The Bob Zadek Show

If we can say one thing definitively about government, we can say that it will not limit itself. The Bill of Rights and Constitution were the Founders’ response to the possibility that the new Republic they were creating would end up just as oppressive as the crown government they were overthrowing.

Were they successful?

This question has been the most consistent theme of my show for the past 10 years.

The topic of my show this Sunday gets to the core of this question.

The case of Tyson Timbs and a 2012 Land Rover v. State of Indiana was argued last week, and we can expect a verdict by June. Tyson Timbs was convicted of dealing small amounts of heroin to fund a painkiller addiction he had developed after he began taking pain medications for a sore foot.

The police apprehended him in his vehicle — a $42,000 Land Rover, which he had purchased with the proceeds of his recently deceased father’s life insurance policy. Police seized the car, finding it guilty “in rem” (latin for “the thing itself”) and therefore subject to the practice known as civil asset forfeiture.

Even after Timbs paid his debt to society through a mixture of house arrest, mandatory rehab, and other fines (and even though the maximum fine for his crime is specified at $10,000) the state refused to return the vehicle.

“The right to be free from excessive fines remains fundamental today.”

This line from the Institute for Justice’s opening brief in Timbs’ defense encapsulates the decision before the Supreme Court. The power to fine, Timbs’ lawyers at the Institute for Justice note, is uniquely prone to abuse. Does the court affirm a tradition dating back to the Magna Carta that puts a check on the government’s ability to “police for profit”?

In this episode, Samuel Gedge, a lead attorney in the case, joins me to delve into the long history of excessive fines and explain why excessive fines are prohibited alongside “cruel and unusual punishment” in the 8th Amendment.

Civil asset forfeiture has a long and nasty history, and in recent times has been an instrument of religious and racist bigotry. The Court has long held that such punishments are not allowed at the federal level, but the State of Indiana argues that it is exempt as a state and is justified in the seizure of Timbs’ vehicle because of the in rem jurisdiction.

As we await the outcome in Timbs v. Indiana, we have reason to be optimistic. Justices on both sides of the political spectrum seemed skeptical of the State of Indiana’s line of reasoning — noting that most rights in the Bill of Rights have been incorporated into the states since the passage of the 14th Amendment.

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

Boston College professor and Brookings scholar R. Shep Melnick on the New

Civil Rights Debate

There’s no better emblem of the complicated evolution of civil rights in America than the implementation of Title IX of the Education Amendments Act of 1972. Originally passed to ensure equal access to educational resources, Title IX reads as follows:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Although a libertarian might bristle at Title IX’s financial involvement in education, the statute otherwise seems innocuous — requiring nothing more than equal treatment for students, regardless of gender.

Since the 1970s, however, women have not only achieved parity with men in college admissions, they have surpassed men in graduation rates. Thus, the purpose of Title IX seems largely to have been achieved.

As the cultural landscape has changed, however, the focus of anti-discrimination efforts has also shifted. After omen could no longer claim discrimination at the admissions level, bureaucrats started to advocate in other areas like athletics, where men traditionally received more resources in accord with their greater interest in sports (especially at the elite level). Most people are familiar with Title IX’s equalization of athletics, but in terms of peak controversy, this was a passing phase in the law’s evolution.

Now, educational institutions have become the prime battleground in a larger culture war that includes the debates over sexual harassment, due process, “rape culture,” and transgender rights. In 2016, Republicans argued that Title IX has been perverted “by bureaucrats — and by the [then] President of the United States — to impose a social and cultural revolution upon the American people.”

How did the seemingly uncontroversial notion of non-discrimination has become such a lightning rod in the American culture war?

R. Shep Melnick is a professor of American politics at Boston College, where he focuses on the intersection of law and politics. Melnick argues that the current enforcement of Title IX has transformed the act from its original intention by politically motivated bureaucrats. He recently wrote The Transformation of Title IX [@The Brookings Institution Press (2018)] as a response to the partisan vortex that has swallowed rational discourse about the law. Shep joined the show to discuss the problems of overly-zealous administrative lawmaking in the context of the Title IX debate.

Dear Colleague: Due Process is Done
The U.S. Department of Education’s Office for Civil Rights (OCR) has the authority to issue new rules governing non-discrimination. The Administrative Procedure Act specifies that prior to a rule change, there must be a period for “notice-and-comment” by relevant parties in the educational institutions. The modern controversy hinges around a few legally questionable actions taken by the OCR in its administration of Title IX.

In 2011, the Obama administration issued new “guidelines” on sexual harassment to federally-funded universities that bypassed the standard notice-and-comment requirements for such changes. The administration claimed its guidelines constituted mere “clarifications” of earlier policies. In contrast, statements from the administration suggested that it was a sweeping overhaul of the entire campus culture as it relates to sexual harassment complaints. The infamous “Dear Colleague Letter” — directed from the OCR to all universities receiving federal funds — specified that a single sexual harassment complaint could trigger a lengthy investigation of the institution — turning actual victims and the accused into pawns in the larger culture war.

Worse, the letter required schools to use the lowest possible standard of evidence (a mere “preponderance”) in deciding the fate of the accused. While not an official criminal proceeding, these campus tribunals often determined whether a student would be marked for life as a sexual predator — effectively denying him his rights to “life, liberty and property” without due process.

As K.C. Johnson and Stuart Taylor, authors of The Campus Rape Frenzy wrote on the Volokh Conspiracy blog last year:

The letter required universities to allow accusers to appeal not-guilty findings, a form of double jeopardy. It further told schools to accelerate their adjudications, with a recommended 60-day limit. And, perhaps most important, OCR strongly discouraged cross-examination of accusers, given the procedures that most universities employed.

— The path to Obama’s Dear Colleague Letter, Jan. 31, 2017

Perhaps most frighteningly, government publications began to lecture schools on what constitutes a healthy, mutually respectful sexual relationship. Bureaucrats this by redefining sexual harassment as a form of discrimination, but only when the act targets a member of a particular sex. Strangely, a bisexual who is an “equal opportunity” offender — targeting both men and women — does not fall under the purview of Title IX complaints.

Melnick notes that the OCR’s mandated “sea change,” coupled with the threat of losing federal funding, has given rise to a new bureaucracy of Title IX coordinators at every major university.

The Transgender Transformation and Rule by Letter
The second questionable form of Obama-era administrative rule-making seems to have turned the intent of Title IX on its head. New guidelines redefined the word “sex” as it appears in the act to correspond to the gender identity of a student whose rights are being called into question. This legal maneuvering is particularly suspect since the term “gender identity” entered the lexicon as a way to distinguish one’s identity from their biological sex.

Morever, many Obama-era mandates (e.g., requiring colleges to allow biological males to use women’s locker rooms), not only opened the door for novel claims of harassment and discrimination, but took administrative lawmaking to new heights (or depths) of absurdity.

The Office of Civil Rights cannot reasonably resolve every discrimination and harassment issue in a sane and apolitical manner from its perch in Washington. President Trump has repealed the Obama guidelines, and Education Secretary Betsy DeVos has called for an end of “rule by letter.” Melnick sees this as a rare instance of sound policy and transparency from the Trump administration, but there is always a risk that it will merely flip the script and use the transgender issue to fire up the Republican base’s own culture warriors.

Here’s a preview of my take:

If Trump decides to take a page from Obama’s playbook, he might further polarize some of the most important civil rights concerns of the day. While some on the left have allowed the persecution of innocent men with dubious claims of a campus “rape culture,” others on the right have sometimes found a convenient scapegoat among individuals who don’t map neatly onto either biological sex.

No one is arguing that transgender individuals should be denied equal access to educational facilities, and there are valid civil rights concerns that must to be worked out on a case-by-case basis.

Whenever strings are attached to federal grants, there is erosion of the American system of federalism and policy experimentation at the state and local level. In this way, Title IX has been abused to impose a one-size-fits-all solution across the nation’s universities.

The federal government should leave room for different approaches to be tested, and OCR should focus on the basic of civil rights and clear cut cases of discrimination. The courts remain open to remedy situations where schools fail to render a fair decision.

For a full and nuanced perspective on the most important civil rights issues of the day, look no further than my show this Sunday with Shep Melnick.

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

LIVE - Walter Olson on Gerrymandering, Sun. 8-9am PACIFIC

Call in: (424) BOB-SHOW

The organic industry is taking advantage of the average American’s

scientific illiteracy, says Pacific Research Institute Fellow Henry I.

Miller.

Chris Edwards Grades States on Tax Policy and Examines the Exodus from

High-Tax to Low-Tax States

A New Blockchain-powered Social Network Hopes to Break Up Big Tech’s

Monopoly on Speech

David Harsanyi’s new book *First Freedom* shows how gun rights have secured

individual liberty since the American Revolution (and earlier)

As the old adage adage goes, “If you outlaw guns, only outlaws will have guns.” That may be literally true in places like Nazi Germany or communist regimes that have completely banned individuals from owning firearms, but in the U.S., most attempts to merely “control” gun ownership have resulted in far greater numbers of legal guns being purchased by the American public. Today there are more guns than people in the U.S.—by a lot—thanks in no small part by progressives’ efforts to restrict our Second Amendment rights.

David Harsanyi relays these counter-intuitively findings in his new book, First Freedom: A Ride Through America’s Enduring History with the Gun — a must read for anyone who wants to understand the heated debate around guns in America, and why the Founders considered the individual right to bear arms so important that they put it right after freedom of speech, religion, etc. in the Bill of Rights. In short, we need the Second Amendment to defend the First. The liberties in the First Amendment could not have been guaranteed were it not for American assertion of their right to gun ownership during and after the American Revolution.

David Harsanyi is a senior editor at The Federalist, a columnist at National Review, and author of four books. He joins me this Sunday to talk about the on-going importance of standing up for our Second Amendment rights, and how critics of gun rights most commonly miss the mark.

"Illegal guns are the problem. Not legal guns." -- Kanye. https://t.co/bhg6soive6 pic.twitter.com/O3SoHQZq0L

— David Harsanyi (@davidharsanyi) October 11, 2018
What is America’s Gun Culture All About?

For the record, I have never owned a gun couldn’t tell you the difference between the butt and the blunderbuss. I get my libertarian bona fides as a card-carrying supporter of the Cato Institute and Reason Foundation — not the National Rifle Association. However, it warms my heart that many of my compatriots, both now and throughout history, have kept government tyranny at bay through their constant vigilance to keep original meaning of the 2nd Amendment intact.

Harsanyi argues that those who oppose an originalist interpretation of the 2nd Amendment (securing an individual right to own guns) have a formidable challenge. First, they must fundamentally revise history, editing out the reliance of the colonists, pioneers, revolutionaries, on guns. Second, they must prove that the “well-regulated militia” clause is actually intended to enshrine a collective right to bear arms in unique cases that have long since become archaic.

Against this line of reasoning, Harsanyi provides ample evidence from the writings of the founders. Before penning the immortal words of the Second Amendment, James Madison wrote:

“Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments of the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms.”

This was not license to rebel — save against a government that no longer defends the rights of the people, and thus the nation. He shows how guns were used to end the institution of slavery, defend the world from totalitarian governments in Europe and Asia, and enable minorities to defend themselves against violent mobs.

Today, Progressives are the main enemies of the rights of self -defense— seeking less to ban guns than to “control” them through stringent background checks and other methods that could easily be politicized and used against innocent people placed on faulty “watchlists.” How long will it be before democrats push to place anyone with conservative opinions on their lists of “mental defectives”?

Listen now as we discuss the roots of the current gun control debate, and how it relates to the creeping threat of mob rule leading up to the 2018 mid-term elections.

This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.bobzadek.com/subscribe

SUN. 10/7: Can we grow our way out of debt?