It’s Constitutional for Voters to Stop Their Government from Discriminating Based on Race

Today the Supreme Court finally ruled on Schuette v. Coalition to Defend Affirmative Action, in which Cato filed a brief last summer. This is the case involving a challenge to a voter-approved Michigan state constitutional amendment that bans racial discrimination (including racial preferences) in higher education. The U.S. Court of Appeals for the Sixth Circuit had somehow manage to conclude that such a law violates the Fourteenth Amendment’s Equal Protection Clause, which … requires that state governments treat everyone equally, regardless of race. The ruling was fractured – six justices voted to reverse the lower court, but for three separate reasons, plus a separate concurrence from Chief Justice John Roberts to respond to the two-justice dissent – but ultimately achieved the correct result: Michigan’s Proposal 2 stands.

But really Schuette is a much easier case than the above description might indicate. Indeed, it’s no surprise that six justices found that a state constitutional provision prohibiting racial discrimination complies with the federal constitutional provision that prohibits state racial discrimination. To hold otherwise would be to torture the English language to the point where constitutional text is absolutely meaningless. The only surprise – or, rather, the lamentable pity – is that Justices Sonia Sotomayor and Ruth Bader Ginsburg somehow agreed with the lower court’s confused determination that the Constitution requires what it barely tolerates (racial preferences in university admissions).

To quote the conclusion of Justice Antonin Scalia’s concurring opinion, for himself and Justice Clarence Thomas:

As Justice Harlan observed nearly a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.

This case was so easy precisely because it didn’t involve the fraught question of whether states can pursue race-conscious measures in order to achieve (some mythical) diversity. Instead, it was about the democratic process and whether voters can rein in the powers of their state government. The answer to that question, like the answer to the question of whether the Equal Protection Clause mandates racial preferences, is self-evident. 

Here’s the full decision, which begins with a plurality opinion by Justice Anthony Kennedy, for himself, the chief justice, and Justice Samuel Alito.

Justice Scalia on Anonymous 911 Tipsters

Today, the Supreme Court decided Prado Navarette v. California, a Fourth Amendment search case.  The Fourth Amendment limits the government’s power to stop and search people and the question in this case was whether the police overstepped their authority.

Highway patrol pulled over a pick-up truck and the police smelled, and then found, marijuana.  The men arrested later challenged the legality of the stop in court.  If the stop was illegal, the marijuana would not be admitted into evidence, and the men would probably go free.

The police said the stop was proper.  They received an anonymous 911 call from a woman who said a pickup had almost run her off the road.  The dispatcher took her information and the description of the truck.  The police found a pickup that matched the description, and then followed it for five minutes, and finally pulled it over.  Marijuana discovered, men arrested, case starts moving its way thru the courts. 

By a 5-4 vote, the Supreme Court upheld the legality of the stop.  Interestingly, the case scrambled the usual right-left split among the justices.  Justice Breyer joined Thomas, Kennedy, Roberts and Alito for the majority.  Justice Scalia joined Ginsburg, Kagan, and Sotomayor in dissent.

Here is an excerpt from Scalia’s dissenting opinion:

The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and

(2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness. All the malevolent 911 caller need do is assert a traffic violation, and the targeted car will be stopped, forcibly if necessary, by the police. If the driver turns out not to be drunk (which will almost always be the case), the caller need fear no consequences, even if 911 knows his identity. After all, he never alleged drunkenness, but merely called in a traffic violation—and on that point his word is as good as his victim’s.

Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either. After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving.

Central Africa’s Spreading Religious War

Although the Middle East is most known for religious conflict, sectarian violence is spreading ominously across Africa.  The only good news is that so far the conflicts appear to be national rather than regional. 

Sudan long has suffered from a complicated religious-ethnic conflict.  In Mali France was drawn into a religious-infused civil war.  Nigeria is a divided nation where long-standing sectarian antagonisms increasingly have been amplified by the Islamic terrorist group Boko Haram. 

Thankfully, fighting in the first two has ebbed.  Nigeria’s battle remains intense, but contained within its national boundaries.

As I warn in the New York Times:  “However, rising violence within the Central African Republic (CAR) threatens to swamp the other conflicts in regional impact.  Attacks on Christians following a takeover by the rebel Islamic Seleka coalition triggered retaliation by Christian militias.  Not only is the violence creating a host of angry victims, but the outward flow of refugees is planting seeds of conflict in surrounding nations.”

Of course, addressing even largely distinct national conflicts is not easy, as we have seen in Sudan and Nigeria.  Unfortunately, religion is one force capable of transcending normal political and ethnic differences.  The exodus from CAR creates an increased possibility of cooperation among various militants acting as friends if not quite allies. 

All of CAR’s neighbors share an interest in ending the sectarian killing.  Not just for humanitarian reasons, but also as a matter of basic self-interest.

Gas Prices Are Pinching Again, and You Can Thank U.S. Trade Policy For Some of the Pain

The summer driving season is still weeks away, but rising U.S. gas prices are already back in the news.  Last week, the average price for regular gasoline at U.S. gas stations hit $3.6918 a gallon – the highest since March 22, 2013 and up 43 cents this year.  Much of this price depends on global supply and demand, but certainly not all of it.  In fact, two archaic, little-known U.S. policies – vigorously defended by the well-connected interest groups who benefit from them – restrict free trade in petroleum products and, as a result, force American consumers to pay considerably more at the pump.

First, the Jones Act - a 94-year-old law that requires all domestic seaborne trade to be shipped on U.S.-crewed, -owned, flagged and manufactured vessels – prevents cost-effective intrastate shipping of crude oil or refined products.  According to Bloomberg, there are only 13 ships that can legally move oil between U.S. ports, and these ships are “booked solid.”  As a result, abundant oil supplies in the Gulf Coast region cannot be shipped to other U.S. states with spare refinery capacity.  And, even when such vessels are available, the Jones Act makes intrastate crude shipping artificially expensive.  According to a 2012 report by the Financial Times, shipping U.S. crude from Texas to Philadelphia cost more than three times as much as shipping the same product on a foreign-flagged vessel to a Canadian refinery, even though the latter route is longer.

It doesn’t take an energy economist to see how the Jones Act’s byzantine protectionism leads to higher prices at the pump for American drivers.  According to one recent estimate, revoking the Jones Act would reduce U.S. gasoline prices by as much as 15 cents per gallon “by increasing the supply of ships able to shuttle the fuel between U.S. ports.”

Chinese Company 3-D Prints a House for $4,800

To paraphrase Lord Peter Bauer, the first recipient of the Milton Friedman prize, each child comes to this world not only with an empty belly, but also with a brain. Put differently, people are not parasites living off finite resources (though exception needs to be made in the case of most politicians and bureaucrats). They are discoverers and innovators, who look for ways to achieve more with less. They are the creators of wealth and drivers of human progress.

As a reminder of human ingenuity, consider that a Chinese company was able use a massive 3-D printer to print 10 houses in 24 hours at the cost of $4,800 per house.

Let’s put that in perspective. There are 30 million people in Afghanistan, or 7.5 million families of four. At a cost of $4,800 per house (expect the cost to drop significantly over the next few years), it would cost $36 billion to build all Afghani families a new house. The current foreign aid to Afghanistan is $6.7 billion, which means that – using foreign aid money alone – it would take 5.4 years to have each Afghani family housed in a brand new Chinese-made home.

Will it happen? Probably not, since most of the foreign aid money to Afghanistan is devoured by parasitic government officials.  

Washington Should Focus on Protecting Americans, Not Reassuring Allies

The United States is busy in the world, but no function seems more important than acting as the world’s universal comforter, constantly “reassuring” friends and allies no matter the location.

For instance, after Russia’s annexation of Crimea, the administration undertook what Secretary of State John Kerry termed “concrete steps to reassure our NATO allies.”  The Military Times reported that Washington dispatched aircraft “to reassure NATO partners that border Russia.”

The process continues.  The Wall Street Journal entitled an article “U.S. Tries to Help Ukraine, Reassure Allies Without Riling Russia.”  Gen. Philip Breedlove said the transatlantic alliance would maintain new security measures throughout the year “to assure our allies of our complete commitment.” 

Beijing’s assertiveness has resulted in another gaggle of friendly states clamoring for reassurance.  Defense Secretary Chuck Hagel visited Asia in early April; the Washington Post reported that he sought “to reassure allies in Asia amid questions about U.S. commitment.”  The president headed to Asia in mid-April, explained Voice of America, “in a bid to reassure allies in the region.” 

As I point out in my new Forbes online column:  “Washington’s obligation always is to give.  The U.S. not only is supposed to guarantee the security of assorted friends and allies.  It also must constantly reassure them.  Americans must not only be prepared to die for anyone and everyone who wants protection, but Americans must always and in every way demonstrate that willingness.”

It’s a bizarre policy.  First, the overriding responsibility of Washington officials is to safeguard America—its people, territory, constitutional liberties, and prosperity.  The Department of Defense is not a charity created to protect the world, subsidize the improvident, calm the nervous, or save the indifferent.

Second, America’s broader foreign policies should be directed at advancing the interests of Americans.  The national government is the agent of those who fund, staff, and support it, the American people.  Their welfare is primary.  Washington should look after their interests, not those of some imaginary “international community” that exists only in the minds of social engineers who desire to escape even minimal national restraints.

Moreover, the tendency of political organizations to live out Lord Acton’s famous warning that “power tends to corrupt and absolute power corrupts absolutely” requires the U.S. government to build limits into its own institutions and especially those beyond its borders.

The notion that America has an obligation to constantly “reassure” others is particularly pernicious when applied to the military.  Washington’s principal obligation is to protect the American people, not those who desire to be defended by the world’s greatest military power.

There are occasions when it is in America’s interest to aid other states, but only rarely.  Today Washington collects allies like most people accumulate Facebook friends.

Unfortunately, almost all U.S. allies expect to be defended by America rather than to help defend America.  Some contribute small troop contingents to Washington’s unnecessary wars elsewhere, such as in Iraq, but that is not worth promising to face down nuclear-armed Russia on their behalf.

One of the worst consequences of America’s defense guarantees is discouraging prosperous and populous states from defending themselves.  Europe has eight times Russia’s GDP—why is it relying on America at all? 

Similarly, why is Japan, a wealthy state which until recently had the world’s second largest economy, expecting Washington’s help to assert control over contested islands?  Why does South Korea, with 40 times the GDP of North Korea, presume the U.S. will forever maintain military forces in the peninsula?

Now Washington is sending Cabinet secretaries and military forces hither and yon to “reassure” these same nations that it will continue to subsidize their defense.  Why should governments in Asia and Europe inconvenience their peoples when Washington is willing to burden Americans to pay for everyone’s defense?

It is time for Washington to start reassuring Americans.

More Drinking Hours, Fewer Accidents

Does restricting access to alcohol reduce traffic accidents? Not necessarily, according to a recent study by economists from the University of Lancaster: 

Recent legislation liberalised closing times with the object of reducing social problems thought associated with drinking to “beat the clock.” Indeed, we show that one consequence of this liberalization was a decrease in traffic accidents. This decrease is concentrated heavily among younger drivers. Moreover, we provide evidence that the effect was most pronounced in the hours of the week directly affected by the liberalization; late nights and early mornings on weekends.

The authors also suggest that the restrictive closing times caused more traffic congestion (everyone left the pubs at the same time), increasing the scope for accidents.

So more freedom seems to generate better outcomes, presumably because most people use increased freedom sensibly.

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