From the Archives: Attorney General Ken Cuccinelli says Obamacare decision is 'a win for liberty'

Attorney General Ken Cuccinelli says Obamacare decision is 'a win for liberty'
June 28, 2012 11:30 AM MST

In a press conference today, Virginia Attorney General Ken Cuccinelli said that the Supreme Court’s health-care decision was a “victory for individual liberty” and that his initial reaction to the ruling was more negative than it ought to have been.

Speaking to reporters in Richmond and via telephone conference call, Cuccinelli called the ruling “a win for liberty” and explained that for the first time in 85 years, the Supreme Court had set “an outer limit” on the expansion of federal authority through the Commerce Clause.

He said that by its 5-4 ruling on the limits of the Commerce Clause, the Court had put in place a “critically important containment of federal power” and that in the parts of the ruling dealing with Medicaid, the justices had for the first time since the New Deal said that Congress has limited power to compel states to act through its spending authority.

Politics and legislation
Moreover, Cuccinelli argued, by defining the individual mandate as a “tax,” as Chief Justice Roberts did in his majority opinion, the Court opened up political challenges to the law because Congress’s taxing authority is the most accountable and sensitive of its powers to popular will.

By calling it a tax, he said, the Court (specifically the Chief Justice) removes the political cover for those legislators who claimed not to have voted for a tax increase. They can no longer go back to their home districts and say they did not vote for a tax, he said, and thus they will be subject to the judgment of voters on Election Day.

Given that, Cuccinelli predicted that, with the impending elections this November, the ruling will show the critical role that voters play in “ensuring that their liberties are preserved.”

‘Bipartisan failure’
As a policy matter, Cuccinelli said, health-care legislation has been “a bipartisan failure” and that the Affordable Care Act is such a “bad policy” that even the people who supported it are backing away from it, as a constitutional matter, “individual liberty has been substantially preserved in this case.”

He also noted that, apart from the aspects of the law addressed in the decisions delivered by the Court today, there are still matters about the ACA that continue to be litigated. He gave as an example the lawsuit filed by the Catholic bishops with regard to contraceptives.

Federalism preserved
Cuccinelli said that the justices came to their decision in an “unlikely way,” but that “if there had been five votes to compel us into commerce, federalism would have been dead,” pointing out that Justice Ruth Bader Ginsburg, in her dissent on the Commerce Clause part of the ruling, claimed that the “Commerce Clause power is plenary,” that is, unlimited.

Wrapping up, the Virginia Attorney General said that upon reflection, his analysis of the Supreme Court’s health-care ruling is more muted than his initial reaction was, and that “by and large” the decision preserved individual liberty.


Publisher's note: This article was originally published on Examiner.com on June 28, 2012. 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: 5 years after Kelo v. New London: Are property rights safe?

5 years after Kelo v. New London: Are property rights safe?
June 23, 2010 7:54 PM MST

In its 1972 ruling in Lynch v. Household Finance Corporation, the U.S. Supreme Court explained:

“Property does not have rights. People have rights. The right to enjoy property without unlawful destruction, no less than the right to speak or the right to travel, is in truth a ‘personal’ right.” The court went on to declare that “a fundamental interdependence exists between the personal right to liberty and the personal right to property.”

Property rights – a shorthand term for the rights of people to own and use property – and human rights are indistinguishable. One cannot exist without the other. The right to a free press is impossible without the right to own ink or a photocopier or a typewriter. The right to free exercise of religion is not possible without the right to own churches and seminaries and cemeteries and Talmuds and schools.

Kelo v. New London
It is fitting today to remember these fundamentals because five years ago, on June 23, 2005, the Supreme Court undercut Americans’ property rights in the case of Kelo v. City of New London. In that case, the Court ruled that governments can take the property of one person, using the power of eminent domain, and hand it over to another person, who may be able to generate more tax revenues from the property than the original owner was able to do – or chose to do.

The U.S. Constitution guarantees the right to hold property and to make contracts using that property. The Fifth Amendment makes plain that “no person shall be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.”

Property Rights Under Attack
Still, property rights are under assault throughout the United States. Through taxation and regulation, state and federal governments are impeding our rights to do what we please with our property, even if we are not harming other people or their property.

Towns and cities across the country, for example, have begun to designate certain neighborhoods as “historic districts,” usually without the consent of homeowners in those neighborhoods. This designation is accompanied by hundreds of restrictions regarding what homeowners can do with their property, such as whether they can repaint their homes, put up aluminum siding, replace a roof, cut down a tree, and so forth.

This is not a trivial issue. It affects any person who owns property, whether a residence or a business. “Historic district” designations strike at the root of individual liberty and should not be dismissed lightly. Much is at stake. In fact, the Pennsylvania Supreme Court ruled a similar law unconstitutional because it took away the decision making capacity of homeowners in favor of a politically defined “public good,” thus taking private property for public use without just compensation.

Environmental regulations do much the same. Thousands of acres of farms, ranches, and residential areas have been declared “wetlands” that deserve government protection. The owners of the designated property are not permitted to plant crops, graze cattle, or build homes or factories on government-designated “wetlands” unless they can cut through miles of red tape.

Kelo’s Legacy
The Kelo decision states that it is permissible for the government to use eminent domain to seize one person's property and give it to another. The recipient is almost invariably wealthier and better connected politically than the victim of the seizure.

In the aftermath of Kelo, the good news is that the American people demanded that laws be made to reject the Court’s decision. Across the country, state legislatures have passed statutes or even constitutional amendments to protect people against eminent domain abuse. (In Virginia, the law is somewhat better than it was but still weaker than it should be.)

The bad news -- sadly ironic news -- is that the situation that started it all, Pfizer's demand that the city of New London, Connecticut, destroy a working-class neighborhood to create housing for its high-paid executives, turned out to be moot. Pfizer pulled out of the project, which was never built, and Suzette Kelo's former neighborhood is a desert, populated only by "feral cats," as one chronicler noted. New London took a vibrant cityscape and turned it into blight.

Kelo’s lesson is that nobody’s property is safe, even though property rights should be seen, properly, as one component the bundle of basic human rights that each individual possesses.

Publisher's note: This article was originally published on Examiner.com on June 23, 2010. 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: Legal scholar Richard Epstein discusses new book ‘Design for Liberty’

Legal scholar Richard Epstein discusses new book ‘Design for Liberty’
February 23, 2012 4:01 PM MST

Already well-known for such works as Takings: Private Property and the Power of Eminent Domain, How Progressives Rewrote the Constitution, and a widely used legal textbook on torts, New York University law professor Richard A. Epstein has just published Design for Liberty: Private Property, Public Administration, and the Rule of Law (Harvard University Press).

At a recent Cato Institute event, Professor Epstein spoke to the Charlottesville Libertarian Examiner about his new book and his next project, a book about classical liberalism and constitutional law.

What is ‘Design for Liberty’?
Design for Liberty, he said, differs from his previous books in that “it’s a little bit more philosophical. It spends much more time talking directly about public administration, which I have not talked about much in previous books.”

Moreover, Epstein added, it reflects his “newfound interest in public administrative law, which is usually missing from the earlier works, and of course, it has material which I could never have covered earlier because things like the Dodd-Frank [banking] statute and the current health-care [law] are creatures of the last year or so and therefore I never spoke about them before.”

Digging further beneath the surface, Epstein pointed out that his new book contains “a fairly detailed explanation of first and second order rules, a sort of technical subject,” which involves the question of “when is it that you have to have to resort to reasonableness rules?”

That happens, he said, when “it turns out that hard-line rules don’t work and what you have to do in order to make the rule of law work is to understand that the mere fact that there’s a reasonableness in some legal system doesn’t disqualify from the rule of the law.”

“On the other hand,” he argued, “you can’t let reasonableness determinations overwhelm the whole system, so I try to develop protocols to how it is that you separate those things.”

Future project on classical liberalism
Also a columnist for the Hoover Institution's online journal, Defining Ideas, where he writes regularly as "The Libertarian," Epstein is working on his next project, which will be what he describes as “a very long book” with the working title “The Classical Liberal Constitution.”

That book, he said, is “about 90 percent done.”

In it, Epstein “takes the fundamental insights that I’ve developed over the years and basically gives a comprehensive analysis of every major constitutional area with a hell of a lot of compression, but it starts with basic theories of constitutional interpretation. It talks about the conflict between the progressive and the classical liberal visions. Those,” he said, “are things I’ve talked about before.”

Epstein’s forthcoming book “goes through systematically the judicial, the executive, and legislative branches, and then does all the various threads of individual rights, each getting a chapter.”

Unlike Design for Liberty, “which is slim,” The Classical Liberal Constitution “will be fat,” he said, with a likely publication date in late 2012 or early 2013.

“It’s been a book that’s been in the making for many years now,” Epstein explained. “It’s an effort to give a comprehensive way in which, if you take the positions that I do, various cases and various issues have to come out.”

Given Epstein’s past work, The Classical Liberal Constitution will have “some stuff on takings, but that’s not the main focus of it. It has things on freedom of religion and executive power and foreign affairs and so forth.”

Epstein concedes that his “knowledge base is not uniform across all these areas" but notes that "what makes it possible to do this project is that the Supreme Court doctrine generally tends to be comprised in a relatively few key cases.”

Consequently, “if you have a strong theory, and you pick the right cases to read, you can write the kind of book that I’m talking about.”


Publisher's note: This article was originally published on Examiner.com on February 23, 2012. 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: Rutherford Institute asks local lawmakers to speak out against drones

Rutherford Institute asks local lawmakers to speak out against drones
January 23, 2013 1:11 AM MST

A Charlottesville public-interest law firm has sent a letter to both the Charlottesville City Council and the Albemarle County Board of Supervisors warning of the dangers to civil liberties posed by the use of drones and asking both bodies to pass resolutions demanding protections against drones' misuse.

In a letter dated January 21 and addressed to Charlottesville Mayor Satyendra Huja, Rutherford Institute president John Whitehead points out that recent legislation signed by President Barack Obama “has opened the door for unmanned aerial vehicles” (drones) to fly in the skies of the United States.

In the letter, Whitehead cites predictions that by 2020, there may be as many as 30,000 drones operating in U.S air space. He calls these drones “robotic threats to privacy and security.”

Threats to civil liberties

Whitehead expresses his hope that Charlottesville's City Council will “not only give serious consideration to the dangers posed to our freedoms by these aerial devices but ensure that the people of Charlottesville are protected against any resulting incursions on their rights” that are guaranteed by the U.S. Constitution.

To that end, Whitehead sent a copy of a Rutherford Institute-drafted model resolution for consideration by the city council and the county supervisors.

The resolution is intended to “encourage the General Assembly of Virginia to provide for limitations on the use of evidence obtained from the domestic use of drones and to preclude the domestic use of drones equipped with anti-personnel devices” (that is, weapons).

It notes that “the federal government and the Commonwealth of Virginia have thus far failed to provide reasonable legal restrictions on the use of drones within the United States” and that police departments have started to use drone technology without “any guidance or guidelines from lawmakers.”

In plain language, the resolution calls on Congress and the Virginia General Assembly “to adopt legislation prohibiting information obtained from the domestic use of drones from being introduced into a Federal or State court, and precluding the domestic use of drones equipped with anti-personnel devices, meaning any projectile, chemical, electrical, directed-energy (visible or invisible), or other device designed to harm, incapacitate, or otherwise negatively impact a human being.”

'Get in an uproar'

In an interview on Coy Barefoot's afternoon drive-time radio program on WINA-AM Monday, Whitehead suggested that “if enough cities across the country were to get in an uproar about” the civil liberties threats of drones, “we might be able to limit them some.”

He pointed out that already-existing technology allows drones to “be able to see through the walls of your home.” They are powerful enough, he said, “they are able to watch you in your homes, connect up with all the [electronic] devices in your homes.”

The drones, he said, “are amazing devices,” which include “hummingbird drones that come up to your window and watch you in your home.” Other, non-flying drones look like dogs and can walk "up to your front door.”

Citing Martin Luther King, Jr., Whitehead warned that “it's time to stand up and fight back,” and said that, in the absence of federal limits on drone use, local and state governments must act.

Experts, he said, are “freaking.” If, he said, there is a device “that flies over your home that can see you in your kitchen or upstairs using the bathroom or having sex with your wife, we've entered a whole new era” of threats to privacy and personal liberty.

Drones, he said, are “beyond Orwell. It's scary stuff.”


Publisher's note: This article was originally published on Examiner.com on January 23, 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.

Guest Post: The Freedoms at Stake in the Gay Wedding Cake Case

by Marian L. Tupy

On December 5, 2017, the Supreme Court of the United States heard the case of Masterpiece Cakeshop v Colorado Civil Rights Commission. It’s a case that raises important questions about freedom of speech and of association that even the most fervent supporters of equality for gay people ought to take to heart.

In July 2012, Charlie Craig and David Mullins, a same-sex couple, visited Masterpiece Cakeshop in Denver to order a custom wedding cake to celebrate their nuptials. Jack Phillips, the shop’s owner and a practicing Christian, was happy to sell the couple any of the goods in the store, but he refused to create a bespoke cake for a gay wedding, arguing that it would contravene his religious beliefs.

Craig and Mullins bought their wedding cake from a different bakery and went ahead with their happy event. The couple also filed a complaint with the Colorado Civil Rights Commission that oversees the enforcement of the Colorado Anti-Discrimination Act – a law prohibiting businesses open to the public from discriminating against their customers on the basis of race, religion, gender, or sexual orientation.

A lower court ruling decided in favor of the plaintiffs. The bakery was ordered to provide cakes for same-sex marriages and to “change its company policies, provide ‘comprehensive staff training’ regarding public accommodations discrimination, and provide quarterly reports for the next two years regarding steps it has taken to come into compliance and whether it has turned away any prospective customers”.

The Cato Institute, where I work, has been at the forefront of the fight for gay equality, submitting amici curiae briefs in favor of the gay community in such ground-breaking cases as Lawrence v Texas, which decriminalized sodomy in the United States in 2003, and Obergefell v Hodges, which legalised gay marriage throughout the country in 2015. In Masterpiece Cakeshop v Colorado Civil Rights Commission, we have taken Phillips’s side.

There is no inconsistency here. Just as we would support a gay baker’s right to decline to convey a homophobic message, we support this Christian baker’s right to decline to celebrate a same-sex wedding. That is because Masterpiece isn’t really about religious liberty – apart from claims that the Colorado Civil Rights Commission itself treats the religious and nonreligious differently, something that concerned the swing Justice Anthony Kennedy at oral argument – but about freedom of speech.

As my learned colleagues wrote, the Supreme Court has repeatedly held “that what the First Amendment protects is a ‘freedom of the individual mind’, which the government violates whenever it tells a person what she must or must not say. Forcing a baker to create a unique piece of art violates that freedom of mind…

“Although making cakes may not initially appear to be speech to some, it is a form of artistic expression and therefore constitutionally protected… Indeed, the Supreme Court has long recognized that the First Amendment protects artistic as well as verbal expression, and that protection should likewise extend to this sort of baking – even if it’s not ideological and even if done to make money.”

No matter which side wins, the final decision in Masterpiece Cakeshop v Colorado Civil Rights Commission is likely to reverberate for many years to come. That’s because the case does not deal with government discrimination, which everyone abhors, but with private discrimination, which is, in some fashion, unavoidable. Each day, all of us discriminate against things (which car to buy), actions (where to eat) and people (who to go out with).

The law says that private discrimination is fine so long as it does not involve a business, which ought to be open to everyone. That’s a perfectly fine legal distinction, but not a logical or moral one. Consider the following scenario:

Suppose that you operate a private dining club – such as the one described by Dana Bate in her superb 2013 book Girls’ Guide to Love and Supper Clubs. You rent a space where you can indulge your passion for cooking and choose from a list of paying gourmands in accordance with your preference for, exempli gratia, straight people. Is that discrimination? No court has ruled so. Yet, Bate’s supper club is basically a business, except for incorporation. Were you to incorporate, you would be guilty of discrimination. Without it, you are free to do as you please.

So, private discrimination is not cut and dried. As one of the pioneers of gay marriage, the British-born writer Andrew Sullivan, noted, advocates of gay equality ought to acquire some perspective. “I think it was a prudential mistake to sue the baker,” he wrote. “Live and let live would have been a far better response.” That’s where Cato stands as well.

Reprinted from CapX.

Marian L. Tupy is the editor of HumanProgress.org and a senior policy analyst at the Center for Global Liberty and Prosperity.

This article was originally published on FEE.org. Read the original article.

Guest Post: On December 7, Remember an English Libertarian Hero

by Gary M. Galles

December 7 has “lived in infamy” since Pearl Harbor. But that date was infamous before America was a country. On that date in 1683, Algernon Sydney, who opposed Charles II for overstepping his powers, was executed for treason after a trial so blatantly violating his rights that Parliament overturned his conviction in 1689. The key evidence was an unpublished manuscript arguing that kings were not above the law, which, 15 years later, became Discourses Concerning Government.

Sydney died for asserting citizens’ right of revolution against a king who exceeded his legal authority. That radical claim helped inspire the American Revolution, because, according to Thomas West, “His death as a martyr to liberty inspired [colonists] with a model in their own risky enterprise against the force of English arms.” On December 7, Sydney’s revolutionary words for liberty from government abuse merits reconsideration.

Our rights and liberties are innate, inherent....from God and nature, not from Kings…He who enjoys [liberty] cannot be deprived of it, unless by his own consent, or by force...In relation to my house, land, or estate; I may do what I please with them, if I bring no damage upon others.

Our natural liberty…is of so great importance that from thence only can we know whether we are freemen of slaves.

The liberty of one man cannot be limited or diminished by…any number of men, and none can give away the right of another…ambition...cannot give a right to any over the liberties of a whole nation. Those who are so set up…are rather to be accounted robbers and pirates than magistrates.

Government[s]...degenerate into a most unjust and despicable tyranny, so soon as the supreme lord begins to prefer his own interest…before the good of his subjects...such an extreme deviation from the end of their institution annuls it; and the wound thereby given to the natural and original rights of those nations cannot be cured, unless they resume the liberties of which they have been deprived.

Prerogative is instituted only for the preservation of liberty...governments...in which every man’s liberty is least restrained...would be the most just, rational and natural...

The supreme law…[is] the preservation of liberties, goods, lands and lives…all laws must be subservient and subordinate to it…if there be no other law…than the will of [government], there is no such thing as liberty. Property is also an appendage to liberty; and ‘tis...impossible for a man to have a right to lands or goods, if he has no liberty...overthrown by those who…ought with the utmost industry and vigor to have defended it.

Magistracy is not instituted…but for the preservation of the whole people, and the defense of the liberty, life and estate of every private man.

Is it possible that any one man can make himself lord of a people...to whom God had given the liberty of governing themselves, by any other means than violence or fraud...the most outrageous injury that can be done…We are free-men...no man has a power over us, which is not given...the ends for which they are given…can be no other than to defend us from all manner of arbitrary power.

Shall it be lawful for [rulers] to usurp a power over the liberty of others, and shall it not be lawful for an injured people to resume their own?...The people…cannot but have a right to preserve their liberty…Those who defend, or endeavor to recover their violated liberties…act vigorously in a cause that God does evidently patronize.

Algernon Sydney defended “the natural, universal liberty of mankind.” He helped inspire the American Revolution, because “a people from all ages in love with liberty and desirous to maintain their own privileges could never be brought to resign them.” However, it is unclear that Americans retain such beliefs, judging from government’s massive overstepping on our rights. We should revisit his understanding and commitment if we are to reclaim our heritage of liberty.




Gary M. Galles is a professor of economics at Pepperdine University. His recent books include Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013). He is a member of the FEE Faculty Network.

This article was originally published on FEE.org. Read the original article.

Guest Post: John Whitehead on 'What Went Wrong in Charlottesville"

“In this present crisis, government is not the solution to our problem, government IS the problem.”—Ronald Reagan

Corruption. Graft. Intolerance. Greed. Incompetence. Ineptitude. Militarism. Lawlessness. Ignorance. Brutality. Deceit. Collusion. Corpulence. Bureaucracy. Immorality. Depravity. Censorship. Cruelty. Violence. Mediocrity. Tyranny.

These are the hallmarks of an institution that is rotten through and through.

What you smell is the stench of a dying republic. Our dying republic.

The American experiment in freedom is failing fast.

John Whitehead (c) 2013 Rick Sincere

Through every fault of our own—our apathy, our ignorance, our intolerance, our disinclination to do the hard work of holding government leaders accountable to the rule of law, our inclination to let politics trump longstanding constitutional principles—we have been reduced to this sorry state in which we are little more than shackled inmates in a prison operated for the profit of a corporate elite.

We have been saddled with the wreckage of a government at all levels that no longer represents the citizenry, serves the citizenry, or is accountable to the citizenry.

We’re not the masters anymore.

It doesn’t matter whether you’re talking about the federal government, state governments, or local governing bodies: at all ends of the spectrum and every point in between, a shift has taken place.

“We the people” are not being seen, heard or valued.

We no longer count for much of anything beyond an occasional electoral vote and as a source of income for the government’s ever-burgeoning financial needs.

Everything happening at the national level is playing out at the local level, as well: the violence, the militarization, the intolerance, the lopsided governance, and an uneasy awareness that the citizenry have no say in how their communities are being governed.

Take my own hometown of Charlottesville, Virginia, for instance.

In recent years, Charlottesville has been plagued by government leaders who are tone-deaf, focused on their own aggrandizement, and incapable of prioritizing the needs of their constituents over their own personal and political agendas; law enforcement officials for whom personal safety, heavy-handed militarized tactics, and power plays trump their duty to serve and protect; polarized citizens incapable of finding common ground, respecting each other’s rights, or agreeing to disagree; and a community held hostage by political correctness, divisive rhetoric and a growing intolerance for any views that may be unpopular or at odds with the mainstream.

It was a perfect storm just waiting for the right conditions to wreak havoc.

Unfortunately, the maelstrom hit in the summer of 2017, when Charlottesville, regularly cited as being one of the happiest cities in America, became ground zero for a heated war of words—and actions—over racism, “sanitizing history,” extremism (both right and left), political correctness, hate speech, partisan politics, and a growing fear that violent words will end in violent actions.

In Charlottesville, as in so many parts of the country right now, the conflict was over how to reconcile the nation’s checkered past, particularly as it relates to slavery, with the present need to sanitize the environment of anything—words and images—that might cause offense, especially if it’s a Confederate flag or monument.

That fear of offense prompted the Charlottesville City Council to get rid of a statue of Confederate General Robert E. Leethat has graced one of its public parks for 82 years.

That’s when everything went haywire.

In attempting to pacify one particularly vocal and righteously offended group while railroading over the concerns of those with alternate viewpoints, Charlottesville attracted the unwanted attention of the Ku Klux Klan, neo-Nazis and the alt-Right, all of whom descended on the little college town with the intention of exercising their First Amendment right to be disagreeable, to assemble, and to protest.

When put to the test, Charlottesville did not handle things well at all.

No one—not the armed, violent, militant protesters nor the police—gave peace a chance, not on July 8 when the KKK descended, nor on August 12, when what should have been an exercise in free speech quickly became a brawl that left one dead and dozens more injured.

As the New York Times reported, “Protesters began to mace one another, throwing water bottles and urine-filled balloons— some of which hit reporters — and beating each other with flagpoles, clubs and makeshift weapons. Before long, the downtown area was a melee. People were ducking and covering with a constant stream of projectiles whizzing by our faces, and the air was filled with the sounds of fists and sticks against flesh.”

And then there was the police, who were supposed to uphold the law and prevent violence.

They failed to do either.

Indeed, a 220-page post-mortem of the protests and the Charlottesville government’s response by former U.S. attorney Timothy J. Heaphy merely corroborates our worst fears about what drives the government at all levels: power, money, ego, politics and ambition.

When presented with a situation in which the government and its agents were tasked with protecting free speech and safety, Heaphy concluded that “the City of Charlottesville protected neither free expression nor public safety.”

Heaphy continues: “The City was unable to protect the right of free expression and facilitate the permit holder’s offensive speech. This represents a failure of one of government’s core functions—the protection of fundamental rights. Law enforcement also failed to maintain order and protect citizens from harm, injury, and death. Charlottesville preserved neither of those principles on August 12, which has led to deep distrust of government within this community.”

In other words, the government failed to uphold its constitutional mandates. The police failed to carry out their duties as peace officers. And the citizens found themselves unable to trust either the police or the government to do its job in respecting their rights and ensuring their safety.

Despite the fact that 1,000 first responders (including 300 state police troopers and members of the National Guard)—many of whom had been preparing for the downtown rally for months—had been called on to work the event, despite the fact that police in riot gear surrounded Emancipation Park on three sides, and despite the fact that Charlottesville had had what reporter David Graham referred to as “a dress rehearsal of sorts” a month earlier when 30 members of the Ku Klux Klan were confronted by 1000 counterprotesters, police failed to do their jobs.

In fact, as the Washington Post reports, police “seemed to watch as groups beat each other with sticks and bludgeoned one another with shields… At one point, police appeared to retreat and then watch the beatings before eventually moving in to end the free-for-all, make arrests and tend to the injured.”

“Police Stood By As Mayhem Mounted in Charlottesville,” reported ProPublica.

Instead of establishing clear boundaries—buffer zones—between the warring groups and protecting the First Amendment rights of the protesters, police established two entrances into the permit areas of the park and created barriers “guiding rallygoers single-file into the park” past lines of white nationalists and antifa counterprotesters.

Incredibly, when the first signs of open violence broke out, Heaphy reports that the police chief allegedly instructed his staff to “let them fight, it will make it easier to declare an unlawful assembly.”

Read Heaphy’s report for yourself.

It’s full of drama and intrigue, plots and dueling egos, petty tyrants and ambitious politicians. (There’s even mention of a personal email account and deleted text messages.)

Not much different from what is happening on the national scene.

Commissioned by the City of Charlottesville, this Heaphy report was intended to be an independent investigation of what went right and what went wrong in the government’s handling of the protests.

Heaphy found very little to commend.

What went right on Aug. 12 according to Heaphy: 1) Despite the presence of firearms, including members of the militia, and angry confrontations between protesters and counterprotesters, no person was shot and no significant property damage occurred; 2) Emergency personnel did their jobs effectively and treated a large number of people in a short period of time; and 3) Police intelligence gathering was thorough (that’s the best he had to say about police).

Now for what went wrong, according to the report:

1. Police failed to get input from other law enforcement agencies experienced in handling large protests.

2. Police failed to adequately train their officers in advance of the protest.

3. City officials failed to request assistance from outside agencies.

4. The City Council unduly interfered by ignoring legal advice, attempting to move the protesters elsewhere, and ignoring the concerns of law enforcement.

5. The city government failed to inform the public about their plans.

6. City officials were misguided in allowing weapons at the protest.

7. The police implemented a flawed operational plan that failed to protect public safety.

8. While police were provided with riot gear, they were never trained in how to use it, nor were they provided with any meaningful field training in how to deal with or de-escalate anticipated violence on the part of protesters.

9. Despite the input and advice of outside counsel, including The Rutherford Institute, the police failed to employ de-escalation tactics or establish clear barriers between warring factions of protesters.

10. Government officials and police leadership opted to advance their own agendas at the expense of constitutional rights and public safety.

11. For all intents and purposes, police abided by a stand down order that endangered the community and paved the way for civil unrest.

12. In failing to protect public safety, police and government officials undermined public faith in the government.

The Heaphy report focused on the events that took place in Charlottesville, Virginia, but it applies to almost every branch of government that fails to serve “we the people.”

As the Pew Research Center revealed, public trust in the government remains near historic lows and with good reason, too.

This isn’t America, land of the free, where the government is “of the people, by the people [and] for the people.”

Rather, as I make clear in my book Battlefield America: The War on the American People, this is Amerika, where fascism, totalitarianism and militarism work hand in hand.

So what’s the answer?

As always, it must start with “we the people.”

I’ve always advised people to think nationally, but act locally. Yet as Charlottesville makes clear, it’s hard to make a difference locally when the local government is as deaf, dumb and blind to the needs of its constituents as the national government.

Still, it’s time to clean house at all levels of government.

You’ve got a better chance of making your displeasure seen and felt and heard within your own community. But it will take perseverance and unity and a commitment to finding common ground with your fellow citizens.

Stop tolerating corruption, graft, intolerance, greed, incompetence, ineptitude, militarism, lawlessness, ignorance, brutality, deceit, collusion, corpulence, bureaucracy, immorality, depravity, censorship, cruelty, violence, mediocrity, and tyranny.

Stop holding your nose in order to block out the stench of a rotting institution.

Stop letting the government and its agents treat you like a servant or a slave.

You’ve got rights. We’ve all got rights. This is our country. This is our government. No one can take it away from us unless we make it easy for them.

Right now, we’re making it way too easy for the police state to take over.

Stop being an accessory to the murder of the American republic.

WC: 1882

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

Reprinted by permission of The Rutherford Institute.