Stephen Colbert quips, “If Proposition 19 were a human, it would be the most popular candidate in California.”

For more, go here and here.

A number of Cato friends — including senior fellow Randy Barnett, former tech policy director Tom W. Bell, David Friedman, Nadine Strossen, and Erik Luna (Lindsay Lohan’s favorite law prof) — have endorsed California’s Proposition 19, which would decriminalize and regulate marijuana. Also among the 65 signers of the petition are some professors with whom we have disagreed, such as Erwin Chemerinsky.

It remains to be seen whether a group of the country’s smartest legal scholars will be any match for the combined weight of the Obama administration, the leading Democratic and Republican candidates for office in California, and almost all the major newspapers in the state. Reason editor Matt Welch, who has been monitoring newspaper editorials, tells me that all of the 21 largest papers that have editorialized on Proposition 19 have opposed it.

That’s about as overwhelming as the editorial opposition to Proposition 13 back in 1978. All major papers except the now-defunct Los Angeles Herald Examiner opposed the granddaddy of tax-cutting initiatives, but it passed with 65 percent of the vote. Perhaps Proposition 19 will be equally successful as a way for voters to thumb their noses as the political establishment.

As Welch says:

I’ll reiterate and update my previous pitch: If Dianne Feinstein, Meg Whitman, Jerry Brown, Barbara Boxer, Dan Lungren, Steve Cooley, Lee Baca, 49 California congresspeople, the California Chamber of Commerce, the Sacramento Bee, the San Francisco Chronicle, and Dean Singleton’s MediaNews empire are against it, the vote-yes commercials write themselves.

In a long essay in this morning’s Wall Street Journal, “What the Tea Partiers Really Want,” University of Virginia psychology professor Jonathan Haidt argues, as the subtitle puts it, that “the passion behind the populist insurgency is less about liberty than a particularly American idea of karma.” Taking his cue from Dick Armey and Matt Kibbe’s claim in their new book, Give Us Liberty: A Tea Party Manifesto, that tea partiers “just want to be free, … so long as we don’t infringe on the same freedom of others,” Haidt notes that his research shows that while self-described libertarians agree most strongly with that view, liberals are not far behind, in contrast with the social conservatives “who make up the bulk of the tea party,” who are more tepid in their endorsement of that idea.

So why are libertarians and conservatives largely teamed up in the tea party? Haidt doesn’t really answer that question. Rather, his main aim, as noted, is to show that the tea party’s moral passion is not so much about liberty as about “an old and very conservative idea” of karma, which “combines the universal human desire that moral accounts should be balanced with a belief that, somehow or other, they will be balanced.” In other words, “kindness, honesty and hard work will (eventually) bring good fortune; cruelty, deceit and laziness will (eventually) bring suffering. No divine intervention is required; it’s just a law of the universe, like gravity.”

Yet in “the last 80 years of American history” the welfare state has undermined that moral balance, Haidt continues, nowhere more clearly, recently, than with the Bush bank bailout, using taxpayer dollars, which Armey and Kibbe claim was the real start of the tea-party movement.

Listen, for example, to Rick Santelli’s “rant heard ’round the world” on CNBC last year and its most famous lines: “The government is promoting bad behavior,” and “How many of you people want to pay for your neighbors’ mortgage that has an extra bathroom and can’t pay their bills?” It’s a rant about karma, not liberty.

Haidt is certainly on to something here. And he develops and illustrates his thesis in some detail, including how the modern liberals’ focus on equality, and their attraction to government programs securing it, makes them uneasy with this karma, separating them from libertarians and conservatives. But he also argues that research that he and a colleague have done on “the five main psychological ‘foundations’ of morality” shows that “libertarians are morally a bit more similar to liberals than to conservatives,” leading him to conclude that it’s not clear how long the tea party blend of libertarians and conservatives can stay blended.

I won’t go into the details of Haidt’s five main psychological foundations of morality, except to say that, at least as presented in this essay, they raise as many questions as they answer. I will add, however, that lumping people into even self-identified ideological groupings is always problematic, since any such “group” will be constituted by individuals with a range of views and tendencies. Moreover, and more important, the contrast Haidt draws between liberty and what he calls karma is doubtless overdrawn. After all, the “libertarian” focus on liberty and the “conservative” focus on “karma” most often come to the same thing, at bottom. The “conservative” notion of individual responsibility, coupled with positive and negative sanctions, is fully realized only in a regime of liberty of a kind that “libertarians” have long promoted. In fact, to flesh that out more fully, the Journal has another useful essay this morning on the editorial page, Peter Berkowitz’s “Why Liberals Don’t Get the Tea Party Movement.” Much to think about as we cruise to the elections little more than two weeks away.

Jim Harper’s post Monday, responding to communitarian Amitai Etzioni on “strip search” scanners at airports, gives me an opportunity to mount one of my hobbyhorses.

My beef with Etzioni’s conclusory argument isn’t just that, as Jim observes, he purports to “weigh” the individual right to privacy against the common good (here in the guise of “security”) without any real analysis of the magnitudes on both sides. It’s that his framing is fundamentally backwards. The importance of privacy is, to a great extent, a function of its collective dimension—a point to which you’d think a communitarian theorist who’s written an entire book on privacy would be more keenly attuned. If I may indulge in a little self-quotation:

[W]hen we talk about our First Amendment right to free speech, we understand it has a certain dual character: That there’s an individual right grounded in the equal dignity of free citizens that’s violated whenever I’m prohibited from expressing my views. But also a common or collective good that is an important structural precondition of democracy. As a citizen subject to democratic laws, I have a vested interest in the freedom of political discourse whether or not I personally want to [engage in]–or even listen to–controversial speech. Looking at the incredible scope of documented intelligence abuses from the ’60s and ’70s, we can add that I have an interest in knowing whether government officials are trying to silence or intimidate inconvenient journalists, activists, or even legislators. Censorship and arrest are blunt tactics I can see and protest; blackmail or a calculated leak that brings public disgrace are not so obvious. As legal scholar Bill Stuntz has argued, the Founders understood the structural value of the Fourth Amendment as a complement to the First, because it is very hard to make it a crime to pray the wrong way or to discuss radical politics if the police can’t arbitrarily see what people are doing or writing in their homes.

I’m actually somewhat sympathetic to the notion that the individual harms that result from strip scanners are relatively slight, especially when passengers can opt for a pat down instead. In the worst case scenario, some unscrupulous TSA employee might find a way to save and circulate some of these blurry quasi-nude images, the embarrassment potential of which is likely to be mitigated by the fact that the x‑ray view doesn’t really show an identifiable face.

I’m much more concerned about the social effect of making such machines commonplace—of creating a general norm that people who wish to engage in routine travel must expect to expose themselves in this way. As Michel Foucault famously observed, surveillance is not merely the passive gathering of information; it exerts a “disciplinary” power, creating what he called “docile bodies.” The airport becomes a schoolhouse whose lesson is that not even the most intimate spaces escape the gaze of authority.

In his fine book The Naked Crowd, legal scholar Jeff Rosen recounts presenting his students and other audiences with a hypothetical choice between going through a strip scanner and a “Blob Machine”—a similar scanner programmed to filter out the passenger’s body image and project any foreign objects (as determined by density) on a generic wireframe mannequin. Though he assured them that the Blob Machine was just as accurate at detecting hidden objects, he found that in every group some significant number of people still preferred to subject themselves to the strip-scanner, in what Rosen calls “a ritualistic demonstration of their own purity and trustworthiness.” But there may be more to it than that. To expose oneself, render oneself vulnerable, is also closely linked to rituals of subordination—not just in human cultures, but in the animal kingdom. Think of the pack dog signaling his recognition of the alpha male’s (or owner’s) dominance by rolling over to expose his belly. In the context of pervasive fear of terrorism, this kind of routine exposure is a way of reassuring ourselves of the power of our protectors, quite apart from whatever immediate utility the strip-scanners have as a detection and deterrence mechanism. We ought to be a little wary of any “security” measures that seem to feed into that psychological mechanism.

While I don’t think these sorts of considerations ought to be dispositive by themselves in particular circumstances where a security measure is otherwise justifiable in more conventional cost-benefit terms, I think a communitarian commentator in particular ought to be a lot more sensitive to the cumulative cultural effect of many such measures. Formal institutions and rules are important to the preservation of free societies, but so are background norms and expectations. A society that comes to accept as normal the routine observation of our naked bodies by authority as an incident to travel is, I think, in danger of losing some important cultural capital.

There are many reasons to be glum about the impending coronation of dynastic heir Andrew Cuomo, now leading in the New York governor’s race against a GOP opponent (Carl Paladino) who at first polled decently but has since stumbled. Some fret about the Democrat’s reputation for political hardball: former governor Eliot Spitzer (Eliot Spitzer!) last month called Cuomo the “dirtiest, nastiest political player out there,” which is like being called overdressed by Lady Gaga. Others find Cuomo too much of a camera-chaser as attorney general in Albany, and almost everyone is queasy over his role (as Clinton-era housing secretary) in encouraging risk-taking by federally backed Fannie Mae and Freddie Mac, leading by direct steps to today’s ongoing mortgage crisis. (For background, see Wayne Barrett’s famous 2008 Village Voice article.)

I have a different reason for cringing at the idea that voters would ever elevate Andrew Cuomo to higher office, and it’s also based on memories of his tenure as housing secretary. Not the Fannie-Freddie-subprime end of it, although I concede that in a strictly economic sense those were the most damaging things he did. No, what I find permanently hard to forgive is the way Cuomo threw himself into the role of chief national cheerleader for the municipal anti-gun litigation of the 1990s and early 2000s.

Because that litigation mostly fizzled out, it is now only half remembered and doesn’t much feature in Cuomo profiles. At the time, though, it was a close-fought battle and a big story. More than 30 cities and counties sued firearms makers, alleging that courts should hold them financially responsible for the costs of urban shootings. The cry was to make guns the “next tobacco,” following the successful litigation campaign against tobacco companies that extracted hundreds of billions of dollars for the benefit of state coffers (and private lawyers).

Of course there are enormous differences between the tobacco and gun businesses. One is that while major tobacco makers had billion-dollar revenue streams to share as part of a settlement, most gunmakers are smallish enterprises, often family-owned. And this in fact was a conscious element of the strategy for the lawyers who promoted the suits: because gunmakers were too thinly capitalized to withstand the costs of years of legal defense, it was thought they’d fold their hands and yield to “gun control through litigation” (explicitly couched as an end run against a then-Republican Congress resistant to gun control proposals). Smith and Wesson actually did yield to a settlement on this rationale, which soon collapsed following a public outcry from gun owners and others outraged by the use of extortive litigation to achieve gun control objectives. The gamble having failed, the suits eventually reached judges and were generally thrown out, but not before imposing huge and uncompensated costs on many small companies that had violated no laws. Some were bankrupted.

Mindful of traditional tenets of legal ethics that forbid lawyers from using the cost of legal process as a bludgeon, most backers of the suits prudently refrained from any hint that imposing unsustainable legal costs was part of the plan. One exception was Cuomo, who warned gunmakers that unless they cooperated, they’d suffer “death by a thousand cuts.” And another was then-New-York-AG Spitzer, who reportedly warned an executive of holdout Glock: “If you do not sign, your bankruptcy lawyers will be knocking at your door.”

I think Spitzer and Cuomo deserve each other, really. What I can’t figure out is why the good citizens of New York would want either of them.

You might have gotten the impression that spending by outside groups in the current election cycle will fund a “giant bullhorn” for Republican candidates in the current election cycle while Democrats and liberals will have to whisper.

Yet the Rothenberg Political Report finds:

Throughout the election cycle, the National Republican Congressional Committee trailed the Democratic Congressional Campaign Committee in available money by at least a 2‑to‑1 ratio.

A detailed story in the Wall Street Journal summarizes “the Democratic Party and candidates had raised a total of $1.25 billion so far for the election. The comparable GOP figure is $1.1 billion.”

The Democrats enjoy, in other words, a $150 million dollar advantage, if we look only at party fundraising.

Now consider the outside groups:

In total, outside conservative groups—such as the U.S. Chamber of Commerce, American Action Network and American Crossroads—could spend more than $300 million on TV advertisements, campaign mailings and other efforts to elect Republicans to Congress this year. Outside Democratic groups, by contrast, plan to spend about $100 million on those activities.

But don’t forget the labor unions:

The largest labor unions say they will spend $200 million combined, but most of their focus will be on rallying union voters.

I conclude that the outside GOP groups will raise almost exactly as much as outside Democratic groups and the labor unions combined. The Democratic Party, however, will still enjoy a significant fundraising advantage over the Republican Party.

The Republican outside groups thus tend to level what would have been, absent their activities, a very unequal playing field in 2010.

I am not certain whether this closing of what would have been a huge Democratic fundraising advantage has anything to do with all of the complaints about “secret groups undermining democracy.” What do you think?

Yes, Speaker Pelosi, the constitutional concerns people have with the health care legislation you rammed through Congress despite overwhelmingly negative public opinion are serious. The Florida court’s ruling, denying the government’s motion to dismiss the challenge to the new health care law brought by 20 states and the National Federation of Independent Business, mirrors the one we saw in July in Virginia’s separate lawsuit. These have been the most thoroughly briefed and argued lawsuits, so these significant and lengthy opinions conclusively establish that the constitutional concerns raised by the individual mandate and other provisions are serious. Nobody can ever again suggest with a straight face that the legal claims are frivolous or mere political gamesmanship.

And that should come as no surprise to those who have been following the litigation because the new law is unprecedented — quite literally, without legal precedent — both in its regulatory scope and its expansion of federal authority. Never before have courts had to consider such a breathtaking assertion of raw federal power — not even during the height of the New Deal. “While the novel and unprecedented nature of the individual mandate does not automatically render it unconstitutional,” Judge Vinson observed, “there is perhaps a presumption that it is.”

This means at the very least that “the plaintiffs have most definitely stated a plausible claim with respect to this cause of action.”

Just so — and the deliberate consideration that these district courts are giving to these serious constitutional arguments (unlike the Michigan judge’s perfunctory treatment last week) indicates that the probability that the Supreme Court will ultimately strike down the individual mandate continues to increase.