Posts tagged with: rule of law

Reading through Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice, I came across this gem: “No government official is ‘tempted’ to place restraints upon his own freedom of action, which is why Lord Acton did not say ‘Power tends to purify.’”

The comments from Justice Scalia emerged from Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). A fuller context to his words gives added meaning to the threat to liberty and the rule of law from activist courts:

The Court’s statement that it is “tempting” to acknowledge the authoritativeness of tradition in order to “cur[b] the discretion of federal judges” is, of course, rhetoric rather than reality; no government official is tempted” to place restraints upon his own freedom of action, which is why Lord Acton did not say “Power tends to purify.” The Court’s temptation is in the quite opposite and more natural direction – towards systematically eliminating checks upon its power; and it succumbs.

Jordan Ballor reminded me of a similar Lord Acton quote: “Everybody likes to get as much power as circumstances allow, and nobody will vote for a self-denying ordinance.”

A few days ago, a documentary entitled: Half the Sky: Turning Oppression into Opportunity for Women Worldwide, a portion of which is devoted to depicting the situation of violence against women in Sierra Leone, aired on Public Broadcasting Station (PBS). Not portrayed in the documentary, but also a factor that puts women in the country at a disadvantage is little or no right to private property. An INRN article states, “…the vast majority of women in Sierra Leone live under traditional land tenure structures that do not recognize a woman’s right to own property.”

These structures have prevented women from owning land, which is vitally important for business operation and personal livelihood. Escape from this land system is nearly impossible. Many of the provinces in Sierra Leone are governed through a legal system run by heads of ruling families, known as paramount chiefs. The article goes on to explain, “Paramount chiefs, the “custodians of the land,” are generally men and most ethnic groups do not allow women to inherit land and property.” (more…)

One line from last night’s debate leapt out at me. It wasn’t a stumble amidst the cut and thrust of open debate. It was during President Obama’s closing statement—400 words that I’m guessing he and his staff crafted with painstaking care.

About half way through his summation, the president gave his vision of government in a nutshell. He said that “everything that I’ve tried to do, and everything that I’m now proposing for the next four years,” was “designed to make sure that the American people, their genius, their grit, their determination, is – is channeled.”

In that one word, channeled, President Obama distilled the problem. It isn’t his job to channel America’s genius, grit and determination anymore than it’s a traffic cop’s job to tell you where to go when you hop in your car. The police officer has an important role. Government has an important role. But it isn’t to channel.

That isn’t how you free a country for greatness; it’s how you suffocate it, by having politicians and bureaucrats endlessly picking winners and losers, inserting themselves into the middle of every market bigger than a lemonade stand. (Oh wait, they got to the lemonade stand, too.)

President Obama quickly went on to explain what he meant by the federal government channeling, but the gloss was cold comfort. The good parts of the gloss—“everybody’s getting a fair shot,” “everybody’s playing by the same rules”—had nothing to do with channeling. And the part that was all about channeling—the government making sure that “everybody’s getting a fair share, everybody’s doing a fair share”—was just same failed, slightly creepy vision of an all-embracing nanny state that has Europe on the brink.

Blog author: ehilton
posted by on Friday, September 14, 2012

Yesterday at Mashable.com, a leading social media site, an article entitled ‘5 Fun Games With a Higher Purpose‘ was featured. The article noted that these types of games attempted to combine fun with some sort of societal impact. One game, Darfur is Dying, allows the player to simulate life in a Darfuri refugee camp for a family. If one family member leaves to get water and is killed or captured, the player must choose the next family member to send out. The game prompts players to make donations to humanitarian organizations.

Another game, Survive125, challenges folks to survive on $1.25 a day, with choices like sending one’s young daughter into a factory job or selling her to a prostitution ring. At the end of the game, the player is once again enjoined to make donations to various charities.

While the main purpose of these games seems to be to heighten awareness of global issues that plague much of the world’s population, there is something decidedly distasteful about playing at poverty. Every human, in every living situation, has dignity, and their lives are not games. Despite living in a refugee camp, a woman has dignity. A man trying to support his family on mere pennies a day has dignity. The image of a person casually punching their smartphone while playfully dodging bullets or sending a daughter off to a life of prostitution – real occurrences in some people’s lives – leaves a bad taste in one’s mouth…and perhaps a callous on one’s soul.

These games don’t do a darn thing, except provide a form of vulgar entertainment. A person may or may not be moved, at the end of play, to make a donation to an NGO or charity. If a donation is made, will it make a difference? What stands in the way of that donation and making a difference in Darfur or another place in the developing world? Corruption, lack of rule of law, lack of private property rights, lack of adequate education….the list goes on. The donation of money to foreign countries is not, and has never been, the answer to these issues. One need only look at Haiti (note this post and this one) to see that foreign aid not only doesn’t help but often hurts.

Such games foster the illusion that a person playing a game, who knows nothing of what it means to live in war-torn country or eke out an existence on a sub-standard income, is more able to alleviate and solve the issues in the developing world than those in the developing world themselves. What the people in these circumstances lack is not donations from the players of Darfur is Dying. What they need are the tools to create a safe, sustainable existence for themselves, supported by those with the capacity to offer real partnership. Games don’t solve poverty; hard, dignified work done by real people with creative minds does.

This article is cross-posted at PovertyCure.org.

Earlier this month, India experienced the worst blackout in global history. Over 600 million people—more than double the number of people in the U.S. and nearly one in 10 people in the world—were left without power.

The crisis highlights the fact that corrupt governance and lawless institutions can keep even an entrepreneurial people in the dark:

Along with a lack of investment in infrastructure, the crisis also had roots in many of India’s familiar failings: the populist tone of much of its politics, rampant corruption and poor management in its government and public sector, weak law enforcement, and a maze of regulations that restrict many industries.

Officials said they did not know what caused the blackout Tuesday, although a similar failure Monday was blamed on individual states drawing too much power from the grid, in defiance of regulations.

“It is open lawbreaking that goes on all the time in India,” said a Power Ministry official, who spoke on the condition of anonymity because of the sensitive nature of the subject. “This time, it went beyond limits.”

Read more . . .

David Theroux of the Independent Institute concludes his two-part article on “secular theocracy” here (the full article can be read here). In this second part, Theroux observes that “C.S. Lewis understood that natural law applies to all human behavior including government officials.”

Indeed, it is hard to see how the rule of law can function apart from a conception of the natural law. Now as Theroux shows, not just any conception of the natural law will do. It has to be one rooted in the divine lawgiver to those created in his image, with the implications for dignity and basic rights entailed by such.

Otherwise you might have a “natural law” that empowers the strong over the weak on the basis of their ability to dominate, or their intelligence, or their “fitness” to rule. See, for instance, Sam Gregg’s explanation of how Plato and Aristotle justified slavery.

In my commentary this week, I used Louisiana as one of the backdrops to shine the light on government greed. I first became fascinated with the political scene in the Pelican State when I moved down to the Mississippi Gulf Coast.

I stayed up late one night in 1996 watching C-Span2 while Woody Jenkins, the Republican nominee for U.S. Senate, appeared to have his election stolen. I was hooked from that point on.

Former Louisiana governor Earl Long once remarked, “When I die I want to be buried in Louisiana so I can stay active in politics.” Former Congressman Billy Tauzin said of his state: “One half of Louisiana is under water and the other half is under indictment.” Former governor Edwin Edwards, who is mentioned in the commentary, has a fascinating book profiling his antics and political corruption in The Last Hayride.

Louisiana has undergone a remarkable transformation and it is covered superbly by Jim Geraghty at National Review in “The Storm Calmer.” The transformation provides wisdom for the nation today. My commentary is printed below.

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Government Greed Needs an ‘Occupation’ Too

When it comes to political crookedness and graft, Louisiana is infamous. The New York Times just profiled Edwin Edwards, whose reputation earned him the nickname “Fast Eddie.” The former governor of the Pelican State recently released after a 10-year prison sentence for racketeering naturally wants back in the political ring. A resident displayed the love many still have for the former lawmaker, telling the Times, “We all knew he was going to steal, but he told us he was going to do it.”

Edwards serves as one of the most flagrant examples of government greed, enriching countless cronies along with himself. But he is not alone. The Occupy Wall Street movement focuses on “corporate greed,” but the public sector variety, though it draws less media attention, is equally reprehensible.

Eminent domain abuse, bloated public pensions, deficit spending—which simply generate calls for future tax increases—and a tax code that discourages saving and investing, are just a few examples of government greed. The 19th century British preacher and evangelist Charles Spurgeon once remarked, “You say, ‘If I had a little more, I should be very satisfied.’ You make a mistake. If you are not content with what you have, you would not be satisfied if it were doubled.”

His audience was the individual. But Spurgeon’s warning applies to a government demanding more wealth that should remain private and more of the public trust. Government excess and the way in which it mercilessly suctions revenue away from Main Street are alarming indeed. According to The World Bank’s annual Doing Business report, the United States no longer ranks as a top 10 country for starting a business; Rwanda is higher on the list. Half a century ago, business rapidly mobilized to help launch the greatest army of liberation in world history; now the nation’s private sector faces an uncertain future.

Today the Occupy Wall Street movement and its echo chamber in the media denounce corporate America. But a smaller headline in Bloomberg News about Washington edging out San Jose, Calif., as the wealthiest U.S. metropolitan area raised eyebrows, too. The total compensation package for a federal employee in the beltway now exceeds $126,000. There are many hard working and patriotic federal employees, but as the federal government payroll increasingly coincides with a diminishing private sector, government employees are rapidly moving closer to the 1 percent.

More disturbing perhaps is a quote from the president of the D.C. Chamber of Commerce who declared, “Wall Street has moved to K Street.” The mammoth increase in federal laws and regulation has generated an upsurge in the number of lobbyists and lawyers to manage the federal government’s far-reaching bureaucratic tentacles.

Greed of all sorts should be denounced. Unique to neither business nor government, its perennial presence illuminates the unchanged heart of humankind. For that reason the Founders understood that the power of government must be limited and virtue magnified. During the benediction at the Acton Institute’s Annual Dinner last week, Rev. Ren Broekhuizen offered this rightly famous quote from Abraham Kuyper: “There is not a square inch in the whole domain of our human existence over which Christ, who is Sovereign over all, does not cry: ‘Mine!’” He implored the assembled to mount their own righteous “occupation” of Wall Street, the government, business, and all of society.

Just last week, the 84-year-old former governor Edwin Edwards joked with well wishers and basked in the limelight at a parade during the International Rice Festival in Crowley, La. That same day Gov. Bobby Jindal coasted to reelection against a crowded field with nearly 66 percent of the vote. Jindal’s approval in part stems from sweeping reforms to antiquated laws that bred government greed and corruption. After Katrina and the BP oil spill, it was all the more apparent to Louisianans that the old way of doing things was toxic. Greed and corruption intensify suffering in a time of crisis.

As America faces its current economic crisis, Louisiana’s experience is instructive. Solutions can be found not in centralized power and burdensome regulation, which facilitate and reward government greed, but in framing sensible laws and reinvigorating a culture of virtue in business and government alike.

Three of the Acton Institute’s core values are dignity of the person, the rule of law and the subsidiary role of government. The Patriot Act, passed in 2001, violates these fundamental principles.

In the United States and elsewhere, freedom and protection against unreasonable government intrusion have been considered essential to a democratic society. Near the start of the American Revolution, the Founding Fathers and the American colonists had grown tired of English interference.  A particularly inflammatory usage of law was “the British government’s illegitimate use of authority… using “writs of assistance” – general warrants that granted revenue agents of the Crown blanket authority to search private property at their own discretion.”  This allowed British government officers to enter someone’s home, with little or no legal oversight, and do as they pleased.

This historical background is important to a discussion of the Patriot Act “because the purpose of the Fourth Amendment was not just to protect personal property, but ‘to curb the exercise of discretionary authority by [government] officers.”

Now, unfortunately, the United States is mimicking the colonial British government with the Patriot Act’s regulations.  The law has given “the executive branch broad and unprecedented discretion to monitor electronic communications and seize private records, placing individual liberty ‘in the hands of every petty officer.”

How did such an act pass through Congress?

In 2001, “just 45 days after the worst terrorist attack in history, Congress passed the Patriot Act, a 342-page bill amending more than a dozen federal statutes, with virtually no debate.” Similarly to how the Patient Protection and Affordable Care Act was pushed through Congress, the Patriot Act was rushed through quickly and signed by President Bush.

In this law, there are numerous provisions of questionable constitutionality. Section 206 of the bill allows for roving wiretaps. However “unlike roving wiretaps authorized for criminal investigations, Section 206 does not require the order to identify either the communications device to be tapped nor the individual against whom the surveillance is directed, which is what gives section 206 the Kafkaesque moniker, the ‘John Doe roving wiretap provision.”

A person may be under surveillance and not know about it, remaining legally “invisible” to all but the FBI agents who are monitoring them. This should be a cause of concern for anyone worried about the government being too intrusive and secretive. It does not keep intact the dignity of the person when one is not even aware they are being treated as a criminal. Due to the secrecy of this section, “there is virtually no public information available regarding how the government uses Section 206.”

Another provision of the Patriot Act is Section 215.  This provision allows “the government to obtain orders for private records or items belonging to people who are not even under suspicion of involvement with terrorism or espionage, including U.S. citizens and lawful resident aliens, not just foreigners.”

Section 215 and Section 505 of the bill are often used in tandem. Section 505 allows the FBI to issue National Security Letters (NSLs). NSLs “are secret demand letters issued without judicial review to obtain sensitive personal information such as financial records, credit reports, telephone and e-mail communications data and Internet searches.”

Prior to the Patriot Act, “the FBI had authority to issue NSLs … [but] Section 505 increased the number of officials who could authorize NSLs and reduced the standard necessary to obtain information with them, requiring only an internal certification that the records sought are ‘relevant’ to an authorized counterterrorism or counter-intelligence investigation.” With these provisions, the FBI can essentially sidestep the judicial system.

In fact, in 2006, “the FBI twice asked the Foreign Intelligence Surveillance Court for a Section 215 order seeking ‘tangible things’ as part of a counterterrorism case… The court denied the request, both times, because ‘the facts were too ‘thin’ and [the] request implicated the target’s First Amendment rights.” Rather than reworking the case, the FBI simply applied for three NSLs (which it got) and continued pursuing the case.

Instead of pursuing the case through the processes of the legal system, the FBI ignored the rule of law and moved on with its investigation. This shows a surprising lack of integrity. The FBI should remember Titus 2:7: “In everything set them an example by doing what is good. In your teaching show integrity and seriousness.”

In another questionable act, the Department of Defense “asked the FBI to issue NSLs compelling the production of records the DOD wanted but did not have the authority to obtain.”  However, the FBI complied with the Department of Defense’s request, “apparently violating its own statutory authority.”  This seems to be a rather repetitive story: the FBI and other government bodies violating their legal purpose.

A reasonable person might ask, “Has this resulted in increased capture of terrorists or dangerous criminals?”  The surprising answer is…not really.  In fact, in 2006, the Department of Justice refused to even hear 87 percent of the cases referred by the FBI.  This is part of a disturbing trend: in 2002, the DOJ rejected 56 percent of the cases; in 2003, 77 percent; in 2004, 72 percent; and, in 2005, 84 percent of the cases.  This shows that “the vast majority of the FBI’s terrorism-related investigative activity is completely for naught – yet the FBI keeps all of the information it collects through these dubious investigations, forever.”

This year the Patriot Act was up for renewal, and given its lack of effectiveness it was probably rejected, right? Wrong. After 30 minutes of debate in the House, a vote was taken and renewal passed. The Senate similarly spent minimal time on debate and renewed the law.

Some government officials have praised the controversial act. In 2003, US Attorney General John Ashcroft told a gathering of law enforcement officials, “that because of the Patriot Act, America is safer and freer than it was before.” John Podesta, President Clinton’s chief of staff, explained: “The provisions of the new law … are a sound effort to provide new tools for law enforcement and intelligence agencies to combat terrorism while preserving the civil liberties of individual Americans.”

President Bush, who originally signed the bill, in an address in 2005, “recalled the case of an Ohio truck driver, Iyman Faris, who was charged in 2003 with plotting with Osama bin Laden and other Al Qaeda leaders to commit acts of terrorism, including blowing up the Brooklyn Bridge.” Without the Patriot Act, President Bush contended that Mr. Faris might have escaped the grasp of law-enforcement officials.

However, not all government officials approve of the law.  A Minneapolis FBI agent, Colleen Rowley, “testified before Congress that the FBI was so thick with bureaucracy and micromanaging that intelligence gathered at the grass roots level never made it to the agency’s top echelon.”  John Podesta even said “we should be ever vigilant that these new tools are not abused.”

Former senator, and head of the Senate Judiciary Committee, Russell Feingold, in 2005, mentioned “many lawmakers in both parties had concluded that portions of the act infringed on freedom.”  Clearly, although some government officials view the Patriot Act as necessary and useful, it is far from a consensus.

Although the Patriot Act probably has stopped some criminal acts, it is hard to justify such a large, intrusive surveillance bill based on only a few known successes. Instead of an ever more intrusive government, we need a government that stays within its limited powers and effectively carries out the missions defined to it. The FBI’s mission is to protect the nation, and it should be given the proper tools to do so. However, there is no need for the FBI or other government agencies to use legal “shortcuts” permitted by the Patriot Act. American citizens need protective agencies, but not agencies that sidestep the rule of law and subject people to unregulated and undefined investigation.

In a review of Daniel Mahoney’s The Conservative Foundations of the Liberal Order, David Deavel cites Mahoney’s assertion that “constitutionalism and the rule of law … are the indispensable foundations of a free and civilized political order.”  As long as the Patriot Act is enforced, the United States has a law that enlarges government surveillance and power without much regard to legal processes. The United States needs effective law enforcement and national security agencies, but the Patriot Act is simply the wrong way to improve the country’s safety.

Additional Information:

Patriot Act Renewal Vote 2011: House, Senate

Patriot Act Initial Vote 2001: House, Senate

Blog author: cromens
posted by on Thursday, March 24, 2011

Three days ago I arrived in Nairobi, Kenya, for Acton’s conference at Strathmore University. Driving about the city the last few days, I have been amazed by the number of small-medium businesses located in the kiosks along streets. These simple, tin/wood structures are bustling with enterprising and entrepreneurial souls working hard to better their lives and those of others.

In a Nairobi bread kiosk


With such diligent and enthusiastic people, why is Kenya such a poor country?

In discussions with students and staff at Strathmore, I have heard many stories outlining the significant problems with law, property, and inter-tribal (low non-kin) trust. You wonder:

• How can a country thrive when officials do not equally distribute justice? Where bribes and connections determine legal decisions?
• How can an entrepreneur access the necessary start-up capital for his business when he is considered a squatter in the home he built because he cannot access a title to the land?
• How can local or foreign investors expand their businesses when they are not members of a certain tribe and so are not well trusted?

These are the struggles, not only of Kenya, but of the developing world. These are the problems that need to be addressed in order to have a strong market economy that has the power to reduce poverty world-wide. These are some of the many questions asked and discussed at today’s conference titled Economic and Cultural Transformation: Breaking the Shackles of Poverty.

More than 170 people attended this conference, co-sponsored by Strathmore’s Governance Centre. We heard the speakers discuss both the theory and the practice of moving out of poverty through enterprise. By building up the institutions of rule of law, private property, and a culture of trust, the creative power of individuals is able to be unleashed and drive innovation and business. A new mindset is needed – not to rely on big government or foreign aid, but upon the many entrepreneurs who create wealth and help countries rise out of poverty.

Also see the article “Involve People in the Poverty Fight” by Antoinette Kankindi and Tom Odhiambo of the Strathmore Centre which appeared in yesterday’s Nairobi Star.

Update (3/25): The Standard reports on the conference. Read “Top economists urge African States to support enterprises.”

Blog author: jcouretas
posted by on Wednesday, January 26, 2011

When we think of rule of law failure, countries like Zimbabwe and Somalia come to mind. But as Acton Research Director Samuel Gregg points out in his latest piece over at Public Discourse, rule of law can also be subtly eroded in wealthy countries. The negative consequences for risk-taking, entrepreneurship, and long term investment, he says, can be far-reaching.

Risk is an inherent part of the workings of market economies. But Gregg notes that’s not the same thing as uncertainty:

Measurable risks are . . . no deterrent to the making of economic choices. If we take them seriously, they help us to calibrate our economic choices to be consistent with our responsibilities, resources, and opportunities. The same measurements also allow us to distinguish between prudent risk takers and the reckless, and reward them appropriately. Uncertainty, by contrast, involves those risks that cannot be quantified. It can occur either because of the sheer complexity of a given situation or because the subject matter cannot be reasonably measured. As long as a situation of uncertainty persists, it will deter many people from even considering whether to take economic risks.

Uncertainty in America, according to Gregg, is being magnified by the sheer complexity of laws such as the United States Internal Revenue Code:

A tax code of this size and complexity which is subject to so many sources of potentially conflicting official and semi-official explanations is bound to embody significant contradictions, and offers considerable scope for arbitrary decision-making. Uncertainty is the result. It’s also valid to claim that the same tax code may well be impossible for large numbers of honest law-abiding citizens to understand and comply with—not to mention difficult for conscientious civil servants to administer justly. As a result, many people may unintentionally violate the law or simply choose to forgo making any number of potentially wealth-creating opportunities for fear of violating the law.

Another example is the thousands upon thousands of pages of legislation being passed by Congress every year. As Gregg writes:

Then there are the rule-of-law problems associated with the sheer volume of law that directly shapes American economic life. The 2010 healthcare reform legislation, for instance, amounted to 2,700 pages. Not far behind it in length was the 2010 financial overhaul act: a mere 2,300 pages. More than a few legislators have confessed to never having read either piece of legislation in its entirety. Nor should we assume any great familiarity on their part with the thousands of pages of legislation which these acts superseded, integrated, or reinterpreted. The possibility that many laws governing healthcare and financial services have subsequently been rendered unclear, inconsistent, and impossible to comprehend is high.

These erosions of rule of law, Gregg says, result in large incentives not to take risks and not to make long-term investments. It also encourages entrepreneurs to look elsewhere for a more friendly, stable and comprehensible legal environment.

Read the piece in its entirety at Public Discourse.