772 (Author at Cato Institute) https://www.cato.org/ en Drug Companies Can’t Be Forced to Give False Product Info https://www.cato.org/blog/drug-companies-cant-be-forced-give-false-product-info Timothy Sandefur <p>Federal appellate judges have&nbsp;<a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/0A5EA103BE5E53D185258589005371B9/$file/19-5222-1847403.pdf">ruled</a> that the Trump administration violated the law by trying to force pharmaceutical companies to tell consumers false information about their products. The case involved a&nbsp;rule that compelled drug companies to include in their advertisements what their products cost—which sounds nice, except that, as the Goldwater Institute explained in its <a href="https://goldwaterinstitute.org/wp-content/uploads/2019/10/Goldwaters-Brief-Amicus-Curiae-in-Support-of-Merck-Affirmance191029.pdf">brief in the case</a>, and as <a href="https://www.cato.org/sites/cato.org/files/2020-06/Merck-DC-Cir.pdf">Cato explained</a>, there is no such number. Drug prices are decided through a&nbsp;process so complicated and subject to so many different factors, that the administration had tried instead to force companies to disclose the so‐​called Wholesale Acquisition Price—a number which actually bears almost no relationship to what patients pay for their medicine.</p> <p><a href="https://indefenseofliberty.blog/2018/12/17/goldwater-to-washington-dont-force-drugmakers-to-tell-consumers-untrue-things/">Goldwater argued</a> that this violates the First Amendment because while current law allows the government to force businesses to tell customers <em>true</em> things about their products, it doesn’t allow the government to force companies to say <em>untrue</em> things, or things that are technically true but still misleading. The drug price did both things, by requiring companies to tell people prices that aren’t actually prices—which could have the dangerous consequence of discouraging people from getting medicines they need.</p> <p>Today’s decision stopped short of declaring the administration’s actions unconstitutional; instead, it held that regulators overstepped their bounds because existing law doesn’t give them the authority to do what they did. In fact, the court found that the Department of Health and Human Services was engaged in a “staggering” effort to claim “unbridled power” for the federal government.</p> <p>The Department claimed it could impose the rule because the law gives it authority to do what’s “necessary to the efficient administration of the functions with which [it] is charged,” which is admittedly a&nbsp;very broad delegation of power. And <a href="https://goldwaterinstitute.org/administrative-state-blueprint/">as Goldwater explained elsewhere</a>, courts using the theory of “<em>Chevron </em>deference,” allow bureaucratic agencies to interpret statutes as broadly as they like as long as their interpretations aren’t “unreasonable” and aren’t prohibited by the actual text of the law.</p> <p>But the judges today ruled that the Department overstepped even the extremely wide boundaries of <em>Chevron </em>deference, because when the law says the agency can do what’s necessary to “administer the functions with which it’s charged,” that means it can do what’s necessary to manage the Medicare and Medicaid programs—<em>not</em> to do what’s necessary to regulate medical costs nationwide. The Department’s effort to argue the latter, said the court,</p> <blockquote><p>would seem to give it unbridled power to promulgate any regulation with respect to drug manufacturers that would have the arguable effect of driving down drug prices—or even healthcare costs generally—based on nothing more than their potential salutary financial benefits. Could the Department dictate salaries at pharmaceutical companies that make or sell products “for which payment is available, directly or indirectly, under” Medicare or Medicaid? Could it superintend pharmaceutical companies’ business operations to cut costs? Surely not. But the Department’s reasoning suggests that such regulations would be fair game as long as they ultimately resulted—even indirectly—in reduced Medicare or Medicaid expenditures or increased price competition.</p> </blockquote> <p>That, the court said, was obviously too far, especially given the fact that the Wholesale Acquisition Price is simply not what customers actually pay or can be expected to pay. While the Department’s “regulatory authority is broad,” it concluded, “no reasonable reading” of the law allows it “to command the disclosure to the public at large of pricing information that bears at best a&nbsp;tenuous, confusing, and potentially harmful relationship to the Medicare and Medicaid programs.”</p> <p>The decision is a&nbsp;welcome step in the direction of reining in the administrative state. You can read more about the case <a href="https://goldwaterinstitute.org/ensuring-truth-in-drug-advertisingmerck-v-department-of-health-and-human-services/">here</a>.</p> <p>[<a href="https://indefenseofliberty.blog/2020/06/16/drug-companies-cant-be-forced-to-give-false-product-info/">Cross‐​posted from the Goldwater Institute</a>]</p> Wed, 17 Jun 2020 09:24:28 -0400 Timothy Sandefur https://www.cato.org/blog/drug-companies-cant-be-forced-give-false-product-info Timothy Sandefur discusses California Assembly Bill 5 on the Armstrong & Getty Show https://www.cato.org/multimedia/media-highlights-radio/timothy-sandefur-discusses-california-assembly-bill-5-armstrong Thu, 28 May 2020 12:03:42 -0400 Timothy Sandefur https://www.cato.org/multimedia/media-highlights-radio/timothy-sandefur-discusses-california-assembly-bill-5-armstrong Timothy Sander discusses his paper in the webinar, “Confronting the Administrative State: State‐​Based Solutions to Inject Accountability into an Unaccountable System,” hosted by the Goldwater Institute https://www.cato.org/multimedia/media-highlights-tv/timothy-sander-discusses-paper-webinar-confronting-administrative Thu, 30 Apr 2020 12:18:40 -0400 Timothy Sandefur https://www.cato.org/multimedia/media-highlights-tv/timothy-sander-discusses-paper-webinar-confronting-administrative Timothy Sandefur discusses his book, Frederick Douglass: Self‐​Made Man, on Our American Stories https://www.cato.org/multimedia/media-highlights-radio/timothy-sandefur-discusses-book-frederick-douglass-self-made-0 Thu, 13 Feb 2020 11:13:47 -0500 Timothy Sandefur https://www.cato.org/multimedia/media-highlights-radio/timothy-sandefur-discusses-book-frederick-douglass-self-made-0 Frederick Douglass and the American Dream https://www.cato.org/cato-journal/winter-2020/frederick-douglass-american-dream Timothy Sandefur <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Frederick Douglass (1818–95) was an author, lecturer, activist, and statesman who was born into slavery in rural Maryland. After being sent to Baltimore at the age of seven, he secretly learned to read and began questioning the legitimacy of slavery. When he was 20, he escaped to New York on the Underground Railroad and from there moved to Massachusetts, where he was recruited into the abolition movement by William Lloyd Garrison, publisher of the antislavery newspaper <em>The Liberator</em>. In 1845, Douglass published <em>The Narrative of the Life of Frederick Douglass, an American Slave</em>, and gave a&nbsp;lecture tour in Great Britain. Upon his return, he moved to Rochester, New York, where he repudiated Garrison’s belief that the Constitution was a&nbsp;pro‐​slavery document. In partnership with New York abolitionist Gerrit Smith, he began publishing his own newspaper, and revised and extended the <em>Narrative</em> into <em>My Bondage and My Freedom.</em></p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>When the Civil War broke out, Douglass helped recruit black soldiers into the Union Army and met repeatedly with President Abraham Lincoln. After the war, Douglass became United States marshal for the District of Columbia and was later appointed minister to Haiti. He continued lecturing throughout, supporting stronger protections for civil rights in the South and denouncing the rise of Jim Crow in the period after Reconstruction. In 1884, he shocked the nation by marrying a&nbsp;white woman, Helen Pitts, a&nbsp;former abolitionist who had taught freedmen in schools in the South. He became a&nbsp;mentor to Paul Laurence Dunbar and Ida Wells, and he died in 1895.</p> <h2>A Self‐​Made Man</h2> <p>Frederick Douglass’s story is mesmerizing (see <a href="#ref022">Sandefur 2018</a>). I&nbsp;think it’s the most quintessentially <em>American</em> story in all our literature. That’s because it is not just the story of a&nbsp;self‐​made man, but a&nbsp;story of idealism versus cynicism — of pride against despair — of commitment to principle against nihilism and surrender. It’s the story of the assertion of American Dream: the dream of the opportunity for men and women of all races and backgrounds to realize their individual destinies in freedom.</p> <p>The most famous episode in that story is Douglass’s fight with Edward Covey. Covey ran a&nbsp;business breaking slaves who were too headstrong, and Douglass’s master sent him to Covey in 1834 when Douglass was 17. Covey beat him every week, for any reason or for no reason. He would hide in the bushes and attack Douglass out of nowhere — all to instill in Douglass a&nbsp;sense of helpless terror and to destroy his capacity to dream of a&nbsp;better life. Douglass tells us that before being sent to Covey, he would sometimes gaze out at the ships in Chesapeake Bay and dream of being on one, sailing freely before the wind. But after six months of Covey’s brutal regimen, Douglass lost even the desire to imagine his freedom. “Covey succeeded in breaking me,” he said, “in body, soul, and spirit. My natural elasticity was crushed; my intellect languished; the disposition to read departed, the cheerful spark that lingered about my eye died out; the dark night of slavery closed in upon me, and behold a&nbsp;man transformed to a&nbsp;brute!” (in <a href="#ref015">Gates 1994</a>: 268).</p> <p>Then, one hot August day, Douglass decided that he would not surrender (ibid.: 575–92). He had fainted from heat stroke that day, and Covey had beat him for it with a&nbsp;wooden club. Though Douglass had begged his owner to intervene, he had refused. So Douglass resolved to fight back. The next time Covey attacked him, he grabbed the man around the throat and held on. They struggled until Covey stumbled off mumbling. He never beat Douglass again. And Douglass learned from this incident a&nbsp;crucial principle: <em>he who would be free must himself strike the blow</em> (ibid.: 592).</p> <p>Striking that blow rather than surrendering — believing in himself enough to stand up — that was the crucial lesson. Douglass refused to accept the hopeless, helpless, dreamless life of a&nbsp;brute. “Next to the dignity of being a&nbsp;freeman is the dignity of striving to be free,” he said years later. “I detest the slaveholder, and almost equally detest a&nbsp;contented slave. They are both enemies to freedom.… One of the saddest facts connected with organized and settled oppression is, that it deadens the sensibility in its victims. It acts upon the oppressed like certain deadly poisons upon animal life, which lull to sleep before dissolving the body in death” (in <a href="#ref005">Blassingame 1986</a>, 3: 210).</p> <p>I tell this story because I&nbsp;want to focus on the lessons Douglass teaches us today — as libertarians and as Americans — about idealism and cynicism, about pride and surrender, about the American Dream, and about that deadly poison that lulls to sleep — a&nbsp;hopeless, helpless, dreamless sleep.</p> <h2>Douglass and the Abolition Movement</h2> <p>Let me turn to a&nbsp;part of Douglass’s life that is often neglected: his place in the history of anti‐​slavery political thought. We often think of abolitionism as a&nbsp;single movement, but in fact, the enemies of slavery were a&nbsp;diverse bunch. And their internal disagreements shaped an important chapter in Douglass’s life. After escaping from slavery in 1838, he moved to New Bedford, Massachusetts, where he planned to get a&nbsp;job in the shipyards (see <a href="#ref015">Gates 1994</a>: 651). He had experience in that line of work, and New Bedford was the capital of the whaling industry. But Massachusetts was also the headquarters of one wing of the abolitionist movement — the wing led by William Lloyd Garrison.</p> <p>Garrison was a&nbsp;brave and uncompromising man, an extreme radical, and Frederick Douglass’s hero. He was a&nbsp;feminist, a&nbsp;pacifist, and an anarchist. He and his friends had essentially founded American abolitionism in 1831 when they reacted against what was then the only existing school of anti‐​slavery thought, known as “colonizationism.”</p> <p>Colonizationists believed that slavery should be ended gradually and that former slaves or their children should be sent to colonies in Africa or Central America. This was considered a&nbsp;respectable form of anti‐​slavery thinking among whites — Thomas Jefferson and James Madison had been colonizationists. But it was anathema to Garrison. “Gradual emancipation,” as the colonizationists would have it, meant leaving current slaves in chains for life. And sending freed slaves or their children to Africa was irrational and unjust. Most of them had never even been to Africa — in fact, most of their parents and grandparents had never been there. They would probably not survive there, and forcibly expelling freed slaves from their homes — as the government later did with the Cherokee — would be a&nbsp;crime against humanity. Garrison overthrew colonization and replaced it with abolitionism — which called for the immediate, uncompensated, freeing of all slaves with no colonization (<a href="#ref018">Mayer 1998</a>: 72–78).</p> <p>But he went further: Garrison also thought the United States Constitution was an evil document because it protected slavery. He called it a&nbsp;deal with the devil. He burned it at his July 4&nbsp;speeches and adopted as his motto, “No union with slaveholders!” — by which he meant that northern states should secede from the union in order to have nothing to do with slavery (<a href="#ref018">Mayer 1998</a>: 326, 444–45). Because he was a&nbsp;pacifist, he did not call for slave uprisings, but instead believed in persuading masters to free their slaves. He also argued that abolitionists should refuse to participate in politics, vote, or run for office, since that would only lend credibility to a&nbsp;political system that was morally corrupt. Nothing short of the total overthrow of the government would do (ibid.: 222).</p> <p>Douglass first met Garrison at the age of 21, when he addressed an anti‐​slavery meeting with Garrison in the audience. He trembled and stuttered, he says, speaking before his hero (<a href="#ref015">Gates 1994</a>: 660). But Garrison was so impressed that he recruited Douglass into the Antislavery Society, as one of its writers and lecturers. At first, Douglass followed the Garrisonian party line: that the Constitution was a&nbsp;pro‐​slavery document, that American politics was hopelessly corrupt, and that abolitionists should remain outside the political system.</p> <h2>The U.S. Constitution: Pro‐​slavery or Anti‐​slavery?</h2> <p>It was only natural that Douglass would embrace these views. He was new to the free world and in awe of Garrison. But he soon began to question Garrison’s theory. When he wrote his autobiography in 1845, he included scenes of his famous fight with Edward Covey that were not exactly consistent with pacifism. He began endorsing slave uprisings. And when he traveled to Britain in 1845–46, he met with British abolitionists who had done a&nbsp;lot of good by working within the political system, including ending slavery in the West Indies. Douglass returned to the United States with a&nbsp;pocketful of money from British admirers and chose to move to Rochester, New York, and start a&nbsp;newspaper of his own. Garrison was irritated by this.</p> <p>But what Douglass did next bothered Garrison even more. He began consorting with a&nbsp;different branch of the abolitionist movement — the New York wing, led by the philanthropist Gerrit Smith. Smith differed dramatically from Garrison. He believed the Constitution was <em>not</em> a&nbsp;pro‐​slavery document, but was, in its principles, anti‐​slavery — or at least, that it gave the federal government power to restrict or abolish slavery, if elected officials were willing to do so. Smith believed in political participation and sponsored the Liberty Party — America’s first anti‐​slavery political party.</p> <p>Within a&nbsp;few years, Douglass became persuaded that the Constitution was not pro‐​slavery, but a&nbsp;fundamentally anti‐​slavery document. The words “slave” and “slavery” did not appear in it, he observed. And even the oblique references to slavery found in the Constitution — the three‐​fifths clause, the fugitive slave clause, the importation clause, and the prohibition on amending the importation clause — could be interpreted in ways that avoided protecting slavery. Moreover, other provisions of the Constitution — most notably the Privileges and Immunities Clause of Article IV — positively contradicted slavery (<a href="#ref014">Foner and Taylor 1999</a>: 260–71, 344–58).</p> <p>In fact, Douglass argued that slaves were actually American citizens. Certainly nothing in the Constitution or the Declaration of Independence said otherwise. Black Americans were, after all, part of the “all men” whom the Declaration said were “created equal.” They were among the “people of the United States” referred to in the Constitution’s preamble. Nothing in the Constitution deprived them of that status. To reduce them to slavery without due process of law was unconstitutional (<a href="#ref014">Foner and Taylor 1999</a>: 353–54).</p> <p>The pro‐​slavery lawyers, obviously, argued the reverse. The Constitution was meant only for white Americans, they said. Its references to slavery amounted to permanent guarantees. The Declaration’s statement that “all men are created equal” was not intended to refer to nonwhites — it really meant “white men.” The idea of black people being citizens was absurd (<em>Dred Scott v. Sandford</em>, 60 U.S. 393: 407–10 [1857]).</p> <p>What’s remarkable is that the Garrisonian abolitionists <em>shared</em> this pro‐​slavery view. They agreed that the Constitution was a&nbsp;pro‐​slavery document — that was why they called it evil. The Constitution, said one Garrisonian, “Is, and always has been, a&nbsp;sham — an imposter … an instrument of oppression unsurpassed in the criminal history of the world” (Phillips 1845: 103). So when the Supreme Court ruled in <em>Dred Scott</em> that black Americans could never be citizens and that the Constitution aimed to protect slavery forever, Douglass pointed out that Chief Justice Taney was just echoing what the Garrisonians believed. What united Garrisonians with their pro‐​slavery enemies was their shared view that the Founding Fathers could never have really meant what their words said. Both groups believed that it was <em>unrealistic</em> to imagine that the Founders had ever expected this country to be anything other than a&nbsp;land for whites only. “It is absurd, it is false,” wrote one Garrisonian, “to pretend that the Constitution was intended to embrace the entire population of the country” (ibid.: 105). Even if it had been, he wrote, “of what avail is a&nbsp;mere piece of parchment?” (ibid.: 116). In their minds, Douglass’s pro‐​Constitution abolition theory was utopian, pie‐​in‐​the‐​sky, wishful thinking: Unrealistic. Merely a&nbsp;dream.</p> <p>Yet Douglass asserted that dream wholeheartedly, both as a&nbsp;normative and a&nbsp;practical matter. He pored over the history of the Constitution and concluded that Americans had “allowed themselves to be … ruinously imposed upon” by those who called the document pro‐​slavery. In fact, he argued, it contained “neither warrant, license, nor sanction” for slavery. “Interpreted as it ought to be interpreted,” he said, “the Constitution is a&nbsp;GLORIOUS LIBERTY DOCUMENT.” True, many of the Founders had owned slaves, but it was “a slander upon their memory” to accuse them of having <em>approved</em> of slavery or of having designed the Constitution to perpetuate it (in <a href="#ref014">Foner and Taylor 1999</a>: 204). They had despised slavery, and had hoped it would die from economic weakness or that their children would sicken of it. Alas, by the 1830s, just the opposite had occurred, and Southerners were trying to rewrite history to justify what was never intended: a&nbsp;<em>permanent</em> slave nation.</p> <h2>Engagement in Politics — Or Disavowal?</h2> <p>As a&nbsp;matter of history and morality, Douglass was right about this. But there was a&nbsp;practical dimension to it, too. By forfeiting the Constitution into the hands of the pro‐​slavery lawyers, Garrison and his allies were surrendering their most valuable weapon — namely, their opportunity to use the political system to actually do something about slavery. Garrison’s motto — “no union with slaveholders” — was a&nbsp;dereliction of moral duty. “If I&nbsp;were on board of a&nbsp;pirate ship,” Douglass said, “I would not clear my soul of [my victims’] blood by jumping in the long boat, and singing out ‘no union with pirates!’ My business would be to … save the lives and liberties of those against whom I&nbsp;had committed piracy. In like manner, I&nbsp;hold it is our duty to remain inside this Union, and use all [its] power to restore to enslaved millions their precious and God‐​given rights” (in <a href="#ref014">Foner and Taylor 1999</a>: 352).</p> <p>The Garrisonians’ refusal to participate in politics also meant prioritizing their own moral purity over the goal of emancipation. They were abandoning “the great idea” of abolitionism, Douglass said — they had started out to free the slave, but by repudiating political engagement, they were “leaving the slave to free himself” (ibid.: 324). So Douglass chose a&nbsp;new motto: instead of “no union with slaveholders,” Douglass said, “I would unite with anybody to do right and with nobody to do wrong” (ibid.: 326).</p> <p>In response, the Garrisonians accused Douglass of opportunism and moral equivocation. Participating in politics, they warned, would force Douglass to compromise his beliefs and would lend undeserved legitimacy to the government. He would make a&nbsp;clown of himself and a&nbsp;joke of abolitionism, which was a&nbsp;radical, revolutionary, transformative movement (<a href="#ref013">Filler 1960</a>: 153).</p> <p>They were not entirely wrong. As Douglass’s later career showed, being involved in politics did, indeed, require compromises, sometimes embarrassing ones. For the rest of his life, Douglass was forced to swallow insults and to support politicians who took only trivial action, or no action, to protect black Americans from virtual reenslavement.</p> <p>On the other hand, Douglass could point to the immense progress that abolitionists made between 1855 and 1875 through political engagement. In fact, the cause would have accomplished nothing had it followed Garrison’s nonparticipation rule. Only the political activism of people like Douglass, Gerrit Smith, Charles Sumner, Thaddeus Stevens, Josiah Giddings, and many others made any progress toward the actual end of slavery possible. Their greatest triumphs were the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments, which vindicated pro‐​Constitution abolitionism forever. At least in words.</p> <p>This tension — between those who say that the best path is to refuse to participate in politics, and those who believe the possible gains from politics outweigh its risks — is characteristic of all reform movements. It exists today in the libertarian community. Bob Poole and Max Borders debated this very issue in <em>Reason</em> magazine (<a href="#ref008">Borders and Poole 2018</a>). Neither side is entirely right or wrong — and I&nbsp;don’t intend to resolve the debate here. But libertarians do have much to learn from the way it played out in Frederick Douglass’s lifetime.</p> <h2>Douglass and Today’s Fight over the American Dream</h2> <p>There’s another lesson here — one that remains relevant to our national community as well. It’s a&nbsp;lesson about viewing the Constitution, not just as a&nbsp;legal document but as an <em>aspirational commitment</em>. Because that is what the Constitution is. Our founding document is not a&nbsp;morally neutral machine for making legislation, but a&nbsp;promise — as all laws are promises — grounded on moral propositions. It is therefore as much about how our nation <em>ought</em> to be as about what it <em>is</em>.</p> <p>In Douglass’s opinion, the Garrisonians’ anti‐​Constitution theory shared a&nbsp;false and even nihilistic premise with the old colonization theory. Both assumed that America was a&nbsp;nation fundamentally committed to white supremacy. Colonizationists could not imagine black men and women sharing the continent with them — and those who viewed the Constitution as a&nbsp;pro‐​slavery document could not imagine its protections for liberty applying to all races. Both doctrines of racial separation were the same old serpent that said the Constitution and the Declaration did not really mean what they said, and that instead, America is only for whites. Both the colonization theory and the anti‐​Constitution theory would, in Douglass’s words, make black Americans “despondent and doubtful, where [they] should feel assured and confident,” and would “force upon [them] the idea that [they] [are] forever doomed to be … stranger[s] and sojourner[s] in the land of [their] birth, and that [they] [have] no permanent abiding place here” (in <a href="#ref014">Foner and Taylor 1999</a>: 767–68).</p> <p>Douglass had more reason than many people to oppose any doctrine of racial separation. He was half white — and late in life married a&nbsp;white woman. He believed that white and black Americans shared a&nbsp;destiny — a&nbsp;common inheritance in the libertarian principles of the Declaration and the Constitution, regardless of racial ancestry. “Have we not a&nbsp;right here?” Douglass asked. “We have been with you … in adversity, and by the help of God will be with you in prosperity.… We are American citizens” (in <a href="#ref014">Foner and Taylor 1999</a>: 177). Citizenship was more than a&nbsp;legal status to Douglass — it meant a&nbsp;<em>conviction</em> in the truth of the principles of liberty. Black Americans had proven their conviction a&nbsp;thousand‐​fold — had earned their citizenship through toil, suffering, patience, and courage — and should be proud of it, he said. They should never let it be taken away — or, God forbid, be fooled into giving it up.</p> <p>That may be the most important lesson Douglass teaches us today. It’s a&nbsp;lesson about brotherhood and what it means to be an American. That makes it a&nbsp;hard lesson to hear in today’s environment of contempt and even despair. Such despair is merely an echo of the nihilism that Douglass detected in colonizationism and anti‐​Constitutionalism. Both then and now, that despair tells black Americans that this nation and its principles are not for them and never were. Its most outspoken advocate today is Ta‐​Nehisi Coates, the anti–Frederick Douglass, who argues in his recent book, <em>Between the World and Me</em>, that the American Dream is a&nbsp;lie (<a href="#ref009">Coates 2015</a>).</p> <p>Coates holds that the American Dream is a&nbsp;mirage, designed to fool nonwhites into believing that America is something other than a&nbsp;land of oppression. The Dream appears in Coates’s writing only as a&nbsp;perversity, as a&nbsp;target of scorn and contempt, as just another fraud to be smirked at by those worldly enough to realize that only rubes fall for it. No — not even so jocularly as that. The Dream is a&nbsp;massive, white machine, gorging itself on “black bodies” in order to gather strength to gorge itself once more. Coates describes it in his sarcastic, pseudo‐​elegiac phraseology as “perfect houses with nice lawns … Memorial Day cookouts, block associations, and driveways” (<a href="#ref009">Coates 2015</a>: 11). But in his eyes, the Dream is inherently exclusive. White supremacy, he writes, “remains, as it has since 1776, at the heart of this country’s political life” (<a href="#ref010">Coates 2017</a>). And the American Dream is “concocted by Americans to justify themselves” (<a href="#ref009">Coates 2015</a>: 50).</p> <p>Coates’s nihilism is truly boundless. There are times when he seems to say the opposite, as when he quotes Abraham Lincoln approvingly. He goes on, however, to say that “Americans believe in the reality of ‘race’ as a&nbsp;defined, indestructible feature of the natural world,” and that racism “inevitably follows from this inalterable condition” (ibid.: 7). Racism lies at the very root of the national consciousness of white Americans — “whiteness,” as Coates understands it — and he sees that “whiteness” everywhere. Whiteness — not the color of white people’s skin, or the content of their minds, but the entire evanescent and omnipresent <em>thing</em> of American culture — simply <em>is</em> racism. “We are captured, brother,” he writes, “surrounded by the majoritarian bandits of America” (ibid.: 146).</p> <p>That, of course, was not what Frederick Douglass thought. Douglass (who actually was captured, more than once) was the greatest of all articulators of the Dream, at least until Martin Luther King. He spoke of it when he described America as a&nbsp;land of self‐​made people, as a&nbsp;boisterous, shifting, often unpredictable society: “Like the sea, we are constantly rising above, and returning to, the common level” (in <a href="#ref007">Blassingame and McKivigan 1992</a>, 5: 572). By this, Douglass meant that a&nbsp;nation premised on equality, in which people must climb on their own merits and hard work, is an ever‐​shifting tableau of people gaining in wealth and fame — with others rising above them and still others falling through their own bad choices or misfortune — yet knowing, even as they fall, that they have the opportunity to rise again.</p> <p>Douglass spent two decades in slavery. He had better reason than any American today to call the American Dream a&nbsp;lie and a&nbsp;fantasy. But he did not. He would not let Edward Covey beat it out of him, and he would not surrender it. “My mission,” he said, “is to plead the cause of the colored millions of our countrymen against injustice, oppression, meanness, cruelty, and to hasten the day when the principles of liberty and humanity expressed in the Declaration of Independence and the Constitution of the United States shall be the law and the practice of every section, and of all the people of this great country without regard to race, sex, color, or religion” (in <a href="#ref014">Foner and Taylor 1999</a>: 722).</p> <h2>The False “Realism” of Nihilism</h2> <p>Coates’s nihilism has become a&nbsp;common feature of public discourse. He won a&nbsp;MacArthur Genius Grant and a&nbsp;National Book Award, and many others now see his cynicism as the <em>realistic</em> way to view the United States. In January 2019, the <em>New York Times</em> ran an article flatly declaring that “The American dream … is one of the most enduring myths in this country. And one of its most prominent falsehoods” when it comes to black Americans (<a href="#ref001">Allen 2019</a>).</p> <p>Of course, cynicism always tries to market itself as “realistic” — but in most cases, and certainly in this case, it is not. Coates writes that “America is literally unimaginable without plundered labor shackled to plundered land, without the organizing principle of whiteness as citizenship” (<a href="#ref011">Coates 2018</a>: 85). But this is untrue in every respect.</p> <p>First, it <em>is</em> possible to imagine America without slavery. Many people throughout history did precisely that. Douglass did so. So did Garrison, John Greenleaf Whittier, John Quincy Adams, and Abraham Lincoln. In fact, they did more than imagine it; they made it a&nbsp;reality — or, if you prefer, brought it closer to reality than it was before they did the imagining. One might assume that every enslaved black American in the two and a&nbsp;half centuries before emancipation imagined it. After them, others imagined an America free of racial oppression and acted to make it a&nbsp;reality — in the Silent Parade, in the bus boycotts, in Freedom Summer. We have a&nbsp;name for their act of imagining: it’s called “the Dream.”</p> <p>If Coates chooses not to share that Dream, why not? It is surely not on account of realism, which would force him to acknowledge that there is, at the heart of America’s founding documents, a&nbsp;set of principles that frame an abiding dream — a&nbsp;compelling vision of a&nbsp;better world. That vision has led the people of the United States time and again to lay down their lives for a&nbsp;freer, more just country: to free the slaves, to end Jim Crow, to make real a&nbsp;principle of brotherhood by which countless Americans now find it literally unimaginable that there was ever a&nbsp;world in which such things were considered acceptable. What most Americans find “unimaginable” today is the racism their own grandfathers took for granted. And what has made it unimaginable is “the Dream.”</p> <p>I would go further. Not only is America imaginable without slavery, but slavery has been a&nbsp;feature of nearly every human society in the history of the world, and yet in those societies, what was unimaginable was the principle that all men are created equal. What was unimaginable was the idea that everyone, everywhere, is entitled to liberty. What people in other nations could not imagine was integration, emancipation, and liberation.</p> <p>The reality is that America is literally unimaginable without the <em>end</em> of slavery. It is not remarkable that America had slavery, which is an ancient and ubiquitous institution, vastly more common in history than, say, monogamy. The wonder, rather, is that the end of slavery in this country came as a&nbsp;<em>necessary consequence</em> of her fundamental creed. What is impossible to imagine is America without the principle of equality — the core of the Declaration of Independence, which Douglass called “the ringbolt of the chain of our nation’s destiny” (in <a href="#ref014">Foner and Taylor 1999</a>: 191). Without that “ringbolt,” America would not be America. She would be like every other country — rocks and trees, and people connected by ethnicity, rather than principle. This is what Lincoln meant when he said that the “electric cord” that binds us together is not race, but the principles of the Declaration, which make each of us “blood of the blood and flesh of the flesh” of the revolutionary fathers (in <a href="#ref002">Basler 1953</a>, 2: 499–500). These are the things we celebrate on July 4th — or those Memorial Day barbeques Coates sneers at — because they are essential. They make the Dream. They are what America is unimaginable without.</p> <p>In this connection, I&nbsp;cannot refrain from telling a&nbsp;personal story. I&nbsp;was in Washington, D.C., on July 4, 2000. I&nbsp;sat on the Capitol steps to watch Ray Charles sing “America, the Beautiful.” I&nbsp;could barely hear him because the fireworks were so loud. I&nbsp;didn’t like that, and the mass of people made the evening less fun. But as I&nbsp;walked back to my apartment, I&nbsp;saw something that stuck with me forever: in an empty lot, an SUV; in front of it, a&nbsp;father — a&nbsp;black man — who was lighting off some little fireworks he’d brought with him. Inside, pressed against the driver’s side window, two little children, their shining faces overwhelmed with guileless joy — utterly pure. That is my real memory of that day.</p> <p>Now, I&nbsp;wonder, what were these three Americans celebrating? Were they ignorant of the history of racism in this country? Did they not know about slavery and segregation? Were they fools, walking about in the delusion from which Coates has “liberated” himself? Or could it be that they know that story well enough — and that in their veins runs the blood of enslaved Americans, and freedmen, and the brave black soldiers who fought in the Union Army, and the Selma marchers and Freedom Riders and the black businessmen and scholars and artists and scientists who labor every day knowing this country is theirs? Could it be that they were celebrating <em>their</em> country? Could it be that they know that what can’t be imagined is America <em>without</em> the Dream?</p> <p>I suspect, in fact, that these people, if they were tourists, came to Washington in part to visit the spot at the Lincoln Memorial where a&nbsp;black man gave voice to that Dream so profoundly, so truly, so eloquently, that when you speak of “the Dream” to nearly any American today, he thinks not of James Truslow Adams — the author who first used the phrase “American Dream” — but of Martin Luther King Jr. I&nbsp;suspect that these people came, not to repudiate, but to <em>claim</em> that Dream. Not to concede, as Coates does, that America and slavery are inseparable — an idea that the foulest racist in the land would applaud with conviction — but rather, that they came as they had a&nbsp;right to do: to <em>assert</em> the Dream.</p> <p>Now, you may call this foolish. But it is not unrealistic. It is not a&nbsp;delusion. To maintain that it is a&nbsp;delusion is to say that this family, and millions like them, are also deluded. It would mean, too, that Frederick Douglass was deluded. And that doesn’t seem realistic at all.</p> <h2>What Is America without the Dream?</h2> <p>Believing in the reality of the American Dream today does not require us to ignore the history of racial oppression or other wrongs in American history. In fact, our awareness of our past failures is itself a&nbsp;function of our commitment to the Dream — and it makes possible a&nbsp;future that more closely approaches the principles of that Dream. As the Reason Foundation’s Sikha Dalmia (<a href="#ref012">2011</a>) put the point some years ago:</p> <blockquote>Americans are their own worst critics — always looking for lessons to improve what is working and fix what’s not.… Indeed, Americans have a&nbsp;grab‐​the‐​bull‐​by‐​its‐​horns quality so that they simply don’t hang around hoping for things to get better on their own.… This American spirit, ultimately, is the biggest reason to believe that the American dream is and will stay alive — in America.</blockquote> <p>Coates’s contempt for the Dream leads me to ask, in all candor: What are we — as individuals or a&nbsp;nation — if we surrender our commitment to principle (which is what we mean when we speak of our dreams)? Without dreams, are we not just “poor, bare forked creatures”? Aren’t we just doomed to repeat the crimes of past ages? “Where there is no vision, the people perish.” A&nbsp;land without a&nbsp;dream is only dirt. A&nbsp;creature that does not dream is only a&nbsp;congeries of bones and tissues. A&nbsp;person who can dream and <em>chooses not to</em> has surrendered the one thing that can never be taken away by any jailer. Why does the caged bird sing? Because it dreams of freedom. What comes of a&nbsp;dream deferred? It festers like a&nbsp;sore and then runs. But a&nbsp;dreamless man can neither sing nor run. He can only be a&nbsp;body — a&nbsp;thing acted upon by others. A&nbsp;racist may be deluded by thinking he’s biologically superior, but a&nbsp;dreamless man is even more deluded — because he thinks that he’s <em>awake</em>.</p> <p>One of the gravest threats to freedom in our country today is the growth of cynical abandonment — of hopelessness, helplessness, and dreamlessness. That cynicism is revealed in the idea, held by Coates and others, that our Constitutional promise is a&nbsp;fraud and that our progress has just perpetuated that lie — particularly among minority groups who today feel increasingly isolated, and understandably so.</p> <p>We find the same nihilism in the language of President Trump, who, when asked what he thought of Vladimir Putin’s habit of murdering political opponents, answered, “We’ve got a&nbsp;lot of killers [too]. What, do you think our country’s so innocent?” (<a href="#ref024">Tatum 2017</a>). He also said, “When the world looks at how bad the United States is, and then we go and talk about civil liberties, I&nbsp;don’t think we’re a&nbsp;very good messenger” (<a href="#ref003">Benen 2019</a>). His domestic policy advisers ridicule cosmopolitanism, free trade, and liberal immigration policies as unrealistic. His foreign policy advisers say America should turn its back on humanitarianism and on the freedom and safety of the world’s oppressed peoples — and they call their creed “realism.” But it’s actually the nihilism of the hopeless, the helpless, and the dreamless.</p> <p>Similar attitudes were voiced in Douglass’s day. And he rejected them eloquently. Back then, after the Civil War, Chinese immigration became the hot issue. But Douglass argued that “a liberal and brotherly welcome to all who are likely to come” was “the only wise policy.”</p> <blockquote>I want a&nbsp;home here not only for the negro … but I&nbsp;want [Asians] to find a&nbsp;home here … for [their] sake and for ours.… Every nation … has a&nbsp;definite mission in the world.… Ours … is to make us the perfect national illustration of the unit and dignity of the human family.… Our greatness … will be found in the faithful application of the principle of perfect civil equality to the people of all races and of all creeds, and to men of no creeds. We are not only bound to this position by … our revolutionary antecedents, but by the genius of our people. Gathered here, from all quarters of the globe by a&nbsp;common aspiration for rational liberty … it would be madness to set up any one race above another, or one religion above another (in <a href="#ref006">Blassingame 1991</a>, 4: 252).</blockquote> <p>Douglass saw not only that American ideals are fundamentally just, but that those ideas are the only <em>realistic</em> ones in the long run. “Nothing is settled that is not right,” he said (in <a href="#ref014">Foner and Taylor 1999</a>: 192). And nihilism, far from being rational, is in reality debilitating: at best, it can paralyze; at worst, it can invite pointless violence. The person who truly sees no difference between being alive or dead has taken the most dangerous step toward suicide. That’s why nihilism so often leads to tyranny, as Douglass himself warned:</p> <blockquote>If human nature is totally depraved, [and] if the character of this government will inevitably be the expression of this universal and innate depravity, then … [w]e should abandon our Republican government, cease to elect men to office, and place ourselves squarely under … some … potentate who governs by divine right [in <a href="#ref007">Blassingame and McKivigan 1992</a>, 5: 387].</blockquote> <p>Cynicism about race relations is simply not warranted by the facts — it is not realistic. Black Americans are freer, wealthier, happier, better educated, healthier, and safer today than they were 30 years ago. In fact, they are better off in nearly all these categories than whites were 30&nbsp;years ago (see <a href="#ref020">Pinker 2018</a> and <a href="#ref017">Hughes 2019</a>). Obviously racism remains, and there is still much work to be done before we overcome its awful legacies. But the idea that the American Dream is a&nbsp;fraud, or that white supremacy is at the heart of American politics, or that we can protect American culture by excluding those who seek it, dishonors people like Douglass who fought to vindicate the American Dream. These ideas are lies, and if left unchallenged, they will lull this nation to sleep before dissolving it in death.</p> <h2>First Steps toward a&nbsp;Different Conversation about Race</h2> <p><em>Reason</em> magazine’s Nick Gillespie (<a href="#ref016">2016</a>) says that we need to have “a <em>different</em> conversation about race” today: “one that simultaneously acknowledges real progress, personal responsibility on all sides, <em>and</em> systemic effects of public policies” and is “conducted in an atmosphere of mutual trust and good faith.” How do we do that? It will obviously take a&nbsp;lot of work. Let me give just one small suggestion.</p> <p>I wrote my book about Frederick Douglass with an audience in mind — a&nbsp;white audience. That seems a&nbsp;startling thing to say, but I&nbsp;made that decision consciously, because I&nbsp;think black Americans already know Douglass’s story. They know what happened after that, too: the descent into virtual reenslavement in the early 20th century. Yet an astonishing number of white Americans do not know that story. Their ignorance is responsible, among other things, for the persistent myth that public monuments celebrating the Confederacy are harmless or valuable tokens of history — rather than the remnants of a&nbsp;disgraceful era in which the constitutional rights of our fellow citizens were shamefully sacrificed.</p> <p>The persistence of the color line in our culture would be problematic enough on its own, because there can be no trust and good faith without a&nbsp;common frame of reference. But there is more that we lose if we fail to know, commemorate, and celebrate the black experience in the United States — because that experience is in many ways the most profound, most moving, <em>freedom story</em> that can be told. Americans claim to love freedom, and we libertarians in particular define ourselves by our love of liberty. But how much attention have we really paid to the story of black Americans and their struggle — not just against slavery, which was heroic enough, but against Jim Crow, lynching, and segregation? Where is the movie about the life of Frederick Douglass? Or Robert Smalls? Or Dorie Miller? Instead of these stories, we are given films and books that tell us that America is inherently at odds with the lives of black Americans — that the Constitution wasn’t for them, and that America isn’t for them — that teach hopelessness, helplessness, and dreamlessness.</p> <p id="pn1">Some who hear me may think this is silly — after all, we have monuments to black history and black history month. But, in a&nbsp;sense, that’s just the problem. These things are still treated as separate, as someone else’s culture that white Americans are obliged to acknowledge, rather than as being part — at the very core — of our national story and that we can all share. The history of black America is the history of the American Dream.<sup><a href="#en1">1</a></sup> Yet many white Americans view this story as off limits to them. And, sadly, some prominent black Americans prefer it that way. Some even denounce efforts to celebrate and share in this glorious history as “cultural appropriation.”</p> <p>“It is remarkable,” writes Cato’s Jonathan Blanks (<a href="#ref004">2012</a>), “that American libertarians — so often eager to discuss freedom in nearly every conceivable iteration — rarely address African‐​Americans and the struggle for civil rights in America.” He’s right. We have an obligation — no, we have the privilege of being able to share this story. And we must do so — not only because it will increase the appeal of the vision we want to articulate and make us more well‐​rounded people, but because there’s no other way to answer the false “realism” of today’s nihilists.</p> <p>Sharing across cultural boundaries is an act of good faith — and of pride. If we keep our cultural borders closed and fail to embrace black history as part of our shared American heritage, we not only deprive ourselves and our fellow citizens of the ability to fully participate in the American Dream, we lend credence to those on both the left and the right who preach hopelessness, helplessness, and dreamlessness. In the long run, that idea can only make us enemies.</p> <p>Frederick Douglass refused to believe that Americans were destined to be enemies. He embraced the only valid form of American exceptionalism — namely, that our constitutional principles are what make us, and would make any people, exceptional. His words teach us that a&nbsp;nation that is, in a&nbsp;sense, consecrated to a&nbsp;dream — “conceived in liberty and dedicated to the proposition that all men are created equal” — can only thrive by being true to those convictions. A&nbsp;nation cannot endure as alienated groups who insist that the Declaration does not mean what it says, or that its principles are just a&nbsp;social construct, no more valid than any other society’s principles.</p> <h2>Conclusion</h2> <p>Frederick Douglass’s whole life was a&nbsp;war against prejudice, cynicism, and surrender. “No man was ever … lost who seriously thought himself worth saving,” he said; and “the same is … equally true, of a&nbsp;great nation” (in <a href="#ref023">Stauffer and Gates 2016</a>: 346). The goal of the slave breaker Covey was to eradicate the capacity to believe in a&nbsp;better world. Douglass would not accept that. The goal of the colonizationists was to destroy the belief that America is a&nbsp;land for all races. Douglass would not accept that. The goal of the anti‐​constitutionalists was to elevate their moral sterility over the hard work of making a&nbsp;better world. Douglass would not accept that. And the goal of today’s sophisticated, realistic nihilists, on the right and on the left, is to demolish the idea of the American Dream; to persuade us that progress has been an illusion, that our Constitution is a&nbsp;racist document, that America is, in spirit, a&nbsp;fraud and, in substance, a&nbsp;wasteland of walls and hatreds; that its slogans about freedom are lies; and that Americans are really enemies. But these are all poisons that lull to sleep before they kill — and Douglass rejected them. “There is no negro problem,” he said. “The problem is whether the American people have loyalty enough, honor enough, patriotism enough, to live up to their own Constitution” (<a href="#ref022">Sandefur 2018</a>: 101–2).</p> <p>As <em>Reason</em>’s Damon Root (<a href="#ref021">2018</a>) says, “At a&nbsp;time when the principles of the Declaration of Independence were under assault, Douglass waved the banner of classical liberalism, championing inalienable rights for all.… [T]he former slave … would teach the American people a&nbsp;thing or two about the true meaning of the Constitution.” Those principles are under assault again today — and again we must heed Douglass’s lesson. We must have enough pride in ourselves to refuse to surrender our convictions to those who call them “unrealistic.” And we must strive to make those convictions a&nbsp;reality to those still sitting in darkness.</p> <p>“Next to the dignity of being a&nbsp;freeman is the dignity of striving to be free,” Douglass wrote. How lucky are we, then, that we can have both.</p> <p>Well, I&nbsp;am loath to close. We Americans are not enemies, but friends. We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.</p> <h2>References</h2> <p class="REF_F" id="ref001">Allen, R. (2019) “The American Dream Isn’t for Black Millennials.” <em>New York Times</em> (January 5).</p> <p class="REF" id="ref002">Basler, R., ed. (1953) <em>Collected Works of Abraham Lincoln.</em> New Brunswick, N.J.: Rutgers University Press.</p> <p class="REF" id="ref003">Benen, S. (2019) “The Wrong Messenger: Trump Targets Those Who ‘Speak Badly’ of the U.S.” <a href="http://MSNBC.com">MSNBC​.com</a>. (July 15).</p> <p class="REF" id="ref004">Blanks, J. (2012) “Black History and Liberty.” <em><a href="http://Libertarianism.org">Lib​er​tar​i​an​ism​.org</a></em> (January 23).</p> <p class="REF" id="ref005">Blassingame, J. W., ed. (1986) <em>Frederick Douglass Papers, Series One: Speeches, Debates, and Interviews</em>, Vol. 3, 1855–1863. New Haven: Yale University Press.</p> <p class="REF" id="ref006">Blassingame, J. W., and McKivigan, J. R., eds. (1991) <em>Frederick Douglass Papers, Series One: Speeches, Debates, and Interviews</em>, Vol. 4, 1864–1880. New Haven, Conn.: Yale University Press.</p> <p class="REF" id="ref007">_________ (1992) <em>Frederick Douglass Papers, Series One: Speeches, Debates, and Interviews</em>, Vol. 5, 1881–1895. New Haven, Conn.: Yale University Press.</p> <p class="REF" id="ref008">Borders, M., and Poole, R. (2018) “Debate: For Political Change, Choose Exit, Not Voice.” <em>Reason</em> (September 30).</p> <p class="REF" id="ref009">Coates, T. (2015) <em>Between the World and Me.</em> New York: Spiegel and Grau.</p> <p class="REF" id="ref010">_________ (2017) “Donald Trump Is America’s First White President.” <em>The Atlantic</em> (October).</p> <p class="REF" id="ref011">_________ (2018) <em>We Were Eight Years in Power: An American Tragedy.</em> New York: One World.</p> <p class="REF" id="ref012">Dalmia, S. (2011) “Long Live the American Dream.” <em>Reason</em> (March 1).</p> <p class="REF" id="ref013">Filler, L. (1960) <em>The Crusade Against Slavery, 1830–1860.</em> New York: Harper Torchbooks.</p> <p class="REF" id="ref014">Foner, P., and Taylor, Y., eds. (1999) <em>Frederick Douglass: Selected Speeches and Writings</em>. Chicago: Lawrence Hill.</p> <p class="REF" id="ref015">Gates, H., ed. (1994) <em>Frederick Douglass: Autobiographies</em>. New York: Library of America.</p> <p class="REF" id="ref016">Gillespie, N. (2016) “We Need a&nbsp;Different, Better Conversation on Race and Public Policy.” <em>Reason</em> (July 11).</p> <p class="REF" id="ref017">Hughes, C. (2019) “The Case for Black Optimism.” <em>Quillette</em> (September 28).</p> <p class="REF" id="ref018">Mayer, H. (1998) <em>All on Fire: William Lloyd Garrison and the Abolition of Slavery.</em> New York: Norton.</p> <p class="REF" id="ref019">Phillips, W. (1845) <em>The Constitution: A&nbsp;Pro‐​Slavery Compact.</em> 2nd ed. New York: American Anti‐​Slavery Society.</p> <p class="REF" id="ref020">Pinker, S. (2018) <em>Enlightenment Now: The Case for Reason, Science, Humanism, and Progress.</em> New York: Viking.</p> <p class="REF" id="ref021">Root, D. (2018) “When the Constitution Was ‘At War With Itself,’ Frederick Douglass Fought on the Side of Freedom.” <em>Reason</em> (February 2).</p> <p class="REF" id="ref022">Sandefur, T. (2018) <em>Frederick Douglass: Self‐​Made Man.</em> Washington: Cato Institute.</p> <p class="REF" id="ref023">Stauffer, J., and Gates, H. (2016) <em>The Portable Frederick Douglass.</em> New York: Penguin.</p> <p class="REF" id="ref024">Tatum, S. (2017) “Trump Defends Putin: ‘You Think Our Country’s So Innocent?’” <a href="http://CNN.com">CNN​.com</a> (February 4).</p> <p class="FTN" id="en1"><sup><a href="#pn1">1</a></sup> In October 2019, Lonnie Bunch of the Smithsonian’s National Museum of African American History, was quoted on Twitter saying, “Often we look at African American history as an ancillary story. But America’s core values of spirituality, resilience and optimism are the African American story. I&nbsp;want people to understand that this is their story regardless of who they are.” (Available at <a href="https://twitter.com/jazprose/status/1178782341956882432?s=20">https://​twit​ter​.com/​j​a​z​p​r​o​s​e​/​s​t​a​t​u​s​/​1​1​7​8​7​8​2​3​4​1​9​5​6​8​8​2​4​3​2​?s=20</a>.)</p> </div> Wed, 05 Feb 2020 03:00:00 -0500 Timothy Sandefur https://www.cato.org/cato-journal/winter-2020/frederick-douglass-american-dream Brackeen v. Bernhard https://www.cato.org/publications/legal-briefs/brackeen-v-bernhard-1 Timothy Sandefur, Ilya Shapiro, Walter Olson, Trevor Burrus <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>The Indian Child Welfare Act strips basic constitutional rights any child who is racially classified as “Indian.” ICWA was initially created to prevent seizure of Native American children from their intact families by state actors. Modern‐​day applications, however, both hurt the administrative process of foster families’ adoption proceedings. Even in cases where the Native American parent(s), relatives, or affiliated tribe have no issue with the adoption, the process is still delayed by arbitrary administrative rules. In some cases, the child is even removed from stable adoptive parents to be placed in a&nbsp;neglectful, abusive situation. The U.S. Court of Appeals for the Fifth Circuit reversed a&nbsp;district court’s decision to deem ICWA as applied to adoption unconstitutional under principles of equal protection, the Tenth Amendment, the nondelegation doctrine, and the Administrative Procedure Act.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>This Fifth Circuit ruling creates a&nbsp;dangerous new precedent that eliminates the distinction between racial and political classifications, upholding ICWA’s definition of a&nbsp;child’s political classification based solely on her race (as determined by a&nbsp;minute blood quantum). This logic ignores the cultural and political identification of the child, while bolstering the use of race in government decision making. At the very least, biological eligibility for tribal membership is a&nbsp;form of national‐​origin classification, which is subject to the same strict scrutiny that applies to racial classifications in other contexts.</p> <p>The court asserted that because many racially Indian children do not fall under ICWA’s definition of “Indian child,” this term is not a&nbsp;racial classification—which is incorrect, in that legal precedent dictates that a&nbsp;state classification does not become race‐​neutral simply because it is over‐ or underinclusive. Another ICWA provision requires children to be placed with “Indian” adults, regardless of tribal affiliation. In other words, a&nbsp;Sioux child must be placed with Seminole parents instead of a&nbsp;potentially better situation with black, white, Asian, or Hispanic parents. This “generic Indian” concept is a&nbsp;blatantly arbitrary racial identification.</p> <p>Finally, the Fifth Circuit’s ruling will in fact further harm the most at‐​risk minorities. Native American children are at greater risk of abuse, neglect, molestation, alcoholism, drug abuse, and suicide than any other demographic in the nation. Instead of providing these children with more legal protection, ICWA creates heavier evidentiary burdens, thus forcing children to remain in abusive homes longer.</p> <p>Fortunately, the full Fifth Circuit decided to hear the case&nbsp;<em>en banc</em>. Together with the Goldwater Institute and Texas Public Policy Foundation, Cato has filed an amicus brief on behalf of parent plaintiffs frustrated in a&nbsp;wish to adopt children of Native descent. (We likewise did so&nbsp;<a href="https://www.cato.org/sites/cato.org/files/pubs/pdf/brackeen-v-bernhard.pdf">before the Fifth Circuit panel</a>&nbsp;and&nbsp;<a href="https://www.cato.org/sites/cato.org/files/2019-10/Brackeen-5th-Cir-en-banc.pdf">on the plaintiffs’ motion</a>&nbsp;to rehear the case en banc.) We argue that under ICWA, “Indian child” is a&nbsp;genetics‐​based racial category and that ICWA does not constitutionally promote tribal sovereignty. The government may not treat American citizens differently, as it does here, based on whether their genetic ancestry would qualify them for tribal membership. For Congress to impose a&nbsp;racialized and non‐​neutral regime on parents and children is not only unwise and unfair, but unconstitutional.</p> </div> Mon, 13 Jan 2020 09:14:08 -0500 Timothy Sandefur, Ilya Shapiro, Walter Olson, Trevor Burrus https://www.cato.org/publications/legal-briefs/brackeen-v-bernhard-1 Brackeen v. Bernhard https://www.cato.org/publications/legal-briefs/brackeen-v-bernhard-0 Timothy Sandefur, Ilya Shapiro, Trevor Burrus, Walter Olson <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>The Indian Child Welfare Act strips basic constitutional rights any child who is racially classified as “Indian.” ICWA was initially created to prevent seizure of Native American children from their intact families by state actors. Modern‐​day applications, however, both hurt the administrative process of foster families’ adoption proceedings. Even in cases where the Native American parent(s), relatives, or affiliated tribe have no issue with the adoption, the process is still delayed by arbitrary administrative rules. In some cases, the child is even removed from stable adoptive parents to be placed in a&nbsp;neglectful, abusive situation. The U.S. Court of Appeals for the Fifth Circuit recently reversed a&nbsp;district court’s decision to deem ICWA as applied to adoption unconstitutional under equal protection, the Tenth Amendment, the nondelegation doctrine, and the Administrative Procedure Act.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>This Fifth Circuit ruling creates a&nbsp;dangerous new precedent that eliminates the distinction between racial and political classifications, upholding ICWA’s definition of a&nbsp;child’s political classification based solely on her race (as determined by a&nbsp;minute blood quantum). This logic ignores the cultural and political identification of the child, while bolstering the use of race in government decision making. At the very least, biological eligibility for tribal membership is a&nbsp;form of national‐​origin classification, which is subject to the same strict scrutiny that applies to racial classifications in other contexts.</p> <p>The court asserted that because many racially Indian children do not fall under ICWA’s definition of “Indian child,” this term is not a&nbsp;racial classification—which is incorrect, in that legal precedent dictates that a&nbsp;state classification does not become race‐​neutral simply because it is over‐ or underinclusive. Another ICWA provision requires children to be placed with “Indian” adults, regardless of tribal affiliation. In other words, a&nbsp;Sioux child must be placed with Seminole parents instead of a&nbsp;potentially better situation with black, white, Asian, or Hispanic parents. This “generic Indian” concept is a&nbsp;blatantly arbitrary racial identification.</p> <p>Finally, the Fifth Circuit’s ruling will in fact further harm the most at‐​risk minorities. Native American children are at greater risk of abuse, neglect, molestation, alcoholism, drug abuse, and suicide than any other demographic in the nation. Instead of providing these children with more legal protection, ICWA creates heavier evidentiary burdens, thus forcing children to remain in abusive homes longer.</p> <p>In collaboration with the Goldwater Institute and Texas Public Policy Institute, Cato has filed an amicus brief urging the Fifth Circuit to reconsider its decision and rehear the case&nbsp;<em>en banc</em>&nbsp;(with all the judges, not just a&nbsp;three‐​judge panel). The determination of Native American children’s rights due explicitly to their race certainly falls within the “exceptional importance” requirement for granting a&nbsp;rehearing&nbsp;<em>en banc</em>. If the court maintains its original ruling, Indian children will suffer irreparable harm due to the substandard legal protections that undermine their constitutional rights.</p> </div> Tue, 08 Oct 2019 08:16:53 -0400 Timothy Sandefur, Ilya Shapiro, Trevor Burrus, Walter Olson https://www.cato.org/publications/legal-briefs/brackeen-v-bernhard-0 The Founders Were Flawed. The Nation Is Imperfect. The Constitution Is Still a ‘Glorious Liberty Document’ https://www.cato.org/publications/commentary/founders-were-flawed-nation-imperfect-constitution-still-glorious-liberty Timothy Sandefur <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Across the map of the United States, the borders of Tennessee, Oklahoma, New Mexico, and Arizona draw a&nbsp;distinct line. It’s the 36º30′ line, a&nbsp;remnant of the boundary between free and slave states drawn in 1820. It is a&nbsp;scar across the belly of America, and a&nbsp;vivid symbol of the ways in which slavery still touches nearly every facet of American history.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>That pervasive legacy is the subject of a&nbsp;series of articles in&nbsp;<em>The New York Times</em>&nbsp;titled&nbsp;<a href="http://pulitzercenter.org/sites/default/files/full_issue_of_the_1619_project.pdf">“The 1619 Project.”</a>&nbsp;To cover the history of slavery and its modern effects is certainly a&nbsp;worthy goal, and much of the Project achieves that goal effectively. Khalil Gibran Muhammad’s portrait of the Louisiana sugar industry, for instance, vividly covers a&nbsp;region that its victims considered the worst of all of slavery’s forms. Even better is Nikole Hannah-Jones’s celebration of black‐​led political movements. She is certainly correct that “without the idealistic, strenuous and patriotic&nbsp;efforts of black Americans, our democracy today would most likely look very different” and “might not be a&nbsp;democracy at all.”</p> <p>Where the 1619 articles go wrong is in a&nbsp;persistent and off‐​key theme: an effort to prove that slavery “is the country’s very origin,” that slavery is the source of “nearly everything that has truly made America exceptional,” and that, in Hannah-Jones’s words, the founders “used” “racist ideology” “at the nation’s founding.” In this, the&nbsp;<em>Times</em> steps beyond history and into political polemic—one based on a&nbsp;falsehood and that in an essential way, repudiates the work of countless people of all races, including those Hannah‐​Jones celebrates, who have believed that what makes America “exceptional” is the proposition that all men are created equal.</p> <p></p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>As part of its ambitious “1619” inquiry into the legacy of slavery, The New York Times revives false 19th century revisionist history about the American founding.</p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>For one thing, the idea that, in Hannah‐​Jones’ words, the “white men” who wrote the Declaration of Independence “did not believe” its words applied to black people is simply false. John Adams, James Madison, George Washington, Thomas Jefferson, and others said at the time that the doctrine of equality rendered slavery anathema. True, Jefferson also wrote the infamous&nbsp;<a href="https://docsouth.unc.edu/southlit/jefferson/jefferson.html#p138">passages</a>&nbsp;suggesting that “the blacks…are inferior to the whites in the endowments both of body and mind,” but he thought even that was irrelevant to the question of slavery’s immorality. “Whatever be their degree of talent,” Jefferson&nbsp;<a href="http://www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jefl191.php">wrote</a>, “it is no measure of their rights. Because Sir Isaac Newton was superior to others in understanding, he was not therefore lord of the person or property of others.”</p> <p>The myth that America was premised on slavery took off in the 1830s, not the 1770s. That was when John C. Calhoun, Alexander Stephens, George Fitzhugh, and others offered a&nbsp;new vision of America—one that either disregarded the facts of history to portray the founders as white supremacists, or denounced them for not being so. Relatively moderate figures such as Illinois Sen. Stephen Douglas twisted the language of the Declaration to say that the phrase “all men are created equal” actually meant only&nbsp;<em>white</em>&nbsp;men. Abraham Lincoln effectively refuted that in his debates with Douglas. Calhoun was, in a&nbsp;sense, more honest about his abhorrent views; he scorned the Declaration precisely because it made no color distinctions. “There is not a&nbsp;word of truth in it,”&nbsp;<a href="https://teachingamericanhistory.org/library/document/oregon-bill-speech/">wrote</a>&nbsp;Calhoun. People are “in no sense…either free or equal.” Indiana Sen.&nbsp;<a href="https://en.wikipedia.org/wiki/John_Pettit">John Pettit</a>&nbsp;was even more succinct. The Declaration, he said, was “a self‐​evident lie.”</p> <p>It was these men—the generation after the founding—who manufactured the myth of American white supremacy. They did so against the opposition of such figures as Lincoln, Charles Sumner, Frederick Douglass, and John Quincy Adams. “From the day of the declaration of independence,” wrote Adams, the “wise rulers of the land” had counseled “to&nbsp;<em>repair</em>&nbsp;the injustice” of slavery, not perpetuate it. “Universal emancipation was the lesson which they had urged upon their contemporaries, and held forth as transcendent and irremissible [<em>sic</em>]&nbsp;<em>duties</em>&nbsp;to their children of the present age.” These opponents of the new white supremacist myth were hardly fringe figures. Lincoln and Douglass were national leaders backed by millions who agreed with their opposition to the white supremacist lie. Adams was a&nbsp;former president. Sumner was nearly assassinated in the Senate for opposing white supremacy. Yet their work is never discussed in the&nbsp;<em>Times</em> articles<em>.</em></p> <p>In 1857, Chief Justice Roger Taney sought to make the myth into the law of the land by asserting in&nbsp;<a href="https://www.law.cornell.edu/supremecourt/text/60/393#writing-USSC_CR_0060_0393_ZO"><em>Scott v. Sandford</em></a>&nbsp;that the United States was created as, and could only ever be, a&nbsp;nation for whites. “The right of property in a&nbsp;slave,” he declared, “is distinctly and expressly affirmed in the Constitution.” This was false: the Constitution contains no legal protection for slavery, and doesn’t even use the word. Both&nbsp;<a href="https://teachingamericanhistory.org/library/document/speech-on-the-dred-scott-decision/">Lincoln</a>&nbsp;and&nbsp;<a href="https://teachingamericanhistory.org/library/document/speech-on-the-dred-scott-decision-2/">Douglass</a>&nbsp;answered Taney by citing the historical record as well as the text of the laws: the founders had called slavery both evil and inconsistent with their principles; they forbade the slave trade and tried to ban it in the territories; nothing in the Declaration or the Constitution established a&nbsp;color line; in fact, when the Constitution was ratified, black Americans were citizens in several states and could even vote. The founders deserved blame for not doing more, but the idea that they were white supremacists,&nbsp;<a href="https://teachingamericanhistory.org/library/document/what-to-the-slave-is-the-fourth-of-july/">said Douglass</a>, was “a slander upon their memory.”</p> <p><a href="https://teachingamericanhistory.org/library/document/speech-on-the-dred-scott-decision/">Lincoln</a>&nbsp;provided the most thorough refutation. There was only one piece of evidence, he observed, ever offered to support the thesis that the Declaration’s authors didn’t mean “<em>all</em>&nbsp;men” when they wrote it: that was the fact that they did not free the slaves on July 4, 1776. Yet there were many other explanations for that which did not prove the Declaration was a&nbsp;lie. Most obviously, some founders may simply have been hypocrites. But that individual failing did not prove that the Declaration excluded non‐​whites, or that the Constitution guaranteed slavery.</p> <p>Even some abolitionists embraced the white supremacy legend. William Lloyd Garrison denounced the Constitution because he believed it protected slavery. This, Douglass replied, was false both legally and factually: those who claimed it was pro‐​slavery had the burden of proof—yet they never offered any. The Constitution’s wording gave it no guarantees and provided plentiful means for abolishing it. In fact, none of its words would have to be changed for Congress to eliminate slavery overnight. It was slavery’s defenders, he argued, not its enemies, who should fear the Constitution—and secession proved him right. Slaveocrats had realized that the Constitution was, in Douglass’s&nbsp;<a href="https://teachingamericanhistory.org/library/document/what-to-the-slave-is-the-fourth-of-july/">words</a>, “a glorious liberty document,” and they wanted out.</p> <p>Still, after the war,&nbsp;<a href="https://en.wikipedia.org/wiki/Lost_Cause_of_the_Confederacy">“Lost Cause”</a>&nbsp;historians rehabilitated the Confederate vision, claiming the Constitution was a&nbsp;racist document, so that the legend remains today. The United States, writes Hannah‐​Jones, “was founded…as a&nbsp;slavocracy,” and the Constitution “preserved and protected slavery.” This is once more asserted as an uncontroverted fact—and Lincoln’s and Douglass’s refutations of it go unmentioned in the&nbsp;<em>Times</em>.</p> <p>No doubt Taney would be delighted at this acceptance of his thesis. What accounts for it? The myth of a&nbsp;white supremacist founding has always served the emotional needs of many people. For racists, it offers a&nbsp;rationalization for hatred. For others, it offers a&nbsp;vision of the founders as arch‐​villains. Some find it comforting to believe that an evil as colossal as slavery could only be manufactured by diabolically perfect men rather than by quotidian politics and the banality of evil. For still others, it provides a&nbsp;new fable of the fall from Eden, attractive because it implies the possibility of a&nbsp;single act of redemption. If evil entered the world at a&nbsp;single time, by a&nbsp;conscious act, maybe it could be reversed by one conscious revolution.</p> <p>The reality is more complex, more dreadful, and, in some ways, more glorious. After all, slavery was abolished, segregation was overturned, and the struggle today is carried on by people ultimately driven by their commitment to the principle that all men are created equal—the principle articulated at the nation’s birth. It was precisely because millions of Americans have&nbsp;<em>never</em>&nbsp;bought the notion that America was built as a&nbsp;slavocracy—and have had historical grounds for that denial—that they were willing to lay their lives on the line, not only in the 1860s but ever since, to make good on the promissory note of the Declaration.</p> <p>Their efforts raise the question of what counts as the historical “truth” about the American Dream. A&nbsp;nation’s history, after all, occupies a&nbsp;realm between fact and moral commitments. Like a&nbsp;marriage, a&nbsp;constitution, or an ethical concept like “blame,” it encompasses both what actually happened and the philosophical question of what those happenings mean. Slavery certainly happened—but so, too, did the abolitionist movement and the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments. The authors of those amendments viewed them not as changing the Constitution, but as rescuing it from Taney and other mythmakers who had tried to pervert it into a&nbsp;white supremacist document.</p> <p>In fact, it would be more accurate to say that what makes America unique isn’t slavery but the effort to abolish it. Slavery is among the oldest and most ubiquitous of all human institutions; as the&nbsp;<em>Times</em>&nbsp;series’ title indicates, American slavery predated the American Revolution by a&nbsp;century and a&nbsp;half. What’s unique about America is that it alone announced at birth the principle that all men are created equal—and that its people have struggled to realize that principle since then. As a&nbsp;result of their efforts, the Constitution today has much more to do with what happened in 1865 than in 1776, let alone 1619. Nothing could be more worthwhile than learning slavery’s history, and remembering its victims and vanquishers. But to claim that America’s essence is white supremacy is to swallow slavery’s fatal lie.</p> <p>As usual, Lincoln said it best. When the founders wrote of equality, he explained, they knew they had “no power to confer such a&nbsp;boon” at that instant. But that was not their purpose. Instead, they “set up a&nbsp;standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.” That constant labor, in the generations that followed, is the true source of “nearly everything that has truly made America exceptional.”</p> </div> Wed, 21 Aug 2019 09:31:00 -0400 Timothy Sandefur https://www.cato.org/publications/commentary/founders-were-flawed-nation-imperfect-constitution-still-glorious-liberty Speech First v. Fenves https://www.cato.org/publications/legal-briefs/speech-first-v-fenves Matt Miller, Timothy Sandefur, Robert Henneke, Ilya Shapiro, Trevor Burrus <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Speech First is an organization of students and allies founded in 2018 to restore the protections of the First Amendment on college campuses. Its members hold a&nbsp;variety of conservative and libertarian views on topics such as gun rights, racial issues, immigration, and President Trump, many of which are currently unpopular on college campuses. Students attending the University of Texas at Austin who are members of Speech First would like to freely share and discuss their views on campus but are afraid that if they do so they will be disciplined by the university for violating its policies limiting student speech. These policies include speech codes and a “Campus Climate Response Team,” or CCRT, that addresses “bias incidents” on campus. </p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>In order to protect the First Amendment speech rights of its members, Speech First sued the university, arguing that the university’s speech policies are both too broad and too vague to be constitutional. Speech First asked the trial court to grant a&nbsp;preliminary injunction preventing the university from enforcing its policies in violation of students’ First Amendment rights. The trial court not only refused to grant the injunction, it also spontaneously dismissed Speech First’s entire case, claiming that Speech First does not have standing to challenge any of the university’s policies. Standing is the ability of a&nbsp;person or entity to bring a&nbsp;lawsuit, and the trial court held that Speech First must show that the students’ self‐​censorship in the face of the university’s policies must be “objectively reasonable” in order to establish standing. The court held that Speech First did not meet this standard because the university has made declarations claiming that it does not punish students for protected speech. </p> <p>Speech First has appealed the trial court’s denial of a&nbsp;preliminary injunction and its dismissal of Speech First’s case to the Fifth Circuit. Together with the Goldwater Institute and the Texas Public Policy Foundation, Cato has filed a&nbsp;brief in support of Speech First’s appeal. We argue that Speech First has standing to sue because it&nbsp;<em>is</em>&nbsp;objectively reasonable for students with conservative or libertarian opinions to self‐​censor when faced with speech policies like the ones that the university has adopted. Recent incidents at colleges across the country establish that expressing unpopular ideas on campus frequently leads to formal discipline, forced apologies, and the defunding of conservative and libertarian student groups. The consequences for students can be serious, and official university disciplinary actions such as those permitted by the university’s rules can cause long‐​term damage to students’ ability to seek future educational or employment opportunities. </p> <p>Policies like those adopted by the university, combined with a&nbsp;nationwide collegiate trend towards punishing students with unpopular views, create a&nbsp;chilling effect on speech that makes the members of Speech First justifiably afraid to freely express their views. As a&nbsp;public university, the University of Texas at Austin has a&nbsp;constitutional duty to respect and abide by the protections of the First Amendment. Speech First has shown that, in adopting its current speech policies, the university has failed to meet this duty. We urge the Fifth Circuit to recognize that the threat of unconstitutional enforcement of the university’s speech policies makes it objectively reasonable for conservative and libertarian students to self‐​censor, establishing standing for Speech First to protect the First Amendment rights of its members in court.</p> </div> Fri, 16 Aug 2019 16:31:00 -0400 Matt Miller, Timothy Sandefur, Robert Henneke, Ilya Shapiro, Trevor Burrus https://www.cato.org/publications/legal-briefs/speech-first-v-fenves Timothy Sandefur discusses his book, “Frederick Douglass: Self‐​Made Man,” on The Personal Responsibility Lawyer podcast with Michael Lovins https://www.cato.org/multimedia/media-highlights-radio/timothy-sandefur-discusses-book-frederick-douglass-self-made-man Thu, 13 Jun 2019 10:43:00 -0400 Timothy Sandefur https://www.cato.org/multimedia/media-highlights-radio/timothy-sandefur-discusses-book-frederick-douglass-self-made-man Brackeen v. Bernhard https://www.cato.org/publications/legal-briefs/brackeen-v-bernhard Walter Olson, Timothy Sandefur, Ilya Shapiro, Robert Henneke <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>The Indian Child Welfare Act (ICWA) gives tribal governments exceptional power over the fate of children who may or may not be tribal members, so long as they are “eligible” for such membership and have a&nbsp;tribal member as a&nbsp;parent. Although the law was originally intended to prevent the breakup of intact Native American families at the hands of state officials, ICWA now operates to delay or deny children of Native descent placement in otherwise suitable homes because of their race. The law makes it difficult for non‐​Native adults to adopt such children even in circumstances in which approval would otherwise be routine, while sometimes forcing child welfare officials to place abused and neglected children in households in which they are at serious risk of further harm.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Although tribes are legally permitted to use genetic criteria as qualifications for membership, the Fifth Amendment’s Due Process Clause forbids the federal government from discriminating on the basis of race or lineage. Yet ICWA explicitly imposes race‐​based restrictions on foster care and adoption. If Native children cannot be placed with relatives or members of the same tribe, it directs they be placed with “other Indian families” or in “Indian” institutions, regardless of tribe. It thus enforces a&nbsp;further racial classification that is both unusual and suspect, that of the “generic Indian,” one that disregards significant differences between tribes as well as the interests of individual children.</p> <p>While engaging in this improper racial classification, ICWA also removes Native children from the benefit of protections that much of existing law otherwise deems important. For example, many states employ the “best interests of the child” standard, but the federal Bureau of Indian Affairs (BIA) and several state courts have declared that ICWA overrides it. But Congress does not have the constitutional authority to dictate what is in the best interests of all children in a&nbsp;single racial class, let alone to do so in a&nbsp;way that itself promotes racialized outcomes.</p> <p>In addition, tribal courts do not provide all of the same protections available in state and federal courts, and subjecting American citizens living far from Indian country — both children and adoptive parents — to their vagaries, absent some indicia of consent to be thus governed, imperils their rights to due process and equal protection.</p> <p>Similarly, ICWA disregards the longstanding “minimum contacts” rule that forbids judges from reaching across state or tribal borders to decide cases involving parties who lack a&nbsp;sufficient connection to the court’s jurisdiction, with no exception made for genetic ancestry. The Constitution does not contemplate that courts — tribal courts are no exception — will make binding judgments against parties that have no actual contacts or ties to their jurisdiction.</p> <p>Together with the Goldwater Institute and the Texas Public Policy Foundation, Cato has filed an amicus brief in the Fifth Circuit on behalf of parent plaintiffs frustrated in a&nbsp;wish to adopt children of Native descent. We argue that the government may not treat American citizens differently based on whether their genetic ancestry would qualify them for tribal membership. Put simply, Native families are entitled to the same legal protections as families of all other races and lineages. For Congress to impose a&nbsp;racialized and non‐​neutral regime on parents and children is not only unwise and unfair, but unconstitutional.</p> </div> Tue, 05 Feb 2019 14:32:00 -0500 Walter Olson, Timothy Sandefur, Ilya Shapiro, Robert Henneke https://www.cato.org/publications/legal-briefs/brackeen-v-bernhard Jay Schweikert and Timothy Sandefur discuss plea bargaining in America in a Federalist Society-produced video https://www.cato.org/multimedia/media-highlights-tv/jay-schweikert-timothy-sandefur-discuss-plea-bargaining-america Wed, 24 Oct 2018 13:00:00 -0400 Jay Schweikert, Timothy Sandefur https://www.cato.org/multimedia/media-highlights-tv/jay-schweikert-timothy-sandefur-discuss-plea-bargaining-america The Indian Child Welfare Act at 40 https://www.cato.org/multimedia/events/indian-child-welfare-act-40 Timothy Sandefur, Matthew D. McGill, Charles Rothfeld, Walter Olson <p>Passed in 1978, the Indian Child Welfare Act (ICWA) was intended to stop abusive practices by state and federal officials, who often removed Native American children from their families without sufficient justification. But today, ICWA is the subject of litigation in federal and state courts by challengers who argue that it imposes race‐​based restrictions on adoption and makes it harder for state officials to protect Native American children against abuse and neglect. Join us for a&nbsp;discussion of recent developments and upcoming challenges to ICWA, presented by Timothy Sandefur, Vice President for Litigation at the Goldwater Institute and author of&nbsp;<em>Escaping the ICWA Penalty Box</em>; Matthew McGill, attorney for plaintiffs in&nbsp;<em>Brackeen v. Zinke</em>, a&nbsp;major ICWA lawsuit under way in Texas; and Charles Rothfeld, who represented the birth father in the important ICWA case&nbsp;<em>Adoptive Couple v. Baby Girl</em>.</p> Tue, 25 Sep 2018 16:59:00 -0400 Timothy Sandefur, Matthew D. McGill, Charles Rothfeld, Walter Olson https://www.cato.org/multimedia/events/indian-child-welfare-act-40 California Sea Urchin Commission v. Combs https://www.cato.org/publications/legal-briefs/california-sea-urchin-commission-v-combs Ilya Shapiro, Trevor Burrus, Reilly Stephens, Timothy Sandefur <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>In the 1980s, there was concern regarding the endangered sea otter population in California, so Congress passed a&nbsp;law by which a&nbsp;group of otters would be relocated to an island off the coast where they might flourish. Congress was concerned, however, that the relocated otters might cause problems for the fishermen who made their living in those same waters, and so the legislation mandated that the agency in charge set up a&nbsp;management zone which would prevent the otters from damaging the fisheries. It also gave legal protection to well‐​meaning fishermen who accidentally caused the death of a&nbsp;sea otter—an accident which would otherwise have grave consequences under the Endangered Species Act.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>The otters flourished, the fisheries were protected, and everything worked well enough for the next few decades—until some environmental groups convinced the federal government to remove the fisheries’ protections. Congress had balanced the interests at stake when crafting the legislation, but now the feds considered that balance inconvenient. The agency rescinded the fisheries’ regulation, yet left the otters in their new home. A&nbsp;number of groups that depend on the fisheries were nonplussed by this change, and filed a&nbsp;lawsuit.</p> <p>Under existing Supreme Court precedent, when agencies interpret the statutes for which they are responsible, courts grant them what is known as&nbsp;<em>Chevron</em>&nbsp;deference. This framework has two steps: first, the court asks whether the language of the statute is ambiguous; if it is, the court then asks whether the agency’s interpretation is anything but “arbitrary and capricious.” In other words, the agency doesn’t have to be right, but it can’t be crazy. But this framework is predicated on a&nbsp;text that the court can examine to judge the clarity or lack thereof. Here the statute says nothing about the circumstances whereby the fisheries protection can be rescinded; it says only that the agency must issue it.</p> <p>The U.S. Court of Appeals for the Ninth Circuit didn’t care about the legal niceties. It declared that&nbsp;<em>Chevron</em>&nbsp;applies not only to unclear congressional commands, but to congressional silence. If the statute doesn’t say the agency&nbsp;<em>can’t</em>&nbsp;do something, they court will defer to the agency’ judgement as long as it is a “reasonable policy choice.” The plaintiffs have now filed a&nbsp;petition asking the Supreme Court to take up their case and reject the extension of&nbsp;<em>Chevron</em>&nbsp;from mere ambiguity to silence.</p> <p>The Cato Institute, joined by the Goldwater Institute and Cause of Action Institute, filed a&nbsp;brief in support of the petition. We argue that Congress alone has authority to authorize federal action. If there is no express grant of authority, then the agency is by definition not empowered to act. Allowing agencies to make up their own rules anytime Congress has neglected to preempt them would run afoul of the principles of “nondelegation,” a&nbsp;constitutional doctrine that holds that it is Congress that legislates, not the executive branch. We urge the Court to take up the case and put a&nbsp;stop to this perfunctory rubber‐​stamping of the unaccountable administrative state.</p> </div> Thu, 05 Jul 2018 09:37:00 -0400 Ilya Shapiro, Trevor Burrus, Reilly Stephens, Timothy Sandefur https://www.cato.org/publications/legal-briefs/california-sea-urchin-commission-v-combs Chapter 3 from Frederick Douglass: Self Made Man https://www.cato.org/multimedia/cato-out-loud/chapter-3-frederick-douglass-self-made-man Timothy Sandefur <p>Chapter 3&nbsp;from <em><a href="https://store.cato.org/book/frederick-douglass">Frederick Douglass: Self‐​Made Man</a></em>.</p> Thu, 31 May 2018 12:06:00 -0400 Timothy Sandefur https://www.cato.org/multimedia/cato-out-loud/chapter-3-frederick-douglass-self-made-man Timothy Sandefur on the libertarian legacy of Frederick Douglass https://www.cato.org/multimedia/cato-audio/timothy-sandefur-libertarian-legacy-frederick-douglass Sun, 01 Apr 2018 03:00:00 -0400 Timothy Sandefur https://www.cato.org/multimedia/cato-audio/timothy-sandefur-libertarian-legacy-frederick-douglass Was Frederick Douglass a Libertarian? https://www.cato.org/blog/was-frederick-douglass-libertarian Timothy Sandefur <p>Nicholas Buccola—one of the nation’s leading scholars of Frederick Douglass—has <a href="https://www.nytimes.com/2018/03/12/opinion/frederick-douglass-chains.html">a piece</a> in the <em>New York Times</em> blog “The Stone” in which he challenges my classification of Frederick Douglass as a libertarian. Now, as <a href="https://ricochet.com/498695/frederick-douglass-man/">I argued</a> on <em>Ricochet</em> recently, there’s a point at which any such effort at classification is rather silly: it’s more important to understand the substance of what Douglass stood for than to label it. Also, any effort to classify the man as “libertarian” or “conservative” or “progressive” or whatever will depend on us defining these terms—and such definitions are complex and contentious. Another complication is the fact that there are disagreements within these groups. Randy Barnett for example, <a href="https://www.wsj.com/articles/SB118463507387568429">pointed out in 2007</a> that libertarians don’t always agree on the practical application even of the principles that they share, even on major controversies. And then there’s the fact that many of those who call themselves libertarians actually aren’t.&#13;<br /> &#13;<br /> On the other hand, the beginning of wisdom is calling things by their right names. And classifying—well, it’s just what scholars do. So how should we label Douglass?&#13;<br /> &#13;</p> <p>It’s probably best to define our terms in basic principles. What’s distinctive about the libertarian or classical liberal tradition is its overriding emphasis on the rights of the individual, as opposed to the purported “rights” of society or the state. The classical liberal begins with the idea that the individual is fundamentally entitled to freedom—to live his or her life without coercion from others. People create governments to protect them against coercion, so that they can lead their lives as they choose—and the government is therefore their servant, not their master. Libertarians apply this principle to both “economic” and “social” matters: people should be as free to run a business as they should to choose their own spouses.&#13;<br /> &#13;<br /> Today’s conservatism and liberalism share some of these views in some ways, but also reject them in others. Conservatives hold that society is something that needs preservation<em> per se</em>—that it has its own just claims to survival and security—and that the individual’s rights can be curtailed to accomplish that. Today’s liberals believe that “social justice” requires the state to intervene and rearrange cultural habits and social patterns and individual rights in order to accomplish broader economic and social equality. (I’m trying to be generous, here.) And, as with libertarians, there’s a lot of debate within these groups, too, both about the merits of these values and how they should be applied.&#13;<br /> &#13;<br /> Of these three, Douglass fits most comfortably <em>by far </em>into the classical liberal or libertarian category. He believed quite clearly that the individual is the sole bearer of rights, and that the government exists to protect those rights. In the messy and complicated aftermath of the Civil War, of course, it was never entirely clear how to apply these principles. But it is clear that he was not what we today would call either conservative or liberal. He did not believe in today’s “social justice” theories—he would have had nothing but scorn for the notions of “privilege theory” or “cultural appropriation” or the idea that inequalities in society are the result of social injustices instead of individual choice. His emphasis on self-reliance, on the values of individual initiative, and the possibility of personal success in a free society, make that clear. And he was certainly no conservative. He married a white woman in 1884, and was a lifelong feminist.&#13;<br /> &#13;<br /> Buccola objects to my classifying him as libertarian because Douglass came to reject his earlier belief in non-intervention and to hold that the slaves would have been better off if the government had engaged in a program of redistribution and social control. “Douglass certainly believed that it was important to protect individuals from unjust interference,” but, at least later in life, “he did not believe this was sufficient to make human beings free.”&#13;<br /> &#13;<br /> There’s truth to this. But the context matters a lot. Douglass was speaking of people who themselves had actually been enslaved, largely as a result of government intervention. Even the strictest <em>laissez-faire </em>libertarian would have little objection to the government restoring gains that it wrongfully seized to begin with. What Douglass did not believe, however, even late in life, is that government should be in the perpetual business of rearranging society in the service of “social justice.” In 1883, after the Supreme Court gutted the 1875 Civil Rights Act in the <em>Civil Rights Cases</em>, for example, Douglass took to the podium to denounce the decision as a betrayal of the Union cause. And yet, he also made a point of rejecting the idea that the government should devote itself to, in Buccola’s words, “counteracting the power of economic elites.” The government was obligated to protect civil rights in the south, Douglass told the audience—but it should not be in the business of seeking to enforce “social equality.” In other words, government should prohibit discrimination in places of public accommodation—but not violate property rights by forcing people to accept each other as equals on a personal basis. “Equality, social equality, is a matter between individuals. It is a reciprocal understanding.” While he despised racism, he respected the individual rights of racists. (And this speech, too, he saw fit to reprint in his memoirs.)&#13;<br /> &#13;<br /> But there’s a more important point here: Douglass did believe that “freedom as noninterference” wasn’t enough—and libertarians agree with that. Social institutions are critical to enabling people to make the most of their lives. Civil society institutions—charities, scholarly associations, community organizations, social clubs—are all essential in a free society, as <em>every</em> libertarian, from Friedman to Hayek to Rand, has emphasized. The only dispute is whether these institutions should be operated by the government or by private initiative. Libertarians argue—I think persuasively—that they work better, more justly, more effectively, if run privately than by the state. And one might argue that the experience of the Freedmen’s Bureau is good proof of that. But the idea that libertarians think that noninterference <em>alone</em> is enough is really a simplistic caricature of libertarian thought.&#13;<br /> &#13;<br /> And that opens another layer of complexity. Real life is far messier than the abstractions of any political theory, and particularly in the wake of a catastrophe like the Civil War and the collapse of Reconstruction. The advent of sharecropping and the peonage laws in the south show how racial oppression was produced by an interaction of private prejudice and government interference—which built a chain that could not easily be dissolved by applying the acid of any philosophical ideas in their purest forms. Like all people of good conscience, Douglass struggled with these questions, often torn between the temptation toward government intervention and the fact that respecting people’s freedom means they’ll often make bad choices. Another good example of this is prohibition of alcohol—a proposition Douglass opposed virtually all his life, despite being strongly opposed to drinking. There’s some evidence (I think rather vague) that he came to embrace prohibition late in life, but if so, it was only reluctantly.&#13;<br /> &#13;<br /> I make clear in <a href="https://www.amazon.com/Frederick-Douglass-Self-Made-Timothy-Sandefur/dp/1944424857">my book</a> that Douglass wasn’t a “pure” libertarian—if that term means anything. Indeed, his rejection of the “state action doctrine” in his speech on the <em>Civil Rights Cases</em> is quite un-libertarian. But even with these factors considered, I think it’s false to say that Douglass abandoned his belief in “freedom as noninterference.” There is no evidence of his thinking that government should redistribute wealth indefinitely to accomplish lasting economic equality. He certainly did not believe in anything like a regulatory welfare state. He was a radical individualist, who, even when he did think government should intervene, confined that to removing the weights that had been imposed upon them, so that they could achieve their own individual goals.&#13;<br /> &#13;<br /> Over a public career that lasted a half-century, Douglass took many directions, but the overriding theme of his thought was that all people are created equal, with an inalienable right to their own lives, their own liberties, and the pursuit of their own happiness, without interference from others or obstruction from the state. And I think the best label for that is libertarian.&#13;<br /> &#13;<br /> [<a href="https://indefenseofliberty.blog/2018/03/12/was-frederick-douglass-a-libertarian/">Cross-posted from In Defense of Liberty</a>]</p> <p></p> Mon, 12 Mar 2018 18:34:00 -0400 Timothy Sandefur https://www.cato.org/blog/was-frederick-douglass-libertarian Frederick Douglass Was His Own Man https://www.cato.org/publications/commentary/frederick-douglass-was-own-man Timothy Sandefur <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p>Whom does Frederick Douglass belong to? The question suggests its own answer: Douglass belonged to himself, having escaped from slavery at the age of 20 and vindicating his right to freedom for the remainder of his long life. He was not someone else’s man, but his own: he was a&nbsp;free individual.</p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>In today’s culture wars, unfortunately, that’s not quite enough. Pervasive identity politics and fashionable “social justice” concepts, including the insidious notion of “appropriation,” have transformed American history and culture into a&nbsp;battle zone defined by political lines. And even worse, those lines are drawn in the most naïve and simplistic manner — in terms of partisanship where nobody but Republicans and Democrats are even acknowledged to exist.</p> <p></p> </div> , <aside class="aside--right aside pb-lg-0 pt-lg-2"> <div class="pullquote pullquote--default"> <div class="pullquote__content h2"> <p>Douglass was a&nbsp;classical liberal — today called a&nbsp;libertarian — who believed that government’s proper role was to free people to pursue happiness on their own terms.</p> </div> </div> </aside> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>A good example of this cartoonish partisanship appeared in the New York Times recently, when Yale professor David Blight&nbsp;<a target="_blank" href="https://www.nytimes.com/2018/02/13/opinion/right-coopts-frederick-douglass.html">condemned</a>&nbsp;my&nbsp;<a target="_blank" href="https://www.amazon.com/Frederick-Douglass-Self-Made-Timothy-Sandefur/dp/1944424857">new biography</a>&nbsp;of Frederick Douglass for seeking to “co‐​opt” Douglass and for “cherry-pick[ing] his words to advance [my] narrow vision of libertarianism.” This is wrong, Blight insists, because Douglass was not really the individualist that he himself claimed to be. “Without many people,” writes Blight, “especially women (his grandmother, two wives, a&nbsp;daughter and countless abolitionist women who supported his career) as well as male mentors, both white and black, he would not have survived and become Douglass.”</p> <p>That’s certainly true, and Douglass often said so. In his famous celebration of&nbsp;<a target="_blank" href="http://monadnock.net/douglass/self-made-men.html">“Self‐​Made Men”</a>&nbsp;— his most popular lecture, and one he delivered scores of times in the last half of his life — Douglass began by noting that “Properly speaking, there are in the world no such men as self‐​made men.… It must in truth be said, though it may not accord well with self‐​conscious individuality and self‐​conceit, that no possible native force of character, and no depth of wealth and originality, can lift a&nbsp;man into absolute independence of his fellowmen.”</p> <p>Yet Douglass also saw that this did not vitiate the honor of those distinctive individuals who overcome obstacles and make something special of themselves without having the advantages of birth and wealth. These were the “self‐​made men” that Douglass defined as people “who are not brought up but who are obliged to come up…[who] are in a&nbsp;peculiar sense, indebted to themselves for themselves.… If they have ascended high, they have built their own ladder.”</p> <p>A fierce individualist, Douglass emphasized that nothing could give people freedom—they had to claim it for themselves, and they had to do it through “WORK! WORK!! WORK!!! WORK!!!! Not transient and fitful effort, but patient, enduring, honest, unremitting and indefatigable work into which the whole heart is put.” Aid societies, charities, benevolent associations, all were critically important, of course — but in the end, it was the individual person himself (or herself; Douglass was a&nbsp;lifelong feminist) who made, demanded, and created his own freedom. As for government, it existed to defend individual rights — to protect people against crime and oppression. But it did not exist, as Blight would have it, “to free people” through some sort of permanent welfare state apparatus. To make any group of Americans into recipients of government largesse—let alone to make them wards of the state—was a&nbsp;recipe for disaster in Douglass’s mind, because what can be given can be just as easily taken away.</p> <p>That’s why, when Douglass worked to recruit freedmen and black northerners into the Union Army during the Civil War, he virtually never argued that they were obliged to serve the state, or that they owed it as a&nbsp;sacrifice to the government. On the contrary, he emphasized time and again that black Americans should enlist for their own sake: “Decried and derided as you have been and still are,” he told them, “you need an act of this kind by which to recover your own self‐​respect.” To be a&nbsp;free person required self‐​reliance and pride, and that meant the very opposite of the government “freeing people.” It meant people freeing themselves.</p> <p>“In regard to the colored people, there is always more that is benevolent, I&nbsp;perceive, than just, manifested towards us,” Douglass told an audience shortly before the war’s end:</p> </div> , <blockquote class="blockquote"> <div> <p>What I&nbsp;ask for the negro is not benevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us.… I&nbsp;have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm‐​eaten at the core, if they are early ripe and disposed to fall, let them fall! I&nbsp;am not for tying or fastening them on the tree in any way, except by nature’s plan, and if they will not stay there, let them fall. And if the negro cannot stand on his own legs, let him fall also. All I&nbsp;ask is, give him a&nbsp;chance to stand on his own legs…! If the negro cannot live by the line of eternal justice … the fault will not be yours, it will be his who made the negro.… Let him live or die by that. If you will only untie his hands, and give him a&nbsp;chance, I&nbsp;think he will live.</p> </div> </blockquote> <cite> </cite> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p>Of course, Douglass was not so foolish to think that simply unlocking the slaves’ chains would be enough. “It is not fair play to start the negro out in life, from nothing and with nothing,” he said. Even if the American people were to “put a&nbsp;schoolhouse in every valley in the south and a&nbsp;church on every hillside,” they “would not have given fair play.” Douglass, therefore, supported the work of the Freedmen’s Bureau and the Freedmen’s Bank (of which he briefly served as President) in efforts to help former slaves get a&nbsp;start in life.</p> <p>But reparations for the slaves themselves and federal efforts to remedy the injustices that had been imposed by southern state governments in the ages before Emancipation hardly translates into a&nbsp;belief in long‐​term government “help” or the modern regulatory welfare state. Fundamentally an individualist, Douglass’s most persistent message that each person must assert, earn, and claim his or her position in life. “There can be no independence without a&nbsp;large share of self‐​dependence, and this virtue cannot be bestowed,” he declared. “It must be developed from within.”</p> <p>This was also why Douglass rejected socialism — then a&nbsp;fashionable new idea circulating in Europe and America. Douglass’s first biographer, Frederic May Holland,&nbsp;<a target="_blank" href="http://docsouth.unc.edu/neh/holland/holland.html">explained</a>&nbsp;in the 1890s that socialism was doomed because there were only two reasons people would ever work—to earn more, or to escape punishment—and because socialism eliminated the first possibility, the only consequence one could expect from socialism on a&nbsp;national scale would be a&nbsp;system of punishment that “would necessarily resemble slavery, in all its cruelties as well as its privations.” (Douglass applauded Holland’s biography, saying it did him “scrupulous justice.”)</p> <p>In summarizing these ideas, I&nbsp;wrote in my book that Douglass “was not likely to be attracted to any doctrine that subordinated individual rights — whether free speech or property rights — to the interests of the collective.” Blight misrepresented these words in his article, accusing me of saying that Douglass was “never concerned with ‘the interests of the collective.’” But as Douglass’s life vividly demonstrates, one can certainly be concerned with the interests of one’s fellow citizens without believing it proper to sacrifice one’s rights to their needs or desires. As&nbsp;<a target="_blank" href="https://ariarmstrong.com/2018/02/frederick-douglass-and-the-meaning-of-individualism/">Ari Armstrong writes</a>, the fact that “individuals can have interests in common” does not mean, as Blight implies, that “‘collective’ interests … somehow transcend the interests of individuals.” Douglass spent more than 50&nbsp;years writing, speaking, and agitating for the rights of all Americans, of all races and sexes—including the right to vote, to own property, to publish their opinions, to own firearms for self‐​defense, and to earn a&nbsp;living free from government restrictions. Yet the notion that the individual’s life should be&nbsp;<em>subordinated</em>&nbsp;to the needs, wishes, or commands of others, was anathema to him.</p> <p>Douglass, therefore, does not fit within today’s blinkered two‐​party worldview. He stood on a&nbsp;level of principle that is far removed from either major party today—both of which support massive government programs to “help” some people with money taken from others, to seize the belongings of some groups to give to different groups, to restrict one form of speech or another, and to regulate and restrict personal and economic freedom far beyond what was imaginable in Douglass’s own lifetime. Douglass was a&nbsp;classical liberal — today called a&nbsp;libertarian — who believed that government’s proper role was to free people to pursue happiness on their own terms. The fact that these principles are incomprehensible to Yale professors today says more about us than about them.</p> <p>A bold defender of personal independence, Frederick Douglass doesn’t “belong” to any party or either side of today’s tedious clashes of identity politics. He was his own man. And the lesson he teaches is that the same is also true of each of us.</p> </div> Tue, 27 Feb 2018 08:52:00 -0500 Timothy Sandefur https://www.cato.org/publications/commentary/frederick-douglass-was-own-man Frederick Douglass: Self‐​Made Man https://www.cato.org/multimedia/cato-daily-podcast/frederick-douglass-self-made-man Timothy Sandefur, Caleb O. Brown <p>It’s difficult to overestimate what Frederick Douglass overcame to become one of the greatest advocates for liberty in the 19th century. Timothy Sandefur is author of the new Cato book,&nbsp;<a href="https://store.cato.org/book/frederick-douglass"><em>Frederick Douglass: Self‐​Made Man</em></a>.</p> Wed, 14 Feb 2018 03:00:00 -0500 Timothy Sandefur, Caleb O. Brown https://www.cato.org/multimedia/cato-daily-podcast/frederick-douglass-self-made-man Frederick Douglass: Self‐​Made Man https://www.cato.org/multimedia/events/frederick-douglass-self-made-man Timothy Sandefur, Juan Williams, Jonathan Blanks, Roger Pilon <p>Born into slavery in 1818, Frederick Douglass rose to become one of the nation’s foremost intellectuals—a statesman, author, lecturer, and scholar who helped lead the fight against slavery and racial oppression. But unlike some other prominent abolitionists, Douglass embraced the U.S. Constitution, insisting that it was essentially an anti‐​slavery document and that its guarantees for individual rights belonged to all Americans, of all races. Further, in his most popular lecture, “Self‐​Made Men,” Douglass spoke of people who rise through their own efforts and devotion rather than through circumstances of privilege. As the nation pauses to remember him on his bicentennial, <em>Frederick Douglass: Self‐​Made Man</em> takes a&nbsp;fresh look at his remarkable life and ideas and the enduring principles of equality and liberty. Weaving together history, politics, and philosophy, this new biography illuminates Douglass’s immense scholarship with his personal experiences. Please join us as we discuss how Douglass’s legacy continues to inspire today.</p> Thu, 08 Feb 2018 11:38:00 -0500 Timothy Sandefur, Juan Williams, Jonathan Blanks, Roger Pilon https://www.cato.org/multimedia/events/frederick-douglass-self-made-man Timothy Sandefur discusses stopping unfair taxation in Arizona in a Goldwater Institute produced video https://www.cato.org/multimedia/media-highlights-tv/timothy-sandefur-discusses-stopping-unfair-taxation-arizona-goldwater Fri, 12 Jan 2018 12:01:00 -0500 Timothy Sandefur https://www.cato.org/multimedia/media-highlights-tv/timothy-sandefur-discusses-stopping-unfair-taxation-arizona-goldwater Suffer the Little Children https://www.cato.org/regulation/winter-20172018/suffer-little-children Wed, 13 Dec 2017 17:20:00 -0500 Timothy Sandefur https://www.cato.org/regulation/winter-20172018/suffer-little-children Timothy Sandefur discusses the Indian Child Welfare Act in a Goldwater Institute produced video https://www.cato.org/multimedia/media-highlights-tv/timothy-sandefur-discusses-indian-child-welfare-act-goldwater Fri, 03 Nov 2017 11:43:00 -0400 Timothy Sandefur https://www.cato.org/multimedia/media-highlights-tv/timothy-sandefur-discusses-indian-child-welfare-act-goldwater Libertarians’ Legal Influence https://www.cato.org/policy-report/julyaugust-2017/libertarians-legal-influence Roger Pilon, Jonathan H. Adler, Timothy Sandefur <div class="lead mb-3 spacer--nomargin--last-child text-default"> <p><em>In the past 40&nbsp;years, has the legal landscape changed for the better? Cato’s <strong>Roger Pilon</strong>, Case Western Reserve’s <strong>Jonathan H. Adler</strong>, and the Goldwater Institute’s <strong>Timothy Sandefur</strong> shared some thoughts on the rise of libertarian perspectives in law.</em></p> </div> , <div class="mb-3 spacer--nomargin--last-child text-default"> <p> </p><div data-embed-button="image" data-entity-embed-display="view_mode:media.full" data-entity-type="media" data-entity-uuid="3123805f-b222-4ee4-a0f4-85e696a32906" class="align-right embedded-entity" data-langcode="en"> <img width="300" height="200" alt="Media Name: cpr-v39n4-pilon.jpg" class="lozad component-image lozad" loading="lazy" data-srcset="/sites/cato.org/files/styles/pubs/public/images/cpr-v39n4/cpr-v39n4-pilon.jpg?itok=ixBjXsPe 1x, /sites/cato.org/files/styles/pubs_2x/public/images/cpr-v39n4/cpr-v39n4-pilon.jpg?itok=LCpXjc4O 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/images/cpr-v39n4/cpr-v39n4-pilon.jpg?itok=ixBjXsPe" typeof="Image" /></div> <strong>ROGER PILON:</strong> In 1983, when I was in the Reagan administration, I called up Jim Dorn and suggested that Cato put together a conference on economic liberties and the judiciary. He set up a lunch for the two of us and Ed Crane, and on the back of a paper napkin I sketched the program for that conference. A year later, Cato ran it. It opened with a scintillating debate between then-Judge Antonin Scalia and Chicago Law Professor Richard Epstein over the proper role of the courts in protecting economic liberty. The fur flew. A year later the American Enterprise Institute published the debate as a pamphlet. Cato published the whole conference in the <em>Cato Journal</em>. And George Mason University republished the proceedings after that, with a foreword by Judge Alex Kozinski. That was Washington’s introduction to the idea that there is a third school between the two then-dominant schools: liberal judicial activism and conservative judicial restraint. And the idea took off from there, culminating in the creation of Cato’s Center for Constitutional Studies in early 1989. Since then, we have worked to gradually change the debate. Indeed, in the past two decades it’s the liberal camp that’s calling conservative justices “judicial activists.” Yet what we’ve been urging is not the old liberal judicial activism, but judicial engagement — enforcing the Constitution’s doctrine of enumerated powers on one hand, and securing rights, both enumerated and unenumerated, on the other hand. In other words, let’s start to restore the Madisonian Constitution. And I’m very happy to say that when you look at the debate today, judges are much more conversant with this approach to the Constitution than they were 30 and 40 years ago. It takes time. <p><strong>JONATHAN H. ADLER:</strong> The problem of ideological uniformity still manifests itself in legal scholarship. Not only did most legal academics not agree with the challenges to the Affordable Care Act, I think it’s fair to say most legal academics didn’t <em>understand</em> the challenges to the Affordable Care Act, didn’t understand why a mandate to purchase insurance was qualitatively different than the other sorts of things the Supreme Court had allowed under the Commerce Clause. That continues to be a problem, although I think it’s a problem that is declining. The good news is that libertarian ideas have an increasing influence in a large number of areas of law. The volume of scholarship that takes either explicitly or implicitly a libertarian point of view, or merely accepts libertarian premises, whether to support them or to challenge them, has increased over time both in volume and in influence. This began in many respects with the law and economics movement, when many scholars across the political spectrum recognized that economic analysis of law is very powerful. In certain areas, antitrust being the best example, this led to changes in our understanding of economic organization and not only influenced scholarship but also ended up influencing courts as well. We’re beginning to see something similar in what’s referred to as institutional economics, and a greater understanding of the way property-based institutions and private ordering allow people alone and in groups to solve problems that we might otherwise turn to government to address. Certainly originalist scholarship is hugely important these days and has expanded dramatically. It used to be that originalism was nothing more than a basis to criticize the Warren Court. It is now a really robust area of research, and is being engaged with across the political spectrum. There is now even a group of progressive scholars who characterize themselves as “originalists,” who recognize that in a constitutional debate, whether one likes the idea of the original public meaning or not, it is something that one has to engage with. We can debate whether the original public meaning of the Constitution is perfectly libertarian, but it’s certainly more libertarian than what we have now, and so an active debate on originalism is very positive.</p> <p> </p><div data-embed-button="image" data-entity-embed-display="view_mode:media.full" data-entity-type="media" data-entity-uuid="1e7a7584-6606-48c2-9bd4-6b038b458832" class="align-right embedded-entity" data-langcode="en"> <img width="663" height="968" alt="Media Name: cpr-v39n4-sandefur.jpg" class="lozad component-image lozad" loading="lazy" data-srcset="/sites/cato.org/files/styles/pubs/public/images/cpr-v39n4/cpr-v39n4-sandefur.jpg?itok=sCj4vdV1 1x, /sites/cato.org/files/styles/pubs_2x/public/images/cpr-v39n4/cpr-v39n4-sandefur.jpg?itok=1oDtoVoX 1.5x" data-src="/sites/cato.org/files/styles/pubs/public/images/cpr-v39n4/cpr-v39n4-sandefur.jpg?itok=sCj4vdV1" typeof="Image" /></div> <strong>TIMOTHY SANDEFUR:</strong> In his 2008 book <em>The Rise of the Conservative Legal Movement</em>, Steven Teles divides the history of litigation in defense of constitutional freedoms into basically two stages. The first stage began in 1973 with the creation of the Pacific Legal Foundation, which was the first of the libertarian/conservative public interest legal foundations to be created. The story goes that then-governor Ronald Reagan was frustrated by the ACLU and other groups opposing his welfare reforms, and he expressed his frustration to some of his staff members who were lawyers, and they said, “Well, why don’t we start our own version that would be litigating in defense of economic freedom and property rights?” So they founded the Pacific Legal Foundation. And similar groups followed after that. The second stage, according to Teles, begins in the early ’90s with the foundation of the Institute for Justice. And what made their approach unique was a focus on humanizing these issues, on storytelling, on demonstrating how abstract constitutional matters affect ordinary people in their daily lives. And that really was revolutionary in this field. <p>I think, in fact, the first generation of organizations has learned a lot from that second generation. On the other hand, it’s been said that law is the trailing edge of culture, and I think that’s very true. Lawyers can come in and litigate a case, and they can win it, but it takes a lot of work in the trenches — journalists and social scientists and theorists and scholars — they have to lay the groundwork for successful litigation to really make a big difference. I think what we’ve accomplished in the second generation, which we owe largely to people like Chip Mellor, John Kramer, and Clint Bolick, is teaching people these stories, but what we owe to Cato is building that theoretical base. We’ve raised a new generation of young lawyers who are rethinking the post– New Deal orthodoxy, and we’re starting to see them advance to the next stage in the legal profession, so in that sense, I’m very optimistic in the long run. In fact, we in Arizona just saw Clint Bolick get appointed to the Arizona Supreme Court (thus vacating the office that I now occupy) — so I think we’re going to see a lot more progress in the future.</p> </div> Fri, 18 Aug 2017 10:32:00 -0400 Roger Pilon, Jonathan H. Adler, Timothy Sandefur https://www.cato.org/policy-report/julyaugust-2017/libertarians-legal-influence Cato’s 40th Anniversary Celebration: The Growth and Future of the Libertarian Legal Movement https://www.cato.org/multimedia/multimedia/growth-future-libertarian-legal-movement Sat, 06 May 2017 17:18:00 -0400 Jonathan H. Adler, Timothy Sandefur, Ilya Shapiro, Roger Pilon https://www.cato.org/multimedia/multimedia/growth-future-libertarian-legal-movement