Archives: February, 2008

The Right to Bear… Um…

This week, the U.S. Court of Appeals for the Fifth Circuit, which is based in New Orleans and covers Texas, Louisiana, and Mississippi, struck down a Texas statute that criminalized the promotion and sale of sex toys. The Fifth Circuit — where I clerked my first year out of law school — thus became the first and only jurisdiction in the country to recognize the individual right to bear both arms (in the 2001 case of U.S. v. Emerson) and dildoes. (Yes, the statute actually uses the word “dildo” as an example of a prohibited ”obscene device,” which is otherwise defined as a device “designed or marketed as useful primarily for the stimulation of human genital organs.”)

The Fifth Circuit’s analysis correctly rests on the Supreme Court’s 2003 decision Lawrence v. Texas, which found that Texas’s anti-homosexual sodomy statute violated the Fourteenth Amendment right to engage in private intimate conduct free from government intrusion. Put simply, there is no state interest compelling enough to overcome the individual right to freedom in the bedroom.

Besides Texas, only three states have a similar obscene devices statute: Mississippi, Alabama, and Virginia. The Mississippi Supreme Court has upheld its state’s statute, while neither the Alabama nor Virginia Supreme Courts have entertained such challenges. The legislatures of Louisiana, Kansas, and Colorado had also enacted obscene-device bans, but the laws did not survive review by their respective state supreme courts.

The Eleventh Circuit (covering Alabama, Georgia, and Florida), however, just last year rejected a similar Fourteenth Amendment challenge to the Alabama statute. While the U.S. Supreme Court declined to review that ruling, the Fifth Circuit’s decision now squarely opens up a “circuit split,” which means the issue is ripe for the Court to take up next term. 

The Court has not wanted to touch sex toys cases with, um, a 10-foot pole. But it now has the opportunity to enforce this particular individual right in the same year it (fingers crossed) throws out the D.C. gun ban.

The Free Market Produces Incoherent Headlines

Today’s Washington Post has a story on economic espionage by Chinese interests, most of which have connections to the Chinese government and military. Inexplicably, the headline of the story is “Even Spies Embrace China’s Free Market.”

Government-sponsored economic espionage has little to do with free markets. These are crimes (or at least civil wrongs) sponsored directly or indirectly by over-large governments. Crime and over-large governments are antithetical to free markets, not a part of them.

Evidently, there’s some kind of market failure at the Post. (Note to the economic illiterates at the Post: That’s a joke.)

FISA Confusion

I’ve been reading a lot of coverage of the FISA debate this week. I’m getting a little tired of reading commentary from supporters of eliminating judicial oversight who seem to have no clue what they’re talking about. Consider this from FrontPageMag’s Jacob Laksin:

Instead of enjoying the flexibility necessary for real-time intelligence gathering, government officials would be forced to revert to the antiquated standards of the Foreign Intelligence Surveillance Act (FISA), which requires the approval of a special court even to monitor terrorist targets overseas.

In the first place, FISA has been updated repeatedly since the September 11, 2001, so the idea that it’s “antiquated” is silly. Don’t listen to me, listen to the president: “The new law [in 2001] recognizes the realities and dangers posed by the modern terrorist. It will help us to prosecute terrorist organizations — and also to detect them before they strike.”

In the second place, FISA does not, and never has, required a warrant to eavesdrop on foreign communications. FISA only comes into play when intercepting communications between foreigners and Americans, or when conducting surveillance entirely within the United States.

Laksin continues:

One of the signal virtues of the PAA is the fact that it provides liability protection to private companies, like telecoms, who cooperate with the government and aid surveillance efforts. Companies like AT&T already face multibillion dollar lawsuits from leftist activist groups like the Electronic Frontier Foundation, who charge that the companies broke the law by assisting government efforts to prevent terrorist attack. With the expiration of the PAA, these companies will lose their legal protections. In the current litigious climate, it is more than likely that they will simply stop aiding the government in its intelligence work.

The Protect America Act, which was passed last August, did not include retroactive immunity. That’s why there are pending lawsuits against the telecom companies from those “leftist activist groups.” The PAA does include liability protection for firms that cooperate after the law takes effect, and those provisions will expire on Saturday. However, the idea that this will cause telecom companies to stop “cooperating” is absurd. Telecom companies cooperate with eavesdropping not out of the goodness of their heart, but because (once the executive branch has gotten the appropriate warrant) they’re legally required to do so. That will continue to be true after the PAA expires. And in any event, the law is pretty clear on this subject. The only “liability protection” they really need is to follow it.

And on we go:

To be sure, the version of the PAA bill that passed the Senate is far from perfect. For one thing, the bill vastly expands the role of the FISA court in surveillance work, a prospect that should alarm anyone concerned about intelligence agents’ ability to respond rapidly to potential threats.

I’m not sure what he’s referring to. It’s true that the Senate legislation would require the executive branch to file various reports with the FISA court. But given that it simultaneously eviscerates the requirement to get a FISA warrant for foreign-to-domestic communications, I don’t see how it could plausibly be considered an expansion of the FISA court’s role. And these reporting requirements certainly wouldn’t degrade agents’ ability to respond rapidly to potential threats because it gives the government several days after the fact to submit the appropriate reports. Probably the most stringent requirement in the Senate bill is the one requiring the attorney general to send a copy of each “certification” he signs to the FISA court within five days. Running off a copy of an order and sending a courier over to drop it off hardly seems like an intolerable burden.

I could go on, but you get the point. The problem is that most readers have neither the time nor the patience to research these issues in any detail. So when conservative pundits make misleading claims, a lot of readers can’t tell the difference. It’s very frustrating for those of us who are actually familiar with the underlying facts.

(Cross-posted at The Technology Liberation Front)

1 oz. Prevention = 1 oz. Cure

In a previous post, I reported on an article in this week’s New England Journal of Medicine that dispells the myth that, ahem, investing in additional preventive care would save money. I titled the post, “An Ounce of Prevention Is Worth … What?” A snarky colleague emailed to say, essentially, “Duh, it’s worth a pound of cure …”

But that’s just the point: an ounce of prevention is not worth a pound of cure. The authors of that article included this graph, which shows that prevention and cure match up fairly evenly when it comes to cost-effectiveness:

Distribution of Cost-Effectiveness Ratios for Preventive Measures and Treatments for Existing Conditions. Data are from the Tufts–New England Medical Center Cost-Effectiveness Registry. QALY denotes quality-adjusted life-year

In other words, it appears that Mr. Franklin over-valued prevention by a factor of 16, and if we want to improve health we would do as well to invest in cure as in prevention.

Bogus Claims of Limitless Executive Power

Cato founder/president/CEO Ed Crane and Board member/senior fellow Bob Levy take on “the president’s bogus claims of limitless executive power” in his battle with Congress over the Terrorist Surveillance Program:

Abiding by the Constitution will not always shield us from bad laws. Nonetheless, even if the Constitution is not a sufficient guidepost, it is certainly a necessary guidepost.

For many years, we were at risk of losing important civil liberties through unchecked transgressions by the executive branch. Maybe we are still at risk. But thanks to the media, the courts and — belatedly — an energized opposition in Congress, the administration has finally resigned itself to a semblance of congressional oversight, even if judicial scrutiny remains inadequate.

The president’s bogus claims of limitless executive power are, for now, on hold. That’s the right constitutional precedent even if it ultimately produces the wrong policy outcomes. Longer term, the precedent is more important than temporal policy judgments. Justice Sandra Day O’Connor’s plurality opinion in the Hamdi case nicely captured the key principle: “Whatever power the U.S. Constitution envisions for the Executive … in time of conflict, it most assuredly envisions a role for all three branches of government when individual civil liberties are at stake.”

Who Are the Real Free Traders in Congress?

Which members of Congress most consistently support the freedom of Americans to trade and invest in the global economy – free of market-distorting subsidies and barriers? A dynamic new Cato web feature, “Free Trade, Free Markets,” allows users to search more than a decade of votes to answer that and other questions about how members have voted on trade.

Regarding Congressional Hearings on Baseball, the Glass Is One-Tenth Full

Andrew Coulson complained on this site yesterday about a House committee investigating steroids in baseball. Andrew sarcastically noted that the country must be in good shape if politicians are holding hearings on matters that have nothing to do with the legitimate functions of the federal government.

His analysis is correct, and politicians certainly deserve the scorn he tosses in their direction. But we should be careful what we wish for. If you watch this clip beginning at 3:50, I explain that there is a bright side to the committee’s ridiculous ploy to get TV coverage. Simply stated, every minute the politicians spend pontificating on baseball and steroids is one minute that they’re not using to create new taxes, increase spending, and add regulations.

Maybe next month, they can waste their time investigating Paris Hilton. Anything that keeps them distracted has to be good for the country.