Topic: Political Philosophy

Libertarians and the Long Road to Gay Rights

Justice Anthony Kennedy has been called the most libertarian member of the Supreme Court (though Ilya Shapiro finds his libertarianism “faint-hearted”). So maybe it’s no surprise that in the Lawrence (2003), Windsor (2013), and Obergefell (today!) cases, Kennedy wrote a majority decision finding that gay people had rights to liberty and equal protection of the law.

As I note in The Libertarian Mind and in an article just posted at the venerable gay magazine The Advocate, libertarians and their classical liberal forebears have been ahead of the curve on gay rights for more than two centuries: 

As the Supreme Court prepares for a possibly historic ruling, most of the country now supports gay marriage. Libertarians were there first. Indeed John Podesta, a top adviser to Bill Clinton, Barack Obama, and Hillary Clinton and founder of the Center for American Progress, noted in 2011 that you probably had to have been a libertarian to have supported gay marriage 15 years earlier.

Just seven years ago, in the 2008 presidential campaign, Barack Obama, Joe Biden, and Hillary Clinton all opposed gay marriage. The Libertarian Party endorsed gay rights with its first platform in 1972 — the same year the Democratic nominee for vice president referred to “queers” in a Chicago speech. In 1976 the Libertarian Party issued a pamphlet calling for an end to antigay laws and endorsing full marriage rights.

That’s no surprise, of course. Libertarians believe in individual rights for all people and equality before the law. Of course they recognized the rights of gay people before socialists, conservatives, or big-government liberals.

In Calling on Government, Pope Francis Misses the Problem of Politics

In his new encyclical, Laudato Si, Pope Francis challenges people to adopt a new “ecological spirituality.” But his economic and policy prescriptions are more controversial than his theological convictions.

The Pope’s commitment to the poor and our shared world is obvious. Yet when he addresses policy, his grasp is less sure.

The Pontiff ignores the flawed nature of government. He is disappointed with its present failings, but appears to assume that politics, unlike humanity, is perfectible.

Most environmental problems result from the absence of markets and property rights. For instance, since no one owns the great common pools of air and water, “externalities” abound.

When possible, government should create quasi-markets or apply market incentives. In contrast, where government acts as property manager, it typically performs badly. For example, at the behest of business interests, Washington subsidizes grazing and timbering on its lands, opening up areas which otherwise would not be developed.

President Obama’s Task Force on 21st Century Policing

Following the protests and riots in Ferguson last year, President Obama created a Task Force on 21st Century Policing to examine policing problems and make recommendations.  The Task Force issued its final report last month.  In this post, I want to highlight the numerous ways in which the report would expand the role of the federal government.

By way of background, policing is supposed to be the near-exclusive province of state and local government under the U.S. Constitution.  The federal government is nevertheless constantly seeking to expand its jurisdiction.  The number of federal crimes and the number of federal law enforcement agents keeps rising.  Members of Congress also like to throw millions and millions of dollars at local police departments.  Of course, having accepted the money, local policymakers are now swamped with myriad federal conditions and mandates.  On top of that, the feds have entwined themselves with local police with the creation of hundreds of permanent joint federal-state police units that operate to enforce narcotics, guns, and immigration offenses.

President Obama’s Task Force is now recommending a host of actions to expand the role of the federal government even further.  Here is an excerpt from the final report (pdf):

The President should support and provide funding for the creation of a National Crime and Justice Task Force to review and evaluate all components of the criminal justice system for the purpose of making recommendations to the country on comprehensive criminal justice reform.

The President should promote programs that take a comprehensive and inclusive look at community-based initiatives that address the core issues of poverty, education, health, and safety.

The Federal Government should develop survey tools and instructions for use of such a model to prevent local departments from incurring the expense and to allow for consistency across jurisdictions.

The Federal Government should create a Law Enforcement Diversity Initiative designed to help communities diversify law enforcement departments to reflect the demographics of the community.

Discretionary federal funding for law enforcement programs could be influenced by that department’s efforts to improve their diversity and cultural and linguistic responsiveness.

In Calling on Government, the Pope Underestimates Power of the Market

Pope Francis’ new encyclical, Laudato Si, advocates a new “ecological spirituality.” Yet this challenging call is diminished by the document’s tendency to devolve into leftish policy positions. The encyclical underestimates the power of market forces to promote environmental ends.

There are serious environmental problems but Laudato Si presumes rather than proves crisis is the norm. Moreover, nothing in Scripture or nature tells us how much to spend to clean up the air.

Drawing environmental lines requires balancing such interests as ecology, liberty, and prosperity. One cannot merely assume that the correct outcome in every case is more of the first.

Indeed, the Pontiff’s own goals conflict. He speaks movingly of the dignity of work and its importance for the poor. But the more expensive and extensive the government controls, the fewer and less remunerative the jobs.

Perhaps most disappointing is how the Pope seemingly views capitalism, and especially property rights, as enemies of a better, cleaner world. Yet most environmental problems reflect the absence of markets and property rights, the “externalities,” in economist-speak, which impact others.

Deconstructing Magna Carta

On the day we celebrate the 800th anniversary of Magna Carta, leave it to the New York Times to feature a boxed op-ed on its editorial pages entitled “Stop Revering Magna Carta.” As the only bow to the occasion on those pages, one imagines that the editors could not be bothered even to write a house editorial on the subject

The piece is written by one Tom Ginsburg, professor of international law and political science at the University of Chicago, an institution with which I have some acquaintance.  As suggested by its title, this is a work of deconstruction. The Charter’s fame, you see, “rests on several myths.” Indeed, “like the Holy Grail,” Ginsburg concludes, “the myth of Magna Carta seems to matter more than the reality.” And well it should. After all, history rarely springs forth in principled perfection. At best it grows one fractured event at a time, each event gradually becoming the narrative mythology of a people.

Ginsburg begins his deconstruction by claiming that Magna Carta “wasn’t effective. In fact, it was a failure.” How so? Because King John repudiated the Charter shortly after he’d signed it, whereupon the barons sought to replace him, which he avoided by dying. But the next year, we’re told, John’s young son reissued the document. Far from a failure, then, it was reissued several more times over the 13th century, culminating in the important 1297 version. Indeed, it was at that time, as the famed legal historian Edward S. Corwin wrote, well before the era of deconstruction, that the king was forced to call Parliament into existence to relieve his financial necessities. But Parliament’s subventions “were not to be had for the asking,” Corwin noted, “but were conditioned on the monarch’s pledge to maintain Magna Carta.” A failure? Hardly.

Yet another myth, Ginsburg writes, “is that the document was a ringing endorsement of liberty.” As evidence, he cites three of the Charter’s 61 chapters, each concerning matters peculiar to the time—for example, the removal of fish traps from the Thames. Yet as shown by Ginsburg’s colleague at the law school across the Midway, Professor Richard Helmholz, even that provision served in time to afford a basis for free navigation.

And therein lies the major fault of this piece. It’s a textbook example of missing the forest for the trees. To be sure, as Ginsburg writes, “Magna Carta was a result of an intra-elite struggle, in which the nobles were chiefly concerned with their own privileges.” But again, that’s how history often begins, sowing the seeds for future advances. As Corwin observed nearly a century ago, many of the Charter’s clauses were drawn in ways that did not confine their application to issues immediately at hand. Moreover, the barons realized early on that to maintain the Charter against the king, they had to get the cooperation of all classes and so too the participation of all classes in its benefits. Thus did the scope of its protections expand, much as with our own Constitution. And that’s why so many revere Magna Carta today.

 

Truancy Laws: What Libertarians Knew

My new piece at Reason begins:

We’ve seen it happen again and again: libertarians are derided over some supposedly crazy or esoteric position, years pass, and eventually others start to see why our position made sense. It’s happened with asset forfeiture, with occupational licensure, with the Drug War, and soon, perhaps, with libertarians’ once-lonely critique of school truancy laws.

In his 1980 book Free To Choose, economist Milton Friedman argued that compulsory school attendance laws do more harm than good, a prescient view considering what’s come since: both Democratic and Republican lawmakers around the country, prodded by the education lobby, have toughened truancy laws with serious civil and even criminal penalties for both students and parents. Now the horror stories pile up: the mom arrested and shackled because her honor-roll son had a few unexcused sick days too many, the teenagers managing chaotic home lives who are threatened with juvenile detention for their pains, the mother who died in jail after being imprisoned for truancy fines. It’s been called carceral liberalism: we’re jailing you, your child, or both, but don’t worry because it’s for your own good. Not getting enough classroom time could really ruin a kid’s life.

My article also mentions that a bill to reform Texas’s super-punitive truancy laws has reached Gov. Greg Abbott’s desk, following the reported success of an experiment in San Antonio and pressure from a Marshall Project report. Finally, truancy-law reform is looking to become an issue across the political spectrum — but libertarians were there first.

Getting King John To Sign Magna Carta Was Only Half The Battle

The very day King John pledged to uphold Magna Carta, June 20, 1215, he asked Pope Innocent III to annul it.  The pope replied, “We utterly reject and condemn this settlement and under threat of excommunication we order that the king should not dare to observe it and that the barons and their associates should not require it to be observed.”

So, John reneged on his agreement with the barons, they rebelled and formed an alliance with King Philip II of France who prepared to invade England.  Before long, the French Prince Louis entered London, and the French controlled castles throughout England.  The English Church, however, backed John and refused to crown Lewis as England’s king. 

John fled from his pursuers, but somewhere along the line he contracted dysentery and was dying.  He appointed 13 executors including William Marshal who was among the most revered knights in England.  John died on October 19, 1216,  and his nine-year-old son was hastily crowned Henry III.  Because he was under-age, Marshal formed a regency government.  Although Marshal was able to seize an important English castle from the French, the civil war was substantially stalemated.

With John gone, the rebel barons found themselves in an awkward position – their alliance with foreigners who occupied England.  Patriotic English wanted to get the French out.  Fortunately, Prince Louis was happy to collect a bribe, and soon the French went home.

Regent Marshal recognized that there was more likely to be domestic peace if some fundamental legal issues were resolved and that consequently John’s repudiation of Magna Carta must be reversed.   So Marshal reviewed the document, made some cuts, and reissued Magna Carta in late 1216.   Among the cuts was paragraph 61 about the committee of 25 barons who would monitor the king’s compliance with Magna Carta and, if necessary, try to enforce it.  Perhaps less important than those words was the fact that the barons had demonstrated their willingness to use force against a tyrannical king.

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