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Why Rubio’s and Abbott’s Constitutional Convention Is A ‘No Good Very Bad’ Idea January 13, 2016

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Senator and presidential candidate Marco Rubio and, more recently, Texas Governor Greg Abbott have each proposed calling an Article 5 constitutional convention (a convention of the states).  If I may borrow from children’s book author Judith Viorst’s description of Alexander’s bad day:  This idea is “terrible, horrible, no good, very bad.”  But we are likely to be spared the worst of it because it is also a non-starter which even its proponents surely recognize is pure political rhetoric and not a serious policy proposal.

Article 5 of the U.S. Constitution tells how the document may be changed over time through the amendment process.   Congress is in charge of the process, which can occur in one of two ways:  (1) Two-thirds of both houses of Congress may propose an amendment which, in turn, must be ratified by three-fourths of the state legislatures; or (2) Congress may, upon the application of the legislatures of two-thirds of the states, call a convention for proposing amendments which, again, would only be adopted if approved by three-fourths of the state legislatures.

It is the second route, a convention—which has never been tried before—that Rubio and Abbott propose be taken.  Rubio, who actually opposed this earlier, has provided a broad endorsement on the campaign trail to seek a balanced budget amendment and term limits for members of Congress.  Abbott, by contrast, has developed a lengthy shopping list of 9 amendments (nearly equaling the original Bill of Rights in the first ten amendments) that would do all kinds of things to limit federal power:  empower two-thirds of states to override a Supreme Court decision, prohibit agencies from “creating federal law,” allow a two-thirds majority of the states to override a federal law and so on.  It is not unlike a similar proposal from radio host Mark Levin when his book, The Liberty Amendments (2013), advanced 10 amendments that would be adopted by a convention to save the republic.

This is the right’s idea of an instant solution to decades of growth in federal power.  Let’s just add a bunch of amendments to the Constitution that will tie the hands of Gulliver in Washington.  Oh that it could be that easy.  But there’s a reason this has never been done:  34 states will not agree to call such a convention and 38 states will not approve such amendments.  It is so wildly improbable that I think it’s fair to say that Rubio and Abbott must be advancing it as political posturing.  There is “no there there.”

Further, if such a convention ever got traction, under the law of unintended consequences, it would be as likely to do mischief as good.  Article 5 is entirely vague about the details of such a convention.  Proponents assert that it could be limited to the purposes and amendments that brought it into being, but there is nothing in Article 5 to support that and nothing in the law to prevent other issues coming to the fore.  Liberals have said they would like to overturn the Citizen’s United Supreme Court case, for example—no reason that couldn’t be inserted into the proceedings, along with everyone else’s pet ideas.  Justice Scalia put it succinctly:  “I certainly would not want a constitutional convention.  Whoa!  Who knows what would come out of it.”  Former Chief Justice Warren Burger wrote that such a convention “would be a free-for-all for special interest groups.”

Article 5 makes it difficult to amend the Constitution for good reason:  it should be exceptional to change the rules of the road.  The history of the liberal left has been to find work-arounds to avoid the high bar of the amendment process.  All of Franklin Roosevelt’s sweeping New Deal revolution was carried out with no constitutional amendments, for example, only liberal interpretations of the law by judges.  The National Popular Vote Bill, which seeks to circumvent the Electoral College by requiring all electors to vote for the winner of the national popular vote, is another work-around of the Constitution.

It’s disappointing, however, when conservatives, who should be respectful of the Constitution and willing to do the hard, long political work of protecting it, instead offer the false hope of instant gratification by foolishly proposing a modern constitutional convention.


To read the column at Forbes.com:  http://www.forbes.com/sites/daviddavenport/2016/01/13/why-rubio-and-abbotts-constitutional-convention-is-a-no-good-very-bad-idea/#2715e4857a0b1cf9b1c74f1d


Court Halts Environmental Overreach (National Radio Commentary, Salem/Townhall) November 3, 2015

Posted by daviddavenport in Op/Eds.
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Fortunately, federal courts have been stepping up to challenge President Obama’s overreach of executive powers, whether in recess appointments or immigration policy. Now it’s happening in the environmental field as well.

Recently a federal circuit court issued an injunction against enforcement of the EPA’s Clean Water Rule, which would have placed hundreds of millions of acres of additional land under federal regulation.

If water trickled any time of year anywhere near an ocean, river or creek, the EPA wanted to call those “living waters of the United States”.

This follows a similar case a few months ago in which the Supreme Court struck down a regulatory expansion of the Clean Air Act.

When the history is written, the Obama administration will be known for two things:  Obamacare and the abuse of executive power.  Frustrated by a gridlocked Congress, the executive branch has tried time and again to press its agenda by expanding executive power.

Fortunately the courts are pushing back.

To listen to the audio:


Houston, We’ve Got a First Amendment Problem October 15, 2014

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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It was disclosed this week that attorneys for the city of Houston, Texas have subpoenaed sermons and other writings from local ministers who are opposed to the new Houston Equal Rights Ordinance (HERO) championed by its mayor. This would seem to be such an obvious violation of the First Amendment free speech and freedom of religion of pastors that one wonders how lawyers and judges, who presumably studied constitutional law, could have allowed it to get this far.

Annise Parker, the first openly gay mayor of Houston, has made HERO, which extends equal rights protections to gay and transgender residents, a central plank of her leadership platform. A number of Houston pastors have joined a drive to repeal the new ordinance, collecting over 50,000 signatures, with only 17,259 required, to place the matter on the ballot.  The Mayor and City Attorney have disallowed most of the petitions on various legal grounds, and that matter is now in court.

As part of the court action, the city thinks it should review sermons and writings of these ministers, apparently concerned whether they are engaged in politics and electioneering from their pulpits in violation of the churches’ tax exempt status. Before we even get to the First Amendment, however, such tax exemptions are a matter of federal and state law, not municipal authority, so Houston has no business even pursuing that question.  Strike one.

To say that these subpoenas are overly broad would be quite an understatement. The question raised by the lawsuit is whether the petitions collected sufficient legal signatures to support a ballot measure to repeal it.  The arguments pertain to the documentation and form of the signatures, with the city claiming that all but 15,249 of them are legally flawed.  This has nothing to do with what any pastor said or wrote.  So again, even before we reach the First Amendment questions, these subpoenas take strike two.

But most outrageous of all is the obvious violation of the First Amendment. Churches and pastors are specifically protected in their speech and religious practice under the First Amendment.  The only legitimate legal challenge would have to come from the IRS (which has its own conservative witch-hunt reputation to live down) or state taxing authorities.  The latitude given to any Constitutionally-guaranteed rights such as those under the First Amendment is broad indeed, and it would take a lengthy and elaborate case to conclude the pastors overstepped their bounds.  A court-issued subpoena over a repeal election is hardly the right legal setting for this.  Strike three.

The chilling effect on ministers is precisely what the city and its mayor seek, of course, and this they cannot do. This is legal intimidation, pure and simple.  Politicians are not free to outlaw or make legal threats over speech they do not like, or think is politically incorrect, in the face of the First Amendment.

Our society is undergoing a major social transformation in the area of same sex rights. Groups and individuals are working these things out at astonishing speed.  In just the last week, the U.S. Supreme Court surprised everyone by letting some lower court same sex marriage decisions stand without further review, implying either conflict in the Court itself or that this is truly a matter for states and circuits to work out.  The Catholic bishops shocked everyone this week by rethinking the role of gays in the Church and the contributions they make.  To paraphrase a rapper of an earlier time, this is how we do it in a democracy.

Unfortunately the Mayor of Houston thinks it’s her role to work it out for everyone in her city, and to use unconstitutional intimidation if necessary to achieve those ends. In the name of the First Amendment, someone needs to stop her.

Link to Forbes.com:  http://www.forbes.com/sites/daviddavenport/2014/10/15/houston-weve-got-a-first-amendment-problem/

Turning Attorneys General Into Judges (National Radio Commentary: Salem / Townhall.com) March 10, 2014

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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U.S. Attorney General Eric Holder must have been feeling his oats when he recently told state attorneys general that they should exercise their own judgment on which laws to enforce. In particular Holder was speaking about same-sex marriage, ignoring the fact that the Supreme Court has not found a constitutional right to same-sex marriage, leaving the matter up to state legislatures and ballot propositions instead.

But a state attorney general is neither a legislator nor a judge. The attorney general is a law enforcement officer and a prosecutor. It is not their place to decide which laws should or should not be enforced but rather to enforce and defend laws enacted by the democratic process.

Holder’s shocking advice is part of the excess of executive power in the Obama administration. Under the Constitution, legislatures enact laws, judges rule on their legality, but the executive branch executes and enforces the law. An attorney general has no power to unilaterally veto a bill or declare it unconstitutional.

Link to Townhall.com audio: http://townhall.com/talkradio/dailycommentary/698318

Big Brother in the Newsroom (Townhall.com) March 7, 2014

Posted by daviddavenport in Op/Eds, Radio Commentaries.
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Like a scene right out of George Orwell’s novel 1984, the Federal Communications Commission recently proposed sending Big Brother—well actually a team of government funded researchers—into newsrooms across America to ask questions about bias, news philosophy and the like. After widespread objections, the research has been put on hold, but their initiative strikes a chord of concern.

Perhaps the FCC has forgotten about the First Amendment to the Constitution, protecting free speech and a free press. And the way this works in America is that you have news sources with all kinds of philosophies and points of view competing for the viewing and listening public. The last thing we need is the government hovering over our newsrooms.

Government managing and monitoring the news sounds more like North Korea or Communist China than the United States. At least let’s hope so. Your voice can be heard by at HandsOffMyRadio.com.

Link to Townhall.com audio: http://townhall.com/talkradio/dailycommentary/698316

Will The U.S. Supreme Court Protect The First Amendment Rights Of Colorado Bakeries? (Forbes.com) December 20, 2013

Posted by daviddavenport in Op/Eds.
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My dad ran a small bakery and I spent thousands of hours working there, baking, selling, delivering, sometimes even decorating cakes and other pastries. To him, the work was not just professional, but also personal: he knew most of his customers who came from our church, school, and neighborhood to shop. His front door was open to customers, but his back door welcomed friends for a cup of coffee, a donut and a chat while he worked. As a Christian, his work was also part of his ministry—he exercised his values there and helped a lot of people.

So I took more than a passing interest when a judge in Colorado recently ruled that a retail bakery had violated the law for refusing to decorate a cake for a same sex wedding celebration. Though my dad and the family bakery are long since gone, I could imagine him struggling with whether he could place two grooms on top of a wedding cake. As the Colorado baker argued in court, a cake decorator’s work is creative expression. When you take the cake to the church or party and set it up, you are in some sense a participant in the process. All this was a problem for the baker, whose religious convictions do not allow him to support same sex marriage.

But Colorado administrative law judge Robert Spencer said no, a bakery is a public accommodation, defined rather broadly in Colorado as any business that sells to the public. And, as such, a cake decorator cannot discriminate based upon sexual orientation. Even the fact that same sex marriage is illegal in Colorado did not cut the baker any slack. Next time he either decorates that cake, faces fines or jail, or closes the business, as the owner of a bakery in Oregon did in a similar situation a few months ago.

Although some have argued that this is a small matter—“let them eat cake”—it is part of an important and growing clash between one person’s First Amendment rights to freedom of religion and speech and another’s civil and social rights. With same sex marriage now legal in 16 states and still counting, that arena alone will generate increased conflict of this kind. For example, a wedding photographer in New Mexico who refused to serve a same-sex commitment ceremony on similar free speech and free exercise of religion grounds was held in violation of that state’s anti-discrimination laws and is appealing the case to the U.S. Supreme Court.

It’s not just about businesses and their customers, either. Hobby Lobby will be in the U.S. Supreme Court this term because the Affordable Healthcare Act requires them to provide contraceptive coverage to employees in violation of its owners’ religious principles. Indeed there are now over 80 of these lawsuits, and the D.C. Circuit Court of Appeals recently ruled that business owners do not give up their First Amendment rights merely because they choose to operate in a corporate form.

These are tough cases in part because both sides want an all-out win, not a compromise. Advocates for contraceptive coverage and same sex marriage argue that these are fundamental, constitutional protections that must be defended, essentially at all costs. Progressives and social activists see the contraceptive rights of Obamacare and same sex marriage as the new civil rights struggles and are unwilling to compromise. On the other side are those seeking to protect freedom of religion, which they believe to be under steady assault in society and especially in the courts. Some conservative Christians foresee the day when merely reading certain passages of scripture from the Bible, even in a church pulpit, will be considered “hate speech” under the law.

But in the end, there will need to be a solution in which the rights of both are recognized and they are able to live together in the same society. Will this be accomplished by balancing out the rights, one against the other? Should people in the expressive business—photographers or maybe bakers—have stronger rights than garden-variety businesses? Should public accommodation businesses be more narrowly defined than “anyone who sells to the public?” Or will one side win and the other lose? These are tough questions the U.S. Supreme Court will face in 2014.


New Book Released with Davenport/Lloyd Chapter November 18, 2013

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Palgrave McMillan this week announced the release of a new book, Toward an American Conservatism:  Constitutional Conservatism During the Progressive Era.  The book contains a chapter by David Davenport and Gordon Lloyd on “The Two Phases of Herbert Hoover’s Constitutional Conservatism.”  Whereas their recent Hoover Press book–The New Deal and Modern American Conservatism:  A Defining Rivalry–deals with Hoover’s post-presidency debates with Franklin Roosevelt and their relationship to public policy today, this chapter addresses the history of Hoover’s work at Secretary of Commerce and President as well as his fruitful post-presidency.

Link to Palgrave McMillan site:  http://us.macmillan.com/towardanamericanconservatism/JosephWPostell

Link to Amazon.com:  http://www.amazon.com/Toward-American-Conservatism-Constitutional-Progressive/dp/1137300957

Government Officials Must Defend the Law (Townhall.com) August 13, 2013

Posted by daviddavenport in Radio Commentaries.
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A contagion is spreading through senior government officials across the land. Although they take an oath to defend the constitution and the law, many officials are concluding that they will not defend laws they disagree with or feel are unconstitutional.

It starts at the top: When President Obama and Attorney General Holder refuse to defend laws such as the Defense of Marriage Act. The disease quickly spread to California, where the governor and attorney general refused to defend Proposition 8. When the Supreme Court decided no one had standing to defend the law, a ruling of unconstitutionality by a single federal judge stood unchallenged.

Now a county official in Pennsylvania says he doesn’t agree with a state law banning same-sex marriage and he’s started issuing licenses.

Officials have a sworn duty to uphold a law until the legal process concludes otherwise.

Please click on the link to listen to the audio: http://townhall.com/talkradio/dailycommentary/676954

The Supreme Court Rulings on DOMA And Prop 8: Everyone Deserved Better (Forbes.com) June 27, 2013

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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It is often said that hard cases make bad law, and today’s twin Supreme Court opinions about same-sex marriage—the Windsor case holding the federal Defense of Marriage Act (DOMA) to be unconstitutional and the Hollingsworth decision, rejecting the appeal of a lower court’s declaration that California’s Proposition 8 is unconstitutional—prove that point once again.

Having waded through today’s two decisions and multiple dissents, I find myself most strongly in agreement with the final line of Justice Scalia’s lengthy dissent in the DOMA (Defense of Marriage Act) case: “[T]he Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.”

While these decisions are being widely proclaimed as victories for same-sex marriage, that is a superficial view of what was decided and, perhaps as important in Supreme Court cases, how it was decided. To peel back the several layers of these complicated opinions, we should consider three different levels of analysis: (1) the constitutional questions, (2) the legal process issues, and finally (3) the social and political matters.

Perhaps naively, many hoped for some definite constitutional answers to the questions raised in these cases but today’s opinions disappoint here. Those who brought the California case hoped the Court would say Proposition 8, defining marriage as between a man and a woman, was unconstitutional on equal protection grounds, at least for California if not for all states. Instead the Court based its decision on narrow rules of legal standing. Those who defended DOMA in court hoped for a win for the traditional view of marriage, or at least a declaration that marriage belonged to the states and that DOMA was unconstitutional as a matter of federalism. But that didn’t happen either. Instead the Court cooked up a confusing stew of 5th Amendment due process rights, augmented by some standards of 14th amendment equal protection and a little substantive due process thrown in to justify its decision that DOMA is unconstitutional. This was hardly the kind of important constitutional decision either proponents or opponents of same sex marriage hoped for, and is instead a disappointing and confusing opinion with a kind of interim (we’ll have to clean this up later) feel.

Both decisions spent a frustrating amount of time on questions of legal process, especially who has standing to raise matters before federal courts. Since the government of California refused to defend Proposition 8 in court, the California Supreme Court ruled that proponents of the initiative could do so. But the Supreme Court rejected that, denying the appeal because no one had standing to challenge the lower court’s decision. That seems not only frustrating but bad law in that, in the end, no one was left able to bring a legal challenge to the district court’s opinion finding Proposition 8 unconstitutional. That seems like a bad result in both process and outcome. What we did learn again is that Justice Roberts is not really a constitutional conservative, but is a process conservative. If he can find a way to deal with a case by fiddling around with the rules (recall his creative rewriting of the healthcare law to salvage it?), he will resolve things that way, rather than on the merits. That has to be disappointing to conservatives for the long haul.

Finally, what does this mean for the social and political questions surrounding gay marriage? Two things are obvious: Proposition 8 is unconstitutional in California, as decided by the lower federal court (not the Supreme Court), and gay marriages there can go forward. And the federal Defense of Marriage Act cannot be used in states that decide to have gay marriage to deny full federal benefits (taxation, etc.) to those in such a union there. In that sense, it is a gain for the same sex marriage movement, but it mostly leaves the rest of it up to the political branches, not primarily to the courts.

So who are the winners and losers in today’s decisions? The traditional marriage people lost more than they gained, especially when the court went out of its way in the DOMA case to say there was no legitimate legal ground for that bill ever, a conclusion that, if you understood the state of the law and culture when it was adopted and signed in the 1990’s, is patently absurd. States also took it on the chin—while the court gave several pages of lip service to the role of states in marriage, it didn’t allow anyone in California to defend its own constitution, overriding the California Supreme Court’s own view of that question of state law. In my view, the good news today is that the court ended up taking a fairly modest role, leaving continued developments on same sex marriage to occur in the political branches and state governments where they belong.

But in the end, everyone deserved a better and more coherent message than came from these highly anticipated Supreme Court opinions.

Link to Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/06/27/the-supreme-court-rulings-on-doma-and-prop-8-everyone-deserved-better/

Now Go Deep (Hoover Digest) May 7, 2013

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Politics is only topsoil. The enduring values of conservatism are the roots.

Months after the presidential contest, obituaries for conservatism are still appearing. The Titanic is sinking, says one commentator; the conservative arguments put forward in the 2012 election will soon be relics in a museum, writes another. Demography is destiny, many say, and conservatism is basically populated by old white men whose day is done. A standard refrain is that conservatism needs to change both its message and its methods if it hopes ever to be heard again. Time for an extreme makeover.

I have a slightly different message for conservatives: it’s time to go deeper.

Politics is only the shallow topsoil of the American political debate. It’s easily blown about by campaign ads and rhetoric, influenced by momentum and even hairstyles. Former British prime minister Harold Wilson wisely observed that “a week in politics is a long time.” Remember James Carville’s book after the 2008 election? The title boldly proclaimed 40 More Years: How the Democrats Will Rule the Next Generation. Less than two years later, Democrats suffered historic defeats in the midterm elections.

Doubtless mistakes were made, as they say, at the political level in 2012. But the real work of conservatives now is not at that superficial, topsoil level; it is in the deeper soil of policy and the taproot of values where conservatives need to toil now. Americans should be presented with a deeper and more compelling narrative about the policy choices facing the country and the problems the present path will create. It is less about an extreme makeover and more about deepening its own policy message and clarifying its own values. Otherwise, why bother to become merely a pale version of liberalism simply to broaden your appeal and win?

For example, there is a serious conversation to be had about the family, one that is not reduced merely to pro-life and pro-choice sound bites, one that doesn’t begin and end with same-sex marriage. Liberal Harvard professor Daniel Patrick Moynihan pointed out the importance of a stable family life to the health of the republic in the 1960s, and many have noted the troublesome decline of family stability and the birthrate in Europe. That conversation needs to take place in a serious way here in America. Which family values are entirely personal, and which affect the public good? This question of values is one that conservatives should appropriately raise, but in a thoughtful way.

There is a real debate to be had about the role of government. Here my Hoover Institution colleague Peter Berkowitz rightly points out that conservatives have mistakenly allowed the debate to be about big versus small government. Government is big and it isn’t likely to shrink much. The real debate is about the role of government, not merely its size. It’s about limited government, not just big government. Which health care decisions, marriage decisions, and social questions are essential for government to decide? Federalism requires that we ask whether an issue is for individuals or government to decide, and if government, which branch and which level? That, again, is a serious debate that needs more than the divisive question: “Are you in the 47 percent or the 1 percent?”

Conservatives aren’t wrong about immigration, and will make a big mistake if they succumb to resolving these hard policy questions merely on the political level so they can win Latino votes. What proper interest does a country have in deciding how many and who will be allowed to enter? What about legal, not just illegal immigration: how do we encourage the sort of immigration that will strengthen the country in important ways?

A strong national defense is not something that Americans are ready to sacrifice. Even independent voters were greatly troubled by the lack of security at our government facility in Benghazi, Libya, and that concern risked becoming a tipping point in the recent presidential campaign. How does America lead in a dangerous world? That is a question about which conservatives frankly have more answers than liberals.

When a progressive friend asked me how I felt after the election and I shared some of this, he said, “You are an unrepentant conservative.” And so I am. Conservatives will make a big mistake if they think only of going wide and shallow, seeking more votes at the topsoil level of politics. First they need to go deeper, and sharpen the core values and principles which many Americans do share, and which if sacrificed on the altar of politics would leave conservatism one more loud voice merely seeking votes.

Hoover Digest ! 2013 · No. 2
Please click on link to go to the Hoover Digest article: http://www.hoover.org/publications/hoover-digest/by-author/9832
Reprinted by permission of Forbes Media LLC © 2013. All rights reserved.