We can strengthen our defense of liberty if we remember to keep in mind those who are struggling to make ends meet. What makes our Constitution such an extraordinary document is that, in making the United States the freest civilization in history, the Founders guaranteed that it would become the most prosperous as well. The American system of limited government, low taxes, sound money and the rule of law has done more to help the poor than any other economic system ever designed.

I want to talk today in particular about the last of those – the rule of law, which is absolutely essential to all the other benefits of our system, to the prosperity and freedom of our country, and to the well being of all Americans, especially the most vulnerable.

What is the rule of law? When the Declaration of Independence cited as justification “the laws of nature and of nature’s God,” the Founders were channeling Aristotle, who wrote that the rule of law in principle means that, quote, “God and intellect alone rule.”

Aristotle defined the law as “intellect without appetite,” by which he meant justice untainted by the self-interest of those in power.

The great difficulty we encounter in striving to meet Aristotle’s ideal was best summed up by James Madison: “if men were angels, no government would be necessary. And if angels were to govern men, neither external nor internal controls on government would be necessary.”

But, as Madison reminded us, men are no angels, and government is “administered by men over men.” Grounded in a proper understanding of human nature, our Founders tackled this challenge head-on with a brilliant Constitution and a healthy separation of powers, binding all men to the same set of laws and preventing any one man or group of men from gaining enough power to declare themselves above the law.

Do read the whole thing.

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“This court is unwilling to declare that there is a fundamental right to consume the food of one’s choice without first being presented with significantly more developed arguments on both sides of the issue.”

“no, Plaintiffs to not have a fundamental right to own and use a dairy cow or a dairy herd;

“no, Plaintiffs do not have a fundamental right to consume the milk from their own cow;”

“no, Plaintiffs do not have a fundamental right to produce and consume the foods of their choice…”

If Americans don’t have a fundamental right to produce and consume the foods of their choice, what rights do they have?

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“Caylee’s Law,” a proposed federal bill that would charge parents with a felony if they fail to report a missing child within 24 hours, or if they fail to report the death of a child within an hour.

Radley Balko points out the many reasons that such a law would be a stupendously bad idea, verging on being evil itself.

In an interview with CNN, Crowder concedes that she didn’t consult with a single law enforcement official before coming up with her 24-hour and 1-hour limits. This raises some questions. How did she come up with those cutoffs? Did she consult with any grief counselors to see if there may be innocuous reasons why an innocent person who just witnessed a child’s death might not immediately report it, such as shock, passing out, or some other sort of mental breakdown? Did she consult with a forensic pathologist to see if it’s even possible to pin down the time of death with the sort of precision you’d need to make Caylee’s Law enforceable? Have any of the lawmakers who have proposed or are planning to propose this law actually consulted with anyone with some knowledge of these issues?

What if a child dies while sleeping? When would you start the clock on the parent’s one-hour window to report? From the time the parent discovers the child is dead, or from the time the child actually dies? If it’s the former, can you really believe what a parent tells you if he knows a felony charge hinges on his answer? What if a parent or babysitter missed the deadline because she fell asleep at the time the child was playing outside and suffered a fatal accident? You could argue this is evidence of bad parenting or inattentive babysitting, but under those circumstances, do you really want to charge a grieving parent or heartbroken babysitter with a felony?

The portion of the bill that requires a parent to report a missing child within 24 hours is just as fraught with problems. When does that clock start? From the time the child actually gets abducted, gets lost, or is somehow killed, or at the time the parents noticed the child was missing? How do you pinpoint the time that they “noticed”? When teenager Rosie Larsen is abducted and murdered in the new AMC drama The Killing, it takes two days for her parents to notice she’s missing. They thought she was spending the night at a friend’s house, and she and her friends often rotated sleeping over at one another’s homes on the weekends. The Killing is fiction, but this isn’t an implausible scenario. Again, are we really so angry about the Casey Anthony verdict that we’re prepared to charge grieving parents with a felony because it takes them longer than some arbitrary deadline to notice their child is missing?

The law and the attention it attracts could also cause problems of overcompliance. How many parents will notify the authorities with false reports within an hour or two, out of fear of becoming suspects? How many such calls and wasted police resources on false alarms will it take before police grow jaded and begin taking note of missing child reports, but don’t bother investigating them until much later? How many legitimate abductions will then go uninvestigated during the critical first few hours because they were lost in the pile of false reports inspired by Caylee’s Law?

It isn’t difficult to come up with other scenarios where innocent people may get ensnared in Caylee’s Law.

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Assertions by the prosecution that Casey Anthony conducted extensive computer searches on the word “chloroform” were based on inaccurate data, a software designer who testified at the trial said Monday.

The designer, John Bradley, said Ms. Anthony had visited what the prosecution said was a crucial Web site only once, not 84 times, as prosecutors had asserted. He came to that conclusion after redesigning his software, and immediately alerted prosecutors and the police about the mistake, he said.

The finding of 84 visits was used repeatedly during the trial to suggest that Ms. Anthony had planned to murder her 2-year-old daughter, Caylee, who was found dead in 2008. Ms. Anthony, who could have faced the death penalty, was acquitted of the killing on July 5.

The already weak circumstantial evidence for a “murder” verdict is now even weaker. I still think there’s plenty of evidence to convict Ms. Anthony of being a horrible parent. But that’s not the same thing as proving, beyond any reasonable doubt, that she acted with deliberate premeditation to commit murder. Losing this piece of evidence just makes those doubts all the more reasonable.

Gandolf’s words to Frodo, from the Fellowship of the Ring still ring hauntingly true.

Many that live deserve death. Some that die deserve life. Can you give it to them, Frodo? Do not be too eager to deal out death in judgment. Even the very wise cannot see all ends.

For the second time in a year, Lawrence County Children and Youth Services has been accused in a federal lawsuit of removing a child from a mother’s custody after a positive test for opiates allegedly triggered by poppy seeds.

Eileen Ann Bower, a Lawrence County resident whose residence and age were not provided, gave birth to a son, Brandon, on July 13, 2009, according to a complaint filed late Friday. She was stunned, it said, when a blood test at Jameson Hospital came back positive for opiates.

Brandon was taken into foster care three days after his birth, it said, and only returned on Sept. 29. In the interim, Ms. Bower came to the conclusion that the test must have come back positive due to her ingestion, at her last meal before childbirth, of Salad Supreme dressing with poppy seeds . . .

As a repeatedly new parent, I have a hard time imagining a worse thing. This mother has had her right to due process of law violated rather blatantly. There was no evidence that chain of custody was preserved with her blood sample: do we know that the blood that was tested was actually hers? There was no evidence that the sample was collected appropriately: was it tainted somehow during the drawing process? There was no evidence presented that the traces in the blood were actually from opiates: could the traces have actually been from poppy seeds?

None of this evidence was presented, this mother was not convicted after receiving due process of law, and she wasn’t legally sentenced to losing custody of her child. No, the county agency took one look at one lab test and immediately assumed that they knew what was going on.

That’s wrong and it needs to stop. This is the second time that Pennsylvania county has done this. As Glenn Reynolds is apt to say: “Tar. Feathers.” That’s what will make this kind of abuse of power stop.

(Thanks to Radley Balko for the link.)

At the time, I thought that their case was exceedingly weak and more in the vein of a stupid Hail Mary attempt than a serious effort at practicing law. Today, I saw that the United States Court for the Western District of Wisconsin appears to agree with me. They denied the unions’ request for a temporary restraining order and/or preliminary injuction in quite plain terms. Check out the ruling [PDF].

If you don’t read the ruling, the breakdown of their argument shows you pretty clearly what they think. It’s not a final ruling yet but, if this is representative of what the court is thinking, the final ruling could be even more fun.

• “There Is A Rational Basis For The Differing Treatment Of General Employees And Public Safety Employees”
• “Plaintiffs’ Attempt To Reduce Act 10 To Crass Political Payback Fail”
• “Plaintiffs Have No Probability Of Success On The Merits Of Their First Amendment Claim, As That Claim Is Without Merit”
• “Plaintiffs Misstate The Nature Of Their Alleged Irreparable Harm”
• “The State And The Public Interest Will Suffer Great Irreparable Harm By The Issuance Of A Preliminary Injunction”
• “Plaintiffs Seek To Alter The Status Quo, Not Maintain It, By Asking For A Remedy That Will Result In A Completely New Set Of Collective Bargaining Statute”

The ruling is all kinds of good fun.

In less than two years, Barnett, 59, has accomplished what few law professors ever manage to do: make an arcane constitutional argument so compelling and clear that it becomes part of the national conversation.

But what makes Barnett unique is how his influence has extended beyond the elite circle of litigators fighting the health care law and into the grass roots. He has helped members of the tea party movement and supporters on Capitol Hill formulate a proposed constitutional amendment that would authorize the repeal of laws enacted by Congress to which two-thirds of the states object. While its chances of being adopted are slight, that effort, and his work against the health care law, has made Barnett an intellectual favorite of House Republicans.

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It depends. It depends on which rights you’re talking about and on which rights the law covers.

There are two kinds of rights. The first kind is negative rights. Negative rights either permit you to be inactive or require someone else to be inactive towards you. For example, free speech is a negative right. It allows you to speak, or not, as you choose. It requires the government to be inactive whether or not you speak: the government may not force you to speak and the government may not prevent you from speaking. The right to a free press is another negative right. The government may neither force something to be printed in the press nor may it prohibit the press from printing something.

The second kind of rights is positive rights. Positive rights either require you to be active or require someone else to be active towards you. For example, universal education is a positive right. The government requires you to attend a school of some sort and the government requires someone to provide a school for you. Generally, the government directly provides schooling by forcibly requiring citizens to pay taxes and then using those tax dollars to pay for a school. The “right to health care” is another example of a positive right. If you are unable to purchase your own health care services, the government requires someone else to purchase them for you.

The positive right is distinguished from the negative right in that it requires you — or someone else — to be active. It places a burden on you or on someone else. Very broadly speaking, negative rights force others to stay out of your way, as you live your life and make decisions. Positive rights force others to provide for you (as needed), as you live your life and make decisions.

How does this apply to labor and labor law? Well, unions can either benefit from negative rights or positive rights. Under negative rights, individual workers are free to negotiate directly with employers for their pay and benefits. They are also free to associate with other individual workers and form a bargaining group. They are then free to attempt to negotiate as a group, for pay and benefits. They can invite others to join the group at any time and workers are free to leave the group at any time. The guiding rights principle is inaction: no worker can force another to join nor prohibit another from leaving.

Likewise, employers are free to negotiate with the group or to choose to negotiate with workers individually. Once again, the principle is inaction. No employee can force the employer to negotiate with the larger group. Likewise, no single employee can force the employer to stop negotiating with the larger group.

The negative right to labor allows both the worker and the employer to negotiate individually or through a group, whatever they both prefer. It prevents either side from coercing the other side.

Under positive rights, individual workers are not free to negotiate directly with employers for their pay and benefits. They must only negotiate as part of a larger group. All new workers must accept what the group has negotiated and must only negotiate through the group. No worker may negotiate individually as long as he stays in that job.

Likewise, employers are not free to bargain with individual workers. They must negotiate (active principle) with the group. They may not negotiate with any other group of employees — only with the original group. If the group of workers stops working (goes on strike), the employer may not seek out other groups of employees, to see if they would be willing to work for the original conditions, pay, and benefits. This gives the group a monopoly control over the employer’s supply of labor.

The positive right to labor forces both the worker and the employer to negotiate only through a group. It actively forces both sides into a specific association.

In Wisconsin, public employee unions are an example of labor law under positive rights. Employers are required to negotiate with the appropriate union and forbidden to negotiate individual contracts with workers. Employees are not required to join the union but they are required to pay all union dues that union members have to pay and are required to abide by the terms of the current collective bargaining agreement.

Take, as an example, an individual with a PhD in history who would like to work as a high school teacher in Madison’s public schools. Under the terms of the collective bargaining agreement with Madison Teachers Inc, the school district must pay that teacher a minimum annual salary of $41,036. (I think. The exact details of the salary portions of that agreement are not entirely clear to me.)

For most employees, this is probably a good thing. Most employees are eager to get the maximum possible salary. Most employees probably feel that even this salary is too low and that they deserve more. But that’s most employees in most scenarios.

Consider an alternate scenario. What if the district can’t afford another teacher at that level? The teacher may wish to work for less, in the interests of having a job. (Or, he may have other income to live on and may wish to take the job for less in the interests of melding the bright, young minds of tomorrow.) But he’s not free to work for a different salary and the school district isn’t free to pay him a different salary if he requests it.

Consider another alternate scenario. Consider a worker who does not agree with the political stance of her union, preferring different political goals and outcomes. Under current law, she is forced to contribute union dues to that organization anyway. (For a Wisconsin teacher, this can be $700-1000 a year.) Each year, she is forced to watch as the union gives that money to politicians that she disagrees with and uses that money to oppose politicians that she does agree with. Her co-workers’ positive rights to her union dues limit her negative rights to support candidates that she agrees with.

The positive rights to a union limit an employee’s negative rights to decide what terms to work under and what to support. I value negative rights far more highly than I value positive rights. For that reason, I believe unions do not increase the rights of the workers, they decrease them. I favor modifying labor law to restore workers’ negative rights.

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power…. However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance. It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not “acting,” especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something. They are two sides of the same coin. To pretend otherwise is to ignore reality.

So, if you don’t make the “right” choice on your own, Congress can step in to mandate that you do make the right choice. If that’s not thought regulation, I don’t know what is.

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Wisconsin law governs public sector unions. Specifically, Chapter 111 governs Employment Relations. Subchapter I deals with keeping the peace, Subchapter IV deals with municipal employment relations, and Subchapter V deals with State employment relations.

Chapter 111.01 deals with the general goals of the law. One of the primary goals is to keep the peace between workers and employers, to the benefit of everyone else.

111.01(2)

Industrial peace, regular and adequate income for the employee, and uninterrupted production of goods and services are promotive of all of these interests. They are largely dependent upon the maintenance of fair, friendly, and mutually satisfactory employment relations and the availability of suitable machinery for the peaceful adjustment of whatever controversies may arise. … It is also recognized that whatever may be the rights of disputants with respect to each other in any controversy regarding employment relations, they should not be permitted, in the conduct of their controversy, to intrude directly into the primary rights of 3rd parties to earn a livelihood, transact business, and engage in the ordinary affairs of life by any lawful means and free from molestation, interference, restraint, or coercion.

It’s pretty clear that one of the goals of allowing public employees to unionize was to ensure that disputes could be handled in an orderly way, without inconveniencing everyone who depends on the work that the state and municipal employees do.

As the law continues, Chapter 111.06 starts to lay out what “unfair labor practices” are, both for the employer (1) and for the employee (2). I’ll quote some of the unfair labor practices, for employees.

(c) To violate the terms of a collective bargaining agreement, including an agreement to accept an arbitration award.

I’d argue that, per the terms of the CBA for Madison’s teachers, calling in sick to attend a protest meet this definition of an unfair labor practice.

(e) To cooperate in engaging in, promoting or inducing picketing that does not constitute an exercise of constitutionally guaranteed free speech, boycotting or any other overt concomitant of a strike unless a majority in a collective bargaining unit of the employees of an employer against whom such acts are are primarily directed have voted by secret ballot to call a strike.

Given that no strike has been called, I think the teachers who — by their absence — forced schools to close have engaged in unfair labor practices towards their fellow teachers. The teachers are arguing that their actions are merely an exercise of constitutionally guaranteed free spech. I don’t know that I agree. Not when a large minority of teachers are acting collectively, with the approval and encouragement of the union, to shut down the schools.

Now, let’s move specifically to Subchapter IV, Municipal Employees. Section (1)(i) and (1)(j) make it clear that teachers are muncipal employees since they are employed by school districts. Section (1)(nm) defines a strike, for municipal employees.

“Strike” includes any strike or other concerted stoppage of work by municipal employees, and any concerted slowdown or other concerted interruption of operations or services by municipal employees, or any concerted refusal to work or perform their usual duties as municipal employees, for the purpose of enforcing demands upon a municipal employer. Such conduct by municipal employees which is not authorized or condoned by a labor organization constitutes a “strike”, but does not subject such labor organization to the penalties under this subchapter.

What we had in Madison last week was a concerted stoppage of work by municipal employees for the purpose of enforcing their demands that the Governor alter the Budget Repair Bill. Because the unions didn’t call a strike, the union itself isn’t subject to penalties but individual teachers could be. Because the teachers were demonstrating against the State, not the municipal employer, their actions do not directly meet the definition of a strike.

Section (3)(b)(4) repeats the general prohibition against violating the current CBA. Section (4)(L) bans strikes by municipal employees.

Except as authorized under par. (cm) 5. and 6. c., nothing contained in this subchapter constitutes a grant of the right to strike by any municipal employee or labor organization, and such strikes are hereby expressly prohibited. Paragraph (cm) does not authorize any strike after an injunction has been issued against such strike under sub. (7m).

Section 7m lays out the process for ending a strike.

Section (7m)(a)

At any time after the commencement of a strike which is prohibited under sub. (4) (L), the municipal employer or any citizen directly affected by such strike may petition the circuit court for an injunction to immediately terminate the strike. If the court determines that the strike is prohibited under sub. (4) (L), it shall issue an order immediately enjoining the strike, and in addition shall impose the penalties provided in par. (c).

Section (7m)(c)(2)

‘Individuals.’ Any individual who violates sub. (4) (L) after an injunction against a strike has been issued shall be fined $10. Each day of continued violation constitutes a separate offense. After the injunction has been issued, any municipal employee who is absent from work because of purported illness is presumed to be on strike unless the illness is verified by a written report from a physician to the municipal employer. The court shall order that any fine imposed under this subdivision be paid by means of a salary deduction at a rate to be determined by the court.

The Madison School District thought that these sections of law applied. They filed suit on Friday, in Dane County Circuit Court, to have the work stoppage declared a strike and to get an injunction against the strike. MTI, the local union, did argue that the stoppage wasn’t a strike.

In court, MTI lawyer Lester Pines argued it was not a strike because the union made no demands against the district, a requirement for a strike under state law.

Instead, he said, teachers were exercising their First Amendment right to express their feelings about Gov. Scott Walker’s plan to limit collective bargaining.

“To do so they may be subjecting themselves to discipline, to having their pay docked, but they are making that choice individually,” Pines argued.

A hearing was scheduled for Monday morning but it was canceled / postponed when the teachers indicated that they would return to work on Tuesday.

I’m forced to agree that the teachers weren’t technically striking, since they were protesting the actions of the State not the actions of the Madison School District. Morally, I believe the unions did engage in a strike. It didn’t, quite, meet the legal definition of a strike but it came right up to the boundary. The State doesn’t directly employ teachers but it does set the overall policy and rules for how school districts employ teachers. Thus, I think of the State as a related employer (a grandparent employer?). The arguments presented during the last 6 days of protest certainly sound like the arguments that striking employees would make against an employer. These demonstrations were done for the purpose of demonstrating the unions’ power and attempting to force the government — at all levels — to agree to their demands.

I do believe the individual teachers are guilty of violating 111.70(3)(b)4. They’re only innocent of violations to 111.06(2)(e) because their demonstrations were against the State instead of the municipal government.

So, I was wrong. Legally, the unions are clear. The individual teachers are guilty only of violating their own collective bargaining agreement.