Archive for April, 2010
Bush Was a Statist, Not a Conservative
A former White House speechwriter, Mark Thiessen, has jumped to the defense of his former boss, writing for the Washington Post that George W. Bush “established a conservative record without parallel.” Even by the loose standards of Washington, that is a jaw-dropping assertion. I’ve been explaining for years that Bush was a big-government advocate, even writing a column back in 2007 for the Washington Examiner pointing out that Clinton had a much better economic record from a free-market perspective. I also groused to the Wall Street Journal the following year about Bush’s dismal performance.
“Bush doesn’t have a conservative legacy” on the economy, said Dan Mitchell, a senior fellow at the libertarian Cato Institute. “Tax-rate reductions are the only positive achievement, and those are temporary … Everything else that has happened has been permanent, and a step toward more statism.” He cited big increases in the federal budget, along with continuing subsidies in agriculture and transportation, new Medicare drug benefits, and increased federal intervention in education and housing.
Let’s review the economic claims in Mr. Thiessen’s column. He writes:
Is The Washington Post Mocking Justice Stevens?
Justice John Paul Stevens has announced that he will retire from the Supreme Court this summer.
My Cato colleagues are weighing in on his “checkered” tenure. Tim Lee writes, “if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank.” I certainly appreciate Stevens’ contributions in that area.
On the other hand, Ilya Shapiro laments “the errant jurisprudential path that Justice Stevens blazed so honorably,” and charges that “Stevens admittedly and unabashedly asserted his own policy preferences instead of following the law.”
When I picked up Saturday’s Washington Post, I wondered if its staff was trying to make the same point. The front page contains excerpts from three opinions Stevens wrote while on the Court. (I could not find them on the Post‘s web site, so I can’t furnish a link.) The first is from Bush v. Gore (2000):
Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent.
The second is from Baze v. Rees (2008):
[The death penalty is] becoming more and more anachronisitic… I have relied on my own experience in reaching the conclusion that the imposition of the death penalty “represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”
And finally, from Citizens United v. FEC (2010):
While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
The first excerpt decries judges who decide cases based on their personal preferences, rather than what the law says. The other two excerpts show Stevens incorporating his personal preferences into his rulings.
So we must consider the possibility that someone at The Washington Post subtly wanted to poke fun at Justice Stevens. Unless it was inadvertent, which would make it even more amusing.
Court Reporting
A North Korean newspaper gushes over a new biography of Dear Leader Kim Jong-Il:
Like many reporters, the biographer describes Mr. Kim in these pages as cool, charismatic, slightly detached: an autodidact with a lawyer’s analytical intelligence and a novelist’s empathetic temperament; an idealist who is also a pragmatist; a politician inclined to be methodical and cautious in his decision making [with] inclination to listen and engage other people.
Oh, wait. In all my cutting and pasting, I transposed some words. This is actually Michiko Kakutani’s New York Times review of David Remnick’s biography of President Obama. My bad.
Up from Slavery, Continued
Jacob “Bumper” Hornberger has posted a gracious response to my article “Up from Slavery, ” which among other things criticized his essay “Liberal Delusions about Freedom.” It’s a pleasure to engage in intelligent and civil debate with another committed libertarian.
Hornberger says that he should have mentioned the “tragic exception” of slavery in writing about American freedom in the 19th century, and he links to many articles where he did so. I am glad to know that the article I criticized was an exception. Still, I’m not sure that parenthetical asides, as in this first linked article, quite suffice:
With exceptions (slavery being the worst), during the first 150 years of America’s history, people were free to live their lives in any way they chose as long as their actions did not entail violence or fraud against others.
Slavery was not just an exception. It was the foundation of the Southern economy. Slaves made up 19 percent of the population at the beginning of the 19th century — about 50 percent of the Southern population – and there were four million Americans held in chains in 1860. And of course, one might also note the exclusion of women not just from voting but from property ownership in the early 19th century. So that means that only about 40 percent of “people” were free to live their lives as they chose in the pre-Civil War era.
Hornberger goes on to posit a more plausible golden age, 1880:
Let’s consider, say, the year 1880. Here was a society in which people were free to keep everything they earned, because there was no income tax. They were also free to decide what to do with their own money—spend it, save it, invest it, donate it, or whatever. People were generally free to engage in occupations and professions without a license or permit. There were few federal economic regulations and regulatory agencies. No Social Security, Medicare, Medicaid, welfare, bailouts, or so-called stimulus plans. No IRS. No Departments of Education, Energy, Agriculture, Commerce, and Labor. No EPA and OSHA. No Federal Reserve. No drug laws. Few systems of public schooling. No immigration controls. No federal minimum-wage laws or price controls. A monetary system based on gold and silver coins rather than paper money. No slavery. No CIA. No FBI. No torture or cruel or unusual punishments. No renditions. No overseas military empire. No military-industrial complex.
As a libertarian, as far as I’m concerned, that’s a society that is pretty darned golden.
ObamaCare: “Everything That’s Wrong with the European-style Democratic Socialist State”
From Jeffrey H. Anderson, writing at National Review Online’s Critical Condition blog:
With Obamacare, President Obama has given a concrete example of everything that’s wrong with the European-style Democratic Socialist state, all wrapped up in one (massive) package. The notions are no longer abstract or theoretical. They’re here for all to see: less liberty, more taxes, more public indebtedness, more intergenerational theft, taxpayer funding for abortion, government rationing of health care, consolidation and centralization of power in Washington, and politicization of the properly private relationship between patient and doctor. The American people don’t want any of this, which is why 54 percent of Americans, including 59 percent of independents, are for repeal. Let’s give it to them.
Repeal the bill.
John Paul Stevens, Defender of High-Tech Freedom
I’m saddened to hear of the retirement of Justice John Paul Stevens. Whatever you might say about his jurisprudence in other areas, one place where Justice Stevens really shined was in his defense of high-tech freedom.
Justice Stevens wrote the majority opinion in some of the most important high-tech cases of the last four decades. In other cases, he wrote important (and in some cases prescient) dissents. Through it all, he was a consistent voice for freedom of expression and the freedom to innovate. His accomplishments include:
- Free speech: Justice Stevens wrote the majority decision in ACLU v. Reno, the decision that struck down the infamous Communications Decency Act and clearly established that the First Amendment applies to the Internet. In the 13 years since then, the courts have repeatedly beat back attacks on free speech online. For example, Justice Stevens was in the majority in ACLU v. Ashcroft, the 2004 decision that struck down another attempt to censor the Internet in the name of protecting children.
- Copyright: Justice Stevens wrote the majority opinion in the 1984 case of Sony v. Universal, the case in which the Supreme Court upheld the legality of the VCR by a 5-4 vote. The decision, which today is known as the “Betamax decision” after the Sony VCR brand, made possible the explosion of digital media innovation that followed. When the recording industry tried to stop the introduction of the MP3 player in 1997, the Ninth Circuit cited the Betamax precedent in holding that “space shifting” with your MP3 player is permitted under copyright’s fair use doctrine. The iPod as we know it today probably wouldn’t exist if Sony had lost the Betamax case. Justice Stevens also wrote an important dissent in the 2003 decision of Eldred v. Ashcroft, in which he (like the Cato Institute) argued that the Constitution’s “limited times” provision precluded Congress from retroactively extending copyright terms.
- Patents: The explosion of software patents is one of the biggest threats to innovation in the software industry, and Justice Stevens saw this threat coming almost three decades ago. Stevens wrote the majority decision in the 1978 case of Parker v. Flook, which clearly disallowed patents in the software industry. Three years later, Stevens dissented in the 1981 case of Diamond v. Diehr, which allowed a patent on a software-controlled rubber-curing machine. Although the majority decision didn’t explicitly permit patents on software, Stevens warned that the majority’s muddled decision would effectively open the door to software patents. And he has been proven right. In the three decades that followed, the patent-friendly U.S. Court of Appeals for the Federal Circuit has effectively dismantled limits on software patents. And the result has been a disaster, with high-tech firms being forced to spend large sums on litigation rather than innovation.
So if you enjoy your iPod and your uncensored Internet access, you have Justice Stevens to thank. Best wishes for a long, comfortable, and well-deserved retirement.
How Important Is Partisan Identity As an Input to Foreign-Policy Views?
As a non-expert who’s been reading a fair bit lately on public opinion and war, I’m struck by how essentially no scholars working on voter behavior seem to believe the sort of Civics 101 story about democracy and the marketplace of ideas. In fact, the idea that voters carefully weigh evidence and arguments and come to independent judgments about national policies appears to be held by exactly nobody.
The University of Michigan’s Trevor Thrall and others have argued that partisan political identity played an extraordinarily important role in forming people’s views on the Iraq war. In a very important recent book, Adam J. Berinsky pours cold water on the conventional wisdom view that voter preferences on domestic and foreign policy should be analyzed separately. In Berinsky’s view, the manner in which voters develop views on foreign policy looks a lot like the one whereby they develop views on domestic policy. And similar to many studies of domestic policy, Berinsky argues that in foreign policy, “in the battle between facts and partisanship, partisanship always wins.”
In the current issue of Political Science Quarterly, Gary Jacobson argues [login req'd] that there are particular aspects of the Iraq War and the Bush presidency that caused voters to engage in “motivated reasoning” and to consequently develop “the most polarized distribution of partisan opinions on a president and a war ever measured.” Check it out:
Glenn Beck Likes Santorum
Jim Geraghty of National Review reports:
A few moments ago in the car, I heard Glenn Beck, talking about the 2012 prospects, declare, “I really like Rick Santorum . . . This guy gets it 110 percent.”
That would be Rick Santorum, the former senator who explicitly rejects “this whole idea of personal autonomy, . . . this idea that people should be left alone” and “the pursuit of happiness.”
A few more statements like this, and people will begin to wonder if Glenn Beck is really a libertarian.
Could Obamacare Survive a Fiscal Crisis?
Over at Think Markets, NYU’s Mario Rizzo asks how Obamacare might be repealed. He focuses on the fiscal brawl that will occur when the Medicare cuts must be implemented. Let’s take a look at another fiscal scenario.
The Greek debt crisis is just the leading edge of a global debt crisis in developed countries. It is not Greece that matters to the rest of the European Union, but the precarious position of other highly indebted EU members: Portugal, Italy, Ireland, and Spain. Fiscally sound Germany could bail out Greece, but not all the others. A Greek default (likely if not inevitable) will fracture the EU and the contagion surely would spread to the United States.
The result will be what I call a Leninist moment. Lenin famously observed that a situation must often get worse before it can get better. He had a different idea of what better would be than do libertarians, but his insight is nonetheless correct.
The resulting fiscal crisis in the United States would finally force a serious debate over fiscal discipline. Not even eliminating all defense expenditures would close the budget gap. Could Obamacare survive the crisis?
This Week in Government Failure
Over at Downsizing Government, we focused on the following issues this week:
- Policy wonks on the left are rarely willing to admit that there are deep problems with central planning.
- Congress is the big hurdle to reforming the U.S. Postal Service.
- Americans unhappy with overspending in Washington need to get more specific about where they think the federal budget should be cut.
- The Joint Strike Fighter’s price tag is still soaring.
Justice Stevens’ Legacy: Unquestionable Integrity, Questionable Legal Judgment
John Paul Stevens, the oldest-ever and (by the end of the term) second-longest-serving Supreme Court justice, has had a long career that, judging by his fitness regimen—the envy of men much younger than he—could have continued for many years yet. Justice Stevens is to be commended for his record of service in a variety of positions in the public and private sector.
Unfortunately, the jurisprudential legacy he leaves behind is much more checkered than his personal integrity and professionalism: Justice Stevens “grew” from his country-club Republican roots to becoming the Court’s liberal lion. While a friend of liberty in certain limited circumstances, he ultimately hangs his hat on supporting government action over the rights of individuals in contexts ranging from property rights (Kelo v. New London) to the Second Amendment (D.C. v. Heller) to free speech (Citizens United and Texas v. Johnson, the flag-burning case) to executive agency power (Chevron). And even on those issues where friends of liberty can disagree in good faith as a matter of policy, such as abortion and the death penalty, Stevens admittedly and unabashedly asserted his own policy preferences instead of following the law.
Each of the candidates on the “short list” to replace Stevens—most notably Elana Kagan, Diane Wood, and Merrick Garland—has pluses and minuses in terms of their approach to the law (not to mention politically). But in any case this summer’s confirmation hearings will again show the American people the different approaches to the judicial role. At a time when the constitutional interpretation looms large in an electoral context—not least with the growing discomfort over the massive new health reform—voters will be able to see the dangerous consequences of following the errant jurisprudential path that Justice Stevens blazed so honorably.
Stevens Retirement Ill-timed for Dems
The retirement of Justice John Paul Stevens at the end of the Supreme Court’s current term, and the coming nomination and confirmation process, will doubtless further complicate and delay the Obama administration’s already complicated agenda during this mid-term election year. And the timing cannot be good news for Democrats running for reelection, because the process will serve to highlight their understanding of the Constitution as a document authorizing all but unlimited government in a year in which, thanks to the Tea Party movement, the Constitution is likely to have a prominent place in reelection debates.
Regarding a replacement for Justice Stevens, the nominee will almost certainly come from the Democratic Party’s liberal ranks. As a result, the ideological complexion of the Court is not likely to change, since Justice Stevens, especially in recent years, has been the most reliable liberal vote on the Court, whether on abortion, campaign finance, gun rights, affirmative action, or several other hot-button issues. As the press reviews those decisions over the coming weeks and months, therefore, controversy over the Court will be in the air, adding to what already promises to be a very political year.
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