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.

This Month’s Cato Unbound: What Is Due Process? is a post from Cato @ Liberty - Cato Institute Blog

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.

Drone Warfare at Cato Unbound is a post from Cato @ Liberty - Cato Institute Blog

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

Monetary and Fiscal Policy at Cato Unbound is a post from Cato @ Liberty - Cato Institute Blog

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

Cannabis Policy at Cato Unbound is a post from Cato @ Liberty - Cato Institute Blog

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 at Cato Unbound: A Little Foundational Theory is a post from Cato @ Liberty - Cato Institute Blog

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.

This Month’s Cato Unbound: Brain, Belief, and Politics with Michael Shermer is a post from Cato @ Liberty - Cato Institute Blog

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.

Ludwig von Mises on Fascism is a post from Cato @ Liberty - Cato Institute Blog

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.

Cato Unbound: Are Men in Decline? is a post from Cato @ Liberty - Cato Institute Blog

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.

This Month at Cato Unbound—What’s Wrong with Expert Predictions is a post from Cato @ Liberty - Cato Institute Blog

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.

Bacon with a Soupçon of Hypocrisy is a post from Cato @ Liberty - Cato Institute Blog

“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.

Capitalist Acts between Consenting Adults is a post from Cato @ Liberty - Cato Institute Blog

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

June 2011 Cato Unbound: Targeted Killing and the Rule of Law is a post from Cato @ Liberty - Cato Institute Blog

The media makes it hard for ordinary people to be libertarians. In large part, this is because journalism is in the business of selling panic—panic about terrorism, panic about drugs, panic about food, panic about pornography, panic about our health care system. If it’s not an emergency, it’s not news. To the lazy journalist, everything becomes an emergency—and emergencies always—always—demand state action.

The media makes things hard for the would-be libertarian in other ways, too. Consider this story from today’s Washington Post, about… well, it’s hard to say, actually:

Senate Democrats unveiled a plan Tuesday to save $21 billion over the next decade by eliminating tax breaks for the nation’s five biggest oil companies, a move designed to counter Republican demands to control the soaring national debt without new taxes.

With the proposal, Democrats sought to reframe the debate over debt reduction to include fresh revenue as well as sharp cuts in spending. For the first time, Democratic leaders suggested an equal split between spending cuts and new taxes — “50-50,” said Senate Majority Leader Harry M. Reid (Nev.).

That represents a larger share for taxes than has been proposed by either President Obama or the bipartisan commission he appointed to recommend how to cut the national debt.

So far, the Democratic tax agenda is focused on ending subsidies for big oil companies, a hugely popular proposal involving what Democrats see as a prime example of wasteful giveaways in the tax code. By raising the issue, Democrats are trying to force Republicans either to drop their rigid stance against new taxes or to defend taxpayer subsidies for some of the world’s most profitable corporations, including Ex­xon Mobil, Shell, BP, Chevron and ConocoPhillips.

The proposal came in response to remarks Tuesday by House Speaker John A. Boehner (R-Ohio), who said raising taxes is “off the table.” A day earlier, he gave a speech demanding more than $2 trillion in spending cuts in exchange for GOP support for an increase in the legal limit on government borrowing through the end of next year.

Where am I confused, you ask? On almost everything a libertarian ought to care about. I’ll explain.

One of the key aspects of any good law is generality—that is, equality before the law. As F. A. Hayek put it:

[T]hough government has to administer means which have been put at its disposal (including the services of all those whom it has hired to carry out its instructions), this does not mean that it should similarly administer the efforts of private citizens. What distinguishes a free from an unfree society is that in the former each individual has a recognized private sphere clearly distinct from the public sphere, and the private individual cannot be ordered about but is expected to obey only the rules which are equally applicable to all….

The general, abstract rules, which are laws in the substantive sense, are… essentially long-term measures, referring to yet unnkown cases and containing no references to particular persons, places, or objects. Such laws must always be prospective, never retrospective, in their effect (The Constitution of Liberty, chapter 14, section 2).

Now, with every passing day our government stomps all over this generality requirement again and again, chiefly in the economic sphere. But is it doing so on the front page of today’s Washington Post? That’s a good question.

I can think of lots of ways we might deny a tax break to a certain five oil corporations. Some are decidedly better than others in their generality. Consider the following, ranked from least general to most:

1. “The corporations known as Ex­xon Mobil, Shell, BP, Chevron and ConocoPhillips are hereby denied tax break X. All others still qualify, or not, as they did before.”
2. “Oil corporations with an annual revenue above $198 billion are denied tax break X.”
3. “We find that tax break X itself is lacking in generality. It is hereby repealed, and the overall corporate tax rate is increased accordingly.”

Which one are they proposing? From the story’s first paragraph, we could easily conclude that it was (1). Many people on the left would be happy with (1), because big corporations are anathema to them, and everything they do is evil, and punishing them—generality be damned—is just great.

But then, it could also be (2), and this measure is somewhat more general, even if ConocoPhillips—the smallest company on the list—just so happens to have an annual revenue of $198.655 billion. As Hayek noted, “[C]lassification in abstract terms can always be carried to the point at which, in fact, the class singled out consists only of particular known persons or even a single individual” (ibid., section 4). Hypocrisy is the tribute vice pays to virtue.

And finally, there’s (3), clearly the winner in terms of generality. Is that in fact the proposal being discussed by members of Congress? Or is it still more general than that—something perhaps as described by my colleagues Jerry Taylor and Peter Van Doren earlier this month?

Last week President Barack Obama responded to rising public anger over soaring gasoline prices by banging the drums for the elimination of various tax breaks enjoyed by the oil and gas industry…

[L]et the record show that President Obama is right… about these tax breaks. They make the economy less — not more — efficient and do nothing to reduce prices at the pump.

Rigging the tax code to make investments in manufacturing artificially more attractive than investments in something else is an enterprise designed to harm non-manufacturers for the benefit of … manufacturers. Conservatives who want government to leave markets alone have no business throwing their political bodies in front of this tax break. If their political rhetoric means anything, they would see the president’s bid and raise him by calling for total repeal of this tax break for everyone, not just for oil and gas companies.

If only we were so lucky! Getting back to the Post, we learn much later in the story—in the fifteenth paragraph —that the congressional proposal “would close several long-standing tax loopholes, yielding roughly $2 billion a year in savings to be applied to lowering the deficit. It would affect only the five largest oil companies, excluding smaller producers.”

This is confusing to the point of deception. Does it really “close” a loophole to take a few entities and exclude them from the prior exclusion from the tax? By my understanding, it makes the law less general, more convoluted and more arbitrary, than it was before. Close the loophole—or just don’t close it, I think a Hayek might say. Don’t make companies play human Tetris to figure out whether they aren’t not un-disincluded.

One day I think people will look back on our era—from roughly the civil rights movement to the present—and marvel. They will be amazed at how, while the law grew much more general regarding many non-economic matters, it became increasingly partial and favoritist when it came to running a business. At times our journalism and even our language seemed blind to this contradictory development, which only encouraged it. Even thinking about the generality of our laws is made difficult when it’s just not a topic on the national media’s radar.

But equality before the law should apply, well, equally. Shouldn’t it?

Journalism and Generality is a post from Cato @ Liberty - Cato Institute Blog

In the 1970s, economists and demographers worried about the “population bomb” — world population was exploding, and many doubted there would be resources enough for everyone. At least two schools of thought emerged. One held that population needed to be curbed through public policy — perhaps coercively. The other school, always a minority view, held that human beings themselves were “the ultimate resource” — a phrase coined by economist Julian Simon. On this view, more people would mean more productivity and more creative minds brought to the task of providing for the species.

Since then, conditions have changed dramatically and in ways no one predicted. World population growth slowed at a pace far beyond what anyone thought possible, even in countries that didn’t adopt anti-natalist policies. Several countries are now below replacement fertility rates, and even the fastest-growing populations are slowing down.

Those who worried about the population bomb may worry a little bit less, but fans of Julian Simon shouldn’t be so pleased. This month’s Cato Unbound lead essay by Bryan Caplan examines the problem of world population with a framework strongly inspired by the late Professor Simon. Caplan recommends several policy initiatives that will encourage the growth at least of the American population while protecting individual rights and respecting individual choices.

Caplan’s views here, as elsewhere in his work, are iconoclastic. We’ve invited a distinguished panel to discuss them over the course of the month: Economist Betsey Stevenson of the Wharton School, Columbia University historian Matthew Connelly, and historical economist Gregory Clark of UC Davis. Each will address Caplan’s argument using a range of methodological tools and with somewhat different political values.

Do be sure to check back often, or subscribe to Cato Unbound via RSS.

Cato Unbound: The Politics of Family Size is a post from Cato @ Liberty - Cato Institute Blog

This month at Cato Unbound we’re discussing a practical, everyday issue — parking!

Yes, Cato Unbound is supposed to cover big ideas, deep thoughts, and the like, but parking policy is both important in its own right and also points to what I consider a very interesting problem: Given a theoretical or abstract commitment to free markets, well, how do we get there in the real world? What would a free-market policy look like in this or that issue area?

The answer isn’t always obvious, and the map isn’t the territory. Parking is interesting in this respect and possibly helpful. Parking is all around us, most of us deal with it every day, and the unintended consequences of parking policy are I think maybe easier to see than the unintended consequences in other fields. Parking affects how we live, how we shop, and how we work. It touches our cities, our family life, our environment, and even our health. Learning to look for such unintended consequences is part of developing a political culture that values economic insights and puts them to work.

That’s why this month we’ve invited four urban economists, each of whom can fairly be said to value the free market. Still, there will be a few disagreements among them — as I said, the map isn’t the territory. Donald Shoup leads the issue with his essay “Free Parking or Free Markets?” — arguing that our expectation of abundant free parking is both bad for our communities and the product of anti-market planning.

The conversation will continue throughout the month, with contributions from Professor Sanford Ikeda, Dr. Clifford Winston of the Brookings Institution, and Cato’s own Randal O’Toole. Be sure to stop by throughout the month, or else subscribe via RSS.

Cato Unbound – There Ain’t No Such Thing As Free Parking is a post from Cato @ Liberty - Cato Institute Blog

This month, Cato Unbound examines neoconservatism — perhaps the most puzzling of current ideologies. The lead essay is from Professor C. Bradley Thompson, author of Neoconservatism: An Obituary for an Idea.

So what is it? Some say there’s no there there — neoconservatism is a disposition or a mood, no more and no less, and it’s got little or no enduring philosophical content. Thompson, however, argues that neoconservatism is a coherent political philosophy, one blending Machiavellian pragmatism with Platonic idealism. Philosophers may apprehend eternal truths, but these truths aren’t fit for ordinary folk, and still less are they a good basis for politics. In these realms, we need national unity, national greatness, national strength — in a word, nationalism.

Is this an accurate portrayal? Some will certainly disagree, and we’ve invited three distinguished panelists to engage Thompson’s thesis — Patrick J. Deneen of Georgetown University, Damon Linker of The New Republic, and Douglas B. Rasmussen of St. John’s University. Be sure to come back throughout the month, or subscribe to our RSS feed to see the conversation as it develops.

This Month at Cato Unbound: Neoconservatism Unmasked is a post from Cato @ Liberty - Cato Institute Blog

The Crossed Pond has long been one of my favorite blogs. Here’s a recent post I liked a lot:

I belatedly realized that I needed a calculator today so after quick stop by a gas station to try my luck, I ended up in my local Walmart. I was in a bit of hurry so I asked a very nice lady where I could find the calculators and was pleasantly surprised when it was much closer than where I would have gone if I didn’t ask. I made my way to the aisle and pondered my options. Because it looked to be a familiar style, I grabbed a Casio that was priced at $4.97 and was just about to double back to the registers when I noticed something on the top shelf that had exactly the same features like memory recall but was priced at a mere dollar. I quickly exchanged the one that was priced five times higher and headed out.

As I sat admiring my new purchase a few minutes later, I was struck by just how amazing this little piece of hardware really was. It’s about 20% bigger than a credit card and is encased in a rather attractive translucent case. This translucency allowed me to notice the interior guts of the calculator and got me thinking. Within the price point of a dollar, this little device had somehow managed to include an eight digit liquid crystal display, a little solar panel, a battery, a pcb board with attached cables from the buttons to the board and from the board to the screen, a system of buttons and a backing for them that transmits their signal and of course actual calculator microchip itself. It doesn’t have the largest of screens or the biggest battery and the whole device is only about half an inch thick at the thickest point. Yet it’s got nice soft buttons that do things accurately on the screen when I press them. Yet somehow, this marvel was able to be sold to me for a dollar.

That dollar includes all of the hardware physically inside of it. It also includes the cost of all of those who handled this device on its journey to me. Aside from manufacturing and the initial assembly, portions of that dollar were spent on transporting this all the way across the Pacific and then inland from container box to semi truck to the back area of Walmart where someone actually unpacked it and put it on the shelf for me to buy. This was all done for less than 100 pennies. Think about that for a moment.

Ain’t modern life grand?

Now, when people on the left hear me say things like this, they often seem to conclude that I must be speaking in code.

What I must be saying — truly, deep down — is that the poor should be happy with what they have. That all great concentrations of wealth are held justly and should be preserved as national treasures. That ours is the best of all possible worlds. And that you should all vote Republican.

Surely this is the most probable interpretation, right? I mean, what else could it be? Pocket calculators are so pedestrian. They’re not grand. They don’t make big explosions. They don’t last forever. They don’t even impress the neighbors. Pocket calculators are the most non-monumental objects around.

Well, almost. Leonard Read’s essay “I, Pencil” explains it superlatively:

I, Pencil, simple though I appear to be, merit your wonder and awe, a claim I shall attempt to prove. In fact, if you can understand me—no, that’s too much to ask of anyone—if you can become aware of the miraculousness which I symbolize, you can help save the freedom mankind is so unhappily losing. I have a profound lesson to teach. And I can teach this lesson better than can an automobile or an airplane or a mechanical dishwasher because—well, because I am seemingly so simple.

Simple? Yet, not a single person on the face of this earth knows how to make me. This sounds fantastic, doesn’t it? Especially when it is realized that there are about one and one-half billion of my kind produced in the U.S.A. each year. [in 1958!]

Pick me up and look me over. What do you see? Not much meets the eye—there’s some wood, lacquer, the printed labeling, graphite lead, a bit of metal, and an eraser.

Just as you cannot trace your family tree back very far, so is it impossible for me to name and explain all my antecedents. But I would like to suggest enough of them to impress upon you the richness and complexity of my background.

“Not a single person on the face of this earth knows how to make me.” The same could be said of nearly all consumer goods today. In a very important sense, we do not know the world we have made. Its production, like the production of pencils, is so dispersed and depends on so many complex chains of events that if a central planner were to propose it, that plan would be laughed out of the politburo.

And yet, unlike designed plans, unlike the plans developed by an individual or a small central committee — the plans that develop organically have a much greater chance of success. Pencils are produced. People work and get paid. Waste and scrap are typically either punished or eliminated. If one part of the system breaks, the system itself — that is, the price system — stands ready to tell us where the next-best thing can be found, and we don’t even have to ask the central planner.

When I praise market freedom, this is what I’m praising. This process; nothing else. I’m not praising great concentrations of wealth, and I’m certainly not praising the people who hold them. I’m not saying that cheap pencils are sufficient, so let the poor stay where they are. All I’m saying is that no other system has produced so many pencils, for so long and so cheaply. That’s pretty excellent all by itself, isn’t it?

Nor has any other system given us the surplus time that makes it possible for nearly all children to spend their formative years learning how to use pencils. Market freedom neither abolished child labor nor produced mass literacy. But market freedom did make doing so a thinkable, non-starvation-inducing proposal in the first place. (Mass education for nearly the first twenty years of life? In the Middle Ages? Are you kidding?)

Which, again, is not to say that the poor should be content where they are, or that great concentrations of wealth are all perfectly just, et cetera, et cetera. It’s only to say that you can buy a pocket calculator for a dollar today, and in the 1950s the only place you could even find a pocket calculator was in the pages of Isaac Asimov. That’s pretty incredible. Would even Asimov have imagined it, so soon and so cheaply?

Outside of market freedom, nothing appears able to back privation into a corner — so completely, even, that we in the industrialized world can think of privation as a curiosity, and — dangerously — conclude that it’s easily abolished. It isn’t. The way out of privation is narrow, and it took us nearly forever to find.

Yet privation is what nature gives us. Mother Nature is not, contrary to myth, a generous woman. She doesn’t give us pencils, and not even fruit or vegetables in any great quantity. She gives us fairly demanding nutritional requirements that we’ve only recently managed to meet, as a species, with anything like adequacy. She gives us malaria, smallpox, and dysentery. She gives us this horrible urge to reproduce, whether the kids will live happily, or suffer, or die miserably. She gives us illiteracy, and ignorance, and intuitions about the natural world that may have been useful as hunter-gatherers but that take us not a single step beyond.

Nature is utterly cruel and ungenerous, and yet markets can overcome it, and that’s why a solar-powered calculator for a dollar is so wonderful.

For a Dollar is a post from Cato @ Liberty - Cato Institute Blog

The Obama Administration’s decision to stop defending DOMA in the courts has provoked some widespread commentary. Jim Burroway hints that Obama’s strategy here is both deep and cynical. Obama’s locked in a losing fight with Republicans over the budget, because Americans really do want to cut federal spending. This remains true even if, notoriously, nearly the only specific program they want to cut is our negligible foreign aid.

The mood is anti-spending, and it’s just possible that a government shutdown scares Obama even more than it scares the Republicans. The remedy? Change the subject. Make Republicans in Congress defend their stance on gay marriage, which is so not the discussion they’d like to be having.

It could be one of the first instances in which gay marriage counts as a wedge issue against Republicans, rather than for them. Opposing same-sex marriage appeals strongly to a smallish base. To the center, the whole subject is distasteful either way, and they don’t mind if Obama drops it. Finally, more and more people just find the conservatives embarrassing here. Obama sees no need to do their dirty work for them, especially when the work really is that dirty.

Meanwhile, Orin Kerr is worried about executive power:

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.

Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in a school prayer case? Or an abortion case? Or on Obamacare itself?

There are two very, very distinct issues here. One concerns gays and lesbians. The other concerns the proper relationship among the three branches of the federal government. One is about policy; the other is about procedure. Deciding a procedural question based on what it means for a one-time policy outcome is just bad governance. The questions we should be asking are — How much power would this really give the president? Is this a particularly new power? (Arguably it’s not.) And in any case, are we comfortable with the president having it, even if he or she has radically different views about policy?

When we look at it that way, there’s a near-perfect parallel to the perennial debate over the filibuster. Everyone hates it when they’re in the majority. Everyone loves it when they’re in the minority. Politics really is the mind-killer.

The Non-Defense of DOMA is a post from Cato @ Liberty - Cato Institute Blog

If you follow the news, you might never guess that we’re living in a remarkably peaceful era. But we are. The long-term trends say that war is on the decline—combat fatalities, too. If we value world peace, we shouldn’t be complaining. We should be figuring out why these things are happening—and asking how we can keep them going.

Peace, of course, doesn’t often make the news. There’s nothing dramatic to report. Peace doesn’t explode. It doesn’t kill people. It makes for lousy TV.

I’m hoping, however, that peace makes a good topic at Cato Unbound. This month’s lead essay is by Andrew Mack, director of the Human Security Report Project at Simon Fraser University. If we live in a more secure world, he asks, why is it?

Please join us throughout the month for an empirical discussion of peace and war, the demographics of each, and what it is that makes our era an unusually peaceful one.

Peace by the Numbers is a post from Cato @ Liberty - Cato Institute Blog

From a press release by Law Enforcement Against Prohibition:

[A] U.S. Customs and Border Protection agent… was fired for saying in a casual conversation that legalizing and regulating drugs would help stop cartel violence along the southern border with Mexico. After sharing his views with a colleague, the fired agent, Bryan Gonzalez, received a letter of termination stating that his comments are “contrary to the core characteristics of Border Patrol Agents, which are patriotism, dedication, and espirit [sic] de corps.” Last week, with the help of the American Civil Liberties Union of New Mexico, Gonzalez filed a lawsuit seeking damages.

I know very little about employment law and have no idea whether the agent has a case. But just consider that even some Border Patrol agents are questioning the War on Drugs — and even when it can cost them their jobs.

If it costs you less to speak out, then please, consider doing so. American patriotism is about speaking one’s mind. Dedication to a failed policy isn’t a virtue. And will the firings continue until the esprit de corps improves?

Patriotism, Dedication, and Esprit de Corps is a post from Cato @ Liberty - Cato Institute Blog