August 2017

August 25, 2017 9:40PM

Libertarianism, Individualism, and Racism

There’s been some talk this week about a few people who once called themselves libertarians and have now turned up in alt‐​right circles, at the Charlottesville march or elsewhere. As I told the Daily Beast, “People change ideologies all the time. Some libertarians become conservatives, some become welfarist liberals, a few drift into creepy extremes.” And of course it’s not just libertarians. Hillary Clinton says she was a Goldwater Girl, a lot of ex‐​communists became the original neoconservatives, and Nobel laureates in economics have tended to move toward classical liberalism (libertarianism). But since the topic has come up, let me just agree with Nick Gillespie that “The alt-right—and Trumpism, too, to the extent that it has any coherence—is an explicit rejection of foundational libertarian beliefs in ‘free trade and free migration’ along with experiments in living that make a mess of rigid categories that appeal to racists, sexists, protectionists, and other reactionaries.” And add my own commentary, excerpted from my 2015 book The Libertarian Mind:

The dignity of the individual under libertarianism is a dignity that enhances social well‐​being. Libertarianism is good not just for individuals but for societies. The positive basis of libertarian social analysis is methodological individualism, the recognition that only individuals act. The ethical or normative basis of libertarianism is respect for the dignity and worth of every (other) individual. This is expressed in the philosopher Immanuel Kant’s dictum that each person is to be treated not merely as a means but as an end in himself.

Of course, as late as Jefferson’s time and beyond, the concept of the individual with full rights did not include all people. Astute observers noted that problem at the time and began to apply the ringing phrases of Locke’s Second Treatise of Government and the Declaration of Independence more fully. The equality and individualism that underlay the emergence of capitalism and republican government naturally led people to start thinking about the rights of women and of slaves, especially African American slaves in the United States. It’s no accident that feminism and abolitionism emerged out of the ferment of the Industrial Revolution and the American and French revolutions. Just as a better understanding of natural rights was developed during the American struggle against specific injustices suffered by the colonies, the feminist and abolitionist Angelina Grimké noted in an 1837 letter to Catherine E. Beecher, “I have found the Anti‐​Slavery cause to be the high school of morals in our land—the school in which human rights are more fully investigated, and better understood and taught, than in any other.”

The abolitionist movement grew logically out of the Lockean libertarianism of the American Revolution. How could Americans proclaim that “all men are created equal … endowed by their Creator with certain unalienable rights,” without noticing that they themselves were holding other men and women in bondage? They could not, of course, and had they tried, they would have been reminded by people such as the great English scholar Samuel Johnson, who wrote in 1775, “How is it that we hear the loudest yelps for liberty among the drivers of Negroes?” The world’s first antislavery society was founded in Philadelphia that same year. Jefferson himself owned slaves, yet he included a passionate condemnation of slavery in his draft of the Declaration of Independence: “[King George] has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him.” The Continental Congress deleted that passage, but Americans lived uneasily with the obvious contradiction between their commitment to individual rights and the institution of slavery.

Although they were intimately connected in American history, slavery and racism are not inherently bound together. In the ancient world the act of enslaving another person did not imply his moral or intellectual inferiority; it was just accepted that conquerors could enslave their captives. Greek slaves were often teachers in Roman households, their intellectual eminence acknowledged and exploited.

In any case, racism in one form or another is an age‐​old problem, but it clearly clashes with the universal ethics of libertarianism and the equal natural rights of all men and women. As Ayn Rand pointed out in her 1963 essay “Racism,”

Racism is the lowest, most crudely primitive form of collectivism. It is the notion of ascribing moral, social or political significance to a man’s genetic lineage … which means, in practice, that a man is to be judged, not by his own character and actions, but by the characters and actions of a collective of ancestors.

In her works Rand emphasized the importance of individual productive achievement to a sense of efficacy and happiness. She argued, “Like every other form of collectivism, racism is a quest for the unearned. It is a quest for automatic knowledge—for an automatic evaluation of men’s characters that bypasses the responsibility of exercising rational or moral judgment—and, above all, a quest for an automatic self‐​esteem (or pseudo‐​self‐​esteem).” That is, some people want to feel good about themselves because they have the same skin color as Leonardo da Vinci or Thomas Edison, rather than because of their individual achievements; and some want to dismiss the achievements of people who are smarter, more productive, more accomplished than themselves, just by uttering a racist epithet.

And as I wrote when a group of newsletters seemed to connect racist ideas to the libertarian movement:

Libertarians should make it clear that the people who wrote those things are not our comrades, not part of our movement, not part of the tradition of John Locke, Adam Smith, John Stuart Mill, William Lloyd Garrison, Frederick Douglass, Ludwig von Mises, F. A. Hayek, Ayn Rand, Milton Friedman, and Robert Nozick. Shame on them.

More on libertarianism, individualism and race — and feminism and gay rights — in The Libertarian Mind.

August 25, 2017 3:45PM

Lucia v. SEC: A Question of Accountability

Accountability to the people is a cornerstone of our republic. The Constitution provides for the creation of certain offices that may be filled by appointment, but the law has been clear: the line between appointed officers and the electorate may not become too attenuated or else accountability will be lost.

The line between certain administrative judges and the people has reached well past this point. Administrative law judges (ALJs) are individuals who serve as adjudicators presiding over hearings within federal agencies. In most cases, they wear long black robes just like judges, and preside over a hearing process that, to a layperson, would appear to be very similar to a trial. In some agencies, they determine what benefits the government should give to certain person. But in others they determine the outcome of actions the government has taken against individuals. They hear witness testimony, determine witness credibility (i.e., whether a witness is lying), decide what evidence can be presented, and ultimately rule on the case and decide the punishment.

And yet these ALJs are not selected either through presidential appointment, as federal judges are, or through election, as many state judges are. They are not even considered at present to be “officers” under the appointments clause of the Constitution. Instead, they are deemed mere employees and are hired through a complex process involving both the federal Office of Personnel Management and the heads of the agencies in which they serve. 

It is ludicrous that someone vested with so much power is deemed a mere employee and not an officer.

Today, Cato filed a brief urging the Supreme Court to accept the case of Lucia v. SEC, and to find that the ALJs who preside over cases at the Securities and Exchange Commission are officers. There are broader questions as to whether ALJs should be used in enforcement actions at all. But to the extent that they are, they should at least adhere to the basic principles of accountability provided by the appointments clause.

August 25, 2017 12:30PM

ADA and the Web: The Hour Grows Late

Recently the University of California, Berkeley, took down online lecture and course content that it had offered free to the public, rather than risk liability for not modifying them so as to be conveniently usable by members of the public with hearing, visual, or manual disabilities. Harvard and M.I.T. had already been sued on similar grounds.

Now imagine the Berkeley take‐​down times 10,000 — a world in which private commercial, educational, and non‐​profit entities alike have legal incentive to de‐​publish any web content they do not think bulletproof against claims of lack of ADA accessibility. That’s not just imagining. It’s the world we’re looking at as a number of federal courts, setting aside years‐​old precedent, have begun to accept plaintiffs’ arguments that the ADA applies broadly to the web. As freelance lawsuits against private defendants proliferate, the choice is plain: either act to stop this trend, or expect widening disruption and takedown of formerly free web content.

In a much noted June case against the Winn‐​Dixie supermarket chain, a federal court accepted the notion that the store could be sued under the ADA because its website was a “place” of public accommodation, like a brick and mortar store. As Frank Cruz‐​Alvarez and Rachel Canfield observe in a Washington Legal Foundation paper, “the court found that the website was ‘heavily integrated’ and a ‘gateway’ to the physical stores, notwithstanding that the website limits customer participation to acquiring in‐​store coupons, refilling existing prescriptions for in‐​store pick‐​up, and utilizing a store locator function.” Since then federal courts have ruled favorably on ADA‐​for‐​the‐​web claims in more than one other case, including a decision by Judge Jack Weinstein of the Eastern District of New York in a case against Blick Art Materials.

I’ve been warning for a long time that web accessibility has the potential to be one of the most damaging and onerous regulatory initiatives in memory. It’s true that with courts split on the issue there is a chance that at some point the U.S. Supreme Court will take a case allowing to resolve the uncertainty and — if we are lucky — uphold earlier precedents such as that in a 2002 case in which a court dismissed a lawsuit against Southwest Airlines. In the mean time, entrepreneurial lawyers have been filing hundreds of lawsuits against local and national businesses over their websites, many of which settle for money out of court, and on the current momentum will soon be suing thousands more. Millions of existing web presences are uncompliant and easy targets for litigation. The real answer is for Congress to step in.

August 25, 2017 11:25AM

The RAISE Act Would Hurt U.S. Taxpayers

Robert Rector of the Heritage Foundation recently argued that the RAISE Act, a bill introduced by Senators Cotton (R-AR) and Perdue (R-GA), would save taxpayers billions by reducing lower-skilled immigration.  Below I will argue that the RAISE Act does no such thing mainly because it does not actually increase skilled immigration, does not much alter the current education level of immigrants in the United States, and would result in removing at least 500,000 H-1B visas within a year of passage.  Using the National Academy of Science (NAS) fiscal estimates, the RAISE Act is more likely to increase deficits over the next 75 years than to decrease them.

Rector makes two main claims in his post.  The first is that “[b]ased on the National Academy of Sciences’ estimates, the average low-skill immigrant (with a high school degree or less) who enters the country imposes a net present value on taxpayers of negative $142,000.”  A fiscal net present value (NPV) means that each immigrant in this education range would have to deposit $142,000 upon arrival that would earn 3 percent compounded annual interest to cover the full cost of social services that he or she will be expected to consume over the next 75 years.  The second claim is that the RAISE Act could save taxpayers at least $1 trillion by cutting the flow of immigrants with a high school degree or less.  The sections below will analyze these claims by using the National Academy of Sciences’ estimates and information from the Current Population Survey of the U.S. Census (CPS).

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August 25, 2017 11:10AM

David McCullough, “The Spirit of Jefferson,” Charlottesville VA Jul 4, 1994

From The American Spirit, Simon & Shuster, 2017:

Why do some men reach for the stars and so many others never even look up? Thomas Jefferson reached for the stars.

“We hold these truths to be self‐​evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness, –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”

Never, never anywhere, had there been a government instituted on the consent of the governed.

Was Jefferson including women with the words “men” and “mankind”? Possibly he was. Nobody knows. Was he thinking of black Americans when he declared all men are created equal? Ideally, yes, I think. Practically, no. He was an eighteenth‐​century Virginia planter, it must be remembered, as the slave quarters along Mulberry Row… attest. He was an exceedingly gifted and very great man, but like the others of that exceptional handful of politicians we call the Founding Fathers, he could also be inconsistent, contradictory, human.

And more important than how he interpreted his ringing words, is their sustaining power to inspire, beyond influences of time and place.

“All honor to Jefferson,” wrote Abraham Lincoln on the eve of the Civil War, “[all honor]to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times.”

All honor to Jefferson in our own world now… Indeed, we may judge our own performance in how seriously and what effect we take his teachings to heart.

August 25, 2017 9:37AM

Results from the 2017 Libertarianism vs. Conservatism Post‐​Debate Attendee Survey

As part of a yearly tradition, the Cato Institute and Heritage Foundation co-host a debate in which interns of both think tanks debate whether conservatism or libertarianism is a better ideology. Following this year’s debate, the Cato Institute conducted a post-debate survey of attendees to ask who they thought won the debate and what they believe about a variety of public policy and social issues.

The survey finds that millennial conservative and libertarian attendees agree on matters of free speech and religious liberty, the size and scope of government, regulation, health care and what to do about climate change. However, striking differences emerge between the two groups particularly on matters of immigration, the temporary Muslim travel ban, gender pronouns and bathrooms, government’s response to opioid addiction, the death penalty, religious values in government, domestic surveillance, foreign policy, as well as evaluations of the Trump administration.

Full LvCDebate Attendee Survey results found here

Priority Differences and Similarities

Examining conservative and libertarian millennial attendees’ issue priorities offers a quick overview of their similarities and differences. The survey asked attendees how concerned they are about 21 different issues:

Libertarian and Millennial Priority Differences and Similarities


As the chart shows above, conservative millennials are more concerned about morality in society, abortion, terrorism, national security, drug use, and immigration. Libertarian millennials are more concerned about government domestic surveillance, the criminal justice system, and trade. Top priorities shared by both groups include the size and scope of government, free speech, government spending and debt, the economy, and taxes. Notably, libertarians and conservatives share their lowest priority: few are concerned about income inequality.

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