Six months ago, I wrote about a law review article I had just co-authored with former Cato legal associate Caitlyn McCarthy regarding corporate rights post-Citizens United.  Well, now it’s officially published, in The John Marshall Law Review.  Here’s the abstract:

Corporate participation in public discourse has long been a controversial issue, one that was reignited by the Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010). Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. While it’s true that corporations aren’t human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups. This essay will demonstrate why the common argument that corporations lack rights because they aren’t people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.

Go here to download “So What If Corporations Aren’t People?”

Published: So What If Corporations Aren’t People? is a post from Cato @ Liberty - Cato Institute Blog

In my Encyclopedia Britannica column this week, I take a look at “the responsibility of judges to strike down laws, regulations, and executive and legislative actions that exceed the authorized powers of government, violate individual rights, or fail to adhere to the rules of due process.”

Certainly they don’t always live up to those expectations, as Robert A. Levy and William Mellor wrote in The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. 

The column might have been more timely last summer, when Judge Andrew Napolitano concluded one of his Freedom Watch programs on the Fox Business Channel by hailing four federal judges who had courageously and correctly struck down state and federal laws:

• Judge Martin L. C. Feldman, who blocked President Obama’s moratorium on oil drilling in the Gulf of Mexico;
• Judge Susan Bolton, who blocked Arizona’s restrictive immigration law;
• Judge Henry Hudson, who refused to dismiss Virginia’s challenge to the health care mandate; and
• Judge Vaughn Walker, who struck down California’s Proposition 8 banning gay marriage.

That was a good summer for judicial protection of liberty. But as I note, there have been more examples this year, reminding us of James Madison’s predictions that independent judges would be “an impenetrable bulwark against every assumption of power in the legislative or executive.”

How Judges Protect Liberty is a post from Cato @ Liberty - Cato Institute Blog

As Julian Sanchez detailed yesterday, those who complain about fewer restrictions on corporate political speech but celebrate the freeing of restrictions on corporate videogame speech are in a bit of a logical pretzel.  But ultimately both those who think corporations have speech rights and those who don’t miss the larger point: it’s not about corporate rights but the rights of the individuals who freely associate and thus pool their speech via the corporate legal form.

That is, it really doesn’t matter that “corporations aren’t people.”  Of course they’re not living, breathing human beings, and their ”personhood” for legal purposes is just that: a convenient legal fiction.

To elaborate on these ideas, Cato legal associate Caitlyn Walsh McCarthy and I have  written a law review article titled “So What If Corporations Aren’t People?”  Here’s the abstract:

Corporate participation in public discourse has long been a controversial issue, one that was reignited by the Supreme Court’s decision in Citizens United v. FEC, 130 S. Ct. 876 (2010). Much of the criticism of Citizens United stems from the claim that the Constitution does not protect corporations because they are not “real” people. While it’s true that corporations aren’t human beings, that truism is constitutionally irrelevant because corporations are formed by individuals as a means of exercising their constitutionally protected rights. When individuals pool their resources and speak under the legal fiction of a corporation, they do not lose their rights. It cannot be any other way; in a world where corporations are not entitled to constitutional protections, the police would be free to storm office buildings and seize computers or documents. The mayor of New York City could exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he’d like to move his office there. Moreover, the government would be able to censor all corporate speech, including that of so-called media corporations. In short, rights-bearing individuals do not forfeit those rights when they associate in groups. This essay will demonstrate why the common argument that corporations lack rights because they aren’t people demonstrates a fundamental misunderstanding of both the nature of corporations and the First Amendment.

This article is still being edited — it won’t appear in the John Marshall Law Review till the fall – so comments are welcome.  Thanks to Eugene Volokh for making suggestions on an earlier version.

Update: Larry Solum has “recommended” our article on the Legal Theory Blog.  Thanks!

So What If Corporations Aren’t People? is a post from Cato @ Liberty - Cato Institute Blog

Stephen Metcalf’s prolix takedown of Robert Nozick demands response, not because Metcalf has advanced a novel and Rawls-esque so-interesting-and-powerful-it-must-be-addressed argument, but because he precisely has not. Nozick is, justifiably, a hero of libertarianism (and liberty), and his terrific book, Anarchy, State, and Utopia, as well as libertarianism in general, deserve better than Metcalf’s excoriation.

My colleague Jason Kuznicki started things off admirably. At the risk of beating what ought to be a dead horse, I’d like to add a word or two of my own. I’ll avoid what Jason’s already covered.

Let’s start with Metcalf’s very odd characterization of Nozick’s view of liberty as the primary value. He writes, “Nozick is arguing that liberty is the sole value, and to put forward any other value is to submit individuals to coercion.” Metcalf adds that, according to Nozick and modern libertarians, “Every other value, meanwhile, represents someone else’s deranged will-to-power.”

This claim evinces a common confusion about libertarianism, one that continues throughout the remainder of Metcalf’s article: libertarians don’t believe that liberty is the primary value, we believe that liberty is the primary political value. Like so many critics of libertarianism, Metcalf does not understand the scope of the libertarian argument.

I value liberty, yes, but I also value my health, my daughter’s happiness, and films staring William Powell and Myrna Loy. In fact, libertarians, progressives, and even Robert Nozick value quite a lot of things. The libertarian argument is simply that a state that attempts to directly maximize any value besides liberty—by, say, coercively taxing in order to pay for more Thin Man films—violates individual rights. What’s more, if the state does remain limited to protecting only liberty, we’ll get more health, happiness, and great movies.

According to Nozick and most other libertarians, it is for the protection of liberty that we organize a state—and a state that violates its citizens’ liberty (beyond, arguably, certain “night watchman” duties) commits a moral wrong. Metcalf gets that much right. But this is not because liberty is the only value. Rather, it is because liberty is the only value the state should concern itself with. All the other values—of which there are a great many, not all shared equally by all individuals—are the exclusive concern of civil society.

Nozick argues that it’s wrong for all of us to look in moral horror at Wilt Chamberlain’s earnings, band together into a government, and send in armed tax collectors because we think Wilt’s money could be more valuably used somewhere other than Wilt’s pockets. Nozick’s parable is about the morality of politics while saying nothing about what Wilt ought to voluntarily do with his money. He might choose to spend it all on caviar and rare basketball cards, in which case the rest of us might even be justified in looking down our noses at such “wasteful” behavior. But Wilt might also give a portion of his money to fund homeless shelters, free medical clinics, and scholarships for poor children (as many people in his position in fact do). Or he might use it to launch a new business, employing many of his fellow citizens at decent wages to teach his basketball skills to willing consumers.

Liberty is not the only value. It is the only value within the scope of politics. Liberty is also the value that allows all the other actually-held values to flourish.

Which brings me to this odd bit of Metcalf’s reasoning: “Even in 1975,” he writes, “it took a pretty narrow view of history to think all capital is human capital, and that philosophy professors, even the especially bright ones, would thrive in the free market.” Doesn’t Nozick recognize, he asks, that the very university system he took advantage of to pay his bills while writing his defense of free markets was made possible only by massive government transfer payments? Without a hugely interventionist state, Nozick wouldn’t even be able to pay his rent with his philosophy knowledge, let alone revitalize an intellectual movement.

In effect, Metcalf is saying that Nozick is dumb to support markets because markets wouldn’t support Nozick. If liberty is the only value (of the state), then the talent of philosophy wouldn’t be sufficiently valued (by the market) to allow a fellow like Robert Nozick to do philosophy.

And Metcalf may be right. But if he is, it’s unclear why we shouldn’t also extend his argument to all other talents. A great many mystery novelists, for instance, would love to have academic appointments while they pen new adventures for their detectives. But instead they have to compete in the free market, hoping an audience will value their work enough to pay for it. Last I checked, even in this unforgiving environment, there are a great many mystery novels on shelves.

The fact of the matter is that not all talents are valued, which is why Nozick chose a basketball player to build his case around instead of, say, a teenager who can name every Pokémon from memory. If we are going to create a world in which everything valuable (to Metcalf) is given financial support, we need to organize it such that people are not free to choose their own values. The beauty of the free market is not that it specifically supports basketball playing or philosophy writing, but that it rewards those who have talents that are actually and voluntarily valued by the rest of us. Arriving at an array of values this way seems a good deal better than the alternative, at least. For if we aren’t to leave “value” to the market, we have to leave it to someone. Which means substituting that person’s (or committee’s) particular, uniform conception of value for the variegated bramble that is a free society.

The beauty of liberty is that it allows each of us to pursue our own ends and strive for whatever we value. The curse of liberty is that our striving takes place among a great many fellow strivers, many of who are headed in directions we find elitist or prole, dangerous or dull, distasteful or uninspired. The difference between Nozick’s vision and Metcalf’s is that Nozick embraces that wonderful chaos, provided it happens within a framework of respected rights. Metcalf would strike down choice and replace it with state-endorsed value. He would force all of us or none of us to watch Wilt play, placing the decision to be a spectator or an abstainer not with free individuals but with Stephen Metcalf.

Robert Nozick and the Value of Liberty is a post from Cato @ Liberty - Cato Institute Blog

What is it with modern American liberals and taxes? Apparently they don’t just see taxes as a necessary evil, they actually like ‘em; they think, as Gail Collins puts it in the New York Times, that in a better world “little kids would dream of growing up to be really big taxpayers.” But you really see liberals’ taxophilia coming out when you read the reviews of the new movie Robin Hood, starring Russell Crowe. If liberals don’t love taxes, they sure do hate tax protesters.

Carlo Rotella, director of American Studies at Boston College, writes in the Boston Globe that this Robin Hood is “A big angry baby [who] fights back against taxes” and that the movie is “hamstrung by a shrill political agenda — endless fake-populist harping on the evils of taxation.” You wonder what Professor Rotella teaches his students about America, a country whose fundamental ideology has been described as “antistatism, laissez-faire, individualism, populism, and egalitarianism.”

At the Village Voice, Karina Longworth dismisses the movie as “a rousing love letter to the Tea Party movement” in which “Instead of robbing from the rich to give to the poor, this Robin Hood preaches about ‘liberty’ and the rights of the individual as he wanders a countryside populated chiefly by Englishpersons bled dry by government greed.” Gotta love those scare quotes around “liberty.” Uptown at the New York Times, A. O. Scott is sadly disappointed that “this Robin is no socialist bandit practicing freelance wealth redistribution, but rather a manly libertarian rebel striking out against high taxes and a big government scheme to trample the ancient liberties of property owners and provincial nobles. Don’t tread on him!” The movie, she laments, is “one big medieval tea party.”

Moving on down the East Coast establishment, again with the Tea Party hatin’ in Michael O’Sullivan’s Washington Post review:

Ridley Scott’s “Robin Hood” is less about a band of merry men than a whole country of really angry ones. At times, it feels like a political attack ad paid for by the tea party movement, circa 1199. Set in an England that has been bankrupted by years of war in the Middle East — in this case, the Crusades — it’s the story of a people who are being taxed to death by a corrupt government, under an upstart ruler who’s running the country into the ground.

Man, these liberals really don’t like Tea Parties, complaints about lost liberty, and Hollywood movies that don’t toe the ideological line. As Cathy Young notes at Reason:

Whatever one may think of Scott’s newest incarnation of the Robin Hood legend, it is more than a little troubling to see alleged liberals speak of liberty and individual rights in a tone of sarcastic dismissal. This is especially ironic since the Robin Hood of myth and folklore probably has much more in common with the “libertarian rebel” played by Russell Crowe than with the medieval socialist of the “rob from the rich, give to the poor” cliché. At heart, the noble-outlaw legend that has captured the human imagination for centuries is about freedom, not wealth redistribution….The Sheriff of Nottingham is Robin’s chief opponent; at the time, it was the sheriffs’ role as tax collectors in particular that made them objects of loathing by peasants and commoners. [In other books and movies] Robin Hood is also frequently shown helping men who face barbaric punishments for hunting in the royal forests, a pursuit permitted to nobles and strictly forbidden to the lower classes in medieval England; in other words, he is opposing privilege bestowed by political power, not earned wealth.

The reviewers are indeed tapping into a real theme of this Robin Hood, which is a prequel to the usual Robin Hood story; it imagines Robin’s life before he went into the forest. Marian tells the sheriff, ”You have stripped our wealth to pay for foreign adventures.” (A version of the script can be found on Google Books and at Amazon, where Marian is called Marion.)  Robin tells the king the people want a charter to guarantee that every man be “safe from eviction without cause or prison without charge” and free “to work, eat, and live merry as he may on the sweat of his own brow.” The evil King John’s man Godfrey promises to “have merchants and landowners fill your coffers or their coffins….Loyalty means paying your share in the defense of the realm.” And Robin Hood tells the king, in the spirit of Braveheart‘s William Wallace, “What we ask for is liberty, by law.”

Dangerous sentiments indeed. You can see what horrifies the liberal reviewers. If this sort of talk catches on, we might become a country based on antistatism, laissez-faire, individualism, populism, and egalitarianism and governed by a Constitution.

Robin Hood and the Tea Party Haters is a post from Cato @ Liberty - Cato Institute Blog

Michael Crowley, late of the New Republic and now with Time magazine, writes thoughtfully about Ron Paul, Rand Paul, and libertarianism. Crowley notes that Rand Paul, “more politically flexible than his father,” has plenty of unlibertarian positions. But both of them are tapping into a real strain in contemporary politics:

But he, like his father, also knows well that a genuine libertarian impulse is astir in America…. polls show an uptick in both social permissiveness and skepticism of government intervention….[Ron Paul] has already waited a long time — and it appears the country is moving his way.

This is a current trend, but it’s also deeply rooted in the American political culture. As David Kirby and I wrote in “The Libertarian Vote“:

It’s no surprise that many Americans hold libertarian attitudes since America is, after all, a country fundamentally shaped by libertarian values and attitudes. In their book It Didn’t Happen Here: Why Socialism Failed in the United States, Seymour Martin Lipset and Gary Marx write, “The American ideology, stemming from the [American] Revolution, can be subsumed in five words: antistatism, laissez-faire, individualism, populism, and egalitarianism.”… Richard Hofstadter wrote: “The fierceness of the political struggles in American history has often been misleading; for the range of vision embraced by the primary contestants in the major parties has always been bounded by the horizons of property and enterprise. However much at odds on specific issues, the major political traditions have shared a belief in the rights of property, the philosophy of economic individualism, the values of competition; they have accepted the economic virtues of capitalist culture.”… McClosky and Zaller sum up a key theme of the American ethos in classic libertarian language: “The principle here is that every person is free to act as he pleases, so long as his exercise of freedom does not violate the equal rights of others.”…

Some people recognize but bemoan our libertarian ethos. Professors Cass Sunstein and Stephen Holmes complain that libertarian ideas are “astonishingly widespread in American culture.”

Much political change in America occurs within those guiding principles. Even our radicals, Lipset and Marks note, have tended to be libertarian rather than collectivist. America is a “country of classical liberalism, antistatism, libertarianism, and loose class structure,” which helps to explain the failure of class-conscious politics in the United States. McClosky and Zaller argue that many of the changes of the 1960s involved “efforts to extend certain values of the traditionalethos to new groups and new contexts”—such as equal rights for women, blacks, and gays; anti-war and free speech protests; and the “do your own thing” ethosof the so-called counterculture, which may in fact have had more in common with the individualist American culture than was recognized at the time.

In a broadly libertarian country most voters and movements have agreed on the fundamentals of classical liberalism or libertarianism: free speech, religious freedom, equality before the law, private property, free markets, limited government, and individual rights. The broad acceptance of those values means that American liberals and conservatives are fighting within a libertarian consensus. We sometimes forget just how libertarian the American political culture is.

And of course American politics and policy deviate a great deal from those fundamental principles, which leaves libertarians feeling frustrated, even angry, and seeming extreme or radical to journalists and others. But as Conor Friedersdorf just wrote in Time‘s longtime rival, Newsweek, the media have a bias toward the status quo and establishment politicians, even when current policies and the proposals of elected officials are at least as extreme as libertarian ideas:

If returning to the gold standard is unthinkable, is it not just as extreme that President Obama claims an unchecked power to assassinate, without due process, any American living abroad whom he designates as an enemy combatant? Or that Joe Lieberman wants to strip Americans of their citizenship not when they are convicted of terrorist activities, but upon their being accused and designated as enemy combatants? In domestic politics, policy experts scoff at ethanol subsidies, the home-mortgage-interest tax deduction, and rent control, but the mainstream politicians who advocate those policies are treated as perfectly serious people.

And Fareed Zakaria, the editor of Newsweek International, made the point a dozen years ago in a review of Charles Murray’s book What It Means to Be a Libertarian (in the Public Interest, not online)

The reason that libertarians seem extreme and odd is not that they are a furious minority, angry at a world that seems to have passed them by, but rather the opposite. They are heirs to a tradition that has changed the world. Consider what classical liberalism stood for in the beginning of the nineteenth century. It was against the power of the church and for the power of the market; it was against the privileges of kings and aristocracies and for dignity of the middle class; it was against a society dominated by status and land and in favor of one based on markets and merit; it was opposed to religion and custom and in favor of science and secularism; it was for national self-determination and against empires; it was for freedom of speech and against censorship; it was for free trade and against mercantilism. Above all, it was for the rights of the individual and against the power of the church and the state….

The reason that libertarianism seems narrow and naive is that having won 80 percent of the struggles it has fought over the last two centuries, it is now forced to define itself wholly in terms of the last 20 percent. Extremism in the defense of liberty is no vice if you were in Prussia in the 1850s, but in America in the 1960s? Libertarianism has become extreme because the world has left it no recourse.

Now, I don’t feel furious, angry, or extreme. I think that libertarianism is the philosophy of the American revolution, the basic ideology of America, and indeed the foundation of Western civilization. The concept of personal and economic freedom — giving people more power to pursue happiness in their own way by restricting the size, scope, and power of government — is not extreme. Nor is it reactionary. In fact, it is the direction in which civilization has been heading, with many digressions and blind alleys, since the liberal revolution of the 17th century. I am a progressive. I believe that the simple, timeless principles of the American Revolution — individual liberty, limited government, and free markets – are even more powerful and more important in the world of instant communication, global markets, and unprecedented access to information than Jefferson or Madison could have imagined.  Libertarianism is not just a framework for utopia, it is the indispensable framework for the future.

Libertarianism Hits the Big Time is a post from Cato @ Liberty - Cato Institute Blog

I’m delighted to report that just this week I have received copies of Libertarianism: A Primer published in Italian and Korean, the latter delivered to me personally by the president of the Korea Economic Research Institute. I now count the following translations:

• Japanese
• Russian
• Czech
• Polish
• Serbian
• Bulgarian
• Cambodian
• Mongolian
• Kurdish
• Persian
• Spanish
• Korean
• Italian
• Chinese

and of course

• audio and
• Kindle.

You might notice a couple of things about that list. First, it includes a lot of communist or ex-communist countries, where perhaps they are especially attuned to the conflict between freedom and statism. And second, it has not yet been translated into of the languages of Northwest Europe — German, French, Dutch, Scandinavian languages. Perhaps those countries have achieved the end of history and have no need of further ideological debates. Perhaps. I wrote the following in the preface to the Italian edition:

The publication of a primer on libertarianism in Italy is another sign of two heartening developments: the continuing process of the world’s people being drawn closer together, and the worldwide spread of the ideas of peace and freedom after a century of war and statism.

This book may seem to be reaching Italy at an inopportune moment, a time when people from the president of France to Nobel Prize-winning economists are proclaiming that “laissez-faire is finished.” One American pundit of the center-left even exulted in “the end of libertarianism.” These critics are short-sighted. The idea of libertarianism, of liberty under law, is needed now more than ever….

Libertarianism is sometimes perceived as a radical philosophy. And in some ways it is: It rejects and has fought in turn absolutism, communism, fascism, national socialism, corporate statism, theocracy, and every form of tyranny over the mind of man. Libertarians advance a radical and consistent vision of individual rights and strictly limited government that would eliminate the great bulk of the modern state, even in mixed-economy democracies. But in a broader sense libertarianism is the fundamental philosophy of the modern world: liberty, equality, enterprise, the rule of law, constitutional government. These ideas have become so commonplace that we forget how radical they were at one time. Libertarians want to apply those principles more consistently than do the adherents of other ideologies. But few people in the modern world would want to reject libertarian ideas wholesale.

The largest trends in the world reflect libertarian values. Communism is virtually gone, and few people still defend state socialism. Eastern Europe is struggling to achieve societies based on property rights, markets, and the rule of law. Honest observers throughout the developed world understand that the middle-class welfare states are unsustainable and will have to be radically reformed. The information revolution is empowering individuals and small groups and undermining the authority of centralized power.

Perhaps most importantly, the increasing globalization of the world economy means that countries that want to prosper will have to adopt a decentralized, deregulated, market-oriented economic model. You can’t avoid world markets in the 21st century; or if you do, you will be left out of the phenomenal economic growth that global markets and technological development will deliver.

So one reason that Italian readers should be interested in libertarianism is very simple and practical: these are the ideas that drive the modern world, and you need to know about them. The other reason is that libertarianism offers to every country the promise of peace, economic growth, and social harmony. I hope Italian readers will join libertarians around the world in working to restrain state power and liberate individuals, families, associations, and enterprises.

Libertarianism: A Primer Goes Global is a post from Cato @ Liberty - Cato Institute Blog

Free-market reforms are hard to come by this year, but there’s just been a small victory for economic freedom and individual rights in Virginia. A bill enabling Virginia companies to offer life insurance benefits to people their employees choose, including same-sex partners, was passed overwhelmingly by the legislature in April. My friend Kelly Young discovered three years ago that Virginia law prevented his employer’s insurance company from selling him group life insurance on his partner. The company did offer such insurance in other states. As the Washington Blade reports:

Previously, state law permitted Virginia residents to take out group life insurance coverage only for a legal spouse or a child under age 25. But the new statute, which takes effect July 1, broadens that group of people to include anyone with whom a Virginia resident has [an insurable] interest, including a same-sex partner.

The bill, introduced by Del. Adam Ebbin (D), did not even get out of committee in 2008 and 2009, despite a ringing editorial endorsement by the conservative Richmond Times-Dispatch and the support of Virginia FREE, the state’s most effective business association. This year, perhaps because of the addition of a Republican, Del. Tom Rust, as chief sponsor, it moved smoothly through both houses. Gov. Robert McDonnell, who has come in for criticism in these parts, commendably signed the bill.

As the Times-Dispatch editorialized two years ago:

Note well what this bill is not: a mandate. Insurance companies would not be required to cover anybody they did not wish to. They would remain free to reject coverage they did not care to offer. They simply would not be prohibited from covering persons they are willing to cover.

In a free market, that is precisely how insurance ought to work: The buyer and the seller of the policy work out the terms between themselves. The state’s job is merely to enforce the contract — not to write it. Ebbin’s bill deserves a resounding and unanimous aye.

It took two more years, but at long last Virginia’s legislators have legalized this particular capitalist act among consenting adults. In this case, it’s likely to be same-sex couples who will benefit most from the removal of this barrier to commerce. Just another little step toward equality under the law.

Insurance Reform in Virginia is a post from Cato @ Liberty - Cato Institute Blog

Recently I wrote an article arguing that there never was a golden age of liberty and that in particular libertarians should not hail 19th-century America as a small-government paradise, at least not without grappling with the massive problem of slavery. Jacob Hornberger, author of an article that I criticized, responded in Reason, and I then responded here. Meanwhile, an interesting discussion took place on a email list of libertarian scholars, and I’m pleased to have gotten the permission of several participants to include some of that discussion here:

Aeon J. Skoble: The ideals of freedom which led to the tangible improvements [Boaz] mentions – I’m concerned that those ideals are eroding/have eroded.  Example: say you have a robust theory of rights, but your society denies rights to women.  That’s a contradiction, and the strength of your rights theory contains the foundation for protesting the injustice and remedying it.  But if you don’t even have a robust rights theory in the first place, there’s no foundation for complaining about lost liberty.  So my concern is that, all the good progress notwithstanding, liberty as an ideal is weaker than it once was.  One thing that’s widespread, e.g., is the constant conflation of positive rights and negative rights.  And at the same time that positive rights are being accorded the status of negative rights, negative rights are increasingly being viewed as encroachable.

David Mayer: In terms of economic liberty and property rights, Americans today are certainly far less free than they were a century ago, or even two centuries ago.  What was once a vast realm of human activity that American law left to individuals’ freedom of contract (the whole realm of business activity as well as personal life, in terms of what substances individuals may choose to ingest in their own bodies, the wages and hours they can work, whom they can hire or fire, to whom they can sell their property or refuse to sell their property, etc., etc.), has now been almost wholly subjected to the dictates of government, thanks to the rise of the 20th century regulatory / welfare state.  Business owners today (to pick one obvious category of Americans – arguably, the most important category, if as I do, you agree with Calvin Cooolidge’s maxim, “The business of America is business”) are certainly far less free today than they were 100 years ago (before the “Progressive” era), or 70 years ago (before the “New Deal revolution”), or 50 years ago (before the “Civil Rights movement” and the various federal anti-discrimination laws), or 20 years ago (before, say, enactment of the Americans with Disabilities Act) – or even a year ago (before enactment of the Democrats’ health insurance nationalization law).

Glenn Reynolds: I think that David’s piece is useful in another way:  If your narrative is one in which freedoms are always shrinking, and government always growing, it may tend to discourage people from working to make things better.  I see a lot of that kind of thing from people on the Right, and it irritates me no end.  I remember when the passage of the assault weapons ban was presented as just another downward ratchet in freedom, and yet now the gun issue is such that even lefty Dems are for the most part unwilling to touch it.  That, it seems to me, is an example of how freedom can expand even in the comparatively short term.

Steve Horwitz: The way I see this is that we’re trying to answer the question “Are we more free?”  To do so, we need to address both the “we” and the “free” pieces.  I read David as making two points:  1) We need to think carefully about the “we” and recognize, as we all have noted, the major gains in freedom for non-white, non-males (and maybe non-Christians too).  2) But he was also saying there are more freedoms in the calculus than the economic.  Even white men are freer along a number of dimensions than they were in the 19th century, when one takes the social realm seriously.  Some folks have noted those.

My own view is that one can look at this in the economist’s old tool:  the 2 x 2 matrix:

economic freedoms        social freedoms

White men           notable losses            good-sized gains

Others                       huge gains                    huge gains

I think by any accounting, the NW quadrant is smaller than the sum of the others.  We can debate over how much smaller, but if we could somehow aggregate these freedoms, I think there’s no question the total amount of freedom per capita is bigger today than “before.”

Mark LeBar: Speaking for myself, I don’t think it’s a matter of economic vs. other freedoms. If I were to put my finger on what I would say seems to me most significant in thinking the losses in NW swamp whatever gains there are elsewhere, I would say it has to do with the loss of respect for contract. That’s not to say there are no gains: as others have pointed out, 2 centuries ago I could not have contracted with women, or Africans, and to the extent non-whites and non-males have been accepted to the relevant moral community, that is indeed an expansion of my liberty as well as theirs. But, as I noted earlier, my authority to bind myself in ways that are not subject to veto by the state is a shadow of what it once was. I won’t enumerate the list again. But not only is that list much smaller, the rightfulness of the state to determine just how much smaller it may be continues to expand virtually without pause, as those on this list will need no reminder. I would say there has been a sea-change from the idea (however imperfectly implemented) that the flow of authority goes from individuals to the state, to just about exactly the opposite. And that is simply a catastrophic loss to liberty, not just for white males, but for everybody. It’s hard for me to see that there can be good reasons for rejecting either the claim that the authority relation is now generally seen as running the other way, or that that amounts to a massive loss of liberty. And I don’t see imminent prospects for broad change in those attitudes. Hence the pessimism.

David Olson: I think that perhaps I am missing something. In reading today’s exchange, I thought that people were working toward a consensus that had largely been reached and summarized by Steven’s email. But now Mark writes that liberty gains to everyone but straight white Christian males are swamped by the liberty losses to white males (and to hypothetical non-whites and females compared to the liberty they might have enjoyed if they’d had full equality 200 + years ago).

I’m very surprised by this statement. The logic of this would seem to lead to the proposition that it would be better if things were still as they were 200 years ago. Would anyone actually make that statement? If not, is there some value in addition to freedom that people are focusing on in deciding the question? (And let’s take medical and dental care advances out of the question to avoid skewing the answer.)

John Hasnas: I suspect that no one on the list would disagree with the assertion that between the time of the adoption of the Constitution and the present, the political and legal commitment to a government of limited, enumerated powers has greatly declined. I also suspect that no one on the list would disagree with the assertion that a vastly greater proportion of the population enjoys freedom from illegitimate political and legal restrictions and disabilities than was the case at the time of the adoption of the Constitution. Out of this universal agreement, we have managed to manufacture disagreement by asking a vague question that equivocates on the meaning of the word freedom; to wit, “Are we more free?”

It seems pretty obvious that to the extent that we are free, that freedom is much more widely distributed than in the past. It also seems pretty obvious that to the extent that there is less legal protection against the interference of the federal government with our activities, there is less freedom. Beyond this, the value of determining whether we are more “free” in some unspecified sense escapes me.

Aeon Skoble: Actually, I wasn’t asking “Are we more free?” – I conceded David’s claim that we were.  I was expressing some concern over whether the trend will continue positively or negatively, given that the positive and negative senses of freedom are so frequently conflated (not by members of this list, but in general, both in the academy and among the general public), and that in many quarters the very concept of freedom is in disfavor, and the idea that all rights are subject to encroachment by the state, which is more and more thought of as having limitless power.

Steve Horwitz: I agree with Aeon’s concerns.  One way to put it is, as I think Mark LeBar did earlier, even if it’s true that we are collectively (per capita) more free, those gains have come at the weakening of the sacredness of certain principles that affect everyone’s freedom, especially in the long run.  I too share the concern that the last two years have accelerated that process in very problematic ways.

Stephen Davies: There’s actually general agreement here with the broad argument David made but some mild disagreement over the (probably unanswerable) question of whether the aggregate of total freedom is greater or larger. That wasn’t the main thrust of David’s piece as I read it though, he was talking about the implications and consequences of the (clearly wrong imho) line that for liberty it’s been downhill all the way since the later 18th century. This is a common line as we all know and I think its really problematic. As David says it means you come over as indifferent to the undoubted gains made in some areas by various groups and so as only concerned with the position of one subgroup. This may well be wrong but impressions matter. This line also shows a deeply conservative sensibility and mindset. If you are libertarian in the sense of not liking large or expansive government but deeply conservative in other ways (e.g on questions of social hierarchy or relations between the sexes or family organisation) then you will feel that it’s been downhill for a long time. …

I think the real problem though with the approach David criticises is the way it leads you to behave with regard to current events. Basically you are going to see yourself as playing defence all the time and probably as fighting a losing battle against an inexorable tide of rising coercive statism. This means you will come over as angry, negative, and despondent, which are not attractive qualities. Also you will let the other side set the agenda and then respond to them rather than taking the initiative. This means you spend all your time criticising and attacking proposals that are liberty hostile instead of spending most of your time advocating positive liberty enhancing changes. …

Finally, if I could put my historian’s hat on for a minute. We need to distinguish between two different measurements – the size of government (as shown by its share of GDP) and it’s extent or range (as shown by the number of activities or areas of life that are considered to be its concern). In the first case there’s a clear growth (we’ve all seen the graph). Even there there’s Tyler Cowen’s argument that a 40% share of a really big GDP is less bad than a 15% share of a much smaller pie. In the second case there’s been considerable gains as well as losses. Religious belief, observance etc was once seen as the central concern of government. Now it’s a private matter. Governments used to concern themselves with things such as dress, diet and public interactions (under sumptuary laws) and intimate details of people’s sexual behaviour (through both church and secular courts). This is no longer true. OTOH there are clearly areas where there’s been a shift in the wrong direction such as mood altering substances and firearms or where there’s a danger of a bad movement (diet for example).

The following comments are prompted by Jacob Hornberger’s response in Reason.

Brad Smith: Hornberger notes that the concept of what it meant to be free was much broader in the 19th century (something Aeon also touched on).  True, some people were not free – but for those who were, the concept had much more meaning.  That’s why I think one can agree with both perspectives, that freedom has both gained and lost ground in important ways.

Implicitly, Hornberger notes the extent to which government was simply not a presence in the lives of most people.  The average free man could go days, weeks, or even months with no direct contact whatsoever with the government. Hornberger might also have noted that a free man didn’t need a passport to travel, or an operator’s license to drive his wagon, or a license plate for his horse.  In most cases, he didn’t need a building permit to add to his home.   Even laws that might be on the books (but were perhaps not so ubiquitous as many think) laid lightly on people – laws against prostitution, sodomy, polygamy and such.  A gay man in the 19th century might fear great social sanction if his predilections or activities became known, but the idea that the government would interfere with his activities was not really an issue at all, whatever the state code might say.  In the 19th century, one certainly didn’t need to license one’s pets, and one was never harangued by government sponsored advertising to properly cook your eggs or spend time with your children.  Today, for white men and for women and minorities, government permeates every aspect of our lives, essentially 24/7/365.

Even as we have expanded the blessings of freedom to more people, society’s concept of freedom seems to have narrowed tremendously, to where even many self described libertarians seem to think a 39% income tax bracket is pretty darn acceptable.  The boundaries of what it means to be free seem to have retreated, and to have retreated enormously.  Thus, even as more people have benefited from freedom, the long term outlook for freedom seems in many ways much more grim.

Keith E. Whittington: The overseer or master exercised lawful, violent coercive force over the slave on a daily basis and did so with the full support and backing, if necessary, of the government.  Moreover, “the government” (such as slave patrols) often consisted precisely of ad hoc groupings of armed civilians operating under the titular direction of a government official.  And the government wasn’t always willing to stand ready protect people from coercive private groups who wanted to enforce social conformity.  So, on the one hand, some prostitutes might be tolerated if they kept to themselves in the wrong part of town, but on the other hand abolitionist newspapers editors could have their houses burned down and Catholics and Protestants could find themselves becoming armed gangs and rioting to secure their respective neighborhoods.  No level of government had an expansive police force in the 19th century, but that just means that social order was generally maintained by other mechanisms.  It doesn’t necessarily mean that people were free from social order.

Mark LeBar: David is certainly right that slavery and the legal subordination of women are blights on the very institutions that were modeling liberty, and especially for those directly affected it is a gross mistake not to recognize what those changes in law and society mean in gains in liberty. But that is an observation that pretty much any decent person, libertarian or not, can be expected to make. There is a distinctiveness to the point of insisting, as Hornberger and Brad do, that the very liberty that is reaching to more people is radically constrained in many ways. We can grant, it seems to me, that many people are freer in significant ways than they once were, while insisting that the point of liberty itself is in danger of getting lost in the process. That, it seems to me, is a case that libertarians are uniquely in position to make.

Eugene Volokh: Prof. LeBar writes, that “what it means to be free is a shadow of its former self.”  But is that right, even as to white males?  Economic regulation, including of a sort that libertarians much oppose, is not a novel matter.  Neither is taxation (which, to be sure, is at a much higher rate than in the past, but I’m not sure that the precise rate is that much a part of “what it means to be free”).  Neither is regulation of trade.  Neither is restriction on freedom of association.  Neither is regulation of guns.  Neither is regulation of personal behavior; alcohol prohibition first emerged in the U.S., for instance, in the mid-1800s, and of course the regulation of sexual behavior was far greater in the past tan today.

What’s more, all these were favored, I think, by people who believed in freedom, which meant to them (as it does to many lovers of freedom today) freedom subject to at least some constraints aimed at protecting the freedom of others and at protecting the well-being of society.  Liberty has long been respected and fought for by Americans; but that the late 1700s and late 1800s were liberty-loving times doesn’t mean that the legal systems of that era were particularly libertarian as we libertarians would want them to be.  “We all declare for liberty; but in using the same word we do not all mean the same thing.”  I don’t think there’s been a past Golden Age of Liberty, in which freedom was generally accepted as meaning something far deeper and broader than what it means today, even for white men.

Steve Horwitz: I do think part of what’s going on here are two cross-cutting conversations.  Or at least two distinct claims.

1.  “Americans, on the whole, are freer than they were, say, 150 years ago.”

2.  “Government is more obtrusive in a moment-to-moment or day-to-day way than 150 years ago.”

I actually think both of these are true.  The enormous restrictions on the freedom of blacks and women (and others) of 150 years ago, though ultimately backed by the force of the state, did not require the state to be, as it were, “in their faces” on a moment-to-moment basis, as slavery and the second-class status of women were simply part of the institutional furniture (and often policed “privately” as Keith noted and as I noted about domestic violence in my earlier comments).

So it seems to me 1 and 2 are both true if one accepts that slavery and patriarchy don’t require the kind of constant and widespread, if small on each margin, government intervention we have in our own time.

We are collectively more free, I would argue, even though the underlying principles that assured the freedom of those who had such freedom 150 years ago have broken down significantly.

Keith Whittington: There is no doubt that you can run through statutes, court decisions and executive actions in the mid-19th century and compare the total to the mid-20th century and conclude that there is more overall government regulation in the latter than the former.  The latter is more voluminous and more detailed.  My only qualification/concern on this would be to note that while the 19th century regulation is less detailed it could be extremely intrusive (Sunday laws literally shut down all commercial, social and transportation activity in large parts of several states during parts of the 19th century) and that formal government activity was supplemented with informal private activity that was equally stultifying.  Without a robust vision of individual self-ownership, to borrow from Mark, that combination of social and governmental regulation could be extremely restrictive of anything we would want to recognize as individual liberty.  The battle for the idea of individual liberty, as well as the legal and social reality of it, was an on-going one throughout the 19th and 20th centuries, and I’m not confident how you net out the debits and credits.

Glen Whitman: Might it be helpful to ask why so many libertarians and conservatives want to say that America used to be more free than it is now?

Aside from sheer misplaced patriotism (which I’m sure is a big piece of the story), I think it comes from the desire to have an answer to the question, so often posed by statists, “When has a laissez-faire system ever worked?”  Rather than saying, “I’m advocating an untested idea,” we’d like to be able to say, “Yes, laissez-faire has indeed worked.”

And is that really wrong to say?  I think that with respect to specific issues, we can say that (a) the U.S. was freer before, and (b) somehow the country didn’t go to hell in a handbasket.  We can say, for instance, that drugs used to be largely legal and we didn’t become a nation of useless addicts.  We can say that labor markets functioned without extensive regulation.  (Of course, blacks and women were often excluded from those markets — but I’d say the markets functioned *despite* their exclusion, not because of it.)  We can say that there wasn’t a welfare state, and private charities and mutual aid societies did a fine job of helping those who fell on hard times.

None of which refutes David’s point.  Some groups were markedly less free, and everyone was less free in certain ways.  But that doesn’t mean we can’t sometimes point to history as a guide, which I suspect is what we really want.

Stephen Davies: I think Glen makes an important point here. Quite apart from the argument about how to quantify or compare different restrictions on liberty at different times and in different areas of lie is the question of rhetoric. Why present the story of liberty in the US as one of a decline from a golden age rather than as a story of slow growth in a positive direction or (my own favourite) one of decline in some areas and growth in others? Apart from the reason he gives I think one reason is the dominance of the jeremiad as a form of political argument. This isn’t confined to libertarians of course, in fact it seems sometimes that every political persuasion thinks things are going to the dogs. I think it’s a bad strategy however as well as being questionable.

I do think Mark and Aeon are on to something however in saying that there’s been a decline in the ideal of self-government or at least in the degree to which it’s articulated and the extent to which it’s understood as a complex idea rather than just a matter of doing your own thing. It was a much thicker concept in times past partly because it was associated with lots of other ideas of psychology (the notion of character) and sociology for example – there was a strongly held idea that you couldn’t be fully self-governing or independent if you were not economically self supporting and so the idea of freedom was tied in with all sorts of other ideas.

If you look outside the US, Dicey made the argument towards the end of the nineteenth century that there’d actually been a movement away from intrusive paternalistic regulation in the earlier nineteenth century followed by the growth of a new kind of intrusive state action after the later 1880s. He ralated this to public opinion which for him meant widely held but often unarticulated notions, beliefs and understandings on the part of the population at large or at least the politically active part of it. This kind of account makes more sense to me, particularly if you combine it with an approach that says that while freedom may have increased for some groups it declined for others and that at any one time it was growing in some areas of life while being in recession elsewhere. Complicated and messy but that’s history for you.

Loren Lomasky: To the extent that a consensus emerges in preceding comments it’s that the losses of liberty to white males over the past century or two are juxtaposed against liberty gains for people of color, women, some marginalized others.  Enjoying somewhat less than a genuinely full consensus is the proposition that on the liberty ledger the minuses of the former class are outweighed by the pluses of the latter.

Because the balance seemed so patent to me, I’ve said nothing previously.  I now wish to add, though, that it is far from obvious that even establishment white males suffered a liberty deficit over this period, and that not just because of gains with regard to social freedom but even with regard to core economic liberty.  Each of the following is an enormous gain for liberty:

1) The capacity to pursue one’s ends with willing others by forming corporations without any need of special legislative grants;

2) Rights of workers to associate freely with each other in pursuit of economic advancement  (unions, etc.)

3) Military services now performed by paid professionals who volunteer for the job rather than via a draft.

I could go on, but these themselves are not trivial.  Each is orders of magnitude more significant on the plus side than, say, Obamacare is on the negative.  An enormous number of state actions piss me off, but not to the extent that they blind me to the evident truth that the history of the United States since 1776 is a history of liberty in ascendance.

David Mayer: Albert Venn Dicey’s Law and Public Opinion in England in the Nineteenth Century does indeed identify a “golden age” for liberty, in (roughly) the middle third of the 19th century, when (according to Dicey’s analysis) classical liberal ideas were the dominant opinion (in terms of public policy).  That was a “golden age,” in Britain, because it was sandwiched in between (again, according to Dicey’s analysis) a period of “Old Tory” paternalism (the early 19th-century, continuing from the 18th century) and a period of “collectivism,” or socialism (with the rise of the late-Victorian-era welfare state in Britain, in the last third of the 19th century and continuing into the 20th century).

U.S. history is quite different.  We were founded as, essentially, a classical liberal nation:  the American Revolution was based on “radical Whig” ideas – the same ideas that so influenced British public policy during its classical liberal reform period (for example, many of the mid-18th-century radical Whigs who were friends of American independence – men like John Cartwright – were also leaders in the Parliamentary reform movement, culminating in the Reform Act of 1832).  But, as I have written elsewhere (see my essay on “Completing the American Revolution” (my Atlas Shrugged 50th anniversary essay) in Journal of Ayn Rand Studies, Spring 2008) the American “liberal” revolution of 1776 was far from complete.  Sure, we founded government explicitly on the protection of individual rights, and we instituted written constitutions to help limit the power of government (a huge advance in the history of world “political science”).  But, of course, as David and other participants in this discussion have noted, we did not consistently implement the “new science of politics” implied by the principles of 1776:  not only did we retain the institution of slavery and denied full legal equality to women but, in many ways, we retained in the law (mostly in the English common law as received and only slightly modified in American law) much of the older, paternalistic role of government that England had had for centuries and that had been brought over to the English colonies in America.  (One simple example:  the notion that government may regulate prices of businesses “affected with a public interest” – a concept from English law (one that in the early 17th century was used by apologists for royal absolutism to justify various kinds of economic regulations by the King’s government) not only survived in early American law but was used by the U.S. Supreme Court, in its 1877 decision in Munn v. Illinois, to justify government fixing of maximum rates for certain businesses – and ultimately, in the 20th century, to justify all sorts of needless government licensing and other restrictions on businesses.)

So, it’s quite true (as several participants in the discussion have noted) that there’s not been really any single “golden age” for liberty in the history of the United States.  Depending on how you measure it (by the size of government, the magnitude of taxes and spending, or the variety of forms of “legal paternalism,” for example), or what aspect you’re focused on (“economic” liberty versus “personal” liberty, for example, notwithstanding the artificiality of that distinction), or whose liberty you’re focusing on (business owners versus workers and/or consumers, men vs. women, whites vs. blacks, native-born Americans vs. immigrants, etc.), there’s no clear pattern:  liberty (as a whole) is at once on the ascendance, on the decline, and staying about even, in the American “mixed bag” of freedom/paternalism.  But (if I might be permitted to return to the main point of my original post) there’s little doubt that government regulation of business – government interference with the free market – at all levels, and especially at the national level, has been steeply rising, and thus a very important aspect of liberty (economic freedom) has been steeply falling, since the rise of the “progressive” regulatory/ welfare state in the early 20th century.  That part of American history (the past century or so) most closely resembles the age of “collectivism,” or socialism, that Dicey identified in Britain in the latter third of the 19th century.

Was There a Libertarian Golden Age? is a post from Cato @ Liberty - Cato Institute Blog

Former secretary of state Madeleine K. Albright writes in Parade magazine that 20 years after the Berlin Wall, “We Must Keep Freedom Alive.” A commendable sentiment, but the article is a bit confused, notably in that it seems to use “freedom” and “democracy” interchangeably. But as Fareed Zakaria and Tom Palmer, among others, have demonstrated, they’re not the same thing. Freedom is the right and ability of individuals to make the important decisions about their lives. Democracy — especially constitutional democracy, with separation of powers, the rule of law, and constraints on government — can be the most effective way to protect liberty. But democracy isn’t liberty, and we shouldn’t confuse the relationship.

Albright writes:

democracy is a prerequisite to economic growth.

That seems clearly, spectacularly wrong. Consider some historical cases of great economic growth: Hong Kong, Singapore, and Taiwan grew rapidly in recent decades without being democracies. (And I would say that that growth led to Taiwan’s becoming a democracy.) Beyond that, look at the United States and Great Britain during the unprecedented growth of the 19th century; neither was a democracy by modern standards. And of course China has been experiencing rapid growth in the past 30 years without democracy.

But look at Albright’s complete sentence:

In fact, democracy is a prerequisite to economic growth, which only flourishes when minds are encouraged to produce, invent, and explore.

That is a much stronger hypothesis. Indeed economic growth flourishes “when minds are encouraged to produce, invent, and explore.” And the condition in which that happens is actually called freedom, not democracy. So perhaps the problem is just that Albright is using the terms “freedom” and “democracy” loosely. And if by democracy she means the modern Western conception of a system of individual rights, private property, and market exchange protected by a limited constitutional government featuring divided powers, an independent judiciary, and free and independent media, then it would be true that that kind of “democracy” is a solid foundation for economic growth — though not a prerequisite, as the examples above demonstrate.

The relationships between the rule of law, popular participation in government, constraints on government, protection of property, the market economy, and economic growth deserve serious study, and that study should start with conceptual clarity.

Madeleine Albright’s Confusion is a post from Cato @ Liberty - Cato Institute Blog

Last night I spoke at “The Little Idea,” a mini-lecture series launched in New York by Ari Melber of The Nation and now starting up here in D.C., on the incredibly civilized premise that, instead of some interminable panel that culminates in a series of audience monologues-disguised-as-questions, it’s much more appealing to have a speaker give a ten-minute spiel, sort of as a prompt for discussion, and then chat with the crowd over drinks.

I’d sketched out a rather longer version of my remarks in advance just to make sure I had my main ideas clear, and so I’ll post them here, as a sort of preview of a rather longer and more formal paper on 21st century surveillance and privacy that I’m working on. Since ten-minute talks don’t accommodate footnotes very well, I should note that I’m drawing for a lot of these ideas on the excellent work of legal scholars Lawrence Lessig and Daniel Solove (relevant papers at the links). Anyway, the expanded version of my talk after the jump:

Since this is supposed to be an event where the drinking is at least as important as the talking, I want to begin with a story about booze—the story of a guy named Roy Olmstead.  Back in the days of Prohibition, Roy Olmstead was the youngest lieutenant on the Seattle police force. He spent a lot of his time busting liquor bootleggers, and in the course of his duties, he had two epiphanies. First, the local rum runners were disorganized—they needed a smart kingpin who’d run the operation like a business. Second, and more importantly, he realized liquor smuggling paid a lot better than police work.

So Roy Olmstead decided to change careers, and it turned out he was a natural. Within a few years he had remarried to a British debutante, bought a big white mansion, and even ran his own radio station—which he used to signal his ships, smuggling hooch down from Canada, via coded messages hidden in broadcasts of children’s bedtime stories. He did retain enough of his old ethos, though, that he forbade his men from carrying guns. The local press called him the Bootleg King of Puget Sound, and his parties were the hottest ticket in town.

Roy’s success did not go unnoticed, of course, and soon enough the feds were after him using their own clever high-tech method: wiretapping. It was so new that they didn’t think they needed to get a court warrant to listen in on phone conversations, and so when the hammer came down, Roy Olmstead challenged those wiretaps in a case that went all the way to the Supreme Court—Olmstead v. U.S.

The court had to decide whether these warrantless wiretaps had violated the Fourth Amendment “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” But when the court looked at how a “search” had traditionally been defined, they saw that it was tied to the common law tort of trespass. Originally, that was supposed to be your remedy if you thought your rights had been violated, and a warrant was a kind of shield against a trespass lawsuit. So the majority didn’t see any problem: “There was no search,” they wrote, “there was no seizure.” Because a search was when the cops came on to your property, and a seizure was when they took your stuff. This was no more a search than if the police had walked by on the sidewalk and seen Roy unpacking a crate of whiskey through his living room window: It was just another kind of non-invasive observation.

So Olmstead went to jail, and came out a dedicated evangelist for Christian Science. It wasn’t until the year after Olmstead died, in 1967, that the Court finally changed its mind in a case called Katz v. U.S.: No, they said, the Fourth Amendment protects people and not places, and so instead of looking at property we’re going to look at your reasonable expectation of privacy, and on that understanding, wiretaps are a problem after all.

So that’s a little history lesson—great, so what? Well, we’re having our own debate about surveillance as Congress considers not just reauthorization of some expiring Patriot Act powers, but also reform of the larger post-9/11 surveillance state, including last year’s incredibly broad amendments to the Foreign Intelligence Surveillance Act. And I see legislators and pundits repeating two related types of mistakes—and these are really conceptual mistakes, not legal mistakes—that we can now, with the benefit of hindsight, more easily recognize in the logic of Olmstead: One is a mistake about technology; the other is a mistake about the value of privacy.

First, the technology mistake. The property rule they used in Olmstead was founded on an assumption about the technological constraints on observation. The goal of the Fourth Amendment was to preserve a certain kind of balance between individual autonomy and state power. The mechanism for achieving that goal was a rule that established a particular trigger or tripwire that would, in a sense, activate the courts when that boundary was crossed in order to maintain the balance. Establishing trespass as the trigger made sense when the sphere of intimate communication was coextensive with the boundaries of your private property. But when technology decoupled those two things, keeping the rule the same no longer preserved the balance, the underlying goal, in the same way, because suddenly you could gather information that once required trespass without hitting that property tripwire.

The second and less obvious error has to do with a conception of the value of privacy, and a corresponding idea of what a privacy harm looks like.  You could call the Olmstead court’s theory “Privacy as Seclusion,” where the paradigmatic violation is the jackboot busting down your door and disturbing the peace of your home. Wiretapping didn’t look like that, and so in one sense it was less intrusive—invisible, even. In another sense, it was more intrusive because it was invisible: Police could listen to your private conversations for months at a time, with you none the wiser. The Katz court finally understood this; you could call their theory Privacy as Secrecy, where the harm is not intrusion but disclosure.

But there’s an even less obvious potential harm here. If they didn’t need a warrant, everyone who made a phone call would know that they could whenever they felt like it. Wiretapping is expensive and labor intensive enough that realistically they can only be gathering information about a few people at a time.  But if further technological change were to remove that constraint, then the knowledge of the permanent possibility of surveillance starts having subtle effects on people’s behavior—if you’ve seen the movie The Lives of Others you can see an extreme case of an ecology of constant suspicion—and that persists whether or not you’re actually under surveillance.  To put it in terms familiar to Washingtonians: Imagine if your conversations had to be “on the record” all the time. Borrowing from Michel Foucault, we can say the privacy harm here is not (primarily) invasion or disclosure but discipline. This idea is even embedded in our language: When we say we want to control and discipline these police powers, we talk about the need for over-sight and super-vision, which are etymologically basically the same word as sur-veillance.

Move one more level from the individual and concrete to the abstract and social harms, and you’ve got the problem (or at least the mixed blessing) of what I’ll call legibility. The idea here is that the longer term possibilities of state control—the kinds of power that are even conceivable—are determined in the modern world by the kind and quantity of information the modern state has, not about discrete individuals, but about populations.  So again, to reach back a few decades, the idea that maybe it would be convenient to round up all the Americans of Japanese ancestry—or some other group—and put them in internment camps is just not even on the conceptual menu unless you have a preexisting informational capacity to rapidly filter and locate your population that way.

Now, when we talk about our First Amendment right to free speech, we understand it has a certain dual character: That there’s an individual right grounded in the equal dignity of free citizens that’s violated whenever I’m prohibited from expressing my views. But also a common or collective good that is an important structural precondition of democracy. As a citizen subject to democratic laws, I have a vested interest in the freedom of political discourse whether or not I personally want to say–or even listen to–controversial speech. Looking at the incredible scope of documented intelligence abuses from the 60s and 70s, we can add that I have an interest in knowing whether government officials are trying to silence or intimidate inconvenient journalists, activists, or even legislators. Censorship and arrest are blunt tactics I can see and protest; blackmail or a calculated leak that brings public disgrace are not so obvious. As legal scholar Bill Stuntz has argued, the Founders understood the structural value of the Fourth Amendment as a complement to the First, because it is very hard to make it a crime to pray the wrong way or to discuss radical politics if the police can’t arbitrarily see what people are doing or writing in their homes.

Now consider how we think about our own contemporary innovations in search technology. The marketing copy claims PATRIOT and its offspring “update” investigative powers for the information age—but what we’re trying to do is stretch our traditional rules and oversight mechanisms to accommodate search tools as radically novel now as wiretapping was in the 20s. On the traditional model, you want information about a target’s communications and conduct, so you ask a judge to approve a method of surveillance, using standards that depend on how intrusive the method is and how secret and sensitive the information is. Constrained by legal rulings from a very different technological environment, this model assumes that information held by third parties—like your phone or banking or credit card information—gets very little protection, since it’s not really “secret” anymore. And the sensitivity of all that information is evaluated in isolation, not in terms of the story that might emerge from linking together all the traces we now inevitable leave in the datasphere every day.

The new surveillance typically seeks to observe information about conduct and communications in order to identify targets. That may mean using voiceprint analysis to pull matches for a particular target’s voice or a sufficiently unusual regional dialect in a certain area. It may mean content analysis to flag e-mails or voice conversations containing known terrorist code phrases. It may mean social graph analysis to reidentify targets who have changed venues by their calling patterns.  If you’re on Facebook, and a you and bunch of your friends all decide to use fake names when you sign up for Twitter, I can still reidentify you given sufficient computing power and strong algorithms by mapping the shape of the connections between you—a kind of social fingerprinting. It can involve predictive analysis based on powerful electronic “classifiers” that extract subtle patterns of travel or communication or purchases common to past terrorists in order to write their own algorithms for detecting potential ones.

Bracket for the moment whether we think some or all of these methods are wise.  It should be crystal clear that a method of oversight designed for up front review and authorization of target-based surveillance is going to be totally inadequate as a safeguard for these new methods.  It will either forbid them completely or be absent from the parts of the process where the dangers to privacy exist. In practice what we’ve done is shift the burden of privacy protection to so-called “minimization” procedures that are meant to archive or at least anonymize data about innocent people. But those procedures have themselves been rendered obsolete by technologies of retrieval and reidentification: No sufficiently large data set is truly anonymous.

And realize the size of the data sets we’re talking about. The FBI’s Information Data Warehouse holds at least 1.5 billion records, and growing fast, from an array of private and government sector sources—some presumably obtained using National Security Letters and Patriot 215 orders, some by other means. Those NSLs are issued by the tens of thousands each year, mostly for information about Americans.  As of 2006, we know “some intelligence sources”—probably NSA’s—were  growing at a rate of 4 petabytes, that’s 4 million Gigabytes—each month.  Within about five years, NSA’s archive is expected to be measured in Yottabytes—if you want to picture one Yottabyte, take the sum total of all data on the Internet—every web page, audio file, and video—and multiply it by 2,000. At that point they will have to make up a new word for the next largest unit of data.  As J. Edgar Hoover understood all too well, just having that information is a form of power. He wasn’t the most feared man in Washington for decades because he necessarily had something on everyone—though he had a lot—but because he had so much that you really couldn’t be sure what he had on you.

There is, to be sure, a lot to be said against the expansion of surveillance powers over the past eight years from a more conventional civil liberties perspective.  But we also need to be aware that if we’re not attuned to the way new technologies may avoid our would tripwires, if we only think of privacy in terms of certain familiar, paradigmatic violations—the boot in the door—then like the Olmstead court, we may render ourselves blind to equally serious threats that don’t fit our mental picture of a privacy harm.

If we’re going to avoid this, we need to attune ourselves to the ways modern surveillance is qualitatively different from past search tools, even if words like “wiretap” and “subpoena” remain the same. And we’re going to need to stop thinking only in terms of isolated violations of individual rights, but also consider the systemic and structural effects of the architectures of surveillance we’re constructing.

Some Thoughts on the New Surveillance is a post from Cato @ Liberty - Cato Institute Blog

It’s fair to say that civil liberties and limited government were not high on President George W. Bush’s priorities list.  Indeed, they probably weren’t even on the list.  Candidate Barack Obama promised “change” when he took office, and change we have gotten.  The name of the president is different.

Alas, the policies are much the same.  While it is true that President Obama has not made the same claims of unreviewable monarchical power for the chief executive–an important distinction–he has continued to sacrifice civil liberties for dubious security gains.

Reports the New York Times:

Civil libertarians recently accused President Obama of acting like former President George W. Bush, citing reports about Mr. Obama’s plans to detain terrorism suspects without trials on domestic soil after he closes the Guantánamo prison.

It was only the latest instance in which critics have argued that Mr. Obama has failed to live up to his campaign pledge “to restore our Constitution and the rule of law” and raised a pointed question: Has he, on issues related to fighting terrorism, turned out to be little different from his predecessor?

The answer depends on what it means to act like Mr. Bush.

As they move toward completing a review of their options for dealing with the detainees, Obama administration officials insist that there is a fundamental difference between Mr. Bush’s approach and theirs. While Mr. Bush claimed to wield sweeping powers as commander in chief that allowed him to bypass legal constraints when fighting terrorism, they say, Mr. Obama respects checks and balances by relying on — and obeying — Congressional statutes.

“While the administration is considering a series of options, a range of options, none relies on legal theories that we have the inherent authority to detain people,” Robert Gibbs, the White House press secretary, said this week in response to questions about the preventive detention report. “And this will not be pursued in that manner.”

But Mr. Obama’s critics say that whether statutory authorization exists for his counterterrorism policies is just a legalistic point. The core problem with Mr. Bush’s approach, they argue, was that it trammeled individual rights. And they say Mr. Obama’s policies have not changed that.

“President Obama may mouth very different rhetoric,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “He may have a more complicated process with members of Congress. But in the end, there is no substantive break from the policies of the Bush administration.”

The primary beneficiaries of constitutional liberties are not terrorist suspects, but the rest of us.  The necessary trade-offs are not always easy, but the president and legislators must never forget that it is a free society they are supposed to be defending.

Civil Liberties and President Barack W. Bush? is a post from Cato @ Liberty - Cato Institute Blog

Facing mounting international pressure to reinstall a would-be despot, the provisional government of Honduras is taking a very wrong turn by asking the National Assembly to temporarily extend curfew powers and limit basic individual liberties.

The government claims that the measures, which will be in place for 72 hours, are justified to prevent any civil unrest given the imminent return of former president Manuel Zelaya to the country.  However, the provisional authorities are actually undermining the rule of law and constitutional liberties that they claimed to be protecting when removing Zelaya from power last Sunday.

The individual rights and liberties that would be affected: the inviolability of homes, the right to protest peacefully, the guarantee against being held for more than 24 hours without charges, and the freedom to move around the country undisturbed.

These actions are unjustified. By moving to take away civil liberties from Hondurans, the provisional government undercuts its moral standing vis-à-vis the increasingly autocratic rule of Manuel Zelaya it came to replace. Even if these measures are meant to be temporary, history shows that once a government claims emergency powers, it is very hard to completely relinquish them once the “emergency” is gone.

Moreover, these restrictions do little service to the argument of the new Honduran government that Zelaya’s removal was not a military coup d’état. Having the army policing the streets and curbing the free movement of people and their right to protest peacefully gives the impression that the military is in charge and calling the shots.

The Honduran government should scrap these measures and reassure the population that their individual rights and liberties guaranteed under the Honduran constitution will be fully respected.

New Government of Honduras Takes a Wrong Turn is a post from Cato @ Liberty - Cato Institute Blog

A thorough new study of 30 nations from the Institut Constant de Rebecque in Switzerland reveals serious shortcomings in America’s tax system.

The report, entitled “Tax burden and individual rights in the OECD: An International Comparison,” creates a Tax Oppression Index based on three key variables: the overall tax burden, public governance, and taxpayer rights. The good news is that the United States has a comparatively low aggregate tax burden, though America’s score on this measure would be much better in the absence of a punitively high corporate tax rate. The bad news is that corruption and inefficiency in Washington drag down America’s score for public governance. The ugly news is that America has a very low rating for protecting taxpayer rights — largely because politicians have tilted the playing field to favor the IRS, including the fact that taxpayers lose the presumption of innocence provided in the Constitution.

Here is a brief description of the study:

The OECD’s campaign against “harmful tax competition” and “tax havens” has overshadowed the essential issue, namely the important roles that both tax competition and “tax havens” play for capital preservation and formation, leading to higher prosperity and better protection of individual rights throughout the OECD.

The tax oppression index is based on 18 representative criteria measuring fiscal attractiveness, public governance and financial privacy in the 30 member states of the OECD. Switzerland appears as the country with the lowest tax oppression — due to a relatively low tax burden and a more [classical] liberal institutional order, including its citizens’ right to veto legislation, political decentralization, and protection of financial privacy. Germany and France, on the other hand, whose governments have supported the OECD’s efforts, are among the most questionable states in terms of safeguarding their residents’ individual rights.

…The tax oppression index evaluates the 30 OECD member states on three complementary dimensions quantified by 18 representative criteria, on the basis of OECD and World Bank data. The index enables relevant conclusions about the tax burden and individual rights among those countries.

Switzerland earns the top ranking in the report, followed by Luxembourg, Austria, Canada, and Slovakia. Italy and Turkey have the worst systems, followed by Poland, Mexico, and Germany. The United States is tied for 19th, behind the welfare states of Scandinavia. With Obama promising to raise tax rates and increase the power of the IRS, it may just be a matter of time before the United States is competing for the world’s most oppressive tax regime.

Tax Oppression Index Ranks America in Bottom Half of Industrialized Nations is a post from Cato @ Liberty - Cato Institute Blog

Many people would agree that modern-day Somalia represents a Hobbesian state of nature. But could anarchy strengthen Somalia’s private sector? This article is certainly very old, but I came across it yesterday and thought the argument would be of interest to political theorists and classical liberals:

…local businesspeople find it easier to do business in a country where there is no government. “There is no need to obtain licences and, in contrast with many other parts of Africa, there is no state-run monopoly that prevents new competitors setting up. Keeping price low is helped by the absence of any need to pay taxes.”

Of course, the absence of a stable and legitimate political and judicial system, compounded by unyielding internecine violence, means individual and private property rights can never be fully protected and we aren’t likely to see foreign businesses flocking to this chaotic country in the foreseeable future. Generally speaking, the proper role of government is to protect individual rights. But the proper role of our government — abroad — should be limited to instances when our national sovereignty or territorial integrity is at risk.  As exemplified in Somalia, America’s attempts to stabilize failed states or pacify foreign populations usually fail, exacerbate already disastrous situations, and are, in principle, gratuitous abuses of American power [See: the calamitous U.S.-backed Ethiopian invasion of Somalia].

Adam Smith Goes to Somalia: “Competition Keeps Prices Low” is a post from Cato @ Liberty - Cato Institute Blog