Archives: 11/2009

‘Big Daddy’ Bob Byrd

As of today, U.S. Senator Robert C. Byrd (D-WV) becomes the longest-serving  member in the history of the U.S. Senate.

To celebrate this milestone, we offer the following video, which pretty well summarizes Byrd’s extremely long tenure in the Senate.  If you ever wanted to know what corruption looks like, here’s your chance.  Be sure to catch what Byrd says at the very end.

That video brings to mind an old folk song that, ironically enough, Byrd himself recorded in 1978:

I went out on a party, I led the pace that kills
When I woke up, that gang had gone and left me all the bills

I found them over on the corner, near Soul Salvation Hall
That drunken bunch was out there singing Jesus Paid It All

They put me out in a dry goods box, Lord, my pillow was hard
I wish I’d  bought me a half a pint and stayed in the wagon yard

The moral of the story? Don’t monkey with them Washington ducks – you’ll find them slick as lard.

Obama and Reagan’s Speeches about Freedom

President Obama spoke to Chinese college students on Monday, as President Ronald Reagan spoke to Moscow State University students in 1988. There were a lot of similarities – both men are great communicators, convinced of the rightness of their views and of their persuasive ability, and confident that their values are not just American but universal. But there were some clear differences in the philosophies they presented.

President Obama was eloquent in his defense of freedom in the heart of an authoritarian country:

The United States, by comparison, is a young nation, whose culture is determined by the many different immigrants who have come to our shores, and by the founding documents that guide our democracy.

America will always speak out for these core principles around the world.   We do not seek to impose any system of government on any other nation, but we also don’t believe that the principles that we stand for are unique to our nation.  These freedoms of expression and worship – of access to information and political participation – we believe are universal rights.

Those documents put forward a simple vision of human affairs, and they enshrine several core principles – that all men and women are created equal, and possess certain fundamental rights; that government should reflect the will of the people and respond to their wishes; that commerce should be open, information freely accessible; and that laws, and not simply men, should guarantee the administration of justice….

Those are important American values, and I agree with the president that they are universal, as classical liberals have long argued. But I’m disappointed that President Obama didn’t cite freedom of enterprise,  property rights, and limited government as American values. Those are not only the necessary conditions for growth and prosperity, they are the necessary foundation for civil liberties.

He did glancingly mention in the paragraph above that “commerce should be open, information freely accessible,” so that’s half a clause about commerce, I guess. But that’s it for the freedoms that allow people to work and save, create, build, invest, and prosper. He noted that “China has lifted hundreds of millions of people out of poverty – an accomplishment unparalleled in human history” but didn’t examine how that happened. (Hint: economic reforms that moved toward free markets and (quasi) property rights.)

His only subsequent mention of freedom touched on economics in the context of citizen participation and the Internet:

Now, that’s not just true in – for government and politics. It’s also true for business.  You think about a company like Google that only 20 years ago was – less than 20 years ago was the idea of a couple of people not much older than you.  It was a science project.  And suddenly because of the Internet, they were able to create an industry that has revolutionized commerce all around the world.  So if it had not been for the freedom and the openness that the Internet allows, Google wouldn’t exist.

So I’m a big supporter of not restricting Internet use, Internet access, other information technologies like Twitter.

Yes, “the freedom and the openness that the Internet allows” were important to the development of Google. But more fundamental was the freedom of enterprise in America. There’s a reason that so many technological advances and consumer benefits are developed in the world’s freest economies. Property rights, freedom of exchange, low taxes, and limited restrictions on entreneurship allow people to invest and create.

Contrast the speech that President Reagan gave to the students who were still behind the Iron Curtain in 1988. Start with the way he addressed a very similar point to the one Obama made about Google:

The explorers of the modern era are the entrepreneurs, men with vision, with the courage to take risks and faith enough to brave the unknown. These entrepreneurs and their small enterprises are responsible for almost all the economic growth in the United States. They are the prime movers of the technological revolution. In fact, one of the largest personal computer firms in the United States was started by two college students, no older than you, in the garage behind their home.

Reagan praised democracy and justice and openness:

At the same time, the growth of democracy has become one of the most powerful political movements of our age….Democracy is the standard by which governments are measured.We Americans make no secret of our belief in freedom. In fact, it’s something of a national pastime. Every 4 years the American people choose a new President, and 1988 is one of those years. At one point there were 13 major candidates running in the two major parties, not to mention all the others, including the Socialist and Libertarian candidates – all trying to get my job. About 1,000 local television stations, 8,500 radio stations, and 1,700 daily newspapers – each one an independent, private enterprise, fiercely independent of the Government – report on the candidates, grill them in interviews, and bring them together for debates. In the end, the people vote; they decide who will be the next President.But freedom doesn’t begin or end with elections.

Go to any American town, to take just an example, and you’ll see dozens of churches, representing many different beliefs – in many places, synagogues and mosques – and you’ll see families of every conceivable nationality worshiping together. Go into any schoolroom, and there you will see children being taught the Declaration of Independence, that they are endowed by their Creator with certain unalienable rights – among them life, liberty, and the pursuit of happiness – that no government can justly deny; the guarantees in their Constitution for freedom of speech, freedom of assembly, and freedom of religion. Go into any courtroom, and there will preside an independent judge, beholden to no government power. There every defendant has the right to a trial by a jury of his peers, usually 12 men and women – common citizens; they are the ones, the only ones, who weigh the evidence and decide on guilt or innocence. In that court, the accused is innocent until proven guilty, and the word of a policeman or any official has no greater legal standing than the word of the accused. Go to any university campus, and there you’ll find an open, sometimes heated discussion of the problems in American society and what can be done to correct them. Turn on the television, and you’ll see the legislature conducting the business of government right there before the camera, debating and voting on the legislation that will become the law of the land. March in any demonstration, and there are many of them; the people’s right of assembly is guaranteed in the Constitution and protected by the police. Go into any union hall, where the members know their right to strike is protected by law….

But freedom is more even than this. Freedom is the right to question and change the established way of doing things.

And he came back to the basic purpose of democracy in the American context, not a plebiscitary system but a way to ensure that the governors don’t exceed the consent of the governed: “Democracy is less a system of government than it is a system to keep government limited, unintrusive; a system of constraints on power to keep politics and government secondary to the important things in life, the true sources of value found only in family and faith.”

He tied all of these freedoms to the American commitment to economic freedom as well. Throughout the speech he tried to enlighten students who had grown up under communism about the meaning of free enterprise:

Some people, even in my own country, look at the riot of experiment that is the free market and see only waste. What of all the entrepreneurs that fail? Well, many do, particularly the successful ones; often several times. And if you ask them the secret of their success, they’ll tell you it’s all that they learned in their struggles along the way; yes, it’s what they learned from failing. Like an athlete in competition or a scholar in pursuit of the truth, experience is the greatest teacher….

And that’s why it’s so hard for government planners, no matter how sophisticated, to ever substitute for millions of individuals working night and day to make their dreams come true. The fact is, bureaucracies are a problem around the world.

He even explained why China would one day, as President Obama said, lift hundreds of millions of people out of poverty:

We are seeing the power of economic freedom spreading around the world — places such as the Republic of Korea, Singapore, and Taiwan have vaulted into the technological era, barely pausing in the industrial age along the way. Low-tax agricultural policies in the sub-continent mean that in some years India is now a net exporter of food. Perhaps most exciting are the winds of change that are blowing over the People’s Republic of China, where one-quarter of the world’s population is now getting its first taste of economic freedom.

President Obama said some important things to the Chinese students. But his continuing failure to mention the virtues of productive enterprise in a commencement address or to note the centrality of economic freedom in the American experiment could easily lead listeners to conclude that he really doesn’t care much for business and economic liberty.

How Will the Court Vote on “Incorporating” the Second Amendment?

Yesterday I described the brief Alan Gura filed on behalf of the petitioners challenging Chicago’s gun ban in the Supreme Court – asking the Court to apply the individual right to keep and bear arms to the states.

Late last night, Orin Kerr at the Volokh Conspiracy sketched out his predictions of whether the individual justices would go for Gura’s main argument: that the indefensible Slaughter-House Cases should be overturned and thus that the Court should “incorporate” the rights at issue via the Privileges or Immunities Clause.  (Cato supports this argument, as we’ll show in the brief we’ll be filing next week.) He concludes that Justice Thomas is the only vote available for this claim. According to Orin, the Chief Justice and Justices Scalia and Alito are too enamored with stare decisis to overturn an 1873 precedent, Justice Kennedy isn’t an originalist and likes substantive due process too much, and the other four are too afraid of Lochner and Institute for Justice-style economic liberty arguments to go there.

As George Will would say: Well. Orin could turn out to be right, but I think his analysis is too simplistic. I was just about to write my response when I saw that Josh Blackman, with whom I have a law review article forthcoming on these issues, already said it best in the comments to Orin’s post:

First, I think you present a binary choice; incorporate through Due Process OR incorporate through privileges or immunities. The question presented asked about both routes of incorporation. Neither path is by necessity mutually exclusive. As Gura’s brief makes clear, the Court could incorporate through the Due Process Clause, and alternatively recognize that the right to keep and bear arms is also among the Privileges or Immunities of Citizenship. The Court need not displace 100 years of substantive due process jurisprudence with this single case. And from a practical perspective, basically the entire Bill of Rights has been incorporated. So, unless some people start clamoring about states quartering troops in theirs homes, this would be a one time deal. Such a holding would do little to upset the apple cart, or as we put it, open Pandora’s Box.

Second, I think you may over-simplify Scalia’s views on originalism and stare decisis. Our article shows that Scalia, while on the Supreme Court, has never voted in favor of a substantive due process incorporation. The last such case was in 1982. Can Scalia really cite the doctrine that he excoriated in Lawrence, Casey, and elsewhere based solely on reliance interests? It is no secret Scalia likes guns, and he wants to incorporate the 2nd Amendment. But he does not want to enlarge substantive due process. Is he stuck between a rock and a substantively hard place? The Privileges or Immunities Clause provides an alternative method for Scalia. He could write a classic originalist opinion tracing the right to bear arms during Reconstruction, and find that it applies to the State.

Finally, fellow Volokh conspirator Randy Barnett (and Cato senior fellow) also disagrees with Orin, offering this perspective:

When choosing between the two pending cases in the Seventh Circuit, why would four Justices grant cert on the McDonald case in which the challenge was focused on the Privileges or Immunities Clause and deny cert on NRA case, which confined its argument to the Due Process Clause? Why would they have rejected the City of Chicago’s proposal which limited the question presented to Due Process?

Faced with this background and the actual question presented, I wonder how would Orin have briefed the case. Would he have offered any of the analysis in his post? Would he have told the Court just to ignore the Privileges or Immunities Clause? Or might he not have assumed as an experienced litigator that the Justices could write a Due Process Clause “incorporation” opinion in their sleep–heck, their clerks could write that opinion in their sleep–and then devoted the bulk of his brief to describing the meaning of the Privileges or Immunities Clause in context?

Ultimately, Orin’s analysis is based in what he thinks will be the Justices’ dislike for the interpretation of the Privileges or Immunities Clause described in the brief. The conservatives will hate the references to “natural rights” while the liberals will hate the references to “property.” Fair enough. But notice that the brief does not offer Alan Gura’s theory of the Privileges or Immunities Clause. All the phrases to which Orin objects are taken from quotes from the historical sources. Was Gura supposed to conceal these sources from the Court or faithfully report them? Orin may think this case is a hoot, but for the parties and the Court it is serious business.

In short, Orin’s legal realism/conventional wisdom may turn out prescient – and all the rest of us are engaged in a quixotic originalist/libertarian crusade – but I’ll put my money elsewhere.

Will America Keep “Bending the Productivity Curve”?

Most international comparisons conclude that America’s health care sector under-performs those of other advanced nations.  Aside from other serious flaws, those studies typically ignore each nation’s contribution to medical innovation – the discovery of new knowledge and practices that improve health in all nations. Today, the Cato Institute releases a new study – the most comprehensive study of its kind – that helps fill that void.

In “Bending the Productivity Curve: Why America Leads the World in Medical Innovation,” economist Glen Whitman and physician Raymond Raad conclude that the United States far and away outperforms other nations on medical innovation, but that the legislation moving through Congress threatens America’s ability to innovate.  From the executive summary:

To date…none of the most influential international comparisons have examined the contributions of various countries to the many advances that have improved the productivity of medicine over time…

In three of the four general categories of innovation examined in this paper — basic science, diagnostics, and therapeutics — the United States has contributed more than any other country…In the last category, business models, we lack the data to say whether the United States has been more or less innovative than other nations; innovation in this area appears weak across nations.

In general, Americans tend to receive more new treatments and pay more for them — a fact that is usually regarded as a fault of the American system. That interpretation, if not entirely wrong, is at least incomplete. Rapid adoption and extensive use of new treatments and technologies create an incentive to develop those techniques in the first place. When the United States subsidizes medical innovation, the whole world benefits. That is a virtue of the American system that is not reflected in comparative life expectancy and mortality statistics.

Policymakers should consider the impact of reform proposals on innovation. For example, proposals that increase spending on diagnostics and therapeutics could encourage such innovation. Expanding price controls, government health care programs, and health insurance regulation, on the other hand, could hinder America’s ability to innovate.

Raad will discuss the study this Friday at noon at a policy forum at the Cato Institute.

Government Mail Loses $3.8 Billion

The U.S. Postal Service reported that it lost $3.8 billion last fiscal year and that it expects to lose $7.8 billion this year. The loss occurred despite cost-cutting measures and legislation that allowed the USPS to forgo $4 billion in required payments to pre-fund retiree health benefits.

From the Associated Press:

The post office has been struggling to cope with a decline in mail volume caused by the shift to the Internet as well as the recession that resulted in a drop in advertising and other mail. Total mail volume was 177.1 billion pieces, compared to 202.7 billion pieces in 2008, a decline of almost 13 percent. For the fiscal year that ended Sept. 30 the agency had income of $68.1 billion, $6.8 billion less than in 2008. Expenditures were down $5.9 billion to $71.8 billion.

The recession and the rise in electronic communications are generating huge financial problems for the lumbering government monopoly. Despite its efforts to reduce headcount, the USPS remains overburdened by a costly and heavily unionized workforce. As I noted previously:

The average USPS worker earns $83,000 per year in compensation, which is considerably more than the average U.S. worker. And the Government Accountability Office recently noted that ‘compensation and benefits constitute close to 80 percent of USPS’s costs — a percentage that has remained similar over the years despite major advances in technology and the automation of postal operations.’

Radical reform is needed, but I suspect that Congress will just paper over the problems for now and also continue allowing the agency to defer funding its retirement obligations:

The post office is required to make an annual contribution of about $5 billion to pay in advance for medical benefits for future retirees. Congress reduced that by $4 billion for 2009, but that change was for one year only. The agency’s independent auditor, Ernst & Young, questioned whether the post office would have enough money to make the next payment on Sept. 30, 2010, when $5.5 billion will be due.

This will just kick the can down the road. It shows that even when Congress gets something right – as it did with making the USPS pre-fund its retiree health benefits – it lacks the will to see it through when the going gets tough. Meanwhile, the Europeans continue to make progress toward deregulating their national postal services and allowing for competition. Unfortunately, it seems that Congress only looks to Europe for guidance on expanding the welfare state.

Beyond Parody

A former soldier in England has been arrested and convicted (and may even go to jail for five years) because he found a gun in his yard and he turned it over to the police. I presume this is in part a reflection of the anti-gun ideology embedded in UK law, but don’t prosecutors and judges have even a shred of discretion to avoid foolish prosecutions and/or protect innocent people from absurd charges? Here is the news report:

A former soldier who handed a discarded shotgun in to police faces at least five years imprisonment for “doing his duty”. Paul Clarke, 27, was found guilty of possessing a firearm at Guildford Crown Court on Tuesday – after finding the gun and handing it personally to police officers on March 20 this year. The jury took 20 minutes to make its conviction, and Mr Clarke now faces a minimum of five year’s imprisonment for handing in the weapon. In a statement read out in court, Mr Clarke said: “I didn’t think for one moment I would be arrested.”

… The court heard how Mr Clarke was on the balcony of his home in Nailsworth Crescent, Merstham, when he spotted a black bin liner at the bottom of his garden. In his statement, he said: “I took it indoors and inside found a shorn-off shotgun and two cartridges. “I didn’t know what to do, so the next morning I rang the Chief Superintendent, Adrian Harper, and asked if I could pop in and see him. “At the police station, I took the gun out of the bag and placed it on the table so it was pointing towards the wall.” Mr Clarke was then arrested immediately for possession of a firearm at Reigate police station, and taken to the cells.

… Prosecuting, Brian Stalk, explained to the jury that possession of a firearm was a “strict liability” charge – therefore Mr Clarke’s allegedly honest intent was irrelevant. Just by having the gun in his possession he was guilty of the charge, and has no defence in law against it, he added.

… Judge Christopher Critchlow said: “This is an unusual case, but in law there is no dispute that Mr Clarke has no defence to this charge. “The intention of anybody possessing a firearm is irrelevant.”

Don’t Worry, Onion. The Feds Have This Education Crisis Covered!

Today, crack Center for Educational Freedom research assistant Ian Hinsdale alerted me to an Onion News Network program on which panelists decried Americans’ shocking ignorance about whales, a problem the experts agreed, for the most part, started in the schools. Toward the end of the segment one of the panelists spoke a little whale, but she hadn’t learned it in her whale-studies deficient, inner-city K-12 schools. No, she had to learn it in adult school, illustrating how severely we’ve shortchanged so many of our students. And don’t think for a minute that whale ignorance is confined to low-income schools…

Now, you might think this was a joke – ONN does sometimes do a parody or two. But this segment could not have been more serious. How do I know? Because the federal government really does have a multi-million dollar, whale-based education initiative: The Historic Whaling and Trading Partners Exchange Program. And if the feds have a program for something the problem must be real, and it must be serious!

Ilwhaleracy, quite simply, threatens the future of our nation – consider just the potential devastation on our economic competitiveness with Atlantis! – and I for one am glad to see Washington tackling the threat head on!