The ACRU Blog

This article originally appeared in Barrons.com: link

FEDERAL SPENDING HAS HOVERED around 20% of gross domestic product for more than 50 years now, ever since it settled down after World War II. Despite all the battles over taxes and spending in that time, the federal share of our economy has remained fairly stable.

That will change quite dramatically without fundamental reform of our nation's entitlement programs. The latest long-term projections of the Congressional Budget Office estimate that federal spending will soar, reaching close to 40% of GDP over the next 40 years, primarily owing to exploding costs for Social Security, Medicaid and Medicare. Add in costs for state and local government, and total government spending in America will be well over 50% of GDP.

If anything even close to this happens, the fundamental nature of our economy and our government will have changed. Our capitalist free-market system, the source of America's historic prosperity, will constitute less than half of our economy. Something like Swedish-style socialism will dominate.

Too Big to Cut

Simply cutting entitlements will never avert this looming economic and fiscal catastrophe. The gap is just too big. And, in any case, the political system would never allow enough cuts to make much of a difference.

Some want to negotiate a grand deal, mixing huge tax increases in return for large benefit cuts. But such a deal would leave us spending 30% to 35% of GDP, still a disaster. The true problem isn't the long-term deficits, but the long-term level of government spending.

Finding a way out of this trap starts with recognizing that our entitlement programs are based on old-fashioned ideas of tax-and-spend redistribution. Social Security, for example, doesn't involve any saving and investment at all. Close to 90% of the money that comes in is paid out within 30 days in current benefits. Any surplus is lent to the federal government and immediately spent. Medicare has a small dedicated tax that doesn't come close to covering expenses, and Medicaid is a spending program, pure and simple.

Such old-fashioned systems retard economic growth and carry perverse incentives on both the tax and spending sides. High taxes to finance these programs discourage savings, investment, entrepreneurship and work. Welfare discourages work, and government retirement benefits discourage private retirement savings, as workers don't have to save for benefits that Uncle Sam will pay.

There is an opportunity to modernize and thoroughly restructure these entitlement programs through pro-growth reforms. The key: allowing efficient capital and labor markets to serve the goals of these programs.

Reformers must recognize that voters will insist that sturdy safety nets remain in place. But with positive, pro-growth, structural reforms and the broad benefits of capital and labor markets, we could maintain such safety nets while actually providing a far better deal for beneficiaries, and with far lower government spending.

An Example of Reform

We could start with something that has worked spectacularly well. Legislation enacted in 1996 turned the old Aid to Families with Dependent Children program back to the states. The money that the federal government contributes to this program was returned to each state in a block grant, to be used in a new program designed by the state based on mandatory work for the able-bodied. Block grants are finite. The federal government doesn't match every dollar that the state spends. If the state spends more, it must foot the extra costs itself. If the state spends less, it can keep the savings.

The AFDC rolls were reduced by close to 60% nationwide, close to 80% in states that pushed work most aggressively. Requiring able-bodied recipients to work for their benefits was useful, but perhaps even more important were the reversed incentives for state administrators. Previously, the feds matched increased state spending, so that each new welfare dependent signed up brought more federal funds to the state. But with the state now paying all the added costs of adding "clients," the focus changed to getting able-bodied recipients to work.

Such reforms should now be extended to the other federal welfare programs, particularly budget-busting Medicaid, the open-ended medical-care program for the poor. The federal government now spends about $275 billion a year on Medicaid, accounting for about 10% of its entire budget. States also pay a share of the total expense -- as much as half in the wealthy states.

Even if the reforms allowed each state to keep all of the savings derived from greater flexibility, positive incentives and reduced rolls, the use of block grants would save the federal government a trillion dollars over the first 10 years.

If federal spending growth on the block grants were then barred from growing faster than the rate of expansion in the U.S. gross domestic product, Medicaid would no longer contribute to increasing federal spending as a percent of gross domestic product.

Ideally, such reforms should be expanded to food stamps, federal housing assistance programs and other, smaller federal welfare programs, as well. These programs account for roughly another $200 billion in spending each year, or about 7% of the federal budget. Adding these programs to the block-grant reform might enhance its appeal to the states, as it would give them greater flexibility, along with more funds.

The new state programs could be focused on getting beneficiaries into real, private-sector jobs, market-rate health insurance and home ownership. The result would be a much better overall safety net for the poor. We would be changing our welfare system into a prosperity system.

Keep Trying on Social Security

A second key reform would be the creation of personal accounts for Social Security. Workers would be free to substitute savings and investment accounts for some of their stake in the current system. Social Security spends close to $600 billion a year, constituting 21% of the federal budget.

Most importantly, personal accounts wouldn't just trim the growth of such spending. They would redistribute huge chunks of it from the public to the private sector, dramatically trimming federal spending over the long run.

The accounts could start at any size, and then be expanded over time. Eventually, workers could choose to substitute the accounts for all of their Social Security retirement benefits. The accounts could be expanded further to substituting private insurance for survivors and disability benefits as well. Such accounts alone would reduce federal spending by close to 7% of gross domestic product without reducing retirement benefits, an unprecedented, historic achievement.

Workers would actually get much better benefits through these accounts because market investment returns are so much higher than what the noninvested, purely redistributive Social Security system can promise, let alone afford to deliver. Workers across the board could each accumulate several hundred thousand dollars by the time they retire.

These funds would be owned directly by each worker and would be available to pay for annuities or held as part of an estate. This would do a great deal to reduce inequality, yet in a way that would reinforce, rather than undermine, the economy. Done right, such reforms would produce a historic breakthrough in the personal wealth of working people.

A bill introduced in the last Congress by two Republicans, Rep. Paul Ryan of Wisconsin and Sen. John Sununu of New Hampshire, offers a comprehensive model of how to structure such accounts. It was devised with substantial input from the Social Security Administration and from experienced Wall Street fund administrators.

The bill would maintain the current social safety net in full, by including a federal guarantee that if any retiree's account couldn't pay at least what Social Security would under current law, the federal government would make up the difference.

This provision reflects the kind of risk reduction that would be necessary to succeed with such sweeping reform on an issue as politically explosive as Social Security.

The transition to the personal accounts would be financed primarily by spending restraints and reductions in other programs, and by the revenue from greater economic growth.

This plan can work politically. Many candidates have won elections while campaigning for private Social Security accounts, including President Bush. However, instead of fighting for what he campaigned on so successfully, the president got lost in the swamps of Washington, putting every bad, unpopular idea on the table as well. This buried the positive features of the personal accounts, confused people and blurred the appeal to the general public that's necessary to have reform enacted. Few want to cut the basic benefit formula, increase taxes or raise the retirement age.

The Final Hurdle

Medicare, which now accounts for 13.4% of the federal budget, would be the most difficult entitlement program to reform, because it is so badly overextended in the long term. But personal accounts could be allowed for the 2.9% Medicare payroll tax, shifting some of the program's spending to the private sector. Such accounts would also provide advantages for workers.

The general revenues financing the rest of the program would have to be limited to grow no faster each year than GDP growth, with the funds used to give vouchers for private health coverage to low- and moderate-income seniors to help them purchase private health coverage. The reform would have to be carefully designed to leave a health-care safety net in place for all seniors who need it.

If we also bar federal discretionary spending from expanding faster than the rate of growth of GDP, this reform program would eliminate projected federal deficits, sharply reducing long-run federal spending for interest.

The result would be a federal government spending less than 15% of gross domestic product each year, rather than more than 40%.

At the same time, the reforms would produce broad benefits and advantages for working people, while keeping comprehensive safety nets in place. This is a hopeful, positive vision for America, truly worth fighting for.

PETER J. FERRARA is director of entitlement and budget policy at the Institute for Policy Innovation and general counsel of the American Civil Rights Union.

The American Civil Rights Union filed an amicus curiae brief with the U.S. Supreme Court on October 5, urging the Court to take the appeal of the D.C. Circuit Court of Appeals decision last March holding that the Second Amendment does protect an individual right of citizens to keep and bear arms. The ACRU wants the Court to take the case to affirm and thereby greatly strengthen this landmark ruling.

ACRU General Counsel Peter Ferrara told the Court, "The courts cannot treat the Second Amendment as a politically incorrect, disfavored stepchild of the Bill of Rights. Fidelity to the Constitution requires the courts to give it the same zealous protection as every other right stated in our founding document. The Amendment is not being read broadly to protect the rights and liberties of the people if it is somehow interpreted to allow the government to adopt a virtually complete ban on handguns, and an effective prohibition on the use of rifles and shotguns, as in this case."

Read the Amicus Argument here.

Read David Freddoso's (NRO staff reporter) article here.

The facts for this comment, but not the legal conclusions, come from an article published in the Houston Chronicle on 9 October.

The subtitle of this article correctly states the trend that is steadily growing. "Federal inaction means more than ever, nation's law agencies take issue into own hands." The public will is that illegal aliens are committing crimes, killing people in auto accidents, overwhelming local schools and hospitals with unpaid services. The public will is that effective steps to stop, and reverse, illegal immigration are required. The result is that inadequate action at the federal level is forcing some states and localities to act on their own.

The article recites that 23 county and state agencies have received training this year on working with immigration authorities to arrest and process illegal immigrants for deportation. This is "more than five times the number" who sought such training under an existing federal law, last year. Such training is done only when the local government takes the initiative and requests it.

The total impact of this program is significant and growing. The article notes that since the program began in 2002, "597 local officers who received training have made 26,000 arrests."

The article refers to the "void of immigration reform in Washington, D.C." that has caused eight states to pass a dozen laws on the subject, and a total of "182 immigration-related bills" in 43 states. The latter apparently include a Texas law requiring notification of immigration authorities whenever a non-citizen is convicted of family violence charges.

The article cites two critics of such policies. A professor at the University of Houston says, ''The worst consequence is not what the police do, but how the people begin to feel. Latinos who are U.S. citizens begin to feel the police are after them." This is the kind of thinking the ACLU engages in.

First, it is not the business of police at any level to protect the feelings of people, if that means abandoning the rule of law. Second, Hispanic Americans are apparently smarter than this Professor. Law-abiding Americans of Hispanic background do NOT think the same as illegal immigrants.

An attorney at the El Paso Catholic Diocese said, "In the end [the program] is being used to go after individual undocumented immigrants and their families, many who are U.S. citizens." This is typical of the ACLU position, and is both true and deceptive. In many of these families, the adults are illegal immigrants and in violation of the law. Some of the children, however, are born on American soil, and under current law they are citizens and therefore "anchor babies" who provide benefits to the parents in attempting to stay in the US.

Another attorney for illegal immigrant interests refers to "harassment" and "racial profiling." In the view of the ACLU, efforts to enforce US law are classified as harassment. It is not a surprise that about 90% of the illegals arrested are Mexicans who speak Spanish, since about 100% of those who sneak across American borders, are Mexicans who speak Spanish.

Source for original story on the Net:
http://www.chron.com/disp/story.mpl/front/5198340.html

The facts for this comment, but not its legal conclusions, come from an item reported by Fox News on October 7th.

The death penalty for Jose Ernesto Medellin has been confirmed at all levels in the Texas courts, and in federal courts, for leading a gang that engaged in a particularly reprehensible torture, rape and murder of two young girls in Texas, years ago. But Medellin is an illegal alien, so he has mounted one more challenge to his death sentence.

Whether the ACLU is engaged in this particular case, there is no doubt that it approves of any effort to prevent this man from being executed. That is the universal approach of the ACLU's Death Penalty Project.

There are 51 Mexicans in jail for major charges, including Medellin, who claim that their convictions in the US are illegal because US authorities did not inform the local Mexican consulate, to provide legal services to the charged individuals. They made this claim in the International Court of Justice at the Hague. That Court ruled that the convictions of these individuals violated their rights under the 1963 Vienna Convention.

There are serious problems with this approach. First, the US has deliberately not approved the treaty that would give the International Court of Justice any jurisdiction over American courts and American law. Second, any defendant can waive any rights that he has, by not raising them, and Medellin did not raise any objection based on the Mexican consulate not being notified until years after his original conviction.

Third, like all defendants without funds, Medellin was provided counsel without charge. That is a right that most defendants in most cases in most nations, never receive. And lastly, there is zero doubt that Medellin led the gang which committed these brutal, double murders. He confessed, and his confession is a matter of record. Other members of his gang in this murder have already been executed, or have avoided execution by pointing out that they were "too young to be executed."

For whatever reason, President Bush is urging Texas courts to follow the finding of the Court at the Hague, even though that Court has no jurisdiction here. This idea, that the US Supreme Court should make decisions based on foreign law, has long been supported by the ACLU, and accepted, sadly, by some members of the Supreme Court.

The state of Texas and its courts have consistently taken the position that Medellin was given all rights available to citizens of Texas at every stage of his trial and appeals. They also take the position that no foreign court has any authority to direct what US courts should do, in trying anyone who has been charged with harming or killing an American citizen in America. And lastly, they take the position that the President of the US has no legal authority to instruct any court in the nation to take any particular action in any particular case.

It is the view of The American Civil Rights Union that the US Supreme Court should obey and follow the US Constitution, and not any foreign source of authority - court, legislature, whatever - in deciding what the Constitution means. If the Supreme Court does that, this final appeal by Medellin should be rejected, and he should be executed as promptly as possible.

The one part of the story which is missed in the article is the lack of jurisdiction of the International Court over any part of the US. This is critical because no President has ever submitted the treaty for that subject to the Senate for confirmation, nor has it ever been considered by the Senate.

Go here for this story on the Net:
http://www.foxnews.com/story/0,2933,299917,00.html

The facts for this story, but not the legal conclusions, come from an article published by CBS 13 in Reno, Nevada, on 4 October.

The facts of this matter seem clear. A bar in Reno was flying the Mexican flag above the US flag on the same flagpole. A US veteran saw this, knew it violated the US flag code by displaying a foreign flag above the US flag.

Jim Broussard explained his action by saying, "I took this flag down in honor of my country with a knife from the U.S. Army. I'm not going to see this happen to my country. I want to see someone fight me for this flag."

The Reno police recognized that the flag display in this case was wrong. But they took the position that the US flag code is "advisory" because it has no "criminal enforcement requirements."

The ACLU entered the fray, against the position of the veteran. In a statement the Nevada ACLU said, "If the federal flag rules were mandatory, they would clearly violate the First Amendment, which protects every American's right to speak and express themselves, including their choice of flag to display."

The ACLU had the chutzpah to add this, "In 1989, the Supreme Court held that we even have the right to burn our own flag." In that case, the ACLU got the US Supreme Court to rule by a narrow margin that it is freedom of speech for an American to burn an American flag.

Let's assume that is true. What is the message in burning a US flag? Does it mean "I hate America"? Or, "I hate Americans"? Well, what would be the message if this veteran had not merely rescued the US flag from misuse, but had removed and burned the Mexican flag? His real message was "I respect America." But had he destroyed the Mexican flag, would it have meant, "I hate Mexico"? Or, "I hate Mexicans"?

The ACLU defends the destruction of the American flag, for the message it conveys. On the other hand, in this case, they are protecting the Mexican flag from disrespect. This one incident demonstrates that the ACLU has no use for real, even-handed freedom of speech. To the contrary, they believe only in the freedom of anti-American speech. Any pro-American speech deserves to be crushed like a bug in a corner.

This inherent contradiction of the ACLU's flag positions was right there in front of the reporter. Somehow, he missed the story. How sad. By the way, the Reno TV station is allowing viewers to vote on whether this veteran was a "vandal" or a "patriot." By 73% to 27%, the local residents call him a patriot.

For this story on the Net, go here:
http://cbs13.com/national/local_story_277081459.html

Over the last several years, the Foundation for Individual Rights in Education (FIRE) has conducted a thorough survey of campus speech codes at over 350 American colleges and universities and compiled the data in one location on FIRE's website, Spotlight: The Campus Freedom Resource. For each of these schools, FIRE provides a rating based on whether and to what extent its policies violate constitutional speech protections. A green-light rating indicates that a university's policies do not impinge on free expression, a yellow-light institution has policies that could excessively regulate or ban protected speech, and a red-light rating is given to institutions with at least one policy that clearly and substantially restricts freedom of speech. Unfortunately, but not surprisingly, the vast majority of colleges and universities receive a red-light rating. Spotlight's speech code ratings have been repeatedly cited in newspapers from the Wall Street Journal and USA Today to local and campus newspapers across the country.

In addition to FIRE's speech codes research, each school's Spotlight page has links to all case documents from FIRE's Individual Rights Defense Program, media coverage of FIRE's work at that school, and entries from FIRE's blog, The Torch, related to speech issues at that institution. It's a one-stop location for all things freedom-related on university campuses.

To help spread awareness of the free speech restrictions in place at many colleges and universities, FIRE has recently introduced the FIRE widget. Each widget is an attractive icon (look at the right side) that bloggers and others can put on their website to link to the Spotlight page of a school of their choice. It's an excellent way to highlight the violations of constitutional protections at your alma mater. If you send FIRE a link to your site with the widget posted on it, along with your mail address, FIRE will send you a free FIRE t-shirt.

To post a widget, follow these easy steps.

1. Visit thefire.org/spotlight and select your school by state, region, or simply by typing its name into the search box.

2. When your school's page comes up, look on the right sidebar to view the widget for that particular school. Below it is a box containing some text--select it all and copy it to the clipboard.

3. Go to your blog or website, and paste in the text wherever you want the widget to appear (it's made for a sidebar, but should work anywhere).

4. Send us a link to your site with the widget posted on it, as well as your mailing address.

The American Civil Rights Union filed an amicus curiae brief in the United States Supreme Court on Friday, October 12 in the case of Parker v. District of Columbia urging the Court to grant the requested writ of certiorari on behalf of 5 of the original 6 plaintiffs seeking to strike down the District's gun control laws as unconstitutional under the Second Amendment. The D.C. Circuit Court of Appeals had found that these 5 plaintiffs did not have standing in the case and dismissed them from the suit.

However, in regard to the remaining plaintiff, Dick Anthony Heller, the D.C. Circuit found that the Second Amendment did protect a right of individual citizens to keep and bear arms, and that the District's ban on handguns and their effective use in self-defense did violate the Amendment. The Court did, therefore, strike down the District's gun control laws regarding handguns as unconstitutional. The District has the strictest and harshest gun control laws in the nation, yet its notorious high crime rate and high murder rate persists.

The District has now asked the Supreme Court to hear its appeal from that decision. On October 5, the American Civil Rights Union filed an amicus curiae brief on that matter also urging the Court to hear the appeal, but to affirm the D.C. Circuit's decision on the Second Amendment in striking down the District's oppressive gun control laws.

The 5 original plaintiffs in the case who were dismissed for lack of standing have also asked the Supreme Court to hear their appeal seeking reinstatement. In its brief on their behalf filed on October 12, the ACRU argued that the Supreme Court should take the appeal and reverse the D.C. Circuit on this standing issue, reinstating the 5 original plaintiffs. ACRU General Counsel Peter Ferrara wrote the brief, stating,

"The courts cannot treat the Second Amendment as a politically incorrect, disfavored stepchild of the Bill of Rights. Fidelity to the Constitution requires the courts to give it the same zealous protection as every other right stated in our founding document. But the ruling on standing in this case does not reflect equal access to the courts for Second Amendment rights as for other rights."

Read the Parker Cross-Petition Argument here.

Reporters who choose to be martyrs don't warrant a federal law. Read more in USA Today here.

In the wake of President Bush's veto of the State Children's Health Insurance Program (SCHIP), Congress is preparing for another showdown with the White House. But this time the dispute won't be over health care spending for children, instead the dispute has consequences for all Americans because it is over which branch of government is best suited to know which ground rules are needed for fighting the war on terror.

The specific conflict is over proposed amendments to the Foreign Intelligence Surveillance Act (FISA) but the broader issue is the distinct differences between the Congress and the President when it comes to national security. Undoubtedly Article I of the Constitution provides a robust role for Congress in these matters: Congress has the authority "to declare War, grant letters of Marque and Reprisal, and make rules concerning Captures on Land and Water." Furthermore Congress is given explicit power to fund and organize the military, legislate international rules of commerce and punish piracy. But crucially, its authority is dispersed among the two chambers and its powers are best read as setting policy on broad terms.

On the other hand, Article II of the Constitution reveals the primacy of executive authority when it comes to the day to day handling of national security threats. Article II vests in the presidency the commander in chief power as well as foreign relations authority, executive order authority and related emergency powers. This combination makes the presidency ideally suited to assess and carry out our nation's national security needs.

The tension between policy setting and day to day implementation is reflected in the dispute over amendments to the FISA act of 1978. After nearly 20 years, Congress this summer passed amendments that modernized the act by expressly granting the president broad authority to use today's cutting-edge technology to engage in international surveillance. But now some in Congress want to roll back that authority.

That would be a dangerous mistake. The new rules work and provide the right balance between civil liberties and national security. Presently, the president is authorized to surveil foreigners without going to the Foreign Intelligence Surveillance Court (FISC) for permission. Additionally, to protect Americans, the law requires the DOJ to develop and submit to the FISA court a set of procedures the president will use in making determinations of who is a foreigner.

Furthermore, the law authorizes the director of national Intelligence and the attorney general to require private companies to assist in surveillance of foreign intelligence targets. And finally, the amendments provide those firms a broad grant of immunity from lawsuits as a result of their assistance.

Unfortunately these changes were temporary, as the act expires in February 2008. Worse yet, however is a "replacement" measure being pushed by Rep. John Conyers -- the inaptly named "Restore Act of 2007."

This bill, which is rapidly making its way through Congress, represents an aggressive and unhelpful assertion of congressional authority. It will cripple our nation's ability to engage in international electronic intelligence gathering and is a powerful argument for why the framers believed the executive must take the lead in matters of national security.

Instead of maintaining the distinction between foreign and domestic intelligence, the so-called Restore Act would force both foreign and domestic surveillance to be reviewed by the Foreign Intelligence Surveillance Court. Not only would this process needlessly delay and in many instances eliminate altogether the gathering of vital intelligence, it rests on dubious constitutional grounds as it encroaches on the president's independent authority to engage in international surveillance of foreigners without coordination with Congress or courts. Perhaps most egregiously, this measure would for the first time cover the American military thereby disrupting their access to actionable intelligence even when needed in a battlefield setting.

And in the name of protecting civil liberties the bill actually threatens them by requiring the creation of a database compiled by the intelligence community. It would consist of dossiers of U.S. citizens that have been tracked by electronic surveillance -- information that would normally not be kept. The bill provides that these dossiers would be annually transferred to members of Congress potentially allowing them to be abused for partisan/political purposes by less scrupulous members of Congress or their staff.

Moreover, rather than devote additional resources to alleviate the lack of trained linguists and analysts to track current threats, the bill authorizes additional manpower and resources instead to meet unwarranted Congressional audit and reporting demands.

Finally, in a nearly unbelievable break with basic tenets of fair play, the bill repeals the immunity from civil liability provided to any firms and individuals that assist the federal government with surveillance gathering. Remarkably, the bill's backers seem to believe that the very companies and individuals that have voluntarily assisted our intelligence gathering efforts in the wake of the worst attack on U.S. soil in modern times should face a torrent of lawsuits as a consequence.

By crippling the gathering of actionable intelligence even in battlefield settings and saddling intelligence professionals with audit and report creation duties in the midst of a analyst resource shortage this bill makes fundamentally clear why the framers invested the executive with the key responsibility for protecting out national security. The Restore Act's insistence on congressional pre-eminence in national security matters authority is a historical and unless amended dramatically constitutes a clear and present danger.

Go here for this story on the Net:
http://washingtontimes.com/article/20071023/EDITORIAL/110230005/1013

The facts for this comment, but not the legal conclusions, come mostly from an article published in the Raleigh News & Observer on 27 October. This story is related to the positions of the ACLU because, contrary to its stated mission, the ACLU favors maximum freedom of the press for those media who favor the political views as them.

This editorial in the Raleigh News & Observer is entitled, "Above and Beyond." It tells in plain but powerful words the story of Lt. Michael Murphy, a Navy Seal, who was part of a four-man team sent on a dangerous mission, deep into enemy controlled territory in Afghanistan, on 27 June, 2005.

His team was discovered, and ambushed. Lt. Murphy was the leader of this team, when they came under attack by about 50 of the enemy. The only chance of survival was to communicate with their base. Lt. Murphy went into an exposed position to make a satellite connection. Although shot in the chest, he completed that call. Three of his unit survived, but one was saved.

This week, President Bush awarded the Medal of Honor to Lt. Murphy, handing that medal to his family, at the White House. Lt. Murphy was from Patchogue, N.Y., in the backyard of the New York Times. Yet the Times did not see fit to feature this extraordinary award to him and his family, on its front page.

To give readers an idea of how rare and important this award is, there are only about 109 living holders of this Medal. And whenever any holder of this Medal appears in public wearing it, that person is entitled to be saluted by any other soldier including a five-star general, regardless of the rank of the Medal holder.

It wasn't just the print media who ignored this story of great courage, dedication, and sacrifice. The national broadcast networks also did not feature this story. The only network which featured the story in prime time was Fox, on cable. And, of course, the story of the slighting of Lt. Murphy's Medal of Honor was widely discussed on talk radio, across the nation.

In the meantime, journalists with this bent, and their political allies in the outside world, are promoting a new edition of the Fairness Doctrine. Is it for the purpose of increasing coverage in the mainstream media? No, it is to cut down the coverage in the radio media, the same people who took time to cover and honor the award to Lt. Murphy.

Does all this represent a failure of the First Amendment? Directly, no. But indirectly, yes.

Media operate in what Thomas Jefferson called "the marketplace of ideas." When the First Amendment was written and ratified, the media consisted of hundreds of small and independent newspapers, originally only four pages each. They lived or died often and easily, depending on their success or failure in the marketplace. And that, in turn, depended on their ability to attract advertisers and to satisfy the interests of their readership.

Though we now have many forms of media, the bulk of them electronic, the principles of success remain the same - advertising and attracting readers / listeners / viewers. In theory, those parts of the media who fail to serve their audience should wither and die. Those that do serve their audiences should grow and prosper. That's what Jefferson meant by "the marketplace of ideas."

To choose two examples not entirely at random, the New York Times and CBS, who were both derelict on this particular story, have been bleeding financially for a long time. Both are steadily losing audience share to other media who do better than they do in serving the audience. But neither has changed direction. And both continue down their failed paths.

This is an indirect failure of the First Amendment. When media become large institutions, with a bureaucracy committed to certain political directions, they can insulate themselves (for a time) from the consequences of their own bad journalistic decisions. Evidence shows that insulation from reality can last at least a generation. But it also shows that such ostrich-like behavior cannot last forever.

Source for original story on the Net:
http://www.newsobserver.com/opinion/editorials/story/747227.html

The facts for this comment, but not its legal conclusions, come from an article in the New York Post on October 24th.

This story in the Post speculates that Governor Spitzer's plan to force the issue of drivers' licenses for illegal aliens will cause political harm to Democrats. The paper reports senior Democrat officials as predicting that the Governor's action will cause "a mass exodus" from the Democrats in state and local races.

That may be true, but there are stronger and more basic reasons for opposing the Governor's plan, opposition which today includes a law suit filed by an upstate County Clerk, who claims that state law forbids him from issuing a driver's license to anyone who is not a legitimate resident of New York. Therefore, the Clerk argues, the Governor's executive order is itself illegal, and should be struck down by the court.

The Governor argued that this would "bring the immigrants in from the shadows," and "improve public safety by making these drivers legal." This proposal may well attract more illegal aliens to New York State - like the sanctuary cities of Los Angeles, San Francisco, and ones as far from the border as New Haven, and Milwaukee, have done for cities. But even if the number of illegals does not go up, here is the problem as shown in the American press:

Combining deaths on the highways and deaths in crimes, illegal aliens are killing more Americans per year than all the armed enemies that American soldiers face in all the hot spots in the world. Let me repeat that, more American men, women and children are being killed on the highways and in crimes by illegal aliens inside the US, than all military deaths during the same time.

Governor Spitzer's plan apparently violates New York law. It also violates the provisions of federal law on drivers' licenses to be used for federal ID purposes, such as boarding planes or getting passports. (The federal law doesn't kick in for a year, but Spitzer is obviously going in the wrong direction.)

But most importantly, Spitzer's plan will lead directly to deaths of legitimate residents of New York. And it will be the public backlash from those deaths which will lead to the "exodus from Democrats" that this article predicts.

Polls reported as this is being written, state that 70% of New Yorkers oppose the Governor's plan. There is even speculation that this issue will affect the presidential race concerning Senator Clinton and Mayor Giuliani. It is particularly troublesome for Senator Clinton, since she must choose between breaking with the Democratic Governor of her home state, or handing her opponents, including Mayor Giuliani a clear and significant issue.

Go here for this story on the Net:
http://www.nypost.com/seven/10222007/news/regionalnews/spitzer_steering_us_toward_a_c.htm

Read Hans Zeiger's article, in today's The Philadelphia Inquirer, here.

Read additional emails here.