Topic: Law and Civil Liberties

Toward a Liberal Federalism?

Apropos of the Marriage Amendment issue: one of the happy accidents of the Bush administration is that the president has been so determined to centralize social policy in the United States that he’s actually made some liberals appreciate the virtues of federalism.  See this piece by the New Republic’s Franklin Foer or this one from Stanford’s Richard Thompson Ford for examples. 

Early on in his administration, President Bush promised to:

make respect for federalism a priority in this administration.  Respect for federalism begins with an understanding of its philosophy.  The framers of the Constitution did not believe in an all-knowing, all-powerful federal government.  They believed that our freedom is best preserved when power is dispersed.  That is why they limited and enumerated the federal government’s powers, and reserved the remaining functions of government to the states.

Respect for federalism would require respecting the voters of Oregon when they set up a law allowing terminally ill patients to end their suffering with the help of their doctors. Respect for federalism would require respecting the voters of California and 10 other states that allow cancer patients, AIDS patients and others to use medical marijuana.  Yet on these issues and many other issues that the Constitution leaves to the states – crime, education, marriage – President Bush has fought very hard to increase Washington’s involvement – usually in ways that offend Blue State sensibilities.

With the Red Team doing the centralizing, it’s only natural that the Blue Team would look favorably on a more decentralized system.  I’ve always been a bit uneasy about some of the liberal justifications for federalism, such as Justice Brandeis’s “laboratories of democracy” argument.  Just who are the lab rats in that metaphor?  (Note that Foer lists Elliot Spitzer as one of the bold experimenters liberals should emulate.) 

But the virtues of federalism are plain, and appreciating them shouldn’t depend on who’s up or who’s down.  Federalism makes it easier for Americans to escape unwelcome state experiments with fiscal and social policy.  It enhances the political power of individual citizens by allowing important decisions of governance to be settled closest to where Americans live and work. And it avoids making politics a centralized war of all against all, where each contested moral issue is settled in a one-size-fits-all fashion at the level furthest from the people.

I hope that the Republican assault on federalism leads to a resurgence of decentralist liberalism.  I fear that, as with the Right, the Left’s interest in subsidiarity will last about as long as its exile from federal power.  Yet hope springs eternal. 

The End of “Reform” at the New York Times?

The reporters and editorial writers at the New York Times are powerful advocates of imposing new restrictions on campaign spending. They typically refer to the leaders of interest groups like Common Cause as “advocates of campaign finance reform.” That helps the cause of restricting campaign finance. After all, who could be against “reform”?

So it is noticeable when the New York Times calls the partisans of restrictions something other than “reformers.” In today’s edition, a Times reporter twice called them “advocates of changing campaign financing.”

It is both a revealing and misleading choice. It is misleading because these people seek more restrictions on campaign finance. To be sure, they expect new restrictions will lead to changes in campaign finance, but what they actually hope to do is impose new rules that restrict campaign spending.

Here’s the revealing part: The Times has never before called the Shays-Meehan-Common Cause crowd “advocates of changing campaign finance.” They are usually called “reformers.” (I checked on Lexis-Nexis). Why the new name?

The “advocates of changing campaign financing” along with congressional Republicans are trying to eliminate 527 groups; today’s article concerns one skirmish in that war. That effort against 527s is expected to harm the Democrats who used the groups extensively in 2004.

So if a person pushes restrictions on speech like McCain-Feingold that were expected to help the Democrats, the New York Times called them “advocates of campaign finance reform.” If the same person demands restrictions expected to hurt the Democrats, the Times dubs them “advocates of changing campaign finance.”

I know the New York Times would never have a partisan purpose in advocating restrictions on political speech. Still, this new term for their former friends does create a disturbing appearance of partisanship.

Reckless Justice: The Marriage Protection Amendment

Here’s a new topic for Chairman Sensenbrenner’s suddenly awake Judiciary Committee: “RECKLESS JUSTICE: Does the Marriage Protection Amendment Trample the Constitution?” Of course, the case seems open and shut. In the landmark Lopez case a decade ago, Chief Justice Rehnquist opened with the basics: “We start with first principles. The Constitution establishes a government of enumerated powers.”

Marriage law has always been reserved to the states in our federal system. Law professor Dale Carpenter calls the Marriage Protection Amendment, which the Senate will debate and vote on next week, “a radical intrusion on the nation’s founding commitment to federalism in an area traditionally reserved for state regulation” in his Cato study released today.

Conservatives claim to believe in federalism, until the states do things they don’t like. Then they turn into New Deal liberals, believing that the federal government should correct the errors of the 50 states. The proposed Marriage Protection Amendment would not just protect states from being forced to recognize same-sex marriages made in other states, as some proponents claim. It would forbid any of the several states from deciding – through court decision, legislative action, or even popular initiative – to extend marriage to gay couples. Depending on the interpretation of its language, it may even ban civil unions and domestic partnerships.

Of course, it’s not good lawmaking to propose an amendment to the Constitution whose language is so unclear, even to its supporters. But then, this really isn’t lawmaking. Majority Leader Bill Frist knows the amendment won’t pass the Senate next week. It failed in 2004 and is likely to get only a handful more votes this time. A majority leader usually doesn’t bring legislation to the floor that he knows will fail. Frist must have some other purpose in mind in bring this amendment up for a futile vote.

Selective Outrage

Here’s the webpage for Rep. Sensenbrenner’s breathlessly titled hearing on the FBI search of Rep. Jefferson’s office: “RECKLESS JUSTICE: Did the Saturday Night Raid of Congress Trample the Constitution?” It’s a stacked deck–four scholars who share Sensenbrenner’s outrage over the raid.

Perhaps the testimony of Jonathan Turley or Bruce Fein, both of whom have been on the right side of important separation of powers issues in the last few years, will change my mind. But right now the congressional reaction to the search reminds me of President Clinton piously invoking the Constitution in defense of the God-given, natural right to fool around with the help and lie about it in court. As Clinton put it at a news conference in 2000: “on the impeachment, let me tell you, I am proud of what we did there, because I think we saved the Constitution of the United States.”

If you’re going to defend the Constitution, you could pick clearer grounds than a narrow interpretation of “high crimes and misdemeanors,” and it would also be nice if you’d demonstrated the slightest interest in defending it before Ken Starr came knocking. Similarly, if you’re going to complain about “Trampling the Constitution,” it’s a little unseemly to start with penumbras and emanations from the Speech or Debate Clause, when you have a president who claims inherent authority to break any law that Congress passes if he believes it constrains his freedom of action in the war on terror. Marty Lederman puts it well:

if this were part of a concerted congressional effort to fight back against the tide of Executive aggrandizement, the outrage might be understandable. But Congress has been almost completely indifferent, for two years running now, with respect to very serious separation-of-powers challenges – an Executive branch that has repeatedly asserted a constitutional power to ignore statutes regulating the conduct of war; that has kept virtually all of its dubious activities secret from the legislature and public; that has resisted any serious oversight; that has engaged in widespread surveillance of U.S. citizens without warrant or probable cause of wrongdoing (or that the U.S. persons are agents of al Qaeda); etc. And Congress has simply sat back and done nothing. If Denny Hastert, et al., had been fighting tooth and nail on torture, and oversight of Iraq, and the manipulation of intelligence, and the use of signing statements to signal noncompliance with scores of statutes, and violations by NSA of FISA and other statutes, etc., then perhaps this latest incident would rightly be seen as a straw that broke the camel’s back. But… Congress has instead allowed its own core constitutional powers – such as the enactment of laws – to be swept aside with impunity by an Administration with a strikingly aggressive view of Executive prerogatives. That legislators care much more about the sanctity of the contents of their offices than about the enforcement of the laws they have written is, perhaps, predictable, but nevertheless unfortunate.

Europe’s Public Health Crowd Hunkers Down to Fight the Scourge of “Secondhand Drinking”

Via the excellent Spiked Online:

The campaigns to combat the effects of ‘passive smoking’ are widely credited for Europe’s growing number of smoking bans. Now alcohol is in the sights of the public health lobbyists, and they have invented the concept of ‘passive drinking’ as their killer argument.I have seen a leaked draft report for the European Commission, which is due to be published some time in June. It makes claims about the high environmental or social toll of alcohol, the ‘harm done by someone else’s drinking’. The report is likely to inform proposals for a European Union alcohol strategy later this year.

[…]

By October 2004, the theme was established in a Eurocare submission to the Commission. ‘Alcohol not only harms the user, but those surrounding the user, including the unborn child, children, family members, and the sufferers of crime, violence and drink-driving accidents: this can be termed environmental alcohol damage or “passive drinking”.’

This of course is a replica of the roadmap the prohbition movement used at the beginning of the last century, though Spiked author Bruno Waterfield does draw one distinction, invoking John Stuart Mill:

Once the temperance movement believed man could be saved. Today, it joins with the public health lobby to treat drinking as a form of social pathology rather than a question of moral redemption. Once, public health had the aim of protecting society against disease. Today, the ‘new public health movement’ seeks to protect society against people themselves.

Today’s public health outlook on drinking dovetails neatly with other powerful contemporary trends that emphasise human vulnerability or undermine trust between individuals. Linking drinking to free-floating risks, independent of the intentions of individuals, is a characteristic of today’s anti-humanist climate. But 200 years after his birth, we can take heart from the works and legacy of Mill. He stood against the tide in his day and won. We owe him a debt and we owe the future of freedom a duty to make our own stand against the new public health alliance of the twenty-first century.

I warned in a Cato paper a few years ago about the rise of the neoprohibition movement here in America.  Think it couldn’t happen again?  Consider this little nugget, pulled from the DEA’s website:

A word about prohibition: lots of you hear the argument that alcohol prohibition failed—so why are drugs still illegal? Prohibition did work. Alcohol consumption was reduced by almost 60% and incidents of liver cirrhosis and deaths from this disease dropped dramatically (Scientific American, 1996, by David Musto). Today, alcohol consumption is over three times greater than during the Prohibition years. Alcohol use is legal, except for kids under 21, and it causes major problems, especially in drunk driving accidents.

Mark Thornton took on apologists for alcohol prohibition in a Cato paper way back in 1991.

Conservatives Say: Politics Above All

The Washington Times brings news this morning that conservatives are “expressing concern and outrage” about House Speaker Denny Hastert’s strong objections to the FBI’s raid on Rep. William Jefferson’s House office.

Perhaps such “conservatives” ought to recall what the real conservative libertarian who designed the U.S. Constitution once wrote:

But the great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means, and personal motives, to resist encroachments of the others. The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to controul the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself. A dependence on the people is no doubt the primary controul on the government; but experience has taught mankind the necessity of auxiliary precautions.

Hastert is acting in the spirit of Federalist 51. To be sure, there are other considerations in this case, but Hastert is doing what Madison expected congressional leaders to do: stand up for his branch of the government against an encroachment from an ambitious executive. Those who are criticizing Hastert are trying to make corruption a bipartisan stain or to raise public approval of Congress by a point or two. They are ignoring the constitutional dimension of all this.

I’ll take the timeless logic of Federalist 51, thanks.

Ezra Klein, Libertarian?

Since I’ve disagreed with Ezra Klein in the past, I am pleased to report that we agree on what to do about the 7,000 Americans who die every year while waiting for transplantable organs. In a recent post, Klein notes that the shortage of organs is due to a ban on payments to organ providers. Klein advocates lifting that ban.  My favorite line:

We’ve stupidly disallowed payment for organs (if money can’t buy you life, why keep it around?)…

Klein brought to mind an observation made by Prof. Richard Epstein last week in the Wall Street Journal:

Only a bioethicist could prefer a world in which we have 1,000 altruists per annum and over 6,500 excess deaths [to] one in which we have no altruists and no excess deaths.

In Healthy Competition, Mike Tanner and I argue for repeal of Sen. Orrin Hatch’s 1984 National Organ Transplant Act, which prohibits payments to organ providers. 

In a recent issue of Cato’s Regulation magazine, Prof. Lloyd Cohen throws up his hands and issues a challenge to those opposed to such payments. Cohen has re-written his will to ensure that when he dies, his organs cannot be harvested unless his estate is paid $864.27 per organ. Why? Because that requirement will create a real-life situation where paying up will generate more transplantable organs. That will force the bioethicists to explain to four, maybe five families who have their checkbooks in hand, We’re sorry, but your loved one must die for our principles. Cohen urges others to insert similar clauses into their wills, just to get the message through the bioethicists’ heads.

Cohen and other powerful presenters will speak at a June 12 conference on organ markets at the American Enterprise Institute.