Topic: Political Philosophy

Salon Writer Not a Fan of Sharing Economy Start-up or ‘Transnational Neocolonialist Libertarian Arrogance’

Over at Salon, Andrew Leonard has written an article headlined “Libertarians’ anti-government crusade: Now there’s an app for that,” in which he criticizes MonkeyParking, a start-up that enables users to auction off information about parking spaces. MonkeyParking recently received a cease and desist demand from San Francisco City Attorney Dennis Herrera, stating that it is in violation of a provision in San Francisco’s Police Code that “specifically prohibits individuals and companies from buying, selling or leasing public on‐street parking.”

According to Leonard, MonkeyParking and another app that offers to pay car owners to occupy parking spaces “is an example of how the ‘sharing economy’ can be totally bullshit.”

He contrasts MonkeyParking with Forage Oakland, which allows residents to “share” produce from local fruit trees such as figs and lemons.

Forage Oakland sounds great, and a libertarian would be the last person to object to residents setting up a way to give away produce for free. Indeed, last month it was reported that lawmakers and regulators in 33 American cities have restrictions or are considering implementing restrictions that hamper those hoping to hand out food to homeless people.

Leonard argues that Forage Oakland is different from MoneyParking because

Monkey Parking’s [sic] solution intended to generate profit off of a public good by rewarding those who are able to pay — and shutting out the less affluent. That’s outrageous and not something any civilized society should tolerate.

He doesn’t elaborate on what measures a “civilized society” should take in order to prevent MonkeyParking from operating, especially given the fact that the technology being used by MonkeyParking isn’t going anywhere soon and that, according to Pew, the number of Americans who own smartphones has increased over the last few years.

He goes on to criticize MonkeyParking’s “obvious self interest”:

The entitlement and obvious self-interest that led MonkeyParking to decide it could solve a San Francisco municipal problem with a blatantly illegal business model is shared by many “disruptive” entrepreneurs—often cloaked under the cover of libertarian ideology.

It’s a shame that he doesn’t appreciate that the price system is extremely efficient at communicating information to producers and customers and that the regulatory environment that is affecting MonkeyParking is only the latest example of regulators and lawmakers not being able to keep up with changes in technology.

Magna Carta and Constitutional Criminal Procedure

In United States v. Booker (2005), the Supreme Court held that the Sixth Amendment prohibits a judge from sentencing a convicted defendant to a prison term exceeding the law’s maximum penalty for the crime committed, unless additional aggravating facts are found by the jury (or admitted by the defendant). The Court also held that all sentences must be reasonable.

In a subsequent case, Justice Scalia issued a concurrence in which he expressed concern about situations in which judges issue sentences below the statutory maximum, but which would only be reasonable in light of additional facts found solely by the judge. He proposed an “as-applied” doctrine, in which the reviewing court asks whether the sentence would be reasonable as applied to only those facts that were found by the jury.

The situation that Justice Scalia feared has now become manifest for three criminal defendants who were all convicted of selling small quantities of drugs but acquitted of conspiracy charges relating to the distribution of much larger quantities. Despite the acquittals, all three defendants received sentences four times greater than any other defendant convicted of the same crimes in the post-Booker era using the guidelines issued by the U.S. Sentencing Commission.

The defendants argue—and no prosecutor or judge has disputed—that their sentences would not be deemed reasonable without consideration of the additional evidence of conspiracy. In reviewing the sentences, the U.S. Court of Appeals for the D.C. Circuit adhered to settled precedent and declined to adopt the as-applied doctrine, and so the defendants seek to further appeal their sentences to the Supreme Court and finally resolve the question, under the Sixth Amendment, of whether a judge can base a sentence on facts that the jury did not find beyond a reasonable doubt.

In an amicus brief supporting that petition, the Cato Institute, joined by the Rutherford Institute, argues that the Sixth Amendment prohibits the increased sentencing of defendants based solely on judge-found facts of the crime, regardless of whether the final sentence remains below the statutory maximum. The defendants’ constitutional right to a jury trial can be traced back to Article 39 of the Magna Carta, which is also the historical origin of the Constitution’s prohibition on ex post facto, or retrospective, criminal laws.

Article 39 reflected a deep concern that the government would undermine the jury’s role and imprison defendants without the input of their peers. Given the status of sentencing guidelines as “law” for purposes of the Ex Post Facto Clause, the Sixth Amendment should extend to the defendant’s right to the “lawful judgment of his peers,” meaning that a judge can only render a sentence based on the jury’s factual findings. 

In other words, if it’s unconstitutional to sentence a defendant based on rules issued after he commits the purported crime, it must be unconstitutional to sentence a defendant without the input of his peers.

The Supreme Court will decide whether to take the case of Jones v. United States when it comes back from its summer recess.

The Case against 8

In the video clip below, Chad Griffin, then Board President of the American Foundation for Equal Rights, discusses the battle for gay rights with Ted Olson, who successfully litigated California’s Prop 8 case.  Griffin suggests, in an apparent attempt at humor, that he might re-think his support for same-sex marriage after hearing that the Cato Institute and I, as Cato’s chairman, are outspoken advocates for marriage equality.

Regrettably, statements such as Griffin’s are too often misunderstood by less diligent members of the media and other casual observers who conflate libertarians and conservatives.  Cato has consistently embraced civil liberties, including but not limited to the right to same-sex marriage.  By contrast, conservatives – with whom we are mistakenly equated – have been selective in their endorsement of personal freedom.  Indeed, some conservatives, who vigorously promote federalism, have also promoted a Federal Marriage Amendment.  That amendment, which defines marriage throughout the country as “the union of a man and a woman,” would prohibit states from recognizing same-sex marriage within their own borders, even if desired by the state’s citizens.  What could be less compatible with fundamental principles of federalism?

More generally, conservatives agree with Cato on some issues – such as the right to bear arms, lower taxes, reduced spending, free trade, and less economic regulation.  Liberals agree with us on other issues – such as immigration reform, drug legalization, marriage equality, and a non-interventionist foreign policy.  Does that indicate libertarians are philosophically inconsistent?  No, it indicates quite the reverse – conservatives and liberals are philosophically inconsistent.  Conservatives want smaller government in the fiscal sphere, but they condone bigger government when it comes to empire building and regulating personal behavior.  Liberals want fewer government restrictions in the social sphere, but they embrace strict limits on economic liberties.  Unlike liberals and conservatives, Cato scholars have a consistent, minimalist view of the proper role of government.  We want government out of our wallets, out of our bedrooms, and out of foreign entanglements unless America’s vital interests are at stake.

Why Piketty Was Mistaken for Endorsing the Zucman & Saez Slide Show

I will have more to say about this fairly soon, but this might serve as a preview.

Thomas Piketty is now advising innocent readers of his book to (1) not demand a refund or dump the book used on Amazon, and (2) ignore his own flawed estimates of top 1% U.S. wealth shares and instead utilize a PowerPoint by Gabriel Zucman and Emmanuel Saez.  Zucman and Saez use capital income reported on individual tax returns (dividends, interest, rent and capital gains) to infer ownership of capital assets, and not just greater realization of gains or portfolio shifts from tax-exempt bonds to dividend-paying stock.

That might be semi-plausible if businesses and professionals were not free to report income on either corporate or individual tax forms, and if tax rates never changed. But this methodology can’t possibly work after the huge tax rate reductions of 1986 (for partnerships & SubS corps), 1997 (capital gains) and 2003 (dividends and capital gains).  The reason it can’t work was fairly well explained by Piketty, Saez and Stantcheva in the original unsanitized version of a paper they published this February (which I have cited beforebut also critiqued):

There is a clear negative overall correlation between the [reported] top 1% income share and the top marginal tax rate: …  [T]he top 1% income share has increased significantly since 1980 after the top tax rate  has been greatly lowered… . [T]he top 1% income share more than doubled from around 8% in the late 1970s to around 18% in last five years, while the net-of-tax (retention) rate increased from 30% (when the top marginal tax rate was 70%) to 65% (when the top tax rate is 35%).”

Polarization and Freedom

A new Pew poll finds that three out of four “consistent liberals” would rather live in a community “where the houses are smaller and closer to each other” but within walking distance of schools, stores, and restaurants. Conversely, three out of four “consistent conservatives” would rather live in a larger home on a large lot even if it means driving to schools, stores, and restaurants.


Source: Pew Research Center. Click chart to download Pew’s 121-page (3.5-MB) report on polarization in America.

Pew says this shows that “differences between right and left go beyond politics,” which Pew claims is one of the seven most important things to know about polarization in America. Yet the left has turned the choice between a traditional suburb and a so-called walkable community into a political issue, so it is no wonder that people’s views on this choice are polarized.

Disappointingly, Pew’s report on polarization defines everything in terms of liberal vs. conservative. Pew’s big news is that the share of Americans who are consistently conservative or consistently liberal has more than doubled since 1994–yet you have to read deep into the report to learn that these groups make up just 21 percent of the country. The report says little about the other 79 percent of Americans, yet you’d think they would be important since they outnumber the consistent ones by almost four to one.

Chilling Speech Is No Laughing Matter

If a state’s truth ministry has threatened to prosecute you for something you said during an election campaign, can you sue? Of course, said the unanimous Supreme Court, with what would undoubtedly have been a guffaw if one could be conveyed in a legal opinion. While the Court left it to its lesser brethren to deal further with a law that criminalizes making “false statements” – whatever that means: too many Pinocchios? – about political candidates, the satirical graffiti is clearly on the wall for that Buckeye bunkum.

As Cato’s brief alongside P.J. O’Rourke made clear, allegations, insinuations, “truthiness,” smears, and all that other rigmarole have been part and parcel of American political discourse since time immemorial. Indeed political speech – including lies, so long as they’re not defamatory (for which there are clear legal standards) – resides firmly in the throbbing heart of the First Amendment. It’s farcical to think that a legislature could charge a panel of bureaucrats (like the state election commission here) with enforcing some sort of Marquess of Queensberry debate rules.

While standing is often hard to come by, even the most curmudgeonly jurisprudential sticklers can see that political advocates have to be able to challenge a law that restricts political advocacy – one that’s already been used against them, no less! At the end of the day and in the fullness of time, today was a banner morning for free speech and judicial engagement.

Eric Cantor’s Website

My Daily Caller op-ed today looks at the website of a typical modern politician, Rep. Sean Patrick Maloney (D-NY). His site is designed to impress voters and the media in his district with all the federal benefits he has brought home. Maloney is taking a pork and constituent service approach to gaining reelection.

There are other approaches to electoral success. Senator Rand Paul (R-KY) has a strategy of championing principles and specific issues that broadly resonate. The detail on Paul’s website is much better than most. Under “Issues,” he describes his general approach to each policy topic and discusses his stands on particular bills. Under “Budget” he provides a 106-page plan to cut spending.  

Looking at Rep. Eric Cantor’s (R-VA) website, you can see that he followed neither the pork nor the principled approach. If Cantor brought pork home to his district, he does not do a very good job telling people about it.

Regarding big ideas or describing his positions on issues, Cantor’s congressional website is nearly empty. Unlike most members, he does not even have an “Issues” section to explain his approach to tax reform, the budget, economic growth, civil liberties, energy, or other policies. His website is fluff.

Cantor’s primary defeat seems partly due to a lack of trust, meaning that voters in his district did not really know where he stood on issues or how he would vote. His website seems to have reflected his strategy of not taking hard stands and having few guiding principles. In his district, that ended up being a losing strategy.

(As majority leader, Cantor also runs this website. But for all the resources that office must have, this site is also very fluffy).