Topic: Law and Civil Liberties

Adventures in Censorship

Matt Yglesias details the ways that McCain-Feingold is restricting his free speech rights. It seems that because Matt now works for a company that lacks a “media exemption,” he’s prohibited from commenting on the “character, qualifications, and fitness for office” of candidates for office. Since Matt has an extremely low opinion of one of the major presidential candidates, I imagine this is pretty hard for him.

And yet Matt doesn’t reach what seems to me the obvious conclusion: that McCain-Feingold is a restriction on free speech that can’t be reconciled with the First Amendment. Matt doesn’t defend McCain-Feingold either, and he’s said in the past that he doesn’t think McCain-Feingold will accomplish much. But it’s awfully hard to come up with an interpretation of “Congress shall make no law… abridging the freedom of speech” that doesn’t protect Matt’s right to question the “qualifications and fitness for office” of candidates for office, or the Center for American Progress’s right to pay him to do so.

Update: Matt writes to point out that both he and his erstwhile colleagues at the American Prospect have long opposed McCain-Feingold as a restriction on free speech. Good for them. They’re more enthusiastic about public financing than I am, but they recognize the basic point that the First Amendment doesn’t allow Congress to restrict people from criticizing political candidates in the months before an election. It’s a pity that the “liberal” members of the McConnell court had trouble grasping the same point. Maybe they should spend less time reading the censorious New York Times editorial page and more time reading the Prospect.

Cult of the Presidency in National Review

Claremont Institute fellow Michael M. Uhlmann has a dismissive review of The Cult of the Presidency in the current issue of National Review: “It’s Not Just the Executive,” September 15, 2008. (Here it is if you get NR Digital, otherwise it’s available in the print edition). It seems to me that the review largely consists of inaccurate characterizations, unsupported assertions, and non sequiturs. But hey, I’m the author, and understandably biased, so check it out and judge for yourself.

Uhlmann writes that “The bulk of Healy’s book is devoted to various sins, offenses and negligences of the Bush administration.” That’s a bizarre statement, given that the book has nine chapters and an introduction, and only three of those chapters cover GWB’s tenure. In fact, the “bulk of the book” is devoted to demonstrating that, as I write in Chapter Two, “the problems of the modern presidency did not begin when George W. Bush emerged victorious from 2000’s seemingly interminable Battle of the Chads” and that–despite what some on the Left seem to believe–those problems will not vanish in January 2009 when he heads back to the ranch to cut brush.

The book is a history of the presidency’s transformation from the important, but constitutionally limited office the Framers designed to an extraconstitutional monstrosity charged with moving the masses and saving the world. But by beginning his review with a discussion of “unhinged” Bush critics, and mischaracterizing the book’s contents, Uhlmann has undoubtedly left NR readers with the impression that The Cult of the Presidency is yet another partisan screed against the current administration.  Move along, nothing to see here.

That’s a shame, because conservatives could surely benefit from reexamining their decades-long affinity for strong presidencies.

There’s nothing particularly conservative about investing vast unchecked power in the hands of whichever professional politician manages to claw his way to the top in a modern presidential contest. As Russell Kirk put it, “Knowing human nature for a mixture of good and evil, the conservative does not put his trust in mere benevolence. Constitutional restrictions, political checks and balances, adequate enforcement of the laws, the old intricate web of restraints upon will and appetite—these the conservative approves as instruments of freedom and order.” And if principled reasons aren’t good enough, the fact that Republicans, let alone conservative Republicans, are unlikely to dominate the electoral college in the coming decades ought–like the prospect of a hanging–to concentrate the mind somewhat.

Uhlmann is willing to concede that the Bush administration’s claims of uncheckable authority over the detention and treatment of terrorist suspects “entail arguable legal propositions.” Which is gracious of him. But he provides very little argument for his view that the Framers envisioned a president with anything like the powers the current president–or others before him–have claimed. What arguments he provides often consist of offering innocuous and uncontroversial historical claims about 18th-century Americans’ views of executive power–as if those claims establish that the modern presidency is the constitutional presidency. In each case, he falls a few premises short of a syllogism.

Yes, the Federalist suggests, as Uhlmann notes, that “legislative excess is the danger chiefly to be guarded against in a republic.” But that was so, as Madison explains in No. 48, because the government the Constitution envisioned would be fundamentally different from one in which “numerous and extensive prerogatives are placed in the hands of a hereditary monarch.” Legislative power was more to be feared precisely because under the American Constitution “the executive magistracy is carefully limited, both in the extent and the duration of its power.”

Yes, the Framers sought to avoid some of the mistakes made in some of “the state constitutions adopted between 1776 and 1787” and to create a relatively vigorous and independent executive. But there’s quite a distance between that fact and the current administration’s claims that Congress cannot restrain the president from ordering torture and that the president has the power to permanently imprison American citizens without charges or legal process. (Uhlmann treats these issues at greater length in an extensive essay on presidential powers in a recent edition of the Claremont Review, in which, it seems to me, the verbiage-to-evidence ratio is also fairly high.)

Then there’s Uhlmann’s painfully obvious argument that “It’s Not Just the Executive” that’s a problem in our modern welfare-warfare state. Well, yes. It’s not clear who Uhlmann’s arguing with when he points out “the size and arbitrariness of government in general” are intertwined with concerns about a powerful presidency, and that the growth of presidential power would not have been possible without the collaboration of Congress and the judiciary. I make the same points repeatedly and at length throughout the book.

But the book focuses on the presidency because the president has become the focal point of Americans’ dangerously unrealistic expectations about what government can deliver, at home and abroad. As the political scientist Theodore Lowi explained (and as I discuss in the book), the post-New Deal state pledged itself to the constant delivery of goods and benefits, with the public looking most of all to the president to meet the key test of the new regime’s legitimacy: “service delivery.” The emerging “Second Republic of the United States” was one in which, as Lowi sums up, “the system of government had become an inverted pyramid, with everything coming to rest on a presidential pinpoint.”

So the presidency is important. It merits special attention, perhaps especially from conservatives, given their longstanding myopia about the dangers of presidential power. For too long the Right has been wedded to the odd proposition that next to the “Imperial Congress” and the “Imperial Judiciary”, the executive branch–the branch with guns–is the least dangerous branch. I’m glad that NR reviewed the book, and I didn’t expect an uncritical embrace of my perspective. But I would have preferred a serious discussion of the issues the book raises.

New at Cato Unbound: Responsible Drug Use

What would we do without drug prohibition?  Well, we’d probably have to think for ourselves, make informed choices about drug use, and behave responsibly.  A scary thought.

But in a sense, we already have to do these things, because prohibition has completely failed at keeping illegal drugs out of American life. Making wise decisions is already important, and prohibition hasn’t changed much about the need to be informed and responsible.  Prohibition has, however, encouraged a great deal of misinformation about drugs, harmed our civil liberties, promoted violence, wrecked the usual market safeguards that apply to consumer goods, and made the most dangerous drugs more prevalent.

After admitting that “just ban them all” is not a viable answer, the next step in getting past drug prohibition is the search for sensible ways to interact with psychoactive drugs.  The real choice isn’t between prohibition and a final drug binge that wipes out America once and for all.  It’s between prohibition and individual responsibility – a responsibility that might mean saying “no,” but could sometimes mean saying “yes.”

This isn’t an easy message to sell, but two people have been trying for more than a decade, and their efforts have been extraordinary.  They are the pseudonymous authors Earth and Fire Erowid, who together maintain the Erowid.org drug information archive, the largest and most often visited drug information site on the Internet.

They are also the lead authors at Cato Unbound this month, and they’ve produced a remarkable essay criticizing drug prohibition, encouraging free inquiry, and insisting that sound drug policy begins with individual choice and individual responsibility.

Calvo Raid Justified?

The police have now reviewed and justified the violent break-in of Berwyn Heights, Md., mayor Cheye Calvo’s home a few weeks back. The police kicked in his front door without announcing themselves, and shot his two pet dogs dead. The police later cleared Calvo of any wrongdoing but insisted that their raid tactics were appropriate. A separate FBI investigation is under way.

We’re hosting a forum on no-knock raids here next week.  Mayor Calvo will be here to tell his story and we’ll also hear from Radley Balko, author of the Cato study Overkill, and Peter Christ, co-founder of Law Enforcement Against Prohibition.  Details here.

Convention Speeches So Far: Only a Little Terror Hype

I’m proud to report being almost perfectly indifferent to the goings-on at the two political conventions. I don’t care one way or the other about Sarah Palin, though she’s obviously an interesting pick. Here’s what interests me: the rhetoric around terrorism.

Over-the-top speechifying that stokes terrorism fears at the conventions would be bad for the country because it would help perpetuate various costly overreactions and misdirected responses to terrorism. It would encourage would-be terrorists and terrorist groups by granting them more power than their capabilities merit.

I’m pleased to report that the speeches so far have been fairly muted, including Palin’s last night, for the most part. (I’ve only reviewed the presidential and vice presidential candidates’ speeches. I’m sure plenty of speakers have said unfortunate things, but they draw far less attention than the candidates.)

Senators Obama and Biden both referred to keeping nuclear weapons out of terrorists’ hands - an appropriate aim, but perhaps not a significant enough threat to merit mention in a speech of this type. The consequences of a nuclear detonation on U.S. soil (or anywhere) would be significant, of course, but the chance of it happening is vanishingly small.

Governor Palin indulged in a little excess as she criticized Barack Obama’s putative approach to terrorism: “Al Qaeda terrorists still plot to inflict catastrophic harm on America … he’s worried that someone won’t read them their rights?”

It’s almost certainly true that Al Qaeda terrorists (and others) plot to inflict catastrophic harm on America, but what matters more is their capability to do so. The vigilance of various agencies and people almost certainly has their capabilities in check.

I suspect that the man accused of plotting to attack the Republican convention with Molotov cocktails was a more proximate danger to “the homeland,” and he undoubtedly was read his rights.

Reading terrorists their rights, and treating them with scrupulous fairness, would help start to make them boring, and it would keep the focus on their wrongdoing. This would enervate terrorism and deprive terrorist groups of recruits and support. On these grounds alone, we should all be for reading terrorists their rights.

I’ll be watching - scratch that - I’ll check the transcript tomorrow to see if Senator McCain repeats any of his terror-hyping lines. I noted here a few weeks ago when he declared himself a follower of Osama bin Laden.

It’s an exciting line - “I will follow Osama bin Laden to the gates of hell” - but it is a singularly foolish thing to say. It suggests that, as president, McCain would be owned by bin Laden.

I hope Senator McCain charts his own rhetorical course, rather than the one terrorists might like him to follow.

Florida High Court Defeats Threat to its Sovereignty

With barely a moment’s reflection, the Florida Supreme Court has stricken two amendment questions from the state’s November ballot. The first would have allowed religious institutions to participate in state programs, subject to the limits imposed by the First Amendment to the U.S. Constitution. The second would have overturned a 2006 Florida Supreme Court decision that essentially forbids the legislature from creating any alternative education programs alongside the required public school system.

The written decision has yet to be published, but whatever it says, it will be hard not to see this ruling as the latest turf battle between the Court and the voters – with the Court coming out on top yet again. This is bad news for Florida families, whose elected representatives will continue to have their hands tied on education policy.

When it comes to education in Florida, the state’s high court has asserted its sovereignty, and seems earnestly dedicated to preserving it. First it shackled the people of Florida to their troubled public school system, and now it has taped their mouths shut so that they cannot overturn its decision.

Speedy Trial?

Joseph Shepard sat in local jails for almost two years on drug related charges.  According to the St. Louis Post-Dispatch, he’s a man the system forgot–ignored by prosecutors, judges, and his own attorney. (Via How Appealing).

In North Carolina, the Courts have ruled that the busier the state gets, the more we need to forget about the constitutional rule requiring speedy trials.  And the drug war makes the courthouse a very busy place indeed.