From the Archives: ‘Intellectual Activist’ Robert Tracinski traces origins of the Ninth Amendment

‘Intellectual Activist’ Robert Tracinski traces origins of the Ninth Amendment
January 2, 2011 12:58 AM MST

In an interview last month with the Charlottesville Libertarian Examiner coinciding with the Jefferson Area Libertarians’ celebration of Bill of Rights Day, Robert Tracinski expressed his view of the meaning and importance of the Ninth Amendment to the U.S. Constitution.

Tracinski is editor and publisher of The Intellectual Activist (TIADaily.com), a position he has held since 1996 with the three-decade-old publication. He is also an active member of the Jefferson Area Tea Party.

Ratification debates
The origin of the Ninth Amendment can be found in the debate over ratification of the Constitution and whether it should include a bill of rights.

“The argument in favor of a bill of rights was very strong,” Tracinski said, because “we need to have these protections to keep government in check.”

Yet, he added, there was “one really good argument against a bill of rights” made by James Madison and others, which can be summed up as “the minute you put this down on paper and say, ‘these are your rights,’ it invites [the government] to say, ‘OK, those are your only rights, that’s all we have to limit ourselves to, and anything else we can do.’”

There was a desire among the Founders, Tracinski noted, to “not create this assumption that these are the only rights people have.”

Specifically to address this argument, in drafting the Bill of Rights, Madison included the language of the Ninth Amendment, which was based on a suggestion made by the Virginia ratifying convention.

Virginia’s “suggested wording was then fine-tuned and honed and brought down to this,” what we now call the Ninth Amendment, in order to “head off that idea that these are the only rights you have because they’re the only ones that are written down,” Tracinski explained.

Revival of constitutionalism

Reflecting on current affairs, Tracinski said that “what excites me about today is we are seeing a revival of constitutionalism.”

The American constitutional creed, he reiterated, “isn’t just a series of legal statements in a document [but] it’s a whole way of thinking about the role of government, a whole way of thinking about the limitations on government and the rights of the people.”

The concept of a constitutional creed, Tracinski concluded, “is something I see people taking more seriously, studying in more depth, and – hopefully -- reviving the constitution not just as a document but as a way of thinking, as a philosophy of government.”

Publisher's note: This article was originally published on Examiner.com on January 2, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Robert Tracinski celebrates the meaning of the 9th Amendment

Robert Tracinski celebrates the meaning of the 9th Amendment
January 1, 2011 6:14 PM MST

The New Year’s Eve edition of the Daily Progress published a letter to the editor from Edward Strickler of Albemarle County, who praised the Jefferson Area Libertarians for sponsoring a reading of the first ten amendments to the U.S. Constitution on Bill of Rights Day at the First Amendment Monument in downtown Charlottesville.

“It is great to have champions of liberty in our community,” wrote Strickler.

As it happens, the Charlottesville Libertarian Examiner interviewed one of the featured speakers at that event, Robert Tracinski, a member of the Jefferson Area Tea Party and publisher of The Intellectual Activist. (The other featured speaker was WCHV radio host Joe Thomas.)

Importance of 9th Amendment
The topic of Tracinski’s remarks was the importance of the Ninth Amendment to the Constitution, which reads:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The Ninth Amendment, Tracinski explained, is not so much a legal statement as it is a “statement of political philosophy.”

The amendment, he said, states that “individual rights are the basis of this whole thing, that pre-existing individual rights retained by the people are the essence and everything the government does has to be limited by that.”

9th Amendment jurisprudence?
There is no “Ninth Amendment jurisprudence” among Supreme Court decisions, he noted, “because it’s so broad and abstract.”

Rather than being the basis of specific judicial decisions, Tracinski said, the importance of the Ninth Amendment lies “more [in] the idea that it’s a guide to constitutional interpretation, because it basically says, ‘when in doubt, err on the side of individual rights. Err on the side of individual freedom.’”

The Ninth Amendment, he continued, “invites the interpreter of the Constitution, including Supreme Court justices, to refer back to the Declaration of Independence and to the Lockean, pro-individual rights position in there, as the basis for and meaning of the Constitution and as the grounds for interpreting everything in the Constitution.”

Default position: individual liberty

In Tracinski’s view, the default position for the government is restriction, while the default position for individuals is freedom.

He cited a famous quotation from Thomas Jefferson “about how we should trust people to run their own lives.” When it comes to government, Jefferson said, “Let no more be heard of confidence in man but bind him down from mischief by the chains of the Constitution.”

This idea, Tracinski said, is that “for the individual out there in the world, you should be able to view the world as a field of unobstructed action, with only a few areas marked off saying you can’t go there.”

The exceptions are such things as armed robbery or assault, he explained, and “there are a few very evil deeds that we’re not going to let you do and we’re going to punish you if you do them. Other than that, the field’s wide open. You can do what you want.”

On the other hand, he said, “for the government, it should be the exact opposite: there should be a few little islands where we say, ‘OK, here, national defense, law enforcement, the courts, these things you’re allowed to do and you can operate in this area’ but [the government is] hemmed in around all sides and the rest of the world is off limits to [it] and [it] can’t go there.”

That, Tracinski said, should be “how we look at things in terms of the relationship of the government to the people. That’s what the Ninth Amendment basically tells us.”

In part two of this interview, Tracinski traces the origins of the Ninth Amendment.


Publisher's note: This article was originally published on Examiner.com on January 1, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

From the Archives: Charlottesville Libertarians celebrate Bill of Rights Day at Free Speech Wall

Publisher's note: This article was originally published on Examiner.com on December 15, 2013. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016. I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Charlottesville Libertarians celebrate Bill of Rights Day at Free Speech Wall

On the 222nd anniversary of the ratification of the first ten amendments to the U.S. Constitution, members of the Jefferson Area Libertarians gathered at the Free Speech Monument near Charlottesville's City Hall to celebrate the Bill of Rights and how it “safeguards life, liberty, and property.”

An annual event since 1998, the December 15 gathering took place under sunny skies and was sometimes punctuated by a gust of wind that toppled posters and blew scripts out of speakers' hands. Featuring an “acclamation” of the Bill of Rights, in which the whole group of participants recited the ten amendments and their more obscure preamble, the celebration also included remarks by two local Libertarian Party activists.

'Restrictions on government'

In introducing the acclamation, Jefferson Area Libertarians (JAL) chairman John Munchmeyer pointed out that the first ten amendments to the Constitution “are restrictions on government not a list of the rights of the people. Rights” he said, “do not come from a government, a king, a constitution, the Declaration of Independence, or any piece of paper.”

The meaning of declarations of rights like this, he continued, is that “as long as you do not violate others' rights, you may live your life as you see fit without interference from government. The power of the state is subservient to the rights of the individual. This is the key that made this country different; it's what makes these United States of America special.”

Dr. Hallee Morgan, treasurer of the JAL, expressed surprise that the Founders even had do debate whether to add the Bill of Rights to the Constitution.

Today, she said, the Bill of Rights “seems like something that's just so important and so basic that one would think they wouldn't be able to debate about it” but rather that they would simply adopt it as something unquestionably proper.

Morgan noted that what the Founders “were most afraid of then was the power of the federal government,” which is also “one of the biggest problems that we have right at the moment.” The federal government, she added, “”take more than the Bill of Rights allows, consistently.”

Today's lawmakers “have too much power. They have a great deal more, certainly, than was intended by our forefathers.”

'Right to be left alone'

Morgan reflected on the definition of rights by noting that “existentialists would say that the natural law is the right to exist. Then of course there was Emerson, who said it was just the right to be left alone, which I can certainly sympathize with.”

Under natural law, she said, “we have the right to be free, the right to be free from coercion, to be free from servitude; the right to think, the right to create, the right to love; the right to defend yourself and defend others – any of your loved ones.”

Concluding her remarks, Morgan said that she is “really frightened by the future of the United States, mainly because we're getting so far away from the Constitution. The president, lawmakers, and judges are just roundly ignoring it.”

Munchmeyer followed up by showing how the original concept of the U.S. government has been “turned upside down.”

The Founders, he said, “formed the federal government to take care of specific enumerated functions like national defense, but the purpose of the government was still exclusively to safeguard life, liberty, and property and stay out of everything else.”

'Tentacles of bureaucracy'

Over the past 150 years, he lamented, “the whole thing has been turned on its head and now the servant has become the master. We have a national government that lords over the states and also lords directly over the individual, forcing us to do its bidding.”

Pointing out the expansiveness of the federal government today, Munchmeyer added that “it is difficult to name one aspect of our lives the tentacles of the national bureaucracy do not reach. Most of that intervention has resulted in making things worse [while] creating new, unforeseen side effects.”

Trying to end on an upbeat note, the JAL chairman said that gatherings like this one on Charlottesville's downtown mall demonstrate that people still have concern for their government and are willing to protest overreach on matters like NSA spying, Obamacare, and unbridled regulations. He optimistically closed his remarks by wishing the crowd a merry Christmas.

Justice Thomas' Florida Vacation

Escaping the snow and ice (and more snow and ice!) of Northern Virginia and Washington, D.C., was not likely foremost in his mind when he made his travel plans, but U.S. Supreme Court Justice Clarence Thomas demonstrated good timing when he chose to make a mini-tour of Florida law schools this week.

On Tuesday, Justice Thomas -- who rarely (if ever) speaks during Supreme Court proceedings, though perhaps less rarely delivers public speeches -- gave an address to students at Stetson University's College of Law in Gulfport, in which he defended the Court's recent campaign finance law decision in the controversial Citizens United v. Federal Election Commission case.

According to the New York Times:

“I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company,” Justice Thomas said. “These are corporations.”

The part of the McCain-Feingold law struck down in Citizens United contained an exemption for news reports, commentaries and editorials. But Justice Thomas said that reflected a legislative choice rather than a constitutional principle.

He added that the history of Congressional regulation of corporate involvement in politics had a dark side, pointing to the Tillman Act, which banned corporate contributions to federal candidates in 1907.

“Go back and read why Tillman introduced that legislation,” Justice Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”

The St. Petersburg Times elaborated on Thomas' remarks, quoting him as saying:

"If 10 of you got together to speak, you would have a First Amendment right to speak and a First Amendment right to free association. Now what if you wanted to form a corporation?"

Later, another student pressed him that the decision could politically disenfranchise those without a corporation's resources.

Thomas seemed to acknowledge the point, but also cautioned: "The law can't solve all our problems."

The local paper also explained how Thomas came to make his visit:

Two factors brought Thomas to Stetson: his friendship with U.S. District Court Judge Elizabeth A. Kovachevich of the Middle District of Florida in Tampa, a Stetson grad, and Thomas' appointment as circuit justice for the 11th Circuit Court of Appeals. It's his job to decide on stays and other matters for the court, which includes Florida.

Thomas has a passion for reaching out to law students, said Stetson professor Michael Allen. What few public appearances the justice makes are often at law schools.

"It is difficult to convey how rare of an experience it is for any American law student to have with one of the Supreme Court justices," Allen said.

WTSP-TV, a Tampa Bay CBS affiliate, reported that Thomas offered his views on the Constitution in general:

Known as a conservative member of the court, Justice Thomas says he tries to uphold the original meaning of the United States Constitution. "I like the structure of the Constitution and the structure is our biggest protection as opposed to the Bill of Rights."

He reminds the students constitutional law is more than a subject in law school, "It's about our country. It's about how we deal with the government. It's about whether we will be ruled or governed by consent. It's about how we participate."

Justice Thomas says personal feelings are checked at the door when deciding on a case. "Not as a citizen, not as a Catholic, not as a black person or Corn Husker fan, but as a judge. You limit your role as a judge. That's what I do."

Thomas also reflected on his own days as a law student, according to radio station WUSF:

"I've sat where you all are sitting," Thomas said. "Wondering if I was going to get a job. Wondering what I was going to do next. Wondering how I was going to repay my student loans. Wondering how I was going to buy Infamil for my baby."

Thomas spoke at length about growing up in segregated Savannah, Ga. He portrayed it as a kinder, gentler time, where neighbors helped neighbors. Where he could bicycle safely to Mass before sunup. Where - as he put it - if you caught too many fish, you could give one to your neighbor and get some corn back in return.

"I still have reflections of segregated school and saying the pledge allegiance to the flag - proudly," he said. "Patriotic, proudly. People fighing to be part of a war when they were living under segregation because they're proud of their country. We weren't always fighting each other about who had more rights and who had less. It's like our family, whether we get along or not. And in some sense, And it some sense the one thing we can regain is it's our country, and it's worth keeping. And it's our Constitution, and it's worth interpreting right."

(WUSF has a link to the audio of Justice Thomas' remarks.)

Jamal Thalji of the St. Petersburg Times reported in a second article about Thomas' views about SCOTUS itself:

Thomas professed his love of count[r]y and the Constitution. He said he is most proud of how the Supreme Court goes about its work defending both.

"I would say one of the hallmarks of the court is civility," he said. "What we are trying to protect is larger than us."

But the court's role, he said, is often misunderstood.

"People think we are a court of appeal," he said. "We are not. We are there to settle disputes."

That's the purpose of the law, he said, to settle disputes ("Short of fisticuffs," he said to more laughter.)

Later this morning, Justice Thomas will be speaking with faculty and students at the Levin School of Law at the University of Florida. His speech and Q&A are scheduled to begin at 10:00 o'cock a.m. (EST) and there will be a video webcast sponsored by the University.

Four University of Florida law students have been selected to form a panel to ask questions of Justice Thomas, according to the Gainesville Sun:

[Debra] Amirin said only six seats were made available for media and Thomas wouldn't be taking any questions from reporters — only from the panel of four UF law students.

Leah Edelman, Joshua Mize, Jon Philipson and Dwayne Robinson earned the opportunity to ask Thomas questions after being selected by a faculty committee at the law school.

There will be 796 other people in the audience, the fortunate few who will hear the views of the quietest justice ... and not a snowflake for miles around.

(Hat tip to Booker Rising.)



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Fifth CD Candidates on the 10th Amendment

At the invitation of radio talk-show host Rob Schilling, six of the seven candidates for the GOP congressional nomination in the Fifth District of Virginia -- Ken Boyd being the exception -- have submitted short statements on their views on the Tenth Amendment to the U.S. Constitution.

Rob lists the candidates in the order in which their responses were received, but I'll upend that by selectively quoting them in alphabetical order.  (Like Rob, I have not edited these sentences for spelling or grammar or syntax.)

Ron Ferrin:

Many have never read it before and had no idea that the REAL power of this country was placed by the constitution in the hands of the STATES. However, I believe that is about to change. For the first time, states have the motive and popular support to challenge a Federal Government action by the parameters of the 10 amendment.

Robert Hurt:

In Virginia, we are standing up for limited government and individual liberty. In fact, as a member of the Virginia General Assembly, I have cosponsored legislation that seeks to challenge the authority of the federal government to enact an unconstitutional federal takeover of our healthcare system. If elected to Congress, I pledge that I will continue to fight to reduce the size and influence of the federal government and to restore this country’s founding principles.

Jim McKelvey:

The tenth amendment to the Constitution is arguably the clearest statement in the bill of rights. There are powers and duties in the Constitution that spell out the scope of the federal government. The founders included the tenth amendment to help all of us understand where the power lies, powers that the Constitution did not impart on the government. It is clear and direct; it needs no interpretation, but it does need defending.

Mike McPadden:

...the Federal Government is only allowed to do what is actually written down in the Constitution saying what it is allowed to do. This was referred to by James Madison as the, “enumerated powers “, of the Constitution. If the Constitution doesn’t say that the Federal Government can institute universal health care, then it may not.

Feda Morton:

The Supreme Court has continued to turn its back on the 10th Amendment and given the Federal Government more power than strict Constitutionalists have deemed to be proper. With the establishment of the Interstate Commerce Clause, the courts have “discovered” all manner of permissions to elevate Washington and suppress state and individual rights.

Laurence Verga:

I am the only candidate who has signed a written pledge to uphold the 10th amendment. I challenge my opponents to do so as well if they want to take the amendment seriously.

It's clear that these six candidates are, to one extent or another, "Tenthers" -- a word not of opprobrium, but of pride.



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Bill of Rights Day 2009

Each December 15 since 1999, the Jefferson Area Libertarians have celebrated the anniversary of the ratification of the Bill of Rights to the U.S. Constitution with a gathering in downtown Charlottesville. Last year and this year, the gathering took place at the First Amendment Monument near City Hall, an appropriate place for such a commemorative ceremony.

Charlottesville libertarians were not the only people marking Bill of Rights Day today. Cato Institute legal scholar Timothy Lynch put a sadly dismal assessment of the current state of civil liberties on Cato's blog, Cato@Liberty (ending, however, with a brief optimistic note). A blog named Bungalow Bill's Conservative Wisdom asked its readers to "take the time to read the Bill of Rights" and courteously provided the entire text, including the seldom-read preamble. (The whole thing -- preamble, too -- was recited in Charlottesville today as part of the celebration. You can watch the video, below.)

In the course of my research for this post, by the way, I found a satirical article about a Third Amendment advocacy organization and a reference to the only Supreme Court case litigating that provision of the Bill of Rights, Engblom v. Carey. As it happens, there are a number of Facebook groups devoted to the Third Amendment, including one called the National Anti-Quartering Association and another called 1,000,000 People for the Third Amendment, which has 3 members.

And, lest we forget the broad and inclusive reach of the U.S. Constitution, a colleague forwarded me a link to an article with a reminder the the Bill of Rights applies to everyone, even gay and lesbian students in government schools. Freedom of speech and freedom of association are basic human rights.

The program that the Jefferson Area Libertarians began, as noted, with an acclamation of the Bill of Rights, led by JAL's James Curtis.

Curtis was followed by radio talk-show host Rob Schilling of WINA-AM. Rob, who is also a former Charlottesville city council member, talked about freedom of speech and freedom of assembly, two elements of the First Amendment. He noted, in reference to free assembly issues, that MSNBC's Keith Olbermann named local civil-liberties champion John Whitehead of the Rutherford Institute as the "Worst Person in the World." The reason for this honor? Whitehead has asked Congressman Tom Perriello (D-VA5) to move his office to a place where citizens can peaceably assemble in order to petition the government for redress of grievances, without also violating the rights of the owners of the property where the office is located. (Perriello's current office is on private property where Tea Party-like protests disrupt the business of his neighbors.) Olbermann's left-handed compliment to the protection of property rights can be found here, on YouTube.

Other speakers included Dr. James Lark, the former national chairman of the Libertarian Party, who noted that the Bill of Rights limits democracy while protecting individual liberties and human rights, and local entrepreneur Paul Perrone, who spoke about the importance of the Tenth Amendment.

The keynote speaker was Christopher Horner, a scholar with the Competitive Enterprise Institute who specializes in energy and climate issues. Horner is the author of Red Hot Lies: How Global Warming Alarmists Use Threats, Fraud, and Deception to Keep You Misinformed and The Politically Incorrect Guide to Global Warming (and Environmentalism). Given his field of expertise, naturally, he addressed how proposed "cap-and-trade" legislation -- whether Waxman-Markey, which passed the House of Representatives in June, or Kerry-Boxer, which is happily languishing in the U.S. Senate -- will adversely affect the civil liberties of Americans. As John Munchmeyer put it in his introduction of Mr. Horner, by regulating carbon dioxide as an evil pollutant, "I guess this bill is going to regulate life at its basic core," because CO2 is what humans exhale and what plants use to make oxygen.

Here are the speeches from today's Bill of Rights Day celebration in Charlottesville, divided into six segments:

Part I -- Reciting the Bill of Rights:

Part II - Remarks by Rob Schilling:

Part III -- Remarks by Rob Schilling (continued):

Part IV -- Remarks by Jim Lark:

Part V -- Remarks by Paul Perrone:

Part VI -- Remarks by Chris Horner:

You can see video of the Charlottesville Bill of Rights Day celebration of 2007 here, and Bill of Rights Day 2008 is here. (Update: I also found video from 2006, with further information about that year's event here.)

Update: The Daily Progress had a nice front-page photo of the event, featuring John Munchmeyer passing out copies of the Bill of Rights, in today's paper. It is not, of course, available on the Daily Progress web site. There is, however, a page one story about John Whitehead and Keith Olbermann.

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SCOTUS Stands Up for Human Dignity

With a vote of 8 to 1, the U.S. Supreme Court ruled today that a school district was wrong to strip-search a 13-year-old girl in an effort to enforce its zero-tolerance policy regarding all drugs, including Advil and Aleve.

The lopsided result in Safford Unified School District #1 v. April Redding (No. 08–479) -- only Justice Clarence Thomas dissented -- came as a surprise, since the line of questioning in oral arguments suggested that most of the justices were not sympathetic to the plight of a teenage girl stripped to her bra and panties in the principal's office. (Justice Ruth Bader Ginsburg seemed aghast at her colleagues' questions.)

The case involved Savana Redding, a student at Safford Middle School, who was suspected (based on the unsubstantiated claim of another student who was caught with prescription-strength ibuprofen and an over-the-counter naproxen pill) of drug possession. No drugs were found in her backpack or outer clothing, so the assistant principal ordered her to take all of her clothes off and allow school personnel to look inside her underwear.

In what may be a swan song, outgoing Justice David Souter wrote the majority opinion, saying:

...when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a reasonable search that extensive calls for suspicion that it will pay off. But nondangerous school contraband does not raise the specter of stashes in intimate places, and there is no evidence in the record of any general practice among Safford Middle School students of hiding that sort of thing in underwear; neither Jordan nor Marissa suggested to Wilson that Savana was doing that, and the preceding search of Marissa that Wilson ordered yielded nothing. Wilson never even determined when Marissa had received the pills from Savana; if it had been a few days before, that would weigh heavily against any reasonable conclusion that Savana presently had the pills on her person, much less in her underwear.

In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable.

In a separate opinion for himself and Justice Ginsburg, Justice John Paul Stevens wrote:

Nothing the Court decides today alters this basic framework. It simply applies [New Jersey v. T. L. O.] to declare unconstitutional a strip search of a 13-year-old honors student that was based on a groundless suspicion that she might be hiding medicine in her underwear. This is, in essence, a case in which clearly established law meets clearly outrageous conduct. I have long believed that “‘[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude.’”... The strip search of Savana Redding in this case was both more intrusive and less justified than the search of the student’s purse in T. L. O.

In a partial dissent, taking issue with the Court's grant of partial immunity to the school officials who ordered and participated in the strip search of Savana Redding, Justice Ginsburg wrote:

Any reasonable search for the pills would have ended when inspection of Redding’s backpack and jacket pockets yielded nothing. Wilson had no cause to suspect, based on prior experience at the school or clues in this case, that Redding had hidden pills—containing the equivalent of two Advils or one Aleve—in her underwear or body. To make matters worse, Wilson did not release Redding, to return to class or to go home, after the search. Instead, he made her sit on a chair outside his office for over two hours. At no point did he attempt to call her parent. Abuse of authority of that order should not be shielded by official immunity.

Although he dissented with the Court's ruling that the search of Savana Redding was unreasonable under the terms of the Fourth Amendment, Justice Thomas touched on the larger cultural issue -- whether schools should have one-size-fits-all, zero-tolerance policies -- in his opinion. If one reads between the lines, one can see that Thomas is suggesting that state and local legislative bodies should begin thinking about changing these policies, which often result in expulsions and other harsh punishments for hard-working, high-achieving, well-behaved students.

Thomas notes:

Restoring the common-law doctrine of in loco parentis would not, however, leave public schools entirely free to impose any rule they choose. “If parents do not like the rules imposed by those schools, they can seek redress in school boards or legislatures; they can send their children to private schools or home school them; or they can simply move.” See Morse, 551 U. S., at 419 (THOMAS, J., concurring). Indeed, parents and local government officials have proved themselves quite capable of challenging overly harsh school rules or the enforcement of sensible rules in insensible ways.

For example, one community questioned a school policy that resulted in “an 11-year-old [being] arrested, handcuffed, and taken to jail for bringing a plastic butter knifeto school.” Downey, Zero Tolerance Doesn’t Always Add Up, The Atlanta Journal-Constitution, Apr. 6, 2009, p. A11. In another, “[a]t least one school board member was outraged” when 14 elementary-school students were suspended for “imitating drug activity” after they combined Kool-Aid and sugar in plastic bags. Grant, Pupils Trading Sweet Mix Get Sour Shot of Discipline, Pittsburgh Post-Gazette, May 18, 2006, p. B1. Individuals within yet another school district protested a “‘zero-tolerance’ policy toward weapons” that had become “so rigid that it force[d]schools to expel any student who belongs to a military organization, a drum-and-bugle corps or any other legitimate extracurricular group and is simply transportingwhat amounts to harmless props.” Richardson, School Gun Case Sparks Cries For “Common Sense,” Washington Times, Feb. 13, 2009, p. A1.

These local efforts to change controversial school policies through democratic processes have proven successful in many cases. See, e.g., Postal, Schools’ Zero Tolerance Could Lose Some Punch, Orlando Sentinel, Apr. 24, 2009, p. B3 (“State lawmakers want schools to dial back strict zero-tolerance policies so students do not end up in juvenile detention for some ‘goofy thing’ ”); Richardson, Tolerance Waning for Zero-tolerance Rules, Washington Times, Apr. 21, 2009, p. A3 (“[A] few states have moved to relax their laws. Utah now allows students to bring asthma inhalers to school without violating the zero-tolerance policy on drugs”); see also Nussbaum, Becoming Fed Up With Zero Tolerance, New York Times, Sept. 3, 2000, Section 14, p. 1 (discussing a report that found that “widespread use of zero-tolerance discipline policies was creating as many problems as it was solving and that there were many cases around the country in which students were harshly disciplined for infractions where there was no harm intended or done”).

In the end, the task of implementing and amending public school policies is beyond this Court’s function. Parents, teachers, school administrators, local politicians, and state officials are all better suited than judges to determine the appropriate limits on searches conducted by school officials. Preservation of order, discipline, and safety in public schools is simply not the domain of the Constitution. And, common sense is not a judicial monopoly or a Constitutional imperative.

I may be reading this wrongly, but it seems to me that Thomas is waving his finger at legislators and telling them that it is their responsibility to fix these ill-suited (if well-meaning) policies.

His opinion reminds me of what he said in his dissent in Lawrence v. Texas:

I write separately to note that the law before the Court today “is … uncommonly silly.”... If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

In both of these cases -- Redding and Lawrence -- I believe that Justice Thomas was wrong in dissenting from the Court's majority. His reasoning, however, is respectable even as it reaches the wrong conclusions.

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Bill of Rights Day 2008

I have been remiss in failing to post the video of this year's Bill of Rights Day commemoration by the Jefferson Area Libertarians at the First Amendment Monument across from Charlottesville's City Hall on Monday, December 15.

This annual event has taken place, in one form or another, for more than a decade. This year there was a featured speaker from out-of-state, Duke University political science professor Mike Munger, who was the Libertarian Party's candidate for governor of North Carolina in 2008. Professor Munger won a sufficient number of votes to gain the LP ballot status in the Tarheel State for the next four years.

In this first segment, JAL's John Munchmeyer introduces the ceremony, and he and James Curtis lead the participants a formal reading of the text of the Bill of Rights (the first ten amendments to the U.S. Constitution), including its seldom-heard preamble.

In the second segment, Dr. James Lark, a former national chairman of the Libertarian Party who teaches at the University of Virginia, delivers brief (2 minutes 40 seconds) remarks.

In part three, John Munchmeyer discusses the Second Amendment and Mike Munger addresses the participants.

Finally, in the fourth of the four parts, Munchmeyer discusses the much-neglected Tenth Amendment and other, related topics as he closes the ceremony.

The eve of a new year is an appropriate time to reflect on our rights and liberties, which must be vigorously defended so they are not lost to violence or attrition. With a new administration taking the reins of government in only three weeks, now is a good time to reflect on the need to be vigilant in the defense of liberty. Enthusiasm and good intentions are liberty's greatest -- and stealthiest -- enemies.




Don't forget to check out the Christmas ornaments and greeting cards at my CafePress shop and the quirky gift ideas I posted at the start of the Christmas shopping season.

GLIL Submits Brief in Second Amendment Case

Gays and Lesbians for Individual Liberty (GLIL), an organization with which I have been affiliated since its founding on February 12, 1991 -- yes, GLIL's anniversary is just one day away -- has submitted an amicus curiae brief to the U.S. Supreme Court in the case of District of Columbia v. Heller. This is the most important Second Amendment case to reach the nation's highest court in almost 70 years.

The following news release is being distributed today by GLIL:

News Release from
Gays and Lesbians for Individual Liberty

Gays and Lesbians for Individual Liberty Submit Brief in Second Amendment Case

(WASHINGTON, February 11, 2008) – Gays and Lesbians for Individual Liberty (GLIL) has joined with Pink Pistols in support of the Second Amendment rights of lesbian, gay, bisexual, and transgendered Americans by filing a friend-of-the-court brief with the United States Supreme Court.

GLIL chairman Richard Sincere explained: “The brief was filed in support of Dick Anthony Heller, who sued the District of Columbia to have its draconian prohibition on private gun ownership overturned. Heller’s rights to own a gun for self-protection were upheld by the Court of Appeals for the D.C. Circuit. D.C. Mayor Adrian Fenty appealed the case to the Supreme Court.”

The brief states that "Laws that prevent the use of firearms for self-defense in one's own home disproportionately impact those individuals who are targets of hate violence due to their minority status, whether defined by race, religion, sexual orientation, or other characteristic.… [Not] only do members of the LGBT community have a heightened need to possess firearms for self-protection in their homes, the Second Amendment clearly guarantees this most basic right. This Court should not permit the democratic majority to deprive LGBT individuals of their essential and constitutional right to keep and bear arms for self-defense in their own homes"

The brief also makes a unique argument, tying the denial of rights of gay men and lesbians to possess firearms to the statutory mandate to exclude those same citizens from military service through the "Don't Ask Don't Tell" rules:

"… Interpreting the Second Amendment as recognizing a right conditioned upon military service, where eligibility for military service is defined by the Government, prevents the Amendment from acting as any constraint on Government action at all. Such a result is contrary not only to the literal text of the Amendment, but to the intentions of the Framers. Further, in light of the current 'Don't Ask, Don't Tell' policy, such an interpretation would completely eradicate any Second Amendment right for members of the LGBT community."

A number of other organizations have also submitted amicus curiae briefs to the Supreme Court in this case, arguing in favor of an individual right to possess firearms, including the Cato Institute, Disabled Veterans for Self Defense, Jews for the Preservation of Firearms Ownership, the Rutherford Institute, and a group of women legislators and academics.

The case is District of Columbia v. Heller, Docket No. 07-290. A copy of the Pink Pistols/GLIL brief can be accessed at http://tinyurl.com/29uqgo.

Gays and Lesbians for Individual Liberty was founded in February 1991 to advance the ideas of economic and personal freedom and individual responsibility. It has members across the United States and in several foreign countries. GLIL previously filed an amicus brief in the Supreme Court case of Boy Scouts of America v. Dale. For more information, visit http://www.glil.org or telephone [redacted].

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The Supreme Court will hear oral arguments in D.C. v. Heller on March 18, 2008. A decision will be released later in the year, probably at the end of the Court's term in late June.

Bill of Rights Day 2007

Yesterday was the 216th anniversary of the ratification of the Bill of Rights. The first ten amendments to the Constitution had been proposed during the First Congress and by December 15, 1991, the requisite three-quarters of the states had approved them. (Two other amendments, proposed at the same time, failed to make the cut; one of those two was finally ratified in 1992.)

The downtown mall in Charlottesville was the site of a Bill of Rights Day commemoration. This annual event is sponsored by the Jefferson Area Libertarians.

This year, the speakers were John Munchmeyer, who introduced James Curtis (who led a recitation of the text of the Bill of Rights with the assembled citizens) and Jim Lark, and then later delivered some remarks of his own.

Here, in two parts, is a video of the 2007 Charlottesville Bill of Rights Day celebration.

Part I:



Part II:

Speaking of patriotic commemorations, today also marks the 234th anniversary of the Boston Tea Party.

For those who want to celebrate that historic event, visit the campaign web site of presidential candidate Ron Paul, whose supporters have organized a "moneybomb" to coincide with the anniversary. (The last such moneybomb, on November 5, raised a record $4.2 million in 24 hours.) Thousands of small-dollar contributions can add up quickly. Do your part to break another record!

Bill of Rights Video Blog

As announced earlier today, the Jefferson Area Libertarians sponsored a reading (out loud) of the Bill of Rights on Charlottesville's Downtown Mall this afternoon. The occasion was the 215th anniversary of the ratification of the first ten amendments to the U.S. Constitution.

The weather cooperated nicely: temperatures were in the 50s (perhaps even the low 60s) and the sun was just beginning to set, giving the setting a nice, even light that was neither too bright nor too dull. This resulted in some good photos, like this one taken near the big city Christmas tree at Central Place:



I was at the event and managed to get most of it recorded with my handy cell phone. Unfortunately, while the audio is pretty good, the video is rather blurry. Still, it's the words that are more important than the images.

The three gentlemen who conducted the ceremony were John Munchmeyer, Jim Lark, and Arin Sime. (Arin is also a candidate for the Virginia State Senate, running in the 2007 election in the 24th District.)

The ceremony was introduced by John Munchmeyer:

Then the three traded off in reading sections of the Bill of Rights, including the seldom-referenced preamble:

This was followed by comments by Jim Lark:

Arin Sime then spoke briefly about the threat to the Bill of Rights from eminent domain abuses:

Finally, John closed out the ceremony with a few summary remarks:

I thought it noteworthy that the commemoration took place just an hour or so before the beginning of Chanukah (at sunset), which may be the most libertarian of religious holidays, in that it memorializes a righteous uprising against tyranny.

Bill of Rights Day Commemoration

Today is the 215th anniversary of the ratification of the Bill of Rights to the Constitution, which took effect upon the approval of three-quarters of the states on December 15, 1791.

It should come as no surprise, but did you know that, at least since 1990, the U.S. Congress has not once issued an official commemoration of this historic event? (I looked it up on Thomas. Nada.)

We can be grateful that a local activist group, the Jefferson Area Libertarians, wants us to remember the Bill of Rights and its importance to Americans. Today in both Waynesboro and Charlottesville, the JAL will be conducting a bit of street theatre in the form of an "acclamation" of the first ten amendments to the U.S. Constitution.

Here's their announcement regarding Waynesboro:

The Jefferson Area Libertarians will hold a "Bill of Rights Acclamation" on Bill of Rights Day (Friday, December 15th, 2006). The event will be held in downtown Waynesboro from 12:00 to 12:30 p.m. at the Municipal Building at the corner of Main Street and Wayne Avenue. JAL members will read aloud the Bill of Rights, speak about its profound impact on freedom, and of recent events injurious to its purpose.

Location: Municipal Building
Corner of Main Street and Wayne Avenue
Waynesboro, Virginia

JAL member Jim Lark -- faculty advisor to Students for Individual Liberty at the University of Virginia and former national chairman of the Libertarian Party -- was a guest this morning of Jane Foy and Rob Schilling on WINA-AM. Dr. Lark noted the planned acclamation in Charlottesville later this afternoon and discussed some of the contemporary threats to the Bill of Rights, including the Kelo v. New London decision of the U.S. Supreme Court, the Military Commissions Act of 2006, and the McCain-Feingold campaign finance "reform" law.

Today's Bill of Rights Day celebration in Charlottesville, will be at Central Place (Main St. & 2nd St. East, next to the fountain) on the Downtown Mall and not -- as one would expect -- at the Free Speech Monument near City Hall, from 4:00 to 4:30 p.m. (just before sundown):


I realize this is rather late notice to my Charlottesville readers (and those across the mountain) but I hope many of you will join the Jefferson Area Libertarians to proclaim, loudly and proudly, that the Bill of Rights is still relevant and vibrant after 215 years.