Justice Bolick

At Sacred Heart University with Clint Bolick, center, now an Associate Justice of the Arizona Supreme Court, and Dr. Gary Rose, pictured left, Chairman of the Department of Government, Politics, and Global Affairs. Before joining the AZ Supreme Court in 2016 Bolick was Vice President for Litigation with the Goldwater Institute

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The Forgotten Holiday

Excerpted in today’s edition of the New York Daily News 

Each year during one of America’s favorite holiday seasons, Thanksgiving, we anticipate the chance to gather with family and friends to reflect on the blessings we enjoy in this country. But frankly, another holiday should rank equally as high for its significance to our great land of opportunity and freedom: Constitution Day, on September 17.IMG_2602

On this day, we commemorate the signing of the U.S. Constitution in 1787 in Philadelphia. After months of deliberation and debates, the delegates to the Constitutional Convention signed this landmark document that remains the oldest written national constitution still in use today.

Yet, ask many Americans what happened on September 17, and they return blank stares. Even fewer will know that since 2004, Constitution Day has been an official national observance.

Yet to us — and to each succeeding generation — belongs the duty to preserve our system of free and limited government. How can we fulfill this charge if we fail to recognize, understand, and appreciate the foundational legal document of this system? Indeed, we cannot.

Therefore, teaching the principles of our democratic republic—both its structure and the reasons behind it—should be an important goal for all levels of American education. But American education has failed in this respect. Too many people who proudly call America home do not understand the reasons for that pride. What are the benefits of the rule of law, enumerated powers, federalism, checks and balances, and due process? What truly is a “right”?

Consider these findings of a 2017 survey of adults by the Annenberg Public Policy Center at the University of Pennsylvania:

  • More than one in three people (37%) could not name a single right protected by the First Amendment.
  • Only one in four (26%) can name all three branches of the government. (In 2011, 38% could name all three branches.)
  • One in three (33%) can’t name any branch of government.

Coming to the same conclusion was the Intercollegiate Studies Institute, which surveyed adults to determine their understanding of basic American principles: 71 percent of Americans failed the survey, with an overall average score of 49 percent. Lack of understanding reached across the ideological spectrum, with liberals scoring 49 percent and conservatives 48 percent.

In our Constitution’s preamble, our founders declared liberty for future generations when they wrote their intent to “secure the Blessings of Liberty to ourselves and our Posterity.” But a nation will never secure what it does not teach—and therefore, does not understand. It is up to us to fulfill this charge.

Former Supreme Court Justice Sandra Day O’Connor, a moderate on the bench, described the crisis in pointed terms: “Knowledge about the ideas embodied in the Constitution and the ways in which it shapes our lives is not passed down from generation to generation through the gene pool….”

Justice O’Connor is right. We must deliberately pass on these ideas — through education, both at home and in school — or else we lose the very things we hold dear: freedom and opportunity.

Currently, fifteen states require high school students to pass a citizenship test to graduate. This means graduating seniors must have the same basic civics knowledge as those applying to become naturalized U.S. citizens. It’s encouraging that more than a dozen states have implemented this threshold. But why not all 50?

Young people must be taught the principles of liberty, the importance of understanding it, the reasons for loving it, and the necessity—and means—of preserving it. Schoolhouses across the country should embrace Constitution Day as an opportunity to deliberate on the original meaning behind the preamble’s words of “union,” “justice,” “tranquility,” “common defense,” “general welfare,” and “liberty”.

President Ronald Reagan summed up the matter accurately when he said, “Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it once was like in the United States when men were free.”

Reagan was right. For only by understanding our freedoms—and the constitutional, limited government that protects them—can we defend them. And only by defending them can we preserve them and pass them on to future generations. Let’s not forget September 17.

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Majoritarian Extremism

Appeared in the CT Mirror on 3/24/2014: http://ctmirror.org/keeping-the-electoral-college-is-in-connecticuts-interest/

Majoritarian extremism is, once again, aiming its proverbial guns at the Electoral College in Hartford, this time through House Bill 5126, which seeks to incorporate a national popular vote to elect the president.

Under the bill, Connecticut would award its seven electoral votes to the candidate who secures the most popular votes nationally. This would be a radical change from our current system, in which Connecticut’s electoral votes are awarded to the candidate who wins the confidence of Connecticut voters.

One could begin to think America’s Founders had it wrong. Were they too concerned with accountability and balancing power when creating the system we use to elect the president? 

The Electoral College, more than a national popular vote, produces an accountable president. The Electoral College makes it necessary for presidential candidates to learn the diverse needs, interests, and cultures of different regions and states in America. With a national popular vote, this necessity disappears, and all focus turns toward major population centers in urban areas in big states.

Under a national popular vote, presidential elections would become urban, big-state-centric with no accountability among the candidates to learn the issues that concern suburban, rural, and other lightly populated areas. A definite blow to federalism.

For example, if presidential contenders were to pursue only a national popular vote, Barack Obama in 2012 would have spent most of his time and resources campaigning in California and New York, with Mitt Romney doing the same in Texas and Florida.

If we want to hold presidential candidates accountable, they should continue to court many state majorities rather than one, single, national majority. A single, national majority simply doesn’t reflect the vast and very special diversity found in states like Connecticut. Connecticut is not Tennessee, and Texas certainly is not California. New England is not the Southwest, and so on.   

The Constitutional Convention of 1787 voted twice on a national popular vote to elect the president. Both times the idea was decisively rejected. Professor and Author Gary L. Gregg II, in Securing Democracy: Why We Have an Electoral College, states:

The Electoral College also reminds us of an alternative to today’s dominant political ethic, which equates the immediate election of the people – pure and simple majoritarianism – with good government. The Founders held to no such simple and dogmatic formula. They insisted the new government they created be free and rest on the firm foundations of republicanism…

The Founders feared a single majority electing the president. They feared someone like Mussolini, a charismatic demagogue, who could mesmerize the populace while cloaking a dangerous agenda. This is easy to do with a national popular vote. It’s not so easy with the Electoral College vote, which is based on the individual, popular votes of the 50 states. Gregg continues:

The Founders realized that there was a tendency in democratic politics, a phenomenon recognized by Plato, for ambitious democratic politicians to resort to inflammatory, dangerous, and divisive rhetoric in order to win votes. And they realized that this was a particularly dangerous possibility with regard to the selection of a single national president.

Adolf Hitler not only murdered millions of innocent people and nearly exterminated the Jewish race but he also was able to convince most of Germany that his actions were necessary and even just. His ability to captivate German citizens through speeches and propaganda was astounding.  

One critique of the Electoral College is that states like Connecticut receive little attention from presidential candidates and, as a result, are disenfranchised. Yes, Connecticut is not a battleground state, but that’s because Connecticut voters as a whole have demonstrated they are comfortable with the policy positions and party affiliation of one of the two candidates running for the presidency. When a majority of Connecticut voters are no longer comfortable with one of the two candidates, it will become a battleground state. Conversely, under a national popular vote system, lightly populated states like Connecticut will never be the focus of attention.

Would you like to discuss “real” disenfranchisement? While presidential candidate George Bush in 2004 won the national popular, his opponent, John Kerry, won Connecticut’s popular vote by almost 11 percentage points. Under the National Popular Vote law currently being proposed in Hartford, Connecticut’s seven Electoral College votes would have gone to Bush. Nothing against our former president, but that’s real disenfranchisement.

Before rushing to change our thoughtfully constructed Electoral College system, legislators in Hartford should take time to understand the purposes behind it and the significant and harmful ramifications of recklessly dismantling it. Candidates for the presidency should remain focused on states, which are closer and more accountable to the people. Only then will the interests and intents of Connecticut voters – and voters across the country – truly be protected.

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Merit Pay Verse Tenure

Bridgeport School Reform Should End Tenure

Appeared in the Hartford Courant on July 23, 2011: http://articles.courant.com/2011-07-23/news/hc-op-desanctis-merit-pay-teachers-0720110723_1_high-performing-teachers-teacher-tenure-bad-teachers

The potential state takeover of Bridgeport’s public schools demonstrates how badly Connecticut needs serious education reform.

Eighteen-year-old Bassick High School senior Kiara Rivera, who is pessimistic about her chances of attending college, blames poorly performing teachers who “routinely place calls or send text messages from their cell phones during class,” according to a report in the Connecticut Post. Part of the system’s failure, to which Kiara indirectly refers, is teacher tenure, which has become a guarantee of a job regardless of achievement.

Children depend on a good education to find success later in life. A good education requires excellent teachers, and this requires giving administrators the ability to let go of poor performers. Sadly, this is almost impossible. Tenure assures even the worst-performing teachers a job for life at the expense of their students’ futures.

The Bridgeport public schools spend around $14,265 per student. Nationally, things look the same: “… education spending in America has increased to $9,000 per student today, vs. $4,300 in 1971 (adjusted for inflation), yet math and reading scores in the country have both flat-lined. America ranks a pitiful 25th in math and 21st in science among 30 developed countries …” according to a 2010 article in The Economist magazine. Increasing spending per student will not solve all the problems in Bridgeport’s public education system or nationally. Retaining and recruiting talented teachers and letting go of poorly performing ones will help tremendously. As The Economist noted, “good teachers can cover 150 percent of a required curriculum, while bad teachers may cover as little as 50 percent.”

Connecticut and schools nationally need to drop teacher tenure in favor of a merit pay system, and here are a few reasons why:

Merit pay will help attract the nation’s brightest thinkers, talented individuals from America’s workforce and soon-to-be college graduates. It will retain high-performing teachers by rewarding them for success. People in this talent pool will choose to teach if they know they’ll be justly compensated for working hard.

Teachers will be motivated to produce even better results. People accomplish more when their successes are rewarded. Basing salary increases only on the number of years worked is not an incentive to achieve.

Pay linked to success will help alleviate the current teacher shortage in states across America. Some such as Maryland have offered signing bonuses and tuition reimbursements. Texas recruits teachers from Mexico and Bridgeport has hired from India to fill its gaps. Merit pay should help attract more teaching candidates.

Certainly, merit pay will not solve all the challenges in public education, such as the lack of family support and structure for many children. However, it is one important and necessary change.

Moving quickly on changes such as merit pay will eventually help improve our economy and reduce unemployment. Approximately 7,000 students in America drop out of high school every school day. Dropouts are more likely to go to prison, need government welfare assistance, and cost the nation hundreds of billions of dollars in lost wages. Yet, a significant decrease in dropouts offers tremendous benefits: “If U.S. high schools and colleges raise the graduation rates of Hispanic, African American, and Native American students to the levels of white students by 2020, the potential increase in personal income would add more than $310 billion to the U.S. economy,” according to the Alliance for Education in 2009. We cannot afford to ignore effective public school reform any longer. The status quo is not working.

Reward the hardworking and successful teachers. Even better, pay the top ones six figures. In the years to come, our children and economy will benefit. And in the end, Bridgeport students such as Kiara Rivera might not be so pessimistic about their chances of attending college.

 

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Can Executing Murderers Save Lives?

Appeared in American Thinker, 2011:

http://www.americanthinker.com/2011/02/can_executing_murderers_save_l.html

Connecticut’s new governor and democratic legislative majority have promised to abolish capital punishment despite public opinion.  They’re not alone.  Most European governments abolished death sentences regardless of public opinion.  “There is barely a country in Europe where the death penalty was abolished in response to public opinion rather than in spite of it,” stated Joshua Marshall in The New Republic.  “In other words, if these countries’ political cultures are morally superior to America’s, it is because they are less Democratic.” (Death penalty news)

It’s unfortunate that majority opinion in Connecticut will likely be ignored.  True, majorities are not always right, but when an issue has that much support among citizens regionally and nationally – like in Europe and America respectively – Connecticut’s state government should pay more attention.  Gallup’s latest poll has 64% of Americans supporting capital punishment while 29% oppose (for overly atrocious crimes, support rises to 80%).  Even more important to Connecticut, the latest Quinnipiac Poll shows 65% of people statewide favor the death penalty for murder.

In 1999, Russell Peeler ordered the murders of eight-year old Leroy “B.J.” Brown Jr. and his mother, Karen (B.J. witnessed her execution before being shot in the head).  In 2005, Kim and Tim Donnelly of Fairfield were coldly shot to death in their family run jewelry store.  And in 2007, Cheshire residents Jennifer Hawke-Petit and her two daughters were sexually abused and murdered in a case still receiving national attention for its viciousness.  Some of the perpetrators of these crimes will spend the rest of their lives on death row, but most likely, none will be executed.  As State Rep. Mike Lawlor pointed out, “The way the current law is written, nobody is ever going to be executed again in Connecticut, unless they force the issue.” (Seven news)

Half of Americans believe capital punishment is not imposed enough while just 18 percent think it is imposed too much (2010 Gallup poll).  Indeed, this mirrors Connecticut, where capital punishment is almost completely unused: nine convicted murderers are still awaiting execution (one death row inmate has been there for 22 years); 19 have long-standing death penalty cases, and only one person has been executed since 1960 (Michael Ross begged to have his execution carried out). Could this lack of swift justice be the cause of future murders?  Can execution save lives?

The academic world has been weighing in on a deterrence effect. As reported in a testimony given by Dr. David Muhlhausen before a U.S. Senate Subcommittee (read testimony here), over the last ten years, several studies have confidently asserted to confirm capital punishment deters murders, saving 3 to 18 lives for every one person executed.  Dr. Naci Mocan, a death penalty opponent and economics professor at the University of Colorado at Denver, co-authored a 2003 study and a 2006 study re-examining evidence.  The studies evaluate state-level data on the influence of individuals removed from death row, those executed, and those who received commuted sentences between 1977 and 1999. Dr. Mocan concluded the effect of one execution is five fewer murders.

Other studies assert similar results (Heritage Foundation):

     Using a panel data set of over 3,000 counties from 1977 to 1996, Professors Hashem

Dezhbakhsh, Paul R. Rubin, and Joanna M. Shepherd of Emory University found that each execution, on average, results in 18 fewer murders.

     Two studies by Paul R. Zimmerman, a Federal Communications Commission economist, also

support the deterrent effect of capital punishment. Using state-level data from 1978 to 1997, Zimmerman found that each additional execution, on average, results in 14 fewer murders.

     Using a small state-level data set from 1995 to 1999, Professor Robert B. Ekelund of Auburn

University and his colleagues analyzed the effect that executions have on single incidents of murder and multiple incidents of murder. They found that executions reduced single murder rates, while there was no effect on multiple murder rates.

In response to such reports, well-known liberal law professor and death penalty opponent Cass Sunstein of the University of Chicago commented, “If it’s the case that executing murderers prevents the execution of innocents by murderers, then the moral evaluation is not simple.” And, “Abolitionists or others, like me, who are skeptical about the death penalty haven’t given adequate consideration to the possibility that innocent life is saved by the death penalty.”

Certainly, more studies are needed and old studies should be re-examined.  However, if it is likely that innocent lives are saved by executing (not just convicting) cold-blooded murderers, then Connecticut leaders need to consider the ramifications of abolishing the death penalty.

I believe Professor John McAdams from Marquette University makes a strong case on this point: “If we execute murderers and there is in fact no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would in fact have deterred other murders, we have allowed the killing of … innocent victims.  I would much rather risk the former.” (American Bar Association)

We owe it to the surviving families of the above-mentioned victims to review the facts and save other families from unnecessary suffering.  Most people weigh the costs and benefits of their actions, and for murder, the cost should be as great as possible.  The academic world is onto something.

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Controlling Unfunded Mandates

Not happy with your Property Taxes?

Fairfield Patch: http://fairfield.patch.com/groups/chris-desanctiss-blog/p/bp–not-happy-with-your-property-taxes-call-your-stat729253428d

Chris DeSanctis explains why Unfunded Mandates from Hartford are causing our property taxes to rise, and are a major problem for us here in Fairfield.

In case you missed it, the cover story in Barron’s on August 25th ranked Connecticut as the worst-managed state in the nation in terms of its outstanding debt and unfunded pension liability relative to its GDP.  Needless to say, ranking as the worst state in the union in national publications is not going to attract or retain a lot of businesses, jobs or residents.  The underlying huge problems with taxes, debt and unfunded liabilities must be addressed before they provoke a crisis that will severely limit our options.  And if these highly visible state-level problems are not enough to make you wonder about how long you and your family should stay in Connecticut and about the future value of any property you own here, there is another big problem that hits us even closer to home – Hartford continues to pile more and more unfunded mandates on towns like Fairfield, driving our local property taxes higher and higher.

An unfunded mandate is a state law that requires a town to pay for something that it was not previously doing or to pay more for the services it wants to provide, in response to which it has only two options: either raise property taxes or cut other services, like patrolling neighborhoods, plowing roads or responding quickly to 911 calls.

According to the Connecticut Conference of Municipalities, a state-wide, bipartisan association of towns and cities, there are currently over 1,200 unfunded or partially funded mandates; information on all of them is available on its Web site.

Some of the most egregious examples of forcing Fairfield to pay more than it would otherwise have to pay are the following:

  •  “Prevailing Wage Rate” is a law that requires towns to pay inflated wages on construction projects over $400,000 for new work and over $100,000 for renovation projects even if there are reputable contractors who are willing to do the work for substantially less.
  • Minimum Budget Requirement” is a law, believe it or not, that says education budgets cannot be reduced even if enrollment declines, even if efficiencies are found, even if savings are achieved, even if there was a surplus the year before. Towns should make that decision, not Hartford.
  • Compulsory Binding Arbitration” is a law that requires Fairfield to accept the judgment of an arbitration panel when the town and its public employees can’t agree on the terms of a new contract, even though the members of that panel are not accountable to our tax payers; a town’s legislative body can reject an initial arbitration award, by a two-thirds vote, but then the award of the second arbitration panel is final and binding.
  • In-School Suspension” is a new law that requires Fairfield to find suitable space and to pay the substantial cost of hiring paraprofessionals or teachers to provide all-day supervision for any student who is suspended unless it is too dangerous to do so. Previously, a suspended students’ parent(s) or guardian(s) were responsible for supervision.

Ultimately, the problem with unfunded mandates is one of Transparency and Accountability.

In its ceaseless, relentless creation of more and more programs year after year, the state Assembly should not be allowed to shift the economic burden of what it is doing onto Connecticut’s towns.  If Hartford wants to create a new program or expand an existing one, then it should figure out how to pay for it with state revenues. Not doing so denies voters the transparency they need to evaluate whether their state representatives are serving them well, and to hold them accountable.

What can and should be done?

I believe we can solve this problem. Connecticut’s legislative leaders must:

1.  Review and eliminate or reform all existing unfunded state mandates;

2.  Ensure that estimates of any unfunded-mandates costs are accurate;

3.  Require a two-thirds majority in the Assembly to enact any material new unfunded mandate;

4.  Reform “Binding Arbitration” to give towns the right to reject any and all arbitration awards by a two-thirds vote of their legislative bodies;

5.  Eliminate “Prevailing Wage Rate” restrictions on municipal projects

6.  Reform the “Minimum Budget Requirement” to allow towns like Fairfield to decide on whether or not education spending should decline for reasons such as lower enrollment or efficiencies.

Any reform efforts will be much more productive if a majority of Connecticut voters decide that one-party rule for 36 of the past 40 years has not served our towns and state well.

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Affordable Housing Reform

Housing regulations could change face of town

Connecticut Post, 2012: http://www.ctpost.com/opinion/article/Housing-regulations-could-change-face-of-town-3828563.php

All Fairfield home owners should be watching this issue very closely.

In Stratfield, a developer recently sought to circumvent our zoning regulations by invoking a 1989 state law that was designed to encourage the development of affordable housing. The developer wanted to subdivide his 10,000-square-foot site on Homeland Street, keeping an existing home on one half and building a second on the other half.

When this plan was denied by the Town Plan and Zoning Commission (TPZ) in March because current zoning laws require a minimum of 9,375 square feet for one home, he revised his application to include three housing units, one of which would be an accessory apartment over the garage of the second home. Under the provisions of state law “8-30g,” because the apartment would be classified as “affordable housing,” three housing units would be allowed on the property despite local zoning restrictions.

What may sound like a local dispute is quite obviously much more, so thank goodness for the groundswell of opposition from our Stratfield neighbors — more than 100 turned out at the public hearings, and more than 200 signed petitions in opposition. They understand that approving this proposal would set a precedent for the entire town of Fairfield that would allow developers to dictate how our town should be developed by allowing them to enter any neighborhood and change its character forever by simply including affordable housing in their plans.

Fortunately, the developer’s new application was rejected unanimously, primarily on the grounds that the TPZ had “not been presented with adequate information … to make a decision that is informed, proper and in accordance with the laws of the State of Connecticut.” It’s certainly likely this developer will try again. Meanwhile, just a few blocks away, another developer has just threatened to propose a “so called” affordable housing development with many more units than the three he put forward to build on his Chatham Road site after his original plan was rejected unanimously by the TPZ.

Section 8-30g basically says that if less than 10 percent of a town’s total housing units are “affordable” (in the latest assessment, only 2.63 percent of Fairfield’s 21,648 housing units were deemed to be affordable), then multi-unit developments in which at least 30 percent of the units are affordable are exempt from local zoning regulations and can only be denied by local planning and zoning commissions based on “substantial public interests in health, safety or other matters which the commission may legally consider . . . that clearly outweigh the need for affordable housing . . . and cannot be protected by reasonable changes to the affordable housing development.” In plain English, this means that an 8-30g application cannot be denied simply because it is opposed by neighbors or would adversely impact property values, neighborhood character, aesthetics, traffic, and/or schools. Also, if any denial is challenged in court, the burden of proof regarding the legitimacy of the reasons shifts from the developer to the local commission, which basically means an expensive lawsuit that can be difficult to win.

The statutory definition of “affordable” is housing that costs no more than 30 percent of the income of people who earn 80 percent or less than the area median income or the state median income, whichever is lower. However, the only housing units that may be counted toward the 10 percent threshold of 8-30g are those which are built, acquired, or rented with government assistance specifically for low- and moderate-income people and those with formal deed restrictions that require the owners to sell or rent them at prices that are affordable to low- and moderate-income people. Thus, perversely, a town like Fairfield, in which more than 10 percent of the housing units may meet the law’s definition of “affordable,” is still vulnerable to 8-30g “coercion” if it does not have enough “statutory” affordable housing.

We should all be in favor of affordable housing for many reasons, including the opportunity it provides for older residents, those with limited or fixed incomes, local public- and private-sector employees, and young people working in entry-level jobs. At the same time, however, we should all be in favor of what has come to be called “Smart Growth,” which means community development under a thoughtful and comprehensive master plan, such as locating high-density housing near public transportation, on streets with adequate traffic capacity and parking facilities, and close to essential services, schools, and businesses, as opposed to plunking down high-density, multi-unit housing anywhere in town that a developer happens to have acquired a piece of land.

As a concerned citizen, I believe there is a solution. Legislative leaders must lead an effort to revise Section 8-30g to give communities like Fairfield: (a) a one-year moratorium from 8-30g for any town that wants to create a comprehensive Smart Growth Master Plan (SGMP); (b) the right to deny affordable housing applications that are not consistent with a town’s SGMP, and (c) credit towards the 10% objective for non-statutory housing units that are, in fact, affordable by the applicable standards but are not “deed restricted” or “publicly assisted.”

Meanwhile, I encourage all Fairfield citizens to become informed and engaged on this important issue and to let their local representatives know what they think.

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