Will Kavanaugh be a fair justice on the Supreme Court? Look to his views on the importance of mens rea protections. The idea there is that a person cannot be criminally liable for actions that no reasonable person would think are wrong. The principle played a key role in two of his decisions while on the U.S. Court of Appeals for the D.C. Circuit, writes John Malcolm and John-Michael Seibler:
In United States v. Burwell (2012), dissenting from the majority opinion of the en banc court, Kavanaugh wrote that "'mens rea' embodies deeply rooted principles of law and justice that the Supreme Court has emphasized time and again."
United States v. Burwell involved a mandatory 30-year prison sentence for carrying an automatic weapon during the commission of a violent crime, and addressed whether the government had to prove that the defendant knew his weapon could be fired automatically.
In the hearing on Thursday, Kavanaugh recalled that this was "not a sympathetic defendant." It was an armed bank robber who claimed he was unaware his weapon was automatic. "But I thought it was a complete violation of due process," Kavanaugh continued, "to give him a 30-year mandatory minimum for a fact that he did not know."
And his reasoning was perfectly in line with the U.S. Supreme Court's cases on "mens rea."
In another case, United States v. Williams (2016), Kavanaugh wrote an opinion concurring with the majority decision to reverse a murder conviction where the jury instructions on "mens rea" were unclear and, as he recalled Thursday, there "was a question of manslaughter versus second-degree murder that would have had a huge difference in the defendant's sentence."
United States v. Williams involved a death resulting from a gang initiation ritual and a dispute between the prosecutor and defense counsel over whether or not jurors could consider the victim's statements made during the ritual, which conveyed consent to the conduct that ultimately caused his death, in deciding whether to convict the defendant of second-degree murder or the lesser offense of manslaughter.
In his opinion, Kavanaugh asked, "Who's right about the law?" While fully acknowledging that the defendant "committed a heinous crime," he concluded that jurors had been "armed with [a] misunderstanding" of the law and convicted the defendant of second-degree murder instead of manslaughter."
"I am unwilling to sweep that under the rug," wrote Kavanaugh.
It meant a difference between the defendant's 22-year prison sentence for murder and a maximum sentence of eight years for involuntary manslaughter.
Both cases prove Kavanaugh's statement Thursday, "No matter who you are in my court, if you have the right argument on the law, I'm going to rule in your favor."
[John G. Malcolm and John-Michael Seibler, "Hatch-Kavanaugh Exchange Highlights Need for 'Mens Rea' Reform," The Daily Signal, September 7]
VAT is the tax of choice for bigger government. Replacing personal income taxes with a value added tax, argues Dan Mitchell, would likely lead to higher taxes overall "because [the VAT] is generally hidden, so it is relatively easy to periodically raise the rate." Recent evidence for this position, he notes, comes from a report by the Organisation for Economic Cooperation and Development:
VAT revenues have reached historically high levels in most countries… Between 2008 and 2015, the OECD average standard VAT rate increased by 1.5 percentage points, from 17.6% to a record level of 19.2%, accelerating a longer term rise in standard VAT rates… VAT rates were raised at least once in 23 countries between 2008 and 2018, and 12 countries now have a standard rate of at least 22%, against only six in 2008… Raising standard VAT rates was a common strategy for countries…as increasing VAT rates provides immediate revenue.
[Dan Mitchell, "More Evidence that Value-Added Taxes Are Money Machines to Finance Bigger Government," International Liberty, September 7]
Tax reform could prompt even greater interstate migration—unless high-tax states cut taxes. Chris Edwards writes:
The 2017 tax law cut individual tax rates and roughly doubled standard deductions, but it also imposed a $10,000 cap per return on [state and local tax] deductions. Those changes are expected to reduce the number of households that deduct state and local income, sales, and property taxes from 42 million in 2017 to 17 million in 2018.
Millions of households will feel a larger bite from state and local taxes and will thus become more sensitive to tax differences between the states. The tax law may prompt an outflow of mainly higher-earning households from higher-tax states to lower-tax states.
Even before the new tax law, a substantial number of Americans were moving from higher-tax to lower-tax states. Looking at migration flows between the states in 2016, almost 600,000 people with aggregate income of $33 billion moved, on net, from the 25 highest-tax states to the 25 lowest-tax states in that single year. [...]
Of the 25 highest-tax states, 24 of them had net out-migration in 2016. Of the 25 lowest-tax states, 17 had net in-migration. The largest out-migration is from high-tax New York, whereas the largest in-migration is to low-tax Florida. Florida is enjoying an influx of wealthy entrepreneurs and retirees looking for a tax climate that boasts no income tax or estate tax. [Internal citations omitted.]
[Chris Edwards, "Tax Reform and Interstate Migration," Cato Institute, September 6]
Richard DeVos, R.I.P. National Review:
If there is a particularly inspiring "American way" — of doing business, of loving nation and community, of sheer gratitude and deep devotion to the Creator, of commitment to charity and to all else that conveys Mom, apple pie, Old Glory, patriotism, and self-evident truths — it was embodied, brilliantly and uniquely, by Richard Marvin DeVos, the Michigan entrepreneur and happy warrior who left us this week, a youthful 92, bound we expect for a just reward of eternal peace.
Paralleling the rise of the conservative movement that his philanthropy and counsel helped grow and sustain, in the early 1950s the young veteran and Calvin College graduate cofounded, with Jay Van Andel, a small vitamin company that they grew into (and which remains) the global giant, Amway (the name a mash-up of . . . American Way). Their business success was immense, and shared in profound ways: DeVos's financial help to social-conservative organizations — such as Focus on the Family and the Family Research Council — was fundamental, and enabled them to become major centers of influence on the culture and policy. The charity bug was picked up by the DeVos children, and their collective largesse extended far beyond the Evangelical Right: From the Heritage Foundation to the Acton Institute to the Federalist Society, if there was a worthwhile conservative or education-reform group that was not touched, profoundly, by prolonged DeVos kindness and inspiration (assistance went far beyond writing checks), it is much more the exception than the rule. The result was obvious: Because of Rich DeVos and his clan, the Buckleys and Feulners and Dobsons could do what they did.
["Richard DeVos, R.I.P." National Review, September 7]
What about late socialism? Peter Suderman coins a new term:
We're all familiar with the follies of late capitalism. But what about late socialism?
The left has increasingly embraced the idea—or at least the label—of democratic socialism, along with an ambitious agenda of big government programs: single-payer health care, a jobs guarantee, free public college, and so on and so forth. But that agenda comes with a price tag so large that it is hard to imagine much of it becoming reality, even with the ascent of actually-we-don't-need-to-pay-for-itism. (You can get away with saying that deficits don't matter for a while. The problem is that at some point, they do.)
In practice, then, the socialist agenda, or at least the agenda of those Americans who call themselves socialists, is rather less grandiose. Even a brief glance at the handful of urban enclaves where left-leaning interest in democratic socialism is concentrated suggests that socialism, such that it is, has entered a tired and decadent phase of its own.
Here I am thinking of the recent wave of plastic straw bans, the profusion of restrictive zoning rules, caps and bans on ride-sharing services, minimum wage hikes targeted at service industry workers who earn tips, and so on and so forth.
As exercises in petty bureaucratic tyranny, these policies are connected in character: They limit individual choices and force businesses into support roles for social crusades. More importantly, they are pointless at best, and counterproductive at worst. The straw bans don't address the primary sources of plastic waste (presuming that's the goal) and may even result in the disposal of more plastic overall; urban ride-sharing caps are likely to curtail service in poor neighborhoods first; minimum wage hikes for tipped employees were broadly opposed by the very service workers they were supposed to have helped. [...]
[W]here the American left finds itself in power, it ends up pursuing penny-ante restrictions on individual freedoms, one straw, balloon, and scooter at a time. This is not socialism, precisely speaking, but it is what socialism breeds in practice, at the local level, when practiced by those who understand politics entirely as a means of control.
[Peter Suderman, "Welcome to the Era of Late Socialism," Reason, September 5]
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