Curing Federal Dysfunction by Constitutional Amendment: A Primer

Posted on: December 4th, 2014 by admin No Comments

IB-B-2014 (November 2014)
Author: Robert G. Natelson

PDF of full Issue Backgrounder

The Constitution gives citizens the direct means to rein in federal power and cure federal dysfunction through a “Convention for proposing Amendments.” This Issue Backgrounder explains the reasons why the Founders created the process and how it works. The Backgrounder also corrects common misunderstandings and explains how citizens may participate.

The Attack on Colorado’s TABOR and the Threat to Other States

Posted on: January 9th, 2013 by admin No Comments

IP-1-2013 (January 2013)
Author: Robert G. Natelson and Zakary Kessler

PDF of full Issue Paper

A lawsuit challenging the constitutionality of Colorado’s Taxpayer’s Bill of Rights (TABOR) has dire implications that extend far beyond the boundaries of Colorado. The theory of the lawsuit can be used to void well-founded safeguards in the constitutions of almost all other states.

In Independence Issue Paper 12-2012, Professor Rob Natelson, II’s Senior Fellow in Constitutional Jurisprudence, debunked the lawsuit’s claim that TABOR violates the requirement that each state have a “republican form of government.” In this Issue Paper, Professor Natelson and Institute intern Zak Kessler demonstrate the practical implications of the lawsuit.

If the plaintiffs win, the result will be legal and practical chaos, not just in Colorado but across the country. This is because the theory of the lawsuit is that any fiscal restraints on a state legislature render that legislature less than “fully effective” and therefore “unrepublican.” Special interests can employ this theory to destroy well-founded and long-standing safeguards against legislative fiscal abuse. Furthermore, they can use the same theory to attack the voter initiative and referendum process, and other constitutional limits on the power of state politicians.

Are you better off than you were four years ago?

Posted on: November 2nd, 2012 by Brian T. Schwartz No Comments

On Saturday, October 20,  The Boulder Daily Camera published my answer to this question:

Am I better off financially?  No.  My income is lower, while living expenses have increased.

I’m not alone. For each state, the Washington Post graphed trends of inflation-adjusted median household income between 2007 and 2011.  During this time, Colorado’s median household income decreased by 7.3 percent. Nationally, median household income dropped by 8.0 percent. And yes, the number of income earners per household was constant during this period, which the Post should have mentioned.

But those of us actually earning an income should be grateful to be employed. Last month’s BLS “official” unemployment rate was 7.8 percent, same rate as in January 2009 when Obama took office. But this is misleading, as it does not include the unemployed who have given up looking for jobs. Including these people, the unemployment rate has yet to fall to the level it was at when Obama took office.

Given the decrease in income and employment rates, it’s not surprising that Americans’ net worth has also decreased since the financial crisis preceding the 2008 election.  In June the Washington Post summarized a study by the Federal Reserve: “Median net worth of families plunged by 39 percent in just three years, from $126,400 in 2007 to $77,300 in 2010. That puts Americans roughly on par with where they were in 1992. … Over a span of three years, Americans watched progress that took almost a generation to accumulate evaporate.”

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See also this Reason magazine article:

The Recovery That Wasn’t: Three and a half years later, White House officials are still making wildly optimistic comments about the economy they mismanaged.

Do Citizen Votes on Taxes and Laws Violate the Constitution’s Requirement of a “Republican Form of Government?”

Posted on: October 26th, 2012 by admin No Comments

IP-12-2012 (October 2012)
Author: Robert G. Natelson

PDF of full Issue Paper

Opponents of popular participation in government have long argued that when a state constitution or legislature permits the people to vote on revenue measures and other laws, this puts the state out of compliance with the U.S. Constitution’s Guarantee Clause: the requirement at all states have a “Republican Form of Government.” Traditionally, their argument has been that the Constitution draws a sharp distinction between a republic and a democracy, and that citizen initiatives and referenda are too democratic to be republican. Recently, a group of plaintiffs sued in federal court, challenging Colorado’s Taxpayer Bill of Rights (TABOR) relying on a variation of this theory.

In this Issue Paper, Professor Rob Natelson, Senior Fellow in Constitutional Jurisprudence and the author of the most important scholarly article on the Guarantee Clause, sets the record straight. Marshaling evidence from Founding-Era sources and from the words of the Founders themselves, he shows that the phrase “Republican Form of Government” permits citizen lawmaking—and that, in fact, most of the governments on the Founders’ list of republics included far more citizen lawmaking than is permitted in Colorado or any other American state. He further shows that the principal purpose of the Guarantee Clause was not to restrict popular government, but to protect popular government by forestalling monarchy.

Boulder City Council says bars are responsible for drunk patrons

Posted on: September 29th, 2012 by Brian T. Schwartz No Comments

This was printed in the Boulder Daily Camera on August 2012.

What scares the Boulder City Council? That some Boulder businesses become secure in their right to sell legal products without asking permission from city authorities. Dear Council members: The permission to sell or serve alcohol is not rightfully yours to give. The purpose of government is to protect our rights to voluntary exchange, not violate them. But the Council acts like overlords who own the land within city limits. It has no such claim.

The Council also wants to target bars that it calls “bad operators.” City Council: This is not your business – literally. If an establishment wants a reputation for drunk, rowdy customers who vomit on other patrons, that’s the owner’s right. Alternatively, the owner can hire servers who stop serving drunken customers and trained bouncers who remove troublesome patrons.

Contrary to the Council, business owners are not responsible for keeping customers sober and well-behaved. Nor is government responsible. That’s each person’s responsibility.

Government should be involved only if an establishment violates someone’s rights or if patrons harm or endanger others. For example, assault or reckless driving.

Instead of using government force to address alcohol abuse, Council Members and concerned citizens should support non-profits like the Gordie Foundation. Dedicated to the memory of a CU student, it is committed to reducing “hazardous drinking and hazing and promot[ing] peer intervention among young adults.”

Boulder/Denver Grocery Bag Restrictions Would Trash our Liberties

Posted on: August 26th, 2012 by Brian T. Schwartz No Comments

This article originally appeared in the Boulder Daily Camera on July 11, 2012.

The Boulder City Council may soon vote to tax you for using disposable grocery bags — and possibly ban them outright. [Denver elected officials are also considering it.] But the city’s reasons for such restrictions collapse like a soggy paper bag. Better policies include education and innovation that promote bag recycling. Regardless, bag restrictions are immoral for punishing the innocent and violating our right to liberty.

One reason for bag restrictions, says a city webpage, is that retail plastic bags “contribute towards litter.”  But litter audits in Florida, Toronto, and San Francisco found this amount to be less than one percent.

In the five years before San Francisco banned grocery and pharmacy plastic bags, retail plastic bags contributed just 0.60 percent of large litter. A year after the ban, this figure increased to 0.66 percent.

Even if bag restrictions reduced litter, they punish everyone for the misdeeds of the few. By this reasoning, Boulder could ban spray paint because of graffiti vandals. Such injustice is called collective punishment, usually practiced under martial law.

Restricting plastic grocery bag use will increase sales of thicker, more resource-intensive, plastic trash bin liners.  Per capita, “Los Angeles residents reuse approximately 121 plastic carryout bags as trash bags each year,” concludes an analysis prepared for Pasadena, California. The South China Morning Post reported that after Hong Kong started taxing grocery bags, “use of garbage bags has increased by more than 60 percent.”

Bag restrictions will also increase sales of reusable bags, which themselves have drawbacks.  Plastic bags had the lowest “environmental impact” concludes a British Environment Agency study. The impact is “dominated by resource use and production stages.” “End-of-life management” generally has a “minimal influence.”

A shopper must use a cotton bag at least 131 times before it has less global warming potential than high-density polyethylene plastic bags, the study concludes. This number increases when accounting for reuse of plastic bags, and the resources required to wash reusable bags.

Washing bags is important. Reusable bags “are seldom if ever washed” and “almost all” contain bacteria, says a Loma Linda University study. Recently one such bag spread “nasty … norovirus infections” to a soccer team, reports MSNBC.

The City also justifies bag restrictions because individual plastic bags clog recycling facility machinery. But responding with bag restrictions punishes innocent people who properly discard or recycle plastic bags.

The Council’s support of bag restrictions also reveals its low regard for those who elected them. The restrictions imply that even if voters knew the harms of plastic bags in recycling bins, they would not change their behavior.

But why would voters know? Beyond a small notice inside recycling bins, has Western Disposal made any effort to educate customers about plastic bag recycling?  How about a large notice outside the bin? Better yet, Western Disposal can sell huge truck-side advertising to stores that recycle plastic bags: “Plastic bags jam our recycling sorters. Recycle them at King Soopers.”

If anti-littering campaigns by Keep America Beautiful or “Don’t Mess With Texas” can work, a well-executed informational campaign could surely prevent improper plastic bag disposal?

Speaking of Texas, Texas Disposal Systems, Inc. (TDS) offers an innovative solution to this problem: include plastic bags in curbside recycling. [Video below.]  As Austin Statesman editors describe, if customers stuffed individual plastic bags “inside a … durable plastic stuff bag, they would be easier to pull from the recycling stream and more manageable to store and bundle.” Even without such recycling, plastic bag recycling has increased by 50% since 2005, yielding durable plastic and lumber products, reports Moore Recycling Associates.

The city’s webpage also says restricting bag use “would address [city] council priorities like shifting away from a disposable culture.”  While such a cultural change may be desirable, persuasion is the only moral means to justify this end. Instead of persuasion, bag restrictions jam government compulsion into peaceful voluntary exchanges.  This is wrong. Retailers have a right to distribute bags to customers. Customers have a right to discard them so long as they respect people’s property rights.

Also, the restrictions also unjustly restrict the choices of innocent people who neither litter nor misplace plastic bags in recycling bins. And to what end? Plastic bag litter is trivial. Bans did not reduce it in San Francisco. And consumers respond by using bags that have larger environmental impacts.

Western Disposal should try harder to educate customers about plastic bag recycling. With Eco-Cycle, it should explore a curbside plastic bag recycling. Meanwhile, the City Council should constrain its actions to respecting people’s rights, rather than trashing them.

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Thanks to Jay Beeber, author of Plastic Bag Ban Will Put Los Angeles In Landfill at

Aurora theater shooting: Gun control (victim disarmament) an unwise response

Posted on: August 2nd, 2012 by Brian T. Schwartz No Comments

This originally appeared in the Boulder on Saturday, July 28, 2012.

Want safer theaters? Blogger Ari Armstrong suggests that theaters offer free tickets and popcorn to armed off-duty police officers, and publicize the policy.

Gun prohibitions won’t work. “At the very least, federal lawmakers ought to outlaw the high-capacity magazines,” argues a Denver Post editorial after the Aurora homicides.

After a mass shooting, England went well beyond “the very least” by effectively banning civilian gun ownership in 1998. Soon after, a Telegraph headline read “Gun crimes soaring despite ban” — a 40 percent increase. In the 2010 Cumbria shootings, a man killed twelve in northwest England.

Criminals ignore both gun bans and so-called “gun free” zones. Mass shootings have occurred in “gun free” zones such as schools and malls. And now movie theaters. The Aurora Cinemark theater “bans firearms on the premises,” reports the New York Times. Such “gun free” zones leave peaceful citizens defenseless against violent criminals. Hence the title of professor Dave Kopel’s law review article: “Pretend ‘Gun Free’ School Zones: A Deadly Legal Fiction.”

Kopel provides examples of heroic armed citizens stopping mass shootings.  In 2007, a man opened fire in a Colorado Springs church parking lot and entered the crowded church. A volunteer security guard shot him, saving many lives.  The Cato Institute’s “Tough Targets” study provides many instances of armed citizens thwarting criminals.

Regarding high-capacity magazines, Governor Hickenlooper is correct about the bomb-making Aurora killer: “If it was not one weapon, it would have been another.”

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See also:

Why medical care costs so much

Posted on: July 15th, 2012 by Brian T. Schwartz No Comments

This article was printed in the Boulder Daily Camera on July 14, 2012.

One reason medical care costs so much because patients pay so little for it directly. Most Americans’ health coverage is not real insurance, which covers large unexpected expenses. It’s really prepaid medicine that also covers small predictable expenses. The tax code is the main culprit. It punishes cash payment for medical care and rewards payment through insurance. Medicaid and Medicare are also prepaid medical plans.

Costs soar because patients are consumers, but not paying customers. Like business travelers dining on their employers’ expense accounts, patients are largely insulated from medical costs, and hence pay scant attention to price. For example, if a doctor recommends a high-end treatment, a patient has little incentive to inquire about its necessity or the availability of lower cost alternatives.

Costs stay low when patients pay, rather than when insurers or government health plans pay. For example, The Guttmacher Institute reports that 57% of abortion patients pay out-of-pocket, while abortion prices have been fairly constant for decades.

Real health insurance can save money – for example – high-deductible insurance combined with Health Savings Accounts for out-of-pocket medical expenses. Such “plans can produce significant (even substantial) savings without adversely affecting member health status,” reported the American Academy of Actuaries. The RAND Health Insurance Experiment reached similar conclusions.

But so-called “reform” does not address these problems. Rather, it entrenches them by mandating costly health plan benefits, limiting tax-exempt medical purchases, and threatening to ban high-deductible insurance policies.

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With a word limit of 240, I stuck to only one issue. One can write volumes on other ways government increases the cost of medical care. For example, medical licensing requirements and the FDA.

See also “Why are health costs rising?” by Devon Herrick.

Privatizing library operations can save taxpayer dollars

Posted on: July 15th, 2012 by Brian T. Schwartz No Comments

This article originally appeared in the Boulder Daily Camera on June 30, 2012.

A recent controversy at the Boulder Public Library concerns choosing architects for a multi-million dollar redesign. Regardless of how this resolves, Boulder’s cash-strapped libraries can preserve funding for improvements by doing what several public library systems have done: outsourcing library operations to a private company.

In 1997, Riverside, California outsourced “the management of day-to-day library operations” to Library Systems & Services, Inc. (LSSI), says a Riverside County report. “LSSI offered employment to all existing library staff,” while preserving base salaries and vacation time.

In the first year, operating costs decreased by more than a million dollars while patrons enjoyed, and continue to enjoy, increased materials budgets, library hours, and community programming. Since 1997 the library tax rate has remained flat.

Patrons in nearby Santa Clarita have a similar experience with LSSI. As the city’s mayor writes, patrons benefit from “increased hours of operation, the addition of $900,000 in new materials and providing for a $300,000 annual increase in the book and media budget.”

In Redding, California, another LSSI customer, the city’s community services director says residents enjoy “better service, more convenient hours, new technology, clean facilities, courteous staff, and programs designed by and for their communities.”

Indeed, the Boulder Library Commission has considered outsourcing library operations – but to a new government entity “that would raise property taxes,” reported the Camera in 2010. Given LSSI’s record of using tax dollars efficiently, the Commission should instead give private firms a chance and taxpayers a break.*

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Thanks to Harris Kenny at the Reason Foundation for pointers.  And check out the recent article about privatization in the Wall Street Journal, which he co-authored: Look Who’s Embracing Privatization—Big City Democrats.

* Of course, the best way to give taxpayers a break is to privatize not just the library operations, but the funding. Libraries should be funded with voluntary donations rather than forced donations through taxes.

Don’t Ask the State to Confiscate Water Rights

Posted on: June 15th, 2012 by admin 1 Comment

IP-8-2012 (June 2012)
Author: J. Craig Green

PDF of full Issue Paper
Scribd version of full Issue Paper

In next November’s election, voters may be asked to destroy Colorado’s 160-year-old system of water rights. A pair of ballot proposals, for which signatures are currently being collected, would essentially confiscate the water rights of cities, water districts, farmers, and ranchers by making them subordinate to the whims of any Colorado citizen who complains to a court about their legal status.

The Colorado Constitution has always recognized water as a public resource, but has also made it subject to claims for private uses. Under the Constitution, water rights can be claimed for beneficial purposes such as irrigation, domestic and city uses, among many others. Farmers and breweries can own water rights, as can cities.

However, the authors of this year’s proposed ballot initiatives #3 and #45 want to eliminate Colorado’s constitutional language which recognizes long-established private and public claims to water, including those established long before Colorado became a state.