Archives: May, 2010

Barack Obama’s War on ‘Chooming’

My Washington Examiner column this week begins with a look back at the Disco Era:

In his high school yearbook photo, President Barack Obama sports a white leisure suit and a Travolta-esque collar whose wingspan could put a bystander’s eye out. Hey, it was 1979.

Maybe that explains the rest of young Barry’s yearbook page, with its “still life” featuring a pack of rolling papers and a shout-out to the “Choom gang.” (“Chooming” is Hawaiian slang for smoking pot.)

Survey data suggest some 100 million Americans have tried pot, including political elites and drug war supporters Bill Clinton, Al Gore, Newt Gingrich and Sarah Palin. So the point here isn’t to play “gotcha” by calling the president out on some harmless fun three decades ago. It’s to ask why he isn’t doing more to change a policy that treats people engaged in such activities as criminals.

As I note in the column,

in his new National Drug Control Strategy [.pdf], Obama “firmly opposes the legalization of marijuana or any other illicit drug” and boasts of his administration’s aggressive approach to pot eradication. Watch your back, Choom Gang.

This may present Obama with a serious moral dilemma if and when California votes to legalize recreational use of marijuana this November. (More here in this podcast).

Privacy as the Default Setting

Before I can write a blog post, I must lift my hands to type.

I say so because the default setting in life is privacy. Staying in bed maintains privacy pretty well.

Clay Shirky gives privacy a contrary treatment on the New York TimesRoom for Debate blog. We are both discussants there of the question whether the government should intervene to solve privacy issues with Facebook.

Shirky, a teacher in the Interactive Telecommunications Program at N.Y.U., writes:

There are two principal effects of the Internet on privacy. The first is to shrink personal expression to a dichotomy: public or private. Prior to the rise of digital social life, much of what we said and did was in a public environment — on the street, in a park, at a party — but was not actually public, in the sense of being widely broadcast or persistently available.

This enormous swath of personal life, as we used to call it, existed on a spectrum between public and private, and the sheer inconvenience of collecting and collating theoretically observable but practically unobserved actions was enough to keep those actions out of the public sphere.

That spectrum has now collapsed — data is either public or private, and the idea of personal utterances being observable but unobserved is becoming as quaint as an ice cream social.

“[I]t is keeping things private that requires effort,” he writes.

I think Shirky has inadvertently overstated the effects of the Internet on privacy. The dynamics he describes are definitely in play, but they exist almost exclusively in digital social life. For the rest of life, it’s still the other way around. Privacy is easy. You can just stay in bed. Pursuing publicity takes effort.

When you go out into the world, making effort to give publicity to yourself in pursuit of your wants and needs, you must trade some personal information for interaction, yes. That’s physics: photons and sound waves doing what they do. Nobody considers this a privacy problem because of our long experience with it and acculturation to it.

The online environment has similar information demands—when you go online, giving publicity to yourself in pursuit of your wants and needs, you must trade some personal information for interaction—but it has different properties: information is easier to record. Again, though, the rise of the Internet didn’t change privacy on the street, in parks, and at parties, except in the still rare instance when someone is recording and uploading information.

If we were to conduct all of life online, maybe it would be fair to say that protecting privacy takes effort. But even as a digital denizen, the majority of my experience—certainly the most important and valuable of it—is offline, face-to-face interactions with friends and loved ones or time alone.

Here, privacy is the default. Nobody knows my thoughts unless I tell them. Almost never is anyone capturing the conversation in a digital format. Rarely is anyone uploading images. Facebook isn’t hoovering up the information. Doing these things would take effort that nobody is expending.

The Internet didn’t foreclose the use of real space for the conduct of life as Shirky implies by talking about offline living in the past tense. It expanded our freedom by giving us another space—a new option to use as we see fit. Declining to use that space is as normal, natural, and necessary as eating breakfast (which is impossible to do online, by the way). Maybe some of the digerati conduct their love-lives online, but this should be a disqualification for discussing the social impact of the medium for failure to understand how it fits into most people’s lives.

Privacy debates premised on the omnipresence of digital media are interesting and fun, but I don’t think they’re grounded in people’s actual experience of the world (exception!), and they tend to overstate the significance of online privacy problems.

Use Your Law Deferment to Work for Liberty!

For almost a year now, Cato has been running a highly successful deferred legal associate program.  Talented recent law school grads have come to work for us during the time that their law firms have “deferred” their start dates (from a few months to a full year), with commensurate stipends.  Now that we’re reaching the end of law school graduation season, I thought I’d put out another call for more such individuals.  We can always use the the extra brain, you can always use Cato on your resume, and your firms can always use your getting substantive legal experience – we all win!

And so, the Cato Institute invites graduating (and recently graduated) law students and others facing firm deferrals – or simply a period of unemployment – to apply to work at our Center for Constitutional Studies. This is an opportunity to assist projects ranging from Supreme Court amicus briefs to policy papers to the Cato Supreme Court Review. Start/end dates are flexible and there are openings immediately available. Interested students and graduates should email a cover letter, resume, transcript, and writing sample, along with any specific details of their availability to Jonathan Blanks at jblanks [at] cato [dot] org.  Note again that this announcement is for a non-paying job: we’ll give you a workspace, good experience, and an entree into the DC policy world, but we will not help your financial bottom line.  You don’t have to be a deferred law firm associate per se, but you do have to be able to afford not being paid by us.

Please feel free to pass the above information to your friends and colleagues.

For information on Cato’s programs for non-graduating students, contact Joey Coon at jcoon [at] cato [dot] org.

Update on the Arizona Immigration Issue

Since I provided my legal analysis of the new Arizona immigration law, I’ve become aware of a few interesting developments in that regard.

First, it seems that I wasn’t working off the latest version of the bill – which I should add is awfully hard to find.  Indeed, perhaps we should excuse Attorney General Eric Holder and Secretary of Homeland Security Janet Napolitano for not having read it; both the Arizona Senate’s website for SB 1070, and the Arizona House’s website for the amending legislation, HB 2162, list several different versions under their “Bill Versions” tabs that do not match the bills in the other.  As someone who typically plays in the federal sandbox, if someone can direct me to a verified true copy of the final operative bill, as signed and amended, my colleagues and I – indeed the entire policy community – would be grateful.

In any case, I’m please to announce that the (seemingly) final amended version I’m now working from has improved an already constitutional bill by further safeguarding civil liberties.  Most notably, the ”may I see your papers?” provision was changed to read that law enforcement officials shall make a “reasonable attempt … when practicable, to determine the immigration status” only after having made a “lawful stop, detention, or arrest … in the enforcement of any other law or ordinance … where suspicion exists that the [detained] person is an alien and is unlawfully present in the United States” (amended text in bold). This establishes a higher predicate standard for police to initiate contact with any person to whom this law will be applied. In other words, there has to be an independent reason for the stop or detention before the police can ask to see proof of immigration status.

The amended bill also prohibits any consideration of “race, color or national origin” in enforcing the new law in any manner that runs afoul of either the U.S. or Arizona constitutions.  Moreover, the legislature clarified that the determination of an alien’s immigration status would only be performed by Immigration and Customs Enforcement (ICE), the Border Patrol, or a “law enforcement officer who is authorized [to do so] by the federal government.”

All of these changes unquestionably improved the civil rights provisions of the law and should further protect it from successful legal challenge – again without saying anything about the law’s policy wisdom.

Second, while some analysts have argued that Arizona’s law might be preempted by federal law – although the leading case, De Canas v. Bica, 424 U.S. 351, which is 34 years old and predates more recent immigration reforms, is not favorable to that position – Roger Pilon alerted me to a 2005 case (unanimous in the judgment, less so in the reasoning), Muehler v. Mena, 544 U.S. 93, that shows that Arizona’s law doesn’t go as far as the Constitution might allow.  In Mena, the police detained the inhabitants of a house whice they were searching pursuant to a lawful search warrant.  While most of the officers performed the search, others questioned one detainee about her immigration status without any reasonable suspicious that she committed any crime – and certainly without having any reasonable suspicion that she was an illegal alien.  The Supreme Court, in an opinion by Chief Justice Rehnquist, upheld this line of questioning.  Part of the reasoning was that the “may I see your papers?” bit did not prolong the detention in any way – the search was still ongoing – but this is at least some indication that the Constitution allows immigration-related questioning without even the reasonable suspicion required by Arizona.

Third, apparently the head of ICE, John Morton, said his agency will not process illegal immigrants referred to them by Arizona officials.  Morton apparently doesn’t think that laws like Arizona’s “are the solution.”  Well, we at Cato certainly agree that Arizona’s law will not solve a problem that demands a comprehensive federal solution, but that doesn’t mean federal officials can simply decline to perform their duties under the law as it exists.  What Morton proposes is akin to state “nullification” of duly enacted federal law – except worse, because his agency’s job is to enforce that very law.  If Morton feels that strongly about our immigration laws, he should either resign or, while complying with his duties, testify before Congress about the law’s defects and lobby his boss, President Obama, to push reform.

Fourth and finally, President Obama is deploying 1,200 National Guard troops to the border and requesting $500 million more for border security.  With due respect to Arizona Senators John McCain and Jon Kyl, who want even more troops and money, this approach is neither here nor there.  (And it echoes Obama’s split-the-baby decision on Afghanistan, not willing to go for a whole-hog escalation but also not willing to rethink the overall policy.)  Half-measures won’t do it here, Mr. President (and Congress).  If you lack the heart (or have too much of a brain) for a full wall-and-militarization of our southern border – and perhaps mass rounding up and deportation of 12 million people – it’s time for a fundamental reorganization of the immigration system.

U.S. immigration (non-)policy is nonsensical and unworkable.  We’re beyond the point of perestroika; it’s time for regime change.

Libertarianism: A Primer Goes Global

I’m delighted to report that just this week I have received copies of Libertarianism: A Primer published in Italian and Korean, the latter delivered to me personally by the president of the Korea Economic Research Institute. I now count the following translations:

  • Japanese
  • Russian
  • Czech
  • Polish
  • Serbian
  • Bulgarian
  • Cambodian
  • Mongolian
  • Kurdish
  • Persian
  • Spanish
  • Korean
  • Italian
  • Chinese

and of course

You might notice a couple of things about that list. First, it includes a lot of communist or ex-communist countries, where perhaps they are especially attuned to the conflict between freedom and statism. And second, it has not yet been translated into of the languages of Northwest Europe – German, French, Dutch, Scandinavian languages. Perhaps those countries have achieved the end of history and have no need of further ideological debates. Perhaps. I wrote the following in the preface to the Italian edition:

The publication of a primer on libertarianism in Italy is another sign of two heartening developments: the continuing process of the world’s people being drawn closer together, and the worldwide spread of the ideas of peace and freedom after a century of war and statism.

This book may seem to be reaching Italy at an inopportune moment, a time when people from the president of France to Nobel Prize-winning economists are proclaiming that “laissez-faire is finished.” One American pundit of the center-left even exulted in “the end of libertarianism.” These critics are short-sighted. The idea of libertarianism, of liberty under law, is needed now more than ever….

Libertarianism is sometimes perceived as a radical philosophy. And in some ways it is: It rejects and has fought in turn absolutism, communism, fascism, national socialism, corporate statism, theocracy, and every form of tyranny over the mind of man. Libertarians advance a radical and consistent vision of individual rights and strictly limited government that would eliminate the great bulk of the modern state, even in mixed-economy democracies. But in a broader sense libertarianism is the fundamental philosophy of the modern world: liberty, equality, enterprise, the rule of law, constitutional government. These ideas have become so commonplace that we forget how radical they were at one time. Libertarians want to apply those principles more consistently than do the adherents of other ideologies. But few people in the modern world would want to reject libertarian ideas wholesale.

The largest trends in the world reflect libertarian values. Communism is virtually gone, and few people still defend state socialism. Eastern Europe is struggling to achieve societies based on property rights, markets, and the rule of law. Honest observers throughout the developed world understand that the middle-class welfare states are unsustainable and will have to be radically reformed. The information revolution is empowering individuals and small groups and undermining the authority of centralized power.

Perhaps most importantly, the increasing globalization of the world economy means that countries that want to prosper will have to adopt a decentralized, deregulated, market-oriented economic model. You can’t avoid world markets in the 21st century; or if you do, you will be left out of the phenomenal economic growth that global markets and technological development will deliver.

So one reason that Italian readers should be interested in libertarianism is very simple and practical: these are the ideas that drive the modern world, and you need to know about them. The other reason is that libertarianism offers to every country the promise of peace, economic growth, and social harmony. I hope Italian readers will join libertarians around the world in working to restrain state power and liberate individuals, families, associations, and enterprises.

Tuesday Links

  • Daniel Griswold: Fears of immigrant crime are unfounded. “Perceptions about immigrants and crime do not square with the most basic data. After years of witnessing a rise in the number of illegal immigrants in their state, the people of Arizona are in reality less likely to be victims of crime than at any time in the past four decades.”

Agency Will Stop Treating Political Speech as Fair-Housing Violation

The California Department of Fair Employment and Housing has agreed to stop investigating citizens on the theory that their political expression in and of itself constitutes a potential violation of laws against housing discrimination. The concession came in a settlement with Julie Waltz, whom it had dragged through an investigation for publicly opposing the placement of subsidized group homes in and near her Norco, Calif. residence. A news release from the Center for Individual Rights:

During the year-long investigation, state investigators told Waltz that her speech violated state fair housing laws, requested that she refrain from her speech activities, and threatened her with prosecution. An investigator also told her that the investigation would end if she removed signs from her yard objecting to the next-door group home as well as signs posted by other people in her neighborhood. Waltz declined to remove the signs. …

Waltz was represented by the Los Angeles, CA firm of Munger, Tolles & Olson LLP, which donated its time pro bono and the Center for Individual Rights.

When it comes to trampling the First Amendment, California fair housing officials are serial offenders: in 2000 and again in 2006, CIR says, the Ninth Circuit handed down rulings restraining them from similar practices.