Topic: Law and Civil Liberties

Markets and Social Justice in Housing and Education

For decades, discriminatory housing policies in the U.S. restricted the ability of black citizens to purchase homes outside of predominantly black ghettos. From the 1950s through the 1970s, real estate speculators called “blockbusters” made some progress opening up white-only neighborhoods to black families until an odd coalition of segregationists and left-wing activists succeeded in regulating blockbusters out of existence. Tragically, the U.S. housing market has remained largely segregated even until today. Moreover, because a family’s access to a quality education is determined primarily by the location of their home, black children are disproportionately assigned to low-performing district schools, depriving them of opportunity. 

Sadly, misguided suspicions about the market led left-wing leaders to support paternalistic regulations that harmed the very people they intended to help – a disastrous mistake that many modern progressives are now repeating in education policy.

In a recently updated version of his 1998 paper, “A Requiem for Blockbusting,” Dmitri Mehlhorn of the Progressive Policy Institute details the sordid history of discriminatory housing policy in the U.S. When Southern agricultural jobs dried up in the early 20th century, black workers began migrating to the industrial North. The response was ugly:

White Americans mostly reacted to this migration with coordinated and violent hatred. Driven by xenophobia, they used physical, political, and economic power to drive blacks into strictly circumscribed ghettos. The ugliness was a team sport, including local governments, state and federal agencies, courts, businesses, and the media.

At the federal level, the Federal Housing Administration encouraged racial covenants, stating that they “provide the surest protection against undesirable encroachment and inharmonious use.” These covenants contractually prohibited homes from being resold to black families. By the 1940s, integrated neighborhoods had ceased to exist in every major city in the United States.

The U.S. Supreme Court eventually ruled against racial covenants in housing, but racists found workarounds. As Mehlhorn details:

For instance, both federal and local agencies encouraged white flight by steering resources to whites seeking segregated suburban houses and schools, while cutting those resources for black families. So-called “urban renewal” laws were used to raze expanding black neighborhoods that threatened white institutions. Federal funds were used to construct massive public housing projects for the displaced black residents.

We are still feeling the effects of these discriminatory policies today, particularly in education, which is intimately linked with housing policy. According to a 2012 study by the UCLA Civil Rights Project, “80% of Latino students and 74% of black students attend majority nonwhite schools (50-100% minority), and 43% of Latinos and 38% of blacks attend intensely segregated schools (those with only 0-10% of whites students) across the nation.”

How Would a President Ben Carson Overturn Roe v. Wade?

That’s the title of my Forbes oped today, following on some comments this weekend from the man that some polls show has taken over from Donald Trump as the new Republican frontrunner in the race for the White House. Before you can even begin to analyze how a president would go about changing abortion jurisprudence, however, you first have to understand what that jurisprudence says:

… Roe isn’t even the governing legal precedent regarding abortion—and hasn’t been for over two decades, since the Supreme Court’s ruling in Planned Parenthood v. Casey (1992). While Roe recognized a right to abortion as part of constitutional privacy protections, it set up a trimester framework to balance that right against the governmental interest in protecting the “potentiality of human life.” First-trimester abortions were to be at the complete discretion of the woman and her doctor, states could ban third-trimester abortions, and there was a gray area in the middle.

Casey collapsed that framework, upholding Roe’s “essential holding” about the abortion right but replacing the trimester framework with one that focused on viability. No regulations that placed an “undue burden” on the abortion right would be allowed before viability, while after viability states had more leeway so long as they made exceptions for maternal life and health. What constitutes an “undue burden”? In effect, it’s whatever you can get five votes for at the Supreme Court.

In other words, if you’re pro-life, returning to a world where Roe v. Wade is the law of the land would actually be an improvement over the current situation.

I go on to examine the institutional dynamics of trying to change the Supreme Court – which has some application to debates beyond abortion, though I doubt potential nominees’ (assumed) positions even on such controversial recent cases as HellerCitizens UnitedShelby County, and NFIB v. Sebelius, would play as large a role in the political battle. In any event, to see my further analysis of the Carson conundrum, read the whole piece.

New York Times Editorial Board Regurgitates Bad Study to Condemn Concealed Carry

Back in June, I detailed a study by the Violence Policy Center that purported to show that private gun owners were far more likely to kill innocent people than to defend themselves.  The study arrived at this conclusion by using woefully incomplete data sets from the FBI crime reports, which are voluntarily submitted (or not submitted) by law enforcement agencies.  You can read my full analysis here, but the short version is that the VPC study interprets the lack of justified homicide submissions by law enforcement as proof that justified homicides do not occur, resulting in an unbelievable assertion that there were literally zero defensive gun uses in dozens of states over a five year period.  The VPC study also fails to distinguish between legal and illegal firearm uses and fails to adequately consider defensive gun uses that didn’t result in anyone dying (i.e. the vast majority of such uses).

This week the New York Times editorial board regurgitated that shoddy study, and managed to compound the illogic by drawing even broader and less supported conclusions than the original.  The editorial is brief, yet still manages an impressive amount of specious reasoning.

From the top:

The more that sensational gun violence afflicts the nation…

Gun homicide rates have been decreasing for the last generation, a fact as little known as it is demonstrably true.

This foolhardy notion of quick-draw resistance, however, is dramatically contradicted by a research project showing that, since 2007, at least 763 people have been killed in 579 shootings that did not involve self-defense.

Those numbers are not from the study linked by the Times, which analyzed all private firearm deaths regardless of legality.  Instead they come from the VPC website itself, on a page about concealed carriers.  Of that 763 figure, 223 were suicides, which hardly seem relevant to a discussion about gun crime in America. 

That leaves 540 non-suicide fatalities between May 2007 and October 2015, or fewer than 64 deaths a year.  Just for comparison’s sake, roughly 49 people a year are killed by lightning strikes in this country, without lightning strikes being labeled “a severe public health problem” by the New York Times.

The figure is also useless without a full accounting of legitimate defensive gun uses on the other side of the ledger, an effort neither the VPC nor the Times seems interested in making.

A Million Homes Taken Since Kelo

It has been just over a decade since the Supreme Court decided in Kelo v. New London that local governments can take private property by eminent domain under a very broad reading of “public use”.  Cato held an event earlier this year to examine the legal impact of Kelo, featuring remarks from George Mason Law Professor Ilya Somin based upon his recent book, The Grasping Hand.  Not only has Kelo spawned widespread public backlash, but its also given birth to renewed interest by legal scholars.  As an economist, I am a little more interested in the direct impact on families.

Unfortunately, I have had no luck finding a database of all U.S. takings.  The American Housing Survey (AHS), conducted by the Census Bureau every two years, does, however, offer some estimates.  For survey respondents who moved within the previous year, the AHS asks respondents the “main reason” for leaving their previous unit.  One option offered is “government displacement”. For the survey years since Kelo, the average has been 109,000 households who state that government action displaced them from their previous home.  If that average holds for non-survey years, then a good estimate is that just over a million households have been displaced by government action since Kelo

“John Doe” Investigations

The Wall Street Journal has an editorial today on the prosecutorial abuses surrounding “John Doe” investigations.  By way of background, so-called “John Doe” laws allow prosecutors to bypass the regular search warrant application process and use special subpoenas to demand all sorts of information from various institutions, such as internet service providers.  If the prosecutor demands your email records, you may never know it has even happened.

Excerpt from the editorial:

New evidence shows that John Doe investigators were trawling the files they collected via subpoenas and search warrants for information on national conservatives.

The documents are under seal in a state court case, Eric O’Keefe and Wisconsin Club for Growth v. Wisconsin Government Accountability Board (GAB), but two sources have read them to us. The lawsuit is a complaint against the GAB, the state agency that worked with Milwaukee prosecutors on the John Doe that used campaign-finance laws to trample the First Amendment.

We’ve tried to expose this illegal harassment since the autumn of 2013, when early morning home raids and subpoenas hit conservative groups across the state. From that investigation and a previous John Doe whose documents were transferred into the new investigation, prosecutors and the GAB collected millions of documents, including personal files, emails and bank statements.

Eric O’Keefe recently shared his chilling experiences in Wisconsin in a Cato Daily Podcast.

There is no place for “John Doe” investigations in America.  Period.  “Reforming” John Doe falls short.

Chicago’s Sheriff Crusades against Online Ads

Prior restraints—legal prohibitions on disseminating information before publication—are an odious burden on the freedom of expression and come with a “heavy presumption” against their constitutionality. Indeed, they are so disfavored in the law as to be virtually impossible to obtain outside of wartime.

Informal prior restraints—government pressure without formal sanction—are even more unconstitutional than formal ones, as the Supreme Court noted in Bantam Books v. Sullivan (1963). In that case, the Court forbade the Rhode Island Commission to Encourage Morality in Youth from sending threatening letters to book distributors in an attempt to nudge the distributors into not carrying “obscene” material.

But that strong precedent didn’t stop Cook County (Chicago) Sheriff Thomas Dart and his crusade against, an online commerce site similar to Craigslist. Rather than trying to get a formal prior restraint from a court, Dart used his office, letterhead, and title to send letters threatening investigation to Visa and MasterCard (Backpage’s primary financial transaction processors) to pressure them into dropping Backpage as a customer. Dart justifies his actions by asserting that there have been “years of growth in the online sex trade,” “driving demand even higher and increasing the enslavement of prostituted individuals, including children” due to commercial sites like hosting “adult services” classified ads.

It worked: when Backpage sued to stop Sheriff Dart, the district court denied a preliminary injunction, accepting Dart’s claims and ruling that the public interest weighed against the website. appealed to the U.S. Court of Appeals for the Seventh Circuit.

Further on the Ninth Amendment

In a private response to my post earlier this afternoon, Ed Whelan has brought to my attention two errors in this paragraph:

The addition of the Bill of Rights, in short, did not reduce the number of rights we enjoy, limiting them to those fairly clearly “in” that document. It simply enumerated some of the rights in that vast sea of previously unenumerated rights—all of which, enumerated and unenumerated alike, were later incorporated against the states through the Fourteenth Amendment, properly read.

He alerts me that in his post last Thursday, to which I responded on Friday, he had written:

These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. (emphasis added)

Fair enough. By placing the emphasis on judges limiting power (which they rarely do since the New Deal constitutional revolution), Ed doesn’t have to worry about whether the Constitution “sets forth” unenumerated rights pursuant to the Ninth Amendment, and so I stand corrected—at least in the case of challenges to federal power.

But of course most unenumerated rights questions arise in challenges to state power, which brings me to a misstatement in that passage of mine above. I wrote that all of our rights, “enumerated and unenumerated alike, were later incorporated against the states through the Fourteenth Amendment, properly read,” and that of course is not correct. For just as we give up some of our rights when we constitute ourselves nationally, so too we give up others when we constitute ourselves at the state level. The usual state cases, however, (Griswold, Troxel, etc.) involve rights that we do not give up—all of which, to fully explain, requires a more detailed theory of both state police power and the rights retained pursuant to the Ninth Amendment. I thank Ed for bringing that to my attention.

While I’ve got your attention, however, I might as well take this opportunity to call into question a contention that many conservatives, including Ed, are fond of making, namely, that the Ninth Amendment should be read as a rule of construction. As he writes in this morning’s post, “defenders of the original Constitution argued against a bill of rights on the ground that such a listing might imply that the national government’s powers were far greater than they were.” True, that is one reason they opposed a bill of rights. But he continues:

When the Bill of Rights was added, the Ninth Amendment was crafted to guard against this implication. The text of the Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”), which sets forth a mere rule of construction (“shall not be construed”), comports perfectly with this purpose.

True again, the Ninth Amendment does guard against that implication. But that does not mean that the amendment “sets forth a mere rule of construction.” For the object of “construed” is “to deny or disparage other[] [rights] retained by the people.” And that brings us to a different rule of construction: expressio unius est exclusio alterius. An additional fear opponents of a bill of rights had was that the enumeration of some rights in such a bill would be construed as excluding other, unenumerated rights from protection, and that too is why, if a bill of rights were to be added, the Ninth Amendment would be needed to ensure that both enumerated and unenumerated rights were protected. True, the question comes up most often in challenges to state laws, but with the demise of the doctrine of enumerated powers it comes up in federal cases as well.