Archive for November, 2009
Cato Files Brief to Extend Second Amendment Rights, Provide Protections for Privileges or Immunities
Last year, in District of Columbia v. Heller, the Supreme Court confirmed what most scholars and a substantial majority of Americans long believed: that the Second Amendment protects an individual right to keep and bear arms. Heller led to the current challenge to Chicago’s handgun ban, which raises the question of whether the Fourteenth Amendment protects that right against infringement by state and local governments. The Seventh Circuit answered the question in the negative, finding itself foreclosed by 19th-century Supreme Court decisions. The Supreme Court agreed to review the case — after Cato filed an amicus brief supporting the cert petition — and specifically consider whether the Fourteenth Amendment’s Due Process Clause or its Privileges or Immunities Clause is the proper provision for incorporating the Second Amendment right to keep and bear arms as against the states.
Now Cato, joined by the Pacific Legal Foundation, has filed a brief supporting those challenging the handgun ban — who are represented by Alan Gura, the lawyer who successfully argued Heller — and calling for an overruling of the Slaughter-House Cases, which eviscerated the Privileges or Immunities Clause in 1873. Slaughter-House narrowly circumscribed the rights protected by the Privileges or Immunities Clause, contrary to the intentions of the Amendment’s framers and in direct contradiction to the developments in legal theory that underlay its adoption.
We also argue that in addition to ignoring the history surrounding the Fourteenth Amendment, the Slaughter-House majority violated basic rules of constitutional interpretation. Finally, restoring the Privileges or Immunities Clause would not result in the demise of substantive due process because the idea at the core of that doctrine — that the Due Process Clause imposes something more than mere procedural limits on government power — was widely accepted when the Fourteenth Amendment was enacted and its authors rightly believed that the Due Process and the Privileges or Immunities Clauses would provide separate but overlapping protections for individual rights.
Again, go here to read Cato’s brief in McDonald v. City of Chicago. Related, Josh Blackman and I have put up on SSRN our article, “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment,” which comes out in January in the Georgetown Journal of Law & Public Policy. I will be blogging more about “Pandora” — and, of course, the McDonald case — in future.
Rhodes Scholars and the Business World
On the weekend that next year’s Rhodes Scholars are announced, Elliot Gerson, American secretary of the Rhodes Trust and executive vice president of the Aspen Institute, writes in the Washington Post that he is greatly disappointed that a few Rhodes Scholars have gone into business.
Yes, you read that right. He’s disappointed that even a few Rhodes Scholars have chosen to go into business:
For more than a century Rhodes scholars have left Oxford with virtually any job available to them. For much of this time, they have overwhelmingly chosen paths in scholarship, teaching, writing, medicine, scientific research, law, the military and public service. They have reached the highest levels in virtually all fields.
In the 1980s, however, the pattern of career choices began to change. Until then, even though business ambitions and management degrees have not been disfavored in our competition, business careers attracted relatively few Rhodes scholars. No one suggested this was an unfit domain; it was simply the rare scholar who went to Wall Street, finance and general business management. Only three American Rhodes scholars in the 1970s (out of 320) went directly into business from Oxford; by the late 1980s the number grew to that many in a year. Recently, more than twice as many went into business in just one year than did in the entire 1970s.
Apparently Gerson believes that our best and brightest can accomplish more good for the world in such fields as writing, law, and bureaucracy than they can by creating, innovating, and improving lives in the world of business — the arena that not only provides all of us with more comfortable, more interesting lives, and has lifted billions of people out of the back-breaking labor and short lives that were the human condition for millennia, but also makes possible the luxuries of the Aspen Institute, which was founded by Walter Paepcke (1896-1960), chairman of the Container Corporation of America, and is supported by successful businesspeople and their heirs today.
Of course, it’s not clear that business needs Rhodes Scholars. Think of the businesspeople who have revolutionized our world in recent decades: Bill Gates and Paul Allen, Steve Jobs and Steve Wozniak, Larry Ellison, David Geffen, Ted Turner, and Malcom McLean, among others, either never attended or never finished college. Sam Walton, Bill McGowan, and Fred Smith did finish college but weren’t Rhodes Scholars. In the Washington Post Jay Mathews notes that the chief executives of the top 10 U.S.-based Fortune 500 companies attended Pittsburg (Kan.) State, Texas at Austin, University College Dublin, Texas Tech, Texas at Austin, Dartmouth, Kansas, Gannon, Georgia State and Central Oklahoma, not the usual sources of Rhodes Scholars.
But the elite hostility to business — a holdover from Europe, perhaps, where aristocrats looked down on “trade,” or an unconscious echo of Marxism — is unseemly and harmful to both general prosperity and the individuals who are influenced by it to avoid productive enterprise. It crops up in President Obama’s commencement addresses sneering at students who want to “take your diploma, walk off this stage, and chase only after the big house and the nice suits and all the other things that our money culture says you should buy” and in Michelle Obama’s urging hard-pressed women in Ohio, “Don’t go into corporate America.” It’s nice that some people, like senators’ wives, can make $300,000 a year in “the helping industry,” but it’s business that produces the wealth that allows such nonprofit generosity.
Gerson and the Obamas are disparaging the people who built America – the traders and entrepreneurs and manufacturers who gave us railroads and airplanes, housing and appliances, steam engines, electricity, telephones, computers and Starbucks. Ignored here is the work most Americans do, the work that gives us food, clothing, shelter and increasing comfort. That work deserves at least as much respect as “scholarship, teaching, writing, medicine, scientific research, law, the military and public service.”
Homeownership Myths
In a recent Washington Post op-ed, Professor Joseph Gyourko, chair of the Wharton School’s Real Estate Department, lists what he sees as the five biggest myths about homeownership. Given the central role of federal housing policy, particularly Fannie Mae and Freddie Mac, in our recent financial crisis, it is worth following Professor Gyourko’s suggestion and question whether a national policy of ownership, all the time for everyone, really makes sense.
Professor Gyourko’s five myths:
1. Housing is a great long-term investment.
2. The homebuyer tax credit makes buying a house more affordable.
3. Homeowners are better citizens.
4. It’s safe to buy a house with a very low downpayment.
5. Owning is always cheaper than renting.
You’ll have to read the op-ed to see his explanations. An important qualification on his analysis is that in many cases what can be good for the buyer, such as putting no money down, may not be good for the economy if it results in additional foreclosures.
This Week in Government Failure
Over at Downsizing Government, we focused on the following issues this week:
- The federal government is assuming a larger share of the Medicaid bill.
- General Electric might eventually need to be renamed Government Electric.
- The government’s mail monopoly lost $3.8 billion last fiscal year and could lose more this year.
- The $98 billion in improper payments made by the federal government last year undermines the case for expanding its role in subsidizing health care.
- Cost overruns in the British government mirror problems in the U.S. government.
Will America Copy England’s Self-Destructive Class-Warfare Tax Policy?
After several posts about crazy decisions by the UK government, mostly involving extreme political correctness, it’s time to get back to basics and look at tax policy. A financial services consulting firm in London has just released a survey with the stunning finding that one-fifth of entrepreneurs are thinking of escaping the country because of punitive taxes — particularly the new top tax rate of 50 percent.
Here’s what Tax-news.com reported:
The poll of more than 300 entrepreneurs by business advisors Tenon also found that many more may follow in an attempt to escape the 50% rate of income tax, due to be introduced from next April on annual incomes above GBP150,000, with nearly half of the respondents (48%) still deciding what action to take. …Tenon points out that in the last month, high profile names such as the actor Sir Michael Caine and the artist Tracey Emin have threatened to change their tax residency to countries with more favorable tax rates. Popular locations for redomiciling include Monte Carlo, Guernsey, Liechtenstein, and the Cayman Islands. Andy Raynor, Chief Executive of Tenon Group, noted that entrepreneurs are showing their disapproval of the tax measures by “letting their feet do the talking.”
The mayor of London, meanwhile, is much less restrained regarding the foolishness of Gordon Brown’s class-warfare policy. Here’s what he has to say in the Daily Telegraph:
[T]he 50 [percent] tax rate that is beginning to drive these people away is a disaster for this country, and it is a double disaster that no one seems willing to talk about it. When Margaret Thatcher’s government cut the top rate of tax to 40 per cent in 1988, she was completing a series of reforms — beginning with the removal of exchange controls and followed by the Big Bang — that helped to establish London as the greatest financial centre on earth. Britain had been transformed from a sclerotic militant-ridden basket-case to a dynamic enterprise economy, and the capital became a global talent magnet. …So it is utterly tragic, at the end of the first decade of this century, that we are back in the hands of a government whose mindset seems frozen in the wastes of the 1970s.
By the way, I’m not picking on England. America is soon going to be making the same self-destructive mistake. Here’s my video on the broader subject of class-warfare tax policy.
Cost Overruns: It’s the Same in Britain
The Taxpayers’ Alliance has published a new study examining a sample of 240 government capital projects in Britain, including weapons systems, highway projects, computer upgrades, health care spending, and other items. The results mirror the serious cost overrun problems we have in the U.S. federal government.
The Alliance study found that 32 percent of projects sampled had cost overruns, while 24 percent came in under budget, but that the projects with overruns were generally much larger. As a result, the average net cost overrun on all the projects was 38 percent. Thus, when the government says that a new project will cost taxpayers 1 billion UK pounds, on average it will actually cost them 1.38 billion.
The study also explores the reasons why UK government projects run into trouble, and I have observed that most of the same problems are also chronic in our government. To me, this provides more evidence that the inefficiencies in government stem from deep, structural factors, not the skills of the particular politicians or administrators in office.
Weekend Links
- Just in time for Thanksgiving, the turkey has arrived: How Harry Reid’s health care “reform” bill is stuffed with extra costs.
- A few things you might not know about the Chrysler bankruptcy.
- Why you should not blame Obama for Bush’s 2009 deficit.
- Standing against the storm: Nien Chang, 1915-2009.
- Podcast: Think the Federal Reserve is independent? Think again.
California Grubbing
Kids often have a tremendous sense of entitlement. Well, there are a lot of kids in California colleges — and running them.
You probably have heard about the University of California Regents voting yesterday for a 32-percent tuition hike over the next two years. Not surprisingly, many students are angry, some enough that they were arrested protesting outside the Regents’ meeting.
Now, a 32 percent hike over two years isn’t small. But here’s the thing: California has typically charged students very little relative to both state taxpayer funding and national averages. As you can see in the chart below, which uses data from the State Higher Education Executive Officers, net per-pupil tuition revenue (meaning revenue from tuition minus any state financial aid) in California has hovered around $1,200 over the last 25 years, and has only gone up about $18 per year. Meanwhile, state taxpayers have been shelling out around $7,300 per pupil per year. So state taxpayers have been furnishing the vast majority of funding for California college students, and students have done very little to make up the vast gulf between what they pay and what taxpayers shell out.
Net Neutrality Regulation: Consequences for Investment and Consumer Welfare
The American Consumer Institute has released a collection of essays addressing the likely consequences of ”‘Net Neutrality” regulation for investment in broadband and for consumer welfare. These are important things to consider, in case it needs saying.
GAO: Dept. of Ed. Suffers Oversight Deficiencies
A report released today by the federal government’s non-partisan General Accounting Office finds deficits in the Department of Education’s financial and program oversight. According to the GAO, “These shortcomings can lead to weaknesses in program implementation that ultimately result in failure to effectively serve the students, parents, teachers, and administrators those programs were designed to help.”
The GAO’s findings are consistent with the longstanding pattern: for forty years, Americans have steadily increased spending on public schools without any resulting improvement in student performance by the end of high school (see the figures here and here).
The Obama administration has touted its $100 billion in education stimulus spending as a key to long term economic growth. What the data show, however, is that higher spending on public schools over the past two generations has not improved academic outcomes. And economists such as Stanford’s Eric Hanushek have shown that it is improved academic achievement, not higher public school spending, that accelerates economic growth.
So if the administration is serious in wanting education to boost the American economy, it must support reforms that are proven to significantly raise achievement, such as those that bring to bear real market freedoms and incentives — programs like the DC private school choice program that the administration has decided to kill despite its proven effectiveness.
The Third Strategic Actor
I agree with Chris Preble’s assessment of Steve Simon’s opinion piece in the New York Times Tuesday. “Why We Should Put Jihad on Trial” is animated by a sound understanding of the strategic logic of terrorism. Simon knows that the proper response is outclassing terrorists in terms of ideology and legitimacy. Trying KSM transparently in New York is just, and doing justice is powerful counterterrorism. The procedural and security fears about it are poorly founded.
It’s useful to compare another opinion piece, written with welcome thought and care, but missing a key point about counterterrorism. In “Holder’s al Qaeda Incentive Plan,” Wall Street Journal “Main Street” columnist William McGurn assesses the incentive structure terrorists face if they are accorded the niceties of a trial should they attack civilians in the United States, compared to the rough treatment they would and should expect were they caught attacking U.S. troops on a foreign battlefield.
It’s a troublesome irony, and it’s very smart on McGurn’s part to game out the thinking of terrorists rather than indulging impulses to react as they would have us do. But terrorists are not the actors a trial in New York is most meant to influence.
In her book, How Terrorism Ends: Understanding the Decline and Demise of Terrorist Campaigns, U.S. National War College professor of strategy Audrey Kurth Cronin writes:
Most people think of terrorism as a dichotomous struggle between a group and a government. However, given their highly leveraged nature, terrorist campaigns involve three strategic actors—the group, the government, and the audience—arrayed in a kind of terrorist “triad.” More specifically, the three dimensions are the group that uses terrorism to achieve an objective, the government representing the direct target of their attacks, and the audiences who are influenced by the violence.
Similarly, at Cato’s counterterrorism conference, I argued that terrorism seeks to induce overreaction on the part of victim states, driving support to terrorists from their geographical and ideological neighbors. Declining to overreact, and having the discipline to meticulously accord terror suspects fair treatment, dissipates the gains terrorists want and expect: increased support from their neighbors.
This is why a public trial—for all its costs and complexities—is worth doing. It’s to gain advantage with the third strategic actor.
Frum’s World
David Frum’s new vehicle is called “Frum Forum,” but judging from this debate over American foreign policy with Andrew Bacevich on Bloggingheads, it might as well be called “Frum’s Alternate Universe.” The clip below features Frum arguing that U.S. foreign policymakers’ views on Indochina in 1965 were “right and smart.” At one point Bacevich furrows his brow and incredulously asks “David, are you reviving the domino theory?” It’s like another dramatic reading of Jack Snyder’s Myths of Empire. Have a look:
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