I suppose you could call it black humor, but I’m imagining what the results might be if Kagan were called upon to edit Thomas Jefferson’s most famous passage in the Declaration of Independence. What if Kagan’s own views, as inspired by Justice Oliver Wendell Holmes, Jr., were to replace America’s founding ideals? I’m thinking the result would look something like this:

“We hold these personal opinions to be pretty important for us, but not necessarily for anyone else—that all people are equally subject to society’s arbitrary command—–that they are endowed by majority vote with various uncertain and alienable privileges—that among these are life spent in the service of others, liberty to achieve the public interest, and the pursuit of everyone’s happiness but one’s own—that to create these privileges out of thin air, governments are fastened onto humankind, deriving their arbitrary powers from the consent of the ruling faction at any particular moment.”

It’s technically not too late for the full Senate to do the right thing and vote to reject Kagan—but unfortunately, most of our senators see nothing amiss in her philosophy of governance.

(If you need to cleanse your palate, the full text of the original Declaration of Independence is here.)

Image: WikiMedia Commons

We should do the same with the supposedly “new,” “exciting” economic idea known as the “green energy economy”–in which government central planners mandate that practical energy sources (coal, oil, natural gas, nuclear) be replaced by solar panels, windmills, dung piles, and corn fields. (Thomas Friedman’s latest column is a typical endorsement of such policies.)

There is nothing new and exciting about the “green energy economy.” There is a place overseas that has already provided stark evidence of what it means to pursue a “green energy economy,” and it’s not pretty. That place is called Europe, and it’s a testament to what happens when you force unproven, inefficient energy down people’s throat. A recent post at the free-market energy blog Master Resource explains:

Renewable energy has proved an expensive and unreliable source of energy everywhere it has been tried on a significant scale…Italy, Spain and Germany are cutting back on their taxpayer/ratepayer-funded generosity toward politically correct energies….In all, Europeans have tested the theory of a “clean energy revolution” to destruction.

For the gory details, read the whole article here.

Image: Wikimedia Commons

Investor’s Business Daily

In the years leading up to 2008—09′s financial meltdown, government control over mortgages, interest rates and America’s banking system was at an all-time high.

And yet when crisis struck, free enterprise took the blame.

The cure, therefore, was to give government even wider powers. Washington can now bail out any company, fire CEOs, override contracts and print billions of dollars to “stimulate” the economy — all in the name of the public interest. The result? Our deficits and debt continue to mount, and there’s a real possibility of a future like Greece’s.

This is the state of our world today. It’s remarkably similar to the state of the world in Ayn Rand’s “Atlas Shrugged,” a mystery story about a future America whose economy is disintegrating and whose government is accumulating power faster than anyone thought possible. This parallel is a big reason a record 500,000 people bought “Atlas Shrugged” last year.

So what can we learn from a book that foresaw in 1957 what few believed possible in 2007? We can learn a lesson the heroes of the novel learn: the cause of the government’s greater, destructive control of business. And we can learn how to oppose it.

Read the whole thing.

Alarmingly, Kagan’s testimony before the Senate Judiciary Committee shows that she rejects the Founders’ view of the Constitution as a charter of liberty whose purpose is to protect individual rights. Instead, she adheres to the modern view that it’s a mechanism for establishing unlimited majority rule over the individual.

As a matter of historical fact, the Founding Fathers wrote the Constitution for a certain purpose. They wanted a government that would respect and protect the individual’s rights to life, liberty, property, and the pursuit of happiness. Aside from certain contradictions (the worst of which, toleration of slavery, required a bloody civil war to expunge), the Constitution is dedicated to protecting the individual from society by means of a limited government. The Supreme Court cannot objectively interpret the document’s language apart from this essential purpose.

Regrettably, however, too many of today’s judges reject this approach to constitutional interpretation.

Read the whole thing.

As I mentioned in my earlier post, Apple sells “locked” iPhones. That means they work only on AT&T’s network. Consumers know the phones are locked into one network—there’s no mystery or fraud involved.

Okay, so what about the plaintiffs in this class action? They managed to scrape together enough money to buy iPhones and enter into two-year contracts with AT&T. They used their phones for the full two years. Then their contracts expired. Now they want to unlock their phones and use them on T-Mobile or some other network. There’s only one small problem with that—their individual software license agreements with Apple forbid such tampering. That’s not to mention violation of Apple’s software copyrights. But none of that bothers the plaintiffs and their class action lawyers.

Elsewhere, I have called antitrust laws a “war against contract,” and this case is a perfect illustration. These plaintiffs don’t want to be bothered with the contracts they signed. “I promise” means nothing to them. Instead, they assert what amounts to a divine right of hacking—to be achieved with the help of the infamous Sherman Act.

Here’s the plaintiffs’ legal theory: Apple and AT&T are monopolizing the so-called aftermarket for the iPhone. This “aftermarket” is not to be confused with the market for smartphones—that’s a huge market in which Apple is a significant but by no means dominant player (Blackberry, anyone?). No, the “aftermarket” amounts to the various ways of hacking the iPhone to make it work outside AT&T. Do you get this? Since the only way you can keep making calls on an iPhone after two years is sign up with AT&T for another two years, that’s evidence the companies are “monopolizing” the “aftermarket.”

Now you might say, wait: This “aftermarket” sounds more like an illegal enterprise than a market. If licensing agreements forbid unlocking, then why would the law protect an “aftermarket” devoted to unlocking? Well, in the wonderland of antitrust, anything is possible. If this class action is successful, Apple and AT&T may have to pay damages and abandon their policies against unlocking.

So much for sanctity of contract, which is but a distant memory in American law.

Image: WikiMedia Commons

In recent hearings, Supreme Court nominee Elena Kagan confirmed her allegiance to this modern orthodoxy.

Kagan’s views came out under clumsy questioning from Sen. Tom Coburn, an Oklahoma Republican and religious conservative. Coburn’s questions mixed together several ideas: that individuals have natural rights—that those rights pre-exist the Constitution—that such rights are God-given—and that those rights include owning guns for self-defense.

Rather than try and untangle Coburn’s mish-mash of truth, falsehood, and controversial detail, Kagan used the knife of Holmesian orthodoxy to slice them away with a single stroke. Inquiries about man’s natural rights are irrelevant to her fitness for the Supreme Court, she testified, because they are “outside the Constitution and the laws.” As such, she told Coburn, “you should not want me to act in any way on the basis of such a belief.”

Let’s consider the implications of Kagan’s view by means of a hypothetical Supreme Court justice. This judge knows, as a matter of fact, that the founding generation fought a bloody war against England to vindicate man’s individual rights to life, liberty, property, and the pursuit of happiness. This judge also knows, as a matter of fact, that the Founders crafted the Constitution for a single purpose, stated in the Declaration of Independence: to “secure these rights.” He also knows, as a matter of fact, that the Constitution establishes a government of limited powers, well suited to the protection of those rights.

What would it mean for such a judge to abide by Kagan’s view of conscientious judging? It would mean deliberately setting aside all these facts as mere personal views, “outside the Constitution and the laws.” It would mean following Justice Holmes in treating the Constitution as a document “made for people of fundamentally differing views.” It would mean acting as if any political viewpoint with electoral clout—be it capitalism, communism, socialism, fascism, Muslim totalitarianism, Christian fundamentalism, or some other ideology—has an equal constitutional right to shape American law for its own purposes, while the Supreme Court sits idly by.

This is an important issue—more important even than Kagan’s views on the Twilight film series. It’s a shame that our senators are not up to the task of making allegiance to our nation’s founding purpose a litmus test for confirming a Supreme Court nominee.

Image: WikiMedia Commons

So, let’s get this straight. Both Apple and AT&T want to make money. Apple makes money by creating cool mobile devices like the iPhone—creating, as in designing and manufacturing phones that didn’t exist before Apple’s brilliant designers and engineers thought of them. AT&T makes money by creating a mobile phone network–creating, as in erecting a complex array of electronic equipment capable of transmitting messages from handheld phones, a network that didn’t exist before AT&T created it.

Then Apple and AT&T decide to make money by working together. Although details of their deal aren’t public, it’s clear that AT&T saw an opportunity to increase its subscriber base by becoming the only retailer of iPhones. Apple, for its part, looked forward to receiving payments from AT&T based on a percentage of every iPhone subscriber’s monthly bill. Was this collaboration a good idea? You be the judge: consumers have bought 50 million iPhones in three years.

Let’s pause at this point to remind ourselves that the Apple-AT&T agreement does not interfere with anyone else’s smartphones or networks. The makers of Blackberry or Palm phones can choose to sell phones locked or unlocked. Networks such as Verizon and Sprint can choose whether to enter into exclusive contracts as AT&T did with Apple. In short, every other firm in the industry is free to make as much money as they can competing with Apple and AT&T.

So far, does this sound like conduct that should be illegal? Let’s look at what the plaintiffs are complaining about. According to reports, their lawsuit charges that the locked phone agreement “hurt competition and drove up prices for consumers.”

“Hurt competition?” This is competition. Apple and AT&T are competing with other makers of smartphones and with other mobile networks—and those other makers and networks are competing right back. In a free market, everyone else in the universe is at liberty to enter the market and offer a product that is better, cheaper, or both. No competitor can forcibly prevent another’s efforts.

“Drove up prices for consumers?” There was no price for an iPhone before Apple created and sold it. There was no price for an AT&T iPhone subscription until AT&T offered it. Those prices were not “driven up” from some arbitrary level that the plaintiffs would have wished to see. The prices were set by the owners of the goods and services being sold. Consumers were free to buy or to wait for some competitor to offer an equally attractive, unlocked phone.

As this suit progresses, observers should look closely at what conduct is illegal under this nation’s antitrust laws, and whether it should remain so.

[Update: Thanks to TheStreet.com for publishing this post to their many readers.]

Image: WikiMedia Commons

Why on earth did this become a legal issue? Why did it fall to a federal judge to decide who would be allowed to attend such a gathering, and what they could do there?

It’s because the festival was to be held on public property, city-owned land known as Loring Park. “As a festival attendee in a public forum, [evangelist Brian] Johnson is entitled to speak and hand out literature, quintessential activities protected by the First Amendment, so long as he remains undisruptive,” wrote Judge John Tunheim.

Conflicts such as these are built into the very concept of public property. After all, there is no rational standard by which one person can be deemed part of “the public” and another person excluded from “the public.” Therefore, Johnson can argue that he has a right to attend—just as the festival’s organizers can argue that their event will be spoiled by Johnson’s presence. Who’s right? Both of them, and neither of them. It’s an insoluble conflict, so long as governments continue to own and operate parks such as Loring Park in Minneapolis.

There is, however, a solution: private property. In a private setting, the festival’s organizers would be free to exclude wet blankets like Johnson the evangelist. Johnson, for his part, would be perfectly free to speechify about gay sex from his church’s pulpit or on any private property whose owner would allow it.

Consider that more than one-third of land in America is owned by governments, and millions of citizens have conflicting views on how that land should be used. That’s a prescription for endless civil war among pressure groups. The only prospect for peace lies in making public property private.

Image: WikiMedia Commons

The question confronting the United States today is whether the notion of sacrifice–personal and collective–still has enough traction in our society to enable us to overcome the range of problems we face.

He goes on to name some of the sacrifices he thinks will solve these problems:

• “[S]lightly higher marginal tax rates for the top 5 percent…in order to fund the necessary investment in social infrastructure”
• “[A] carbon tax”
• “[A] somewhat more rigorous regulatory structure”

There’s a reason that Spitzer couches his program in the terminology of “sacrifice.” If he simply said the government should solve our problems by taking more of our wealth and our freedom, he wouldn’t win many converts. “Sacrifice” adds a moral dimension to Spitzer’s call for government intervention. The purpose is to morally disarm anyone who wants to safeguard his wealth or his freedom by saying, “You, you’re just being selfish.”

It’s no accident that dictators throughout history have justified their demands for power by appealing to the duty to sacrifice: freedom is selfish. It is the freedom to do what you want with your wealth and your life, rather than what society, Eliot Spitzer, or Barack Obama wants you to do. As Ayn Rand noted nearly 70 years ago in her novel The Fountainhead:

[J]ust listen to any prophet and if you hear him speak of sacrifice–run. Run faster than from a plague. It stands to reason that where there’s sacrifice, there’s someone collecting sacrificial offerings. Where there’s service, there’s someone being served. The man who speaks to you of sacrifice, speaks of slaves and masters. And intends to be the master. But if ever you hear a man telling you that you must be happy, that’s it’s your natural right, that your first duty is to yourself–that will be the man who’s not after your soul.

Spitzer speaks of sacrifices. The Founding Fathers spoke of the individual’s right to pursue his own happiness. The Founders sought to create a free society. What, then, is Spitzer after?

Image: flickr