Madeleine Albright’s Confusion
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.
Filed under: International Economics and Development; Political Philosophy
Michigan Court Inexplicably Tosses Suit, Endorses Forcible Enlistment of Day-Care Workers into the State Government
When lawyers and other commentators say that a court did not properly explain its decision, it’s typically for hyperbolic effect. But, in a bizarre move, a court in the failed great state of Michigan has dismissed an economic liberty case brought by our friends at the Mackinac Center Legal Foundation for reasons the court quite literally did not explain. The court simply denied the plaintiffs’ complaint and that was that.
Home-based day care owners Sherry Loar, Michelle Berry, and Paulette Silverson have all been taxed by the Michigan Department of Human Services because, according to the state, they are somehow employees of the state and (further!) must pay union dues. because this baseless assertion comes directly from the state DHS, an executive department, among the significant constitutional objections to the case presents separation of power problems. (Ok, I haven’t studied the Michigan Constitution, but I assume they separate their powers there.) Enough ridiculous laws are passed by state legislatures — more than 40,000 last year alone – we don’t need state executive agencies getting into the act.
Yet, the Michigan Court of Appeals has nothing at all to say about the case.
Inexplicable — and unpardonable.
Filed under: Government and Politics; Law and Civil Liberties
Big Out-of-Control Government Has Had Better Days at the Supreme Court
This morning at the Supreme Court, the federal government argued for the continued existence of the Public Company Accounting Oversight Board (PCAOB, pronounced peek-a-boo) — and by extension the nefarious financial regulatory scheme known as Sarbanes-Oxley. Cato filed a brief supporting a free market advocacy group and an accounting firm, who sued PCAOB for violating both the Appointments Clause and general constitutional separation-of-powers principles.
Passed with scant deliberation in the wake of the Enron and WorldCom scandals, the Sarbanes-Oxley Act of 2002 established PCAOB to oversee the accounting practices of the nation’s public companies. As my piece with Cato legal associate Travis Cushman details today, PCAOB enjoys the rare authority to make its own laws, collect taxes, inspect records, prosecute infractions, make judgments, and impose sanctions.
Traditionally, independent agencies that serve such executive functions must be accountable to the president. PCAOB members, however, may only be removed “for cause” by members of the Securities and Exchange Commission, who in turn may only be removed “for cause” by the president. I previously blogged about the case, Free Enterprise Fund v. PCAOB, here, here, and here.
As far as how the argument went, I think the forces of limited constitutional government have eked out a 5-4 victory. Justices Ginsburg, Breyer, and Sotomayor were extremely hostile to the challengers’ argument, while the Chief Justice and Justices Scalia and Alito were supportive. (Scalia at one point joked that he had no less power than the president — meaning not very much — to influence PCAOB.) Justice Stevens only spoke up once but seemed to show a leaning towards the government position. Justice Thomas, while remaining silent, can be expected to support the view of D.C. Circuit Judge Brett Kavanaugh — whose blistering yet scholarly dissent likely prompted the Court to take up the case.
And so the ruling rests, as often happens with the most interesting cases, on the shoulders of Justice Kennedy. I remain cautiously optimistic that Kennedy will decide to uphold constitutional checks and balances and strike down what has become an unholy new branch of government.
Two curious notes from the argument: 1. Petitioners’ counsel Michael Carvin referenced Cato’s brief in discussing PCAOB’s overreach internationally — seeking to regulate even foreign accounting standards – without oversight from the State Department or the SEC, let alone the president; 2. PCAOB brought its own lawyer to argue alongside the solicitor general, begging the question: if PCAOB is subservient to the SEC and/or the president, why does it need its own counsel to represent its own views?
Filed under: Government and Politics; Law and Civil Liberties
Google Book Search, Class Actions and the Separation of Powers
In response to yesterday’s post making the case against the Google Book Search Deal, I had spirited conversation with Google policy analyst Derek Slater, who helped me understand Google’s perspective on the case and some of the issues I discussed.
He raised a reasonable objection to my claim that “the settlement would give Google carte blanche to use these orphan works without making a serious effort to contact their owners.” He points out that the settlement stipulates that the Book Rights Registry will make an effort to locate orphan works holders and hold funds in escrow for five years to be paid to any orphan work holders who surface. Describing this as “carte blanche” was probably too strong. I think my basic point—that Google won’t be required to conduct the kind of “diligent search” for rightsholders before using a work—is still valid, but I could have made this point more carefully.
He also quibbled with my contention that the settlement would confer permanent competitive advantages on Google. I think I’m on firmer ground here; although the settlement does extend to Google’s competitors some of the advantages Google itself enjoys, the fact remains that Google would receive broad immunity from copyright lawsuits that would not be extended to Google’s competitors.
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
Message to the International Community: There’s Separation of Powers in Honduras
Roberto Michelleti, the interim president of Honduras, has an op-ed in today’s Wall Street Journal that should be read by members of the international community that continue to push for the immediate restoration of Manuel Zelaya to the presidency.
Michelletti states that
“The Honduran people must have confidence that their Congress is a co-equal branch of government. They must be assured that the rule of law in Honduras applies to everyone, even their president, and that their Supreme Court’s orders will not be dismissed and swept aside by other nations as inconvenient obstacles.”
The message is clear: there’s separation of powers in Honduras, and the country’s authorities cannot simply ignore the rulings of both Congress and the Supreme Court in order to reach an agreement. The international community, which is supposedly acting on behalf of democracy, should know that.
Filed under: Foreign Policy and National Security; International Economics and Development
Should Judges ‘Have the Back’ of Police Officers?
Vice-president Joe Biden says we should rally behind the Supreme Court nomination of Sotomayor because she will “have the back” of the police. Biden is a lawyer, a senator, and former chairman of the Senate’s Judiciary Committee, so he should know better than to pull a political stunt like that to curry favor with law enforcement groups. The Constitution places limits on the power of the police to search, detain, wiretap, imprison, and interrogate. The separation of powers principle means that judges must maintain their impartiality and “check” the police whenever they overstep their authority. To abdicate that responsibility and to “go along with the police” is to do away with our system of checks and balances.
As it happens, The New York Times has a story today about one Jeffrey Deskovic. He got caught up in a police investigation because he was “too distraught” over the rape and murder of his classmate. When there was no DNA match, prosecutors told the jury it didn’t really matter. Does Biden really want Supreme Court justices to come to the support of the state when habeas corpus petitions arrive on their desks and the police work is sloppy, weak, or worse?
On a related note, Cato adjunct scholar Harvey Silverglate fights another miscarriage of justice in Massachusetts.
Cato on Facebook
Cato on Twitter
Cato on YouTube
Cato Tweets