Topic: Law and Civil Liberties

Obama, International Law, and Free Speech

Stuart Taylor has a very good article this week about the Obama administration, international law, and free speech.  This excerpt begins with a quote from Harold Koh, Obama’s top lawyer at the State Department:

“Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” The Supreme Court, suggested Koh – then a professor at Yale Law School – “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that he espouses.

Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.

In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. “Criticism of religion is the very measure of the guarantee of free speech,” as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.

Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on “racial and religious stereotyping” and the rest.

Read the whole thing.

The Constitutional Right to Save Lives

Our friends at IJ have filed an exciting new lawsuit, one that, if successful, could save the lives of more than 1,000 people a year: people who die needlessly of assorted blood diseases (including leukemia) because the federal government criminalizes the offering of even modest compensation for bone marrow donation.

That is, the National Organ Transplant Act – which outlawed the sale of kidneys and other organs – for some reason included bone marrow.

NOTA’s criminal ban is unconstitutional because it arbitrarily treats bone marrow like nonrenewable solid organs instead of like other renewable or inexhaustible cells – such as blood or sperm – for which compensated donation is legal.  (That makes no sense because bone marrow, unlike kidneys, replenishes itself in just a few weeks, leaving the donor whole. )

The ban also fails constitutional muster because it irrationally interferes with the right to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

As Chip Mellor, president and general counsel of the Institute for Justice, said in a press release announcing the case:  “Bad things happen when the federal government exceeds its constitutional authority.  In this case, people actually die.  The Institute for Justice intends to stop that and to restore constitutional constraints that prohibit arbitrary limits on individual liberty.”

IJ brought this suit on behalf of adults with deadly blood diseases, the parents of sick children, a California nonprofit, and a world-renowned medical doctor who specializes in bone marrow research.  You can find more information here.  Perhaps more interestingly, IJ senior attorney Jeff Rowes is guest-blogging about the case all week at the Volokh Conspiracy.  Here’s his first post.

‘The End of Privacy’ and the Surveillance-Industrial Complex

National Public Radio’s All Things Considered ran a series on “The End of Privacy” all last week that’s worth a listen. They’re primarily concerned with the ways private companies have access to vast quantities of information about individuals in the digital age—something that civil libertarians have traditionally been less concerned about than government access, for many perfectly valid reasons.  But it’s worth noting how porous that distinction can be.  A 2006 survey by the Government Accountability Office found that just four government agencies—the Justice Department, Department of Homeland Security, State Department, and Social Security Administration—spent at least $30 million annually on contracts with information resellers like Choicepoint. The vast majority of that data (91%) was used for law enforcement or counterterror purposes.  And GAO found that the resellers weren’t always in full compliance with the privacy practices that the agencies themselves are supposed to follow.

Choicepoint, coincidentally, is one of the largest clients of the consulting firm run by former Attorney General John Ashcroft. Little wonder given the amount of cash at stake: As reporter Tim Shorrock has documented, some 70 percent of our vast intelligence budget is channeled through private-sector contractors, which means that we need to understand government surveillance policy in the context of a “surveillance-industrial complex” that parallels the more familiar military-industrial complex known for bringing us $600 toilet seats and other forms of pork in camo gear. It’s worth bearing in mind that it’s not just investigatory zeal and public fear driving the expansion of the surveillance state—a lot of people are making a lot of money off it as well.

Health Care Bill Improves Lawyers’ Financial Health

The great thing for legislators about a nearly 2000 page bill – such as, oh, the House’s latest health care salvo – is that very few people bother to read the whole thing.  So it’s easy to bury little gifts to favored supporters.  Or big ones. 

For example, check out section 2531  – that’s pages 1431-33 for those following along at home – which has gone largely unnoticed in the major news cycle.  These three pages of the bill reward states that refrain from setting (or repeal) any caps on medical malpractice rewards – and the accompanying lawyers’ fees! – by requiring the Secretary of Health and Human Services to provide them a bribe an “incentive payment.”

As Hans von Spakovsky notes at NRO’s Corner, this “alternative medical liability law” aims to eviscerate cost-saving measures that protect doctors from frivolous lawsuits that increase the cost of health care to the consumer.  So this has nothing to do with providing better or cheaper care, covering the uninsured, or even eliminating waste and fraud.  Instead, it’s a pure sop to one of the Congressional Democrats’ key constituencies: trial lawyers.

For more information on free market health care reform alternatives, please visit Cato’s Health Care website here.

More on ‘Hate Crimes’

Law professors James Jacobs and Kimberly Potter make an interesting point:

Laws do not spring forth from a groundswell of public opinion, but rather are the product of lobbying by interested (“interest”) groups that must mobilize support among politicians.  The hate crime laws are passed because of the lobbying efforts of organizations that advocate on behalf of blacks, Jews, gays, and lesbians, a few other ethnic and nationality groups, and in some cases, women. …Regardless of what it accomplishes, the passage of legislation boosts morale and the status of the organizations and their constituencies.

That’s from their excellent book on the subject, Hate Crimes: Criminal Law and Identity Politics (Oxford University Press, 1998), p. 66. 

If liberals write laws to “send messages,” can social conservatives do the same thing if they control the legislative assembly?  Perhaps enact a criminal law against, say, adultery.  Note that the point is not necessarily that the law be actually enforced or have any impact as far as reducing adultery in the jurisdiction.  If the point is simply to “send a message,” liberals are going to be hard-pressed to lodge objections to conservative  symbolic lawmaking.

For more on hate crimes, go here and here.

Wisdom of the Anti-Federalists

Everybody reads the Federalist Papers. (I hope!) Written by Alexander Hamilton, James Madison, and John Jay, they are generally regarded as the most profound collection of political theory ever written in America. And since they deeply inform our understanding of our fundamental law, they are essential to understanding the American version of limited, constitutional government. But the ratification of the Constitution was a close thing in 1787–89, and the Anti-Federalists (who said that actually they were the federalists, while their opponents were nationalists) also had some insightful things to say about liberty and limited government.

Now the invaluable Liberty Fund has made available a collection of anti-federalist writings, The Anti-Federalist Writings of the Melancton Smith Circle. The publisher says:

The Anti-Federalist Writings of the Melancton Smith Circle makes available for the first time a one-volume collection of Anti-Federalist writings that are commensurate in scope, significance, political brilliance, and depth with those in The Federalist. Included in this volume as an appendix is a computational and contextual analysis that addresses the question of the authorship of two of the most well-known pseudonymous Anti-Federalist writings, namely, Essays of a Federal Farmer and Essays of Brutus. Also included are the records of Smith’s important speeches at the New York Ratifying Convention, some shorter writings of Smith’s from the ratification debate, and a set of private letters Smith wrote on constitutional subjects at the time of the ratification struggle.

One reason it’s important to study the ideas of the Anti-Federalists was offered by Jeffrey Rogers Hummel in The Encyclopedia of Libertarianism:

Most of the Amendments comprising the Bill of Rights restricted the national government’s direct authority over its citizens. Only one section dealt with the relationship between the state and central governments; the 10th Amendment “reserved” to the states or the people all powers not “delegated to the United States by the Constitution.” Nothing better illustrates that, whereas the Anti-Federalists had lost on the ratification issue, they had won on the question of how the Constitution would operate. The Constitution had not established a consolidated national system of government as most Federalists had at first intended, but a truly federal system, which is what the Anti-Federalists had wanted. In simpler terms, the Federalists got their Constitution, but the Anti-Federalists determined how it would be interpreted.

In a world where it’s easy to find a “Dirty Dozen” of Supreme Court decisions that have expanded government and eroded freedom, that may be hard to believe. But it’s important to read both halves of early American debate over the Constitution in order to understand the foundations of our system.

George Will and Drug Decriminalization

George Will’s latest column takes a look a drug policy and the views of the new drug czar, Gil Kerlikowski.  Notably, Will mentions Portugal’s experience with decriminalization of all drugs since 2001 and says Kerlikowski is aware of the Portuguese policy as well.  Cato published a report on Portugal’s drug policy in April and the author, Glenn Greenwald, discussed his findings at a Cato policy forum here.  George Will’s shifting views on drug policy (toward liberalization) reflect the shifting views of other conservative pundits and the public more generally.

Will appeared on ABC on Sunday, and discussed his views on drug policy. Watch:

For more Cato work on drug policy, go here, here, and here.