The Wire

  • New tunnel, premium RV section at Talladega Superspeedway on schedule despite weather

    Excerpt:

    Construction of a new oversized vehicle tunnel and premium RV infield parking section at Talladega Superspeedway is still on schedule to be completed in time for the April NASCAR race, despite large amounts of rainfall and unusual groundwater conditions underneath the track.

    Track Chairman Grant Lynch, during a news conference Wednesday at the track, said he’s amazed the general contractor, Taylor Corporation of Oxford, has been able to keep the project on schedule.

    “The amount of water they have pumped out of that and the extra engineering they did from the original design, basically to keep that tunnel from floating up out of the earth, was remarkable,” Lynch said.

  • Alabama workers built 1.6M engines in 2018 to add auto horsepower

    Excerpt:

    Alabama’s auto workers built nearly 1.6 million engines last year, as the state industry continues to carve out a place in global markets with innovative, high-performance parts, systems and finished vehicles.

    Last year also saw major new developments in engine manufacturing among the state’s key players, and more advanced infrastructure is on the way in the coming year.

    Hyundai expects to complete a key addition to its engine operations in Montgomery during the first half of 2019, while Honda continues to reap the benefits of a cutting-edge Alabama engine line installed several years ago.

  • Groundbreaking on Alabama’s newest aerospace plant made possible through key partnerships

    Excerpt:

    Political and business leaders gathered for a groundbreaking at Alabama’s newest aerospace plant gave credit to the formation of the many key partnerships that made it possible.

    Governor Kay Ivey and several other federal, state and local officials attended the event which celebrated the construction of rocket engine builder Blue Origin’s facility in Huntsville.

14 hours ago

Executive power in a pandemic

(API/Contributed)

This unusual moment in history has been full of surprises. Some of those surprises raise profound questions that we will be thinking through for a long time after COVID-19 passes.

Many people have been surprised to learn how much power state and county health officials have. In a March 25 guidance letter, Attorney General Steve Marshall reminded health officials to exercise their powers lawfully. This important reminder raises many questions about the legal sources and limits of executive power to respond to a pandemic.

Right away, we should acknowledge that most Alabamians are staying home and social distancing not because they fear legal reprisals but rather because it is the reasonable and courteous thing to do. Public health experts did their job, informing us of the danger and explaining how to reduce it. The average Alabama resident responded to that information responsibly and voluntarily.

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However, not everyone is responsible, as spring break revelers recently reminded us. And some responsible people have a lot at stake in the decision to stay at home, especially small business owners, those who live alone, and people whose livelihood depends on working with their hands. For these people, law comes into play.

We all have an obligation to obey the law. And because this is America, everyone shares this obligation, including public officials. That is what it means to have the rule of law. So, as they move from advising us to directing us, public health officials must take care to exercise only the legal powers they have, and not to use their powers to deprive citizens of their fundamental rights. The ends do not alone justify the means.

Health officials are exercising two executive powers. One power is conferred upon them by statute. That is the power to quarantine. The other power is inherent in the executive prerogative. That is the power to take strictly necessary actions to preserve human life in an emergency. Both of these powers are well-established in our laws, stretching all the way back to the customary law that we inherited from Great Britain at the American founding. And both must be exercised according to law. They have inherent limits on them, and an official who exceeds those limits is acting unlawfully; his actions are legally invalid.

The power to quarantine has two, important limitations. First, it can be activated only by the legislature, not by an executive officer, such as a state or county health official. As the Alabama Supreme Court explained in a 1944 decision, the legislature proclaims a quarantine and the executive executes the quarantine.

This is analogous to the war power at the federal level. The Constitution of the United States confers upon Congress the power to declare war and on the President the power to execute the war as Commander in Chief. The Constitution does not confer upon the President power to make war in his own discretion.

Similarly, the State Health Officer does not enjoy power to quarantine anyone he thinks should be quarantined. “Quarantine” is a term of art from the common law and maritime law. In maritime law, “quarantine” refers to a particular probationary period during which a ship returning from a country infected by plague was held in isolation for forty days. On land, quarantine is proclaimed by the legislature as an exercise of its police powers to promote the health, safety, and general welfare.

The Alabama legislature purports to have delegated the power to “proclaim quarantine” to “the Governor, whenever he deems it necessary, or the State Board of Health.” But this should not be read as a blanket delegation. That would be a violation of the non-delegation doctrine, a constitutional rule that prohibits the delegation of legislative powers to the executive.

The nondelegation doctrine reinforces common sense. The legislature is in the best position to consider and balance all of the various goods and interests at stake in an emergency such as this, to take into account the importance not only of public health but also the livelihoods of Alabama’s citizens. State and local health officials are experts in medicine and public health, but are not as well situated as others to consider the competing goods at stake, to understand the economic implications of their actions, or to establish benchmarks for measuring success of a quarantine.

The second limitation is that quarantine can lawfully be imposed only on a person who is infected, reasonably suspect of being infected, or dwelling in an infected house. In other words, quarantine is a targeted remedy, and it is incumbent on officials to discern who is infected and who is not. The common law remedy for an unlawful quarantine is a writ of habeas corpus, a right guaranteed by the U.S. Constitution. It secures the ancient rights of freedom of movement and of the presumption of innocence, two of the most fundamental rights in our law.

Like everyone else, executive officials also have the right to do things that would otherwise be unlawful acts of trespass or battery, if those acts are strictly necessary to save lives. But necessity is a temporary and limited justification. A state that wants to restrain the movement of its people for an extended time must tailor the remedy to the danger under the quarantine power.

That is the job of the legislature. As this crisis drags on, it becomes more important for the people to gather in Montgomery through their elected representatives and fashion a long-term solution to the problems that we face.

Adam J. MacLeod is Professorial Fellow of the Alabama Policy Institute and Professor of Law at Faulkner University, Jones School of Law. He is a prolific writer and his latest book, The Age of Selfies: Reasoning About Rights When the Stakes Are Personal, is available on Amazon.

2 weeks ago

Leadership revealed in a crisis

(API/Contributed)

Unusual challenges such as this coronavirus pandemic teach us who we really are. They reveal whether we are courageous and generous or fearful and selfish.

Our leaders are no different. We learn their virtues and vices when they are tested by difficult times. Three such virtues are especially important for leaders in a time such as this: moral discernment, prudence, and lawfulness.

A leader must judge morally because he must identify and respond appropriately to moral wrongs. He must protect human life from intentional acts of killing, protect bodily integrity from acts of violence, and protect against deliberate attempts to injure the health of others.

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Moral discernment is important because leaders must see the difference between wrongs and risks, and must respond to them differently. Moral wrongs are different from risks. We should never be willing to kill someone intentionally. No matter the cost-benefit analysis, it is never reasonable to do wrong. But we reasonably accept many risks as we go about our lives, because there are always risks on both sides. Most of the difficult decisions in life are a matter of hard choices and trade-offs, rather than right and wrong.

Our response to this pandemic is primarily a matter of risk assessment, rather than an issue of right and wrong. If we do too little to avoid virus transmission then we risk that some people will die. But if we over-react, we cause people to lose their livelihoods and the civic links that give their lives meaning.

Our leaders do well to condemn and restrain unnecessarily risky behavior. We are rightly dismayed to see images of young people crowding beaches during spring break. Their behavior is foolish and inconsiderate. But our officials should distinguish between folly and intentional wrongdoing.

On this count, Alabama officials look better than officials from other states, such as New York. Governor Andrew Cuomo asserted that his recent decision to shut down all non-essential business will be justified “if everything we do saves just one life.” His confused moral sentiment obscures the fact that people lose their livelihoods when governments force small businesses to close their doors. We know that unemployment correlates with increased suicide, drug addiction, and other life-threatening pathologies. On Cuomo’s own logic, not bringing the economy to a halt would be justified if it saves just one life.

A similar moral confusion led officials in Massachusetts and California to permit abortion clinics to remain open, even as they have ordered other elective procedures and other business transactions, respectively, to cease. We must protect rights of life and liberty first by not intentionally infringing them. Alabama’s leadership understands this better than the leadership of Massachusetts and California.

Because risk assessment is difficult, leaders also must demonstrate prudence. Spring break revelers lack prudence; they disregard the risks that their revelries create for other people. But avoiding a risk at all costs is also imprudent. To close all non-essential businesses, as California and New York officials did, has real costs in lost income and livelihoods. Human lives depend on human livelihoods.

A prudent leader avoids extremes. It would be imprudent to do nothing in the circumstances, to allow life to proceed as normal. And it would be imprudent to do too much, to cause lasting damage to the economic and civic institutions that sustain the lives of ordinary people. Especially when, as now, we have imperfect information about the risks we are facing and the long-term harms we might cause by over-reacting, prudence counsels us to hesitate before making centralized decisions, to advise before ordering, and generally to adhere to the maxim that we should first do no harm.

Compared to officials in other states, Alabama officials have so far acted prudently. And many religious, business, and civic leaders in Alabama have taken prudent steps to reduce the risk of transmission without over-reacting, and without being ordered to do so.

Lastly, leaders and officials must act lawfully. Leaders of civic institutions should not flout the laws that our public officials promulgate. Neither are lawmakers above the law. Public officials should not disregard the constitutions of the several states and the United States and other sources of fundamental law.

Unfortunately, some officials are acting unlawfully. In most places, public officials have prohibited public gathering and groups of people larger than a certain number. In some cities and states, the prohibitions apply to religious assembles, even as certain secular gatherings are exempt.

The idea has become fashionable in recent years that government has the power to regulate religious exercise as it regulates liquor sales and bankruptcy proceedings. That notion is false. Obligation to God, who is the source of our rights, precedes obligation to human officials, and governments have no competence to define or regulate religious duties. This is clear not only from our founding documents but also from our entire legal tradition stretching back to Magna Carta and beyond.

Governments are neither omnipotent nor omnicompetent to solve our problems. Their powers are limited by moral reality, prudence, and law.

This crisis will pass. And when it does, we will know better who deserves praise and who is unequal to the responsibilities of leadership. No merely human leader is perfect. But so far, our civic and political leaders in Alabama appear suited to this difficult time.

Adam J. MacLeod is Professorial Fellow of the Alabama Policy Institute and Professor of Law at Faulkner University, Jones School of Law. He is a prolific writer and his latest book, The Age of Selfies: Reasoning About Rights When the Stakes Are Personal, is available on Amazon.

2 months ago

The future is coming: What do you want it to look like?

Alabama State Flag (Photo: Raymond M.)

The future is on its way to Alabama. That is inevitable.

What the future will bring is not.

But there is a potential future that many people want to bring to Alabama. Though it is sold as a future of freedom and equality, it is not a future in which people flourish.

Call it the Future of Conformity.

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You have likely seen images of this future on television and the Internet. Perhaps you found those images baffling: Biological men demand to be referred to as women. Children are assigned birth certificates listing two mothers and no fathers, or two fathers and no mothers. Polyamorous throuples seek public approval of their relationships.

The Future of Conformity promises diversity, but it delivers uniformity and centralized control.

Everyone must approve of all lifestyle choices and family structures, by coercion if necessary. Central governments promise to solve problems that central governments helped to create, such as unresponsive and failing schools, transportation infrastructure that fails to meet local needs, housing shortages caused by land-use regulations and rising health care costs.

Worst of all, the Future of Conformity is ideological.

Students who are privileged enough to enroll in the most prestigious colleges and universities in the world object to hearing ideas that they find uncomfortable. Young people speak well of socialist ideals. Some even wear totalitarian symbols, such as images of Che Guevara (think of Berkeley) or variations on Nationalist Socialist symbols (think of Charlottesville).

We are told that the Future of Conformity is inevitable, and that those who resist it will end up on the wrong side of history.

And indeed, many of the cultural trends making their way toward Alabama are logically entailed in a certain conception of human freedom, a freedom to be affirmed in one’s identity and to satisfy one’s desires, whatever they happen to be. The Supreme Court of the United States expressed this concept of freedom in its 1992 decision in Planned Parenthood v. Casey, where the Court’s opinion asserted, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Someone must pay the cost for such a radically unconstrained freedom.

Most often, the bill passes to children.

The cost is paid not only by the unborn, who exit abortion clinics by the back door in refuse containers, but also by children deprived of legal and personal connections to one natural parent (usually their father), and all those growing citizens who will someday inherit our debts and obligations.

People of faith and good conscience also pay a price.

The Future of Conformity has no tolerance for those who perceive the inherent value of natural marriage and the unique dignity of man and woman. It has little use for religious schools and tax-exempt religious assemblies. It demands freedom to expose young people to drugs and obscenity that corrupt.

Communities would also suffer.

All of the various and plural domains of civil society that have supplied the vitality of American exceptionalism from the beginning are likely to be supplanted by government in the Future of Conformity.

Alabamians and other Americans have always done their best work in small businesses and innovative startups, charities and aid groups and education societies, private and parochial schools, service clubs and volunteer organizations, and the other groups and associations that stand between the individual and the state, and which generate knowledge and new goods. The Future of Conformity has no place for them, except perhaps as useful vehicles for dispensing acceptable dogmas.

Anyone who has lived in the elite corridors of cultural power on America’s coasts has already experienced the Future of Conformity. If they are not indoctrinated in its ideologies, they will tell you that the Future of Conformity is stifling, not liberating.

It is a future in which people refrain from speaking obvious truths for fear of losing their jobs and reputations. It is a future without manners. It lacks understanding, yet, accuses the faithful and the knowledgeable of bigotry.

Here is the good news: The Future of Conformity is not inevitable.

We get to choose.

But we must choose something else. It is not enough to reject the Future of Conformity. We must offer our young people a different, brighter future.

A more attractive future would embrace the best aspects of our traditions while also advancing the genuine improvements we have made in achieving knowledge and justice. It starts with the primacy of religious faith, human reason, and natural rights. It would affirm our founding principles and celebrate those moments when we vindicated them, yet it would also candidly acknowledge that we have not always lived up to them and call us to do better.

Call it the Future of Ordered Liberty.

In the Future of Ordered Liberty, knowledge is passed on to the next generation; ignorance is vanquished. Schools and universities resist ideologies and reject calls for censorship even as they teach time-tested ideas and human achievements. Not all opinions are equally valid. The objective is knowledge of truth. Educators should pursue truth and should recognize the difference between truth and their own dogmas.

The Future of Ordered Liberty is a future in which genuine and justified civil liberties are secured and celebrated.

Intentional racial and ethnic discrimination is remedied and sanctioned, and people have freedom to speak important truths and to obey their conscience. The government secures property rights instead of threatening them and allows the plural groups and associations of civil society to flourish and to do their good work. Religious groups enjoy liberty as a matter of right, not as a concession of privilege from government.

The future is coming to Alabama. That much is certain.

What will the future look like?

That is up to us.

Adam J. MacLeod is Professorial Fellow of the Alabama Policy Institute and Professor of Law at Faulkner University, Jones School of Law. He is a prolific writer and his latest book, The Age of Selfies: Reasoning About Rights When the Stakes Are Personal, is available on Amazon.

5 months ago

Alabama follows the law, history in forgoing marriage licenses

(CBS 42/YouTube)

For just over a month now, Alabama officials have not issued marriage licenses. They instead record certificates memorializing marital contracts, signed by married couples and notarized.

The law authorizing this change is a sensible and principled compromise. Indeed, it might be a model for other states. It accommodates both the opinion of the U.S. Supreme Court, expressed in its 2015 Obergefell v. Hodges ruling, that natural marriage can no longer be privileged in law and the rights of state officials who cannot in good conscience affirm a conception of marriage that they understand to be false.

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Alabama probate judges have long had different legal obligations than Kim Davis, the county clerk in Kentucky who stopped issuing marriage licenses after Obergefell.

In August, the United States Court of Appeals for the Sixth Circuit ruled that Davis infringed the rights of same-sex couples. Kentucky law requires a clerk to issue licenses. And the Supreme Court’s ruling in Obergefell requires that, if states license natural marriages then they must also issue licenses to same-sex couples.

Davis argued that she was not flouting Obergefell. She did not discriminate; she did not issue licenses to anyone. In the words of the Fourteenth Amendment to the U.S. Constitution, she did not deny anyone “equal protection” of the laws of Kentucky. But the Court of Appeals ruled that her refusal to issue licenses violated a right that was “clearly established” in Obergefell and grounded in the Due Process Clause of the Fourteenth Amendment.

The idea that the Due Process Clause requires states to issue marriage licenses is implausible.

So, the sensible interpretation of the Davis ruling is that, because Kentucky law requires clerks to issue marriage licenses, Davis shirked her duty by refusing.

That reasoning has no bearing on Alabama law. Even before Alabama abolished marriage licenses, its laws authorized but did not require county officials to issue a license.

The alternative — that the Due Process Clause requires marriage licenses — would be ludicrous.

The Fourteenth Amendment was ratified in 1868. States did not begin issuing marriage licenses until the early 1900s. Union soldiers did not fight and die in the Civil War to obtain permission from the state to get married. Nor would it have occurred to anyone who voted to ratify the Fourteenth Amendment that “liberty” means seeking government permission to do what God and nature commend.

When states did begin licensing marriages, they did so in part for reasons that violate the Fourteenth Amendment. Some states created marriage license schemes and other vital records in order to improve public health data. But many did so to prevent intermarriage between the races (known as “miscegenation”) and to facilitate forced sterilization and other eugenics programs.

Proponents of marriage licensing laws were candid about these goals. The influential eugenicist Harry Hamilton Laughlin explained in a 1922 report to the Chicago Municipal Court: “[A]mong the most eugenical of [limitations on marriage] are those relating to certain types of miscegenation and those denying marriage to the insane, feebleminded and other constitutional degenerates or defectives.”
Marriage licenses empower states to control marriage.

Laughlin explained that marriage records are also important to enable eugenicists to identify “individuals personally defective,” who suffer “hereditary degeneracy,” so that they can be denied admission to marriage. “The location of such degeneracy is a difficult task,” he conceded, “but is necessary as a foundation for the intelligent purging of the race.”

Laughlin’s frank disclosure of the racist, social-Darwinian motivations behind marriage licensing laws might startle those who have never studied the history of legal concepts (a group that today includes most lawyers, unfortunately). But some judges and elite lawyers today seem to share his assumption that judges and other government officials have power to define what marriage is and to grant permission to marry.

Laughlin was candid about the implications of this assumption. The power to define marriage and to grant permission to marry is the power to prohibit real marriages between man and woman, which are capable of producing children whom the government deems undesirable.

Laughlin looked forward to the day when governments would not only prevent marriages between different races and by “defectives” but would also “limit marriage to persons who can demonstrate the possession in their family trees of socially valuable mental, physical and temperamental qualities.” Advances in scientific knowledge would, he hoped, eventually bring about “the limitation of marriage to persons of demonstrated natural worth.”

This is not to suggest that those who today advocate a statist conception of marriage do so because they are closet eugenicists. It is to expose the folly of the idea that marriage exists because of state law or the opinions of federal judges.

Marriage pre-existed the first state statutes and the creation of federal courts by several thousand years.

And the Constitution does not require states to attempt to re-engineer marriage for the purposes of dogmatic elites.

Adam J. MacLeod is Professorial Fellow of the Alabama Policy Institute and Professor of Law at Faulkner University, Jones School of Law.