Archives: 04/2012

Stand Your Ground Laws Cont’d

On Sunday, the Washington Post ran a front page story on Florida’s Stand Your Ground Law.   And in an article for Jurist, just published, I explain why there is really no connection between the Stand Your Ground Law and the shooting death of Trayvon Martin.  Here is an excerpt:

Stand Your Ground laws are designed to clarify the law in order to protect the honest homeowner who is under attack by a criminal. It is bad enough to have your home broken into and your life threatened. To then have to hire a lawyer to fend off a misguided prosecutor and a personal injury lawyer representing an injured criminal was considered just too much, at least for lawmakers in many jurisdictions. The recent enactments help the homeowner with two legal presumptions for the home invasion scenario: (1) that the person forcing entry into a house is presumed to be doing so with the intent of committing a violent act; and (2) that if the resident of the home used defensive force, it is presumed to be because of a reasonable fear of bodily harm or even death.

With respect to incidents outside the home, the Stand Your Ground statutes clarify the law for innocent persons by dispensing with any legal obligation to retreat, hence the name, “Stand Your Ground.” What has been overlooked is the fact that the statute only applies to a person under “attack.” Again, the rationale is that it is bad enough for an innocent person to find himself under attack by a criminal, but to then have to worry about whether the law requires a retreat is simply too much to ask. As Justice Oliver Wendell Holmes once observed, “detached reflection cannot be demanded in the presence of an uplifted knife.” The Florida law says that if you are under attack, retreat if you like, but be assured that you may also stand your ground and fight back if that seems to be the best option.

Looking at the standards of the Florida law and the circumstances surrounding the shooting death of Trayvon Martin shows there is no applicability. First, we know that Martin did not try to force his way into Zimmerman’s home. Second, we know from the recorded 911 call that Zimmerman was not under attack when he initially encountered Martin. Third, and this is very important, Martin did not commit any crime in Zimmerman’s presence. Despite the hyperbole about a “license to kill,” the Stand Your Ground law actually has a narrow application to a few scenarios that require no police training. When a criminal brandishes a weapon and says “Give me your money if you don’t want to get hurt,” there’s no ambiguity as to what is happening and the law is applicable. Outside of these types of scenarios the Stand Your Ground law does not apply.

When Zimmerman made the fateful decision to disregard the police dispatcher’s statement to await the arrival of the police and not to follow his “suspect,” he was acting outside and beyond the Stand Your Ground law. Other legal principles enter the picture and those principles run against Zimmerman. By following Martin, Zimmerman’s actions set up the perilous confrontation. Consequently, he will likely be seen as an aggressor in the eyes of the law. Even if Martin threw the first punch, that punch will likely be considered the result of Zimmerman’s provocation. Since Martin was unarmed, a gunshot in response to non-deadly force (fisticuffs) will probably be deemed beyond the bounds of normal self-defense. (The Florida legal system will have to consider all of the available evidence and ultimately determine Zimmerman’s legal responsibility.)

Cato will be hosting a policy forum on the Stand Your Ground Laws on Monday, April 23–details here.

More on ‘Social Darwinism’

David Boaz has already explained how “social darwinism” is nothing more than a nasty smear. The term was made popular by Richard Hofstadter in his Social Darwinism in American Thought. Hofstadter aimed to bring to justice the business titans of the Gilded Age by targeting authors that he identified as the most relevant preacher of gospel of business, like Herbert Spencer and William Graham Sumner.

Hofstadter, in his own words, “hated capitalism” and wanted to unveil its ultimate sins, by showing the hidden side of its intellectual family tree. If the source of legitimacy of capitalism lay in the “survival of the fittest,” then capitalism itself was to be a close relative of racism, imperialism, and eugenics.

For the American historian, thus, Social Darwinism presented itself both under an individualist and a collectivist kind. The first preached free enterprise, the second aggression and militarism.

Hofstadter maintained that “a resurgence of social Darwinism, in either its individualist or imperialist uses, is always a possibility so long there is a strong element of predacity in society.”

Hofstadter was a gifted writer and, largely for that reason, Social Darwinism in American Thought was a hugely influential book – and as such a mine of catchwords for propagandists. Its inaccuracies have long been exposed. In defending himself from Robert Bannister’s criticisms, Hofstadter pointed out that “intellectual history … proceeds by more gross distinctions than you are aware of.” This is a rather elegant way of saying that intellectual history can be written with clear ideological goals in mind.

Of these “gross distinctions,” as Boaz already noted, Herbert Spencer is a quintessential victim. Spencer is considered a “Social Darwinist,” even though some of his most relevant writings predate Darwin, because he coined the sentence “survival of the fittest” as a way to convey the concept of “natural selection.” It was a happy coinage, for the sentence still survives, but people consider it a proof of his preference for a dog-eat-dog system of political economy.

Spencer is a complex author, and sometimes he wrote in very blunt language. However, if Social Darwinism is about “predacity” in a political system, one thing is clear: Spencer thought that history was proceeding in a direction that minimized “predation,” a direction he favored and held dear.

Spencer was convinced that “political organization is initiated by war and develops with the continuance of war,” but with time society moves from “militancy” to “industrialism.” This is how progress works: human groups move from simple to more and more complex aggregates, characterized by increasing heterogeneity and “definiteness of its individual members.” In larger and more developed human societies, not only division of labor is more extended: but eccentricities are allowed to flourish and individuality becomes more pronounced. In military societies individuals are nothing but the slaves of the group. In industrial societies, social relationships are free and consensual.

Spencer was a committed pacifist – a fact so outstandingly clear from his writings, that even Hofstadter cannot ignore it. Without much further exploration in his works, one can just read this short piece from “Facts and Comments” to understand how dear the issue of peace was to him. In economic matters, Spencer thought that his “law of equal liberty” implied that each ought to receive the benefits and bear the evils entailed by her actions. No one should be shielded from her mistakes: Spencer wouldn’t have supported “too-big-to-fail” crony capitalism.

But if this was “Justice”, Spencer also believed justice needed to be complemented, in an industrial society, by “negative beneficence” and “positive beneficence”. This is not the place to get into details, but suffice to say that the British philosopher thought that “sympathy which prompts alleviation of others’ pains is the same sympathy which makes possible the participation in others’ pleasure, and therefore exalts personal happiness.”

Rand Paul at Cato University

Sen. Rand Paul, recently hailed as “America’s most important anti-war politician,” will join the distinguished list of speakers at this year’s session of Cato University.

This year Cato University will be held for the first time in the magnificent new F. A. Hayek Auditorium at the Cato Institute in Washington. From July 29 to August 3, join fellow libertarians from around the country and the world to listen to lectures on economic, political, historical, and philosophical foundations of liberty. Speakers include Steve Landsburg, Rob McDonald, Tom Palmer, Roger Pilon, and even me – plus the special dinner address on Capitol Hill by Senator Paul.

Note that Cato University is not just for students – there will be participants from college age to retirement.

Check out Cato University here and in this two-minute video:


The Washington Post Pulls Its Punch

The Washington Post editorial board yesterday weighed in on the Ex-Im Bank’s controversial reauthorization. After listing quite comprehensively the bank’s many failings and the spurious grounds for its very existence, the WaPo courageously comes down on the side of  “Everyone else does it” (yes, that is a direct quote).  It all raises the question: if the Ex-Im bank is motivated by poor policy and poor economics, then why should we wait for other governments to stop subsidising export credits before we do the same? (Don Boudreaux comes to a similar, if more colourfully worded, conclusion here.)

In other news, and as the WaPo editorial alludes to, a Delta airlines subsidiary will benefit from a recently-approved loan guarantee from Ex-Im to a Brazilian airline, to finance the shipping of their aircraft engines to Atlanta for repair. Will this in any way affect Delta’s erstwhile opposition to Ex-Im activities (on the grounds they harm jobs in American airline services)? Time will tell, but Delta is unmollified, according to this recent article in Politico.

Federal Job Training Programs

The New York Times worries that “federal funds to train the jobless are drying up.” It’s not until the end of the article that the Times bothers to quote an economist who says that “Traditionally, we have found that job training has not been very effective for people who have lost their job recently.”

A Cato essay on federal job training programs by Chris Edwards and Daniel J. Murphy – a former special assistant in the Department of Labor’s Employment and Training Administration – explains that they aren’t very effective, are riddled with waste, and “don’t fill any critical need that private markets can’t fill”:

[T]he Department of Labor’s spending on employment and training not only lacks in effectiveness, but it is also dwarfed by the private sector’s investment in workplace training. According to the American Society for Training and Development, U.S. organizations spent $126 billion on employee learning and development in 2009.

Private training is likely to be more effective than government-sponsored training for a number of reasons. Business-led training is dictated by the real-world needs of workplaces and industries. It is driven by on-the-ground demand rather than by policy choices in Washington. Also, business managers are responsible for workplace results and the bottom line, and so they will adjust training decisions based on real economic needs. By contrast, civil servants are a few steps removed from the realities of production and competition in the marketplace. Private decisionmakers will dispose of ineffectual training approaches quickly, but federal programs favoring a failed approach may last for decades.

Washington’s Dead Policies Toward Pyongyang and Tehran

In the next week, the Obama administration could face its toughest test yet in handling Iran and North Korea’s quest for nuclear capabilities. If Washington continues to pursue the same sterile policies toward these distasteful regimes, little progress will be made. Diplomacy is still a workable option in each case, but the administration must seek to establish diplomatic relations with Tehran and Pyongyang, even though such a wise goal will be politically controversial..

North Korea seems to be on the brink of conducting a long-range missile test thinly disguised as a satellite launch. And according to the Associated Press, South Korean intelligence officials claim the North is preparing for a third nuclear test. The P5+1 talks with Iran are now set to begin April 14 in Istanbul, but tensions remain high.

The developments on the Korean peninsula are particularly worrisome, if unsurprising. They confirm that Washington’s policy of threatening the North Korean regime with stark international isolation if it does not abandon its ballistic missile and nuclear weapons program is increasingly an exercise in futility.  Most experts believe that Pyongyang already has enough fissile material for four to six weapons and may have already built two or three such weapons.  And the North Korean missile development effort has gone forward, despite periodic setbacks.  The effort to isolate Pyongyang has fallen far short of Washington’s goal—with China especially continuing to give Kim Jong-un’s government the food and energy aid that it needs to stay afloat.

U.S. policy toward Iran has not fared much better.  Despite getting the international community to impose ever tighter economic sanctions, Tehran’s nuclear program also seems to have made steady progress.  Indeed, the sanctions system is notable for its leakage.  Frustrated political leaders and pundits in the United States and Israel mutter darkly about resorting to military action to halt Tehran’s march toward a nuclear capability.  But the risks of waging a counter-proliferation war against Iran are obvious, worrisome, and potentially catastrophic.

The 19th century British statesman Lord Salisbury once observed that “the commonest error in politics is clinging to the carcasses of dead policies.”  The sad state of U.S. efforts to prevent Pyongyang and Tehran from joining the ranks of nuclear-weapons states is Exhibit “A” in support of Salisbury’s observation.  U.S. policy makers have doggedly pursued their attempts to isolate the two “rogue” regimes for decades—with almost no evidence of success.  Washington now faces the prospect of utterly bankrupt policies on both fronts.  Indeed, the United States risks ending up with the worst possible combination—the emergence of two new nuclear powers with whom Washington has no formal relations and unrelentingly hostile informal relations.  That combination is both futile and dangerous.

Wise statesmen learn to abandon obsolete or unworkable policies.  President Richard Nixon did so with his opening to China in 1972, and President Bill Clinton did so with his normalization of diplomatic and economic relations with Vietnam in the late 1990s.  The results have been clearly positive in both cases, even though the regimes in Beijing and Hanoi are still highly authoritarian and engage in some repulsive actions.

The Obama administration needs to show the same judgment and courage by making a sustained effort at the highest level to establish something at least resembling a normal relationship with Pyongyang and Tehran.  It is well past time to bury the rotting carcasses of Washington’s ineffectual policies toward those two governments.

Cross-posted from The Skeptics at the National Interest.

This Month’s Cato Unbound: The Past, Present, and Future of Classical Liberalism

Ideologies grow and develop over time. Those that don’t die out. Where is classical liberalism headed next?

At Cato Unbound this month, Matt Zwolinski and John Tomasi argue that we who favor limited government and strong private property rights can – and should – make our case in terms of social justice: Among its many other excellent traits, liberty is good for the least well-off, and this is a reason to insist upon it.

Does their so-called Bleeding Heart Libertarianism lead to a certain – shall we say – welfare-state squishiness? Not to philosopher Roderick Long. In his response essay, Long emphasizes that Murray Rothbard – Mr. Libertarian himself – argued in a similar vein. A power elite controls the government, Rothbard argued, and they use it to enrich and entrench themselves. Outsiders do poorly by contrast, and this to Rothbard was a reason for rejecting government altogether.

David Friedman dissents, however: On his reading, 19th century and earlier classical liberals weren’t really arguing about the lot of the least well-off as such. Instead, they were arguing about the largest group in their own societies, which also just happened to be unskilled laborers. Adam Smith, then, is more the ancestor of Jeremy Bentham than of John Rawls. And anyway, Rawls’ account of social justice is flawed in several important respects.

Alexander McCobin suggests that ideologies, and notably ours, are mostly tied together by a set of principles; the justifications for these principles can vary, and there is often room for disagreement about specific policy outcomes. Taking any small group of them as essential and rejecting all others as somehow impure would mean, in practice, that we enact fewer libertarian policies of any type at all. On the intellectual side, it might also mean giving up a lot of very productive dialogue: It’s actually a good thing when the contractarianism of a John Locke meets the anti-contractarianism of a Lysander Spooner – resulting, say, in the public reason liberalism of a Gerald Gaus, or the presumption of liberty as championed by Randy Barnett.

There’s clearly a lot here to discuss, which our participants will continue to do through the rest of the month, so be sure to stop by often and/or subscribe to Cato Unbound.