Archive for May, 2006
Requiem for 5-4 Supreme Court Decisions
Chief Justice Roberts gave an address at Georgetown in which he lauds the virtues of deciding cases, where possible, narrowly and unanimously:
”If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case,” Roberts said. “Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.”
Its not clear that Roberts’ prediction (that consensus on the Court yields clarity, precision, and narrowness) is right. Consensus-building in Congress, another multi-member voting body, is purchased at the price of legal fuzziness. The more amorphous and open-ended the statute–the more the statute defers tough questions–the more members of Congress agree to add their names to it.
While consensus building on the Supreme Court is a simpler prospect, there’s no reason to think the same basic dynamic won’t apply here too: Supreme Court justices will purchase broad agreement at the price of clarity, harming the rule of law.
Indeed, as I discuss at the end of this online debate, this may be the lesson of one of Roberts’ earliest opinions (in Rumsfeld v. FAIR). There, the Court was asked to decide whether Congress violated law schools’ free speech rights by threatening to withdraw federal funding unless the schools sponsored JAG recruiters on campus. The Court unanimously rejected the law schools’ First Amendment claims. But in the course of doing so, it reached a question it didn’t have to reach: the scope of deference owed to Congress when it regulates “military affairs.” Worse, the Court’s cursory discussion of military affairs deference is exceedingly unclear and could be read to mean that judicial enforcement of the Bill of Rights is at a vanishingly low ebb when Congress raises and supports armies.
As even the National Review admits, this aside is troubling and deserves clarification. But it may also be a by-product of Roberts’ drive for consensus: Some justices may have joined the Court’s ruling on the First Amendment only if there was some hedge that allowed them to distinguish the First Amendment ruling in a later, different case. Adding in a bit about military deference may have been the hedge that brought those justices on board, allowing them to rule differently in a case that didn’t involve national security. But other justices may have been wary about the scope of deference in this area. Therefore it was necessary to discuss military deference in a vague way in order to belay these fears. The result: an opinion that inadvertently muddies the scope of civil liberties in the shadow of military-related legislation, inviting envelope pushing by Congress and the President.
The lesson: Sometimes being narrow requires hedging. And sometimes consensus requires wishy-washiness. Hedging and wishy-washiness in turn make the law less clear. That may give government officials more discretion to boss us around, while leaving the rest of us in the dark about the scope of our rights.
Misinformation on Iran
Last week, Canada’s National Post ran a revolting and disturbing report that the Iranian majlis had passed a law instituting “separate dress codes for religious minorities, Christians, Jews and Zoroastrians, who will have to adopt distinct colour schemes to make them identifiable in public.” Perhaps the most disturbing aspect of the story was that
Religious minorities… will also have to wear special insignia, known as zonnar, to indicate their non-Islamic faiths. Jews would be marked out with a yellow strip of cloth sewn in front of their clothes while Christians will be assigned the colour red. Zoroastrians end up with Persian blue as the colour of their zonnar.
Several news outlets and blogs picked up on the story, and the New York Post ran the original column under the headline “Iran OKs ‘Nazi’ Social Fabric.”
As it turns out, however, the reporting appears to be false.
Internet-Tapping Revealed
Wired has discussion and documentation of how the National Security Agency conducts Internet surveillance, according to former AT&T technician Mark Klein.
The Veterans Administration and Data Privacy
I woke up this morning to learn that I might be one of the more than 26 million veterans whose personal information - including name, social security number, and date of birth - is now in the hands of a (presumably) common thief. I won’t be certain that I am one of the individuals affected until I receive notification in the mail from the Department of Veterans Affairs. But I’m reasonably sure, given that I joined the service after 1975, that my personal information has now been compromised.
The Washington Post is certainly correct that this is a case of “incompetence” — the VA employee in question removed the data to his home, from whence it was stolen. The Post editors note:
Mr. Nicholson says that the employee was not authorized to take this information home, but his department clearly failed to do enough to enforce its own guidelines. It now promises to restrict access to sensitive data to those who need it and to conduct background checks on those who do. It’s extraordinary that this approach did not prevail already.
It is indeed. But the larger point is this: If we depend upon government to defend us from compromises of our personal information, and if we assume that such violations are most likely to be perpetrated by negligent, incompetent or mendacious individuals in private firms, then who is to protect us from negligence, incompetence or mendacity on the part of government officials?
In the case of the private firms, I retain some capacity for limiting the scope of my liability by tearing up that credit card application, or by hanging up on the telemarketer trying to sell me (another) home equity loan. Meanwhile, I subjected myself to a degree of scrutiny that most Americans avoid when I joined NROTC in 1985, and the active duty Navy in 1989. In a sense, I “opted in” and my name appears in a VA database. On the other hand, most Americans “opted out” by having never served in any branch of the military; and in this particular case, their personal data is not at risk.
But unlike credit card solicitations and telemarketers, letters and phone calls from the federal government cannot be ignored, meaning that Americans are not always afforded the opportunity to opt in to a particular database. Nearly every American has a social security number, most have filed federal income taxes, and millions of American males are required to register with the federal government under the Selective Service Act. Each of these cases involve an obligation under the law; choosing to opt out is a criminal offense.
So I ask again: Given that we cannot limit our liability without penalty of fine or imprisonment when the government demands personal information from us, who protects us from identity theft when the government is at fault?
Con Nation
According to new data from the U.S. Department of Justice, one in 136 Americans is behind bars today, including an astounding 12 percent of all black men between the ages of 25 and 29. The United States represents 4.6 percent of the world’s population, but houses nearly 23 percent of humanity’s prison population. Certainly, part of this is likely due to politicians’ unfortunate habit of addressing every social problem with a new law, but much of it is due to our ever-more-draconian drug laws. A few more statistics to chew on from the latest edition of Drug War Facts, published by Common Sense for Drug Policy:
Nuclear Welfare
At a Senate Energy & Natural Resources Committee hearing yesterday, outgoing Nuclear Regulatory Commission chairman Nils Diaz reported that 16 utility companies were busily planning to build 25 new nuclear power plants thanks to last year’s energy bill. Champagne corks were popped, backs were slapped, congratulations were offered, and all was right in the political world.
Just what did last year’s energy bill do to usher in this nuclear nirvana? Well, our fair Senate–said by many to be in the grip of doctrinaire, free market Republican jihadis–passed a 20-year extension of the Price-Anderson Act (which protects the industry from liability if damages from an accident exceed a certain amount); adopted a 1.8 cent production tax credit for up to 6,000 megawatts of new nuclear generating capacity; provided risk insurance against the financial costs of litigation and other delays in building new nuclear power plants; and provided federal loans and guarantees for up to 80 percent of project construction costs.
Look, I’ve got nothing against nuclear power per se. But if nuclear energy had economic merit, it wouldn’t need this avalanche of government help and hand-holding. Neither party looks good in all of this. Republicans have no business meddling in markets this way. And Democrats should quit folding to business interests like a cheap suit.
The Influential Mr. Mbeki
The Financial Times selects the most influential pundits and commentators in countries around the world. Their South African correspondent writes that the opinions of Moeletski Mbeki “arguably carry more clout” than those of his brother the president. If so, that’s good news for South Africa. Judging by his Cato paper “Underdevelopment in Sub-Saharan Africa: The Role of the Private Sector and Political Elites,” Mbeki has a pretty insightful understanding of what Africa suffers from. He blames African poverty on mismanagement and exploitation by political elites that control the state and see it as a source of personal enrichment. Inhibiting wealth creation by the private sector, the elites use marketing boards and taxation to divert agricultural savings to finance their own consumption and to strengthen the apparatus of state repression. He writes that peasants, who constitute the core of the private sector in sub-Saharan Africa, must become the real owners of their primary asset — land — over which they currently have no property rights (in much of sub-Saharan Africa, though South Africa is an exception to this).
Mencken Fellows Penn & Teller Take Over TCM Tonight!
Need a cure for a bad case of the Mondays? Tune into Turner Classic Movies tonight, when Cato H.L. Mencken Research Fellows Penn Jillette and Teller take over as special guest programmers.
A quick look at what Penn & Teller have spooled up:
- 8 PM—The Marx Bros.’ underappreciated 1939 film At the Circus
- 9:30 PM—Orson Welles’ controversial 1976 documentary F for Fake, about the brilliant forger Elmyr de Hory
- 11:15 PM—MGM’s disturbing and highly controversial 1932 film Freaks
- 12:30 AM—Neil Simon’s 1975 Vaudeville tribute The Sunshine Boys, starring Walter Matthau and George Burns (with then-little-known F. Murray Abraham in a supporting role).
I was KIDDING! Seriously. Come on, guys.
This morning’s LA Daily News is abuzz over a debate “gaffe” perpetrated by California Assembly candidate Frank Quintero. After a rough day campaigning for California’s 43rd Assembly District seat, Quintero was asked during a debate with his opponent if he supported school vouchers. His answer: “Yes.”
Oops.
Honestly, what would possess someone to support giving low income families the same educational choice that wealthier families already enjoy? The nerve of this Quintero guy intimating that parents, not bureaucrats, should be deciding what and where their children learn. It’s an outrage. It’s…
Wait a minute, that sounds kinda’ good, doesn’t it? Parental choice in education. More options for kids. Schools no longer being able to take their students for granted and having to compete for the privilege of serving each and every child. So what’s the problem?
Well, Quintero is a Democrat — the party unduly influenced by the nation’s teachers’ unions. Makes a bit more sense, now, doesn’t it?
Naturally, California’s biggest teachers’ union quickly mobilized to crush this brazen heretic, staging a rally outside his offices the weekend after the debate. Quintero quickly recanted, explaining that when he said “yes” to vouchers, he meant it in the sense that, um, he was opposed to them.
Good thing the teachers’ unions are out there to protect us from freedom vouchers.
Democrats Out of Power
The Washington Post reports today that the Ds are planning an onslaught of staged media events over the Memorial Day weekend to highlight their discontent over high gasoline prices. The Democrats are kicking off their campaign today in Ohio, where Senate Minority Leader Harry Reid is scheduled to appear in front of the cameras with Rep. Sherrod Brown, the Democratic Senate candidate there, in front of a giant wind turbine outside a Cleveland science center.
Presumably, the Democrats think that the windmill symbolizes their commitment to break America’s so-called addiction to oil. In reality, the windmill symbolizes the Democrats’ incoherence on energy policy. Unless they plan to strap those turbines onto the hoods of our cars, wind power cannot substitute for oil because windpower is used to generate electricity and only a trivial amount of oil is used for that purpose.
“Wherever you live, your gas prices are out of control, and you want to hold someone accountable for it,” Reid said. While Reid predictably blames “Big Oil,” he apparently missed the FTC report out today finding nothing underhanded about gasoline prices in the aftermath of Hurricane Katrina.
I’m sure you’ll hear all about on tonight’s O’Reilly Factor.
“Net Neutrality” Grasstroturf
The opponents of broadband regulation have produced an amusing animation that pretty effectively skewers the campaign for “net neutrality.” Why, yes, of course it’s produced by large corporations seeking after their own interests. But the piece effectively points out that the campaign for federal regulation of broadband is also a product of large corporations seeking after their own interests.
So, if it’s a debate between two large corporate interests, we can drop the ad hominem and just discuss which group of large corporations is trying to protect its property and its investments, and which group of large corporations is trying to win rents through the legislative and regulatory process. Figured it out yet? Good.
(Cross-posted from TechLiberationFront)
A New Berlin Wall
On “The McLaughlin Group,” John McLaughlin asks if the United States should impose tariffs on Mexico equal to the cost of providing social services to Mexican immigrants if Mexico doesn’t stop illegal cross-border traffic. Pat Buchanan responded by emphasizing the need for U.S. border security, Eleanor Clift said it would be too costly for Mexico, and Tony Blankley said it would probably be a violation of WTO. Mort Zuckerman said the reaction to such a law in Mexico would move the country far to the left.
It seems to me that all of these insightful pundits missed the point: McLaughlin was proposing that Mexico build a wall to keep Mexicans inside. Immigration advocates sometimes warn that a fence along the border would be “a new Berlin Wall.” But that’s a little over the top; the Berlin Wall was designed to keep East Germans in, to declare them the property of a repressive regime that couldn’t survive if it allowed people to vote with their feet. Whatever its demerits, an American fence would be intended to protect our borders and regulate who could come in.
But McLaughlin’s proposed Mexican wall would be a new Berlin Wall. Anybody can stumble into a bad idea, but it’s disappointing that not one of McLaughlin’s four guests noticed the import of his proposal.
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