The October, 2011 issue of Cato Unbound tackles some of the foundational questions of political theory: how do we recognize justice? If it’s not utopia, is it still good enough to command our respect? Or allegiance? How do we know? Who are the members of the political community? How are they chosen? What counts as a “reason” for political action?

If all of this sounds abstract, rest assured that lead essayist Gerald Gaus is both lucid and engaging. He writes:

Liberalism’s founding insight was the recognition in the sixteenth and seventeenth centuries that controversial religious truths could not be the basis of coercive laws and public policies. The task is now to apply this insight to philosophizing about justice itself. This is an extraordinarily difficult lesson for many. Can it really be that I should not endeavor to ensure that my society conforms to my “knowledge” of justice? (Compare: can it really be that my “knowledge” of God’s will should not structure the social order?)

Gaus argues for a “range of justice”—a range of theories that, while perhaps not perfect by anyone’s standards, are still close enough to demand our respect, especially given the large benefits that come from freely engaged social cooperation.

Discussing with him this month are a panel of three other prominent social theorists. Richard Arneson argues that we tolerate one another not because we’re all pretty close to rational (clearly a lot of us aren’t!)—but because intolerance breeds atrocity. Eric Mack argues that classical liberalism is no mere contending sect; it is the right approach to politics, because it offers the greatest leeway for individuals to choose their own ends in life. And Peter J. Boettke argues that any social system that neglects private property will fail to produce a cooperative society in any sense; without market exchange, individuals will fall into strife over scarce resources.

Obviously I won’t be able to do justice to their arguments here, so please do check out Cato Unbound, where discussion will continue through the end of the month.

This Month at Cato Unbound: A Little Foundational Theory is a post from Cato @ Liberty - Cato Institute Blog

• Please join us this Wednesday, May 25 at 2:00 p.m. Eastern for a Policy Forum with former Minnesota governor Tim Pawlenty, “Limiting Government: What Washington Can Learn from Minnesota,” with opening remarks from Cato founder and president Edward H. Crane. Governor Pawlenty received an “A” grade on Cato’s biennial “Fiscal Policy Report Card on America’s Governors: 2010,” by Cato director of tax policy studies Chris Edwards. Complimentary registration is required of all attendees by noon Eastern tomorrow, Tuesday, May 24–seating is limited and not guaranteed. If you cannot join us in person, please join us on the web for a live video stream of the event.
• Washington’s use of tax dollars to strong-arm states into adopting national standards and tests doesn’t leave much room for state choice in education.
• Did you know Cato has a series of 60 and 90-second radio ads about the Constitution that you can download for free?
• “Unfortunately, suspicions about private property as a fundamental human right survive to this day, to the detriment of the coherence of human rights as a guiding political concept, and of fundamental freedoms and prosperity.” Read the rest of the new Cato Policy Report here.
• What will happen if we do nothing, and let Medicaid, Medicare, and Social Security continue to grow?

Monday Links is a post from Cato @ Liberty - Cato Institute Blog

Awful ruling handed down by the Supreme Court this morning in a case called Kentucky v. King [pdf].  The case concerns the power to break into a person’s home without the occupant’s consent and without a warrant.  Our homes are supposed to be our castles–so the general rule is that the police must get an independent judge to approve a warrant application before the door can be forced open.  There are a few common sense exceptions to the general rule.  For example, if someone is screaming for help, the police can enter.  Also if the police are in hot pursuit, they can follow the suspect on to private property and into a home under such circumstances.  Today’s ruling expands the exceptions to situations where the police suspect that the occupants of a house may be destroying contraband such as marijuana, cocaine, or other narcotics.

In this case, the police were after a drug dealer after he fled from a controlled-buy transaction.  The dealer entered some apartment but the police were unsure of the unit number.  As the police got closer, they could smell marijuana coming from a nearby apartment.  Instead of posting an officer nearby and applying for a warrant, they decided to bang on the door, shouting “Police!”  Hearing some rustling inside, the police broke down the door so evidence could not be destroyed.  The occupants were arrested on drug charges and they later challenged the legality of the police entry and search.  (As it happens, the dealer the police were trying to capture was found in another apartment.)

The lower courts have generally frowned on what they describe as exigencies manufactured by police conduct, but the Supreme Court has now overturned those lower court precedents by a 8-1 vote.  In dissent, Justice Ginsburg asked the right question: “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”  And the unfortunate answer to the question is, a lot less secure.   

For more on the power to search, go here and here.

Kentucky v. King is a post from Cato @ Liberty - Cato Institute Blog

Politico Arena asks for comments today on President Obama’s Ground Zero Mosque remarks:

My response:

Speaking expressly “as President” last evening [Friday], Mr. Obama has weighed in on the Ground Zero Islamic mosque controversy — and blatantly misstated it.

This controversy has nothing to do with Muslims having “the same right to practice their religion as anyone else in this country” or with their ”right to build a place of worship and a community center on private property in lower Manhattan,” as Obama put it. Nor does it have anything to do with the First Amendment. Rather, the issue is simply one of common decency and sensitivity to the feelings of others.

The president is right about one thing: Ground Zero is “hallowed ground.” It is the ground where some 3,000 people of all faiths lost their lives in a brutal attack by radical Muslims acting in the name of their religion, however distorted their beliefs may have been. Those who lost loved ones that day, to say nothing of the rest of us, cannot be indifferent to that fact — as those who support the mosque’s location near Ground Zero seem to be.

Obama on the Ground Zero Mosque 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

Washington Post columnist Dana Milbank chides Dick Armey today for having said that socialism caused starvation at Jamestown.  “Who knew they had socialists in 1607?” Milbank asks.

Actually, lots of people know this. As I wrote three years ago:

Four hundred years ago today 105 men and boys disembarked from three ships and established the first permanent English settlement in North America. They built a fort along what they called the James River, in honor of their king.

The land was lush and fertile, yet within three years most of the colonists died during what came to be known as “the starving time.” Only the establishment of private property saved the Jamestown colony.

What went wrong? There were the usual hardships of pioneers far from home, such as unfamiliar diseases. There were mixed relations with the Indians already living in Virginia. Sometimes the Indians and settlers traded, other times armed conflicts broke out. But according to a governor of the colony, George Percy, most of the colonists died of famine, despite the “good and fruitful” soil, the abundant deer and turkey, and the “strawberries, raspberries and fruits unknown” growing wild.

The problem was the lack of private property. As Tom Bethell writes in his book The Noblest Triumph: Property and Prosperity through the Ages, “The colonists were indolent because most of them were indentured servants, expected to toil for seven years and contribute the fruits of their labor to the common store.”

Understandably, men who don’t benefit from their hard work tend not to work very hard.

But a new governor arrived and instituted a system of private property.

And then, the Virginia historian Matthew Page Andrews wrote, “As soon as the settlers were thrown upon their own resources, and each freeman had acquired the right of owning property, the colonists quickly developed what became the distinguishing characteristic of Americans – an aptitude for all kinds of craftsmanship coupled with an innate genius for experimentation and invention.”

John Rolfe, the husband of Pocahontas, said that once private property was instituted, men could engage in “gathering and reaping the fruits of their labors with much joy and comfort.”

I gotta go with Milbank, not Armey, though, on another point of contention: Alexander Hamilton was a big-government man. At least by the standards of 1787; no doubt he’d be appalled at the size, scope, and power of today’s federal government, though he might approve the imperial trappings and authority of modern presidents.

Socialism at Jamestown is a post from Cato @ Liberty - Cato Institute Blog

Today, the Supreme Court heard argument in Stop the Beach Renourishment v. Florida Department of Environmental Protection, which is a Fifth Amendment Takings Clause challenge involving beachfront property (that I previously discussed here).

Essentially, Florida’s ”beach renourishment” program created more beach but deprived property owners of the rights they previously had — exclusive access to the water, unobstructed view, full ownership of land up to the “mean high water mark,” etc. That is, the court turned beachfront property into “beachview” property.  After the property owners successfully challenged this action, the Florida Supreme Court – “SCOFLA” for those who remember the Bush v. Gore imbroglio – reversed the lower court (and overturned 100 years of common property law), ruling that the state did not owe any compensation, or even a proper eminent domain hearing.

As Cato adjunct scholar and Pacific Legal Foundation senior staff attorney Timothy Sandefur noted in his excellent op-ed on the case in the National Law Journal, “[T]he U.S. Constitution also guarantees every American’s right to due process of law and to protection of private property. If state judges can arbitrarily rewrite a state’s property laws, those guarantees would be meaningless.”

I sat in on the arguments today and predict that the property owners will suffer a narrow 4-4 defeat.  That is, Justice Stevens recused himself — he owns beachfront property in a different part of Florida that is subject to the same renourishment program — and the other eight justices are likely to split evenly.  And a tie is a defeat in this case because it means the Court will summarily affirm the decision below without issuing an opinion or setting any precedent.

By my reckoning, Justice Scalia’s questioning lent support to the property owners’ position, as did Chief Justice Roberts’ (though he could rule in favor of the “judicial takings” doctrine in principle but perhaps rule for the government on a procedural technicality here).  Justice Alito was fairly quiet but is probably in the same category as the Chief Justice.  Justice Thomas was typically silent but can be counted on to support property rights.  With Justices Ginsburg, Breyer, and Sotomayor expressing pro-government positions, that leaves Justice Kennedy, unsurprisingly, as the swing vote.  Kennedy referred to the case as turning on a close question of state property law, which indicates his likely deference to SCOFLA.

For more analysis of the argument, see SCOTUSblog.  Cato filed an amicus brief supporting the land owners here, and earlier this week I recorded a Cato Podcast to that effect. Cato also recently filed a brief urging the Court to hear another case of eminent domain abuse in Florida, 480.00 Acres of Land v. United States.

Likely Supreme Court Tie Would Be a Loss to Property Owners is a post from Cato @ Liberty - Cato Institute Blog

The Washington Post has an interesting story today on the program of the Cuban government to transfer idle state-owned land to private farmers so they can resurrect the dilapidated agricultural sector on the communist island. As Ian Vásquez and I wrote in the chapter on U.S. policy toward Cuba in Cato Handbook for Policymakers, before this reform, the agricultural productivity of Cuba’s tiny non-state sector (comprising cooperatives and small private farmers) was already 25 percent higher than that of the state sector.

At stake is an issue of incentives. Collective land doesn’t give farmers an incentive to work hard and be productive, since the benefits of their labor go to the government who distributes them (in theory) evenly among everyone, regardless of who worked hard or not. While with private property, “The harder you work, the better you do,” as a Cuban farmer said in the Post story.

The country’s ruler, Raúl Castro, recently declared that “The land is there, and here are the Cubans! Let’s see if we can get to work or not, if we produce or not… The land is there waiting for our sweat.” However, it’s not a matter of just having land and lots of people. It’s also a matter of incentives to produce. Failing to see this, as in the case of Cuba’s failed communist model, is a recipe for failure.

The Land Is There, the Cubans Are There, but the Incentives Are Not is a post from Cato @ Liberty - Cato Institute Blog

• Seven ideas for dealing with North Korea.

• Paging the Fifth Amendment: Florida high court rules that the state can seize your private property without giving you a dime.

• How to cut the deficit by spending less. It sounds crazy, but it just might work.

• Why stop at “Cash for Clunkers”? Why not have a “Cash for Everything” program? Because it was a dumb idea to begin with, that’s why.

• Podcast: When Germany enacted their own “Cash for Clunkers” scheme, some of the old vehicles were illegally exported and sold out of the country before being destroyed. Could it happen here? Would that be so bad?

Monday Links is a post from Cato @ Liberty - Cato Institute Blog

Whether the federal government should be building a $58 million memorial to the heroic passengers on United flight 93, who thwarted the plot to crash a fourth plane on September 11, is a question that has yet to be asked in Washington.  But it clearly is improper for the authorities to acquire land for the memorial through eminent domain.

Thankfully, Washington has backed down from its plans to seize the property. 

Reports Tony Norman of the Pittsburgh Post-Gazette:

Yesterday, the U.S. government announced that it wouldn’t resort to eminent domain to seize land in Somerset, Pa for the proposed Flight 93 memorial. This is good news for fans of the concept of private property. When the National Park Service announced that it would seize the land from the seven property owners for the memorial rather than pay the landowners what they were asking for the lots, you didn’t have to be a libertarian to know something unjust was happening. The National Park Service was engaging in behavior that was fundamentally un-American, anti-democratic and an affront to the concept of property rights. Sure, the U.S. Supreme Court affirmed the government’s right to do such a thing in the name of the public good, but it was questionable whether a memorial to a plane load of heroes that crashed in a field on 9-11 outweighs the rights of the current owners to use the land as they see fit. Fortunately, the government has declined to grab the final 500 acres it needs for its $58 million, 2,200 acre 9-11 memorial and national park.

The United 93 passengers embody the best of America.  Commemorating their heroism should be done in a manner that best reflects the values they were defending.

Good News: No Eminent Domain for Flight 93 Memorial is a post from Cato @ Liberty - Cato Institute Blog