Topic: Political Philosophy

A Brief Civil Liberties Quiz

See if you can spot the civil-liberties victory:

  1. The Supreme Court says the government can put your DNA in a national database, even if you were wrongly arrested.
  2. The State of Mississippi imposes mandatory collection of the DNA of babies born to teenage moms, neither of which is suspected of a crime.
  3. The Department of Justice is tracking and threatening to prosecute reporters, for the crime of reporting.
  4. The National Security Agency is collecting everyone’s phone records, even if they suspect you of nothing.
  5. The U.S. Senate kills a bill that could lead to a registry of law-abiding gun owners.

Answer: #5. 

Those crazy senators are looking less crazy all the time. 

“Balancing” and DNA Swabs

My colleagues Ilya, Jim, Roger, and Walter have said most of what needs to be said about the Supreme Court’s recent decision in the DNA sampling case Maryland v. King. So let me just hover for a moment on a point Roger makes.  Everyone seems to agree that Justice Kennedy’s majority opinion strains the bounds of language by arguing that the state purpose of “identification” served by DNA sampling arrestees includes establishing a “context” for understanding “who the person really is,” including their “past conduct.” By the same logic, we might justify searching the homes of every drunk driver for evidence of unrelated crimes, since this too would give us a sense of “who they really are,” and whether they have reason to jump bail lest other crimes be discovered. The real argument, disingenuously shoehorned into this rubric of “identification,” is that this is indeed a warrantless search for ordinary investigative purposes, but that once a person has already been legitimately detained, the marginal intrusion involved in a cheek swab is trivial—and the benefit to society of enabling serious crimes to be solved so great—that an exception to the normal Fourth Amendment rules is justifiable.  This is, as Roger suggests, a closer call.

Let’s go further and make the argument that Justice Kennedy, determined to cast this as a matter of “identification,” didn’t bother with.  He could, after all, have cited to the Supreme Court’s major dog-sniff cases, Place and Caballes, in support of the following argument: The limited DNA profile actually entered into the CODIS database is only useful for matching, not for revealing other sensitive facts about medical conditions or genetic predispositions.  In essence, then, this is a search that only reveals whether one is the unidentified perpetrator of a crime—which, like possession of contraband, is a fact in which a person has no “reasonable expectation of privacy.”  So one might argue.

The first point to make is that the narrow “if you have nothing to hide, you have nothing to fear” argument doesn’t really work.  A murder investigation will naturally involve collection of foreign DNA samples on the victim, which may well belong to persons that had nothing to do with the crime. Thus a search of an innocent arrested persons DNA could easily reveal the existence of, say, an unrelated but secret sexual relationship with the victim, or merely the presence of the searched person at the scene of a crime they had no involvement in. So this is not really a search with no realistic risk of exposing innocent but legitimately private information.

The larger point, though, is that the provisions of the Bill of Rights were meant to avoid precisely this kind of granular case-by-case “balancing” process, to the extent possible. An analogy to the First Amendment may be helpful here. Let’s concede: It is totally plausible that prohibiting Nazis from marching through a community of Holocaust survivors, or the grotesque Westboro Baptist Church from picketing military funerals with signs that read “Thank God for Dead Soldiers” and “God Hates Fags,” would suppress particular instances of speech with no real social value and spare decent people anguish they do not deserve. In a vacuum, probably neither instance of speech would survive a “balancing test.”  But the courts correctly protected both nevertheless, because the First Amendment articulates a meta-balancing judgment that we do not want the government engaged in this kind of specific case-by-case balancing analysis of which speech is valuable enough to be protected. The Framers of the Constitution had already done a balancing test about when it is better not to engage in balancing tests.

So it is, I would argue, with the Fourth Amendment. In the short term, it is easy enough to say that a few cheek swabs are a trivial marginal intrusion, even if they sometimes expose innocent private information, compared with the social benefit of catching murderers and rapists. But especially as DNA testing technology evolves, what are the consequences of establishing a massive repository of genetic information about the one-third of Americans who will be arrested by the age of 23—especially if that database disproportionately encompasses poor minorities, many of whom are never convicted of any crime? (Those who ARE convicted, as Justice Scalia’s dissent in King observed, get sampled anyway—so the policy in  question here only really makes a difference to the innocent.)  How do you “balance” the crimes solved at the margin when samples are taken from people arrested though ultimately acquitted against the creation of an architecture of genetic information-gathering, which may in itself encourage pretextual arrests for trivial offenses to circumvent the need for search warrants for genetic material, whose long-term uses are impossible to foresee? The general attitude of the courts, after all, is that once information or evidence has been legitimately acquired by police, there is no Fourth Amendment barrier to further analysis of that evidence, even if unrelated to the purpose for which it was acquired. (There are, I think, good theoretical reasons to regard this as a mistake, but that’s how things presently stand.)

In this case, then, the Court has invoked the idea of “identification” to obscure what is fundamentally an application of a “balancing test” to a warrantless investigative technique. But the Court is balancing benefits it can see reasonably clearly with costs it cannot.  Perhaps, even in the long run, the benefits will outweigh the costs. But the point of the Fourth Amendment is to provide a basis for limiting governmental information gathering that, to the extent possible, avoids saddling the Court with the responsibility for engaging in this sort of utilitarian calculus. It cannot be avoided entirely, of course—that much is implicit in the inclusion of the normative term “unreasonable” in the text of the Fourth Amendment—but it should not be the ordinary grounds for deciding which particular searches are permissible. Sometimes, as Hayek understood, we stick to simple rules, not because they are truly optimal, but because we are not clever or prescient enough to develop more nuanced rules that do better.

George Smith’s Long-Awaited Book: The System of Liberty

The System of LibertyGeorge H. Smith is one of the best-read, most insightful libertarians living today. He is the author of most of the Cato University Home Study Course, which you should definitely download. He writes a weekly article for Libertarianism.org titled “Excursions into the History of Libertarian Thought.” He is the author of Atheism: The Case Against God (1974), Atheism, Ayn Rand, and Other Heresies (1991), and audio series on “Great Political Thinkers,” “The Meaning of the U.S. Constitution,” and “The Ideas of Liberty.” And finally – finally – he has been persuaded to write down much of what he knows about the history of classical liberal thought in a new book from the Cato Institute and the Cambridge University Press, The System of Liberty: Themes in the History of Classical Liberalism.

It’s a great study of classical liberalism and the relations among such liberal ideas as individualism, natural rights, utilitarianism, self-sovereignty, and what Lord Acton called “the polar star of liberty.” Along the way he answers such criticisms of liberalism as “atomistic individualism” and “social Darwinism.” It’s a college course in political philosophy in just 217 very readable pages. Buy it now for the low low price of $24.95.

Applying the Fourth Amendment to International Travelers

I regularly cross America’s borders, so I’m happy that a new court ruling will make it harder for border agents to search and seize travelers’ computers.

In 1886, the U.S. Supreme Court essentially exempted border searches from the Fourth Amendment.  Only in the most extreme cases, such as detaining or strip-searching a traveler, is “reasonable suspicion” of criminal conduct necessary.

Only once in decades of travel have I been forced to hand over my computer.  But thousands of other Americans have had to do so over the years, and it is much worse when the government takes the computer for a “forensic” review elsewhere. 

However, in April, the Ninth Circuit Court of Appeals ruled, in U.S. v. Cotterman, that while a simple search involving a quick review of a laptop likely is constitutional, a more detailed review “transformed [the search] into something far different.”  Thus, “reasonable suspicion” was required.

The dissenters complained about treating differently someone who hid digital child pornography on his computer and “hid” printed child pornography in his briefcase.  But as I pointed out in my new Forbes online column, there are important differences:

One is that international travelers know their belongings are subject to visual search.  A briefcase and printed materials also are inherently less secure against private snoops as well as government investigators than password-protected computer files.

Moreover, as the appellate majority observed, “The amount of private information carried by international travelers was traditionally circumscribed by the size of the traveler’s luggage or automobile.  That is no longer the case.  Electronic devices are capable of storing warehouses full of information.”  While it is easy to separate the business and personal as well as the innocent and incriminating among personal effects, it is not so easy to similarly divide computer files.  Concluded the judges:  “A person’s digital life ought not be hijacked simply by crossing a border.”

Very true.

Of course, Cotterman’s offenses were horrid.  But the court concluded that “Reasonable suspicion is a modest, workable standard that is already applied.”

Catching criminals is important.  However, it is a free society that we are protecting.  Traveling internationally should not require sacrificing one’s basic freedoms.

Washington’s Range of Policy Options

Ezra Klein writes in the Washington Post that congressional Republicans have moved to the right on such issues as health care, stimulus spending, and a carbon tax, forcing Democrats to move to the center to find common ground. And thus:

If you imagine a policy spectrum that that goes from 1-10 in which 1 is the most liberal policy, 10 is the most conservative policy, and 5 is that middle zone that used to hold both moderate Democrats and Republicans, the basic shape of American politics today is that the Obama administration can and will get Democrats to agree to anything ranging from 1 to 7.5 and Republicans will reject anything that’s not an 8, 9, or 10. The result, as I’ve written before, is that President Obama’s record makes him look like a moderate Republicans from the late-90s.

His argument is that Mitt Romney and Newt Gingrich used to support “the basic architecture of the Affordable Care Act,” John McCain (R-AZ) supported a cap-and-trade bill, George W. Bush pushed a stimulus bill in 2008—but now Republicans don’t want to support any of those policies. So, he says, Democrats have moved to the right, away from what they really want, like single-payer health care, command-and-control environmental regulation, and no cuts to entitlements plus massive new spending. He says that leads to center-right policy.

But another way to look at it is this: on his scale of 1 to 10, where 1 represents bigger government and 10 represents smaller government, what’s happening? Is government getting bigger or smaller? Take health care: if 1 represents national health care and 10 represents a free market in health care, then surely with income tax preferences for health insurance, Medicare, the prescription drug benefit, and government paying for more than half of all health care, we were at least at 5 by 2009. Everybody from Michael Cannon to Joe Biden thinks Obamacare is a BFD on the road to total government control of medicine. So let’s say it put us at 3 or 4.

You can see the same pattern in the other issues Klein discusses. Carbon tax, cap and trade, stimulus spending—they all make government bigger than it is now. So when Republicans endorse any of those policies, they are playing on bigger-government territory. Now, Republicans say they’re not going to do that any more. So Klein’s complaint is not really that Republicans are insisting on “8, 9, or 10” policies; they’re just no longer proposing policies in the 3 and 4 range, hoping that Democrats will agree to make government only a little bigger, rather than way bigger. Sounds like maybe the debate is moving back toward the 50-yard line, instead of taking place entirely in Democratic territory.

Note: Klein talked only about economic issues, so I’ve done the same. There’s a clear trend in a liberal/libertarian direction on social issues such as marriage and marijuana. And Republicans who propose further restricting immigration or getting involved in yet another Mideast war are hardly advocates of small government. This analysis deals only with fiscal, regulatory, and entitlements issues.

The Art of Persuasion

The newest posting at Libertarianism.org is a 1979 speech by Nathaniel Branden, from the largest-ever convention of the Libertarian Party, titled “What Happens When the Libertarian Movement Begins to Succeed?” Alas, it’s audio-only, unlike all the classic videos at Libertarianism.org. But it’s still vintage Branden, and quite interesting. The site’s multimedia editor, Evan Banks, drew my attention to this part of the speech (starting around 22:22) that I think has a lot of relevance to the work we do at Cato and the attempts at persuasion by libertarians generally:

So it becomes very interesting to ask ourselves – and obviously I don’t wish to imply this applies to all of us, it doesn’t – but these are trends to watch for in ourselves and in our colleagues. So it becomes interesting to ask ourselves: Okay, suppose that I or my friends or my colleagues, while genuinely believing in these ideals, at the same time have this unrecognized negative self-concept of which Branden speaks. That means that my self-sabotaging behavior wouldn’t happen on a conscious level, but it would happen. How would it happen? What kinds of mistakes might we make?
 
Well, for example, suppose that you’re talking with people that don’t already share your views, and yet you believe your views have evidence and reason to support them. Now, if you really believe that you’re in this to win; to see your ideas prevail, then you give a lot of thought to how to become a good communicator, how to reach human minds, how to appeal to human intelligence. What do you do if you’re really in it to keep proving that you’re a heroic–but doomed–martyr? What do you do if your deepest belief [about people that don’t already share your views] is, “You’re never going to get it. You’re hopelessly corrupt. I may be one of the two or three last moral people on Earth. What am I doing at this party anyway?”
[laughter]
 
You engage in a lot of flaming rhetoric – you talk about statists, you talk about looters, you talk about parasites in contexts where you KNOW this language is Greek to your listener. Why should you care, your dialogue isn’t directed to him anyway – it’s directed to the spectator – you watching you being a hero. HE knows what you mean – don’t get confused over the fact that your listeners don’t, the show isn’t for them anyway.

Tesla and the Red-State Blues

In red-state America, the free market is king, right? Progressivism, socialism, the nanny state – those are fightin’ words. And what state could be redder than Texas? Well perhaps it’s still true that liquor’s for drinking and water’s for fighting in Texas, but water isn’t the only thing some Texans think worth fighting for. Legally-protected – read “unfree” – markets are another.

It seems that the folks who make these new-fangled electric cars – Tesla Motors, in particular – have a different sales and service model than traditional manufactures have had since the days of the Model T. As CNN Money explains, under the conventional model, manufacturers

sell cars to independently owned and operated dealers or distributors who, in turn, sell them to the public, usually after some negotiation over the final price.

By contrast, Tesla’s showrooms, of which there are already 37 around the country, are owned and operated by Tesla Motors. Most of the showrooms are in shopping malls with only enough cars kept in inventory for display and for test drives. Also, there’s no haggling. Every Tesla car sells at full sticker price. Service on the cars is performed at separate garages, also owned by Tesla.

Now I hold no brief for these cars or that sales and service model. In fact, I rather like my gas-guzzler, to say nothing of haggling. But I also like the free market, and that’s precisely what Bill Wolters, president of the Texas Automobile Dealers Association, seems not to like. If Tesla chief executive Elon Musk “wants to have a showroom in a mall, that’s fine,” Wolters said, “but he can’t own it.” Fearing that the Tesla sales and service model might encourage other automakers to try it, Wolters is fighting to keep in place the Texas law that prohibits automaker-owned dealerships. Under that law, Tesla can’t sell cars in Texas.

Tesla has showrooms there, but employees can only show off and explain the car. They can’t give test drives or take orders. They can’t mention the price at all, even if customers ask. The current law doesn’t stop anyone in Texas from ordering a Tesla Model S online if they want to. Tesla just can’t deliver it to the customer. The buyer has to arrange for delivery through a third-party shipping company.

And if you think Texas is bad, in North Carolina – another traditionally red state, despite the close presidential race in 2012 – dealers are pressing for a law that would make it illegal even to sell cars online in the state, something that’s currently legal in all 50 states.

We’ve seen this movie before, of course, with occupational licensure, consumer products, and so much more. And invariably it comes down to the same thing: the folks in place don’t like competition from the new kids on the block, so they run to the legislature for protection. Come on Texas (and North Carolina), practice what you preach. You’re making the blue states look good, and no self-respecting Texan wants that.