Archive for the ‘Cato Publications’ Category
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.
This Week at Libertarianism.org
It’s been a busy week over at Libertarianism.org. We began with a new Excursions essay from George H. Smith. Provocatively titled “Fingering the King on the Road to Independence,” Smith’s piece examines how the pre-Revolution Coercive Acts led Americans to blame the king for the conspiracy to strip them of their rights and liberties.
We posted two new videos featuring the philosopher Douglas Rasmussen, one to our Libertarian View series and the other of a lecture he gave in 1991 on morality and capitalism. Here are embeds of those videos:
We also added a speech by Ted Galen Carpenter dealing with the impact of a country’s foreign policy on its domestic policies.
Romneycare & Free Riders
During last night’s GOP presidential debate, Rick Santorum and Mitt Romney had a polite disagreement over Romneycare’s impact on free-ridership in Massachusetts. The short version: Santorum was right. Romney and even FactCheck.org disputed Santorum’s claim, but they misunderstood it.
The exchange comes 2:15 into this video from Kaiser Health News:
Here’s the Kaiser Health News transcript:
SANTORUM: Just so I understand this, in Massachusetts, everybody is mandated as a condition of breathing in Massachusetts, to buy health insurance, and if you don’t, and if you don’t, you have to pay a fine.
What has happened in Massachusetts is that people are now paying the fine because health insurance is so expensive. And you have a pre-existing condition clause in yours, just like Barack Obama.
So what is happening in Massachusetts, the people that Governor Romney said he wanted to go after, the people that were free-riding, free ridership has gone up five-fold in Massachusetts. Five times the rate it was before. Why? Because…
ROMNEY: That’s total, complete…
SANTORUM: I’ll be happy to give you the study. Five times the rate it has gone up. Why? Because people are ready to pay a cheaper fine and then be able to sign up to insurance, which are now guaranteed under “Romney-care,” than pay high cost insurance, which is what has happened as a result of “Romney-care.”
ROMNEY: First of all, it’s not worth getting angry about. Secondly, the…
(APPLAUSE)
ROMNEY: Secondly, 98 percent of the people have insurance. And so the idea that more people are free-riding the system is simply impossible. Half of those people got insurance on their own. Others got help in buying the insurance.
Cato Institute Scholars on the State of the Union 2012
Cato Institute scholars Malou Innocent, Chris Edwards, Neal McCluskey, Ilya Shapiro, Jerry Taylor, Dan Mitchell and Dan Ikenson respond to President Obama’s 2012 State of the Union Address.
Video produced by Caleb O. Brown, Austin Bragg and Lester Romero.
Personal Accounts–for Medicare
Last night, Newt Gingrich praised the Chilean Social Security system, which allows workers to save for their retirements in personal accounts, rather than contribute to the government pension scheme. Several of my Cato colleagues are far more qualified than I am to comment on that system, including Mike Tanner, Jagadeesh Gokhale, and Jose Pinera–who designed and implemented it. But personal accounts are as important for reforming compulsory health insurance schemes like Medicare as they are for reforming compulsory pension schemes.
In 2010, I traveled to Chile to deliver an address to the International Federation of Pension Fund Administrators (FIAP). I detailed the harms caused by compulsory health insurance schemes and explained how personal medical accounts would improve health care and generate wealth even for the poor:
In designing health care markets, perfection is not an option. Under any system, whether state-run or the free market, some patients will inevitably fall through the cracks.
Personal medical accounts can help fill in those cracks by enabling innovations that improve medical care and bring it within reach of the poor. Yes, some will not earn enough to provide for themselves. And when we are free to make our own decisions, a small number of people will make poor decisions. I believe we have a moral duty to care for patients who could not or would not provide for themselves. Personal medical accounts will make it easier for us to meet that moral duty.
Under compulsory health insurance schemes, those cracks widen, and more people fall through. Price and exchange controls block innovation. Governments waste resources on low-value medical care. Some would describe these as the unavoidable costs of creating an equitable society. But those wasted resources do not purchase solidarity. They purchase sickness and poverty.
FIAP turned my address into this book chapter, which also explains how to craft a system of personal medical accounts.
For current enrollees, who have not built up savings in a personal medical account, Congress should make Medicare look more like Social Security. That is, the government should subsidize Medicare enrollees by giving them cash, rather than creating a complex health-insurance scheme that effectively lets government officials shape the entire health care sector.
Filed under: Cato Publications; General; Government and Politics; Health Care
Today, at Least, Britannica Rules the Web
Congratulations to Wikipedia for going dark for a day in protest of the “online piracy” bills being considered in Congress.
But what do we do for information today? You know, we’ve gotten used to being able to find information now. So here’s an idea: Try the original encyclopedia, the one written (in most cases, ahem) by scholars and experts, Britannica.
You could start with their article on libertarianism. Or indeed their article on censorship. And then move on to the columns that I wrote there for most of 2011, on such topics as the debt ceiling crisis, the French Revolution, the founding documents of the United States and the Communist Party of China, the false charge of isolationism, marriage equality in 1967 and 2011, government waste (“this is the business you have chosen“), the Stonewall protests, the triumph of feminism, and why Keynes threw towels on the floor. Good heavens — that ought to keep you busy on Wednesday.
And then Thursday at noon, as Wikipedia and other sites reopen, you can go down to Capitol Hill at noon to see a panel of experts explain what’s wrong with the bills that the websites are protesting.
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.
Withholding Scientific Data: Good Idea or Not?
Should information be withheld from academic journals because of the potential that it might fall into the hands of terrorists? The National Science Advisory Board for Biosecurity (NSABB) has asked the journals Science and Nature to keep certain details out of reports they intend to publish about experiments that produced a human-transmissible version of a flu virus that is deadly about 50 percent of the time.
The NSABB said conclusions should be published, but not “experimental details and mutation data that would enable replication of the experiments.” This government panel has not sought to ban the release this information, so we’re not talking about formal censorship, but the request is at an early point on the censorship continuum.
It would seem that withholding this information from academic journals might do some good. But the limiting factor on production of a newly transmissible virus is training in virology (or whatever) and access to the equipment that allows such work to be done—not access to data about the technique used in these experiments. Whether it’s published in these journals or not, a criminal/terrorist virologist would probably be able to access the data using the subterfuge of having a genuine scientific interest.
So, to stop terrorists accessing bioweapons do we limit training in virology? Control laboratory equipment as dual-use civilian/military technology? No, because the massive weight of training and equipment—something approaching, if not actually, 100 percent—will go to people who will use these things to make us safer, even if a one-off tries to use virology skills to make us unsafe.
It’s a close call, and I’m not entirely certain about what I’ve just said, but this is a more difficult logic puzzle than most people think. Given the overwhelming majority of good people using information for good, diffusion of information will almost always be good. I doubt that the NSABB has sufficiently considered the costs of withholding information about the modified virus from people who would use that information to secure against its modification by whatever invention they bring to bear. (I can’t cite the invention because it hasn’t been invented yet!)
This is akin to the gun control issue. Consensus goes against guns because they make a loud bang and often draw blood when they’re used harmfully, but they are utterly silent in their beneficial use of deterring crime and violence, which is what they do the vast majority of the time. The idea of a massive epidemic strikes our primal imaginations with fear, while the notion of scientists converting diffuse knowledge into security against epidimics is a somber intellectual exercise.
Speaking of imagination, the idea of the terrorist super-villain is widespread, but imaginary. It’s important to remember that the 9/11 terrorists had box cutters. They had no idea their attack would produce the collapse of the twin towers, though many people reasoned backwards from that devastation to give them sophistication (and motivations) they didn’t actually have. It’s our psychology/imagination that gave terrorists access to chem/bio/rad/super-weapons over the last decade, a notion that almost certainly infects the considerations of the NSABB.
It’s probably a mistake to withhold scientific data from publication. We’re rather more safe from the threat of biological terrorism than most people think, and we’d get marginally safer from having information about virus experiments easily available to any researcher who might use it to discover ways of making us even safer.
(Related: Milton Leitenberg of the University of Maryland’s Center for International and Security Studies has a great contrarian piece in the Cato book Terrorizing Ourselves about the counterproductive mania around bioweapons, though his points don’t easily sync up with what I’ve said here.)
Government Spending Transparency: ‘Needs Improvement’ Is Understatement
Back in September, I rated Congress on how well it is publishing information about its deliberations and decisions. “Needs Improvement” was the understated theme.
Now we’re looking at the government’s publication of data that reflects budgeting, appropriations, and spending. “Needs improvement” isn’t just understated in this area. It’s really, really understated.
On the budgeting, appropriations, and spending transparency report card I’m putting out today, B+ is the best grade—and it goes to just half of one subject area. There are 2.5 Cs, 3 Ds, and 4 incompletes. This area needs improvement.
What is transparency, anyway? In my briefing paper, “Publication Practices for Transparent Government,” I wrote about the publication practices that support transparency. They are: authority, availability, machine-discoverability, and machine-readability. That means putting good data out from a consistent source in sensible ways, and, especially, structuring the data so that computers can interpret it.
You know what the World Wide Web is? It’s a whole bunch of structured data. If you want the kind of breakthrough in transparency for government data that the Web was for communications, you want the data structured right.
Our draft structure for data in this area is in our “Conceptual Data Model of the U.S. Federal Government Budgetary Process.” (HTML version, Word version)
Structured data doesn’t really exist yet in the area of budgeting, appropriating, and spending. The one bright spot is the president’s annual budget submission, which includes some information in a workable structure, but there is much room for improvement even there.
Because I’m so nice, I’ve given a lot of “incompletes” where I could have—and some say should have—given Fs. Believe it or not, there is NO federal government “organization chart” that is published in a way computers can use. That’s one of the building blocks of computerized oversight, and its absence is easily rectified.
When we return to these issues in the summer or fall of next year, and review more formally how Congress and the administration have done on transparency, I expect these things to be fixed. (Fear the blog post!)
In the meantime, here’s a run-down of the grades and why they were given. A Hill briefing today might be available online at the page for the event. (It’s somewhat symbolic that the room we have on Capitol Hill is ill-equipped for live-streaming, but we’re going to try.)
I’ve alternated in this post between “I” and “we” because I’ve gotten so much help on this. People from OMB Watch, the National Priorities Project, and the Sunlight Foundation have helped a great deal with this project, to name a few—and omit many others! The grades, the commentary, the errors, the misstatements, and omissions are all mine. And there are going to be plenty of gaps in this work. That’s why this is a blog post and not a formal Cato publication.
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
This Week in Government Failure
Over at Downsizing the Federal Government, we focused on the following issues this past week:
- There are bigger budgetary fish to fry than how much Congress spends on itself.
- I’ve been looking for serious proposals from members of Congress to terminate programs. I’m not finding much.
- The federal government’s involvement in education should be ended—not reformed.
- Chris Edwards on the flaws in the data being used in the income inequality debate.
- The U.S. Postal Service sends a message to Congress.
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Information Regulation that Hasn’t Worked
When Senator William Proxmire (D-WI) proposed and passed the Fair Credit Reporting Act forty years ago, he almost certainly believed that the law would fix the problems he cited in introducing it. It hasn’t. The bulk of the difficulties he saw in credit reporting still exist today, at least to hear consumer advocates tell it.
Advocates of sweeping privacy legislation and other regulation of the information economy would do well to heed the lessons offered by the FCRA. Top-down federal regulation isn’t up to the task of designing the information society. That’s the upshot of my new Policy Analysis, “Reputation under Regulation: The Fair Credit Reporting Act at 40 and Lessons for the Internet Privacy Debate.” In it, I compare Senator Proxmire’s goals for the credit reporting industry when he introduced the FCRA in 1969 against the results of the law today. Most of the problems that existed then persist today. Some problems with credit reporting have abated and some new problems have emerged.
Credit reporting is a complicated information business. Challenges come from identity issues, judgments about biography, and the many nuances of fairness. But credit reporting is simple compared to today’s expanding and shifting information environment.
“Experience with the Fair Credit Reporting Act counsels caution with respect to regulating information businesses,” I write in the paper. “The federal legislators, regulators, and consumer advocates who echo Senator Proxmire’s earnest desire to help do not necessarily know how to solve these problems any better than he did.”
Management of the information economy should be left to the people who are together building it and using it, not to government authorities. This is not because information collection, processing, and use are free of problems, but because regulation is ill-equipped to solve them.
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