A Georgian Constitution of Economic Liberty
The former Soviet Republic of Georgia is a late economic reformer, having started such liberalization after the Rose Revolution in 2004. But it is one of the most successful post-Soviet reformers, and it may be the country that has implemented the largest range of serious market reforms in the shortest period of time. Its growth rate from 2004 through 2008 averaged 7.6 percent per year (which includes the comparatively low 2.1 percent rate of 2008 that resulted from the global financial crisis and the war with Russia).
Last month, the government submitted a draft act to Parliament that calls for amending the country’s constitution so that it would safeguard various elements of economic freedom. The amendments would put caps on public debt, spending and deficits; and ban any kind of price controls, state ownership of banks and financial institutions and restrictions on currency convertibility, and any kind of control over the movement of capital. New taxes or increases in tax rates would require approval through a national referendum.
With the possible partial exception of Hong Kong’s Basic Law, I’m not aware of any other constitution that explicitly enshrines economic freedom. I’m told by Georgian colleagues that prospects for passage of the law looks good, with the constitution being amended as early as next month.
Who Reads the Readers?
This is a reminder, citizen: Only cranks worry about vastly increased governmental power to gather transactional data about Americans’ online behavior. Why, just last week, Rep. Lamar Smith (R-TX) informed us that there has not been any “demonstrated or recent abuse” of such authority by means of National Security Letters, which permit the FBI to obtain many telecommunications records without court order. I mean, the last Inspector General report finding widespread and systemic abuse of those came out, like, over a year ago! And as defenders of expanded NSL powers often remind us, similar records can often be obtained by grand jury subpoena.
Subpoenas like, for instance, the one issued last year seeking the complete traffic logs of the left-wing site Indymedia for a particular day. According to tech journo Declan McCullah:
It instructed [System administrator Kristina] Clair to “include IP addresses, times, and any other identifying information,” including e-mail addresses, physical addresses, registered accounts, and Indymedia readers’ Social Security Numbers, bank account numbers, credit card numbers, and so on.
The sweeping request came with a gag order prohibiting Clair from talking about it. (As a constitutional matter, courts have found that recipients of such orders must at least be allowed to discuss them with attorneys in order to seek advise about their legality, but the subpoena contained no notice of that fact.) Justice Department officials tell McCullagh that the request was never reviewed directly by the Attorney General, as is normally required when information is sought from a press organization. Clair did tell attorneys at the Electronic Frontier Foundation, and when they wrote to U.S. Attorney Timothy Morrison questioning the propriety of the request, it was promptly withdrawn. EFF’s Kevin Bankston explains the legal problems with the subpoena at length.
Perhaps ironically, the targeting of Indymedia, which is about as far left as news sites get, may finally hep the populist right to the perils of the burgeoning surveillance state. It seems to have piqued Glenn Beck’s interest, and McCullagh went on Lou Dobbs’ show to talk about the story. Thus far, the approved conservative position appears to have been that Barack Obama is some kind of ruthless Stalinist with a secret plan to turn the United States into a massive gulag—but under no circumstances should there be any additional checks on his administration’s domestic spying powers. This always struck me as both incoherent and a tragic waste of paranoia. Now that we’ve had a rather public reminder that such powers can be used to compile databases of people with politically unorthodox browsing habits, perhaps Beck—who seems to be something of an amateur historian—will take some time to delve into the story of COINTELPRO and other related projects our intelligence community busied itself with before we established an architecture of surveillance oversight in the late ’70s.
You know, the one we’ve spent the past eight years dismantling.
Filed under: General; Law and Civil Liberties; Telecom, Internet & Information Policy
Tea Party Conservatism and the GOP
This morning, Politico’s Arena asks:
Is Tea Party conservatism a help or a hazard for Republicans seeking a return to power?
My response:
Let’s start with some clarity: “Tea Party conservatism” stands for several things, but it is not the caricature one often finds in the mainstream media, to say nothing of the left wing blogs. It is a movement with deep historical roots, drawing its name and inspiration from the Boston Tea Party of 1773. As with that event, taxes brought it to the fore — on Tax Day, April 15. But taxes are simply the most obvious manifestation of modern government run amok, insinuating itself into every corner of life. Trillions of dollars of debt for our children, out-of-control government budgets, massive interventions in private affairs — the list of wrongs is endless, and under Obama has exploded. He stands for nothing if not for making us all dependent on the government he has promised us. That’s not America. That’s a foreign vision, which over the centuries countless millions have fled, searching for freedom.
To be sure, the Tea Party movement has its fringe elements, as did the revolt against British tyranny, which the establishment of its day disparaged. So too does the Obama administration, some of whom have already resigned. The basic question, however, is what does the movement stand for? What are its principles? And on that, the contrast with the Obama vision is stark: However much confusion there might be on specific issues, which is to be expected, the broad principles are clear. The Tea Party movement stands for limited constitutional government. At its rallies, on hand-written sign after sign, that was the message repeatedly seen. These are ordinary Americans – Republicans, Independents, and even Democrats — who want simply to be left alone to plan and live their own lives. They don’t want “community organizers” to help empower them to get more from government.
But they do need to be organized to bring that about — to get government off their backs. And the Republican Party should be the natural vehicle toward that end — the party, after all, that was formed to get government off the backs of several million slaves. But today’s Republican Party is a mixed lot: Some understand those principles; but others, as in the NY 23 race, are all but indistinguishable from their counterparts in the party of Obama. The problem in NY 23 was not that a third party entered the race. Rather, the party establishment botched things from the beginning, by picking a nominee who properly belonged in the Democratic Party, as her pathetic last-minute endorsement indicated, and that’s why a third party entered the race — with a novice of a nominee who nearly won despite the odds against him.
The question, therefore, is not whether Tea Party conservatism is a help or a hazard for Republicans seeking a return to power? To the contrary, it is whether the Republican Party is a help or a hindrance to the Tea Party movement? It will be a help only if it returns to its roots. The mainstream media, overwhelmingly of the Democratic persuasion, will continue to push Republicans to be “moderate,” of course – meaning “Democrat Lite” — to which the proper response is: Why would voters go for that when they can get the real thing on the Democratic line? If Tuesday’s returns showed anything, it is that Independents, a truly mixed lot, are up for grabs; but at the same time, they are looking for leaders who promise not simply to “solve problems” but to do so in a way that respects our traditions of individual liberty, free markets, and limited government. When Republican candidates stand clearly and firmly for those principles, they stand a far better chance of being elected than when they temporize. That is the lesson that Republicans must grasp — and not forget — if they are to return to power.
Filed under: Government and Politics; Law and Civil Liberties
Wisdom of the Anti-Federalists
Everybody reads the Federalist Papers. (I hope!) Written by Alexander Hamilton, James Madison, and John Jay, they are generally regarded as the most profound collection of political theory ever written in America. And since they deeply inform our understanding of our fundamental law, they are essential to understanding the American version of limited, constitutional government. But the ratification of the Constitution was a close thing in 1787–89, and the Anti-Federalists (who said that actually they were the federalists, while their opponents were nationalists) also had some insightful things to say about liberty and limited government.
Now the invaluable Liberty Fund has made available a collection of anti-federalist writings, The Anti-Federalist Writings of the Melancton Smith Circle. The publisher says:
The Anti-Federalist Writings of the Melancton Smith Circle makes available for the first time a one-volume collection of Anti-Federalist writings that are commensurate in scope, significance, political brilliance, and depth with those in The Federalist. Included in this volume as an appendix is a computational and contextual analysis that addresses the question of the authorship of two of the most well-known pseudonymous Anti-Federalist writings, namely, Essays of a Federal Farmer and Essays of Brutus. Also included are the records of Smith’s important speeches at the New York Ratifying Convention, some shorter writings of Smith’s from the ratification debate, and a set of private letters Smith wrote on constitutional subjects at the time of the ratification struggle.
One reason it’s important to study the ideas of the Anti-Federalists was offered by Jeffrey Rogers Hummel in The Encyclopedia of Libertarianism:
Most of the Amendments comprising the Bill of Rights restricted the national government’s direct authority over its citizens. Only one section dealt with the relationship between the state and central governments; the 10th Amendment “reserved” to the states or the people all powers not “delegated to the United States by the Constitution.” Nothing better illustrates that, whereas the Anti-Federalists had lost on the ratification issue, they had won on the question of how the Constitution would operate. The Constitution had not established a consolidated national system of government as most Federalists had at first intended, but a truly federal system, which is what the Anti-Federalists had wanted. In simpler terms, the Federalists got their Constitution, but the Anti-Federalists determined how it would be interpreted.
In a world where it’s easy to find a “Dirty Dozen” of Supreme Court decisions that have expanded government and eroded freedom, that may be hard to believe. But it’s important to read both halves of early American debate over the Constitution in order to understand the foundations of our system.
Filed under: Cato Publications; Law and Civil Liberties; Political Philosophy
Federal Education Results Prove the Framers Right
Yesterday, I offered the Fordham Foundation’s Andy Smarick an answer to a burning question: What is the proper federal role in education? It was a question prompted by repeatedly mixed signals coming from U.S. Secretary of Education Arne Duncan about whether Washington will be a tough guy, coddler, or something in between when it comes to dealing with states and school districts. And what was my answer? The proper federal role is no role, because the Constitution gives the feds no authority over American education.
Not surprisingly, Smarick isn’t going for that. Unfortunately, his reasoning confirms my suspicions: Rather than offering a defense based even slightly on what the Constitution says, Smarick essentially asserts that the supreme law of the land is irrelevant because it would lead to tough reforms and, I infer, the elimination of some federal efforts he might like.
While acknowledging that mine is a ”defensible argument,” Smarick writes that he disagrees with it because it “would presumably require immediately getting rid of IDEA, Title I, IES, NAEP, and much more.” He goes on to assert that I might ”argue that doing so is necessary and proper because it’s the only path that squares with our founding document, but policy-wise it is certainly implausible any time soon.” Not far after that, Smarick pushes my argument aside and addresses a question to ”those who believe that it’s within the federal government’s authority to do something in the realm of schools.”
OK. Let’s play on Smarick’s grounds. Let’s ignore what the Constitution says and see what, realistically, we could expect to do about federal intervention in education, as well as what we can realistically expect from continued federal involvement.
First off, I fully admit that getting Washington back within constitutional bounds will be tough. That said, I mapped out a path for doing so in the last chapter of Feds In The Classroom, a path that doesn’t, unlike what Smarick suggests, require immediate cessation of all federal education activities. Washington obviously couldn’t be pulled completely out of the schools overnight.
Perhaps more to Smarick’s point, cutting the feds back down to size has hardly been a legislatively dead issue. Indeed, as recently as 2007 two pieces of legislation that would have considerably withdrawn federal tentacles from education — the A-PLUS and LEARN acts – were introduced in Congress. They weren’t enacted, but they show that getting the feds out of education is hardly a pipe dream. And with tea parties, the summer of townhall discontent, and other recent signs of revolt against big government, it’s hardly out of the question that people will eventually demand that the feds get out of their schools.
Of course, there is the other side of the realism argument: How realistic is it to think that the federal government can be made into a force for good in education? It certainly hasn’t been one so far. Just look at the following chart plotting federal education spending against achievement, a chart that should be very familiar by now.
Filed under: Education and Child Policy; General; Law and Civil Liberties
Tuesday Links
- Dear members of Congress: If you’re not going to read the bills you pass, at least read the Constitution. Don’t fret; it’s short and written in plain English.
- Richard Rahn: Pay members of Congress more. (Or less, depending on their performance.)
- NYC: “The city that never smokes.” A proposal to ban lighting up in New York’s parks has exposed the puritanical agenda behind the crusade against smoking.
- Tyler Cowen: With health care costs high and rising, government mandates to buy insurance would make many people worse off.
- Podcast: “Pay Czar Cuts Checks“
PATRIOT Powers: Roving Wiretaps
Last week, I wrote a piece for Reason in which I took a close look at the USA PATRIOT Act’s “lone wolf” provision—set to expire at the end of the year, though almost certain to be renewed—and argued that it should be allowed to lapse. Originally, I’d planned to survey the whole array of authorities that are either sunsetting or candidates for reform, but ultimately decided it made more sense to give a thorough treatment to one than trying to squeeze an inevitably shallow gloss on four or five complex areas of law into the same space. But the Internets are infinite, so I’ve decided I’d turn the Reason piece into Part I of a continuing series on PATRIOT powers. In this edition: Section 206, roving wiretap authority.
The idea behind a roving wiretap should be familiar if you’ve ever watched The Wire, where dealers used disposable “burner” cell phones to evade police eavesdropping. A roving wiretap is used when a target is thought to be employing such measures to frustrate investigators, and allows the eavesdropper to quickly begin listening on whatever new phone line or Internet account his quarry may be using, without having to go back to a judge for a new warrant every time. Such authority has long existed for criminal investigations—that’s “Title III” wiretaps if you want to sound clever at cocktail parties—and pretty much everyone, including the staunchest civil liberties advocates, seems to agree that it also ought to be available for terror investigations under the Foreign Intelligence Surveillance Act. So what’s the problem here?
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Think Tanks Should Be Able to Opine on Public Policy Without Running Afoul of Campaign Finance Regulations
In 2005, political opponents filed a complaint against the Independence Institute for not complying with the Colorado constitution and other campaign finance regulations when it spoke against a state ballot initiative. These regulations require, among other things, disclosure of the identity of anyone who has donated more than $20 to a cause and imposes registration and contribution limits on groups who have major interests in ballot issues.
The Independence Institute challenged the constitutionality of Colorado’s state ballot issue requirements and the issue is petitioning the Supreme Court for certiorari in Independence Institute v. Buescher. Cato has filed an amicus brief, in cooperation with Wyoming Liberty Group, the Center for Competitive Politics, the Sam Adams Alliance, the Montana Policy Institute, and the Goldwater Institute in support of the Independence Institute. We argue that Colorado’s ballot campaign regulations run roughshod over constitutional protections for political speech and association, which lie at the very heart of the First Amendment—particularly for think tanks and other organizations that regularly comment on public policy matters. Loss of these First Amendment protections will chill think tanks’ future attempts to educate the public about issues that are the subject of ballot campaigns. The Court should thus review this case and ensure that citizens maintain their associational rights—including the right to remain anonymous when donating to non-profits—and associations their freedom of expression.
You can download the entire brief here. A special thanks to Cato Legal Associate Travis Cushman for his assistance on this brief.
A New Court Term: Big Cases, Questions About the New Justice
Today is the first Monday in October, and so is First Monday, the traditional start of the Supreme Court term. The Court already heard one argument – in the Citizens United campaign finance case — but it had been carried over from last year, so it doesn’t really count.
In any event, continuing its trend from last term, the Court has further front-loaded its caseload — with nearly 60 arguments on its docket already. Fortunately, unlike last year, we’ll see many blockbuster cases, including:
- the application of the Second Amendment to state gun regulations;
- First Amendment challenges to national park monuments and a statute criminalizing the depiction of animal cruelty;
- an Eighth Amendment challenge to life sentences for juveniles; a potential revisiting of Miranda rights;
- federalism concerns over legislation regarding the civil commitment of “sexually dangerous” persons;
- a separation-of-powers dispute concerning the agency enforcing Sarbanes-Oxley;
- judicial takings of beachfront property; and
- notably in these times of increasing government control over the economy, the “reasonableness” of mutual fund managers’ compensation.
Cato has filed amicus briefs in many of these cases, so I will be paying extra-close attention.
Perhaps more importantly, we also have a new justice — and, as Justice White often said, a new justice makes a new Court. While Sonia Sotomayor’s confirmation was never in any serious doubt, she faced strong criticism on issues ranging from property rights and the use of foreign law in constitutional interpretation to the Ricci firefighters case and the “wise Latina” speeches that led people to question her commitment to judicial objectivity. Only time will tell what kind of justice Sotomayor will be now that she is unfettered from higher court precedent — and the first term is not necessarily indicative.
Key questions for the new Court’s dynamics are whether Sotomayor will challenge Justice Scalia intellectually and whether she will antagonize Justice Kennedy and thus push him to the right. We’ve already seen her make waves at the Citizens United reargument — questioning the scope of corporations’ constitutional rights — so it could be that she will decline to follow Justice Alito’s example and jump right into the Court’s rhetorical battles.
In short, it’s the first day of school and I’m excited.
Filed under: Government and Politics; Law and Civil Liberties
NYT: We Don’t Deserve First Amendment Protection!
I assume others have pointed this out already, but there’s something very odd about a Tuesday editorial in The New York Times arguing that campaign finance regulations that stifle the political speech of corporations must be upheld in the Citizens United case currently under consideration before the Supreme Court:
The question at the heart of one of the biggest Supreme Court cases this year is simple: What constitutional rights should corporations have? To us, as well as many legal scholars, former justices and, indeed, drafters of the Constitution, the answer is that their rights should be quite limited — far less than those of people.
In that case, surely it’s time to revisit some of the 20th century’s seminal free speech rulings. The idea that public figures cannot use libel law to squelch criticism unless they can prove an attack is intentionally or recklessly false, for instance, comes to us by way of New York Times Company v. Sullivan—a case in which the so-called “protected speech” was a paid advertisement run by a filthy corporation! And what about the celebrated Pentagon Papers case, in which the Court found that only in the most extreme cases can the government resort to “prior restraint” of speech? Why that’s New York Times Company v. United States. In both cases, of course, the speech in question had political significance—perhaps even the potential to affect elections. In the Pentagon Papers case, by the way, the counsel for the Times was famed First Amendment lawyer Floyd Abrams, who also argued Citizens United.
Don’t worry, though, it’s only corporations like The New York Times that will lose speech protections. If you, as a brave individual, want to say something controversial on your blog—though you’ll probably want to do it on a server you own personally, just in case—you’re totally in the clear. And if the federal government decides to sue, you’ll be totally free to use as much of your personal savings as you want to fight back.
What You Don’t Know Won’t Hurt You (Surveillance State Edition)
While there are many choice tidbits to relate from Tuesday’s hearings on PATRIOT Act reform at the House Judiciary Committee’s Subcommittee on the Constitution—not least the fellow who had to be wrestled from the room, literally kicking and screaming, after he tried to stand and interrupt with a complaint about alleged FBI violations of his civil rights—I’ll just relate a novel theory of the Fourth Amendment advanced by Rep. Steve King (R-Iowa).
The ACLU’s Mike German, a former FBI agent turned surveillance policy expert, was explaining that it’s hard to know whether expansive surveillance powers are being abused, they’re mostly used in secret and deployed via third-parties like financial institutions and telecoms, who have little incentive to raise much fuss or draw attention to their cooperation. King interrupted to suggest that if we weren’t hearing about constitutional challenges, then it was probably safe to assume there was no Fourth Amendment harm. German tried to reiterate that the people whose privacy interests were directly harmed typically would not know they had ever been targeted.
That, King declared, was precisely the point. Surveillance of which the subject never became aware, he said, could be compared to a “tree falling in the forest” when nobody’s around. In other words, if you aren’t ultimately prosecuted, and don’t even feel subjective distress as a result of the knowledge that your private records or communications have been pored over, then it’s presumably no harm, no foul. If we take this line of thinking literally, sufficiently secret surveillance can never be unconstitutional, which would seem to make King a spiritual cousin of Richard “if the president does it, that means it’s not illegal” Nixon.
And to Think: Senators Once Worked For Legislatures
S. 1536, the “ALERT Drivers” Act (”Avoiding Life-Endangering and Reckless Texting by Drivers” — get it?) would reduce federal highway funds available to states if they don’t pass laws prohibiting people from writing, sending, or reading text messages while driving.
The circle is complete. Senators, who were once chosen by state legislatures, now believe it is their role to tell state legislatures what to do.
Federal command over our lives, in ever more intricate detail. It’s the product of exalting democracy — in this case, direct election of senators — over liberty and over the governmental structure originally established in the constitution.
Texting while driving is dangerous to your health and others’. Letting governments amass power is dangerous to your freedom, and ultimately your health (this way, for example, and this way and this way).
Filed under: Government and Politics; Law and Civil Liberties; Telecom, Internet & Information Policy
Why Chile Is More Economically Free Than the United States
In the 2009 Economic Freedom of the World Report, Chile is now #5, one place ahead of the United States.
In 1975, of 72 countries, Chile was No 71. How did this happen? The explanation lies in what I call the “Chilean Revolution,” because it was as important and transformative to my country as the celebrated American Revolution that gave birth to the United States.
The exceptional political circumstances of this period have obscured the fact that from 1975 to 1989 a true revolution took place in Chile, involving a radical, comprehensive, and sustained move toward economic and political freedom (from a starting point where there was neither one nor the other). This revolution not only doubled Chile’s historic rate of economic growth (to an average of 7% a year, 84-98), drastically reduced poverty (from 45% to 15%), and introduced several radical libertarian reforms that set the country on a path toward rapid development; but it also brought democracy, restored limited government, and established the rule of law.
In 1998, The Los Angeles Times described the importance of the Chilean Revolution to the world:
In a sense, it all began in Chile. In the early 1970s, Chile was one of the first economies in the developing world to test such concepts as deregulation of industries, privatization of state companies, freeing of prices from government control, and opening of the home market to imports. In 1981, Chile privatized its social-security system. Many of those ideas ultimately spread throughout Latin America and to the rest of the world. They are behind the reformation of Eastern Europe and the states of the former Soviet Union today… which demonstrates, once again, the awesome power of ideas.
Response to Matthew Yglesias re: Uncle Sam’s $4 Million Bike Rack
In response to my criticism of the new federally-financed $4 million bike center set to open at Union Station in Washington, DC, Think Progress blogger Matthew Yglesias says:
I look forward to the day when the Cato Institute does a blog post denouncing each and every publicly financed parking lot or garage in the United States of America.
I’ll take that bait…sort of…
I denounce each and every federally financed parking lot or garage in the United States of America on non-federal property. I’m one of those quaint individuals who recognizes that the Constitution grants the federal government specific enumerated powers. Using federal tax dollars to finance local parking garages, lots, bike centers and racks is not one of the powers granted to the federal government. So let me rephrase my statement from yesterday: Look, I harbor no animosity against [car drivers], but under what authority — legal or moral — does the federal government tax me in order to build [parking garages or lots] for parochial, special interests?
By the way, for an excellent study on the problems with federal subsidies to state and local government, please see my colleague Chris Edwards’ “Federal Aid to the States: Historical Cause of Government Growth and Bureaucracy.”
Here are a few additional random thoughts…
I know so-called “progressives” like Yglesias don’t lose sleep over how much money the federal government spends, but $4 million to park a hundred or so bikes? As Chris Moody noted to me today, if bike security is the major issue, why not pay a guard $12 an hour to stand watch?
Isn’t it possible, just possible, that a bike center with even more racks could have been built for a lot less? Isn’t that the question that people like Yglesias, who want more people on bikes and less in cars, should be asking?
I don’t see anything inherently governmental about building and operating parking garages or bike centers. The absolutely sorriest, most poorly run parking garage system I’ve ever experienced is the one managed by the State of Indiana where I used to work. I recall an overcrowding situation — exacerbated by lousy management — in which the solution put forward was to just build another garage. Hey, someone else is going to pay for it so who cares, right? I often tell people that young libertarians should spend a couple years working in the bowels of government in order to reinforce their belief system with hands-on experience. I’m starting to think “progressives” and other unwavering fans of all-things-government should do the same.
Bagram, Habeas, and the Rule of Law
Andrew C. McCarthy has an article up at National Review criticizing a recent decision by Obama administration officials to improve the detention procedures in Bagram, Afghanistan.
McCarthy calls the decision an example of pandering to a “despotic” judiciary that is imposing its will on a war that should be run by the political branches. McCarthy’s essay is factually misleading, ignores the history of wartime detention in counterterrorism and counterinsurgency, and encourages the President to ignore national security decisions coming out of the federal courts.
More details after the jump.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Government Pays $4 Million for a Bike Rack
The $4 million Union Station Bike Transit Center is scheduled to open in Washington, DC on October 2nd. According to an August Washington Post story, 80 percent of the cost of this opulent bike center is being borne by federal taxpayers via the U.S. Department of Transportation.
Look, I harbor no animosity against bike riders, but under what authority — legal or moral — does the federal government tax me in order to build bike centers for parochial, special interests? The Constitution?
But let’s pretend — and I mean pretend – that such federal expenditures are legitimate. The Post article say the center will have 150 indoor bike racks and 20 outdoors. A recent NPR article says it will hold 130 bikes. Whatever the figure, at a cost of $4 million, it comes out to around $25-$30 thousand per bike. And, yes, I recognize that the “1,700-square-foot building west of the station will also have changing rooms, personal lockers, a bike repair shop and a retail store that will sell drinks and bike accessories.” But the ultimate purpose is to hold bikes. In my mind, the extra extravagance merely reflects the fact that taxpayers are picking up the tab.
There’s the old saying that a picture is worth a thousand words. In this case, it’s more like 4 million:
There you go, America. Your taxes are funding this multi-million dollar bike rack in Washington, DC — the beneficiaries of which will probably be the same Capitol Hill lobbyists and congressional staffers who spend all day pilfering your paychecks.
Obama: I Want Those Patriot Act Powers
Yesterday, President Obama’s lawyers informed members of Congress that the president does not want any provision of the Patriot Act to expire. Turns out that Obama wants to have the sweeping powers. This is just the latest example of the cacophony that pervades Washington. When Bush was in the White House, the Dems postured against his runaway spending, his military quagmires, and his constitutional violations. With Obama in the White House, Bush’s most misguided policies either continue or worsen.
Obama is in the news today for his “off-the-record” comment about Kanye West. It would have been better had a reporter overheard Obama saying something like, “John Ashcroft was a terrific Attorney General, but I’ll never admit that publicly.”
For related Cato work, go here and here.
Preventive Detention: What Would Thomas Jefferson Do?
By all accounts, the White House is going to unveil its proposal for indefinite detention within the next four to eight weeks, and it has begun dispatching proponents of that scheme to lay the rhetorical groundwork. In The Washington Post today, one of the proposal’s architects — Law Professor Robert Chesney, a member of Obama’s Detention Policy Task Force — showcased the trite and manipulative tactics that will be used by advocates of indefinite detention to win support for their radical program [anyone doubting that detention without trials is radical should recall that Obama's own White House counsel Greg Craig told Jane Mayer back in February that it's "hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law"; New York Times reporter William Glaberson wrote that "Obama's detention policy "would be a departure from the way this country sees itself"; Sen. Russ Feingold warned that it "violates basic American values," "is likely unconstitutional," and "is a hallmark of abusive systems that we have historically criticized around the world"; The New York Times' Bob Herbert said that "Americans should recoil as one against the idea of preventive detention"; and the Obama policy's most vigorous Congressional proponents are Tom Coburn and Lindsey Graham].
According to Chesney, though, the real extremists are those “on the left” who oppose preventive detention; those who believe that radical liberties such as criminal charges, trials and due process are necessary before the state can put someone in a cage for life; those who agree with Thomas Jefferson that trial by jury is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Chesney insists that such people (these “leftists”) are (as always) the mirror images of the extremists on the Right, who “carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.” These two equally partisan, radical, extremist sides (i.e., those who believe in due process and trials and those who oppose them) are — sadly — “shrink[ing] the political space within which reasonable, sustainable policies [i.e., Chesney's preventive detention scheme] might be crafted with bipartisan support.”
…This is how political debates are typically carried out in Washington by the Serious Centrists and Responsible Adults. Chesney writes an entire Op-Ed defending the soon-to-be-unveiled preventive detention policy without describing a single aspect of it. To Serious people, the substance of the policy is irrelevant. What matters is that anyone who opposes it is a radical, partisan, shrill extremist. Conversely, as long as the Obama administration stays somewhere in the middle of the two sides — between Tom Coburn and Russ Feingold — then it proves they are being sensible, moderate and responsible, regardless of how extreme and dangerous their proposal actually is, and regardless of how close to Coburn and as far from Feingold as they end up.
No system of justice is perfect. But it’s no improvement to decide that in certain cases we can just do better without one.
All that such a policy does is to move the act of judging back one level — and to locate it at the point where someone, somewhere decides that this particular case doesn’t get judged in the usual way. And so the accused gets “detention” rather than “trial, followed possibly by prison.” But we are still putting a person, and perhaps a dangerous person, in a cage, are we not? The acts of judging and of punishing are still there, and we have hidden them only from ourselves.
It is no improvement to shift the fundamental problem of justice to a different location — out of open courtrooms, out of review, out of established legal tradition — and into a shadowy realm where potentially anything goes. We’re deluding ourselves if we think that it is a step forward or a refinement in the criminal law to have its work done somewhere else, by someone else. The work goes on, and with it all of the associated dangers. Western legal philosophy has spent centuries forcing these dangers out into the open, so that we may confront them directly.
But oddly, Professor Chesney is actually right in one respect:
The problem is twofold. First, the national dialogue has been dominated by a pair of dueling narratives that together reduce the space available for nuanced, practical solutions that may require compromise from both camps. On the one hand, critics of the government’s policies promiscuously invoke the post-Sept. 11 version of the Imperial Presidency narrative, reflexively depicting security-oriented policies in terms of executive branch power aggrandizement (with de rigueur references to former vice president Dick Cheney; his chief of staff, David Addington; or Justice Department attorney John Yoo, if not all three). On the other hand, supporters of the government’s policies just as carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.
Second, individual issues in the debate over detention policy are often framed in stark and incompatible terms. Take, for example, the Guantanamo detainees, who are portrayed in some quarters as innocent bystanders to the last man and in other quarters as the “worst of the worst.” While both extremes are misleading, their influence is pervasive.
True enough. A reasonable middle position? Give the detainees trials in which they can individually prove their guilt or innocence. Surely they aren’t all guilty, and I don’t believe I’ve ever seen anyone claim that they are all innocent, either. The truth really is somewhere in between, and it just so happens that we already have a mechanism for sorting out muddled cases like these.
‘We Don’t Put Our First Amendment Rights In the Hands of FEC Bureaucrats’
I (and several colleagues) have blogged before about Citizens United v. Federal Election Commission, the latest campaign finance case, which was argued this morning at the Supreme Court. The case is about much more than whether a corporation can release a movie about a political candidate during an election campaign. Indeed, it goes to the very heart of the First Amendment, which was specifically created to protect political speech—the kind most in danger of being censored by politicians looking to limit the appeal of threatening candidates and ideas.
After all, hard-hitting political speech is something the First Amendment’s authors experienced firsthand. They knew very well what they were doing in choosing free and vigorous debate over government-filtered pablum. Moreover, persons of modest means often pool their resources to speak through ideological associations like Citizens United. That speech too should not be silenced because of nebulous concerns about “level playing fields” and speculation over the “appearance of corruption.” The First Amendment simply does not permit the government to handicap speakers based on their wealth, or ration speech in a quixotic attempt to equalize public debate: Thankfully, we do not live in the world of Kurt Vonnegut’s Harrison Bergeron!
A few surprises came out of today’s hearing, but not regarding the ultimate outcome of this case. It is now starkly clear that the Court will rule 5-4 to strike down the FEC’s attempt to regulate the Hillary Clinton movie (and advertisements for it). Indeed, Solicitor General Elena Kagan — in her inaugural argument in any court — all but conceded that independent movies are not electioneering communications subject to campaign finance laws. And she reversed the government’s earlier position that even books could be banned if they expressly supported or opposed a candidate! (She went on to also reverse the government’s position on two other key points: whether nonprofit corporations (and perhaps small enterprises) could be treated differently than large for-profit business, and what the government’s compelling interest was in prohibiting corporations from using general treasury funds on independent political speech.)
Ted Olson, arguing for Citizens United, quickly recognized that he had his five votes, and so pushed for a broader opinion. That is, the larger — and more interesting — question is whether the Court will throw out altogether its 16-year-old proscription on corporations and unions spending their general treasury funds on political speech. Given the vehement opposition to campaign finance laws often expressed by Justices Scalia, Kennedy, and Thomas, all eyes were on Chief Justice Roberts and Justice Alito, in whose jurisprudence some have seen signs of judicial “minimalism.” The Chief Justice’s hostility to the government’s argument — “we don’t put our First Amendment rights in the hands of FEC bureaucrats” — and Justice Alito’s skepticism about the weight of the two precedents at issue leads me to believe that there’s a strong likelihood we’ll have a decision that sweeps aside yet another cornerstone of the speech-restricting campaign finance regime.
Filed under: Government and Politics; Law and Civil Liberties
Tuesday Links
- How unions are becoming irrelevant to the average American worker in the private sector.
- Is the president’s speech part of a sinister plan to create a socialist Obama Youth movement? Hardly. However, let us not forget that our Constitution’s framers thought schooling was too important to be left to a federal government.
- The Supreme Court will rule Wednesday on whether the government can ban political speech during election time. Here’s the back story.
- The 10-year budget deficit is now projected to be nine trillion dollars. Paul Krugman says it’s no big deal. James Dorn thinks otherwise and explains why Krugman is mistaken.
- Podcast: The real problem with Obama’s speech to schoolchildren.
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