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

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.

During the ratification debates in the states, however, opponents of the new Constitution, fearing that it gave the national government too much power, insisted that, as a condition of ratification, a bill of rights be added—for extra caution. But that raised a problem: by ordinary principles of legal reasoning, the failure to enumerate all of our rights, which again was impossible to do, would be construed as meaning that only those that were enumerated were meant to be protected. To address that problem, therefore, the Ninth Amendment was written, which reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Over the years, unfortunately, that amendment has been misunderstood  and largely ignored; but it was meant to make clear that the people “retained” a vast number of rights beyond those expressly enumerated in the document.

Thus, the rights expressly enumerated in the Constitution may be “parsimonious,” but understood in light of the larger theory of the document, they are not. Neither, moreover, are they “frozen in amber,” because the courts are called on regularly to interpret and apply them in the varying factual contexts that surround the cases or controversies that are brought before them. Thus, the right to freedom of speech has been read to entail the right to desecrate the flag, and the right to liberty has been read to entail the right to engage in sexual practices that others may dislike. Judges may sometimes fail to draw the proper inferences, of course, or draw inferences not entailed. But that says nothing about the Constitution itself.

The idea, then, that our Constitution is terse and old and guarantees relatively few rights—a point Liptak draws from the authors of the article and the people he interviews—does not explain the decline in the document’s heuristic power abroad. Nor does “the commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century” explain its fall from favor. Rather, it’s the kind of rights our Constitution protects, and its strategy for protecting them, that distinguishes it from the constitutional trends of recent years. First, as Liptak notes, “we are an outlier in prohibiting government establishment of religion,” and we recognize the right to a speedy and public trial and the right to keep and bear arms. But second, and far more fundamentally, our Constitution is out of step in its failure to protect “entitlements” to governmentally “guaranteed” goods and services like education, housing, health care, and “periodic holidays with pay” (Article 24 of the UN Universal Declaration of Human Rights). And right there, of course, is the great divide, and the heart of the matter.

The modern view, which we too have followed, at least statutorily if not constitutionally, is to recognize all manner of “entitlements” of a kind that can be provided only through massive governmental institutions that engage in material and regulatory redistribution. We are constitutionally out of step in that, to be sure. Countries like Greece, Italy, Spain, and Portugal are far ahead of us.

Our Constitution Is Out of Step with the Rest of the World is a post from Cato @ Liberty - Cato Institute Blog

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.

The Ethos of Universal Coverage is a post from Cato @ Liberty - Cato Institute Blog

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.”

As It Turns Out, Money Is Speech is a post from Cato @ Liberty - Cato Institute Blog

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.

Libertarianism.org’s magazine section grew with the addition of Literature of Liberty, published from 1978 through 1982, first by the Cato Institute and then by the Institute for Humane Studies. Each issue begins with a long essay exploring and analyzing the literature and thought in a particular field, such as Eric Foner discussing “Radical Individualism in America: Revolution to Civil War” or John Hospers writing about “The Literature of Ethics in the Twentieth Century.” The second half of each Literature of Liberty contains a wealth of summaries of academic articles and books of interest to libertarians.

Finally, the Exploring Liberty series of introductory lectures on libertarian theory and history is now available in podcast form, so you can listen on the go. It’s on iTunes as well as direct from the Exploring Liberty podcast feed.

As always, you can keep up to date with Libertarianism.org on Facebook, Twitter, via RSS, or by visiting the site.

This Week at Libertarianism.org is a post from Cato @ Liberty - Cato Institute Blog

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.

‘We Are Not Deciding between Regulation and Autonomy, We Are Deciding Whether or Not We Want a Puppet Government’ is a post from Cato @ Liberty - Cato Institute Blog

From the Los Angeles Times.

It works on so many levels.

Headline of the Week: “Consumer Chief Richard Cordray Promises Not to Abuse His Power” is a post from Cato @ Liberty - Cato Institute Blog

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.

No Common Schools, No Peace? is a post from Cato @ Liberty - Cato Institute Blog

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.”

Read the rest here.

SOPA and Skepticism is a post from Cato @ Liberty - Cato Institute Blog

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.

Should I Change My Mind about Super PACs? is a post from Cato @ Liberty - Cato Institute Blog

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.

Kerr writes that, “Under Randy’s theory, as I understand it, it seems that Congress is actually perfectly free to engage in economic commandeering as long as it does so through something formally called a tax. If economic commandeering is to be recognized as a core constitutional prohibition, it seems surprising that it could be so easily done under the tax power.” I disagree. The Taxing Power was acknowledged by nearly every member of the Constitutional Convention as both necessary and dangerous. Recall that under the Articles of Confederation revenue could only be collected through the voluntary payment of dues by state governments. Many states, if not most states, were severely behind in their payments and a debt crisis was on the horizon. The delegates thus knew that, somehow, the new government would have to be able to directly reach the people without going through the states if they wanted to collect the needed money.

But this was the generation of “no taxation without representation!,” and the fear of improper use of the taxing power was rampant. Thus, the delegates added the Origination Clause to Article I, Section 7 in order to guarantee that “All Bills for raising Revenue” would originate in the House of Representatives.

At that point in the Convention, the “Great Compromise” had been reached. This comprise helped assuage the delegates who threatened to leave over the purely proportional representation system that had been pushed by the Virginians and Pennsylvanians. The small states knew that a proportional representation system would minimize their voice in the new government. They thought of themselves as citizens of their states first and citizens of the “Union” second, much like members of the EU consider themselves now. They insisted that some semblance of this be preserved, that states be allowed a voice as states, and not just in a voice that was congruent with population.

Thus, they reached the “Great Compromise,” which established a bicameral legislature composed of two houses interacting with the constituent members of the country—the people and the states—in different ways. All states would have two senators chosen by the state legislatures, but the House’s membership would be directly tied to the people.

After the compromise had been reached, the discussions centered on which house should have which powers. This became nearly as divisive as the discussions about representation because the question of the scope of power is inexorably intertwined with representative justification. In the end, most Convention delegates insisted that all taxation must begin in the House because, in the words of Elbridge Gerry, “Taxation & representation are strongly associated in the minds of the people, and they will not agree that any but their immediate representatives shall meddle with their purses.” For more, you can read the debates from August 13.

So, what does this all have to do with the mandate? If the federal government is properly understood as resting on dual representative pillars—the people and the states—then either can be commandeered. Although our case law only discusses the impropriety of commandeering state governments, it is fully within a proper understanding of the Constitution that people are equally susceptible to unconstitutional commandeering. It is of no matter that they are commandeered at other times—e.g., jury duty, the draft, etc.—because states are likewise commandeered by the Constitution—e.g., rules on choosing senators, members of Congress, and electors, as well as the prohibitions in Article 1, Section 10. But since, at some fundamental level, commandeering is so repugnant to a limited government empowered by a free people, there has to be some way to determine unconstitutional commandeering.

In order to determine this, I propose that, because we are talking about the people and not the states, we must look to the ways in which commandeering is constitutionally allowed and see if those protections have been avoided in passing the individual mandate. Taxation is a dangerous power, but the Constitution requires that it be above the board so citizens are aware when forced wealth transfers are occurring. For similar reasons, Article 1, Section 9 requires that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” AsMichael Cannon’s post linked above shows, this type of accounting was intentionally avoided by Congress in passing PPACA.

So, I offer to Professor Kerr this principle of decision in the case: THIS IS NOT OKAY. Specifically, when looking to whether or not the people have been commandeered, we look to whether the protections in the Constitution that prevent commandeering have been avoided. One instance in which this would nearly always be the case: the forced purchase of a product from a private entity.

And although I sympathize with Professor Kerr’s concerns about the workability of a Commerce Clause limiting principle, I echo Professor Barnett in saying that this is how the law works. As I wrote to Professor Chemerinsky, limiting Congress’s commerce power will never be about discovering the limits of power, it will be about articulating and enforcing those limits. In some way this will always be arbitrary, but without an arbitrary line, there will be no limit and thus, in some sense, no Constitution to speak of.

Commandeering the People to Avoid Taxation: A Reply to Barnett and Kerr is a post from Cato @ Liberty - Cato Institute Blog

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.

Thursday, Jason Kuznicki blogged on the question of why societies react differently to different sorts of violence.

History is rarely so neat. The Soviet entry into the eastern theater of war, taking place on the same day as Nagasaki, may have been sufficient all by itself. If so, the bombings are harder to justify.

And today we posted video of a 1996 talk by Randall G. Holcombe. Holcombe is an economics professor at Florida State University. In this new video, he compares different theories from David Ricardo, Adam Smith, Israel Kirzner, and other economists regarding the relationship between entrepreneurship and wealth creation. The lecture was filmed at a Future of Freedom Foundation seminar on Austrian Economics.

This Week at Libertarianism.org is a post from Cato @ Liberty - Cato Institute Blog

My friend David Brunori announced this week that he is no longer a “liberal” but a libertarian, although he says of the “bleeding heart” variety.

This is interesting because David has long been one of the nation’s top state fiscal experts. He is currently an editor of the Tax Notes family of periodicals (which are subscription only).

What made David see the light about government?

I’ve been calling myself a liberal in the pages of State Tax Notes since I began this column in 1996. I’ve been introduced at conferences and bars as a liberal tax pundit, a liberal professor, and a card-carrying liberal. In my line of business, it was expected that one would either be liberal or, if you were a pawn of the 1 percent, a conservative. Decent tax policy folks weren’t libertarians. Libertarians had no tax policy. But I’m too old to hide my feelings.

I came to realize my true identity by taking a survey on the Libertarian Party website. I scored a perfect 100 percent on the personal freedom meter, but only an 80 percent on the economic freedom meter. Still, those scores make me a libertarian. Some of my liberal friends will hate me for coming out. But I’ll remind them that hate is not a tax policy value. Besides, by definition, I still care for the poor and dispossessed. I’m no anarchist. I’m no isolationist. I still believe that government has a positive role to play in society. I want good roads and teachers and appreciate that someone will answer the phone when I dial 911. But I think we should look at government more skeptically.

I’m weary of corporate welfare. I’m weary of tax incentives. I’m weary of government economic policy that’s largely intended to enrich politicians’ cronies. For example, California Gov. Jerry Brown (D) has been hellbent on spending $93 billion on a train that apparently no one wants and few will ride. But a small number of connected men would make a fortune building it.

I’m weary of the incessant arrogance of the nanny state. The Boston Public Health Commission recently voted to ban electronic cigarettes from the workplace. Memo to those in Boston: Electronic cigarettes are fake. They blow a harmless vapor of mist. Real cigarettes are banned from public places purportedly because of the dangers of secondhand smoke. Personally, I think the marketplace can handle smoking issues just fine, but let’s assume people are too stupid to make decisions about working at or patronizing places that allow smoking. What gives political elites in Boston the right to ban a product that has no secondary harm? Nothing. They do it because they don’t like people who smoke (even ersatz smokers). But more importantly, they do it because they have the power. I’d go blow real smoke rings in their faces if it weren’t so obviously immature.

David also provides a useful essay in Tax Notes this week: “A Practical Approach to Libertarian Tax Policy.” He proposes seven principles to guide tax policy from a limited-government perspective:

1. Pay for Government—With Taxes [not debt]
2. Reject Tax Expenditures
3. Make Taxes Visible
4. Reject Excise Taxes
5. Reject Inefficient Taxes
6. Oppose the VAT
7. Embrace Federalism and the Property Tax

It’s a pretty good list. David and I particularly have a mind meld on the importance of fiscal federalism. David is an excellent analyst and concise writer, so I’m glad he’s now on the team.

For more on libertarian tax policy, readers can look at my “Options for Tax Reform.” I propose three broad principles to guide tax reform: simplification, efficiency, and limited government.

David Brunori Comes Out as a Libertarian is a post from Cato @ Liberty - Cato Institute Blog

The Sunday Washington papers carried several dire reports about the state of freedom in America. Funny thing is, they didn’t much agree on what kinds of freedoms are being lost.

In the Washington Post, law professor Jonathan Turley warned:

In the decade since Sept. 11, 2001, this country has comprehensively reduced civil liberties in the name of an expanded security state. The most recent example of this was the National Defense Authorization Act, signed Dec. 31, which allows for the indefinite detention of citizens. At what point does the reduction of individual rights in our country change how we define ourselves? . . . .

An authoritarian nation is defined not just by the use of authoritarian powers, but by the ability to use them. If a president can take away your freedom or your life on his own authority, all rights become little more than a discretionary grant subject to executive will.

He pointed to such hallmarks of authoritarian states as the official assassination of U.S. citizens, warrantless searches, immunity from judicial review, and continual monitoring of citizens.

Meanwhile, the editorial in the Washington Examiner deplored the rise in regulation and federal spending under President Obama “and the resulting decline in U.S. economic freedom.”

And Michael Barone of the American Enterprise Institute wrote in the Examiner about President Obama’s not-really-recess appointments:

The Framers of the Constitution saw it a different way. When the Senate refuses to confirm a presidential appointee, that person does not take office. When the Senate is not in recess, the president cannot make a recess appointment.

The Framers thought it more important to limit power than for government to act quickly. Obama disagrees.

All good points. The three articles together would make a comprehensive case brief on the loss of freedom under President Obama. And under President Bush, of course. After all, Turley notes that Bush pioneered many of the new powers that Obama now exercises. Bush also increased federal spending dramatically and expanded regulation and economic intervention from Sarbanes-Oxley to TSA to TARP.

Libertarians have long argued that freedom is indivisible, that it is difficult to sustain either political or economic freedom for long without the other. These articles remind us that both economic and civil liberties are threatened today, and thus we need a broad movement to protect and advance liberty and limited government against all these threats.

Freedom Left and Right is a post from Cato @ Liberty - Cato Institute Blog

Today POLITICO Arena asks:

Are Romney’s GOP rivals smart to continue their attacks on capitalism that have so far fallen flat? Would this theme be any more effective for the Obama campaign?

My response:

The Gingrich and Perry attacks on Mitt Romney’s work at Bain Capital are appalling. We expect that from Obama — as in yesterday’s “insourcing” press conference — because his understanding of how markets work is so slim and everything, for him, is politics. Those in the party that purports to stand for free markets should never stoop to such shameless pandering.

Steven Rattner’s piece in POLITICO this morning nicely summarizes the facts surrounding Romney’s work at Bain Capital. And yesterday my colleague Steve H. Hanke pointed to a more detailed study issued recently by the National Bureau of Economic Research, “Private Equity and Employment.” As Rattner puts it, Bain Capital’s record “was extraordinary, among the best in the business.” Yes, restructuring companies may cost jobs. Letting them fail does too — but also costs those who’ve invested in them, many of whom are or will be small retirees. At least Romney did it with private funds, not with taxpayer money or regulatory protections. That’s how capitalism works, for the benefit of all of us.

Capital Confusions over Bain Capital is a post from Cato @ Liberty - Cato Institute Blog

Motivated by Newt Gingrich’s assertions — which cast a cloud over private equity operations by characterizing Mitt Romney as a predatory capitalist who destroyed jobs during his tenure at Bain Capital — the chattering classes are playing fast and loose with the facts.  If they want the facts, a recently released National Bureau of Economic Research paper authored by Steven J. Davis (University of Chicago), John C. Haltiwanger (University of Maryland), Ron S. Jarmin (U.S. Census Bureau), Josh Lerner (Harvard Business School) and Javier Miranda (U.S. Census Bureau) is just what the Doctor ordered.  It’s time for the private equity critics to stop talking and start reading.

Private Equity, A Capitalist Bane? is a post from Cato @ Liberty - Cato Institute Blog

With former senator Rick Santorum suddenly attracting attention in Iowa, it’s time to dig up some of our previous reporting on Santorum.

In 2006, as Santorum campaigned his way to an 18-point loss in his Senate reelection race, the New York Times reported that he…

…distributed a brochure this week as he worked a sweltering round of town hall meetings and Fourth of July parades: “Fifty Things You May Not Know About Rick Santorum.” It is filled with what he called meat and potatoes, like his work to expand colon cancer screenings for Medicare beneficiaries (No. 3), or to secure money for “America’s first ever coal to ultra-clean fuel plant” (No. 2)….

He said he wanted Pennsylvanians to think of him as a political heir to Alfonse M. D’Amato of New York, who was known as Senator Pothole for being acutely attuned to constituent needs.

So . . . the third-ranking Republican leader in the Senate wanted to be known as a porker, an earmarker, and Senator Pothole.

Santorum had already dismissed limited government in theory. Promoting his book, he told NPR in 2006:

One of the criticisms I make is to what I refer to as more of a libertarianish right. You know, the left has gone so far left and the right in some respects has gone so far right that they touch each other. They come around in the circle. This whole idea of personal autonomy, well I don’t think most conservatives hold that point of view. Some do. They have this idea that people should be left alone, be able to do whatever they want to do, government should keep our taxes down and keep our regulations low, that we shouldn’t get involved in the bedroom, we shouldn’t get involved in cultural issues. You know, people should do whatever they want. Well, that is not how traditional conservatives view the world and I think most conservatives understand that individuals can’t go it alone. That there is no such society that I am aware of, where we’ve had radical individualism and that it succeeds as a culture.

He declared himself against individualism, against libertarianism, against “this whole idea of personal autonomy, . . . this idea that people should be left alone.” And in this 2005 TV interview, you can hear these classic hits: “This is the mantra of the left: I have a right to do what I want to do” and “We have a whole culture that is focused on immediate gratification and the pursuit of happiness . . . and it is harming America.”

No wonder Jonathan Rauch wrote in 2005 that “America’s Anti-Reagan Isn’t Hillary Clinton. It’s Rick Santorum.” Rauch noted:

In his book he comments, seemingly with a shrug, “Some will reject what I have to say as a kind of ‘Big Government’ conservatism.”

They sure will. A list of the government interventions that Santorum endorses includes national service, promotion of prison ministries, “individual development accounts,” publicly financed trust funds for children, community-investment incentives, strengthened obscenity enforcement, covenant marriage, assorted tax breaks, economic literacy programs in “every school in America” (his italics), and more. Lots more.

Rauch concluded,

With It Takes a Family, Rick Santorum has served notice. The bold new challenge to the Goldwater-Reagan tradition in American politics comes not from the Left, but from the Right.

At least Santorum is right about one thing: sometimes the left and the right meet in the center. In this case the big-spending, intrusive, mommy-AND-daddy-state center. But he’s wrong that we’ve never had a firmly individualist society where people are “left alone, able to do whatever they want to do.”

It’s called America.

Rick Santorum v. Limited Government is a post from Cato @ Liberty - Cato Institute Blog

The New York Times editorializes that if Ron Paul can’t separate himself from his unsavory writings and supporters, “he will leave a lasting stain on his candidacy, on the libertarian movement and, very possibly, on the Iowa caucuses.” Certainly it’s a problem Paul is struggling to deal with. As for the Iowa caucuses, if they could survive strong votes for Pat Robertson and Pat Buchanan and an actual win for Mike Huckabee, I dare say they can survive Ron Paul. But should these things “stain . . . the libertarian movement”? Not in a rational world.

Libertarianism is a philosophy of peace, freedom, toleration, and individual rights — just the opposite of the collectivist racist and homophobic ideas that appeared in newsletters written under Ron Paul’s signature. As I wrote in Libertarianism: A Primer, “Libertarianism is the view that each person has the right to live his life in any way he chooses so long as he respects the equal rights of others.” Those ideas have played an important role throughout American history, from the American Revolution to abolitionism to the Tea Party.

And now Ron Paul is attracting support for his advocacy of the ideas of small government and free enterprise. As the Times notes in a dispatch from Iowa, Paul “is drawing supporters for his libertarian and antiwar views. …For the students, much of Mr. Paul’s appeal derives from civil libertarian views like ending the federal ban on marijuana and other drugs, as well as his desire to end foreign wars and his small-government credo.” That’s the message that has moved Ron Paul to the top of the polls in Iowa.

Still, he did allow associates of his to write racist and homophobic screeds in “The Ron Paul Political Report” and other newsletters. And that has created a stench around his candidacy. Some people want that stench to envelop and stain the libertarian movement. Jamie Kirchick, the anti-Paul jihadi who brought the newsletters to light in 2008, asks, “Why Don’t Libertarians Care About Ron Paul’s Bigoted Newsletters?” But of course many libertarians have expressed revulsion at the newsletters. Ilya Somin noted at the Volokh Conspiracy (one of the few conspiracies not denounced in the Ron Paul newsletters) that he himself had condemned the newsletters in 2008, as had his co-blogger David Bernstein. And Virginia Postrel, the former editor of Reason, and various current writers at Reason. And a leading Austrian economist, Steven Horwitz. And Ed Crane, the founder and president of Cato.

Kirchick identified Conor Friedersdorf of the Atlantic as a libertarian who supported Ron Paul despite the bigotry in the newsletters that bore his name. But in fact Friedersdorf wrote a long and tortured article acknowledging the “egregiously offensive . . . racially bigoted . . . execrable” content of the newsletters. He went on to say that there was still a good case for supporting the only candidate who has consistently opposed the Iraq War, indefinite detention, drone strikes, anti-Muslim bigotry, and the war on drugs. Other libertarians who know about the newsletters are no doubt making similar calculations. And as David Weigel of Slate notes today, many less-engaged voters — such as American Idol winner Kelly Clarkson — still haven’t heard about the whole issue; they like Ron Paul for the issues he talks about, smaller government, budget cuts, sound money, and noninterventionism.

I wrote about “Ron Paul’s Ugly Newsletters” in a 2008 Cato-at-Liberty posting:

Those words are not libertarian words. Maybe they reflect “paleoconservative” ideas, though they’re not the language of Burke or even Kirk. But libertarianism is a philosophy of individualism, tolerance, and liberty. As Ayn Rand wrote, “Racism is the lowest, most crudely primitive form of collectivism.” Making sweeping, bigoted claims about all blacks, all homosexuals, or any other group is indeed a crudely primitive collectivism.

Libertarians should make it clear that the people who wrote those things are not our comrades, not part of our movement, not part of the tradition of John Locke, Adam Smith, John Stuart Mill, William Lloyd Garrison, Frederick Douglass, Ludwig von Mises, F. A. Hayek, Ayn Rand, Milton Friedman, and Robert Nozick. Shame on them.

The fact is, there’s a small band of self-styled “libertarians” who over the past two decades have associated the great ideas of Austrian economics and libertarianism with bigotry, reflexive anti-Americanism, and vitriol directed at everyone from the Trilateral Commission to Cato and Reason. They have very little association with the larger libertarian movement or with such libertarian-inspired movements as the Tea Party, the drug reform movement, or the school choice movement. Virtually their only point of contact with the broader constituency for smaller government is through Rep. Ron Paul, who, for whatever reasons, has unfortunately continued his association with the people who have tarred him and the causes that are drawing many voters to him.

Libertarians have been fighting ignorance, superstition, privilege, and power for centuries, and we will continue to do so in the future. Libertarians reject bigotry and advocate equal rights for every individual. Ron Paul’s very bad decision to outsource his writing to reprehensible characters doesn’t change that.

Ron Paul and the Libertarians is a post from Cato @ Liberty - Cato Institute Blog

John Stossel takes a look back at 2011 tonight at 10 on Fox Business Network. Jeff Miron and I will be on, along with Nick Gillespie and Katherine Mangu-Ward of Reason, legendary MTV VJs Kurt Loder and Kennedy, and more. Many people think of politics when they think of 2011, but not John Stossel. He’s a policy guy. So expect plenty of discussion of Iraq, the Arab Spring, the economy, the Fed, the debt, the nanny state, gay marriage, and more — but nary a candidate’s name.

And if you don’t get Fox Business, well, call a friend in a different cable monopoly jurisdiction and ask if you can come over.

Stossel Tonight: 2011 in Review is a post from Cato @ Liberty - Cato Institute Blog

I’ve written before about whether California is the Greece of America, in part because of crazy policies such as overpaid bureaucrats and expensive forms of political correctness,

And we all know that California has one of the nation’s greediest governments, imposing confiscatory tax rates on a shrinking pool of productive citizens.

So it is hardly surprising that the Golden State is falling behind, losing jobs and investment to more sensible states such as Texas.

But not everybody is learning the right lessons from California’s fiscal and economic mess.

There’s a group of crazies who want to increase the top tax rate by five percentage points, an increase of about 50 percent. And they have made Kim Kardashian the poster child for their proposed ballot initiative.

I’m relatively clueless about popular culture, but even I’m aware that there is a group of people know as the Kardashian sisters. I don’t know who they are or what they do, but I gather they are famous in sort of the same way Paris Hilton was briefly famous.

And they have cashed in on their popularity, which may not reflect well on the tastes of the American people, but it’s not my job to tell other people how to spend their money.

But not everybody share this live-and-let-live attitude, which is why the pro-tax crowd in California produced this video.

I suppose I could criticize the petty dishonesty of the proponents, since they deliberately blurred of the difference between “tax rates” and “taxes paid.”

Or I could expose their economic illiteracy by pointing out that higher tax rates would accelerate the emigration of investors, entrepreneurs, small business owners, and other rich taxpayers to zero-tax states such as Nevada.

But I won’t do those things. Instead, like the Nevada Realtors Association and Arizona Business Relocation Department, I’m going to support this ballot initiative.

Not because I overdid the rum and eggnog at Christmas, but because it’s good to have negative role models, whether they are countries like Greece, cities such as Detroit, or states like California.

So here’s my challenge to the looters and moochers of the Golden State. Don’t just boost the top tax rate by five-percentage points. That’s not nearly enough. Go for a 20 percent top tax rate. Or 25 percent. After all, think of all the special interests that could use the money more than Ms. Kardashian.

And if somebody tells you that she will move to South Beach or Las Vegas, or that the other rich people will move to Texas, Wyoming, or Tennessee, just ignore them. Remember, it’s good intentions that count.

In closing, I apologize to the dwindling crowd of productive people in California. It’s rather unfortunate that you’re part of this statist experiment. But you know what they say about eggs and omelets.

By the way, here’s some humor about the Golden State, including a joke about the bloated bureaucracy and a comparison with Texas.

Will the Last Job Creator to Leave California Please Turn Off the Lights? is a post from Cato @ Liberty - Cato Institute Blog