Recent reports that cancer has returned in Olivia Newton-John for the third time are unfortunate. But I know that Olivia, who turns 70 this month and whose mother and sister died of cancer, intends on thriving, as against merely surviving, as she once told me during one of our interviews.
The singer, whose work I’ve long covered and admired, released a statement that she is currently undergoing treatment, emphasizing her use of natural healing methods and cannabis oil for the pain. Olivia founded the Olivia Newton-John Cancer Wellness and Research Centre in Australia.
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So, letting her own idea of “love and light” guide her, Olivia continues to live large, brave and graceful by example. And I continue to draw from her strength, encouragement and balanced, peaceful reality checks, in her appearances, statements, movies, performances and music. When one in my own family was recently diagnosed with terminal cancer, I turned to Olivia Newton-John’s positive-themed 2008 duets album, A Celebration in Song, as both a source of clarity and as a gift for the loved one. The impact and gratitude for her album is now a cherished memory.
A Celebration in Song, as well as ONJ’s other softer, more personal albums since the height of her popularity, inspires. I listen to and appreciate every tune, though I consider “Courageous” the perfect song for summoning one’s innermost abilities to thrive in the face of hardship.
I first met and interviewed ONJ nearly 20 years ago and mine was her premier Las Vegas headliner show’s first review. I would love to meet Olivia again for an interview to discuss the publication for her forthcoming memoir. Once again, I wish Olivia a speedy recovery and the best of everything…with love for this phenomenal woman.
Today, the United States Senate, led by Senate Majority Leader Mitch McConnell, Republican of Kentucky, and John McCain, an Arizona Republican who unfortunately was recently diagnosed with brain cancer, approved a procedure to begin debate on legislation which may or may not repeal ObamaCare.
Much has been made by pundits about the process and politics. Too little has been discussed about the ideas and details, as was the case with ObamaCare, legally known as the Patient Protection and Affordable Care Act, and almost every major law controlling the medical profession in my lifetime. Having been an intellectual activist for freedom of choice in medicine since I lived in Chicago, I am fed up with politicians and bureaucrats controlling my health care. I’ve been advocating for individual rights and capitalism for decades, with some degree of success, though clearly not with any fundamental victory.
I am discouraged by opponents of government-controlled health care in major free market policy circles, who have failed to stop the government takeover of medicine despite relatively consistent support, growth and advancement of free market ideals in the culture. In fact, ObamaCare is based on a conservative group’s policy proposals, which I know first-hand. I also know that, with an opportunity to repeal what I regard as the worst legislation in my lifetime, not a single pro-capitalism organization proposed and advanced a serious policy to help wipe out ObamaCare, let alone a step-by-step plan that Congress could adopt to end this monstrous law.
Though I am a writer, not a health policy scholar, I’ve taken the liberty of making my own proposal to abolish ObamaCare and promote a rational health care policy alternative to government intervention in — and control of — medicine. This essay includes specific steps, including ideas for action to educate the public about capitalism and ad hoc ideas for fostering charity and holding altruists to account for their morality. I call the commentary Seven Steps to Cure ObamaCare. I know there are pro-individual rights policy analysts more qualified than myself to propose ways and means to eradicate ObamaCare. I welcome feedback on what I intend to be a policy discourse catalyst to end this terrible law. So, it is my aim to end to the widespread damage, pain and suffering I know ObamaCare causes.
Read my commentary, posted today on Capitalism Magazine, here.
The author proves his thesis. It’s worth mentioning the book’s problems, however, which, in general, are to be found with works by most right-wing, libertarian intellectuals: the intended audience appears to be fellow libertarians and conservatives, so the assumed context of knowledge may not apply to the leftist, liberal or general reader. Also, given the dense material, certain sections are uneven. Barnett writes like the legal scholar he is, so the back and forth can be exhausting. And, as he did in our interview about ObamaCare, Barnett declines to name the correct moral premise of his argument.
With the republic urgently at stake, though, Our Republican Constitution is extremely informative and Randy Barnett makes a powerfully important case for activism in order to save the American republic. He accomplishes this by reducing multiple ideas, if circuitously, to the rights of the individual.
As he observes in the introduction:
At its core, this debate is about the meaning of the first three words of the Constitution: “We the People.” those who favor the Democratic Constitution view We the People as a group, as a body, as a collective entity. Those who favor the Republican Constitution view We the People as individuals.”
From here, incorporating the ideas of John Locke, Montesquieu and Jean-Jacques Rousseau, Barnett tells stories based on facts, quotes and history, of American government in decline, from major mistakes during the nation’s founding to the suspicious Supreme Court decision to uphold ObamaCare, in which he notes that “it was reliably reported” that the nation’s Chief Justice—conservative John Roberts—switched his vote on the individual insurance mandate, possibly due to intimidation.
The central conflict in Our Republican Constitution is between these two opposing views, the Democratic Constitution—”first comes government, then come rights”—tied to Rousseau’s notion of the General Will, which Barnett eviscerates, and the premise of the Republican Constitution: “first come rights and then comes government.” After outlining his case with ample historical sourcing and documentary evidence, the author sets it up, asking the reader: “Were the founders really against democracy? You bet. They blamed the problems in the states under the Articles of Confederation on an excess of democracy.”
Differentiating between both sides’ views of popular sovereignty, which he acknowledges are both consistent with the idea of representative government, Barnett breaks down the story of slavery in the United States, which he develops throughout the book. He points out that Democrats defended slavery as a form of socialism, as against capitalism, because, Democrats argued, slaves are cared for from cradle to grave. He digs into details and aspects of whether, “given the sovereignty of the people as individuals, the people cannot be ‘presumed’ or ‘supposed’ to have confided in their legislature any power to violate their fundamental rights.” The answer is No.
Not according to Democrats, of course, who believe that a majority of the people gets to speak for everyone (President Martin Van Buren’s idea of democracy, he writes, was close to Rousseau’s: “He ‘seems to have conceived of the democracy almost as a unified body with a single true will’). Barnett adds: “And the majority, if it wishes, can even authorize the enslavement of the minority!”
Along the journey, which is in turns jaw-dropping, illuminating and, given today’s political context, terribly depressing, the reader learns about an Ohio senator who, in 1854, demanded to know “[w]hat kind of popular sovereignty is that which allows one portion of the people to enslave another portion? Is that the doctrine of equal rights? Is that exact justice? Is that the teaching of enlightened, liberal, progressive Democracy? No, sir; no! There can be no real democracy which does not fully maintain the rights of man, as man.” Or that the Civil Rights act of 1866 granted that:
citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude…shall have the same right…to make and enforce contracts, to sue, be parties, give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens…any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.
Midway through Our Republican Constitution, it is evident that that’s not the civil rights act that today’s students learn about in state-controlled U.S. history classes (to the extent American history is taught in government schools) and the state of the union today might be very different, which is to say better, if they did!
Piling on shocking tales of early American acts of anti-capitalism, Barnett goes on. Democratic Constitution proponents include Democrats, Rousseau and Oliver Wendell Holmes, whom Barnett demonstrates believed that “if there exists anyone who is rational and fair who thinks that a measure is constitutional, then it is.” Other arch-opponents to a republican Constitution were Woodrow Wilson, who sought to subject America to parliamentary rule, and Theodore Roosevelt who once said of the judiciary: “our prime concern is that in dealing with the fundamental law of the land, and assuming finally to interpret it, and therefore finally to make it, the acts of the courts should be subject to and not above the final control of the people as a whole.”
After establishing the arguments for and against and setting the contrast, the Georgetown University professor sums up the cold, hard truth that America’s “system of voting does not [in fact] allow the sovereign people to ‘rule,’ and it is a pernicious myth to claim that they do.”
Though he never fundamentally, philosophically challenges “the social compact” or General Will, it’s easy to apply the detailed, persuasive points of Barnett’s thesis to today’s ominous possibilities. The prospect of Donald Trump‘s proposed strongman rule comes to mind as Barnett quotes Montesquieu, who explained that: “There is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”
Barnett delivers a good explanation of the rise of the omnipotent state, closing the loop with an excellent summary and warning from Supreme Court Justice Clarence Thomas:
we have too long abrogated our duty to enforce the separation of powers required by our Constitution. We have overseen and sanctioned the growth of an administrative system that concentrates the power to make laws and the power to enforce them in the hands of a vast and unaccountable administrative apparatus that finds no comfortable home in our constitutional structure. The end result may be trains that run on time (although I doubt it), but the cost is to our Constitution and the individual liberty it protects.”
To his credit, Barnett, who has written several Constitutional volumes and whose new book includes a foreword by George Will, is aware that this thoughtful, timely and intelligent book isn’t exactly what you’d buy for reading at the beach—after one section, he admits that “perhaps you had difficulty even following it”—but he doesn’t identify the ends where we’re heading, merely referring to “whatever progressive political agenda may be at any given time”. Our Republican Constitution would benefit from stronger connecting of the dots, as Barnett himself seems to grasp. For instance, perhaps sensing that an outright socialist such as Bernie Sanders might follow the disaster of a Trump or Clinton presidency, he rightly observes that “[f]or our modern-day progressives, what matters is the end, not the means. Social justice, not democracy.”
Though he does not spell out what this really means in practice, let alone demonstrate why socialism is evil, a chronic libertarian deficiency, and in the following chapter, he magnifies the minutiae, Randy Barnett leaves the reader with an abundance of historical facts and useful intellectual weapons with which to fight for Our Republican Constitution, all but daring the reader to use it or lose it with the words of President Calvin Coolidge: “We live in an age of science and abounding accumulation of material things. These did not create our Declaration. Our Declaration created them.”
And, while his defense manual for “securing the liberty and sovereignty of We the People” was undoubtedly written before the rise of the orange-haired, state-bred crony and the impending end of the Republican Party, Barnett clearly anticipates danger ahead. Referring to Coolidge’s above quote on freedom as the precondition for progress, Barnett boldly concludes that “we need a Republican Party that can say this, understand this, and truly believe this once again – and, if not the existing Republican Party, then a new one to replace it.”
With an index, extensive notes and a poignant acknowledgment of his father, a victim of Alzheimer’s—”this book is dedicated to the memory of the man who had the greatest influence on my political convictions: my father and personal hero, Ronald Evan Barnett — who was a true “Republican” as I am defining the term”—Our Republican Constitution is a thoughtful Father’s Day present and an eye-opening self-defense for the rational American which offers historical enlightenment about America’s true origins.
How the mind works, recalls and knows is the main theme of the alternately disturbing and stimulating Concussion starring Will Smith as the doctor who discovered chronic traumatic encephalopathy (CTE), the deadly condition caused by playing football. Sony‘s movie, which tries to bundle too much into the story, is imperfect. But it absorbingly depicts one man’s singular quest for knowledge and judgments which arguably ought to end football.
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Concussion is anti-football strictly as facts allow. Smith’s Dr. Omalu, a pathologist in Pittsburgh, the industrial American city of champions in business, sports and medicine, eventually acknowledges what others regard as the beauty, grace and power of pigskin’s professional sport. But the film is about the effects of football, not an examination of what drives everyone to it.
The field play happens in game clips, conveying an essence of its brutal competition. But the characters play in Salvatore Totino’s gleaming photography, which captures Pittsburgh’s arenas, bridges, buildings, inclines and airplanes in the glory of glass and steel against green hills and gray skies.
Concussion‘s mind versus muscle clash in this ideal setting portrays a uniquely American contest—pitting the man who thinks against the man who refuses to think. Watching it is as gripping as watching a well done scoring drive.
In Will Smith’s characterization of coroner’s office neuropathologist Dr. Omalu, with fine supporting performances from Alec Baldwin and Albert Brooks, Concussion delivers what one character rightly calls “an American hero” who at his core seeks to end the killing of an innocent man. He is practicably spiritual in an almost Greek sense, though he goes to church, hangs crosses and speaks of God. This self-made African doctor who earned both a master’s degree and a medical degree in addition to getting his MBA from Pittsburgh’s Carnegie Mellon University is devoted to his chosen profession and reverential about practicing medicine in (pre-ObamaCare) America, which he tells another immigrant is the only nation where one is free to be the best.
Concussion‘s prolonged set-up begins with a patient zero, Pittsburgh Steelers‘ center Mike Webster (David Morse) the first of many tortured, diseased football players who are doomed to die from complications related to CTE, most by suicide. This figures uncomfortably and prominently into the forensics-driven plot, which dips and curves like the roads in Pittsburgh’s hills. When Omalu’s mentor, Cyril Wecht (Brooks in another excellent turn), backs Omalu’s investigation with the line that he never leaves a lead alone, adding that “that’s why people hate me”, it is both a piece of advice and a warning. Idiosyncratic Dr. Wecht encourages idiosyncratic Dr. Omalu to find romance, which blooms when a nurse (Gugu Mbatha-Raw) appears at church.
The good doctor embarks on the noble inquiry, based on a proprietary theory with the blessing of the seasoned sponsor, followed by a first dance and a first kiss in the doctor’s steady and messy pursuit of happiness. As he does, of course, having persuaded the best medical minds in Pittsburghand that’s saying something, he faces the obstacle that Americans both fixate on and have faith in: football. The object of worship’s receptacle: the cartel—or is it monopoly—known as the National Football League (NFL). What Concussion does not show is the NFL’s affiliation with the shady sports press and other various conflicts of interest, but at least Concussion shows fans’ mindless complicity in the widely held gladiator spectacle—or is it slaughter—with pictures of people cheering as men pulverize one another. I don’t mean to sound sanctimonious. I used to do that, too.
Dr. Omalu, making his way to realizing the American Dream and blissfully single-minded about CTE after getting published and corroborating his theory to the point of missing that the Dream is barely alive, personifies that medicine is a serious, fact-based business which requires supreme autonomy—and, by contrast and implication, that football is the opposite. Players are used and discarded in a meat grinder that treats men as flesh made only of muscle, to hell with their minds. Dr. Omalu pushes on, explaining that man, unlike other animals, has no shock absorbers and cannot withstand the “unremitting storm of sub-concussive blows” without serious risk of injury.
Mike Webster received an estimated 70,000 of those blows. He ended up with the misery that’s peculiar to CTE. He was dead by the age of 50.
Concussion demands to know why. With writer and director Peter Landesman overusing closeups of eyes, heads and faces, this movie, which is based on a magazine article, expresses that to know is to live. The script and performances ardently add up to a powerful scene with Dr. Omalu standing before the players association as if he’s in a church—the church of pro football—experiencing something like a resurgence of man’s spirit. Concussion insists upon treating men as men and naming the consequences of either seeing the living as pawns in a game or as individuals with the right to life. None of this is obvious in the picture, which is neatly scored by James Newton Howard.
I grew up watching and playing football for fun and I was once a fan. I once waited for hours to meet the glorious Pittsburgh Steelers and get their autographs—I did and I’m glad I did—and I met the late Mike Webster and the late Dave Duerson (who is somewhat vilified here) and others depicted in Concussion. When chronic traumatic encephalopathy became known, the fun ended and I am no longer able to enjoy the sport. This was true long before this thoughtful movie was released. Despite having too much plot, religion and Sony’s requisite out of place product placement, Concussion does more than dramatize an argument against football. It dramatizes how to hold knowledge of existence—expressly for the advancement of man’s life on earth—above all fetishized and romanticized notions of sport, city and country. It never leaves facts alone. It asks the same of the audience.
Paul Beard II is a principal attorney at Pacific Legal Foundation (PLF), where he focuses on property rights, especially in litigation against government agencies, such as the California Coastal Commission, that violate private property rights.
Last year, Beard argued and won a landmark property rights case (Koontz v. St. Johns River Water Management District) before the United States Supreme Court. The case establishes that land-use permit exactions of money are subject to heightened scrutiny under the United States Constitution. Beard also practices other areas of constitutional law, including free speech, equal protection, environmental, and Commerce Clause law. He currently is the lead attorney in PLF’s lawsuit, on behalf of Iowan artist Matt Sissel, challenging the constitutionality of ObamaCare under the Commerce and Origination Clauses.
Beard is admitted to the bars of California, numerous federal district and appellate courts, and the United States Supreme Court. He received a B.A. from University of California at Los Angeles (UCLA), and a J.D. from Cornell Law School. He is also a former classmate of mine in the Objectivist Academic Center (OAC) in Irvine, California. This is an edited transcript.
Scott Holleran: What is the primary challenge of being a lawyer for a non-profit organization that defends individual rights?
Paul Beard: Educating and trying to convince the courts, particularly in California, of the importance of private property rights and individual liberty. Finding cases is easy because we don’t charge for cases and it’s easy to set the case up for litigation. But it’s a much different question with this constitutionally originalist idea of what rights are and why they should be protected.
Scott Holleran: How can activists in the grass-roots movement for individual rights improve?
Paul Beard: Ultimately, the bottom line is doing a better job of educating voters—those who make a difference at the ballot box. Even local and state elections are important because the people we elect have control over the makeup of our judiciary. If we’re going to do a better job [advancing property rights protection] one component is educating the average voter—they do not understand the importance of the Constitution and the Bill of Rights and therefore don’t have the knowledge to vote for the right people that will be intervene in protecting individual rights. I say this as a lawyer. Of course, there are other ways, such as cultural, to influence and affect change.
Scott Holleran: What can those who want to support Pacific Legal Foundation do?
Paul Beard: Go to PLF’s Web site and donate—we take no funds from the government—plug into our social media and make sure that our work is getting distributed as far and wide as possible. Visit PLF not just for making donations but also for educating people. Help us find new clients and new cases.
Scott Holleran: Do you agree with Ayn Rand that property rights are paramount to individual rights?
Paul Beard: Absolutely. Without property rights, it’s PLF’s position and my personal view, all other rights fall. [Without property rights] [y]ou don’t have your own home publishing materials, computer, printer or copier. You need private property for freedom. So to the extent government regulates or overregulates, without property rights, we’re not really free. Government regulation that eliminates force from transactions is necessary and proper, both constitutionally and from a moral perspective. By overregulation, I mean regulation that goes beyond that fundamental purpose of eliminating force. It identifies regulation that itself causes or authorizes the initiation of force against individuals.
Scott Holleran: You recently argued before the United States Supreme Court in favor of property rights, giving PLF its seventh consecutive victory in the Supreme Court. Is anything about arguing before the Supreme Court easier than you anticipate?
Paul Beard: The argument was difficult not just because it was the Supreme Court but because of the issues involved. The easiest part from my perspective is always to respond to what my opponent has already said. If you’re the first to present the case, as I was, it’s harder. It is easiest to respond in that sense. But there’s really no such thing as easy when arguing before the Supreme Court. I came away thinking we may have lost the case. I can’t think of a moment when I was at ease.
Scott Holleran: Let’s talk about your case before the high court, Koontz v. St. Johns River Water Management District. What is an exaction?
Paul Beard: In the land use permitting context, it means a concession that is demanded by government as the condition of approving a permit that gives you the right to use and enjoy your private property. Exactions have been around since zoning laws were enacted in the early 1900s. Their use grew dramatically in the post-World War 2 era, with the creation of new suburban subdivisions. The whole land use permitting scheme should be unconstitutional, not just because of the exaction. The government has no business telling a property owner before he makes any use of his property what he can do so. The whole permitting process should not be allowed. Obviously that ship has sailed.
Scott Holleran: What is the essential argument against the California Coastal Commission and why doesn’t the PLF challenge its existence?
Paul Beard: As to the first question, the basic legal philosophical argument against the Coastal Commission is that the Coastal Act, the state statute which gives rise to the California Coastal Commission and all its powers, in essence socializes all of the private property in the coastal zone. Under the Coastal Act, since its passage in the early 1970s, coastal private property owners really just own title to the property, they don’t own the property as they see fit. Most jurisdictions in the country are like that, with Houston as an exception, and have [certain] government agencies that issue permits. Magnify that to the entire state—a land use body that purports to tell everyone within the coastal zone whether they can use their property and, if they can, the extent to which they can use their property. And, if they can, what values the property owner must give up to the state in exchange for the property owner exercising his property rights. As to the second part of the question, with regard to the state of California and the U.S. as a whole, the way the Constitution has been interpreted, it’s near impossible to make a credible argument in a court of law that the government does not have the authority to regulate land use. Maybe one day, when the culture has significantly changed, we can get back to [a legal recognition of] property rights. But right now the law is unequivocally clear that the government can use and dictate use of your private property. Their power is limited—our cases prove that—but they can regulate land use. To what extent is where the battles are at. [The] Kelo [decision by the Supreme Court] was a disaster but we saw some success because the burden shifted to states to fix the eminent domain problem [and some did]. In Kelo, we saw that the government can take property from property owner A and give it to property owner B. That’s insane. Eminent domain had previously been used to build roads and schools and now it’s being used for cronyism. California Gov. [Edmund “Jerry”] Brown did do one good thing when he agreed to defund redevelopment agencies.
Scott Holleran: Is the right to property properly understood?
Paul Beard: It’s the biggest issue and it’s an issue of cognitive dissonance. People tend to get the concept of private property rights in regard to themselves but not with regard to someone else’s private property rights and pursuit of individual rights. When it’s a company or others, not themselves, people tend to say we should restrict property rights—ban so-called big box stores, go to the public hearing [to protest]—that is the biggest problem or hurdle. I think most folks can get on board with the homeowner or small business owner and [recognizing] their rights but, as soon as the example gets bigger—especially if it’s a large business like Walmart—then it’s a question of wealth, status and size and it becomes ‘property rights for us, no property rights for them’. There is class warfare-ism. Fundamentally, what they see as an issue of ‘I’m building a home on my lot—who am I injuring? No one.’ But if Walmart is [perceived as potentially] putting a small business out of business or creating low-wage jobs or increasing traffic congestion, all these so-called injuries to the public justify the regulation.
Scott Holleran: Why did you lose the McNamee case, in which the property owners (George and Sharlee McNamee, pictured with their attorney, Paul Beard) asserted their right to have amenities, such as a picnic table and shed, on beach property they own?
Paul Beard: I was probably a lot more optimistic about the California court system than I am today. The courts, particularly in California, have come up with these doctrines [hostile to property rights]. One of them says [in effect] ‘who is the court to second guess what the government [agency or bureaucracy] has decided?’ The California Coastal Commission, for example, hears permits for land use every day and they may decide whether—whether!—private property is an aesthetic harm to the community. [The judicial doctrine of deference is:] Who are three judges on the court of appeals to say what is good for this neighborhood? Were the McNamees’ picnic amenities consistent with other uses of that stretch of beach and the state’s own use of that beach? We were questioning the aesthetic judgment of the Commission. The court just wasn’t willing to second guess the California Coastal Commission. Because the legislature so broadly defines what the Coastal Commission can regulate, it has near-limitless power.
Scott Holleran: This gets back to your point about voting –
Paul Beard: Absolutely. There could be an amendment in the California legislature tomorrow to rectify the Coastal Act. Someone tried to build in an exception to the Coastal Act for allowing fireworks on the Fourth of July and the bill didn’t pass because there weren’t enough votes.
Scott Holleran: In legal terms, is a government commission for the environment consistent with the law?
Paul Beard: It isn’t. [Pauses] I want to be as precise as possible. I want to talk about the Bill of Rights. Any government agency that preemptively restricts your right to your property—your private property—is inherently unconstitutional. You look through the Constitution and nowhere does it say that [government may unreasonably restrict the right to private property]. Under the 5th and 14th amendments, the Bill of Rights protects every individual’s fundamental rights to use, develop and enjoy their property without unnecessary and improper regulation. This gets back to what we were talking about earlier. If the government acts to protect a tree or a bug or enhance aesthetics, that is a violation of property rights.
Scott Holleran: What is the most important case for property rights in American history?
Paul Beard: The most damaging case is a case called Village of Euclid v. Ambler Realty Company in 1926. It was a landmark Supreme Court case that upheld zoning. It’s certainly proper and necessary for the state to prevent people from exercising rights in a way that harms others. Along comes this case in which the first zoning law is challenged in court. The law attempted to plan the way in which property was used for purposes of aesthetics and all types of non-injurious factors. The Supreme Court upheld that under the 14th amendment [and it constitutionalized zoning and the idea that the state can dictate land use including private property]. There’s also a case PLF litigated, Nollan v. California Coastal Commission, and I don’t mean for that to sound self-serving. Exactions began to creep up after 1926 [following the Euclid decision]. Zoning really took off in the 1960s because of the ecology movement—with conservation and easement cases—and the government was doing this routinely over the years. The California Coastal Commission said that whenever anyone along the coast comes to us for a permit to do something we are going to require a public access easement across their property with one contiguous public access easement. The California Coastal Commission used the permitting process to get these permits for free. The Nollan family wanted to replace a bungalow with a single family residence—they wanted to upgrade their own home—on their beach property, so the Nollans sued and it went to the 1987 Supreme Court. The court struck down the decision and the new rule is that whenever the government demands any interest in real property as a condition of a permit, it must first show that the impact of the proposed project necessitates that interest.
Scott Holleran: Does PLF, which takes cases pro bono like Institute for Justice, favor individuals that are poor, old and under some sort of supposed minority status and what is PLF’s criteria for taking a case?
Paul Beard: We have IRS restrictions. In order to maintain our 501(c)3 status, we provide free services to those who can’t otherwise afford it. A case has to be against the government with a legal issue that we think if taken up in the court system will provide a precedent that will broadly benefit a large number of private property owners. A third criteria involves the type of client. Either the client can’t afford legal representation or, given the cost benefit analysis, he wouldn’t otherwise sue.
Scott Holleran: You are also the lead attorney on the case of Matt Sissel against ObamaCare. What is Mr. Sissel’s claim and what is the status of his case against the dictate?
Paul Beard: That the so-called Affordable Care Act has as its central provision a tax penalty on those who refuse or otherwise decline to obtain the minimum coverage that the federal government has prescribed—and if he doesn’t get that, he pays a penalty and that penalty is a tax according to the Supreme Court. If this penalty is a tax, it fails the origination clause of the Constitution because the ObamaCare with all its taxes originated in the United States Senate but the Constitution requires that all revenue raising bills to originate in the House of Representatives. It plainly in its entirety violates the Constitution and should be struck down. We just lost before a panel of the [District of Columbia] Circuit Court of Appeals and we are now going to seek a rehearing from the entire DC Court of Appeals, which has 11 active judges. If we fail to obtain a successful ruling, then we will seek the Supreme Court’s review, which is very rare. But we think we have a better chance because all it takes is for four of the nine [Supreme Court] Justices to say they want to hear a case for it to get accepted. We think we may have four Justices who dissented from the [National Federation of Independent Businesses (NFIB)] decision on Constitutional grounds. We are also actively investigating a challenge to the capital gains tax—an important revenue-raising aspect of ObamaCare.
Scott Holleran: In legal terms, is health care a right?
Paul Beard: Absolutely not. Health care, like any other service or product, is not a right—you have a right to pursue the purchase of the product or service but you certainly don’t have the right to others’ work and to get it for free. The ban on the pre-existing conditions is based on the same false premise.
Scott Holleran: Does PLF defend whistleblowers such as Edward Snowden who speak out against the state?
Paul Beard: No, we don’t. Our legal objectives are very specific in environmental law and property rights.
Scott Holleran: Is America a nation of laws or of men?
Paul Beard: Increasingly of men—with the passage of the Endangered Species Act, the Clean Water Act, the Clean Air Act, ObamaCare and executive actions.
Scott Holleran: Most of those laws were enacted by Republicans and with conservatives’ support. Who in your view poses the biggest threat to individual liberty: conservatives or leftists?
Paul Beard: Statists are the greatest threat, whatever the ideology. We have done a lot of work with Tea Party groups and I do see a softening and return to basic Constitutionalism and the idea that the primary purpose of government is to protect individual rights.
Scott Holleran: Is it true that you speak five languages?
Paul Beard: Yes. I’m fluent in Spanish, French, Italian and English. I also speak Portuguese.
Scott Holleran: Do you have a philosophy and, if so, what is it and why do you think you need it?
Paul Beard: Yes, I do. I think the most persuasive philosophy is what Ayn Rand articulated, particularly her views on morality and politics, when she created Objectivism. She has revolutionized the way I make every decision in my own life and the way I view religion and the way I approach my work. More than anyone, she has influenced my life.
Scott Holleran: Are you optimistic about the future?
Paul Beard: I am. If I weren’t I’d probably resign today. With the work the grass-roots, Tea Party activists and other groups are doing in the long term, [I think] we will get to the point where everyone values individual rights and demands a government that protects those rights.
Amesh A. Adalja, MD, is a senior associate at the University of Pittsburgh Medical Center’s Center for Health Security, assistant clinical professor in the Department of Critical Care Medicine, assistant clinical professor in the Department of Emergency Medicine. He is board certified in internal medicine, emergency medicine, infectious diseases, and critical care medicine.
Dr. Adalja is a member of the Infectious Disease Society of America’s (IDSA) Public Health Committee, the American College of Emergency Physicians Pennsylvania Chapter’s EMS & Terrorism and Disaster Preparedness Committee, the Allegheny County Medical Reserve Corps, and the US Department of Health and Human Services’ National Disaster Medical System Disaster Medical Assistance Team (PA-1), with which he was deployed to Haiti after the earthquake in 2010. He has also served on U.S. government panels tasked with developing guidelines for treatment of botulism and anthrax in mass casualty settings as well as a FEMA working group on nuclear disaster recovery. He is associate editor of Biosecurity and Bioterrorism, contributing author for the Handbook of Bioterrorism and Disaster Medicine, and he has published in the Journal of Infectious Diseases, Emerging Infectious Diseases, and Annals of Emergency Medicine. He also writes a blog about his work.
Dr. Adalja is a member of various medical societies, including the American Medical Association, the Infectious Diseases Society of America and the HIV Medical Association. Prior to joining the Center, Dr. Adalja completed two fellowships at the University of Pittsburgh—one in infectious diseases, for which he served as Chief Fellow, and one in critical care medicine. He completed a combined residency in internal medicine and emergency medicine at Allegheny General Hospital in Pittsburgh, where he served as Chief Resident and as a member of the infection control committee.
I first became acquainted with Dr. Adalja over 20 years ago when he was a pre-med student and I was editor for a health policy and patient advocacy group in Orange County, California. This is an edited transcript of the interview.
Scott Holleran: Is there 100 percent certainty among scientists that the Ebola virus is not airborne?
Amesh Adalja: When you talk about Ebola there are different species. What the evidence has shown in multiple experiences and multiple outcomes is that the Ebola Zaire and Ebola Sudan strains cause infection in humans that lead to symptoms. The virus Zaire is most deadly. There are also the Sudan, Bundibugyo and Tai Forest strains—these four species of Ebola cause infections which lead to symptoms. There is a fifth strain, Ebola Reston, which is addressed in The Hot Zone, which is different and those infected [with it] didn’t have symptoms. There is some concern that that strain may have had the potential to spread airborne. With regard to this current outbreak, there is no evidence that the strain has natural airborne properties. You may read about airborne lab model infection and that is not the same thing as how people come into contact with Ebola in a natural setting. The primary means Ebola spreads between humans is through blood and body fluids—for example, through contact with vomit, blood or fecal matter.
Scott Holleran: What concerns if any do you have about the potential for an Ebola outbreak in the West?
Amesh Adalja: I have very little concern that Ebola will be able to spread in a modern, industrial country like the U.S. chiefly because of the way it spreads. You really have to work to become infected—it’s not like measles—and you have to be in very close contact while not wearing personal, protective equipment like gowns, gloves and masks. In a U.S. setting, a patient with Ebola would be placed under protection and we wouldn’t expect it to spread. We’ve had eight importations of lassa fever, another viral hemorraghic fever spread in the same manner as Ebola, and the Marburg [virus] is in the same family as Ebola—and we’ve had no secondary spread when it was imported.
Scott Holleran: You’ve said that a best case scenario is that an Ebola treatment may be available in one year. Do scientists know most of what they need to know in order to develop a vaccine or cure?
Amesh Adalja: Yes, I do think we have the answers for how to control Ebola. Right now, in terms of vaccines, we have a product that was used in a lab in Germany which is being developed by the Canadian government, which, when tried in monkeys, was 100 percent effective. In fact, it works so well in non-human primates, which is the closest you can come to humans, that it leads me to believe that this will be the vaccine that will hopefully lead to the means to control future Ebola outbreaks. Vaccines don’t cure disease. However, it’s very early. It really has to be tested. With regard to cures, I would think about ZMapp, which was administered to [recently infected and admitted U.S. Christian missionaries] Dr. Brantly and Nancy Writebol. I wouldn’t call it miraculous, though, because, for instance, Dr. Brantly also received a blood transfusion and there were other factors, such as the best medical treatment by doctors. There is a third product made by a Canadian company—a drug which shows strong results against [the] Marburg [virus].
Scott Holleran: Recently, an Ebola outbreak has been reported in the Congo. Briefly explain who is being infected with the Ebola virus.
Amesh Adalja: What usually happens with Ebola outbreak in remote regions of Africa—in countries like the Congo, Sudan and Uganda—is that you have an individual who may have been in the forest hunting animals, such as antelopes, gorillas or chimps or bats, and that person gets sick and goes to the local health care facility in their village and the symptoms may mimic other conditions such as malaria or typhoid and may be misdiagnosed. Then, there’s an outbreak because people [caring for the infected patient] don’t realize that the person is infected with Ebola and [they treat the patient in a way that actually accelerates the spread of the virus]. For example, we’re hearing that people are using the same thermometers for patients in Liberia [where Ebola is spreading]. When that person dies, the outbreak is magnified.
Scott Holleran: Do experts know how the two infected Americans, who were working as Christian missionaries in Africa, were contaminated and, if so, how do experts know what they know?
Amesh Adalja: I haven’t seen any definitive answer to how they were contaminated. We do know that they were working there with personal protective equipment, which is very difficult to wear in those settings. Due to heat and humidity, some people may not be fully compliant [with necessary guidelines and use of equipment]. It’s always important to wash hands, especially for missionaries, who aren’t there to respond to [an] Ebola [outbreak] and they may have been there for treating some other condition. My understanding is that they were there [for some other purpose] and Dr. Brantly is not an infectious disease specialist. He’s a family medicine doctor. Doctors who work with Doctors Without Borders are very meticulous and compliant. Not everyone else is.
Scott Holleran: What criteria does the government hold if any for admitting or re-admitting those infected with a communicable disease?
Amesh Adalja: It’s largely going to depend [upon the context] and be handled on a case by case basis. For example, there are diseases that are quarantinable. Recently, there was an arrest warrant for someone with tuberculosis. The number one priority for the government, in this context, is to protect people from contracting a contagious infectious disease. Really, the criterion is to avoid putting someone at undue risk at becoming infected with a contagious pathogen. Typhoid Mary and individuals with tuberculosis are much more contagious than those with Ebola virus.
Scott Holleran: When the infected Americans were re-admitted into the United States, what medical treatment was administered at Emory University?
Amesh Adalja: When these two patients came to Emory [University in Atlanta] they would have received standard supportive care and treatment, such as supplemental oxygen, intravenous fluids, medicine to control fever and medicine to control nausea and vomiting, electrolyte repletion, and possibly blood products were administered they also received doses of ZMapp. The special blood transfusion was administrated in Africa.
Scott Holleran: Do infected individuals pose a risk to society?
Amesh Adalja: I do not believe the infected individuals pose a risk because of the nature of how Ebola is transmitted.
Scott Holleran: As a doctor who writes about ethics in health care, does the U.S. have a moral obligation to re-admit any infected individual American—or groups of infected Americans—under any circumstances?
Amesh Adalja: I believe that in the case of these Ebola patients—because they pose no risk of infection or contagion to Americans—this isn’t an issue, so there would have been no justification to prohibit their re-entry into the United States. However, I don’t believe that this fact is self-evident. Ebola has captured the minds of writers and the ordinary person is very fearful against Ebola. But it’s not like the virus has never been in the U.S.-it’s been in U.S. labs since the 1970s.
Scott Holleran: Government corruption has recently been discovered in nearly every branch including government-controlled science and medicine and military and national security intelligence. Is any degree of skepticism toward government on the Ebola virus or infectious disease in general warranted in your judgment?
Amesh Adalja: Just prior to the Ebola outbreak, there had been reports of laboratory mishaps where certain pathogens were handled in a manner which wasn’t what biosafety guidelines would recommend. There were incidents and mishaps at the CDC, though no one had been infected. I think it’s important that Americans question what safeguards are in place and what protections and protocols are being taken. I do think they will be reassured that there are a lot of safeguards in place.
Scott Holleran: You’re an expert in bioterrorism and you work within government agencies to protect against an attack. Is a terrorist attack using biological or nuclear weapons likely to be detected by the U.S. government in advance?
Amesh Adalja: There’s been a lot of preparation after 2001, when five individuals were killed by an attack using anthrax. Biological weapons leave no signature—they’re natural pathogens. The fact that the former Soviet Union had a biological weapons program in violation of a treaty [banning such weapons] is a reminder of the danger. In Japan, they tried to weaponize botulism and Ebola. We know that Al Qaeda tried to do the same thing. So, these are real threats. This is a core function of government to protect against these threats. The Soviet Union proved how extensive a program can be created. Since the George W. Bush administration funded these programs and created these agencies, we’ve come a long way. But there are still a lot of gaps. [Anthrax infected newspaper editor] Robert Stephens initially thought he contracted anthrax from going into the wilderness and [it became apparent that] he got it from a letter in Florida. In 1984, in the state of Washington, a religious cult that wanted to influence a local election through voter turnout ordered salmonella and went to a salad bar and poured salmonella on the salad bar and the [Centers for Disease Control and Prevention (CDC)] came in and investigated, thought it was poor food preparation and fined the business—but the salad bar had been poisoned by religious terrorists.
Scott Holleran: What is the single worst bioterrorist threat to the United States?
Amesh Adalja: Anthrax—because it’s been proven to be effective.
Scott Holleran: Is there a single source, such as a book or movie, that contains reliable information for a general audience on infectious disease—its facts, history and the risks and dangers—such as The Hot Zone or the movie Outbreak?
Amesh Adalja: I read The Hot Zone and I think it’s a fascinating book and it does get people to think about Ebola. It does provide very good information on the Reston, Virginia [strain of] Ebola out in an animal facility. In terms of movies, the movie Contagion is probably the best, though it dramatically accelerates how quickly a real-life vaccine can be developed.
Scott Holleran: What is the most encouraging news on the topic of infectious disease?
Amesh Adalja: I think the infectious disease in the future is going to harness the ability to use genome sequencing to create targeted therapies at just the pathogen to avoid collateral damage to other microbes or bacteria that may live in your body.
Scott Holleran: Dr. Jonas Salk created the polio vaccine in Pittsburgh, where you work with Pitt to study, treat, cure and prevent infectious disease. Is Pittsburgh still a center for innovation in science and medicine?
Amesh Adalja: Absolutely. Not only do we have Pitt, CMU [Carnegie Mellon University] is here as well. People think of Pittsburgh’s past with the Industrial Revolution and great industrialists like Andrew Carnegie and they’re really idolized—and they’re idolized by me, too—but there are heroes such as [Thomas] Starzl [pictured], a pioneering transplant surgeon, and Dr. Salk, who have also been true to the [enterprising] spirit that built this city with steel and heavy industrial technology and transportation. Pittsburgh is still part of the Industrial Revolution. But now it’s a biotechnological revolution. ZMapp and all the anti-viral medicines were created as a result of the aftermath of 9/11. The threat of Ebola being used as a potential biological weapon has created an incentive [to counter with protective medicine] – so it’s important to remember that, as scary as Ebola can be, it’s been a market incentive, too.
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