Topic: General

Hudson Reargued

The Washington Post has a write-up of yesterday’s unusual second round of oral arguments in the Hudson v. Michigan case (see my summary of the case and its implications here, Cato’s amicus brief in the case here [pdf]). The case was almost certainly reargued because it ended in a 4-4 tie the first time around, meaning that new justice Samuel Alito is the likely tie-breaking vote. To that end, there’s reason for pessimism:

The case may have a different outcome without retired Justice Sandra Day O’Connor. She seemed ready, when the case was first argued in January, to rule in favor of a Detroit man whose house was searched in 1998.

Alito was confirmed to replace O’Connor before the case was resolved. The new argument was scheduled apparently to give Alito a chance to break a tie vote.

Alito, a former appeals court judge and government lawyer, seemed more sympathetic to police. He asked tough questions of the lawyer for Booker Hudson Jr., who was convicted of cocaine possession based on evidence found in the search. Alito had no questions for government lawyers.

According to the Post, if one were to judge by the oral arguments the first time around, the justices lined up in a neat left-right split, with Scalia, Roberts, Thomas, and Kennedy on the state’s side, and Stevens, Ginsberg, Souter, and Breyer for the defense. The Post suggests Kennedy may be hedging:

Another justice who could be crucial to the outcome is Justice Anthony M. Kennedy, a moderate swing voter. During the January argument, Kennedy called the issue “troublesome,” but seemed most supportive of police. He also appeared conflicted Thursday.

I’d like to think Thomas will continue his libertarian growth on the bench and find for the defense in this case. But the tone of the questioning in the second round of arguments suggests otherwise. What’s clear is that Bush’s nomination of Alito may very likely tip the outcome. O’Connor seemed ready to side with the defense:

During the January argument, O’Connor worried aloud that police officers around the country may start bursting into homes to execute search warrants. She asked: “Is there no policy of protecting the home owner a little bit and the sanctity of the home from this immediate entry?”

The answer, sadly, is “no.”

In the last election, I seem to remember hearing lots of lecturing from conservatives, telling libertarians they should overlook President Bush’s big-government record and support him, if for no other reason than for the Supreme Court justices he’d appoint.

Still waiting for that payoff….

Driven to Distraction

Not 24 hours after President Bush signed into law the latest round of tax cuts (which have no effect on the size of government), Republicans from around town gathered to gush about their Medicare prescription drug program (which increases the size of government).

I’ll not name names, but there were a few faces at the GOP love-fest who, in their hearts, truly want to reform Medicare.  The greatest tragedy of Part D might be the way it has distracted those Republicans from that purpose.

(Erratum: On a previous occasion, I accused the GOP of throwing your tax dollars off the back of a truck.  It appears Republicans have been using a bus rather than a truck.  I apologize for the error.)

Do Libertarians Have a Prayer?

Many people think political philosophy comes in two varieties, liberal or conservative. The former values social freedoms while seeking government control over capitalist acts between consenting adults (in Robert Nozick’s wonderful phrase). Conservatives defend economic freedom but not other acts between consenting adults. As a philosophy that seeks both social and economic liberty, libertarianism has sometimes seemed at the margins of American politics. A recent poll throws doubt on that assumption.

The Pew Research Center measured political ideology based on six questions from one of their 2004 surveys. Three of the questions concerned economic liberty, the others social freedoms. Liberals scored high on social freedoms, conservatives on economic liberty, and populists had little regard for either. Libertarians, as you might expect, consistently supported liberty in both dimensions.

Pew estimates that 9 percent of Americans are libertarians. That might seem low until you realize that 18 percent are liberal, 16 percent populist, and 15 percent conservative. Pew calls the rest of the nation “ambivalents” who have no firm ideological outlook. As Scott Keeter, the author of the Pew study, concludes “libertarians, though the smallest of the ideological groups, represent a substantial percentage of the population.”

A lot of what Pew discovered about libertarians may not surprise you. They are more likely than the rest of the population to have a college degree, to be in the highest income category, and to come from the West. On the issues, libertarians are more likely to think homosexuality should be accepted, to favor stem-cell research, to believe businesses make a fair profit, and to find free trade good for the nation.

But some of Pew’s other findings about libertarians are more unexpected, at least to me. Libertarians are 50 percent more likely to declare themselves “secular” than the general population. Still, only about 12 percent of the libertarians surveyed identified themselves this way. Libertarians are also more likely than the general population to identify as a “white Catholic.” Finally, almost two-thirds of the libertarians said they go to church at least once a month. That’s a little less than the general population, but a lot more than I would have guessed.

Half of the libertarians identified with or leaned toward the Republican party. At the same time, 41 percent affiliated themselves with the Democrats. Sen. Kerry got 40 percent of the libertarian vote in 2004. President Bush did better among libertarians than you might expect given the party identification numbers. Bush got 57 percent of libertarian vote last time. But as they say, “if the election were held today….”

I have saved the best for last. One-third of Pew’s libertarians are between 18 and 29 years of age. Libertarians are thus fifty percent more likely to be found among the young than in the population as a whole. They are also much more likely to be found among the youngest cohort than are conservatives or populists.

So the present may seem bleak for libertarians. But just wait. Help is on the way.

Mart Laar, Friedman Prize Winner

Tonight, in Chicago, Cato is hosting the formal presentation of the third biennial Milton Friedman Prize for Advancing Liberty. This year’s winner is Mart Laar, the former prime minister of Estonia responsible for guiding his country’s successful transition from communism to a democratic market economy.

We are now in the fifteenth year since the collapse of the Soviet Union, and unfortunately many of the former Soviet republics have made little progress in either economic or political reform. Estonia, however, is a glittering exception. According to the Economic Freedom of the World report, the country now ranks 12th out of 127 countries in economic freedom. Freedom House gives Estonia its highest rankings for both political rights and civil liberties. And the World Economic Forum rates Estonia 20th out of 117 in its Growth Competitiveness Index.

For Laar to win the Friedman Prize is especially fitting, since Laar’s bold free-market reforms were inspired by Friedman himself. Before entering politics, Laar was a historian. “I had read only one book on economics – Milton Friedman’s Free to Choose. I was so ignorant at the time that I thought that what Friedman wrote about the benefits of privatization, the flat tax and the abolition of all customs rights, was the result of economic reforms that had been put into practice in the West. It seemed common sense to me and, as I thought it had already been done everywhere, I simply introduced it in Estonia, despite warnings from Estonian economists that it could not be done. They said it was as impossible as walking on water. We did it: we just walked on the water because we did not know that it was impossible.”

Here is Laar’s 1992 book, War in the Woods, on Estonian resistance to Soviet occupation during and after World War II. And here is a paper presented by Laar at a 2004 Cato conference in Russia on Estonia’s reform experience.

Rapanos v. United States: The Blog

The Pacific Legal Foundation is the lead counsel in one of the biggest cases of the Supreme Court’s current term: Rapanos v. United States, a case involving egregious interference with private development by federal and state environmental regulators. In anticipation of the Court’s decision, PLF has started a blog on the case, which you can access here. For more Rapanos fun, read a short Wall Street Journal write-up about the story behind the case here. You can read the Cato Institute’s amicus brief in the case (written by yours truly) here.

The Left vs. Conservation

I was on NPR’s “News & Notes with Ed Gordon” today to discuss gasoline prices with Julianne Malveaux. It was a rather bizarre experience. Apparently, the Left is of many, many minds when it comes to energy conservation—and all of those minds seem to coexist in the same head.

On the one hand, Dr. Malveaux was quite adamant that we need to “incentivize people” (her phrase) to use mass transit. But, on the other hand, she was equally adamant that gasoline prices were too high and had to be brought down by hook or crook.

Question 1: Wouldn’t increasing the marginal cost of driving provide the most powerful incentive for people to use mass transit?

Question 2: Wouldn’t decreases in marginal driving costs reduce the incentive people would have to use mass transit?

I tried to press her on those points but couldn’t get a straight or even understandable answer out of her.

When I tried to point out that how much people spend on gasoline is largely under their control and that high gasoline costs will do more to encourage conservation than anything government could do, I was treated to a rather loud rant about why most people had no option but to keep buying gas and that only ivory tower, doctrinaire Cato types would ever believe to the contrary.

Now, this is really something. Up until recently, environmentalists and conservationists have gone on at quite some length about how people can and should conserve energy. When I took a page from that book and suggested that people could sell their SUVs, pickups, and luxury sedans for more fuel efficient cars, I was told that this would be too expensive for working Americans to even consider (huh?). When I suggested that people could move closer to work or to mass transit hubs if they wanted to cut their commute costs, I was accused of crazy talk. When I suggested that car-pooling is always possible for those who don’t want to pick up stakes, I was informed that this is yet more crazy talk. When I suggested that people may want to rethink how often and how far they drive around town on errands or the nature of their summertime vacations, I was accused of peddling nonsense. When I argued that high gasoline prices are actually something that conservationists and environmentalists should embrace, I was dismissed as a nutcase.

Apparently, all that talk about conservation from the Left was smoke. It’s actually an impossible task, quite beyond the capabilities of mere mortals.

Reflexive Militarism

Some have charged that President Bush’s plan to deploy 6,000 National Guardsmen to support roles along our border with Mexico constitutes “militarizing the border.” Well, sort of. But “security theater” is probably a better term. It’s a highly visible move designed to provide the appearance of increased security without actually increasing it, much like the use of guardsmen at the airports following September 11th.

In this case, the troops will be “operating surveillance systems, analyzing intelligence, installing fences and vehicle barriers, building patrol roads, and providing training,” according to the president’s speech Monday night. They will be under the command of the state governors, they will not have arrest authority, and they will not be involved in direct law enforcement activities, which means that there’s no objection based on the Posse Comitatus Act, the longstanding federal statute that restricts use of federal troops to “execute the laws.” On the whole, this is a far cry from some of the proposals for hard-core border militarization floating around on the right.

Yet the Bush administration does have a tendency, when faced with political trouble, to reach for the military. Trying to look decisive in the wake of Katrina last fall, the president asked for major revisions to Posse Comitatus twice in the space of a month, once to fight hurricanes and once to order military quarantines for Avian flu. Monday’s proposal is merely the latest iteration of the administration’s reflexive militarism, and it’s a comparatively mild one at that.

But here’s something a little more troubling than the upcoming exercise in security theater at the border. In the administration’s internal legal analysis, the Posse Comitatus Act may be vulnerable to going “poof,” as yet another statute touched by the Magic Scepter of Inherent Authority. There are a lot of bad ideas floating around about domestic militarization of the war on terror. If there’s another serious terror attack, that legal theory could be used to make some of those bad ideas happen.