Topic: Law and Civil Liberties

‘Security Is the New Freedom’

That’s what David Brooks declares in yesterday’s New York Times. In the column, he argues (yet again) that limited-government conservatism is dead, and that what should take its place is an orientation that focuses less on “negative liberty (How can I get the government off my back) and more [on] positive liberty (Can I choose how to live my life).” We also learn from Brooks that since “The ‘security leads to freedom’ paradigm is a fundamental principle of child psychology,” it must be the right way to look at man’s relationship to the state.

Since Brooks cites Tyler Cowen’s contribution to Cato Unbound, now’s as good a time as any to carp about that essay. I can’t agree with Professor Cowen that the libertarianism of the future ought to share the Left’s focus on ‘positive’ liberties and make its peace with big government. The 21st century libertarianism he’d like to see, a doctrine that seems to view principled distrust of government as an anachronism, isn’t libertarianism at all. It’s modern liberalism with a greater appreciation for markets — Thomas Friedman without the mixed metaphors. If modern liberalism moves in that direction, the world will be better off, and if libertarians can help encourage that transition, we should.

Yet I don’t understand why the continuing resilience of the welfare state constitutes an “intellectual crisis” for libertarianism. An ideology is in intellectual crisis, it seems to me, when certain of its core tenets turn out to be wrong. That people still like the idea of free stuff from government doesn’t count unless libertarianism has been in crisis from its inception.

In any event, my guess is that any political prediction that Cowen, I, or any other aspiring Hari Seldon might choose to make will, in a matter of decades, look as quaint as one of those 1950s magazine pieces on our Jetsons-style future. Given the difficulty of predicting the future, we might do better to focus on what’s true instead of what we believe to be politically possible.

If the welfare state impedes human flourishing, if the drug war is an abomination, if the New Deal constitutional revolution was an intellectual fraud from top to bottom, then libertarians ought to say those things. Because they’re true. Because they’re not said often enough. And because describing the world accurately is the first step towards changing it.

What sort of changes are possible? Who knows? But even if you think the best we can hope for is a less-awful welfare state, don’t underestimate the clarifying effect of bold, uncompromising ideas. Such ideas can help make positive, incremental reforms possible. The welfare reform we got in 1996 — generally a good thing — looks more like Robert Rector’s program than Charles Murray’s “end welfare” thought experiment in Losing Ground. But would we have gotten that sort of reform if Murray had decided that imagining a world without welfare wasn’t worth the effort?

One of the most wonderful things about Brian Doherty’s history of libertarianism is how little the ideology’s founding mothers and fathers cared about what sort of bills might plausibly get out of committee. There’s no denying that 20th century libertarianism had elements of apocalyptic pessimism. But it’s hard to miss the equally broad streak of insane optimism. To stand in the middle of the Century of the State and proclaim a vision of a world unshackled, a world governed by the rule of “anything that’s peaceful,” that is, a world hardly governed at all — what could be bolder or more hopeful? The Audacity of Hope!

Sure, Hayek and Friedman were willing to accept aspects of the modern welfare state. But it’s only when divorced from historical context that they look like Moderates for Capitalism. In the (sparkly) teeth of New Frontier liberalism, Capitalism and Freedom proclaims that Kennedy’s inaugural address — “ask not what your country…” — was founded on a worldview unworthy of free men in a free society. It was, for its time, a radical book.

Writing in 1949, Hayek had an effective rejoinder to the idea that classical liberals ought to limit their aspirations to what’s currently politically possible:

We need intellectual leaders who are willing to work for an ideal, however small may be the prospects of its early realization. They must be men who are willing to stick to principles and to fight for their full realization, however remote. The practical compromises they must leave to the politicians. Free trade and freedom of opportunity are ideals which still may arouse the imaginations of large numbers, but a mere “reasonable freedom of trade” or a mere “relaxation of controls” is neither intellectually respectable nor likely to inspire any enthusiasm.

The main lesson which the true liberal must learn from the success of the socialists is that it was their courage to be Utopian which gained them the support of the intellectuals and therefore an influence on public opinion which is daily making possible what only recently seemed utterly remote. Those who have concerned themselves exclusively with what seemed practicable in the existing state of opinion have constantly found that even this had rapidly become politically impossible as the result of changes in a public opinion which they have done nothing to guide.

I’ll stop the Braveheart speech there. But just one more observation: Brooks’ (and Cowen’s?) notion that the modern world has outgrown the Liberty vs. Power paradigm is bizarre. Barring some miraculous change in human nature and the nature of government, that paradigm’s as enduringly relevant as anything gets in politics. There’s a reason “Skepticism about Power” is the section that opens David Boaz’s Libertarian Reader. That heuristic flows from observable truths about man’s nature and the state’s. Distrust of government lies at the heart of libertarianism and at the heart of the American experiment. Liberty’s future depends on rekindling it.

Another Loss for the Online Gambling Nannies

I have yet to digest the official ruling (for the most committed trade nerds, it’s available here), but the United States has been dealt yet another blow in its dispute with Antigua and Barbuda over Internet gambling.

According to a World Trade Organization report released to the public today, the United States has not complied with the rulings and recommendations of a previous panel’s verdict that the United States’ ban on online gambling services was in violation of its commitments to the WTO (more here). Translation: the United States has not made any changes to its restrictions on gambling over the Internet that would make its laws WTO-consistent.

The United States will probably appeal this latest ruling, but if it loses that appeal and continues to refuse to change its laws, then the state of Antigua and Barbuda could retaliate to recover the damage that it claims has accrued to its online gambling industry as a result of the U.S. ban. Retaliation usually involves placing tariffs on the goods of the offending country, in this case the United States. (That is, of course, an economically insane way of “punishing” the violator, but I digress.)

Radley Balko is hoping that Antigua and Barbuda will instead choose to kick the United States where it hurts, and suspend its obligations to protect the intellectual property rights of American companies.

DC Gun Laws

Eugene Volokh has thoughts on what constitutes a violation of the DC law regarding firearms possession.  Today’s Washington Post says police and lawyers are unsure about what is legal and what is illegal–at least with respect to members of Congress and their staff. The DC police say Senators may have guns in their offices, but it would be a crime for the members to carry or transport a handgun from their residence to their office.  To get around that bizarre reading of the law, one lawyer suggests that Senators have a DC police cruiser transport their weapons to and from their offices.  Good grief. 

Everyone seems to agree that Senator Webb’s staffer, Phillip Thompson, meant no harm.  Given that, shouldn’t Thompson invoke his constitutional right to a trial by jury?  I wish he would, but that is not likely to happen.  Prosecutors can extort guilty pleas from people like Thompson by using plea-bargaining tactics (pdf).  DC prosecutors will give Thompson an offer he can’t refuse: waive your right to a trial and plead guilty and you’ll get probation.  If Thompson says he’d like to have a jury trial, prosecutors will warn him that if he goes that route, the city will throw the book at him and add a criminal “count” for every single bullet (“unregistered ammunition”) that was in his possession.  Not many people are willing to risk years in prison by taking a case to a jury.  

Bottom line: A crazy quilt of laws and extorted guilty pleas.

It’s Only Disclosure!

Policymaking in First Amendment area begins with a presumption of liberty. That is, strong reasons must be given to restrict basic liberties.

Mandatory disclosure of campaign finance activity requires such strong reasons. The U.S. Supreme Court has given three reasons for mandated disclosure: to deter corruption, to inform citizens so they can predict what a candidate might do in office, and to help enforce contribution limits.

Not much is known about how the policy of mandated disclosure actually relates to these “state interests.” No one has been much interested in examining their effects because no one much objected. Mandatory disclosure was thought of as the least intrusive means to regulate campaign finance and political activity. Hence, even people inclined to criticize campaign finance regulation were heard saying, “it’s only disclosure.”

Since the agenda of possibilities was limited, alternatives were not considered in light of the costs and benefits of disclosure. Now that’s changing. Dick Carpenter and the Institute for Justice have conducted a survey to learn more about the likely effects of disclosure, especially in the context of a ballot initiative. The results do not encourage complacency about mandated disclosure. The study is well worth a look.

Bob Bauer comments on the Institute for Justice study during his insightful remarks on the fifth anniversary of you-know-what.

Congress vs. President

Since the news media keeps saying that we’re heading for a “constitutional showdown” between President Bush and the Congress, it’s time for a pop quiz. 

Who wrote the following passage?

“Congress’s power to compel members of the executive branch to obey its legitimate requests for information has long been deemed critical to the functioning of our democracy and has been upheld by the Supreme Court.”

A. Hillary Clinton

B. Dick Cheney

C. Thurgood Marshall

D. John Yoo

The correct answer is D, John Yoo.  See “How Congress’s Subpoena Power Works,” Wall Street Journal, May 28, 1997.  Interestingly, ten years later, there’s another op-ed in the Journal, but today’s piece (subscription required) argues that the Bush Administration can resist congressional subpoenas that relate to the current controversy concerning the firing of the U.S. Attorneys.

Five Years Is a Long Time, Part 3

Here’s what McCain-Feingold did and did not do.

1. BCRA successfully prohibited most party soft money fundraising by federal officials.

So what? 527 groups took up most of the slack.

2. Parties raised as much hard money in 2006 as they had soft and hard money in 2002.

Yes, but they did not raise as much soft and hard money as they would have in 2006 if BCRA had not been passed. This had an interesting consequence…

3. BCRA cost the Democrats 20 House seats in the 2006 election.

Here’s why.

4. BCRA made it illegal to broadcast advertising for a movie criticizing the president of the United States.

If the ads were to run 30 days before a primary or 60 days before a general election. Unless, of course, the film enjoys the media exemption.

5. BCRA criminalized attempts to get people to contact their member of Congress.

If they mention a member’s name in an ad, if it’s 30 or 60 days, you know the drill. But the Supreme Court may yet overturn this part of the law.

6. BCRA may destroy the presidential public financing system.

By raising the hard money contribution limits, thereby making it possible for presidential candidates to run outside the system. But credit must also go to the Internet for lowering the costs of fundraising.

7. BCRA enabled a majority of the Supreme Court to be cowardly in the face of a frontal assault on the First Amendment.

Did I say cowardly? I meant BCRA gave the Court the chance to show “proper deference to Congress’ ability to weigh competing constitutional interests in an area in which it enjoys particular expertise.”

8. BCRA did not prevent corruption.

Remember why congressional Republicans were in trouble in 2006? BCRA didn’t prevent that corruption. Nor did it punish the malefactors. The voters did.

9. BCRA did not restore confidence in government.

Yes, I know. People should not have too much confidence in government. But justices of the Supreme Court care about such things. The American National Election Studies trust in government index fell in 2004 after rising continuously from 1994 to 2002. No prizes for guessing whether it fell or rose in 2006, surely one of the worst years on record for people’s faith that their government is not corrupt. So BCRA passes in 2002 and trust in government falls thereafter.

10. BCRA made John McCain a credible candidate for the presidency.

For now, at least.

11. BCRA did not hurt the Republican party.

They did that all by themselves.