Tag: constitutionalism

Democracy in Tunisia?

In the wake of President Zine el-Abidine Ben Ali’s abdication in Tunisia on Friday, both President Obama and Secretary of State Hillary Rodham Clinton stressed the need for quick elections in a country that has never known democracy, freedom of the press, or the rule of law:

Secretary of State Hillary Rodham Clinton …  reacted Friday to Ben Ali’s departure with a statement condemning government violence against protesters and calling for free elections.

“We look to the Tunisian government to build a stronger foundation for Tunisia’s future with economic, social and political reforms,” she said… .

President Obama condemned the use of violence against the protesters and urged the government to hold elections that “reflect the true will and aspirations” of Tunisians.

I’m reminded of Fareed Zakaria’s concerns about the blithe promotion of elections in his article “The Rise of Illiberal Democracy” (pdf; later expanded into a book, The Future of Freedom: Illiberal Democracy at Home and Abroad):

…for almost a century in the West, democracy has meant liberal democracy—a political system marked not only by free and fair elections, but also by the rule of law, a separation of powers, and the protection of basic liberties of speech, assembly, religion, and property. In fact, this latter bundle of freedoms—what might be termed constitutional liberalism—is theoretically different and historically distinct from democracy. As the political scientist Philippe Schmitter has pointed out, “Liberalism, either as a conception of political liberty, or as a doctrine about economic policy, may have coincided with the rise of democracy. But it has never been immutably or unambiguously linked to its practice.” Today the two strands of liberal democracy, interwoven in the Western political fabric, are coming apart in the rest of the world. Democracy is flourishing; constitutional liberalism is not….

Constitutional liberalism, on the other hand, is not about the procedures for selecting government, but rather government’s goals. It refers to the tradition, deep in Western history, that seeks to protect an individual’s autonomy and dignity against coercion, whatever the source—state, church, or society. The term marries two closely connected ideas. It is liberal because it draws on the philosophical strain, beginning with the Greeks, that emphasizes individual liberty. It is constitutional because it rests on the tradition, beginning with the Romans, of the rule of law….

Since 1945 Western governments have, for the most part, embodied both democracy and constitutional liberalism. Thus it is difficult to imagine the two apart, in the form of either illiberal democracy or liberal autocracy. In fact both have existed in the past and persist in the present. Until the twentieth century, most countries in Western Europe were liberal autocracies or, at best, semi-democracies. The franchise was tightly restricted, and elected legislatures had little power…. Only in the late 1940s did most Western countries become full-fledged democracies, with universal adult suffrage. But one hundred years earlier, by the late 1840s, most of them had adopted important aspects of constitutional liberalism—the rule of law, private property rights, and increasingly, separated powers and free speech and assembly. For much of modern history, what characterized governments in Europe and North America, and differentiated them from those around the world, was not democracy but constitutional liberalism. The “Western model” is best symbolized not by the mass plebiscite but the impartial judge….

It is odd that the United States is so often the advocate of elections and plebiscitary democracy abroad. What is distinctive about the American system is not how democratic it is but rather how undemocratic it is, placing as it does multiple constraints on electoral majorities….

While it is easy to impose elections on a country, it is more difficult to push constitutional liberalism on a society. The process of genuine liberalization and democratization is gradual and long-term, in which an election is only one step. Without appropriate preparation, it might even be a false step….

Today, in the face of a spreading virus of illiberalism, the most useful role that the international community, and most importantly the United States, can play is—instead of searching for new lands to democratize and new places to hold elections—to consolidate democracy where it has taken root and to encourage the gradual development of constitutional liberalism across the globe. Democracy without constitutional liberalism is not simply inadequate, but dangerous, bringing with it the erosion of liberty, the abuse of power, ethnic divisions, and even war.

Let’s hope that the new leaders and the newly active citizens of Tunisia focus on developing freedom of the press, civil liberties, the rule of law, and constitutional limits on the power of government–including economic policies (pdf) more conducive to growth and progress–even as they move toward holding elections.

Health Care Rights and Wrongs

Michael Cannon’s post about this ridiculous New York Times article nearly made me fall off my chair. The article, entitled “A Poor Nation, With a Health Plan,” favorably compares the health care system in Rwanda with that in the United States. That’s right: because we don’t have state-provided universal health care coverage, Americans are worse off than residents of one of the poorest countries in the world.  (This is a new article, by the way, not Frank Rich’s column in the Sunday paper.)

Here’s how it begins:

The maternity ward in the Mayange district health center is nothing fancy.

It has no running water, and the delivery room is little more than a pair of padded benches with stirrups. But the blue paint on the walls is fairly fresh, and the labor room beds have mosquito nets.

Inside, three generations of the Yankulije family are relaxing on one bed: Rachel, 53, her daughter Chantal Mujawimana, 22, and Chantal’s baby boy, too recently arrived in this world to have a name yet.

The little prince is the first in his line to be delivered in a clinic rather than on the floor of a mud hut. But he is not the first with health insurance. Both his mother and grandmother have it, which is why he was born here.

In other words, it’s not that the cost of modern medicine has declined in relative terms (thanks to American technological development) and the economy has grown (ours and theirs) such that more people can be medically trained and the tax base can support more public hospitals, but the insurance genie has come and sprinkled fairy dust on misbegotten villagers. (Read the whole thing for some more eye-popping lines – Rwanda has less obesity than the United States, for example.)

Now, I’m just a lawyer – about the only thing I know about health policy is that Obamacare is unconstitutional – but it seems to me that there are at least two basic definitional problems with the inferences the article invites the reader to make even beyond the detailed technical analysis Michael provides.

First, there’s a difference between health care and health insurance.  Nobody in the United States is denied health care.  Between Medicaid and federal law requiring emergency rooms to treat all comers, we simply do not have children dying in the street (like in, say, Rwanda, where, according to the Times, the most common causes of death are “diarrhea, pneumonia, malaria, malnutrition, infected cuts”).  As Michael says, “Yes, the poorer nation has a higher levels of health insurance coverage.  But the wealthier nation does a better job of providing medical care to everyone, insured and uninsured alike.”  That is, you can (and often do) have universal health insurance that provides universally bad care – except for the political elites, who pay extra for proper Western care.  Is there any American who would have better health living in Rwanda or any number of countries where the government provides universal health insurance?

Second, and relatedly, health care is not and cannot be a “right” – because rights are things that inhere in human beings by virtue of their being human.  As the Declaration of Independence says, we are “endowed by [our] Creator with certain unalienable Rights.”  These “natural” rights are things we enjoy without burdening the rights of others: freedom of speech and belief, the right to earn an honest living, freedom of movement, the right to acquire and possess private property, the right to decide what we do every day … all the way down to the right to get out of bed on the left or right side (or to stay in bed all day) – and the right to defend ourselves against those who would take away these rights.  Once you start making “rights” out of things that somebody has to provide you – food, shelter, health care, employment – then you’ve violated everyone’s natural rights and reduced their inherent liberty.

And that’s no less true in countries where the constitutions guarantee all sorts of things (e.g., article 24 of the UN Declaration of Human Rights guarantees the right to a paid vacation.  Those countries have the added misfortune of having a devalued constitution, whose promises are wholly aspirational at best.   Indeed, I’m often amused in foreign travels to be asked why the U.S. Bill of Rights doesn’t include health care (among other things).  I mean, if the best constitutions were the grandest ones, I could draw one up that guaranteed the right to immortality, the mandate that all streets be paved in gold, and the provision that everyone have above-average intelligence.  Also, two chickens in every pot and a flying car in every garage.

There is no magic genie to public health or national development:  it takes the rule of law – including restraining political elites from meddling in the economy – and years of entrepreneurship and hard work.  Indeed, there are plenty of ways in which the United States can improve its health care system but universal health insurance is beside the point. A cautionary note, though: It wasn’t that long ago, in relative human terms, that America was at Rwanda’s level of development – and it won’t take long to destroy, in the name of “fairness” or “human rights,” all we’ve created.

Week in Review: The War on Drugs, SCOTUS Prospects and Credit Card Regulation

White House Official Says Government Will Stop Using Term ‘War on Drugs’

The Wall Street Journal reports that White House Drug Czar Gil Kerlikowske is calling for a new strategy on federal drug policy and is putting a stop to the term “War on Drugs.”

The Obama administration’s new drug czar says he wants to banish the idea that the U.S. is fighting ‘a war on drugs,’ a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use…. The Obama administration is likely to deal with drugs as a matter of public health rather than criminal justice alone, with treatment’s role growing relative to incarceration, Mr. Kerlikowske said.

Will Kerlikowske’s words actually translate to an actual shift in policy? Cato scholar Ted Galen Carpenter calls it a step in the right direction, but remains skeptical about a true change in direction. “A change in terminology won’t mean much if the authorities still routinely throw people in jail for violating drug laws,” he says.

Cato scholar Tim Lynch channels Nike and says when it comes to ending the drug war, “Let’s just do it.” In a Cato Daily Podcast, Lynch explained why the war on drugs should end:

Cato scholars have long argued that our current drug policies have failed, and that Congress should deal with drug prohibition the way it dealt with alcohol prohibition. With the door seemingly open for change, Cato research shows the best way to proceed.

In a recent Cato study, Glenn Greenwald examined Portugal’s successful implementation of a drug decriminalization program, in which drug users are offered treatment instead of jail time. Drug use has actually dropped since the program began in 2001.

In the 2009 Cato Handbook for Policymakers, David Boaz and Tim Lynch outline a clear plan for ending the drug war once and for all in the United States.

Help Wanted: Supreme Court Justice

Justice David Souter announced his retirement from the Supreme Court at the end of last month, sparking national speculation about his replacement.Souter Dedication

Calling Souter’s retirement “the end of an error,” Cato senior fellow Ilya Shapiro makes some early predictions as to whom President Obama will choose to fill the seat in October. Naturally, there will be a pushback regardless of who he picks. Shapiro and Cato scholar Roger Pilon weigh in on how the opposition should react to his appointment.

Shapiro: “Instead of shrilly opposing whomever Obama nominates on partisan grounds, now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support nationwide. If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.”

Obama Pushing for Credit Card Regulation

President Obama has called for tighter regulation of credit card companies, a move that “would prohibit so-called double-cycle billing and retroactive rate hikes and would prevent companies from giving credit cards to anyone under 18,” according to CBSNews.com.

But Cato analyst Mark Calabria argues that this is no time to be reducing access to credit:

We are in the midst of a recession, which will not turn around until consumer spending turns around — so why reduce the availability of consumer credit now?

Congress should keep in mind that credit cards have been a significant source of consumer liquidity during this downturn. While few of us want to have to cover our basic living expenses on our credit card, that option is certainly better than going without those basic needs. The wide availability of credit cards has helped to significantly maintain some level of consumer purchasing, even while confidence and other indicators have nosedived.

In a Cato Daily Podcast, Calabria explains how credit card companies have been a major source of liquidity for a population that is strapped for cash to pay for everyday goods.

Republican Strategy on the Supreme Court Vacancy

President Obama is not the only one with a difficult decision to make in the face of mounting pressure from various groups.  The Republicans will have to decide what posture to take: combative or deferential, political or analytical.

With Obama still at the height of his popularity, and with solid Democratic control of the Senate (even without Arlen Specter and Al Franken), the GOP is unlikely to sustain a filibuster or generate significant opposition to any but the most extreme nominee — such as the radical transnationalist Harold Koh, whose nomination to be the State Department’s head lawyer is currently pending.

What Republicans should do instead is force a full public debate about constitutional interpretation and judicial philosophy, laying out in vivid detail what kind of judges they want.  Instead of shrilly opposing whomever Obama nominates on partisan grounds, now is the time to show the American people the stark differences between the two parties on one of the few issues on which the stated Republican view continues to command strong and steady support nationwide.  If the party is serious about constitutionalism and the rule of law, it should use this opportunity for education, not grandstanding.