May the city of New Orleans subject local tour guides to hundreds of dollars in fines and five months in jail for engaging in unauthorized talking?

This is the question the Institute for Justice (IJ) seeks to answer in a federal lawsuit filed on December 13 in the U.S. District Court for the Eastern District of Louisiana.  Four New Orleans tour guides are joining forces with IJ to strike down New Orleans’ tour guide licensing scheme as a violation of their fundamental constitutional rights:

According to First Amendment expert Matt Miller of the Institute for Justice, seen the above video:

The government cannot be in the business of deciding who may speak and who may not.  The Constitution protects your right to communicate for a living, whether you are a journalist, a musician or a tour guide.

New Orleans requires every tour guide to pass a history exam, undergo a drug test and pass an FBI criminal background check every two years merely for speaking.  People who give tours without a license face fines up to $300 per occurrence and five months in jail.

City officials are currently breaking up tours led by guides that don’t have the government’s permission.

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On Sunday, former Secretary of State under George Bush, and purported Conservative visited with Christiane Amanpour on the Sunday news show This Week. Powell made some interesting comments about America’s founding fathers and compromise.

What is the most important part of the 11th Circuit’s recent ruling on The Affordable Care Act?  You might think it was the individual mandate being struck down.  But it was actually this:  Judicial engagement.

For the first time in our nation’s history, a federal court used the term “judicial engagement” in a ruling striking down federal legislation.   This is a cause for celebration because—regardless of one’s political leanings—we should all agree on the need for engaged judges.  (And regarding the individual mandate, we all know that it will ultimately reach the Supreme Court.)

As the nation’s leading legal advocate for liberty, the Institute for Justice enters courtrooms across America determined to vindicate our most precious rights.  And all too often, our opponents argue that judges should ignore facts or even make them up to justify what the government is doing.

Conservatives, liberals and libertarians should all be able to agree that we need judges that are serious about judging and examining the real facts about what our government is doing.

Today it is fashionable to laud judicial decisions that line up with one’s worldview—and condemn those that do not as “judicial activism.”  So it comes as no surprise that E.J. Dionne referred to the 11^th Circuit ruling on the individual mandate in the Washington Post as “the latest episode of rampant conservative judicial activism.”

But as constitutional expert Robert McNamara points out at The Corner, such responses miss the point.  The 11^th Circuit ruling was fundamentally about the role of courts and when our courts should step in to limit legislative power.

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In my recent post, “Is Revolution in the Air? If So, Let It Be an American Revolution,” I tried to articulate what makes us – American-minded patriots – different and uniquely equipped to respond to the growing mess around us that we did not create, nor give our consent. Since posting it, there have been other commentaries on the possibilities of a looming breakdown in our society. In fact, some mayors of American cities are already taking precautions in light of the hellish scenes coming out of London. The Philadelphia mayor has been in the news lashing out at black-youth “flash mobs” that are wreaking havoc in the city. We have tent cities popping up here and there throughout the country. First jobless and then homeless, these unfortunate souls have completely bottomed out in a land that is the most prosperous and promising in the entire world. When I think of their children, then mine, it’s more than I can bear. It is an ugly stain on the fabric of America.

These are terrible ingredients — a volatile mixture sitting dangerously close to open flames. There are those who wish to do nothing more than to fan these flames. “Destroying America will be the culmination of my life’s work.”~ George Soros. In their twisted view, in order to create a New America, the old one must be destroyed and erased. These are the veterans and decedents of the Radial Left from the 1960’s. Others are merely useful idiots in this plot who have fallen victim to the visions of utopia of a completed society of equals in every way imaginable: equal in squalor; equal in misery.

Defense cuts would allow the United States to tend to a few other priorities, which just might take Americans’ minds off the fact that their country is no longer No. 1. Perhaps the United States could focus on constructing a high-speed rail line or two, or maybe even finish the job on extending health care. After all, of the large economies that enjoyed a AAA rating from Standard & Poor’s last week, the United States ranked at the bottom of the list in terms of life expectancy, and it was the only country without universal health care. Perhaps America could also spend a little more on basic education; the United States was at the tail end of the AAA club when it came to believing basic scientific truths like evolution, and it scored lowest out of all those countries on international tests of students’ math skills. Charles Kenny, Foreign Policy Magazine

The rest are incompetent boobs with no direction, no solutions, and no sense of soul. They are equally dangerous. In over their heads nincompoops who think by defending the very programs and policies that promise to destroy our nation, they are being good stewards of government. That is to say nothing of the run-of-the-mill thieves and prostitutes who plunder our treasury for votes and comfortable seats in power.

There is an alternative to this, though.

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The Congress shall have Power….  To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions… Article One, Section Eight of the US Constitution.

Earlier this week Speaker Boehner sent a letter to the President warning Obama that he will clearly will be in violation of the 1973 War Powers Act as of this weekend as the POTUS did not seek congressional consent for the operation within 60 days of the March 19 U.S. air strikes against Moammar Gadhafi’s forces.

“Either you have concluded the War Powers Resolution does not apply to the mission in Libya or you have determined the War Powers Resolution is contrary to the Constitution,” Boehner wrote. “The House and the American people whom we represent deserve to know the determination you have made.”

Yesterday the President gave his response. He sent a 30+ page report (embedded below) justifying continued military involvement U.S. military involvement is “legitimated” by the UN Security Council – saying that therefore no congressional authorization is needed.

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Even if you agree that Congress should have the right to order a citizen to purchase health care insurance on the basis of the commerce clause of the U.S. Constitution, you need to consider how this will expand the powers of the federal government to mandate other actions that you, your children and future generations may have to comply with.  Consider a party in power that disagrees with your ideology and imposes mandates on you to take actions opposite of your beliefs.  Can you visualize how allowing this mandate to stand is simply an abdication of individual liberty?

As the 4^th District Court of Appeals deliberates the issue as the next step in a journey that both sides agree will end up at the Supreme Court, we are reminded that part of the genius of our Constitution is in how it defined a government of enumerated powers.  Those powers, specifically granted to the government by the people, clearly subjugate the government to the people regardless of the political agenda of those in power at any point in time.  Previous interpretations of the commerce clause, and the general welfare clause, broadened the powers of the federal government but only to increase the reach of its power to tax.  While those interpretations are still discussed in some circles, the mandate for a citizen who chooses not to participate in commerce to purchase a service to benefit commerce is a significant increase in the power of the federal government.  It will reverse the balance of power in favor of the federal government, subjugating the people to the will of the particular party in power at any given time.

This slope is indeed a slippery one.  If a party comes to power and passes legislation to mandate citizens to pursue education and careers based on the overall benefit to the nation’s commerce, rather than individual choice, it will be able to have that legislation upheld based on the precedent this current mandate will establish.  It will be argued that if the nation needs engineers and chemists, citizens should be tested and those with aptitudes in those disciplines should be mandated to direct their lives accordingly.  The argument will be strengthened by suggesting that these citizens are going to pursue careers anyway and the nation’s commerce would be benefited by mandating the direction of their careers.  If citizens fail to comply, the government would impose financial penalties.

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Dale Smith has been cutting hair for over 50 years.  The Oregon barber is well-known in his hometown for walk-in appointments and $8 cuts — at least, until he got shut down by bureaucrats from Oregon’s Board of Cosmetology.

Dale’s crime?  He forgot to renew the barber license he earned 54 years ago.

The bureaucrats are saying that in order for Dale to return to work, he has to pass a 75-question examination, similar to the one he passed in 1957.  Further, he has to demonstrate to their satisfaction that he still knows how to cut hair:

Dale had to post a sign in his window saying that he was closed until further notice.  He doesn’t want to cut through all the red tape and isn’t sure what he’ll do next.

As Institute for Justice Senior Attorney Clark Neily explains in the video above:

Americans have a constitutional right to earn a living in the occupation of their choice, free from unreasonable government interference.  What happened to this man is the very definition of unreasonable.  A properly engaged judiciary is one that takes rights seriously, including the right to earn a living.  And it says to government officials, you have to treat people reasonably.  You have to respect their constitutional right to earn a living.

Of course, Dale is not alone.  In November, IJ economic liberty expert Paul Sherman spoke about armed government agents raiding barbershops and handcuffing barbers in front of their clients.  Big Government readers know that occupational licensing abuse is rampant in America.

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On Tuesday the Institute for Justice went to federal court to find out.

Two years ago IJ teamed up with three Philadelphia tour guides to file a major First Amendment lawsuit seeking to vindicate the freedom to speak in Philadelphia.

Ann Boulais, Mike Tait and Josh Silver sued because officials passed a law making it illegal for anyone like them to give a tour of much of the city’s downtown area without first passing a test and obtaining a government license—that is, getting the government’s permission to speak.

The case immediately sparked nationwide interest.  Robert McNamara, the First Amendment expert who filed the case, appeared on shows like All Things Considered and Marketplace to point out that the Constitution protects our right to communicate for a living, whether we are speaking out as bloggers, journalists, stand-up comedians or tour guides.

The Wall Street Journal ran a front-page feature:

Feeling tyrannized, Ms. [Ann] Boulais and two fellow guides summoned the constitution’s protections by suing the city in Philadelphia Federal court. The history test, they claimed, breached the Bill of Rights — a set of rules, as any good guide should know, that took effect while Congress sat here at 6th and Chestnut streets, on Dec. 15, 1791.

Of course, the guides are quick to point out that officials are violating fundamental American liberties in the very place those liberties were first enshrined in our Constitution.

In 2009, a year after the suit was filed, the city asked a federal judge to dismiss the case.  Their reason?  They had not allocated money in their 2009 budget to enforce the law right away.

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Progressives have been lining up against Speaker Boehner’s plan to open tomorrow’s House session with a reading of the United States Constitution. Their objections come even though the Democrats have been invited to participate in the ceremony.  Rep. Bob Goodlatte’s (R-Va.) office told the Washington Post that he would issue a letter advising Democrats they are welcome to take part.

But that is not good enough for the  progressive Congressman from New York Jerrold Nadler, he believes that the Constitution is not a document that should be treated with reverence.

As an attorney and perpetual student of the law, I have never been comfortable with the idea of litigating constitutional issues.  Courts represent the last resort for citizens oppressed by their own government.

As Jonah Goldberg noted at National Review, many progressive journolists [sic] and constitutional “experts” seem nonplussed at the idea of anyone examining the constitutionality of legislation that is not a judge or justice.  The problem with that mentality is that the Constitution does not identify the Supreme Court as the sole arbiter of constitutional meaning.

The concept of judicial review came about in Marbury v. Madison.  Essentially, actions of the political branches would be subject to review and possible invalidation by the Supreme Court.  Mind you, this case revolved around a political dispute between the outgoing Federalists and the incoming Jeffersonian Republicans.  Chief Justice Marshall, an ally of the Federalists, ruled in favor of the Jeffersonian Republicans to garner support for the new role he had carved out for the judiciary.  Ever since, the Supreme Court has assumed the final say on constitutionality with few exceptions, though no explicit authority exists.

This decision provides the basis for progressive belief that the Supreme Court represents the only means for decisions on the constitutionality of legislation, and it is outright wrong.  This is the fall-back for progressives on the constitutionality of Obamacare.  “Shouldn’t we wait until the Supreme Court presents its opinion?”  Heck no! (more…)

In Washington, DC, talking about the Bill of Rights can land you in jail for 90 days.

Our nation’s capital has a licensing scheme in place that makes it illegal for anyone to “guide or escort” anyone else for hire without first getting the government’s permission. To get the license, which the Washington Post editorial board labeled a Tour de farce, eager entrepreneurs must first pay hundreds of dollars in fees, fill out a bunch of forms and pass an arbitrary test.

That is, they need to jump through all sorts of needless hoops before they’re allowed to speak.

[Please help promote this video by voting it up and commenting on reddit here.]

The bottom line is that the Constitution protects your right to communicate for a living, whether you are a journalist, a stand-up comedian, a musician, or a tour guide.  The government cannot be in the business of deciding who may speak and who may not.

That is why two Washington, DC, tour guides—Tonia Edwards and Bill Main, who run a company called Segs in the City—joined forces with the Institute for Justice to file a major federal lawsuit challenging DC’s tour-guide licensing scheme as a violation of their fundamental constitutional rights. Video and photos of the press conference are online.

Nearly every day, Tonia and Bill teach a group of people how to ride Segways and then take them around Washington, DC, on a tour of the city.  Their business is located near the National Archives, so one of the things they tell their customers is where the Bill of Rights is located.  For this, the city government could throw them in prison for three months.

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As we all know, the result of the left’s takeover of our media and universities has been a vast ignorance among the young about America’s history, philosophy and institutions. That’s the disease but – huzzah! – PJTV’s Klavan on the Culture is the cure.

Here in just around four minutes is a complete refresher course on the history, meaning and importance of the United States Constitution for all you young dudes and dudettes. All right, it’s complete nonsense. Still, when you man and woman the barricades, at least now you’ll know what you’re fighting for! Sort of.

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From AFP:

A federal judge overturned California’s ban on same-sex marriage US media reported Wednesday, the latest twist in a legal saga which could have nationwide implications for the divisive social issue.

In a written opinion, Judge Vaughn Walker found in favor of rights activists who argued that a November 2008 referendum which barred gays and lesbians from tying the knot was discriminatory and therefore violated the US Constitution.

Far-left ideologues and self-styled intellectual illuminati have, for years, labored overtime to highjack the notion of American Exceptionalism by equating it with their own notion of American arrogance.  Let us put an end to this calumny. Let us recall and, indeed, praise the American Exceptionalism at which Alexis de Tocqueville marveled when, during his travels through the young country in 1831, he coined the term in his treatise, “Democracy in America.”

De Tocqueville was writing for the European reader, especially for his fellow Frenchmen far more than he was writing for the new and vibrant American marketplace.  Whereas revolution had produced chaos and anarchy and hatred of almost anything that smacked of religion in France, de Tocqueville was quick to observe that something quite the contrary had emerged in America.  Here he saw the budding fruits of freedom, individual liberty, equality of opportunity and a people absolutely free to practice religion however they chose or not to practice any religion at all.   What he saw, first hand, was the world’s first functioning meritocracy, and what he described so eloquently was the fantastic differentiation of America from Europe.  He called it American Exceptionalism. It was, and has been, that exceptionalism that produced the most industrious nation the world has ever known.

That is something we should celebrate each and every day…that which made us different, that which made us great, and that which, thankfully, a rapidly growing number of Americans are determined to reestablish as the great American paradigm.  And while American Exceptionalism shouldn’t merely be about what was, but rather about what is, it is worth remembering that twenty-five thousand Americans died during the War of Independence to establish the great American experiment.  Relative to population that first American war was the second costliest in human treasure, exceeded only by the Civil War.   During the course of the 235 years since the shot at Concord that was heard around the world, more than 1.3 million Americans have died defending freedom and liberty.

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Although words and the meaning they convey mean everything in the law; words mean very little to people with agendas.  This is bad news.  Worse yet, the U.S. Constitution is filled with old words and phrases that, when read out of context, lose meaning over time.  Most frightening, legal commentators who prefer to sidestep our Constitution to accomplish the progressive-statist agenda continue to bash the virtue of seeking our Constitution’s original meaning.

In lockstep with progressive reforms, a recent book, “Keeping Faith with the Constitution,” adopted the term “constitutional fidelity.”  Goodwin Liu was one of the authors, and the focus of another contributor on this topic.  It is asserted that this term “respects the endurance of our written Constitution” and also “explains how its text and principles retain their authority and legitimacy.”  Filled with anti-Justice Scalia propaganda and criticism, it intends – but fails – to strike the middle ground between those who think original meaning controls and those who think meaning should account for the needs of our “progressing” society.  It does nothing of the sort.

At its core, constitutional fidelity asserts that original meaning (which the authors correctly concede is not strict constructionalism, but rather, an exercise of reading words in the context in which the words were enacted) should be sought when interpreting “concrete provisions,” but not the “broad and general principles.”  It is these broad principles, they assert, that should adapt “in light of the conditions and challenges faced by future generations.”  But constitutional fidelity ignores that there is no principled manner to determine which provisions of the constitution are broad, as opposed to concrete.  One might suppose that any provision best suited to confront society’s next “challenge” would be interpreted in such a way.  This is not law. (more…)

Despite praise as a civil libertarian and liberal advocate, Justice Stevens’ real friend was government.

Justice John Paul Stevens, retiring before the United States Supreme Court’s fall term, has long been considered the leader of the liberal’s intellectual bloc on the Court.  While praise from the Left for Stevens will continue throughout the summer, the Obama administration has made it clear it plans to replace the Justice with a “like-minded” liberal.

Stevens penned the majority opinion in Hamdan v. Rumsfeld (2006), concerning the Bush Administration’s treatment of Guantanamo Bay detainees after 9/11.  He held that the administration’s conduct violated the Uniform Code of Military Justice and Common Article 3 of the Geneva Convention.  He was also influential in establishing the privilege of habeas corpus for suspected terrorists in Boumediene v. Bush (2008).  For his role in these cases, many liberals and civil libertarians have held Stevens in high regard.  In addition, Stevens joined the conservative bloc of the Court in Crawford v. Washington (2006), overturning years of bad law regarding the Confrontation Clause of the Sixth Amendment and providing bright-line protections against out-of-court statements used against the accused at trial.  With government intrusion and involvement already secured and guaranteed, Stevens frequently voted to scrutinize government procedure and broaden protections for the accused.

Stevens, however, was not so friendly to the cause of freedom and the protection of individuals from such interference.  Stevens was skeptical, sometimes fearful of individual rights, consistently deferring to government power and tolerating its expansion into private lives. (more…)

There is much talk of repealing socialized medicine, though the rhetoric has waffled a bit since passage.  The problem is that even if we gain majorities in Congress we still need 60 votes in the Senate to avoid a filibuster, not to mention the 2/3 majorities we need in both houses to override a presidential veto.  Meet Article V of the Constitution:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, SHALL call a convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. (emphasis added)

Dark thoughts are on American minds these days, despite the optimism in the American system.  It is not the first time, nor will it be the last.  Travel backwards to the Spring of 1786.  The Articles of Confederation were the “Supreme Law of the Land,” but one Charles Pinckney of South Carolina proposed a revision.  Congress represented the sole institution of our national government, and Congress was rather weak.  The states retained much of their sovereignty, and Congress, with the few powers it actually wielded, could only operate with unanimous consent.  Rebellion and credit issues abounded, not to mention the threat of foreign invasion, without effective centralized governance.  And so, the Constitutional Convention eventually convened in May 1787 to revise our system of government, and prevent disaster.

The Articles of Confederation were completely replaced by the Constitution when New Hampshire ratified it as the ninth state on June 21, 1788.  The United States of America under the Constitution came into existence without a bloody revolution or civil war.  And the Constitution provided a means to revision in Article V. (more…)

Springfield, Illinois, June 16, 1858

MR. PRESIDENT AND GENTLEMEN OF THE CONVENTION:

If we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it. We are now far into the fifth year since a policy was initiated with the avowed object, and confident promise, of putting an end to slavery agitation. Under the operation of that policy, that agitation has not only not ceased, but has constantly augmented. In my opinion, it will not cease, until a crisis shall have been reached and passed. “A house divided against itself cannot stand.” I believe this government cannot endure permanently half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing, or all the other. Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new — North as well as South.

Have we no tendency to the latter condition?

Let any one who doubts, carefully contemplate that now almost complete legal combination — piece of machinery, so to speak — compounded of the Nebraska doctrine, and the Dred Scott decision. Let him consider not only what work the machinery is adapted to do, and how well adapted; but also, let him study the history of its construction, and trace, if he can, or rather fail, if he can, to trace the evidences of design, and concert of action, among its chief architects, from the beginning.

The new year of 1854 found slavery excluded from more than half the States by State Constitutions, and from most of the national territory by Congressional prohibition. Four days later, commenced the struggle which ended in repealing that Congressional prohibition. This opened all the national territory to slavery, and was the first point gained.

But, so far, Congress only had acted; and an indorsement by the people, real or apparent, was indispensable, to save the point already gained, and give chance for more. (more…)

As he prepared “Notes on Government” for publication in 1791, Congressman James Madison wrote a note to himself. “In proportion as slavery prevails in a State, the Government, however democratic in name, must be aristocratic in fact. The power lies in a part [of the people] instead of the whole, in the hands of property, not of numbers.” He drew a telling conclusion: “The Southern States of America,” very much including his native Virginia, “are on the same principle aristocracies.”

As an architect of the new Constitution, Madison knew that Article IV, Section 4 says, “The United States shall guarantee to every State in this Union a Republican Form of Government.” He knew, therefore, that the American regime contained a self-contradiction. With most Americans of his generation, he hoped that the eventual removal of slavery would remove this potentially fatal flaw. In fact many states did abolish slavery in that first, founding generation. But his “Southern States” did not. It took civil war and Abraham Lincoln’s Emancipation Proclamation to continue the liberation that the founders had begun.

Lincoln came to the battlefield cemetery at Gettysburg to say in public what Madison in prudence could not say some seventy years before. In declaring their independence, their self-government, in 1776, “our fathers,” the founders, “brought forth on this continent, a new nation, conceived in Liberty and dedicated to the proposition that all men are created equal.” Conceived, brought forth: this is the language of fertility, of childbirth. It is a paradoxical conception and childbirth—the work of fathers not of mothers. Somehow the signers of the Declaration of Independence were fathers and mothers, men who conceived and gave birth.

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New Jersey’s State Constitution is unconstitutional.  That’s apparently what one New Jersey election official seems to think.

A committee seeking approval from the state to petition registered voters on whether to move forward with a special election to recall US Senator Robert Menendez was denied that request, in a letter on January 11^th which stated that the US Constitution does not provide for such a proceeding.

But in 1993, the people of New Jersey overwhelmingly voted to reserve for themselves “the power to recall, after at least one year of service, any elected official in this State or representing this State in the United States Congress” (emphasis added), and in 1995 made this amendment to their state constitution under Article I, 2b.

This has left many New Jersey voters wondering why Secretary of State Nina Mitchell Wells, a member of the Executive Branch, not the Judicial Branch, would take it upon herself and her position to declare the NJ state Constitution unconstitutional.  After reviewing the committee’s preliminary appeal statement, a judge in the Superior Court of NJ Appellate Division has just issued an order allowing a motion to accelerate the appeal.

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