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Keyword: ‘constitution’
August 12th, 2011 at 1:28 pm
11th Circuit Rules ObamaCare “Individual Mandate” Unconstitutional
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The 11th Circuit Court of Appeals has ruled, correctly, that the “individual mandate” of ObamaCare is unconstitutional.  That stands to reason.  The Founding Fathers drafted the Constitution to ensure liberty through a federal government of strictly limited powers.  One aspect of that effort was to restrict federal authority to regulating actual “interstate commerce.”  But since ObamaCare’s individual mandate effectively declares that a citizen’s inactivity somehow amounts to “interstate commerce,” upholding ObamaCare would have rendered the Constitution’s interstate commerce clause meaningless.  Accordingly, it follows that if one explicit portion of the Constitution can thus be rendered meaningless, what would be the logical limit restraining government from declaring any other Constitutional clause meaningless at whim?

This is a moment for grateful celebration, even if only temporary.  The broader battle continues, eventually at the Supreme Court level.

August 3rd, 2011 at 10:09 am
Ramirez Cartoon: Obama and the Constitution
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Below is one of the latest cartoons from two-time Pulitzer Prize-winner Michael Ramirez.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

July 6th, 2011 at 4:49 pm
Dog Whistling for the Constitution

If they didn’t actually hold some positions of power, today’s liberal activists and supposed intelligentsia would engender serious pity because of their profound ignorance, lack of logic, and intellectually indefensible sentiments masquerading as principles. The latest case in point is the truly goofy New Republic piece by Ed Kilgore, previously best known for using a book review to posit that just about any backlash against Barack Obama is a sign that racism still reigns in large swaths of America. Now Kilgore analyzes the growing use of the term “constitutional conservatism” as if it not instantly understandable on its face but instead as if it is some sort of radical plot, alien to American democratic traditions. Worse, he avers it is a secret code, a radical-right “dog whistle” that lets right wingers and only right wingers know that what is being proposed is a return to the idyllic 1920s. Of course, in light of Kilgore’s previous meme of “Mommy, look, they’re all racists!!!,” it is no accident that he uses the term “dog whistle,” which is usually used by leftists to describe racist signals that only fellow racists can hear or understand.

Read Kilgore’s whole benighted piece, if you can stomach its intellectual vacuousness. But especially note this incredibly… well, I don’t quite know the word to describe its idiocy, but its incredibly moronic passage:

In their backwards-looking vision, constitutional conservatives like to talk about the inalienable rights conferred by the Founders—not specifically in the Constitution, as a matter of fact, but in the Declaration of Independence, which is frequently and intentionally conflated with the Constitution as the part of the Founders’ design.

What, pray tell, are we to make of this? Could Kilgore possibly be saying that that Declaration of Independence is not “part of the Founders’ design”? Is he actually complaining about ascribing the ideals of the Declaration to the practice of interpreting the Constitution? If anything, the Left has been known in the past for complaining that the Constitution was an unfortunate counter-revolution by moneyed interests upset at the supposed leveling mentality of the Declaration; now Kilgore seems to be complaining that the Declaration’s ideals should not be seen as inherent within the constitutional structure — as if those ideals themselves, and thus the Declaration, somehow pollutes the Constitution with some crazy nonsense about natural rights.

This is ludicrous. Whether or not the Constitution’s framers succeeded in implementing the Declaration’s ideals (conservatives rightly argue that they did), there can be no doubt that when the states ratified the Constitution their debates were all about making sure that their rights were being sufficiently safeguarded. The nationwide ratification struggle was all about natural rights.

Kilgore goes on to write this jaw-dropping sentence:

It’s from the Declaration, for instance, that today’s conservatives derive their belief that “natural rights” (often interpreted to include quasi-absolute property rights or the prerogatives of the traditional family)… were fundamental to the American political experiment and made immutable by their divine origin.

The subtext is clear: Gee, these folks are lunatics to believe in “quasi-absolute property rights,” which derive solely from a misreading of the Declaration, not from the Constitution itself.

Oh, really? Then why does the Constitution specifically say that “no state shall … pass any … law impairing the obligation of contracts?” Why does it restrict the power of eminent domain by requiring “just compensation” and insisting that it only be effectuated for “public use”? Why does the Constitution say that nobody shall be denied of “life, liberty, or property, without due process of law?” And why, if the Declaration and the Constitution are not to be conflated, do so many of the same or similar formulations occur in each, the most notable of which is of course the repetition of the “life, liberty, property/pursuit of happiness” language?

The left not only doesn’t understand the Constitution; it seems to not even really know the Constitution, or perhaps not even have actually read it. It certainly does not have a clue about how the Founders themselves clearly thought of the Constitution as the practical means of applying the ideals of the Declaration.

There is nothing radical whatsoever about insisting that the law of the land actually be interpreted to mean what it meant when it was first adopted (recognizing, of course, that the “law of the land” in constitutional terms means the law that came into being when any current constitutional provision was adopted —  obviously meaning that where amendments have been adopted, it is the original meaning of those amendments, not he original meaning of the language they replaced, that is relevant).

Yes, Mr. Kilgore, we believe in constitutional conservatism. It’s not a dog whistle to say so. But to fail to understand its clear and unobjectionable meaning, one would really need to be a cur.

June 6th, 2011 at 5:20 pm
California’s Constitutional Crisis

A blog post last Friday by Loren Kaye at Fox and Hounds Daily provides another variation on the theme of California’s broken governing structure.

Two budget-related developments yesterday bring a small amount of clarity to the political positioning on achieving a deal. But their long-term effect is to re-allocate political power.

Controller John Chiang released a legal opinion interpreting the section of Proposition 25 that would halt salary and expense payments to the Legislature if it fails to transmit a budget to the Governor by June 15. His lawyers concluded that even if the budget is timely passed and sent to the Governor, if it is not a balanced budget, then legislators would forfeit their pay until they pass one that is balanced. This twist arises from an earlier measure, Proposition 58 in 2004, which requires that the Legislature may not send to the Governor, nor may the Governor sign, a budget that would spend more than the revenues estimated for the year. Until the Controller’s memo, this constitutional provision had no teeth. Now that provision has been given real force, and the arbiter of whether a budget is balanced – and therefore whether the Legislature will be paid – will be Controller John Chiang.

Within several hours of this disclosure, Senate Pro Tem Darrell Steinberg announced that his SB 653 would be folded into a budget trailer bill. His proposal would provide broad local taxing authority (contingent on existing voter approval requirements) to counties and school districts, which would substantially increase the level of uncertainty surrounding economic development. The significance of including the language into a budget trailer bill is that those bills are granted immunity from referendum, even if passed by a simple majority vote. This was another consequence of Proposition 25 that was warned against, but pooh-poohed by proponents. This maneuver has ramifications that extend well beyond today’s budget controversy, and could presage the demise of the people’s cherished referendum power, 100 years after it was first granted.

The consequences of Proposition 25 on the power dynamics in California government go far beyond just passing the state budget. And we’re only beginning to see their boundaries tested.

So, as of last Friday, California’s Controller claimed the power to determine the state’s budget process.  Maybe next week the state’s Attorney General can find a way to trump him.  After that, why doesn’t the Treasurer figure out how to get in on the fun?  In Golden State government, everyone wants power, but none claim responsibility.

December 14th, 2010 at 10:40 am
Ramirez Cartoon: ObamaCare vs. the Constitution
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Below is two-time Pulitzer Prize-winner Michael Ramirez’s take on yesterday’s federal court ruling that Congress exceeded its authority by mandating all individuals buy health insurance in ObamaCare.

View more of Michael Ramirez’s cartoons on CFIF’s website here.

October 30th, 2010 at 2:36 pm
Ever Heard of the American Constitution Party?

If former GOP House Rep. Tom Tancredo can overcome his current 5 point gap to become Colorado’s next governor, we’ll all need to brush up on the principles and policy preferences of his new political home: the American Constitution Party.

As would be imagined, the ACP is in-line with Tancredo’s stance on border security, and regulating the number of immigrants.  The party also seemingly provides a home for Christian libertarians.  If Tancredo pulls off the biggest surprise of the 2010 midterm elections it will be fascinating to see whether the ACP can get any of its platform through Colorado’s soon-to-be Republican legislature.

Oh, the sub-plots this election cycle!

October 14th, 2010 at 5:09 pm
CFIF Statement On Federal Judge’s Ruling Allowing Constitutional Challenge to ObamaCare to Proceed
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A federal judge in Florida today ruled that 20 U.S. states can proceed with a lawsuit against the recently passed federal health care legislation on the grounds that its individual mandate is unconstitutional.  In response, CFIF President Jeffrey Mazzella released the following statement: 

The Center for Individual Freedom commends the court for recognizing and validating arguments presented by the plaintiffs, who have provided substantive legal arguments regarding the unconstitutional nature of the legislation’s mandate on individuals and the troubling power grab by the federal government represented in it.
 
“We will continue to join the plaintiffs and others in advocating the merits of this case, making it clear to the American public that the legislation is an unconstitutional infringement on the freedom of individual Americans.”

July 2nd, 2010 at 11:01 am
Podcast: Constitutional Scholar Discusses Elena Kagan and SCOTUS Confirmation Process

In an interview with CFIF, Ed Whelan, president of the Ethics and Public Policy Center, discusses what makes for a truly great Supreme Court Justice and the nomination and confirmation process as it relates Elena Kagan.

Listen to the interview here.

May 17th, 2010 at 6:08 pm
Sidestepping Constitution is Convenient, but Wrong

Today, in an opinion written by Justice Stephen Breyer, the Supreme Court issued a ruling in the case of US v. Comstock, which held that Congress has the power to civilly commit sex offenders beyond the period of the sentence received for their crime.  As Cato’s Dr. Roger Pilon points out:

The problem, as Breyer grants, is that Congress has only certain enumerated powers, and the only power it has to criminalize conduct, beyond the three crimes mentioned in the Constitution, is pursuant to one of those enumerated powers — in particular, through the last of its 18 enumerated powers, its power to enact laws that are “necessary and proper” for “carrying into execution” one of the previous 17 enumerated powers or ends. In other words, Congress can criminalize conduct only if doing so is necessary and proper for carrying out one of its other constitutionally authorized powers.

The issue of enumerated powers is at the core of our rapidly declining liberty.  Today’s decision is merely the latest in a long line of rulings that concedes to Congress powers that cannot be found in the text of the Constitution.  In dissent, Justice Thomas joined by Justice Scalia notes:

No enumerated power in Article I, §8, expressly delegates to Congress the power to enact a civil-commitment regime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power.

Free from constitutional restraint, there is seemingly no end to Washington’s reach.  Sure, today they’re locking up sex offenders, but maybe the next decision validates ObamaCare, which also lacks a constitutional basis for congressional action.

There are a variety of other constitutional ways in which states can ensure the public is protected from dangerous criminals.  So while many might be inclined to cheer a court decision that extends the lockup of some of the country’s most despicable and habitually dangerous criminals, the endless expansion of federal power is a crime against our freedom.

May 7th, 2010 at 11:15 am
Podcast: Florida AG Bill McCollum Discusses Lawsuit Challenging Constitutionality of ObamaCare

In an interview with CFIF, Florida Attorney General Bill McCollum discusses the lawsuit brought by at least 20 states challenging the constitutionality of ObamaCare and why the new law’s unprecedented mandates are an affront to individual freedom.

Listen to the interview here.

April 15th, 2010 at 7:11 pm
Where Is That in the Constitution?

Reading Joe Conason’s column today makes one wonder if the author takes seriously the words of the Constitution, or just its “spirit” – whatever that means.  In a piece that identifies the growing constitutionalist movement as fringe, Conason equates adherence to the words in the text as preferring a primitive, pre-enlightened society.

What exactly do they mean by “constitutional”? On the increasingly powerful fringes of the Republican right, a category that includes some Tea Party activists, the Constitution is interpreted as prohibiting every social and political advance since before the Civil War. They would outlaw the Federal Reserve System, the progressive income tax, Social Security, Medicare, environmental protection, consumer regulation and every other important federal initiative of the past century.

What Conason misses is that arguing for a textually-based, limited federal government of enumerated powers says next to nothing about the ability of state governments to weigh in on the institutions he wants so much to preserve.  Experience shows that states like California and New York will bankrupt their treasuries to provide the kind of all-providing government Conason likes.  Seemingly, the fact that other states wouldn’t if the feds weren’t allowed is what really bothers him.

Too bad.  The genius of federalism is that it affords the greatest amount of people the greatest amount of choices in the scope and scale of their government.  Once again, liberals like Conason show that when it comes to public policy choices, there’s really only one they care to defend.

January 5th, 2010 at 3:47 pm
The Constitutionality of the “Cornhusker Kickback”

Much has been made about the secret sweetheart deal Senator Ben Nelson (D-Neb.) struck with Senate leaders in exchange for his “Yea” vote on ObamaCare. 

The deal, known as the “Cornhusker Kickback,” permanently exempts Nebraska – and only Nebraska – from paying for expanded Medicaid mandates called for in the Senate-passed “reform” bill.  In other words, taxpayers in all other states will be stuck paying the tab for Nebraska’s expanded Medicaid rolls if that provision survives final passage.

But is the “Cornhusker Kickback” constitutional?

On December 30, thirteen state attorneys general sent a letter to House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid calling the provision “constitutionally flawed” and threatening legal action unless the provision is dropped from the health care bill. 

The attorneys general wrote:

The undersigned state attorneys general, in response to numerous inquiries, write to express our grave concern with the Senate version of the Patient Protection and Affordable Care Act (‘H.R. 3590’). The current iteration of the bill contains a provision that affords special treatment to the state of Nebraska under the federal Medicaid program. We believe this provision is constitutionally flawed. As chief legal officers of our states we are contemplating a legal challenge to this provision and we ask you to take action to render this challenge unnecessary by striking that provision.

It has been reported that Nebraska Senator Ben Nelson’s vote, for H.R. 3590, was secured only after striking a deal that the federal government would bear the cost of newly eligible Nebraska Medicaid enrollees. In marked contrast all other states would not be similarly treated, and instead would be required to allocate substantial sums, potentially totaling billions of dollars, to accommodate H.R. 3590’s new Medicaid mandates. In addition to violating the most basic and universally held notions of what is fair and just, we also believe this provision of H.R. 3590 is inconsistent with protections afforded by the United States Constitution against arbitrary legislation. …

According to a lengthy report by CNSNews.com, “The Dec. 30 letter was drafted by South Carolina Attorney General Henry McMaster and gained the signatures of 12 other Republicans. Oklahoma Attorney General Drew Edmondson is the only Democrat, so far, to express support for the possible litigation.”

Read the letter is its entirety here (.pdf).

December 4th, 2009 at 1:29 pm
A Solicitor General and the Constitution
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U.S. Solicitor General Elena Kagan seeks to destroy the fundamental principle that “[the] Constitution creates a Federal Government of enumerated powers”, judging by her brief in the U.S. Supreme Court case of U.S. v. Comstock.  The government’s brief demonstrates just how expansive she views federal power under the Constitution.

The Cato Institute, a libertarian think-tank in Washington, D.C., is challenging a federal criminal statute on the grounds that Congress acted without constitutional authority when it passed the law.

Cato and other challengers in Comstock argue that the federal government cannot use the Necessary and Proper Clause in Article 1 §8 of the Constitution to justify any and all federal action.   The government, on the other hand, argues that the Necessary and Proper Clause and the Commerce Clause in §8 allow the government to enact a range of federal criminal statutes, even if such laws are typically the province of state power.

Of course, by the government’s logic, if the Commerce Clause works to authorize a broad array of criminal laws, then what can’t the government do?  Since the government deems almost any human action to “substantially affect interstate commerce,” then there is nothing that evades federal power.  For example, in this argument audio clip, the government claims federal power is virtually limitless.

The Supreme Court has (unfortunately) already held that growing excess wheat for private consumption falls within the Commerce Clause, and that growing marijuana for private consumption falls within the federal purview as well. (Justices Scalia and Kennedy sided with the government in the latter case.)

As the Cato Institute argued in its brief, “Neither the Necessary and Proper Clause nor the Commerce Clause is a permissible footing for the Act and, therefore, the Act is unconstitutional.  As this Court recognized almost 150 years ago, ‘[no] graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole,’ than the Government’s unconstitutional assertion of power against its own citizens.”

Elena Kagan, in the government’s reply brief, countered, “A commitment under Section 4248 [the act in question] is justified by the Necessary and Proper Clause in combination with whatever enumerated power or powers supported the federal prosecution and custody of the individual in the first instance.”

By June of next year, we’ll learn if the Court would prefer returning to “first principles.”  It could actually limit Congress’ expansive use of Article I § 8, or the justices could continue to allow unbridled federal action whenever the government deems it politically expedient.

Click here for the Cato brief.  For the government’s brief, click here.  For CFIF on the Constitution, click here.

November 24th, 2009 at 7:39 pm
New Gun Rights Case Could Expand Use of Originalism in Constitutional Interpretation

The people who brought – and won – District of Columbia v. Heller (aka “the D.C. Gun Rights Case”) are back with a lawsuit challenging a nearly identical ban on handgun possession in Chicago, IL. The Supreme Court ruled in Heller that the Second Amendment protected an individual’s right to own and use a firearm (not a militia’s) in the District of Columbia (i.e. a federal jurisdiction). Now the question in McDonald v. City of Chicago is whether the Supreme Court will extend its ruling in Heller to cover McDonald’s right to own and use a firearm to invalidate a state law.

But wait; there’s more! The lawyers for McDonald are advancing a provocative theory that could expand the use of “Originalist” interpretation of the Constitution. Close followers of the Court will recall that Justice Scalia is the most well known proponent of interpreting the Constitution in light of its original and public understanding of its text at the time it was ratified (i.e. 1791). In fact, Justice Scalia’s majority opinion in Heller was a triumph of sorts for Originalism as an authoritative method of interpretation. In their brief, McDonald’s lawyers argue for using Originalism to overturn a 136 year old precedent in favor of interpreting the 14th Amendment as its framers intended. That is, to guarantee the extension of the federal bill of rights against encroaching state laws.

Apart from federalism concerns, the use of the 14th Amendment to reinterpret the application of the first ten amendments could – as this blog post from the Wall Street Journal explains – make Originalism more attractive to liberal members of the Court. Why? Because instead of looking at 1791 as Scalia does, Justices like Breyer and Ginsburg would look to 1868, the year the 14th Amendment was ratified. (A time when America was rethinking the scope of state’s rights.)

The Supreme Court’s ruling in this case next year promises to be consequential. As usual, what’s at stake is far bigger than the surface level issue that got the parties through the door. Stay tuned…

October 22nd, 2009 at 12:10 pm
California’s Cautionary Constitutional History

For those perturbed by the federal government’s lack of responsiveness to the will of the people, California’s voter initiative process shows the danger of the opposite extreme. Recently, Ronald George, Chief Justice of California’s Supreme Court, questioned the wisdom of the state’s constitutional-amendment-by-initiative process. In a speech to the American Academy of Arts and Sciences, George criticized the ease with which voters can change the fundamental law of California, a practice that has yielded 500 amendments since 1879. To compare, the United States Constitution contains 17 amendments, plus the 10 known as the Bill of Rights, over a time period spanning twice as long.

George’s lament is that frequent and easy changes to the primary source of law are not the criteria for sustained, peaceful government. Instead, the continuous use of such measures (and the threat of more in the future) renders government dysfunctional by making the legislative process merely the starting point of a policy debate, not its conclusion. Moreover, legal challenges to popularly passed initiatives put judges in the unenviable position of trying to discern the voters’ intent without the benefit of the usual contextual sources (e.g. legislative history, factual findings, committee reports, etc.). If California goes forward with calls for a constitutional convention, one hopes that the delegates remember the virtue of constraining lawmaking to a system governed by checks and balances, the separation of powers, and representative democracy. As we see with the current White House, though, hope alone won’t ensure a better government.

September 22nd, 2009 at 6:46 pm
Votes to Defund ACORN… Unconstitutional? Really?

Seemingly upset about everyone picking on their favorite community organizing group, House Judiciary Committee Chairman John Conyers (D-MI) and House Financial Services Committee Chairman Barney Frank (D-MA) want to know if Conress’ efforts to stop ACORN from receiving any more federal funds are, get this… constitutional.

Specifically, Conyers and Frank have submitted a formal request to the Congressional Research Service (“CRS”) asking it to analyze the ACORN defunding measures recently passed by the House and Senate to determine “their possible unconstitutionality and whether they could constitute an unlawful bill of attainder.” 

In addition, the two Chairmen want CRS to analyze the “recent ‘sting’ activity concerning ACORN” — referring to the brilliant videos commissioned and released by Andrew Breitbart’s BigGovernment.com —  including a run down of  “federal and state laws that could apply to such videotaping and distribution of conversations without the consent of all parties.”

And they wonder why Congress’ job approval ratings are in the dump.

September 18th, 2009 at 12:39 pm
In Honour of Constitution Day
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Actually, yesterday was Constitution Day but given the current environment in Washington, every day should be Constitution Day.

Here is the Constitution in a neat toy, Wordle.  It is a bit surprising that the word “President” is so prominently mentioned since Article II is considerably shorter than Article I.  Since the founders were especially suspicious of a strong executive, one would think our commander-in-chief would not be so frequently mentioned.

But, amendments 12 (amending electoral college), 20 (shortening lame duck period), 22 (limiting office-holder to two terms), 23 (residents in D.C. can cast presidential ballot) and 25 (presidential succession) all deal with the President.

The word “thereof” also seems frequent, likely a relic of 18th Century rhetoric.

Wordle: The Constitution

January 25th, 2021 at 1:07 pm
CFIF Joins 75-Group National & State Coalition Opposing Socialized Medicine and Importation of Foreign Price Controls
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Today, continuing our longstanding opposition to the ruination of American healthcare by importing foreign price controls and socialized medicine, CFIF proudly joins a 75-group coalition letter to the Centers for Medicare and Medicaid Services opposing the interim final rule to implement the “Most Favored Nation” (MFN) model under Section 1115A of the Social Security Act, which forces physicians, patients and providers into a mandatory demonstration under the ObamaCare Center for Medicare and Medicaid Innovation (CMMI), and which ties prices paid for medicines in Medicare Part B to the prices paid in socialized healthcare systems of foreign nations.

Specifically, the letter explains in detail how the rule will do nothing to stop foreign freeloading off of American pharmaceutical innovation, it will reduce access to new cures (just as it has in those foreign nations), it threatens millions of high-paying American jobs, it moves America one step closer to government-run healthcare and it utilizes ObamaCare to circumvent Article I of the U.S. Constitution.

As demonstrated once again by U.S. pharmaceutical leadership in quickly developing coronavirus vaccines, we’re the envy of the world in this regard.  The last thing we need at a moment like this is to undermine our status with a potentially catastrophic unforced error like this.

July 6th, 2020 at 2:32 pm
“Blanket Licensing” – a Collectivist, Bureaucratic, One-Size-Fits-All Deprivation of Property Rights Proposal
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America’s legacy of unparalleled copyright protections and free market orientation has cultivated a music industry unrivaled in today’s world or throughout human history.

From the first days of the phonograph, through the jazz age, through the rock era, through disco, through country, through hip-hop and every other popular musical iteration since its advent, it’s not by accident that we lead the world in the same manner in which we lead in such industries as cinema and television programming.  We can thank our nation’s emphasis on strong copyright protections.

Unfortunately, that reality doesn’t deter some activists from periodically advocating a more collectivist, top-down governmental reordering of the music industry in a way that would deprive artists and creators of their property rights.  Some advocates simply will not relent in their unceasing and misguided campaign to undermine copyright protections that have provided the wellspring for U.S. musical preeminence.  They seek to replace strong copyright protections and the freedom of market participants to mutually negotiate, ultimately to consumers’ obvious benefit, and replace them with a government-determined rate and a one-size-fits-all bureaucratic approach that eliminates market participants’ autonomy.

As just the latest example, British activist Cory Doctorow of the Electronic Freedom Foundation (EFF) now proposes a “blanket licensing” idea under which anyone wishing to offer music to pubic audiences would be required to open an account with a collecting society.  His heavily bureaucratic proposal would curtail the ability of copyright owners to negotiate royalties as they see fit with internet music platforms.

In an era of endless musical genres and methods to access them according to one’s preference, how does imposing such a collectivist, centralized, one-size-fits-all regime make sense?

The obvious answer is that it doesn’t.

Doctorow’s proposal betrays a fundamental flaw by misconceptualizing the nature of copyright itself by misstating “copyright’s real purpose:  spurring creativity and innovation.”

While Doctorow can be forgiven for his unfamiliarity with American constitutional principles, and while the utilitarian goal of creativity and innovation is indeed a primary feature of copyright and other intellectual property (IP) protections, that’s an inaccurate and incomplete statement of its “real purpose.”  Rather, copyright through common law and American constitutional history is valued as a natural property right of the creator, as we at CFIF articulated in our policy manual entitled ”The Constitutional and Historical Foundations of Copyright Protection”:

The Copyright Clause in the U.S. Constitution and the pre-existing rights it secures both arose from a long intellectual and historical tradition that reflected both the importance of economic incentives (the utilitarian argument) and the notion that individuals have an inherent and inviolable right to the fruits of their own labor.  As the Supreme Court has explained, ‘[t]he economic philosophy behind the clause empowering Congress to grant patents and copyrights’ is the conviction that:  ‘(1) encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in “Science and the useful Arts”’ and (2) ‘[s]acrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.’  Mazer v. Stein, 347 U.S. 201, 219 (1954).  Another early decision emphasized that only through copyright protection ‘can we protect intellectual property, the labors of the mind, productions and interests as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates or the flocks he rears.’  Davoll v. Brown, 7 F.Cas. 197, 199 (D. Mass. 1845).

Accordingly, Doctorow’s proposal violates the central concept that copyright holders possess a natural right to their creations.  Even ignoring the natural right foundation of copyright, however, no other system of copyright protection has resulted in greater utility than our own, given America’s uniquely prolific music industry as noted above.

In addition to violating the fundamental rights of copyright owners to mutually bargain with music platforms, Seth Cooper of the Free State Foundation cogently summarizes how EFF’s proposal doesn’t accord with the obvious realities of today’s music marketplace:

[T]he EFF plan sidesteps the fact that there are several major Internet music service providers and numerous smaller providers.  Popular interactive (or ‘on-demand’) streaming music providers include Spotify, Tidal, Apple Music, Amazon Music, and Google Play Music.  Popular webcasters include Pandora, iHeartRadio, and Deezer.  And there are many others.  SoundExchange reported that some 3,600 webcasting services were operating in 2019.

Importantly, consumer choices also include nationwide satellite radio broadcaster Sirius XM and local AM/FM radio broadcasters.  Indeed, radio broadcasts are widely available through apps on smartphones and other devices.  Additional choices include digital downloads from major Internet music service providers as well as independent and individual artist websites.  CDs and vinyl records are also available at retail.

Given the number of competitors and platform choices, it is highly unlikely that Internet music services possess market power – or the ability to charge consumers above-market prices and otherwise engage in anti-competitive conduct.  There’s no showing of market power here and so the case for government intervention falls apart.” 

Accordingly, the EFF proposal contravenes fundamental concepts of copyright protections, it proposes to reorder a music marketplace that continues to function well for all of its stakeholders and it clashes with contemporary market realities.

We currently enjoy a functional market with innumerable market participants, and copyright owners across the spectrum possess the freedom to negotiate with a wide variety of potential distributors.  EFF’s proposal nevertheless aims to strip creators of the property rights they currently enjoy without justification.  The market simply isn’t broken.  Supporters of EFF’s proposal curiously assert that today’s market is corrupted by monopolies, but as Mr. Cooper sets forth nicely above, a broad global spectrum of potential avenues exist for consumers to freely access as they prefer.

Accordingly, the notion that we should upend a market in which consumers can access an ever-greater variety of music at low cost is an untenable one.

A better option would be for Congress to expand copyright holders’ protections to the sphere of terrestrial radio via the Ask Musicians for Music Act (AMFM Act), to extend what we know works, rather than foolishly venture into demonstrably defective novel proposals.

July 3rd, 2020 at 11:22 am
Image of the Day: FBI Gun Purchase Background Checks Set Yet Another Record High in June
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Confirming once again, as Americans witness the increasing lawlessness around them, that the 2nd Amendment isn’t the anachronism that its antagonists believe:

Background Checks Set Another Record

Background Checks Set Another Record