Author Archive
This Month’s Cato Unbound: What Is Due Process?
What is due process?
Virtually everyone would agree that “due process” refers to a set of judicial procedures that create at least a strong tendency toward fair results.
But why do we have these procedures and not some others? Why do we have trial by jury, and not trial by fire? Why not just flip a coin? In this month’s Cato Unbound, our lead essayist, Timothy Sandefur, says that we have the procedures we do for one very simple reason: We recognize them as fair.
In other words, “due process” ultimately points back at a larger — and much thornier — legal and philosophical issue, that of fair treatment itself. If it didn’t, “due process” would just guarantee some empty (or possibly harmful) rituals.
So far, so good. Sandefur doesn’t stop there, however. He adds that the Fifth and Fourteenth Amendments’ guarantees of due process mean “not only that government must take certain procedural steps (hearings, trials, and so forth) when it imposes a deprivation, but also that some acts are off limits for government, “regardless of the fairness of the procedures used to implement them.”
In other words, due process is a check both on the procedure of the judiciary and on the substance of legislation. Some kinds of laws, Sandefur argues, cannot be implemented by any fair process — there’s no good reason for them, and there’s no lipstick enough for pigs like these. In such cases, the guarantee of due process is either a mockery of itself — or it’s enough to strike down the law. Sandefur picks the latter.
Is he right? Professor Lawrence Rosenthal of Chapman University disagrees, writing:
Deciding whether a law is supported by “good reason” is the essence of policymaking. Our Constitution guarantees a republican form of government, and in a republic, policy is made by those who are politically accountable for their decisions. Sandefur’s conception of due process of law, however, creates a judicial platonic guardianship that must approve every policy decision.
One side risks judicial overreach. The other side risks the tyranny of the majority. Which one is right? Stay tuned for the rest of this month’s Cato Unbound, which will also feature commentary by legal scholars Ryan Williams of the University of Pennsylvania and Gary Lawson of Boston University. Legal scholars will also want to review Sandefur’s paper in the Harvard Journal of Law and Public Policy (pdf), which develops the argument in fuller detail.
Drone Warfare at Cato Unbound
In recent years, drone warfare technology has made tremendous strides, allowing modern war to be conducted in many respects by remote control.
This may seem like a boon to technologically savvy countries like the United States, and in a sense it clearly is. But the moral calculus of war is rarely that simple. While drones can and do shield front-line troops from danger, and can often substitute for them entirely, they also have other effects. Drones can make it more likely that we will enter into wars, for example, and if so, then it’s no longer clear that they help the ordinary soldier. Drones may increase casualties among noncombatants; their pinpoint accuracy is only as good as the human intelligence behind them, which now may be more subject to manipulation, not less. And drones are also available to hostile states and nonstate actors, including terrorist groups like Hezbollah.
To discuss these issues, Cato Unbound this month has assembled a panel of experts on drones and ethics of war. Our lead essay is by David Cortright of the University of Notre Dame; he is joined by Benjamin Wittes of the Brookings Institution, as well as Daniel Goure of the Lexington Institute, who will contribute on Friday; and Tom Barry of the Center for International Policy, whose reply will appear on Monday.
Conversation will continue throughout the month, so be sure to subscribe via RSS if you want to see the discussion as it happens.
Monetary and Fiscal Policy at Cato Unbound
This month we’re talking macroeconomics at Cato Unbound. Tim Congdon kicks things off with an essay about the confused legacy of John Maynard Keynes. We have been told, again and again, that the United States is in a liquidity trap — because the federal funds rate can’t go below zero.
There are several problems with this often-repeated claim. First, even at a federal funds rate of zero, other instruments of monetary policy remain effective. Second, a central bank lending rate of zero is not at all what Keynes himself meant when he used the term “liquidity trap.” Third, what Keynes did mean is a source of considerable ambiguity, as necessitated by the simplified model he presented in his General Theory of Employment, Interest, and Money. And finally, a liquidity trap that conforms to his model may never actually occur, at least not in the strict sense.
Advancing these claims is Tim Congdon, the United Kingdom’s leading monetarist and author of the recent book Money in a Free Society. He is joined by three other prominent economists, each with a slightly different view of the issue. They are Dean Baker, co-director of the Center for Economic and Policy Research; Don Boudreaux of George Mason University; and Robert Hetzel, an economist with the Federal Reserve Bank of Richmond.
As always, Cato Unbound readers are encouraged to take up our themes and enter into the conversation on their own websites and blogs, or at other venues. Trackbacks are enabled. We also welcome your letters and may publish them at our option. Send them to jkuznicki at cato.org
Cannabis Policy at Cato Unbound
This month at Cato Unbound, we mark a milestone in U.S. public policy. Last month, for the first time ever, the Gallup polling organization recorded 50% support for legalizing the sale of recreational marijuana to adults. (Medical marijuana has had majority approval for many years now.)
So why now? What’s changed lately to bring so many people around? And where are we going from here?
To discuss these questions, we’ve invited a quartet of marijuana reform activists to a roundtable discussion. Each will present an essay on a different facet of marijuana policy, and our conversation this month will be about political strategy, possible future trends, and the interplay among various sub-issues in the field.
Kicking things off will be Paul Armentano of the National Organization for the Reform of Marijuana Laws (NORML), writing about the biomedical aspects of cannabis and its prohibition. He will be followed by former Seattle police chief Norm Stamper, now with Law Enforcement Against Prohibition; Allen St. Pierre, the executive director of NORML, who will discuss public education and messaging; and Morgan Fox of the Marijuana Policy Project, who will discuss upcoming ballot initiatives and legislative developments.
Although each of the four is fairly well in the same camp on this issue, each also brings to the table different experiences, different perspectives, and different areas of expertise. We hope you will find a discussion among them educational and thought-provoking.
As always, Cato Unbound readers are encouraged to take up our themes and enter into the conversation on their own websites and blogs, or at other venues. Trackbacks are enabled. We also welcome your letters and may publish them at our option. Send them to jkuznicki at cato.org
This Month at Cato Unbound: A Little Foundational Theory
The October, 2011 issue of Cato Unbound tackles some of the foundational questions of political theory: how do we recognize justice? If it’s not utopia, is it still good enough to command our respect? Or allegiance? How do we know? Who are the members of the political community? How are they chosen? What counts as a “reason” for political action?
If all of this sounds abstract, rest assured that lead essayist Gerald Gaus is both lucid and engaging. He writes:
Liberalism’s founding insight was the recognition in the sixteenth and seventeenth centuries that controversial religious truths could not be the basis of coercive laws and public policies. The task is now to apply this insight to philosophizing about justice itself. This is an extraordinarily difficult lesson for many. Can it really be that I should not endeavor to ensure that my society conforms to my “knowledge” of justice? (Compare: can it really be that my “knowledge” of God’s will should not structure the social order?)
Gaus argues for a “range of justice”—a range of theories that, while perhaps not perfect by anyone’s standards, are still close enough to demand our respect, especially given the large benefits that come from freely engaged social cooperation.
Discussing with him this month are a panel of three other prominent social theorists. Richard Arneson argues that we tolerate one another not because we’re all pretty close to rational (clearly a lot of us aren’t!)—but because intolerance breeds atrocity. Eric Mack argues that classical liberalism is no mere contending sect; it is the right approach to politics, because it offers the greatest leeway for individuals to choose their own ends in life. And Peter J. Boettke argues that any social system that neglects private property will fail to produce a cooperative society in any sense; without market exchange, individuals will fall into strife over scarce resources.
Obviously I won’t be able to do justice to their arguments here, so please do check out Cato Unbound, where discussion will continue through the end of the month.
This Month’s Cato Unbound: Brain, Belief, and Politics with Michael Shermer
In recent years, brain science has converged on a surprising framework to explain how we believe the things we believe. It appears that the origin of belief is emotive, rooted in things like group allegiance or the affinities we may have for certain patterns of moral values. Only later does our rationality speak up. “Motivated reasoning” is the term psychology gives this process, although a cynic might possibly be forgiven for calling it “bias.”
Where does this leave our beliefs about politics? On the one hand, we may have some cause for despair, as our beliefs may not be as objectively justified as we like to imagine. On the other, the emerging science of mind may yield effective ways to correct our biases, or at least to understand their origins. If so, a new, more sophisticated political science may be in order, one rooted firmly in brain science.
This month’s Cato Unbound features libertarian science writer Michael Shermer , who leads things off with a taste from his new book The Believing Brain: From Ghosts and Gods to Politics and Conspiracies—How We Construct Beliefs and Reinforce Them as Truths. He will be answered by Artificial Intelligence expert Eliezer Yudkowsky, perhaps best known for his work at the group blog LessWrong.com; Christian blogger and cultural critic Joe Carter of First Things and Evangelical Outpost; and Reason magazine’s science columnist Ronald Bailey.
Discussion will continue through the month, so be sure to stop by often or subscribe to Cato Unbound via RSS.
Ludwig von Mises on Fascism
In response to Michael Lind’s rather uninformed attack on libertarianism today, it’s probably a good idea to read Ludwig von Mises’s unabridged thoughts on fascism:
Fascism can triumph today because universal indignation at the infamies committed by the socialists and communists has obtained for it the sympathies of wide circles. But when the fresh impression of the crimes of the Bolsheviks has paled, the socialist program will once again exercise its power of attraction on the masses. For Fascism does nothing to combat it except to suppress socialist ideas and to persecute the people who spread them. If it wanted really to combat socialism, it would have to oppose it with ideas. There is, however, only one idea that can be effectively opposed to socialism, viz., that of liberalism.
It has often been said that nothing furthers a cause more than creating martyrs for it. This is only approximately correct. What strengthens the cause of the persecuted faction is not the martyrdom of its adherents, but the fact that they are being attacked by force, and not by intellectual weapons. Repression by brute force is always a confession of the inability to make use of the better weapons of the intellect — better because they alone give promise of final success. This is the fundamental error from which Fascism suffers and which will ultimately cause its downfall. The victory of Fascism in a number of countries is only an episode in the long series of struggles over the problem of property. The next episode will be the victory of Communism. The ultimate outcome of the struggle, however, will not be decided by arms, but by ideas. It is ideas that group men into fighting factions, that press the weapons into their hands, and that determine against whom and for whom the weapons shall be used. It is they alone, and not arms, that, in the last analysis, turn the scales.
So much for the domestic policy of Fascism. That its foreign policy, based as it is on the avowed principle of force in international relations, cannot fail to give rise to an endless series of wars that must destroy all of modern civilization requires no further discussion. To maintain and further raise our present level of economic development, peace among nations must be assured. But they cannot live together in peace if the basic tenet of the ideology by which they are governed is the belief that one’s own nation can secure its place in the community of nations by force alone.
It cannot be denied that Fascism and similar movements aiming at the establishment of dictatorships are full of the best intentions and that their intervention has, for the moment, saved European civilization. The merit that Fascism has thereby won for itself will live on eternally in history. But though its policy has brought salvation for the moment, it is not of the kind which could promise continued success. Fascism was an emergency makeshift. To view it as something more would be a fatal error. (From Ludwig von Mises, Liberalism, section I:10)
The word I’d reach for wouldn’t be “fascist.” It would be “prophetic.” Especially given that these words were written in 1927.
Cato Unbound: Are Men in Decline?
This month’s Cato Unbound looks at the intersection of education, work, and gender, and asks: Are men in decline? As women have advanced in education, the workplace, and even politics, some fear that the emerging new economy—or perhaps some other factors—are dragging men down. We’ve all heard talk of the Mancession, and it’s well known that men are in the minority now on many college campuses. How long will the trend continue?
Lead essayist Kay Hymowitz makes the case for male decline; Jessica Bennett, Amanda Hess, and Myriam Miedzian give reasons to be skeptical. Hymowitz replies to her critics. (Men, alas, were so far in decline that I couldn’t find a single one to write for this issue.)
The conversation is just getting started, so be sure to drop by again or subscribe to Cato Unbound so you’ll never miss a post.
This Month at Cato Unbound—What’s Wrong with Expert Predictions
This month’s Cato Unbound looks at the failure of expert forecasting.
When I was very young my father received a book of expert predictions edited by David Wallechinsky, Amy Wallace, and Irving Wallace, titled simply The Book of Predictions. How’d they do? Awfully.
Virtually no one predicted the peaceful end of the Soviet empire. The next big technology was still outer space, not information. Nuclear war and overpopulation vied with exotic environmental disasters to do us in. Want to print a document? Your computer can do that! Just walk to the end of your street, where you’ll find a device called a “printer.” I’ve kept the book, and I’ve been interested in the failure of expert prediction ever since.
This month at Cato Unbound, experts—sorry, we had to—Dan Gardner and Philip Tetlock lay out the evidence against forecasting, along with suggestions for how to improve it. But they conclude that many forms of forecasting, even those that once seemed just on the horizon, will perhaps always remain a dream:
Natural science has discovered in the past half-century that the dream of ever-growing predictive mastery of a deterministic universe may well be just that, a dream. There increasingly appear to be fundamental limits to what we can ever hope to predict. Take the earthquake in Japan. Once upon a time, scientists were confident that as their understanding of geology advanced, so would their ability to predict such disasters. No longer. As with so many natural phenomena, earthquakes are the product of what scientists call “complex systems,” or systems which are more than the sum of their parts. Complex systems are often stable not because there is nothing going on within them but because they contain many dynamic forces pushing against each other in just the right combination to keep everything in place. The stability produced by these interlocking forces can often withstand shocks but even a tiny change in some internal conditional at just the right spot and just the right moment can throw off the internal forces just enough to destabilize the system—and the ground beneath our feet that has been so stable for so long suddenly buckles and heaves in the violent spasm we call an earthquake. Barring new insights that shatter existing paradigms, it will forever be impossible to make time-and-place predictions in such complex systems. The best we can hope to do is get a sense of the probabilities involved. And even that is a tall order.
Human systems like economies are complex systems, with all that entails. And bear in mind that human systems are not made of sand, rock, snowflakes, and the other stuff that behaves so unpredictably in natural systems. They’re made of people: self-aware beings who see, think, talk, and attempt to predict each other’s behavior—and who are continually adapting to each other’s efforts to predict each other’s behavior, adding layer after layer of new calculations and new complexity. All this adds new barriers to accurate prediction.
Bacon with a Soupçon of Hypocrisy
NPR’s Morning Edition today ran a surprisingly sympathetic report on “libertarian summer camp“ — the Porcupine Freedom Festival, held every year in New Hampshire.
How did it go? There was a lot of bacon, apparently. And a good time was had by all — many of whom, I gather, are a shade or two more radical than I am. It sounded like a fun, slightly zany, and not completely unworkable experiment in living, right down to the alternative currencies in gold and silver. Correspondent Robert Smith seems to have set out looking for “nasty, brutish, and short,” and what he found was just… different.
The main complaints?
First:
“There are no guarantees in a free market,” which is nothing if not obviously false. Businesses offer guarantees all the time and completely of their own volition, always seeking the elusive customer. There may be no sure thing in a free market, but the regulated market can’t deliver that either. Businesses are bound to keep their guarantees by the fear of losing customers. Bureaucrats are bound to keep their guarantees by… by… well, not too much, really.
And second:
[A]s George is making the omelets I spot something. His eggs come in big racks approved by the USDA. And the propane he’s using to cook the omelet — didn’t someone have to pay gas taxes on that?
“Unfortunately, it’s impossible to live completely state free,” George says.
What happens to be the case in our world is not necessarily the case in all possible worlds, and what we have now is very likely not the case in the best of all possible worlds. But for some reason mainstream journalists seem to conclude that it is, at least when faced with libertarian alternatives. “Why can’t you live by your principles in this unlibertarian world?” too often collapses into “No one could ever live by your principles in any possible world.”
This seems a hasty conclusion to me, to say the least, and one for which it’s strange to see libertarians singled out. No one asks the advocates of single-payer health care to do without private health care until their preferred system is enacted. No one asks the opponents of free immigration to abstain from all products and services ever touched by undocumented workers (though I admit, it would be a hoot if they tried).
Maybe it’s the influence of Atlas Shrugged, which does seem to argue for this type of ideological purity. But Atlas Shrugged was a fiction of a very particular type — idealized, deliberately made stark and simple, even — gasp! — unrealistic, the better to set out some hard-to-grasp principles. On a societal level those principles may very well be correct, or something a lot like them, even if I can’t live by them all alone while everyone else does not.
Still — not too bad, NPR. Not too bad at all.
Capitalist Acts between Consenting Adults
“Even Robert Nozick gave up on libertarianism,” says Stephen Metcalf, more or less. “So what’s wrong with you?” (Aside, of course, from the fact that Nozick didn’t give up.)
I probably should hesitate before declaring my allegiance to the evil league of evil. But you’re reading this at the Cato Institute, so it may be too late for that. Metcalf’s piece falls into a large and (sadly) growing category for me, one labeled “People Condemning Libertarians for Strange Things That Never Occurred to Anyone, Let Alone to Us.”
It never occurred to me, for example, that by citing Wilt Chamberlain as someone who became wealthy in a morally blameless way, Robert Nozick was playing the race card. Metcalf writes:
“Wilt Chamberlain” is an African-American whose talents are unique, scarce, perspicuous (points, rebounds, assists), and in high demand. We feel powerfully the man should be paid, and not to do so—to expect a black athlete to perform for (largely) white audiences without adequate compensation—raises the specter of the plantation.
Raises the specter of the plantation? Does it now? Let’s generalize: Your forcing anyone to perform without what they consider adequate compensation should raise that same specter. If someone is going to perform for you, they must do it for a wage that they consider adequate, whether their “performance” is a show of basketball prowess or just working on an assembly line.
If they don’t like the wage, they should be free to seek a better one. If the employers pay a giant wage, and if they do so because they really, really like the work, then that’s also their right.
Those who want to interfere — to tax wages, to restrict entry or exit, or to prohibit whole lines of work — they are the ones who bear the burden of proof. Not the willing buyers and sellers of labor. That’s what Wilt Chamberlain’s example is supposed to show.
Maybe you’re not ready to go whole-hog and declare that taxation is theft. Eh, fine. Still, taxation should make all of us pretty uncomfortable, especially when we look at its philosophical implications. The arguments that justify taxation might actually be unavoidable—truthfully, I wouldn’t know how to run a government without them—but that doesn’t make them any less dangerous.
Of the many errors in a long and error-ridden article, I think the worst has to be the idea that libertarians hold all concentrations of wealth to be good. As long, I infer, as we gather it in sufficiently large heaps. Metcalf writes:
But being a star athlete isn’t the only way to make money. In addition to earning a wage, one can garnish a wage, collect a fee, levy a toll, cash in a dividend, take a kickback, collect a monopoly rent, hit the superfecta, inherit Tara, insider trade, or stumble on Texas tea. For each way of conceiving wealth, there is at least one way of moralizing its distribution. The Wilt Chamberlain example is designed to corner us—quite cynically, in my view—into moralizing all of them as if they were recompense for a unique talent that gives pleasure; and to tax each of them, and regulate each of them, according to the same principle of radical noninterference suggested by a black ballplayer finally getting his due.
This is simply wrong. For a libertarian, it’s only Wilt Chamberlain’s particular type of wealth that is morally blameless, not all the rest. Which kind is his? The kind acquired through voluntary transactions, without coercion or fraud. The kind that comes from Nozick called capitalist acts between consenting adults.
Some wealth is blameless. Some isn’t. And yes, some cases are truly hard to judge: Is Wal-Mart a free-market success story? Wellll…. kind of. But what about all those special tax privileges? What about that eminent domain abuse?
Wilt Chamberlain makes a good example not because he’s a black man struggling sympathetically in a white man’s world. His example is useful because it strips away every possibility of force, fraud, corporate welfare, and government favoritism. When we do that, we can see that it’s still possible to grow wealthy through honest, voluntary methods. That’s a valuable insight, even if you don’t necessarily agree with everything else Robert Nozick ever wrote. (Don’t sweat it; I don’t either.)
Finally, Metcalf strangely neglects Chamberlain’s fans. When we talk about Wilt Chamberlain’s right to collect a paycheck, it’s partly because he’s highly visible. But we should not forget that when we take away that paycheck, we also take away an entertainment choice for millions of ordinary people.
If we remove enough choices like these, we won’t merely have made life less cushy for the talented. We’ll also have made it a lot poorer for the rest of us. We could be taking away not just basketball, but breakthroughs in science, technology, and the arts. And why? Because someone found someone else’s voluntary transfer of wealth distasteful. That shouldn’t be much of a reason.
June 2011 Cato Unbound: Targeted Killing and the Rule of Law
When can the executive lawfully kill?
The rule of law itself depends on getting the answer right. Clearly that answer can’t be “never,” because then even defensive wars would be impossible. And it can’t be “whenever,” because that would be the very antithesis of lawful government. As F. A. Hayek wrote, “if a law gave the government unlimited power to act as it pleased, all its actions would be legal, but it would certainly not be under the rule of law” (p. 205).
The answer must be “sometimes”—but which times are those? In wartime? In peacetime? Against aliens? What about citizens? What role do the courts play? And what about the legislature?
In answer to these questions, Cato Unbound lead essayist Ryan Alford draws on the Anglo-American constitutional tradition, arguing that the killing of a citizen or subject without judicial authorization was so far opposed to our traditional legal safeguards that the American Founders didn’t even bother to prohibit it in the Constitution. And yet, he argues, the case of Anwar al-Awlaqi shows that our government now claims this power anyway. The themes of his essay are explored in much more detail in his forthcoming article in the Utah Law Review.
To discuss with him this month, we’ve lined up a panel of legal and historical experts: John C. Dehn of the U.S. Military Academy at West Point, Gregory McNeal of Pepperdine University, and Carlton Larson of the University of California at Davis. Each will offer a commentary on Alford’s essay, followed by a discussion among the four on this timely and important subject. Be sure to stop by often, or just subscribe to Cato Unbound‘s RSS feed.
As always, Cato Unbound readers are encouraged to take up our themes, and enter into the conversation on their own websites and blogs, or at other venues. Trackbacks are enabled. We also welcome your letters and may publish them at our option. Send them to jkuznicki at cato.org
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