“What’s the matter with Kansas?” is a question sure to be asked whether or not the state’s voters decide to ratify Value Them Both on August 2.

The proposed amendment would overturn the 2019 Kansas Supreme Court verdict Hodes & Nauser v. Schmidt, which Kansas Reflector reporter Allison Kite notes was something of “a state-level Roe.” While among other restraints, “patients seeking abortions must sit through waiting periods and efforts to persuade them against the procedure,” it did reliably guarantee a baseline of access. Though the result was far from laissez-faire, let alone opponents’ fever dreams of state-subsidized abortion on demand, removing it would set the stage for efforts at more restrictive policies up to a near-total ban.

In 2018, Eric Flint took a break from writing an alternate history of the 1630s to foresee that an impending repeal of Roe would not only unleash immediate moves to restrict abortion in “15 to 20 states” but that an equal number would “immediately liberalize abortion back to where it was decades ago before the right succeeded in chipping away at it.” Flint added that the steady liberalization of views on abortion in urban centers nationwide would give the pro-choice side an advantage beyond the relatively even divide between the two at the state level.

A decisive popular veto of Value Them Both would not only reaffirm the right of abortion for Kansans (and for the Missourians who account for nearly half of the abortions in their neighboring state).  It could serve as a model for state-level Roes in other contested states. So could a backlash if Value Them Both’s passing proves to be against the tide of public opinion.

The Garrison Center’s Thomas L. Knapp has noted (“Abortion: No, Dobbs Isn’t ‘Decentralization’,” June 25) that “decisions concerning abortion were largely decentralized to the lowest possible level, that of individual choice … such decisions are now largely centralized into the hands of state legislatures.”

The outcome of Kansas’s referendum could revive Roe‘s decentralization of choice to the individual by decentralizing it to the states.  Then Dorothy and her little fetus too won’t have to travel to Oz.

New Yorker Joel Schlosberg is a senior news analyst at The William Lloyd Garrison Center for Libertarian Advocacy Journalism.

PUBLICATION/CITATION HISTORY

1. “Pay attention to that woman behind the voting booth curtain” by Joel Schlosberg, Argus Observer [Ontario, Oregon], July 24, 2022

Democrats, the Cato Institute’s Andy Craig points out at The Daily Beast, are trafficking in panic over an upcoming Supreme Court case, Moore v. Harper.

While the case is nominally about who gets to decide whether newly drawn political district lines pass constitutional muster,  its particulars intersect with controversy over something called the “independent state legislature doctrine,” and therefore with disgraced former president Donald Trump’s scheme to overturn the 2020 presidential election using slates of fake “alternate electors” to replace the real ones.

If the Court gets this wrong, the Democratic Party line goes, state legislative majorities can just throw out presidential election results that don’t go their party’s way, and instead appoint presidential electors who support their preferred candidates.

Craig’s case against the panic is solid: While the US Constitution does say that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,” it also provides that “Congress may determine the Time of chusing the Electors.” That time is “election day,” currently set by federal law as the Tuesday after the first Monday in November.

Once that election has been held, the electors have been chosen. No backsies. If a state legislature wants to choose electors in some other way, it has to act BEFORE the election rather than in a fit of pique afterward.

There is, however, a larger issue with the “independent state legislature” doctrine, and that issue is whether state constitutions (and state court rulings under those constitutions) may in any way constrain a legislature’s power to “direct” the “manner” of choosing electors.

Could, for example, the Florida Senate and Representatives just unilaterally decide to choose its presidential electors based on the outcome of a bipartisan game of strip poker, where each hand is worth an elector in addition to a discarded pair of boxer briefs?

The answer is no.

Florida’s state constitution specifies the manner of choosing electors, and Florida’s legislature is bound by that constitution.

Where federal jurisdiction is concerned, another part of the Constitution is worth looking at. Article IV, section 4 specifies that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.”

While we could argue over precisely what constitutes a “republican form of government,” a lawless legislature, declaring itself unbound by the votes of the electorate and the constitution which empowers it to govern, clearly doesn’t meet the standard.

Neither would a military junta which used the Texas Army National Guard to seize control of Austin, or a crank who declared himself emperor of New Hampshire from his Manchester apartment.

State legislatures may only “direct” the way electors are chosen within the strictures set by their states’ constitutions, and they can’t retroactively change those procedures after the date set by Congress for an election.

It seems unlikely that the Supreme Court will use Moore v. Harper to void the US Constitution, state constitutions, and its own power to enforce the “republican form of government” clause.

So don’t panic. Yet.

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY

 

If I gave you a million dollars to invent a better mousetrap, and told you that if you succeeded you could keep any and all profits associated with the invention, you’d probably consider that a pretty good deal.

But if I gave your neighbor Bob a million dollars of YOUR money to invent that mousetrap, on the same conditions, you’d probably take issue with the idea.

Even if you were interested in investing in mousetrap innovation, you’d probably want a return on your investment.

And even if I described Bob’s enterprise as a “non-profit,” you’d likely at least want the better mousetrap design made freely available for anyone to use,  instead of enriching Bob above and beyond whatever stipend he paid himself while working on the invention.

If the hypothetical Bob above is a tax-funded university, though, you’d just be out of luck. Billions of dollars of government research funding goes to universities every year, but once the research produces results, those universities often take the resulting profits for themselves rather than refunding even the original startup money to taxpayers.

An example from my own neck of the woods:

In 2020, the University of Florida knocked down more than $900 million in research funding, up 45% from 2011. Nearly $640 million of that funding came from federal government grants and another $43 million from state and local governments.

The university’s research foundation also received 140 patents on the products of that research and signed a record 132 licenses and options on its “intellectual property.” It claims around half a billion dollars in license revenues from 2008-18.

Why should taxpayers fund research just so that taxpayer-funded institutions can keep the money for themselves … and keep demanding more money for more research?

And what’s the additional “social cost” of funding research, then letting the results be trapped in patent protection rather than put in the public domain?

Suppose the US government spends a billion dollars funding research into a cure for cancer, and such a cure is found.

Hooray! Cancer is cured!

Except that the university where it was developed won’t just release the recipe so that any drug maker can turn out the cure for a dollar a pill. They’ll patent the recipe, then license it exclusively to one drug maker, who will sell it for $5,000 a pill.

The university picks your pocket on the front end, Big Pharma mugs you at gunpoint on the back end.

If we’re going to tolerate the fiction of “intellectual property” in inventions — really just a state-granted monopoly on ideas to the first persons to fill out some paperwork — we should at least insist that tax-funded research results be treated as “works for hire,” and that we, not our employees, be considered their “owners.”

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

PUBLICATION/CITATION HISTORY