Hyde Will Be Missed

Former Congressman Henry Hyde of Illinois, who died this morning in Chicago at the age of 83, was a friend of the Cato Institute who worked closely with us in our efforts to put a spotlight on the abuses flowing from America’s civil asset forfeiture law. A staunch defender of the war on drugs, Rep. Hyde saw nonetheless that not every tactic the government used in that war could be justified. In particular, the government’s seizure for itself of private property that merely “facilitated” a crime, often from completely innocent people, drove him to do whatever he could to end such abuses. He called hearings, at which Cato scholars were invited to testify. Then in 1995 Cato published his book, Forfeiting Our Property Rights: Is Your Property Safe from Seizure? The tone of the book was captured in its opening words:

Much of what you may have learned in school or college about your rights and liberties no longer applies. Increased government and police powers, rising criminal activity and violence, popular anxiety about drug use–all have become justifications for curtailing the application of the Bill of Rights and the individual security it once guaranteed.

The book was a ringing indictment of the government’s war on private property through the awful practice of civil asset forfeiture. More hearings followed its publication, culminating in a reform bill, which Hyde unveiled as the keynote speaker at a 1999 Cato conference. Hyde was tireless in shepherding the bill through both houses of Congress, fighting the Justice Department all the way, and in obtaining President Clinton’s signature. We will miss him.

Henry Hyde, RIP

Rep. Henry Hyde died this morning. He was one of the “elder statesmen” in the GOP and, as this article says, was known around the capital for his courtly manners. Hyde and Cato found common ground in the mid-1990s as the government was seizing property left and right under the guise of civil forfeiture laws. Cato published his book, Forfeiting Our Property Rights: Is Your Property Safe from Seizure?

Here’s a brief excerpt from that book:

I think it evident that an individual’s free nature indicates clearly that we are self-providers, that we naturally want to support ourselves and our families. But when an individual is robbed of his or her property, of the right to ownership of material goods, that individual then becomes subject to the will, caprice, and power of others in a way that degrades the dignity and independence of his or her human nature. And when this power is concentrated in the hands of government, it becomes an even greater threat to life and liberty. … My personal belief, which prompted my writing this book, is that there is an immediate need for restoration of the constitutional principles that are debased by the current application of asset forfeiture laws.

Hyde shepherded reform legislation through the Congress following the publication of his book.  Although Hyde and Cato had disagreements–especially with respect to term limits–he had kind things like this to say: “The Cato Institute has consistently provided a much-needed and very certain trumpet among the unreasoning cacophony that is everyday Washington.”

Greenwald on the GOP and Limited Government

While I’m on the subject of Glenn Greenwald, I should point out his great response to David Brooks’s latest column on the alleged death of small government conservatism. Greenwald cites a Cato study by Gene Healy and Tim Lynch on the Bush administration’s terrible civil liberties record to make the broader point that the Bush administration has abandoned the limited government ideals that animated the Republican party in under the leadership of Goldwater and Reagan:

But neoconservatism – which is really what the right-wing pro-Bush movement has become – doesn’t believe in any of that, and Brooks’ column demonstrates that they are admitting that more and more explicitly. Instead, it touts a radical and authoritarian nanny-statism that seeks, at its core, to provide feelings of protection, safety, and moralistic clarity – “security leads to freedom” – all delivered by political leaders using ever-increasing federal government power and limitless militarism. Whether one believes in that radical and warped vision of the American federal government is, more than any other factor, what now determines one’s political orientation.

I have argued several times before that the radicalism of the Bush presidency and the neoconservatism on which it is based has resulted in a fundamental political re-alignment. As Brooks points out, the issues that shape our political spectrum and determine one’s political orientation have changed fundamentally – Brooks contrasts today’s predominant issues with those of the 1970s in order to demonstrate this shift, but the shift is just as drastic even when one compares today’s predominant political issues to those that drove the key political dispustes as recently as the 1990s.

There is one principal reason for this shift – the Bush presidency and the political movement that supports it is not driven by any of the abstract political principles traditionally associated with “liberalism” or “conservatism.” Whatever else one wants to say about the Bush presidency, it has nothing to do with limiting the size, scope and reach of the federal government. The exact opposite is true.

On every front, the Bush administration has ushered in vast expansions of federal power – often in the form of radical and new executive powers, unprecedented surveillance of American citizens, and increased intervention in every aspect of Americans’ private lives. To say that the Bush movement is hostile to the limited-government ends traditionally associated (accurately or not) with the storied Goldwater/Reagan ideology is a gross understatement.

Of course, our own Ed Crane saw this coming almost a decade ago, observing in 1999 that the future President Bush had absolutely no interest in carrying on the Goldwater/Reagan tradition of limited government.

America’s Hall Monitor

Odd as it may seem, there are libertarians who are Giuliani enthusiasts–and some who even find “America’s Mayor” “electrifying.” David Boaz and David Weigel each provide some very good reasons to doubt that a Rudy presidency would be good for American liberty, among them his 1980s prosecutorial “reign of terror” against Wall Street, his unhinged approach to foreign policy, and an authoritarian streak that ought to disturb civil libertarians. But for a shorter indictment, it’s hard to beat this anecdote from Newsweek’s recent feature “Growing Up Giuliani”, in which the ambitious, officious young Rudy sounds like a cross between Douglas C. Neidermeyer and Tracy Flick:

Giuliani managed a friend’s campaign that year, hiring a U-Haul with a loudspeaker to cruise outside the school, but his highest office was hall monitor. He seemed to enjoy wearing a badge and disciplining students for minor infractions, such as talking during a fire drill. “He had a stern look,” says Jack J. Rengstl, another former Loughlin student. In the yearbook, in the usual “Most likely to …” categories, he was voted “Class Politician.”

Stenographers to the Powerful

There’s a mini-scandal brewing over a Time magazine column by Joe Klein that attacked House Democrats for playing politics with the domestic wiretapping issue. Klein wrote that the House Democratic proposal would, among other things, “require the surveillance of every foreign-terrorist target’s calls to be approved by the FISA court” and “give terrorists the same legal protections as Americans.” In an accompanying blog post he accuses Democrats of standing in the way of sensible legislation “because of blind, stupid partisan politics.”

Now, as Ryan Singel ably demonstrates virtually every word of the FISA discussion in Klein’s article is false. The Dems’ proposal doesn’t require court approval to intercept communications overseas, nor does it “give terrorists the same legal protections as Americans.” The bill isn’t that long or complicated; had Klein bothered to actually read it, it would have been obvious that these characterizations were false. Klein even seems confused about which legislation the House has been considering. Klein issued a weasely follow-up post on his blog on Saturday conceding that he “may have made a mistake” in discussing the details of the bill but sticking by his “larger point” that House Democrats were to blame for holding up sensible legislation.

Today, Time issued its own correction to the online version of the column, and will apparently print that correction in the magazine as well. It reads, in its entirety:

In the original version of this story, Joe Klein wrote that the House Democratic version of the Foreign Intelligence Surveillance Act (FISA) would allow a court review of individual foreign surveillance targets. Republicans believe the bill can be interpreted that way, but Democrats don’t.

As Glenn Greenwald points out, it’s hard to find a pithier summation of all that’s wrong with our nation’s media elites. The editors of the nation’s most popular newsweekly apparently don’t believe it’s their job to evaluate the two sides’ competing claims and decide which is more credible. They seem to believe that “balance” simply requires faithfully transcribing each side’s claims. Even when one side’s claims is clearly true and the other side’s claim is clearly false, it’s not the reporter’s job to say so, or even to quote an independent expert saying so.

And that, of course, leaves Time’s four million readers with the erroneous impression that the Democrats want to give overseas terrorists the same legal protection as American citizens. Most readers aren’t going to take the time to read the bill and disentangle the competing claims. Most don’t read Glenn Greenwald’s blog, Ryan Singel’s blogs, or Cato@Liberty.

It’s worth mentioning the broader context here. The House Democrats’ bill, known as the Restore Act, is far from perfect. It allows the executive branch to intercept foreign-to-domestic calls on American soil without a warrant in certain circumstances, which I think runs afoul of the spirit of the Fourth Amendment. But the legislation is much better than the Protect America Act Congress passed in August, and better than the companion legislation being discussed in the Senate. And the House Democrats have resisted intense lobbying from the telecommunications industry to give them retroactive blanket immunity for illegally sharing their customers’ private information with the government. They deserve more credit than anyone else in Congress or the White House for putting principle above political expediency.

Klein has rewarded them for their courage by repeating inaccurate Republican talking points and thereby smearing them as soft on terrorism. By refusing to print a meaningful correction—one that points out that the Democrats proposal does not, in fact, “give terrorists the same legal protections as Americans”—they are perpetuating the false impression that thousands of ordinary Time readers got from Klein’s column. And they are also starkly revealing the sad state of elite journalism.

Constitutional Reform in Latin America?

Yesterday I went over to the Organization of American States (OAS) for a roundtable on “Constitutional Reform in the Americas.” The event featured opening remarks by the OAS Secretary General, followed by country-specific presentations by experts on Bolivia, the Dominican Republic, Ecuador, and Venezuela.

I won’t bore you with the details, but three themes emerged:

1) The ever-expanding constitutions of many Latin American countries, both to strengthen strongmen (Chavez) and to add to the copious list of positive rights (Brazil). This is not good for either constitutionalism or rule of law because on the one hand you have the country’s founding document being changed at the whim of a single man and on the other a constitution bloated with such things as the fundamental right to, e.g., four weeks’ paid annual vacation decreases in legitimacy. To paraphrase an old Argentine lawyer who advised that country’s last significant amendment process in 1993-94, “constitutional inflation leads to rule of law devaluation.” Alternatively, the Latin American counterpart to the old saw about French constitutions being filed in libraries’ periodicals section is that Latin ones are filed as encyclopedias.

2) The desire to constitutionalize (or rebalance constitutional structures relating to) the “special rights” of indigenous peoples. There is nothing wrong per se with wanting to recognize that certain native peoples preceded the arrival of European colonists/conquerors (British-American in the U.S., Spanish and Portuguese in Latin America) and that these people should not be exploited as a result of their having been vulnerable to colonization. But to enact wholesale nationalizations and special privileges on the basis of race, or caste, or tribe – let alone raise these perversities to the constitutional level as is being proposed in Bolivia – is a political and legal travesty.

3) The battle over political reform is no longer, if it ever was, between left and right or socialism and neoliberalism (the common Latin American term for pro-market policies and the Washington Consensus), but rather between democracy and authoritarianism. This may not represent that much of a change from the past – the populist governments that plagued the region in the 20th century could be alternately left or right wing – but it does confirm that the “consolidating democracy” project of the ’80s and ’90s has stalled if not taken a reverse. That is, the narrative that those of us studying Latin America in college and grad school in the late ’90s to early 2000s learned – the Third Wave of democratization, Latin America finally being on the right path but just needing time to grow economically –  underestimated some nasty undercurrents of resistance.

In short, the roundtable was equal parts fascinating and frustrating. You can watch it (in Spanish) here.

Lind on Libertarianism

Michael Lind is at it again, proclaiming the death of libertarianism on the op-ed pages of the Financial Times. “The two great trends now,” he writes, “are the collapse of libertarianism as a political force and the rise of economic populism.”

In the piece Lind provides a potted history of America’s evolving political economy. In the opening act of 1932-1968, New Deal welfare-state liberalism occupied the political center, flanked on the left by economic populism and on the right by Eisenhower-style “dime store New Deal” conservatism. Then came the shift to the right during 1968-2004, when welfare-state liberalism was shunted to the left, a newly assertive libertarianism occupied the right, and moderate conservatism commanded the center. Now, according to Lind, anxieties over globalization have led to the rout of the libertarians and the rebirth of populism. So we’re back to where we began, with welfare-state liberalism in the center (where, according to Lind, it rightfully belongs).

I’ll concede that we’ve seen a cyclical shift in recent years somewhat along the lines Lind describes. The political terrain has become more difficult for supporters of free markets and limited government, and more inviting for Lou Dobbsian populism.

But we need to be careful to distinguish between cyclical and secular change. Lind focuses on the back-and-forth of the pendulum and misses the fact that the whole clock has been moving. And it’s been moving in a generally libertarian direction.

Lind merrily proclaims that welfare-state liberalism has reclaimed the center that it occupied during 1932-1968. But he ignores the fact that welfare-state liberals today are dramatically more libertarian on economic issues than their predecessors in their parents’ and grandparents’ generations. Nobody these days seriously supports a return to a 70% top income-tax rate, or Keynesian fine-tuning, or interest-rate controls for banks, or the phone monopoly, or regulated trucking; nobody touts nationalization or wage-and-price controls as cures for what ails.

The economy today is dramatically more competitive and entrepreneurial today, and markets are dramatically less regulated, than was the case a few decades ago. And notwithstanding Lind’s fond hopes for a return of the New Deal liberal ascendancy, there is little reason to believe that this huge secular shift is going to be reversed in the foreseeable future.