Stock Photo of the Consitution of the United States and Feather Quill

President Obama,

As a former university lecturer on the subject of the U.S. Constitution, you know the Federal Constitution is fundamental law which cannot be changed by legislation.

You also know that the Amendments to the Constitution cannot be changed by legislation because they are also fundamental law.

You know through your studies, the Second Amendment was not written to protect hunting rights.  Nor was it written to allow citizens to protect themselves from criminal attack.

The Second Amendment was written as a means by which citizens (and States) could protect themselves from the federal government taking from them what does not belong to the federal government.

If the Federal Executive is intent on proposing changes to the Second Amendment, it may not be done by legislation.  However, there is a process for making changes to the Constitution which is described in Article 5 of the Constitution.

To make a change to the Constitution (or a previously enacted Amendment) all you need is a “Yes” vote from two-thirds of the members of the U.S. House of Representatives, two-thirds of the members of the U.S. Senate, and a “Yes” vote from three-quarters of the State Legislatures and you can have it your way.  Until then, the Constitution stands as fundamental law.

Lee A. Presser

[email protected]


This morning, the U.S. Supreme Court affirmed the constitutionality of the Affordable Care Act (a.k.a., ObamaCare.) In a twist, rather than finding that the law’s mandate was constitutional under the Commerce Clause (as both the government and plaintiffs asserted) the majority determined that the government’s power to tax — here, to tax not having insurance — saved the law.

In a surprise conclusion to a constitutional showdown, Chief Justice John Roberts joined the Supreme Court’s four liberals Thursday to uphold the linchpin of President Barack Obama’s health plan, the individual mandate requiring citizens to carry insurance or pay a penalty.

By a 5-4 vote, the court held the mandate valid under Congress’ constitutional authority “to lay and collect Taxes” to provide for “the general Welfare of the United States.” The penalty for failing to carry insurance possesses “the essential feature of any tax,” producing revenue for the government, Chief Justice Roberts wrote.

It is difficult to understate the importance of this ruling, now and for the future. In the short term, the core of the Affordable Care Act stands, meaning Americans will still be subjected to one of the most coercive and leviathan government programs enacted in recent memory. Tens of millions will likely lose their current insurance plans, and young people will be especially affected by the law’s provisions. But the Court has also found that the mandate is a tax, meaning that repeal of the law could be as easy as passing a budget bill without the mandate, or the law, in it.

The long-term effects, however, are not irrelevant here. The Supreme Court also found that there was no constitutional basis for the mandate under the Commerce Clause. There are, as it turns out, limits to what the government can regulate under Article I Section 8 of the Constitution. That is a positive thing. Also, the provisions that forced states to expand their Medicaid programs were deemed impermissible under Congress’s spending power, meaning states will not have to choose between expanding their Medicaid eligibility or losing federal funding for their entire Medicaid programs. Those two findings from a policy standpoint are successes, although under the current disappointing circumstances may not seem all that apparent.

This outcome stands as a huge disappointment, but this is not over. Now the solution for turning ACA back has moved in a decidedly legislative direction. Elected officials will have plenty on their plates to consider over the next year when it comes to keeping or spiking the health care law.

After all, according to the justices, Congress enacted a gigantic tax when they implemented ObamaCare. The question now is whether Americans want to pay it.


Word came yesterday afternoon that the Missouri House Health Insurance Committee has finally voted to send a key piece of legislation to the full House for consideration before the close of this year’s legislative session, which ends Friday. This is the same legislation — which the Missouri Senate already passed — that Christie Herrara and I wrote about in March which, if implemented, would block the unilateral implementation of the ObamaCare exchange in the state. I expect the referendum to pass swiftly through the lower chamber and for voters to approve the measure when the question is posed to them later this year.

The process was not without its share of drama, of course. The hearing for the bill before the House Committee was held at the end of March, leaving the bill with little margin for error to get the required votes done before the legislature adjourns. But whatever the reason for the delay, the committee deserves credit for getting the job done. On to the full House.


More than a third of the state of Missouri — 24,870 square miles — is in enhanced enterprise zones (EEZ), areas that must be declared blighted in order to be created. The enhanced enterprise zones cover an area the size of West Virginia. These zones are appealing to local governments because businesses in the area become eligible for certain state and local tax incentives. But regardless of the desirability of enhanced enterprise zones, the notion of blight has lost substantial meaning when it characterizes a third of the state.

Blight is not benign. It can lead to eminent domain abuse. As long as it is this easy to blight a property, no home or business is safe. This is the fear of CiViC, the citizen group that has arisen in Columbia, Mo., to resist the EEZ being considered there. The group fears the city’s blight declaration will lead to eminent domain abuse.

EEZs are in red (map as of 2011)

EEZs are in red (zone boundaries as of 2011)

Consider: the definition of blight for the purpose of establishing an EEZ is exactly the same as the definition of blight for statutes explicitly granting eminent domain privileges. The implication is it can be just as easy to declare blight for eminent domain as it has been to declare enhanced enterprise zones in more than a third of the state.

Clearly, it is time to reform the definition of blight and separate it from the use of eminent domain. This separation has been granted to farmland, and it should be extended to all types of property.


I do not smoke. But I am curious about radio ads that are advocating for stronger anti-smoking laws in Saint Louis County. The ads, which come from a group called Let’s Face It, are creative – and alarming. Consider this line from one of the ads:

There are still workplaces in St. Louis County that legally allow smoking. . . . let’s truly eliminate second-hand smoke in the workplace. It’s better for all of us.

Saint Louis County recently passed an expansive anti-smoking ordinancethe law includes exemptions for bars and casinos. The owners of those establishments felt that if smoking was not permitted, they would go out of business. I attended one of the hearings when the Saint Louis County Council was considering the partial ban. Several bar and restaurant owners told officials they feared their businesses would close or they would have to lay off employees if customers were not allowed to smoke.

Well, it turns out that more than $7.5 million in federal stimulus money is funding those radio ads and advocacy efforts to eliminate exemptions. According to the website, federal stimulus money has gone to Let’s Face It’s anti-exemption campaign. In its report to the federal government, Let’s Face It noted that it hopes to “place amendment on council agenda,” “remove exemptions from current ordinance,” and  ”increase the number of County municipalities that enact smokefree [sic] policies that exceed the comprehensive County-wide policy. . .”

The group has also partnered with the St. Louis Rams, and ran anti-smoking advertisements during the Rams’ Dec. 18, 2011, home game. In its report to the federal government, Let’s Face It claims to have created 38.16 jobs associated with this campaign. Some of those jobs are associated with $2 million that went to Fleishman-Hillard (four jobs) and $175,000 that went to the St. Louis Cardinals (actually, no jobs are claimed to be created with the money directed to the Cardinals).

The Show-Me Institute has made the case that customers (and employees) have the freedom to choose what bars and restaurants they frequent. The argument that customers or employees are somehow trapped at a venue that allows smoking is a smokescreen, at best.

But federal funding of advocacy efforts goes even further. If the anti-second-hand smoking argument is a good one, then why aren’t private associations and nonprofits stepping up to make the case? Why does the federal government have to fund an advocacy campaign?

What is next, Fannie Mae funding an organization that advocates for land banking legislation? Or federal stimulus money being used to fund similar advocacy campaigns throughout the United States against soda?

Stressed Schoolboy with Head in Hands

In February, I wrote about a bill that would renew an onerous mandate on kindergartner and first grader eye exams in Missouri: a mandate which only two other states in the country impose. I voiced my concerns about the bill, not only because of the costs it would unnecessarily impose on Missouri families — health insurance does not typically cover the eye exams and they generally would have to be paid out of pocket — but because of the inconsistency inherent in a state imposing one health mandate while vociferously opposing another health mandate that the federal government is imposing. Earlier this month, I even delivered testimony about the proposal before the Senate Education Committee, which was considering whether to send the proposed law to the floor of the Missouri Senate. Since then, I have been following the issue closely.

Well, yesterday the Education Committee told Missouri families where it stands, voting to not send the bill to the full Senate for further consideration, meaning the bill is effectively dead — for now, anyway. The House is still considering substantially similar legislation, and there are technical pathways through which this legislation could be resurrected or otherwise attached to other bills, and thus reconsidered. I will be on the lookout for all such activities, but the good news is that the prospects for the bill are now very bleak.

Kudos, Senators. There are more effective and efficient ways of promoting eye health for Missouri’s children than through the mandate contemplated here. The Committee made the right decision.


Next week, the United States Supreme Court will hear oral arguments on the Patient Protection and Affordable Care Act (PPACA,) the huge health care overhaul that Congress passed two years ago this month. One of the main talking points in favor of the legislation at the time was that it would improve the economy. However, as the Washington Examiner reports, the White House implicitly backed off that claim this week. Indeed, evidence from the Congressional Budget Office suggests the law will actually reduce employment, not increase it.

PPACA’s negative economic effects only compound the problems of a slow recovery in which young people in particular are hurting financially. The official unemployment rate in the United States is 8.3 percent, but for people ages 16-25, it is almost double that, at 16.5 percent. The Wall Street Journal describes the situation as “Generation Jobless,” and while college graduates have better opportunities than non-college graduates, they are still making less and saving less than if they had graduated in better economic times. There is no doubt that people of all ages are suffering, but unemployment during some of the most important wealth-building years could be disastrous when today’s young adults are ready to retire — both personally and for the country.

Unfortunately, PPACA only worsens the situation because it raises taxes. Yesterday, Americans for Tax Reform highlighted the (at least) four tax hikes contained in PPACA which hurt young people. The first two are especially troubling to me: the “excise tax,” for not buying a government-approved insurance plan; and the “medicine cabinet tax,” which prevents people from using flex accounts and Health Savings Accounts to pay for non-prescription, over-the-counter medicine. The former penalizes people for not purchasing a government-approved health insurance plan; the latter reduces choice and flexibility with one’s personal health dollars.

Young people are less likely to draw deeply on prescription medication benefits or other health care services than older and less healthy policyholders. The result? The government forces young people to pay for insurance plans that they do not need and will not use, and prevents them from taking full advantage of HSAs — health care dollars they would control and manage as part of their own personal budgets. Essentially, the government is forcing young people to subsidize the health care of others during some of their most economically fragile years.

That is bad policy and bad news for young people. PPACA may be marketed as “reform,” but it harms young people, who already are hurting economically, by raising costs and reducing choice.

Stressed Schoolboy with Head in Hands

In 2010, the Missouri Supreme Court held in Turner v. School District of Clayton that state law requires unaccredited school districts to pay the tuition of its students who choose to attend an accredited school in an adjoining district. The Turner mandate clarifies the rights of Missouri students stuck in failing schools, but as we reported here and here, implementing Turner has been no easy task. Suburban districts simply do not have the resources to accommodate all of the urban students from Saint Louis and Kansas City who want to transfer.

Herein lies the problem: students want to transfer, and have the right to transfer; but accredited schools cannot accommodate all of them. The “Passport Scholarship Program,” which Missouri Rep. Scott Dieckhaus (R-109) and Missouri Sen. Jane Cunningham (R-7) introduced in their respective houses, addresses at least part of this conflict. The program promotes school choice in the purest form, and could ease the burden that Turner created for suburban schools in the Saint Louis and Kansas City areas.

Under the Scholarship Program, private Missouri taxpayers would receive a tax credit for donating money to any “educational assistance organization,” which must be private, non-profit, charitable organizations. The educational assistance organizations would administer the donations, and distribute money to eligible students in the form of tuition scholarships. Any student residing in an unaccredited district could then apply for a scholarship to attend any qualifying private school in Missouri.

The Passport Scholarship Program has great potential for success in Missouri because it is a market-orientated solution that limits state involvement. Individual taxpayers personally decide whether to donate,  and the educational assistance organizations administer the funds privately. The government has only a minor oversight role in the process. And students could apply the funds to any private school, religious or not, because the Blaine amendment does not affect private scholarships. Any student receiving a scholarship could actually go to the school of his or her choice. So if our goal is school choice — and it should be — the Passport Scholarship Program is a step in the right direction for students stuck in failing schools.


St. Louis resident Jim Roos, in front of the offending sign. <p>Photo by the Institute for Justice.

St. Louis resident Jim Roos, in front of the offending sign. Photo by the Institute for Justice.

Good news for Saint Louisans: That “End Eminent Domain Abuse” sign that you can see at the intersection of Hwys. 44 and 55 is here to stay. In a partial free speech victory, the U.S. Supreme Court declined to hear the appeal of a circuit court ruling that struck down portions of Saint Louis City’s sign code for violating the free speech clause of the First Amendment.

For those of us in the Midwest, this is great news. This means that government cannot regulate signs and murals based on their content. And, as a result, the St. Louis Post-Dispatch reports that the offending portion of the city’s zoning code may have to be rewritten.

This is also a meaningful victory for anti-eminent domain activists in Saint Louis. Jim Roos, the plaintiff (pictured above), has had more than his fair share of struggles with city government. Using eminent domain, the city took 24 different properties from Sanctuary in the Ordinary, or managed by Neighborhood Enterprises, a nonprofit that provides low-income housing that Roos founded.

In protest, Roos painted the large “End Eminent Domain Abuse” sign on another property threatened with eminent domain. As a result, the city hit Roos with a citation, and said that a permit was required. He applied for a permit, only to be denied.  We wrote about this issue in 2011, in a post aptly titled, “Using Your Property to Criticize Us for Taking Your Property? You’d Better Believe That’s Illegal.”

Fortunately, Roos  and the Institute for Justice, a nonprofit libertarian public interest law firm, continued to challenge the city’s zoning code, leading to the partial free speech victory today.

Those of us in the 8th Circuit (Missouri, Arkansas, Iowa, Minnesota, Nebraska, North Dakota, and South Dakota) can take solace in knowing that our First Amendment rights are a little more secure. However, as Michael Bindas, the Institute for Justice attorney who represents Roos, pointed out, “Unfortunately, citizens in some other federal circuits do not enjoy the same protections that Jim’s case secured.”

Hopefully this case will help give victims of eminent domain abuse the courage to stand up and complain about it. Of course, the best victory for property owners would be for laws that allow eminent domain abuse to be repealed.

You can learn more about Jim Roos and the Institute for Justice here.


This is an article re-printed from CATO by David Boaz. Wednesday is the real birthday of George Washington.


Why We Honor George Washington

Today is some vaguely named “Presidents’ Day,” but Wednesday is the anniversary of George Washington’s birth. So it’s a good day to remember the contribution he made to the American republic. I wrote this several years ago:

George Washington was the man who established the American republic. He led the revolutionary army against the British Empire, he served as the first president, and most importantly he stepped down from power.

John Trumbull, “General George Washington Resigning His Commission”

In an era of brilliant men, Washington was not the deepest thinker. He never wrote a book or even a long essay, unlike George Mason, Thomas Jefferson, James Madison, Alexander Hamilton, and John Adams. But Washington made the ideas of the American founding real. He incarnated liberal and republican ideas in his own person, and he gave them effect through the Revolution, the Constitution, his successful presidency, and his departure from office.

What’s so great about leaving office? Surely it matters more what a president does in office. But think about other great military commanders and revolutionary leaders before and after Washington—Caesar, Cromwell, Napoleon, Lenin. They all seized the power they had won and held it until death or military defeat.

John Adams said, “He was the best actor of presidency we have ever had.” Indeed, Washington was a person very conscious of his reputation, who worked all his life to develop his character and his image.

In our own time Joshua Micah Marshall writes of America’s first president, “It was all a put-on, an act.” Marshall missed the point. Washington understood that character is something you develop. He learned from Aristotle that good conduct arises from habits that in turn can only be acquired by repeated action and correction – “We are what we repeatedly do.” Indeed, the word “ethics” comes from the Greek word for “habit.” We say something is “second nature” because it’s not actually natural; it’s a habit we’ve developed. From reading the Greek philosophers and the Roman statesmen, Washington developed an understanding of character, in particular the character appropriate to a gentleman in a republic of free citizens.

What values did Washington’s character express? He was a farmer, a businessman, an enthusiast for commerce. As a man of the Enlightenment, he was deeply interested in scientific farming. His letters on running Mount Vernon are longer than letters on running the government. (Of course, in 1795 more people worked at Mount Vernon than in the entire executive branch of the federal government.)

He was also a liberal and tolerant man. In a famous letter to the Jewish congregation in Newport, Rhode Island, he hailed the “liberal policy” of the United States on religious freedom as worthy of emulation by other countries. He explained, “It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens.”

And most notably, he held “republican” values – that is, he believed in a republic of free citizens, with a government based on consent and established to protect the rights of life, liberty, and property.

From his republican values Washington derived his abhorrence of kingship, even for himself. The writer Garry Wills called him “a virtuoso of resignations.” He gave up power not once but twice – at the end of the revolutionary war, when he resigned his military commission and returned to Mount Vernon, and again at the end of his second term as president, when he refused entreaties to seek a third term. In doing so, he set a standard for American presidents that lasted until the presidency of Franklin D. Roosevelt, whose taste for power was stronger than the 150 years of precedent set by Washington.

Give the last word to Washington’s great adversary, King George III. The king asked his American painter, Benjamin West, what Washington would do after winning independence. West replied, “They say he will return to his farm.”

“If he does that,” the incredulous monarch said, “he will be the greatest man in the world