Archives: 03/2010

Tuesday Links

  • Kids these days…New study shows that most Millennials think “the government should do more to solve problems.” But if you take a closer look at the data there’s also some good news.
  • The case for reviving the “Privileges or Immunities” clause.

UPDATE:

Cato Vice President for Legal Affairs Roger Pilon can scarcely believe it himself: The New York Times got it (mostly) right on the gun case argued today before the Supreme Court, while The Wall Street Journal missed the main point.

In a piece for National Review Online, Pilon discusses a subtle but critical point: Conservatives—including the ones on the Supreme Court—are right on guns, but they’re wrong on rights.

Cato VP for Legal Affairs Roger Pilon can scarcely believe it himself: the New York Times got it (mostly) right on the gun case argued today before the Supreme Court, while the Wall Street Journal missed it.

Roger explains why in a terrific post over at National Review Online [hyperlink—you’re right, NRO is down!].

Roger’s post is the best discussion we’ve seen yet of a subtle but critical point: conservatives—including the ones on the Supreme Court—are right on guns, but they’re wrong on rights.

Earthquakes and Freedom: Chile vs. Haiti

Although some comparisons between Haiti’s 7.0 earthquake in January and Chile’s 8.8 quake this weekend have attributed the massive differences in devastation and lives lost (230,000 vs. some 700 respectively) to different enforcement of building codes and planning, the real reason for Chile’s superior ability to endure the disaster has everything to do with its vastly higher level of economic freedom, reliable rule of law, and the much higher level of prosperity that results. Here are three good articles that make those points:

Bret Stephens on “How Milton Friedman Saved Chile”

John Stossel on “A Tale of Two Quakes”

Anne Applebaum, “Chile and Haiti: A Look at Earthquakes and Politics”

And here’s a piece I wrote on Haiti explaining how economic freedom could have dramatically reduced death and destruction there.

A Tale of Two Editorials

It’s a rare day when the New York Times gets something right editorially while the Wall Street Journal gets it wrong — and on gun rights, no less. Yet that was the case today, when the Supreme Court heard oral arguments in McDonald v. Chicago, a challenge to Chicago’s draconian gun-control law.

Not surprisingly, the Times opens with a shot against the Court’s 2008 decision in Heller v. District of Columbia, which found for the first time that the Second Amendment protects an individual’s right to keep and bear arms, quite apart from whether he’s a member of a militia. The next step, at issue in McDonald, is whether that right was good not simply against the federal government (Heller decided that) but against states and municipalities as well. Both the Times and the Journal argue, correctly, that the Bill of Rights should apply against the states, and that’s how the Court will likely rule. The difference is on the grounds for so ruling, and it’s not a trivial matter.

The Times reviews very briefly the history that gives rise to that issue. In a nutshell, and filling in some blanks, the Bill of Rights applied originally only against the federal government. With the ratification of the Fourteenth Amendment in 1868, however, U.S. citizenship was defined and elevated over state citizenship, and states were prohibited from abridging the privileges or immunities of citizens of the United States, from depriving any person of life, liberty, or property without due process of law, and from denying any person within their jurisdiction of the equal protection of the laws. But five years later, in the infamous Slaughterhouse Cases, the Court eviscerated the Privileges or Immunities Clause, which was meant to be the principal font of substantive rights under the amendment. Thereafter the Court would gradually “incorporate” various provisions of the Bill of Rights under the less substantive Due Process Clause — an uneven and sometimes mischievous process, the Court finding “rights,” from time to time, nowhere to be found in the Constitution. That’s the “substantive due process” against which conservatives have often railed over the years, often rightly so, as part of their larger assault on “judicial activism.”

Well the Times editorialists recognize that history and recognize also that scholars have long criticized the Slaughterhouse decision. Accordingly, they call on the Court to rectify its mistake of 1873 and to base its decision in McDonald on the Privileges or Immunities Clause. If the Court did, that “would be truer to the intent of the [framers of the Fourteenth Amendment], and it could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights.”

And that, precisely, is what concerns the editorialists at the Journal. They too review the history — more fully than does the Times — but argue that the Court should ground its decision on the Fourteenth Amendment’s Due Process Clause. What they fear is that reviving the Privileges or Immunities Clause might lead to more judicial activism. But they offer no reason to believe that — which is all the more surprising since those of us who have long urged the Court to reverse Slaughterhouse and revive the Privileges or Immunities Clause have done so precisely to check that abuse.

As the Times rightly implies, the Due Process Clause has been the wrong clause all along for deciding most Fourteenth Amendment cases. Those cases should have been decided under the more substantive Privileges or Immunities Clause, the history of which would have better informed the Court and, accordingly, better checked the Court’s occasional activism. It’s less than clear, however, whether the editorialists at the Times appreciate that final point. Indeed, when they write, as just noted, that respecting the intent of the Fourteenth Amendment’s framers “could open the door to a more robust constitutional jurisprudence that would be more protective of individual rights,” flags go up. But if the Court did correct its mistake, the issue would then turn on what those framers meant by “privileges or immunities of citizens of the United States.” And on that question there is a rich and fairly clear historical record, unlike with the much less definite idea of “substantive due process,” the ground recommended by the Journal’s editorialists.

It appears, in short, that the Journal’s understandable concern to check judicial activism has led it to ignore the better check and, ironically, to leave the Slaughterhouse decision, the source of the problem, uncorrected. The irony is that that decision was a paradigmatic example of judicial activism, of a Court ignoring the law. Were the Court today to perpetuate that mistake, in a case that is primed for correcting it, that would amount to one more activist decision. After all, the text is there, staring the Court in the face. Yet the Journal urges the Court to ignore it. That’s the very mark of judicial activism.

[Cross-posted at NRO’s Bench Memos]

Global Internet Freedom via Government Regulation?

This morning’s Senate Judiciary Committee hearing on global Internet freedom opened with Sen. Dick Durbin (D-IL) announcing that he would “introduce legislation that would require Internet companies to take reasonable steps to protect human rights or face civil or criminal liability.”  Durbin’s staff tell me they’re in the early phases of hammering out a draft, so exactly what that amounts to isn’t clear yet, but my first-pass gut reaction is that this has the potential to do as much harm as good.

The argument for establishing some such set of rules is pretty straightforward: You don’t want the perverse scenario where corporations worry they’re shirking their fiduciary responsibility to their shareholders if they fail to compete in the market to provide sophisticated technologies of control and repression to the world’s most authoritarian regimes. You don’t want despots exploiting the innovation that springs from the very freedom they deny their own people as a means to cement their own control. It’s possible to frame this as a collective action problem, with tech companies happy to “do the right thing” provided all their competitors do—but with each ultimately deciding to play ball for fear that if they don’t, someone else will.  If that accurately captures the dynamic—and, crucially, if the field of competitors is heavily concentrated in the United States—the binding power of legislation could increase the pressure on foreign governments to abandon repressive Internet policies. In theory, anyway.

But which steps are “reasonable,” and who decides? Google’s recent announcement that it would—eventually—cease its complicity in China’s regime of Internet censorship was greeted with general approbation, to the point where it’s easy to forget that, even if you’re exclusively concerned with what’s in the interest of the Chinese people, it’s a hard call whether and when a principled refusal to deal is really better than distasteful engagement. As Google’s Nicole Wong put it at the hearing, the company’s decision to launch Google.cn in 2006 was premised on “the belief that the benefits of increased access to information for people in China and a more open Internet outweighed our discomfort in agreeing to censor some results.” They’ve now apparently decided that the balance of considerations cuts the other way, but it needs to be stressed that it’s still a question of balance, and there will be real costs to withdrawal.

The tools Google provides can be useful to scholars and activists despite the constraints imposed by the Chinese government—and even when Google does censor search results, it endeavors to make that censorship at least somewhat transparent, announcing to users that some content has been removed. Few expect China to blink in the face of Google’s ultimatum, but it’s also worth noting that whatever leverage companies like Google do have over foreign regimes depends in significant part on their having been there in the first place to develop a user base.  One can imagine the government facing a political backlash if China’s second most popular search engine disappears; it’s hard to imagine much outcry over the decision not to enter the market in the first place. Then again, maybe the upshot of all this will just be that the 30 percent of Chinese Internet users who’d gotten censored results on Google will shrug and get their censored results from Baidu instead.

None of this is to say that Google’s new course is wrong, just that the questions are complex enough that I’d be chary of imposing criminal penalties on a company that made a different call about the balance of interests. Our own government, after all, routinely decides that some Greater Good is served by cooperation with frankly loathsome regimes, and the track record to date does not inspire vastly more confidence in their judgment than in Google’s.

Speakers at the hearing also broached the possibility of government support for various encryption and circumvention technologies that would be useful to foreign dissidents. I’m all for loosening export controls, but as Durbin himself noted, there’s a tricky line to walk here: Without a clear separation of Tech and State, repressive regimes will eagerly seek to reframe their arguments with tech firms over the degree of freedom their people should enjoy as an argument with the United States, which will be portrayed as seeking to “force” our particular conception of democracy on sovereign nations. It will be a spurious argument, but that doesn’t mean it won’t work.

I’ll wait to see the actual bill before rendering any firm judgment, but it seems like it would be awfully easy to pass legislation that lets us pat ourselves on the back for our noble ideals without actually doing a whole lot to advance online freedom in practice.

The Fiscal Equivalent of Defining Deviancy Down

Senator Jim Bunning of Kentucky may be the most unpopular man in Washington right now. And, as you may surmise, this means he is doing something admirable (envision Jimmy Stewart in Mr. Smith Goes to Washington and you’ll have the right context).

Republicans and Democrats want to rush through a bill to spend more money on everything from highways to healthcare to joblessness. Senator Bunning is simply saying that the new spending should be financed by reallocating some of the unspent money from the so-called stimulus. For this modest proposal, Bunning is being treated like a porcupine at a nudist camp, with both Republicans and Democrats expressing irritation that he is making it harder for them to buy votes with other people’s money.

I am delighted that Senator Bunning is putting some roadblocks in the path of bigger government, but this episode also illustrates how our hopes and expectations have been eroded. For all intents and purposes, Sen. Bunning is saying that if we want to waste money on A, B, and C, then we should not waste as much money on X, Y, and Z.

Even in the unlikely event that he succeeds, all Bunning will have accomplished to keep a bloated federal government at its current size, which is about twice as big as it was when Bill Clinton left office about nine years ago.

Whatever happened to getting rid of the Department of Education and Department of Energy? Who has a proposal to get rid of the Department of Housing and Urban Development? Are any politicians even talking about getting rid of the Department of Transportation? Or Department of Commerce? I could go on, but I’m already getting suicidally depressed.

Three cheers for Senator Bunning, but it says a lot about the era of Bush-Obama profligacy that his very modest proposal is seen as a radical idea.

Gun Rights Secure, Liberty Less So

This morning the Court heard argument in McDonald v. Chicago, the case asking whether the right to keep and bear arms extends to protecting against actions by state and local governments.  Just as importantly, it asked whether the best way to extend that right would be through the Due Process Clause of Privileges or Immunities Clause of the Fourteenth Amendment (because the Second Amendment doesn’t apply directly to the states).

From the initial questioning through the end, it was quite clear that those living in Chicago – and, by extension, New York, San Francisco, and other places with extreme gun restrictions – will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves.  Unfortunately, the Court did not seem inclined to adopt the arguments propounded by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go.   Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it – even if that were the path that hewed more closely to the constitution’s true meaning.

This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution.  As it stands now – and as it seems will be the case after McDonald is decided – many of our most cherished rights are protected only to the extent that judges are willing to label them as sufficiently “fundamental” to warrant such protection.  That is an unprincipled jurisprudence and one that hurts the rule of law.

In short, it is a shame that the Supreme Court seems to be wasting a perfect opportunity to bring constitutional law closer to the Constitution.  It is an even greater shame that it is wasting this chance to use guns to protect liberty.