Topic: Political Philosophy

Federalism Should Trump the Drug War

Americans are angry with their politicians but nuanced in their political opinions.  Voters in Alaska simultaneously ousted their Democratic Senator and legalized the use of marijuana.  Floridians voted to allow the use of medicinal marijuana and reelected Republican Gov. Rick Scott.

In fact, Milton Friedman and William F. Buckley long argued against drug prohibition.  The electorate appears to be moving their way.

Which makes sense.  If you want to limit government and protect individual liberty, it’s impossible to ignore the ill consequences of arresting and imprisoning millions of people for using illicit substances. 

Drug use is bad.  Arresting people for using drugs is worse. 

But conservatives have another reason to abandon the drug war: federalism.

The Drug War has poisoned almost everything it touches.  The rule of law suffers.  Lawyers speak of the drug exception to the Fourth Amendment, since judges often sacrifice Fourth Amendment protections when drugs are involved. 

Constitutional interpretation is malformed.  In Gonzales v. Raich the Supreme Court held that Uncle Sam could regulate someone who grew marijuana for personal consumption under the interstate Commerce Clause.  The reasoning of conservative jurist Antonin Scalia was used by the legal Left to argue that ObamaCare was constitutional.

Federalism is another victim of the Drug War.  Many conservatives complain about the over-criminalization of life, with Washington encroaching on an area that’s traditionally a matter of state authority.

Krugman vs. Krugman on Statutory Interpretation

To follow-up on my colleague Walter Olson’s earlier post on the Paul Krugman piece on King v. Burwell, what struck me was Krugman’s flexible approach to statutory interpretation.

Here he is in today’s piece:

Last week the court shocked many observers by saying that it was willing to hear a case claiming that the wording of one clause in the Affordable Care Act sets drastic limits on subsidies to Americans who buy health insurance. It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim. …

 if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.

As I said, everything else in the act makes it clear that this was not the drafters’ intention, and in any case you can ask them directly, and they’ll tell you that this was nothing but sloppy language. …

So, don’t worry so much about the specific language; instead, look at the drafters’ intent and the surrounding context. Got it.

On the other hand, here’s Krugman from January of 2013, writing about the idea of a platinum coin:

Enter the platinum coin. There’s a legal loophole allowing the Treasury to mint platinum coins in any denomination the secretary chooses. Yes, it was intended to allow commemorative collector’s items — but that’s not what the letter of the law says. And by minting a $1 trillion coin, then depositing it at the Fed, the Treasury could acquire enough cash to sidestep the debt ceiling — while doing no economic harm at all.

So in this situation, you should stick to the “letter of the law,” and not worry so much about the drafters’ intent.

Hmm, how to reconcile those two Krugman assertions about the proper approach to statutory interpretation?  That’s a tough one.  Wait, I got it!  We’ll call this the Krugman canon of construction: “Interpret statutes in whatever way makes them consistent with your policy preferences.”

How to Repeal ObamaCare through the Same Process that Gave Us ObamaCare

From my latest at Darwin’s Fool:

Republicans won an impressive number of victories last night, including a larger and more conservative House majority and enough wins to give the GOP at least a 52-seat majority in the Senate. As Jeffrey Anderson and Robert Laszewski have noted, Republicans made ObamaCare a major issue in the election  (the New York Times’ denials notwithstanding). Senate Republicans will fall several seats short of the 60-vote super-majority needed to overcome a Democratic filibuster of an ObamaCare-repeal bill, though. ObamaCare opponents are therefore debating whether and how Republicans could repeal some or all of the law via the Senate’s “budget reconciliation” process, which allows certain legislation to pass the Senate with only 51 votes. Some opponents have proposed getting around these difficulties by getting rid of the filibuster entirely. I think there’s a more prudent, targeted way Republicans could put ObamaCare repeal on the president’s desk, give Democrats a taste of their own majoritarian medicine, and convince Senate Democrats of the virtues of restoring the filibuster on legislation and judicial nominations.

It goes like this…

Read the whole thing.

Les Miserables in Hong Kong

As the police move in to tear down the barricades built by the protesters in Hong Kong, I am reminded of scenes from the musical “Les Miserables,” and of this song:

Do you hear the people sing?
Singing the song of angry men?
It is the music of the people
Who will not be slaves again!

Will you join in our crusade?
Who will be strong and stand with me?
Beyond the barricade
Is there a world you long to see?

Then join in the fight
That will give you the right to be free!

I hope that the students of Hong Kong will be more successful than the French students were in June 1832. This time, of course, the whole world is watching, and that may make some difference.

The Great Debate Over Hobby Lobby

The Supreme Court’s 5-4 ruling granting certain for-profit companies religious exemptions from Obamacare’s contraceptive mandate has of course generated a flurry of debates between conservatives and liberals (with libertarians siding with the right not to be forced by the government to violate your conscience). But what about within the camp that supported the decision in Hobby Lobby? Was there some conservative vs. libertarian split?

Well, as it happens, one of the icons of the libertarian legal movement, my former professor Richard Epstein, contributed an article to the most recent volume of the Cato Supreme Court Review. He concluded that Justice Samuel Alito’s majority opinion reached the right result for the wrong reason, that the Court should’ve rejected the mandate because the government didn’t have a compelling interest to advance not because it didn’t use the least-restrictive means to advance it. 

Epstein wasn’t able to attend our Constitution Day symposium, however, so Ed Whelan – president of the conservative Ethics & Public Policy Center and noted legal contributor to National Review Online – took Epstein’s place in discussing Hobby Lobby. Whelan took issue with Epstein’s approach; during the panel [see starting at 35:00] his comments about the Review article were akin to Justice Antonin Scalia’s “blistering concurrences” this term, agreeing with little other than the final judgment.

So this sounds ripe for the libertarian-versus-conservative trope, right? Maybe Epstein focused on liberty and Whelan on religion? Actually not really; (most of) their dispute is more about principle with pragmatism.

#WhyLiberty: Venezuela

Thousands of Venezuelans regularly protest Nicolás Maduro’s government. Juan Carlos Hidalgo, a Policy Analyst on Latin America at the Center for Global Liberty and Prosperity at the Cato Institute, recalls witnessing the struggle for freedom in Caracas.

“Why Liberty” is a short series of personal stories emphasizing the value of liberty. Feel free to make your own video telling your story using #WhyLiberty. And, of course, subscribe to us on YouTube.

Anthony Burgess on “the Duty to Distrust the State”

Anthony Burgess wrote some 50 books, but he became most famous for one that was made into a hit movie – A Clockwork Orange, published in 1962 and filmed by Stanley Kubrick in 1971. Two years later Burgess wrote an essay reflecting on the book, the film, and their message. But the essay was not published until 2012, in the New Yorker, where it could be seen only by subscribers. Only this summer did the New Yorker open access to its archives, if only temporarily. So at last I have a chance to draw attention to the section of it I particularly enjoyed, on the dangers of the modern state:

We probably have no duty to like Beethoven or hate Coca-Cola, but it is at least conceivable that we have a duty to distrust the state. Thoreau wrote of the duty of civil disobedience; Whitman said, “Resist much, obey little.” With those liberals, and with many others, disobedience is a good thing in itself. In small social entities—English parishes, Swiss cantons—the machine that governs can sometimes be identified with the community that is governed. But when the social entity grows large, becomes a megalopolis, a state, a federation, the governing machine becomes remote, impersonal, even inhuman. It takes money from us for purposes we do not seem to sanction; it treats us as abstract statistics; it controls an army; it supports a police force whose function does not always appear to be protective.

This, of course, is a generalization that may be regarded as prejudiced nonsense. I personally do not trust politicians or statesmen—very few writers and artists do—and consider that men enter politics for the negative reason that they have little talent for anything else and the positive reason that power is always delicious. Against this must be set the truth that government makes healthful laws to protect the community and, in the great international world, can be the voice of our traditions and aspirations. But the fact remains that, in our own century, the state has been responsible for most of our nightmares. No single individual or free association of individuals could have achieved the repressive techniques of Nazi Germany, the slaughter of intensive bombing, or the atomic bomb. War departments can think in terms of megadeaths, while it is as much as the average man can do to entertain dreams of killing the boss. The modern state, whether in a totalitarian or a democratic country, has far too much power, and we are probably right to fear it.

It is significant that the nightmare books of our age have not been about new Draculas and Frankensteins but about what may be termed dystopias—inverted utopias, in which an imagined megalithic government brings human life to an exquisite pitch of misery. Sinclair Lewis, in “It Can’t Happen Here”—a novel curiously neglected—presents an America that becomes fascist, and the quality of the fascism is as American as apple pie. The wisecracking homespun Will Rogers-like President uses the provisions of a constitution created by Jeffersonian optimists to create a despotism which, to the unthinking majority, at first looks like plain common sense. The trouncing of long-haired intellectuals and shrill anarchists always appeals to the average man, although it may really mean the suppression of liberal thought (the American Constitution was the work of long-haired intellectuals) and the elimination of political dissidence. Orwell’s “1984”—a nightmare vision which may conceivably have prevented the nightmare fact from being realized: no one expects the real 1984 to be like Orwell’s—shows the unabashed love of power and cruelty which too many political leaders have hidden under the flowers of “inspirational” rhetoric. The “Inner Party” of Orwell’s future England exerts control over the population through the falsification of the past, so that no one can appeal to a dead tradition of freedom; through the delimitation of language, so that treasonable thoughts cannot be formulated; through a “doublethink” epistemology, which makes the outside world appear as the rulers wish it to appear; and through simple torture and brainwashing.

Both the American and the British visions conjoin in assuming that the aversive devices of fear and torture are the inevitable techniques of despotism, which seeks total control over the individual. But, as long ago as 1932, Aldous Huxley, in his “Brave New World,” demonstrated the submissive docility that powerful states seek from their subjects as being more easily obtainable through non-aversive techniques. Pre-natal and infantile conditioning makes the slaves happy in their slavery, and stability is enforced not through whips but through a scientifically imposed contentment. Here, of course, is a way that man may take if he really desires a world in which there are no wars, no population crises, no Dostoyevskian agonies. The conditioning techniques are available, and perhaps the state of the world may soon frighten man into accepting them. 

The whole thing is worth reading, with its reflections on freedom and conformity, good and evil, Orwell and B. F. Skinner (he was big in 1973).

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