The following op-ed, written by our research intern Molly Davis, was published today in the Salt Lake Tribune.
In the digital era, our private lives are often stored within our mobile devices. In a surveillance state, law enforcement can access these devices like an open book.
While technology continues to change how people behave and interact, government policies often remain stagnant. And while laws and regulations usually don’t keep up, law enforcement agencies do a decent job—meaning that the government takes advantage of modern technology for surveillance and law enforcement, while privacy protections for you and I lag behind.
Consider the case of the stingray—a mobile phone surveillance gadget utilized by law enforcement to intercept and store a person’s phone calls, texts, emails, and location. These devices collect information from everyone in the vicinity, allowing the government to access private and potentially sensitive information about countless innocent individuals.
Up until 2014—seven years after the first iPhone was released—there was no clearly defined federal privacy protections regarding an individual’s electronic data. In Riley v. California, the U.S. Supreme Court unanimously held that a search warrant was required in order to look through the digital contents of a person’s cell phone upon his or her arrest. Note that this ruling applies only to arrested persons who have their phone confiscated when arrested; government agents routinely surveil people who have not been arrested.
This bill was not considered by the legislature.
Libertas Institute supports this bill.
The Food and Drug Administration (FDA) has stated, as its official opinion, that “There is no absolute right to consume… any particular food.” This statement, contained in a reply to a lawsuit filed against it by the Farm-to-Consumer Legal Defense Fund, lays bare the thinking behind voluminous federal laws and regulations governing the production and sale of food, as exemplified in the contentious passage of the Food Safety Modernization Act a few years ago, which significantly expanded the regulatory reach of this federal agency.
Last month, we published a public policy brief establishing opposition to this claim, asserting that individuals do indeed have the right to grow and consume food, and that neighbors and consumers have the right to acquire food at a farm, free of burdensome regulations intended for—and properly applied only to—food meant to be acquired at restaurants or retail outlets where the consumer is totally unaware of the food’s source and safety.
Our brief contained two proposals, one of which was an amendment to Utah’s Constitution. House Joint Resolution 2, sponsored by Representative Marc Roberts, advances that proposal. (The other is House Bill 144.) It would require a 2/3 vote of both the House and Senate, and then a majority vote on the November ballot to be ratified. Similar amendments have recently been proposed in Virginia and Maine.
The proposal reads:
The individual right of the people to grow food for their own consumption or to acquire farm-produced food directly at the farm under an agreement with the farmer who produced it may not be infringed.
As a constitutionally protected right, this clause would prohibit the legislature or government agencies from limiting one’s consumption of homegrown food, or food obtained from a farmer through a direct sale by an informed consumer.
This bill passed the Senate 20-6 and passed the House 39-34.
Libertas Institute supports this bill.
America’s bicameral legislature was designed by its creators to be divided and different—the House would represent the people, based on population, and the Senate would represent the states with legislatures deciding who should fill the position.
The 17th Amendment to the U.S. Constitution, ratified in 1913, removed that power from legislatures and gave it to the people directly, removing the unique aspect of the Senate and voice of the legislatures in Congress. This alteration nullified the intent of the Constitution’s framers to have a material difference between these two bodies in constituency and mode of election.
As James Madison explained in the Federalist Papers, “The appointment of senators by state legislatures gives the state governments such an agency in the formation of the federal government as must secure the authority of the former,” separately writing that these differences would create important and “independent power sources.”
Senate Joint Resolution 2, sponsored by Senator Al Jackson, calls on Congress to propose an amendment to the U.S. Constitution repealing the 17th Amendment and restoring this process in an effort to increase Congress’ sorely needed checks and balances, and division and distribution of power.
In a throwback to English feudalism, the United States Government currently claims ownership of over 60% of Utah’s land mass and even higher portions of land in many other western states. The vast ownership and retention of land by the federal government is an aberration in the history of the United States where the general policy for public land was one of disposal and settlement rather than retention and federal management. In Utah, lawmakers have sought to assert Utah’s claim for such lands to be disposed of as promised by the federal government when Utah was created as a state.
In 2012 the Governor signed HB 148: The Transfer of Public Lands Act (TPLA), sponsored by Representative Ken Ivory whom we interviewed about this subject last year. The bill passed with healthy majorities in both chambers and was also ranked in our Libertas Legislator Index for 2012. The new law directs the United States Government to transfer title for public lands back to Utah as promised in the Utah Enabling Act. Under TPLA, this transfer is called for by December 31st, 2014. The bill also called for a study which was subsequently released by the Utah Constitutional Defense Council. Earlier this year, a BYU Law Review Article evaluated the legal issues surrounding the TPLA.
We agree with The American Lands Council and other groups calling for such transfers. The transfer of public lands is critical to ensuring the state sovereignty envisioned by the founders for our federal system. The retention of land by the federal government is an inappropriate and unjust arrogation of power—a power not based in constitutional principles, but the loose and broad interpretation, or outright violation, of them.
The following are some of the key legal arguments for the transfer of public lands:
Earlier this year the Supreme Court issued a ruling in Sandifer v. United States Steel Corp. At issue was whether employees must be paid for time spent donning and doffing protective work clothing. The Court ultimately held that if a collective bargaining agreement deems dressing and undressing to be noncompensable, employers can rely on this agreement and need not compensate employees for this time.
Now, legal minutia aside, why is a federal court deciding this at all? The short answer is the Commerce Clause. The Fair Labor Standards Act (FLSA) which governs employee pay and is the basis for Sandifer, was upheld, like so many bills, as a valid exercise of the commerce power.
Article I, Section 8 of the Constitution grants Congress authority to regulate commerce among the several States. When discussing this topic in the Constitutional Convention, it is evident that the founders were concerned about states erecting trade barriers against each other such as import and export taxes. The ratification debates indicate that the American population also shared a narrow conception of the word “commerce.” Prior to the New Deal, the Supreme Court itself limited the application of the Commerce Clause by distinguishing between “production,” which did not fall under the Commerce Clause, and “commerce,” which did. (See United States v. E.C. Knight Co.)
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —Fourth Amendment to the U.S. Constitution
Imagine government authorities monitoring your every movement in addition to your every word. Of course, this is now easier to imagine in our post-Snowden world. Fiction meets reality in local law enforcement, for example with technology allowing police officers to indirectly tap your cell phone by fooling it into thinking that their suitcase-sized surveillance device was the nearest cell phone tower. Taking a page out of the NSA playbook, law enforcement agencies around the country are acquiring and using this new technology.
The device mentioned above—one of many technological tools enabling surveillance of the citizenry—is known as a “Stingray.” This telecommunications device intercepts mobile communications by funneling all nearby connections through itself before passing them on to actual cell phone towers. It is highly portable and can be deployed anywhere. It has the ability to allow law enforcement to not only obtain cell phone location data—something they already obtain quite routinely from telecom service providers—but also call records and text message logs. While the specific devices known to the public are not supposed to be able to obtain call or text content, the reality is that we live in an age when such capabilities exist, even if not currently used. While some police agencies and investigators recognize the need to obtain a warrant for this activity, many do not; research indicates that warrants are not being obtained consistently for the implementation of this technology.
What Nullification Should Not Be
Nullification means many things to many people. Perhaps the most extreme version is when a state passes a law purporting to override a federal law. Last year, for example, Missouri nearly passed a bill that explicitly claimed to make the Federal Gun Control Act of no effect within Missouri and making it a misdemeanor for federal agents to enforce federal gun laws. The bill justified its nullification on the grounds that “The people of the several states have given Congress the power ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes,’ but ‘regulating commerce’ does not include the power to limit citizens’ right to keep and bear arms . . .”
The federal government regularly oversteps the powers delegated to it by the Constitution, and states are justifiably frustrated and outraged. However, the version of nullification resorted to by Missouri puts states in the position of delineating the boundaries of the Constitution. This is problematic for several reasons: first, it could potentially lead to fifty different interpretations of the Constitution; second, there is no guarantee that states will do a better job of interpreting the Constitution than federal courts. While most proponents of nullification see it as a way to counteract federal overreach, there is no reason that it could not also be used by states to circumvent federal Constitutional protections. Finally, it undermines the legitimate purposes for which the federal government was created. For a federal government to be of any use, it needs to be supreme in certain areas. (Of course, its supremacy is far more limited than many today claim it to be.)
A recent Supreme Court case, McCullen v. Coakley, highlights the second of these problems. McCullen involves a Massachusetts law creating a 35-foot buffer zone around abortion clinics which protesters may not enter. At issue is whether or not this violates the rights of protesters to free speech as guaranteed by the First Amendment.
This bill, as a substitute, passed the House 55-19 but was not considered in the Senate. Visit our Legislative Index to see the final vote rankings for the 2014 general session.
Libertas Institute supports this bill.
When legislative general counsel (staff attorneys for legislators) believe that a proposed bill has constitutional issues, they attach a “note” to the bill that contains their explanation and concern. These notes, however, only articulate arguments in favor of the federal government—creating a severe imbalance in understanding the bill’s true impact.
Last year, for example, Representative Brian Greene sponsored House Bill 114, the Second Amendment Preservation Act. The bill affirmed Utah’s right to govern the manufacture and use of firearms produced and sold within the state of Utah. Staff attorneys attached a “constitutional note” to the bill, claiming that HB114 conflicted with the Supremacy Clause of the U.S. Constitution.
A recent editorial by the Salt Lake Tribune offers another example of a common misunderstanding of the U.S. Constitution’s “Supremacy Clause”. The editorial equates state nullification of federal law with “poking the U.S. Constitution in the eye by ignoring the Supremacy Clause, which elevates federal law above state and local laws…” This misguided opinions relies upon a popular though incorrect understanding of what the clause states. Here’s the Supremacy Clause in its entirety, as found in Article VI of the U.S. Constitution:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Opponents of nullification tend to leave out seven key words: “which shall be made in pursuance thereof.” When this qualifying context is omitted, one would of course come to the conclusion that federal law trumps conflicting state and local laws every time. Under this interpretation, the federal government holds supreme power—without exception—and states can only exercise those powers that their federal overlords permit them to.
Representative Brian Greene, in an effort to support the individual right to keep and bear arms, has sponsored House Bill 114, titled the “Second Amendment Preservation Act.” This bill upholds both the U.S. and Utah Constitutions, each of which declare that this right “shall not be infringed.” HB114 simply strengthens state code to stipulate exactly how that such an infringement will be dealt with.
Specifically, the bill:
- affirms that it is the exclusive authority of the legislature to adopt and enact any and all laws, orders, rules, or regulations regarding the manufacture, transfer, possession, ownership, and use of firearms exclusively within Utah;
- provides that any federal action which purports to impose limitations on firearms contrary to the Second Amendment of the Constitution of the United States, or the Constitution or laws of the State of Utah, is unenforceable in Utah;
- creates a penalty for any enforcement of federal laws contrary to Utah laws or the United States or Utah Constitutions; and
- allows the attorney general to defend state officers, employees, and citizens prosecuted under certain federal laws.
Critics have pounced on this proposal, claiming that it is unconstitutional to pass a law in violation of a federal statute. For their support, they point to the legislative review note on HB114, authored by a staff attorney, which appears at first blush to substantiate their concerns.
But this legislative note is incorrect and misleading, and therefore merits a response.