I did learn while at Fieldston was that in order to make progress on a problem, you need hear as many sides to that problem as possible (this, of course, leads to meaningful dialogue. Dialogue, in turn, leads to understanding. And that, in turn, leads to solutions. At least in theory. I believe that dialogue is important - review many of my old posts on Usenet and you'll see [I ought to post some of those here...] - but sometimes there's simply no common ground to be found.).

What's more - it can be highly entertaining to hear those views that widely diverge from your own.

So, I've taken to listening to Pacifica Radio on WPFW in DC (89.3 FM) while I'm driving in in the mornings - especially "Community Comment". For the uninitiated, Pacifica makes NPR look like Limbaugh's EIB Network. Community Comment is a call-in show - and Ron Pinchback takes _ANY_ calls (even my own). They are AWESOME! You get all sorts of folks - from the kinda nutty local activists to the full-blown German-accented from-the-trenches elderly socialist (I'm serious here - this guy's called in a couple of times since I've listened to talk about the class struggle in light of Katrina).

Yesterday morning I'm listening, and they're talking about the Millions More Movement March - the successor to the decade-ago Million Man March - and what people hope it will accomplish. Well, first off we get a guy who calls in to say that while he isn't advocating for violence, that when the millions of people arrive in DC they ought to constitute a private army and do something revolutionary!!!

Then, another guy calls in to say that what they ought to be talking about is crime - and that communities ought to become crime fighters, to band together to fight crime in their neighborhoods and FORGET THE POLICE!!!

Armed insurrection and vigilante-ism. If I hadn't immediately heard a call afterwards bashing the administration's record on race relations, I would've thought it was 10 years ago and I was listening to some sort of Ted Nugent pro-militia show on the AM dial.

Yes, there are real gems - which is why I do listen. I didn't realize, for instance, that the Red Cross gets reiumbursed by the Federal Government for their disaster relief work, which really offends me (especially when they: a) raise a billion bucks on Katrina relief and can't seem to spend it efficiently; and b) carp about not getting enough to send relief abroad). Found that out a few weeks ago. Also got some great ideas about the exacerbation of post-Katrina problems due to organizational, bureaucratic, and regulatory red tape. You gotta love it when a super-progressive outlet does a story and one can come to the conclusion that union recalcitrance was preventing hurricaine victims from getting their much-needed relief.

So, tune in. Call in if you're so inclined. If you can handle a little frustration and aggravation, you're gonna love it!

- Andrew Langer

The Federal Regulation of Swamps...

Another settled issue on the Liberty Blog: Our's is a government of limited powers.

The federal government simply cannot extend its reach into everything. Why? Because a government whose power has been limited is less able to abuse the rights of the citizens it has been set up to protect.

Of course, the tendency is for government to extend its reach (thus giving this blog an unlimited supply of subject matter). What's really amazing is when government extend its reach in one direction, then suddenly reverses that direction and does the direct opposite.

So it's been with the federal government and swamps. For nearly 100 years, the feds had a policy of "busting" swamps - turning them into usable farmland and abating the risk of malaria from mosquitos. The federal power nexus here was questionable enough, but that nexus became even more tenuous when the government switched to a wholesale program of wetlands preservation.

Now, I know that wetlands serve important environmental functions - flood control being the most important. Water filtration and species habitat following closely on the heels of the first. But because so many wetlands are found on private lands, and because the regulatory repurcussions are so strict, this question of the federal power over wetlands becomes an important one.

And there is no federal "Wetlands Protection Act". Much like the interpretation of "public use" that has changed since the founders wrote those words in the Constitution over two centuries ago, this is all an interpretation of the laws designed to protect "navigable" waters of the United States. What started as a law designed to prevent waterways from becoming impeded, thus preventing commerce from traveling on them, is now a law where dry land is now considered a navigable waterway.

So it was when Ocie Mills, a Florida builder, went to jail for putting dry sand on dry sand. So it was when the Don and Roger Norman, father and son community makers, who suddenly found more than 200 acres of their high-desert Nevada ranch federally-protected wetlands (amazingly, the feds wanted the _MOST_ valuable land. Imagine that!).

Now, when the Feds wanted to assert jurisdiction over wetlands owned by the Solid Waste Agency of Northern Cook County, Illinois (also known as SWANCC), SWANCC said, "Wait a minute - you're a government of limited powers, right?"

The Feds said, "Well, even if we are, we can regulate your land."

SWANCC challenged them on that, and in a surprisingly lucid opinion, the Supreme Court of the United States agreed. They held that the Federal Government has no business regulating isolated wetlands - wetland that have no relationship to interstate commerce (no "nexus").

Well, the Supreme Court now has an opportunity to build on that excellent decision. It has taken up two wetlands cases for review:

In the first, John Rapanos from Michigan asserts that the federal government has no authority to regulate his putting sand on isolated wetlands on property that he owns - wetlands that are 20 miles from any navigable waterway. Rapanos faces jail time for this offense, and the district court judge who initially heard this case was disgusted with the government's lawsuit.

The second, Carabell, hinges on whether or not their land is considered "adjacent" to tributaries of a navigable water.

These cases are important for two reasons. First, they're important because they represent an important opportunity for the Roberts court to stake out its territory on property rights - a legal area for which there are some questions regarding Chief Justice Roberts. Second, they also present an early opportunity for the Roberts Court to show how it is going to look at issues of federalism and the limits to federal power.

But they're also important because there are real people whose lives are in turmoil because these issues aren't settled. Ocie Mills did jail time. The Normans spent years in court and nearly lost all they had.

Like Mills, John Rapanos could go to jail. Let's hope the Roberts Court understands the limits to federal power so he doesn't have to.

- Andrew Langer

Death by 7,647 Pinpricks

If you’re not a regulation wonk, or a small business wonk, or, even less commonly, a small-business regulation wonk, then chances are that the late September release by an obscure federal agency of a 95-page report on regulatory impacts on small firms will simply pass you by. But that report has been eagerly anticipated for the better part of a year by those wonks (myself included), and for good reason: it represents the best picture of the burden faced by entrepreneurs each and every day in the face of federal regulations.

The agency is the Small Business Administration’s Office of Advocacy, and their report is innocuously titled, “The Impact of Regulatory Costs on Small Firms.” A project undertaken twice in the previous decade, the report previously let us know that the impact on small businesses (those with fewer than 20 employees – or ninety percent of all the businesses in the United States) was roughly $6,975 per employee per year. That number drops, because of various economies of scale, when the number of employees goes up.

To those of us who work on a day-to-day basis with small business owners struggling to understand and comply with the myriad of regulations they labor under, we see that regulation is a slow bleed – a death by thousands of pinpricks. This report measures each and every one of those pinpricks, and for 2005, we know that number has gone up – from $6,975 to $7,647, an increase of more than nine percent! What’s more, the total impact of regulation on business as a whole has jumped, from $876 billion to $1.1 trillion annually – or roughly 10% of national income.

It’s not just that there are so many regulations that are on the books (there are), it’s also the difficulty in figuring out just what needs to be done to be ahead of the law that makes the costs go up. For larger firms, the owner of the business can hire permanent professional help to interpret the regulations and ensure that the firm is in compliance. These professionals generally deal with human resources, environmental, and occupational safety and health regulations, the regulations that are the most complex and raise the greatest issues of liability for the small business owner.

But the smaller business owner can’t have these professionals on staff full-time – it doesn’t make economic sense, and so they either have to hire someone on an ad hoc basis or they themselves have to figure out what rules apply to the business and what they need to do to comply. And they need to do this in that spare time when they’re not actually attending to the day-to-day operation of their business. This drives up the costs – especially because the economies of scale don’t allow that cost to be spread over many different employees.

The problem, as anyone can understand, is one of scope. Every law passed by Congress is translated by federal agencies into pages upon pages upon pages of regulations. There is no possible way for anyone, let alone a small business owner, to know every federal regulation that applies to him. This creates the quixotic situation where every well-intentioned person is now potentially a criminal. It turns what is supposed to be a just legal system on its head.

The Advocacy report doesn’t focus on the fairness issue, it focuses on the costs associated with the actual compliance with regulations. That’s their job—and they do a damned fine one, too. In addition to measuring the impact every five years, Advocacy is also responsible for analyzing new regulations, measuring their potential impact on small entities, and offering up suggestions for minimizing that impact. They have saved small businesses billions of dollars over the years in alternate solutions to regulatory programs.

Just what does that mean overall? Well, consider the possibility of a small business being saved twenty thousand dollars in regulatory costs annually. Considering that small businesses are positively hurting for want of new employees, this affords them the opportunity to attract new employees, as well as to offer more competitive compensation packages to keep the employees they already have.

The necessity of regulation aside (that’s an argument for a different time), what is clear is that a $1.1 trillion regulatory state is an overall drag on our economy. The fact that it has risen so appreciably in the last five years is something that concerns all of us. This report should be required reading for all those who are adding to the regulatory morass which hobbles small businesses on a daily basis, along with an accounting of what these businesses might be doing, if they had more of their own time and money for themelves.

Property Rights - The Strength of Forged Alliances

Having been in the property rights movement for over a decade now, I've seen it at both highs and lows. Largely, as most of you know, the movement has been in decline - having suffered setback after setback, 8 years of an antagonistic Democrat administration, attacks from the radical statist left, efforts by government to buy off and fracture portions of the movement - and cowardice from those we assumed were our closest allies.

The property rights issue is one of my greatest passions, as they are the root of individual liberty, and I have thought long and hard about what's happened to the movement and how folks might work together to strategize for the future - it's why I seized upon the eminent domain abuse issue, as I saw and still see it as a vehicle towards bringing people together.

Because that's what it's all about, in the end - bringing people together, folks from outside the usual interest groups, to build on common strengths and mutual concerns, and in that way bring resolution to our shared problems. You need allies, you need alliances, and you need to focus on the future.

With that in mind, it's my pleasure to tell you all about a new venture by my friends, colleagues, and allies at American's for Tax Reform. One of the things I've been thinking about for a long time is how to bring together the "real property" property rights folks ("real" as in "land", ie, 'real estate') and the intellectual property rights folks.

Only, and I'll freely admit this, I don't know much about the intricacies of their issues. I can tell you all about DeSoto and the role of land title protection in the creation of free and prosperous societies. I can go on for a long time about the perverse disincentives of statist-oriented species protection. And I can give you a solid graduate-level class on the history of eminent domain and how we got from there to here.

But other people do - Scott LaGanga at ATR is one of those people. So Scott and Grover have put together the Property Rights Alliance (http://www.propertyrightsalliance.org) to bring these two groups and their issues together. I endorse this wholeheartedly, and look forward to working with them. The Alliance, Scott says, "recognizes the necessity for a constant defense of physical and intellectual property from government's grips."

Indeed. The steady erosion of rights in real property, and the lack of a steadfast defense by those outside of real property circles, has lead to the current incursions against intellectual property. If kids aren't being taught to respect their neighbors' lands, then there is no reason to protect some stranger's ideas.

Best of luck, Scott. It's going to be a fun battle, and I'm glad we'll be working on it together.

- Andrew Langer