Constitution, the Law, and the Courts

June 8, 2006 4:46PM

Enviros Embrace “Free Market Environmentalism”!

We don't need no stinkin' environmental regulations to save the earth -- all we need are well functioning property rights for environmental resources and common law courts to protect that property against trespass. Pollution is simply a neighbor's garbage dumped in your backyard without permission. If we simply recognize and enforce property rights for nature, the need for most environmental regulation goes away.

That's the libertarian pitch anyway, and it goes by the moniker "Free Market Environmentalism," or "FME" to its acolytes.  FME was given a firm theoretical foundation by Ronald Coase, embellished and blessed by libertarian economist Murray Rothbard, given academic life by the Political Economy Research Center and the Foundation for Research on Economics and the Environment, popularized in Washington by the Competitive Enterprise Institute, and even pitched by yours truly to the Board of Trustees of the Natural Resources Defense Council about nine years ago.

Alas, there has never been much evidence to suggest that libertarians were making much headway with these arguments and I have come to believe that they have less promise than I had once imagined. But what do you know? FME is now all the rage amongst environmentalists who have discovered that suing polluters for tresspass is easier than passing satisfactory laws against the same.

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June 8, 2006 3:58PM

Marriage Amendment Failure

Supporters of the Marriage Protection Amendment say that even though it failed in the Senate on Wednesday, they are pleased that it did better than two years earlier. But let’s do the math. In 2004 supporters lost a cloture vote 48 – 50, with two opponents not voting. So their strength on moving the amendment to a floor vote was 48 – 52. This year the vote was 49 – 48, far short of the 60 needed to invoke cloture or the 67 for a constitutional amendment. If all senators had voted, the vote would likely have been 50 – 50. So maybe that’s a pickup of two votes for amendment supporters.


But the Republicans picked up four Senate seats in the 2004 election. So relative to the number of Republicans in the Senate, support for the amendment actually slipped by two votes. Supporters picked up no Democrats, and they lost two Republicans. Judiciary Committee chairman Arlen Specter voted for cloture in 2004, though he would have voted against the amendment itself; this year he voted against cloture and quoted two Cato publications in his Senate speech. Judd Gregg joined his New Hampshire colleague John Sununu in voting for federalism over centralism after realizing that the 2003 Massachusetts court ruling for marriage equality in that state is not being replicated nationwide. Given that younger voters are much more supportive of same‐​sex marriage than older voters, it seems unlikely that support for an amendment will grow in future years.

June 8, 2006 12:04PM

Liberaltarianism

I'll add my two cents to the Kos post Gene Healy and Will Wilkinson address below.

I too find myself sympathizing more with the left these days than the right, but I suspect that's merely because the right happens to be in power at the moment. I've always thought libertarians' best bet is to forge alliances on an issue-by-issue basis.

Even that is proving difficult. I cover a lot of issues for which there ought to be some common ground with the left. But I can count on one hand the number of Democrats in Congress who care much about the effects of drug prohibition, for example, or how the DEA is hampering the treatment of pain. So any wholesale casting of lots with either side doesn't seem all that productive to me.

Like Will, I'm also curious as to what issues Moulitsas might offer up for "libertarianization." Recent events offer plenty of room for skepticism:

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June 7, 2006 3:58PM

What Would You Do?

You know you haven't done anything wrong, so you have always assumed that you have nothing to worry about from police officers and prosecutors. Maybe a remote chance of a misunderstanding, but nothing that couldn't be quickly cleared up. After all, why would the police bother you when you do not break any laws?

Now consider the nightmare case of James Calvin Tillman.

The police arrest Tillman for rape. He asserts his innocence, but the victim says she is sure that he is the culprit. Prosecutors offer Tillman a plea bargain. If Tillman will agree to waive his right to a trial and plead guilty, the state will agree to a 8 year prison sentence. However, if Tillman declines the deal and exercises his right to a trial, the state promises to seek the maximum penalty: 45 years imprisonment.

Questions:

What do you think a guilty man would do in such circumstances?

What would you have done in those circumstances?

What do you think Tillman did?

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June 5, 2006 10:04AM

The FDA and Your Dinner Plate

Two years ago, Time asked me to write one half of a short point‐​counterpoint on the obesity debate for a special issue of the magazine entirely devoted to how government should intervene to prevent the fattening of America.


My job was to defend the notion of personal responsibility (my meager 350 words were the only such defense the entire issue). I remember squabbling with one of the magazine’s editors over one contention I made in the article — that it was only a matter of time before public health activists and the federal government would attempt to regulate the portion sizes of food served in restaurants. Seemed like a logical prediction of where things were headed. The editor accused me of hyperbole, and nixed the prediction from the piece.


Last week, this story hit the wires:

Those heaping portions at restaurants — and doggie bags for the leftovers — may be a thing of the past, if health officials get their way.


The government is trying to enlist the nation’s eateries in the fight against obesity.


The report, funded by the Food and Drug Administration, lays out ways to help people manage their intake of calories from the growing number of meals prepared away from home, including at the nation’s nearly 900,000 restaurants and other establishments that serve food. One of the first things on the list: cutting portion sizes.


“We must take a serious look at the impact these foods are having on our waistlines,” said Penelope Royall, director of the health promotion office at the Department of Health and Human Services.

The recommendations are voluntary.


For now.