Topic: Political Philosophy

New Mexico Court Is Wrong: Government Must Treat People Equally, but Individuals Should Have Liberty to Speak, Associate, and Believe

On Thursday, the New Mexico Supreme Court ruled in Elane Photography v. Willcock that the First Amendment doesn’t protect a photographer’s right to decline to take pictures of a same-sex wedding against the requirements of the state’s Human Rights Act, which forbids discriminating against people on the basis of sexual orientation. This is a terrible result, for the freedom of speech and association, and for religious liberty. As I’ve argued before, even supporters of marriage equality (and equality generally) should not be blind to other violations of fundamental rights.

The New Mexico law is one of multiple state and federal “public accommodations” laws that prohibit private discrimination by companies that offer services to the public. These laws are antithetical to liberty and forbidden by the Constitution. The Supreme Court held in 1883’s Civil Rights Cases that the 14th Amendment – the provision that speaks to equal protection – doesn’t authorize Congress to legislate against discrimination by private citizens.

A hundred years later, however, the Court held that such power exists under the Commerce Clause – even where the business is confined to a single state. This is just one more instance of Commerce Clause abuse, something Cato has fought on numerous occasions, including the successful Commerce Clause challenge to Obamacare’s individual mandate.           

The legislation at issue in Elane Photography didn’t come from Congress, so the question of federal power doesn’t arise. But even if a state legislature has the authority to act in a specific area, that authority can’t be exercised in a manner that violates the constitutional rights of the those subject to it. Yet the New Mexico high court disagreed with the position we took in our amicus brief and held that compelling someone to engage in artistic photography somehow doesn’t violate the freedom of speech if they aren’t forced to broadcast a government-sponsored message (for more on the inadequacy of the court’s ruling see comments by Dale Carpenter and Hans Bader). 

Even if you agree with the court that New Mexico’s law doesn’t violate Elane Photography’s speech rights, however, it clearly violates the company’s freedom of association and freedom of contract – two rights which, while not explicitly named in the Constitution, are clearly implicit in our understanding of “liberty.” The right to freely associate and contract with others must include a negative right not to do so – or the right is meaningless. This isn’t a defense of bigoted business practices, but a defense of choice, and it applies across the board: I don’t like homophobia, or racism, or any other number of irrational or even deplorable attitudes, but as I said on 20/20 earlier this month, being a jerk isn’t illegal.

If a restaurant doesn’t like how you’re dressed, it has the right not to serve you. No shirt, no shoes, no service, no problem – or, at least that’s the way it should be. My property is my property and my time is my time. I have the right to sell or rent both to anyone I want – or not to, as the case may be. We don’t need a government forcing businesses to serve people because the market will do that for us: refusing customers – refusing to make a profit – over something as irrelevant as a customer’s skin color or sexual orientation is a losing business strategy. 

Unfortunately, the Supreme Court has been hostile to freedom of association and contract since the 1930s, notably in the 1984 case of Roberts v. U.S. Jaycees, where the Court upheld a law that required the Jaycees, a private self-help and leadership training group, to begin admitting women, over the membership’s objections. More recently, Christian Legal Society v Martinez, (in which Cato also filed a brief), the Court ruled that a Christian student group couldn’t restrict candidacy for leadership and ministerial positions to students who shared the group’s faith. (Accordingly, Democrats apparently have to admit Republicans, PETA has to admit meat-lovers, and so forth.) In these cases, the Supreme Court, like the New Mexico court, held that the government’s interest in equality and “non-discrimination” allows it to run roughshod over individual liberties.

While the last few terms at the Court have included numerous important victories for freedom – and we may be living what I like to call the Court’s “libertarian moment” – the Court’s protection of individual liberty is patchy. The rights of criminal suspects, the religious, property owners, businesses, and many others, are all occasionally sacrificed in the name of “progress”.

The Political Revolution Made by Margaret Thatcher

The rise of Ronald Reagan was improbable. Margaret Thatcher’s journey to British prime minister seemed almost impossible. Journalist Charles Moore tells the story in Margaret Thatcher: From Grantham to the Falklands

Margaret Roberts was the younger of two daughters of a middle class grocer. She married businessman Denis Thatcher, who supported her political career.

Although she was not the first female MP, they were few in number. Rarer still were those with an aptitude for “men’s issues,” such as economics. But Thatcher impressed party elders and local residents, and in 1958 won the Conservative Party nod to compete in Finchley, a Tory stronghold.

In the following years she served in and out of government, impressing those around her with her knowledge of the issues and ability in debate. She joined the cabinet of Prime Minister Edward Heath in 1970.

As I wrote in my review in the Washington Times, that government:

“was battered by turbulent times.  Indeed, I lived through much of his premiership, since my Air Force father was stationed in Britain from 1970 to 1973.  Unfortunately, Heath lacked the principled beliefs and firm character necessary to challenge the expansive welfare state.

He went to the polls early and lost.  The majority of Tory MPs then wanted to defenestrate him, but the obvious challengers hung back.  So the lady from Finchley challenged Heath.  On February 11, 1975 she piled up an overwhelming majority on the second ballot to become opposition leader.”

It was another four years before the weak Labor government collapsed. But on May 3, 1979, British voters gave the Conservatives a 43 seat majority, making Margaret Thatcher prime minister. The country’s economic problems seemed intractable and party moderates soon wanted to retreat. However, she famously responded: “The lady’s not for turning.” 

Her premiership was rescued by Argentina’s decision to invade the Falkland Islands on April 2, 1982. The islands didn’t seem worth a war and Britain’s military power was waning. However, the “Iron Lady” risked all, and won. That set the stage for her future success. Writes Moore:  “The Falklands War established Mrs. Thatcher’s personal mastery of the political scene, and convinced people of her special gifts of leadership.”

There ends volume one, with much more to come.  It’s well worth the read, and likely will leave any political buff waiting for more.

Please—Enough with the ‘Gridlock’ Lament

National politicians and commentators are once again worrying that “political gridlock” is preventing government from “fixing the nation’s problems.”

President Obama began this lament’s latest chorus last week during his economy snoozer speech at Knox College in Illinois. “[O]ver the last six months, this gridlock has gotten worse,” he said, vowing, “I will not allow gridlock, or inaction, or willful indifference to get in our way.” Earlier this week the New York Times asked Obama, “Do you worry that [a stalled agenda] could end up being your legacy because of the obstruction … and the gridlock that doesn’t seem to end?” That prompted National Journal writer Ron Fournier to claim that the current gridlock is the result of a lack of will by political leaders: “At the White House and in Congress, most Democrats and Republicans have abandoned hope of fixing the nation’s problems.”

Many Republicans may be asking, “What gridlock?” After all, President Obama has had little trouble advancing his agenda, from the American Recovery and Reinvestment Act and the subsequent series of fiscal stimulus and “jobs” bills, to the Dodd-Frank Act and creation of the Consumer Financial Protection Bureau, to the Patient Protection and Affordable Care Act (aka Obamacare), to tax increases. The GOPers would argue that the president’s setbacks have been few, temporary, and/or small. As evidence that he doesn’t feel too fettered by gridlock, they might point to his “compromise offer” to raise corporate taxes in exchange for increasing government spending.

But the Republicans are wrong. Washington is severely constrained by gridlock, and that is harming Americans’ standard of living, health, and financial security, and exacerbating unemployment, income equality, and our children’s education and future well-being. Right now, political obstructionism is blocking numerous policy ideas and legislative proposals that would greatly benefit Americans. Among them:

Cato’s Ivy League Internship

The Wall Street Journal reports:

While some colleges struggle to fill seats, the country’s most selective ones are becoming harder to get into. Seven of the eight Ivy League schools reported they lowered their acceptance rate for this fall, with Harvard leading the pack by accepting less than 6% of its more than 30,000 undergraduate applicants.

As we’ve noted before, perhaps the only student program more difficult to get into than Harvard is the Cato internship program. This summer we were able to accept 4.9 percent of the more than 800 applicants for internships.

The program’s rigor is similar to the Ivy League, too. But, unlike the Ivy League, Cato interns receive a broad and deep education in the fundamentals of liberty. Each intern is assigned to policy directors at Cato, allowing the intern to delve deeply into a particular area of study. Not only do the interns help Cato scholars with research and work with the conference department to organize policy conferences, debates, and forums, but they attend regular seminars on politics, economics, law, and philosophy, as well as a series of lectures and films on libertarian themes. The interns develop their public speaking skills by presenting policy recommendations and develop their writing skills by drafting letters to the editor and op-eds. After such intense study, they emerge at the end of the summer well equipped to promote and live the ideas of liberty.

Find out more about Cato internships here. Note that the internship program is year-round, and the process is a little less competitive for Fall and Spring internships. We encourage students to consider applying in any season. The deadline for Fall internship applications has passed, and the deadline for Spring is November 1.

Michael Gerson, Mainstream Republican?

Michael Gerson, an important intellectual force within the administration of Bush the Younger, from whose wreckage the GOP is still trying to emerge, now is inveighing that Rand Paul “can never be a mainstream Republican.”

The claim is peculiar because Gerson himself, the purveyor of an unapologetically big-government, “heroic” conservatism, was hardly a mainstream Republican until George W. Bush altered what “mainstream Republican” meant. Certainly, anyone who called skeptics of federal power “morally empty” would not have been identified as a mainstream Republican until Bush (and Gerson) transformed the party.

But in case you need a few other reasons to question Gerson’s conservative bona fides:

One wonders whether Edmund Burke, John Lukacs, or William F. Buckley would have judged these as the marks of a conservative.

Gerson’s takes as a jumping-off point for his latest dig against libertarianism some of the genuinely offensive and wrong things that Paul adviser Jack Hunter had written about the Civil War, race, and the Confederacy. But one gets the sense that though Gerson’s appreciation for Lincoln and a powerful federal government are heartfelt, he didn’t need to see Hunter’s C.V. to dislike Paul—and to use Hunter as a way to slam libertarianism.

In the end, though, Gerson’s argument that Paul “can never” be a mainstream Republican is belied by the fact, highlighted by Gerson’s very article, that the mainstream of the GOP is moving, slowly, in Paul’s direction. As Gerson’s first sentence observes, Paul is 2013’s “Republican flavor of the year.”

Paul and the GOP have at least three choices: a recapitulated Southern strategy, Gerson’s militarist Christian Democracy, or a libertarian-conservatism that can appeal to 21st century America. As Gerson should know by now, much like the course of a war, the future of a political party is hard to predict in advance.

Can You Spell L-A-F-F-E-R C-U-R-V-E?

I’m thinking of inventing a game, sort of a fiscal version of Pin the Tail on the Donkey.

Only the way my game will work is that there will be a map of the world and the winner will be the blindfolded person who puts his pin closest to a nation such as Australia or Switzerland that has a relatively low risk of long-run fiscal collapse.

That won’t be an easy game to win since we have data from the BIS, OECD, and IMF showing that government is growing far too fast in the vast majority of nations.

We also know that many states and cities suffer from the same problems.

A handful of local governments already have hit the fiscal brick wall, with many of them (gee, what a surprise) from California.

The most spectacular mess, though, is about to happen in Michigan.

The Washington Post reports that Detroit is on the verge of fiscal collapse.

After decades of sad and spectacular decline, it has come to this for Detroit: The city is $19 billion in debt and on the edge of becoming the nation’s largest municipal bankruptcy. An emergency manager says the city can make good on only a sliver of what it owes—in many cases just pennies on the dollar.

This is a dog-bites-man story. Detroit’s problems are the completely predictable result of excessive government. Just as statism explains the problems of Greece. And the problems of California. And the problems of Cyprus. And the problems of Illinois.