Archive for the ‘Political Philosophy’ 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.
Our Constitution Is Out of Step with the Rest of the World
Is the Constitution out of date? That’s the impression that comes across from an article in yesterday’s New York Times, written by the paper’s crack Supreme Court reporter, Adam Liptak. It comes in turn from an article he points to by two law professors, David S. Law at Washington University in St. Louis and Mila Versteeg at the University of Virginia, scheduled for the June New York University Law Review. In it the authors conclude that the Constitution appears to be losing its appeal as a model for constitution drafters in other countries, despite its having served that role up until as recently as 1987, the year of its bicentennial. So what’s changed over the past quarter century?
Unfortunately, from the Times article we don’t get a clear picture of just how it is that the constitutions other countries have drafted in recent years differ from our own, except for the emphasis throughout the piece on rights. Yet right there is a clue about what’s going on. On that score, in fact, Liptak cites striking comments Justice Ruth Bader Ginsburg made in a television interview during a visit to Egypt last week:
“I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.
Liptak then notes, not entirely accurately, that “the rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber.”
To be sure, the rights enumerated in our Constitution and in the amendments that were added later, including in the Bill of Rights, are few in number. But numbers alone, like rights alone, tell only part of our constitutional story. To tell the story more fully and accurately, we have to step back a bit.
It’s true that our Framers, unlike many others, especially more recently, did not focus their attention on rights. Instead, they focused on powers— and for good reason. Because we have an infinite number of rights, depending on how they’re defined, the Framers knew that they couldn’t possibly enumerate all of them. But they could enumerate the government’s powers, which they did. Thus, given that they wanted to create a limited government, leaving most of life to be lived freely in the private sector rather than through public programs of the kind we have today, the theory of the Constitution was simple and straightforward: where there is no power there is a right, belonging either to the states or to the people. The Tenth Amendment makes that crystal clear. Rights were thus implicit in the very idea of a government of limited powers. That’s the idea that’s altogether absent from the modern approach to constitutionalism—with its push for far reaching “active” government—about which more in a moment.
The Ethos of Universal Coverage
Associated Press photojournalist Noah Berger captured this thousand-word image near the Occupy Oakland demonstrations last month.
(AP Photo/Noah Berger)
Many Cato@Liberty readers will get it immediately. They can stop reading now.
For everyone else, this image perfectly illustrates the ethos of what I call the Church of Universal Coverage.
Like everyone who supports a government guarantee of access to medical care, the genius who left this graffiti on Kaiser Permanente’s offices probably thought he was signaling how important other human beings are to him. He wants them to get health care after all. He was willing to expend resources to transmit that signal: a few dollars for a can of spray paint (assuming he didn’t steal it) plus his time. He probably even felt good about himself afterward.
Unfortunately, the money and time this genius spent vandalizing other people’s property are resources that could have gone toward, say, buying him health insurance. Or providing a flu shot to a senior citizen. This genius has also forced Kaiser Permanente to divert resources away from healing the sick. Kaiser now has to spend money on a pressure washer and whatever else one uses to remove graffiti from those surfaces (e.g., water, labor).
The broader Church of Universal Coverage spends resources campaigning for a government guarantee of access to medical care. Those resources likewise could have been used to purchase medical care for, say, the poor. The Church’s efforts impel opponents of such a guarantee to spend resources fighting it. For the most part, though, they encourage interest groups to expend resources to bend that guarantee toward their own selfish ends. The taxes required to effectuate that (warped) guarantee reduce economic productivity both among those whose taxes enable, and those who receive, the resulting government transfers.
In the end, that very government guarantee ends up leaving people with less purchasing power and undermining the market’s ability to discover cost-saving innovations that bring better health care within the reach of the needy. That’s to say nothing of the rights that the Church of Universal Coverage tramples along the way: yours, mine, Kaiser Permanente’s, the Catholic Church’s…
I see no moral distinction between the Church of Universal Coverage and this genius. Both spend time and money to undermine other people’s rights as well as their own stated goal of “health care for everybody.”
Of course, it is always possible that, as with their foot soldier in Oakland, the Church’s efforts are as much about making a statement and feeling better about themselves as anything else.
As It Turns Out, Money Is Speech
Those who advocate for more restrictions on campaign finance generally practice a populist politics. They fulminate against the influence of money, demonize donors, and ascribe all the nation’s problems to Citizens United. Once you have read an example such reformist rhetoric, you have read all of them. (But if you must read more, here’s E.J. Dionne’s recent, especially over-the-top offering in the genre).
But not all critics of campaign finance are so intellectually empty. Consider the recent op-ed by liberal law professor Geoffrey Stone. He addresses the question: “Is money speech?” For the conventional reformer, of course, money is not speech. Some even wish to amend the Constitution to recognize what they take to be the obvious truth that money is not speech. Stone shows why they are wrong. He remarks, “Not a single justice of the United States Supreme Court who has voted in any of the more than a dozen cases involving the constitutionality of campaign finance regulations, regardless of which way he or she came out in the case, has ever embraced the position that money is not speech.”
Stone says the correct question to ask is “When should the government be allowed to regulate political contributions and expenditures — even if they are speech?”
Regarding expenditures, the Supreme Court has for some time answered this question with “never.” Limits on spending abridge the freedom of speech. That answer makes sense. If any speech implicates “the freedom of speech,” political speech does. If spending funds political speech, the “make no law” admonition in the First Amendment applies to such spending.
The Court has also been especially hostile to government regulations of the content of speech. But campaign finance regulations are always content-based. Most seek to advance a partisan cause expressed in speech. Others seek to suppress speech critical of current officeholders. The rest hope to cut funding to speech that they see as ideologically “incorrect.”
Let’s face it: few would care about campaign finance regulations if such rules did not give hope of suppressing speech they disdain and thereby the triumph of a cause they hold dear. Campaign finance regulations should always be suspect in a nation that values in fact as well as words “the freedom of speech.”
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.
‘We Are Not Deciding between Regulation and Autonomy, We Are Deciding Whether or Not We Want a Puppet Government’
That’s how Charlie Arlinghaus, president of New Hampshire’s Josiah Bartlett Center for Public Policy, describes the decision confronting states about whether to create an ObamaCare Exchange in this op-ed for the New Hampshire Union-Leader.
Filed under: General; Government and Politics; Health Care; Political Philosophy
Headline of the Week: “Consumer Chief Richard Cordray Promises Not to Abuse His Power”
From the Los Angeles Times.
It works on so many levels.
No Common Schools, No Peace?
Today is the mid-point of National School Choice Week, and we’re once again rockin’ to the oldies of prognostication. This time we’re going all the way back to the Mann. That’s Horace Mann, the “Father of the Common School” himself.
It is Mann who, among many things, is probably most responsible for introducing one of the deepest underlying sentiments supporting government schooling: that public schools will unify us and give us peace. As he waxed eloquent in his first annual report as Secretary of the newly-constituted Massachusetts State Board of Education:
Amongst any people, sufficiently advanced in intelligence, to perceive, that hereditary opinions on religious subjects are not always coincident with truth, it cannot be overlooked, that the tendency of the private school system is to assimilate our modes of education to those of England, where churchmen and dissenters, —each sect according to its own creed,—maintain separate schools, in which children are taught, from their tenderest years to wield the sword of polemics with fatal dexterity; and where the gospel, instead of being a temple of peace, is converted into an armory of deadly weapons, for social, interminable warfare. Of such disastrous consequences, there is but one remedy and one preventive. It is the elevation of the common schools.
How wrong Mann was.
Keep in mind that as of 1837, the year Mann gave his first address, some pretty impressive unifying things had happened in America despite education being grounded in families, private schools, and yes, churches. We’d established unified colonies; penned and ratified a Declaration of Independence that enunciated foundational American values; fought and won a war against the greatest military power on Earth; established a new nation; and created a national government based on a Constitution that – though it’s legs are under constant assault — still stands.
But let’s get to Mann’s prediction: Did “elevation of the common schools” end “social, interminable warfare”?
Not on your life. Indeed, by attempting to force diverse people into a monolithic system of government schools, it most likely exacerbated social tensions and sparked otherwise avoidable wars. To name just a few school-stoked conflagrations (both real and rhetorical):
- The Philadelphia Bible Riots of 1844, sparked by a dispute over whose version of the Bible — Roman Catholic, Protestant, or neither — would be allowed in the public schools. By the conclusion of the rioting hundreds of people had been killed or injured and millions of dollars of property damage inflicted. Similar conflict — though not as physically destructive — occurred in many other American towns, with social strife largely only lessened when Catholics established their own school system.
- The Scopes “Monkey” Trial, a sensational case that grabbed the attention of the entire nation as a Tennessee court ruled whether or not it was acceptable to teach evolution in public schools. It is a topic that continues to rip communities apart today, and is so hot that, even where state standards mandate evolution be taught, most biology teachers avoid it. They simply don’t want to deal with the acrimony that would ensue.
- In 1974, Kanawha County, West Virginia, was plunged into a state of near-civil war over books selected by the county school district that many residents perceived to be anti-Christian and anti-American. Before the strife subsided commerce had ground to a halt, at least one person had been shot, and schools had been dynamited.
These are just some of the most well known or violent of the battles in the “interminable warfare” sparked not by private schooling, but the public schools Mann promised would bring peace if they became ascendant. Indeed, as I itemized in an analysis of just the 2005-06 school year, values-based skirmishes are fought all around us, all the time, whether over prayer in the schools, reading assignments, bullying and student speech, ethnic studies, and on and on. But that is exactly what we should expect when people of widely diverse religions, ethnicity, and philosophies are all required to support a single system of government schools. They won’t just give up the things that are often at the very heart of their lives — they will fight to have them taught.
Perhaps the biggest irony in all this is that students who attend private schools, even after adjusting for important non-school factors, are actually more knowledgeable about civics, active in their communities, and tolerant of others than are public school students. As University of Arkansas professor Patrick Wolf discovered in reviewing the empirical literature:
The statistical record suggests that private schooling and school choice often enhance the realization of the civic values that are central to a well-functioning democracy. This seems to be the case particularly among ethnic minorities (such as Latinos) in places with great ethnic diversity (such as New York City and Texas), and when Catholic schools are the schools of choice. Choice programs targeted to such constituencies seem to hold the greatest promise of enhancing the civic values of the next generation of American citizens.
How could this be? Because, in contrast to the assumption of Mann and others, most people don’t have to be forced to embrace tolerance and responsible freedom, they choose them. Public schooling, conversely, sends the message that government, not individuals freely working together, is responsible for whatever problems communities face. Even more importantly, by forcing diverse people together, government schools drop them into a zero-sum arena and render conflict all but inevitable.
Common schools haven’t brought us peace in our day. Indeed, quite the opposite.
SOPA and Skepticism
Over at Libertarianism.org I have a new blog post on the lesson the technology community should have learned from their campaign against SOPA.
Imagine you’re an expert in some field of technical knowledge. Your field impacts quite a lot of people but most of them don’t understand the details the way you do. One day, Congress proposes legislation called the Make Things Better Act, which, its sponsors say, will make things better.
But wait. The Act happens to deal with exactly the field you’re knowledgeable about. And you know what? It won’t make things better. In fact, it will make things far, far worse. Not only will it make things worse, but any benefits the legislation does create will accrue exclusively to a small but powerful interest group.
So you and your other technically-minded friends mobilize against the Make Things Better Act and, through coordination and outcry, succeed in killing it. Two days later, Congress proposes another piece of legislation called the It’s Good for the Children Act. Except this time the law deals with an area outside your expertise. If you applied the lesson learned from the Make Things Better Act, you might react to this new proposal with skepticism. After all, when you were in a position to evaluate what Congress was really up to, you discovered that it wasn’t working in the interests of the American public but, instead, of a tiny and powerful minority. Couldn’t it be possible the new bill is just be more of the same?
Most likely, though, based on the way people typically react in these situations, you won’t apply that lesson. Instead you’ll say, “Boy this new law is great because my favored political party wrote it and, well, it’s good for the children.”
Should I Change My Mind about Super PACs?
Lately I have argued that Super PACs, a result of the SpeechNow judicial decision, have enhanced democratic debate in the 2012 presidential election.
Super PACs have had one undeniable specific result this year: they enabled a donor to give a Super PAC supporting Newt Gingrich several million dollars. Mr. Gingrich, it turns out, has put that money to good use to win the South Carolina primary and now to take the lead in Florida, according to recent polls. Absent that Super PAC spending (and the contribution that made it possible), Mr. Gingrich’s candidacy would have come to an end no later than the end of the New Hampshire primary.
Some people say that Mr. Gingrich’s nomination or election would be a disaster for the Republican party or for the nation, respectively. Let’s assume the accuracy of those beliefs for purposes of argument. Given that, shouldn’t I at least reconsider my position on Super PACs?
Freedom of speech, like all public things, has risks. The real question should be: is such freedom better on the whole than the alternative, i.e. giving government officials the discretion to suppress speech? In this case, a ban on Super PACs would give the government the effective power to decide who loses and when in a party presidential primary. I do not believe that such power, even if it were constitutional, would be exercised on behalf of the general welfare of the country.
In any case, if Mr. Gingrich’s efforts turn out to be a disaster for the GOP or the USA, it will not be because he spent money on television ads. He can only succeed through gaining the assent of voters who were moved by his ads and other considerations (his general demeanor, debate style, and so on). Money fosters speech; it does not guarantee electoral success.
Finally, in this case, as always, more (money spent on) speech is the answer to (money spent on) speech. Gov. Romney and President Obama, I suspect, understand that truth and are ready to act on it. The rest will be up to voters, as it should be.
Commandeering the People to Avoid Taxation: A Reply to Barnett and Kerr
Over at the Volokh Conspiracy, Randy Barnett and Orin Kerr are having another spirited, intelligent, and respectful back-and-forth over Obamacare and the individual mandate. Responding to a comment, Professor Kerr opines that he is concerned that an opinion striking down the individual mandate would be too partisan and it would again fail, like so many decisions before, to articulate a principled limit on the commerce power. In response, Professor Barnett reiterates the “anti-commandeering” principle that Cato has pushed in our briefs written in conjunction with Professor Barnett. The anti-commandeering argument focuses on the constitutional principle that the federal government cannot commandeer state officials to do its bidding. Similarly, Barnett argues, Congress is constitutionally precluded from commandeering the citizens to do its bidding; that is, to force them to purchase health insurance. Kerr responds with skepticism toward whether the anti-commandeering principle is a workable legal doctrine, particularly in the face of many constitutionally authorized instances of “commandeering” (e.g., the draft, paying taxes, registering for the census, etc.).
My thoughts: I believe Professor Barnett has the right of it, but I do acknowledge Professor Kerr’s concerns. I would like to add something to Professor Barnett’s argument: The individual mandate was passed to avoid the political liability that a taxation-driven scheme would have brought (if you doubt this, read Michael Cannon’s post here). This is constitutionally significant to the anti-commandeering argument.
This Week at Libertarianism.org
This week saw a bunch of great new content added to Libertarianism.org.
On Tuesday, George Smith published another essay to his ongoing series about the events leading up to the American Revolution. This time he told the story of the Boston Tea Party:
In substituting naked force for conciliation and compromise, the British hoped to use Bostonians as an example and thereby cow other colonies into submission. But the Coercive Acts had precisely the opposite effect. They stiffened American resolve, inflamed passions even more, and instigated the crucial transition from resistance to revolution.
On Wednesday, we released the third lecture in our Exploring Liberty series. Tom G. Palmer, author of Realizing Freedom: Libertarian Theory, History, and Practice, leads a whirlwind tour through human history to document the rise of libertarian ideas, starting with the Mesopotamian epic of Gilgamesh and progressing through the history of ancient Greece and Rome, medieval Europe, the Renaissance, and the Enlightenment thinkers.
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