Archive for March, 2010
The Case against Domestic Military Detention
Washington is consumed once more with the problem of terrorism, driven by the dual pressures of an unsuccessful terrorist attack on commercial aviation and upcoming elections that give politicians an incentive to speak in terms of war. We are again treated to the ridiculous argument that a terrorist attack is either an act of war or a criminal violation but never both. Senators McCain and Lieberman recently proposed a bill that mandates military detention for domestic terror suspects instead of civilian criminal justice proceedings — an approach that sidelines half of our domestic counterterrorism tools.
The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected terrorists. Choosing military detention over prosecution takes criminal justice tools off the table, including prosecuting terrorists for the instrumentalities of terrorism — assembling bombs, financing, and all of the illegal activities associated with attacking the system.
We’ve been down this road before, and domestic military detention in lieu of criminal prosecution has not worked as advertised.
Scalia Can No Longer Call Himself an Originalist
As I blogged last week, the Supreme Court didn’t seem amenable to Privileges or Immunities Clause arguments in last week’s gun rights case, McDonald v. Chicago. This is unfortunate because the alternative, extending the right to keep and bear arms via the Due Process Clause, continues a long-time deviation from constitutional text, history, and structure, and reinforces the idea that judges enforce only those rights they deem “fundamental” (whatever that means).
It was especially disconcerting to see Justice Antonin Scalia, the standard-bearer for originalism, give up on his own preferred method of interpretation — and for the sole reason that it was intellectually “easier” to use the “substantive due process” doctrine.
Josh Blackman and I have an op-ed in the Washington Examiner pointing out Scalia’s hypocrisy. Here’s a choice excerpt:
Without the Privileges or Immunities Clause … the Court must continue extending the un-originalist version of substantive due process to protect the right to keep and bear arms. To give original meaning to the Second Amendment, it must ignore the original meaning of the Fourteenth Amendment!
Yet this is the line Scalia took last week: Instead of accepting the plain meaning of the Privileges or Immunities Clause—which uncontrovertibly protects the right to keep and bear arms—the justice chose a route that avoids disturbing a 140-year-old precedent rejected by legal scholars of all ideological stripes.
In 2008, Scalia wrote, “It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from [living constitutionalism,] a seductive and judge-empowering philosophy.” But at the arguments in McDonald, he argued that while the Privileges or Immunities Clause “is the darling of the professoriate,” he would prefer to follow substantive due process, in which he has now “acquiesced,” “as much as [he] think[s it is] wrong.”
Put simply, if the opinion Scalia writes or joins matches his performance last week, he can no longer be described as an originalist (faint-hearted or otherwise). A liberty-seeking world turns its weary eyes to Justice Clarence Thomas — who has expressed an openness to reviving the constitutional order the Fourteenth Amendment was designed to create — to convince his wayward colleague that the way to interpret legal text is to look to its original public meaning.
DC Vouchers, Democrats and Teachers Unions
The Washington Post ran an incisive op-ed yesterday by Kelly Amis and Joseph Robert on the DC voucher program. As they noted, Sen. Joseph Lieberman is calling on the Senate to restore funding for the program which was terminated on a nearly party-line vote by Congress last December.
A few Democrats (Dianne Feinstein and Robert Byrd) have joined with Lieberman, but the rest of the party has apparently decided that producing better educational outcomes for poor kids at one quarter the cost of public schooling is not politically advantageous.
As Amis and Robert point out, private schools are far less unionized than the public school sector, so giving families an easier choice between the two will likely eat into to union revenues. And teachers union revenues end up disproportionately in the political piggy banks of Democrats.
The only thing that will change this situation is if voters decide they’ve had enough of such craven, Machiavellian politics, and vote the bums out. And some Democrats do indeed already seem to have had enough.
The Least Obama Could Do for Civil Liberties
Sen. Patrick Leahy (D-VT) has just fired off a letter to Barack Obama urging him to finally appoint some members to the long-vacant Privacy and Civil Liberties Oversight Board, echoing a similar recent request from a coalition of civil liberties groups.
I don’t think anyone should make excuses for Obama’s appalling about-face on Patriot Act reform, but at least in that case there’s a real, difficult, and complex policy debate that needs to play out in a preoccupied Congress for anything to happen. But there is no reason whatever that seats on this board should sit vacant a year into this presidency. Congress agreed to create the independent board—after a predecessor within the White House was deemed to lack sufficient independence—back in 2007. There’s agreement that the board is needed; the president just needs to pick people to sit on it. Yet there are precious few signs he’s even conducting a serious search. After a long series of decisions that have appalled civil libertarians, staffing the watchdog group Congress created three years ago is, quite literally, the absolute least Obama could do to begin living up to his campaign rhetoric.
Tuesday Links
- Why the line-item veto is no quick fix for massive spending.
- Supreme Court Justice Scalia holds himself out as the patron saint of originalism, but is he abandoning the idea that judges should interpret the Constitution according to its original public meaning?
- Michael Tanner: “In case you lost count, President Obama’s remarks on Wednesday were his 35th major speech on health care reform. The news: this time he really, really, really means it when he says it’s time to act. As for the speech itself, it was virtually indistinguishable from any of the previous 34.”
- Podcast: “Chris Dodd’s Credit Price Controls” featuring Mark A. Calabria.
Poll Suggests Caution on Citizens United Response
The Center for Competitive Politics has just published a new poll measuring public views about the recent Citizens United decision. The poll provides a lot of interesting information.
About one in five said they were aware of the decision. Fully 60 percent of respondents said they were not aware of the case, and it is fair to say that almost all of the other 20 percent who responded “don’t know” or refused to answer were also poorly informed about it.
Congress is now trying to write and enact legislation to overcome the strictures imposed on campaign finance regulation by the Citizens United decision. Members cite surveys supporting such legislation as a justification for the new restrictions.
At best, however, public opinion is immature on this issue. Congress should deliberate and give the public some time to foster a more informed view of this decision. Deliberation is all the more necessary since we are talking about First Amendment rights in this case. Congress itself may wish to know more about the likely consequences of intervening in complex matters like corporate governance.
The CCP poll is worth reading in detail. I don’t remember a poll that asks so many objective and interesting questions about First Amendment issues.
The Washington Foreign Policy Elite’s Unspoken Assumptions and Norms
In a column for Foreign Policy, James Traub writes
The Powell Doctrine became received wisdom at precisely the moment it was being superseded by events, for the end of the Cold War produced a set of “complex emergencies” in Somalia, Haiti, Kurdistan, and the Balkans that required a combination of force and large-scale civilian presence.
In a better world, the editor of this piece would demand, amid all this “becoming” and “being superseded by” and “producing” and “requiring,” some sort of agency. Active voice! Is it really true that the Powell Doctrine “became received wisdom”? By whom? Is it actually the case that “events” “superseded” the doctrine? Why? How, exactly, did the fact that the Cold War ended produce “complex emergencies” in Somalia, Haiti, or Kurdistan? Why was it that these complex emergencies “required” anything?
The piece has other problems, namely that the author uses the anecdote of the U.S. deploying 500 civilian teachers to support its brutal occupation of the Philippines to make the case for building American nation-building capacity today. (After all, the teachers “offered the most benevolent possible face to America’s colonial enterprise”!) But probably the biggest problem is that the above jumble of slogans and rhetoric is being asked to do a lot of heavy lifting in the piece without offering any clear analysis.
Sen. Schumer’s Immigration Reform Is a National ID
So reports the Wall Street Journal:
Lawmakers working to craft a new comprehensive immigration bill have settled on a way to prevent employers from hiring illegal immigrants: a national biometric identification card all American workers would eventually be required to obtain.
It’s the natural evolution of the policy called “internal enforcement” of immigration law, as I wrote in my paper, “Franz Kafka’s Solution to Illegal Immigration.”
Once in place, watch for this national ID to regulate access to financial services, housing, medical care and prescriptions—and, of course, serve as an internal passport.
Reassessing FHA Risk
As the Federal Housing Administration edges closer to a taxpayer bailout due to the large number of risky mortgage loans it has insured, it continues to insist that no such bailout will be required. However, a new study from a group of economists at New York University finds that the FHA’s assurances might not be based in reality.
According to the study, the actuarial analysis FHA used to determine it won’t need a bailout seriously understates its exposure to risk:
- More FHA mortgages are underwater than the FHA’s analysis identifies, and unemployment is naturally particularly high in areas where FHA borrowers are furthest underwater. Therefore, potential default costs are underestimated.
- FHA’s analysis relies on house values that are inaccurate. Overvalued houses means the FHA could end up recouping less than expected on defaults.
- Underwater FHA mortgages that were “streamlined” into new FHA mortgages are not properly accounted for, which further underestimates risk.
- The FHA got clobbered on a previous no-downpayment assistance program. However, the current homebuyer tax credit can effectively eliminate downpayments on FHA loans, but its analysis doesn’t take this into consideration.
One of the study’s authors, Prof. Andrew Caplin, writes the following on his website:
Rather than looking to structure the markets of the future, they [policymakers] have stumbled along in business as usual mode, waiting for kind fate to save them. It may. Then again, it may not. Either way, this is not a good way to run a business, or a government for that matter.
How does he see this story playing out?
My best guess is that it will end with a crash in the housing finance sector, with the federal government forced by popular revulsion at mushrooming losses to remove itself almost entirely from the housing finance equation. The Resolution Trust Corporation will look like an amateur warm-up act…
The bottom line is simple. The continuation of “business as usual” is re-creating the essential problem that made the sub-prime crisis so disastrous. Once again, taxpayers have been forced to subsidize the private purchase of massive amounts of residential housing, and to offer guarantees against future losses, without any effort to reduce costs should their funding help turn some markets around. Warren Buffett made huge profits for his shareholders by investing in under-valued assets. By contrast, our leaders are making massive losses for taxpayers by investing in over-valued assets.
See this essay for more on the problems with housing finance and government intervention.
Annals of Unhelpful Polling: Internet Access Edition
A new BBC poll is garnering plenty of press attention for its striking finding that 78% of global respondents believe that Internet access “should be a fundamental right of all people.” Fascinating! Except… what exactly does that mean?
The obvious problem here is that, at least as it’s worded in English, the question is ambiguous between two equally plausible readings. Especially when juxtaposed with another question about whether the Internet should be regulated by government, it could be understood as asking whether there’s a fundamental negative right to be free to use the Internet — to read and communicate free of government censorship or other onerous barriers. That’s probably how we’d interpret a parallel question about whether people had a “fundamental right” to “access” information via newspapers or books.
Many folks, though, seem to be reading it as a measure of support for a fundamental positive right to be provided with (broadband?) Internet access. And that just seems a bit silly, frankly. There’s a decent case to be made that it’s desirable for governments that can afford it to make some kind of public Internet access available to citizens who can’t. You can even imagine that, a few years down the line, some states in the developed world might have moved so heavily toward interacting with the public online that it would become more or less necessary for full political equality. But a basic human right? Something that governments are “violating fundamental rights” if they don’t do? It’s not just that I don’t believe this; I have trouble imagining that much of anyone literally thinks so. A few of my friends at Free Press, maybe, but 4/5 of the world’s population? Color me dubious.
I’ll confess being startled at the response to a much less ambiguous question: A global majority agreed that “the Internet should never be regulated by any level of government anywhere.” While I find this pattern of responses congenial enough, I can’t take it much more seriously. After all, what falls under the category of “regulation of the Internet”? Censorship, of course, which I expect is what most people immediately thought of. But in reality, of course, there are a whole panoply of laws and rules that at least arguably “regulate” the Internet in some sense, some of which even I would approve of. I have many, many issues with the Digital Millennium Copyright Act, for instance, but there’s nothing wrong with the idea that there should be a basic protocol that provides both a safe harbor for service providers hosting user content and a mechanism for complaining about copyright-infringing or libelous or otherwise tortious material. Probably there are other “regulations” I’d approve too, but I’d have to sit and think about it for an hour to even enumerate all the different kinds of rules that might be considered to “regulate the Internet” in one way or another.
Because it’s at least not susceptible to such dramatically divergent readings, this response might be more useful as a kind of big-picture attitude check. But the reality is that almost none of the respondents can really mean it because even someone steeped in tech policy would have to sit and think about the question for a half hour to really get a grip on what it entails. Or might entail. If the BBC were engaged in some kind of serious social science, they probably would have worked up better questions. But of course, that’s not the business they’re in. They’re in the business of asking the sort of question that will let them run exciting headlines that get re-tweeted and drive page views. And 100% of respondents in my poll of myself agree they’ve succeeded.
Question for the President
The rationale for your proposed tax on high-cost health insurance plans is that it would encourage people to purchase less-comprehensive coverage and thereby reduce health care spending.
If that’s a good idea, then why is it bad when insurers raise premiums?
RIP Michael Foot, a Socialist Who Understood What Socialism Was
“Michael Foot, a bookish intellectual and anti-nuclear campaigner who led Britain’s Labour Party to a disastrous defeat in 1983, died [March 3],” reported the Associated Press. He was 96.
Foot personified the socialist tendency in the Labour Party, which Tony Blair successfully erased when he won power at the head of a business-friendly, interventionist “New Labour.” Yet Foot remained a respected, even revered, figure.
“Michael Foot was a giant of the Labour movement, a man of passion, principle and outstanding commitment to the many causes he fought for,” Blair said Wednesday. Prime Minister Gordon Brown, Blair’s partner in creating “New Labour,” praised Foot as a “genuine British radical” and a “man of deep principle and passionate idealism.”
Michael Foot may have been the most serious intellectual ever to head a major Western political party. He wrote biographies of Labour politicians Aneurin Bevan and Harold Wilson, and of H.G. Wells, and a 1988 book on Lord Byron, “The Politics of Paradise,” and he edited the “Thomas Paine Reader” in 1987. So when you asked Michael Foot what socialism was, you could expect a deeply informed answer. And that’s what the Washington Post got in 1982, when they asked the Labour Party leader for an example of socialism in practice that could “serve as a model of the Britain you envision.” Foot replied,
The best example that I’ve seen of democratic socialism operating in this country was during the second world war. Then we ran Britain highly efficiently, got everybody a job. . . . The conscription of labor was only a very small element of it. It was a democratic society with a common aim.
Wow. Michael Foot, the great socialist intellectual, a giant of the Labour movement, a man of deep principle and passionate idealism, thought that the best example ever seen of “democratic socialism” was a society organized for total war.
And he wasn’t the only one. The American socialist Michael Harrington wrote, “World War I showed that, despite the claims of free-enterprise ideologues, government could organize the economy effectively.” He hailed World War II as having “justified a truly massive mobilization of otherwise wasted human and material resources” and complained that the War Production Board was “a success the United States was determined to forget as quickly as possible.” He went on, “During World War II, there was probably more of an increase in social justice than at any [other] time in American history. Wage and price controls were used to try to cut the differentials between the social classes. . . . There was also a powerful moral incentive to spur workers on: patriotism.”
Collectivists such as Foot and Harrington don’t relish the killing involved in war, but they love war’s domestic effects: centralization and the growth of government power. They know, as did the libertarian writer Randolph Bourne, that “war is the health of the state”—hence the endless search for a moral equivalent of war.
As Don Lavoie demonstrated in his book National Economic Planning: What Is Left?, modern concepts of economic planning—including “industrial policy” and other euphemisms—stem from the experiences of Germany, Great Britain, and the United States in planning their economies during World War I. The power of the central governments grew dramatically during that war and during World War II, and collectivists have pined for the glory days of the War Industries Board and the War Production Board ever since.
Walter Lippmann was an early critic of the collectivists’ fascination with war planning. He wrote, “A close analysis of its theory and direct observation of its practice will disclose that all collectivism. . . is military in method, in purpose, in spirit, and can be nothing else.” Lippman went on to explain why war—or a moral equivalent—is so congenial to collectivism:
Under the system of centralized control without constitutional checks and balances, the war spirit identifies dissent with treason, the pursuit of private happiness with slackerism and sabotage, and, on the other side, obedience with discipline, conformity with patriotism. Thus at one stroke war extinguishes the difficulties of planning, cutting out from under the individual any moral ground as well as any lawful ground on which he might resist the execution of the official plan.
National service, national industrial policy, national energy policy—all have the same essence, collectivism, and the same model, war. War is sometimes, regrettably, necessary. But why would anyone want its moral equivalent?
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