Reason Magazine - Staff > Damon W. Root > Hit & Run Posts

Freedom of Speech (Just Watch What You Say)

droot@reason.com (Damon W. Root) — Mon, 01 Dec 2008 18:25:00 EST

Neil Gaiman, the acclaimed author of Sandman, American Gods, and many other superb works of fantastic fiction, has a very long and very good post at his blog on why defending freedom of speech sometimes means "defending the right of people to read, or to write, or to say, what you don't say or like or want said." He's writing in response to the case of Christopher Handley, an Iowa man facing up to 20 years in prison for possessing comic books that allegedly depict minors engaged in sexual activity. These aren't photographs, it's worth repeating, they're illustrations. Here's Gaiman:

When I was writing Sandman, about eighteen years ago, I had thought that the Marquis de Sade would make a fine character for my French Revolution story (I loved the fact that at the time he was a tubby, asthmatic imprisoned for his refusal to sentence people to death) and realised I ought to read his books, rather than commntaries on them, if I was going to put him in my story. I discovered that the works of DeSade were, at that time, considered obscene and not available in the UK, and that UK Customs had declared them un-importable. I bought them in a Borders the next time I was in the US, and brought them through customs looking guilty. (You can now get De Sade in the UK. The arrival of internet porn in the UK meant that the police stopped chasing things like that.)

[...]

Freedom to write, freedom to read, freedom to own material that you believe is worth defending means you're going to have to stand up for stuff you don't believe is worth defending, even stuff you find actively distasteful, because laws are big blunt instruments that do not differentiate between what you like and what you don't, because prosecutors are humans and bear grudges and fight for re-election, because one person's obscenity is another person's art.

Because if you don't stand up for the stuff you don't like, when they come for the stuff you do like, you've already lost.

Whole thing here. reason on the panic over virtual porn here and here.

Mutual Aid, Private Property, and Armed Self-Defense

droot@reason.com (Damon W. Root) — Tue, 25 Nov 2008 13:13:00 EST

George Leef, vice president for research at the John William Pope Center for Higher Education Policy, has a very good summary of several recent talks given by historian David Beito on the topic of "Black Fraternal Societies, Mutual Aid, and Civil Rights," drawn largely from Beito's wonderful book From Mutual Aid to the Welfare State. Here's Leef:

Another very important group was the Knights and Daughters of Tabor, founded by ex-slaves in the late 19th century. Among other accomplishments, this group established a hospital that opened in Mound City, Mississippi, in 1942. The doctors and staff were black. They provided good medical care for people who would not be admitted at other hospitals. Taborian members could purchase medical insurance for $8 per year in 1942, entitling them to up to 30 days of hospital care.

The chief surgeon at the Taborian hospital was Dr. T. R. M. Howard, who was not only an accomplished doctor, but also a remarkably successful businessman. By the early 1950s, he had begun numerous businesses in Mississippi and built the first swimming pool for blacks and had even started a zoo. In 1951 Howard formed the Regional Council of Negro Leadership with the goal of promoting thrift, entrepreneurship, equal treatment under the law, and voting rights. Beito comments that Howard's approach combined that of Booker T. Washington (who was primarily oriented toward success through the free market) and of W.E. B. DuBois, who advocated more emphasis on politics.

Howard's group held a very large rally each summer, drawing thousands of supporters. The rallies were in rural areas of Mississippi where violence by the Klan would certainly have been possible. There never was any, however, because Howard made sure to post armed guards all around. Howard himself usually went around armed and his home was an arsenal. Two crucial elements in Howard's success: the freedom to acquire and profitably use property, and the right to defend himself.

Whole thing here. Beito's classic reason article on "the dangerous fallacies of Confederate multiculturalism" here.

The More Things Change

droot@reason.com (Damon W. Root) — Mon, 24 Nov 2008 10:07:00 EST

The Nation's Christopher Hayes is none too happy with President-elect Barack Obama's cabinet picks:

Not a single, solitary, actual dyed-in-the-wool progressive has, as far as I can tell, even been mentioned for a position in the new administration. Not one.

Does this mean the honeymoon is over already? Or maybe Obama just figured out what's wrong with calling yourself a progressive.

Eric Holder and the Second Amendment

droot@reason.com (Damon W. Root) — Fri, 21 Nov 2008 11:08:00 EST

Gun rights scholar and reason contributor David Kopel has an excellent post at the Volokh Conspiracy detailing future Attorney General Eric Holder's lousy and troubling record on the Second Amendment:

As Deputy Attorney General, Holder was a strong supporter of restrictive gun control. He advocated federal licensing of handgun owners, a three day waiting period on handgun sales, rationing handgun sales to no more than one per month, banning possession of handguns and so-called "assault weapons" (cosmetically incorrect guns) by anyone under age of 21, a gun show restriction bill that would have given the federal government the power to shut down all gun shows, national gun registration, and mandatory prison sentences for trivial offenses (e.g., giving your son an heirloom handgun for Christmas, if he were two weeks shy of his 21st birthday). He also promoted the factoid that "Every day that goes by, about 12, 13 more children in this country die from gun violence"--a statistic is true only if one counts 18-year-old gangsters who shoot each other as "children."(Sources: Holder testimony before House Judiciary Committee, Subcommitee on Crime, May 27,1999; Holder Weekly Briefing, May 20, 2000. One of the bills that Holder endorsed is detailed in my 1999 Issue Paper "Unfair and Unconstitutional.")

After 9/11, he penned a Washington Post op-ed, "Keeping Guns Away From Terrorists" arguing that a new law should give "the Bureau of Alcohol, Tobacco and Firearms a record of every firearm sale." He also stated that prospective gun buyers should be checked against the secret "watch lists" compiled by various government entities. (In an Issue Paper on the watch list proposal, I quote a FBI spokesman stating that there is no cause to deny gun ownership to someone simply because she is on the FBI list.)

After the D.C. Circuit Court of Appeals ruled that the D.C. handgun ban and self-defense ban were unconstitutional in 2007, Holder complained that the decision "opens the door to more people having more access to guns and putting guns on the streets."

Whole thing here. Kopel's reason archives here.

Still Waiting for that Hope and Change

droot@reason.com (Damon W. Root) — Wed, 19 Nov 2008 17:15:00 EST

As reason's Jacob Sullum, David Weigel, and Shikha Dalmia have all noted, President-elect Barack Obama's selection of Eric Holder as the next attorney general doesn't bode well for civil liberties or drug policy reform. Over at The Nation, John Nichols adds his voice to the chorus of disapproval:

Quick! Name the veteran Department of Justice insider who, shortly after the USA Patriot Act was signed into law and at a point when the Bush administration was proposing to further erode barriers to governmental abuses, argued that dissenters should not be tolerated?

Who invoked September 11, explicitly referencing "the World Trade Center aflame," in calling for the firing of any "petty bureaucrat" who might suggest that proper procedures be followed and that the separation of powers be respected?

John Ashcroft? No.

Alberto Gonzales? No.

It was Eric Holder, the man who has reportedly been selected by President-elect Barack Obama to serve as the next Attorney General of the United States.

Whole thing here.

"We don't say it all that often, but President Bush is right"

droot@reason.com (Damon W. Root) — Tue, 18 Nov 2008 16:55:00 EST

That's the lede from today's New York Times' editorial calling for Congress to pass the Colombia free trade agreement:

Mr. Bush signed the deal two years ago. The Democratic majority in Congress has refused to approve it out of a legitimate concern over the state of human rights in Colombia and less legitimate desires to pander to organized labor or deny Mr. Bush a foreign policy win.

We believe that the trade pact would be good for America's economy and workers. Rejecting it would send a dismal message to allies the world over that the United States is an unreliable partner and, despite all that it preaches, does not really believe in opening markets to trade. There is no more time to waste.

Good stuff! Speaking of those "less legitimate desires to pander to organized labor," here's reason contributor Will Wilkinson on why Detroit's Big Three automakers are just the right size to fail:

Lots of companies fail. Lots of cities, built around those companies, decline. If employees of the Big Three deserve to have taxpayers pay part of their relatively lavish salaries, then employees at thousands of failing businesses deserved the same. They had no chance of getting it, though, simply because they don’t have the right history with Washington. There is no other reason.
There is nothing that helps people more than high rates of economic growth, compounding, compounding. But everyone is not helped equally. Economic growth requires dynamism, requires “creative destruction,” and some people get trapped in the wreckage, become wreckage. Not everyone is hurt equally.... But the impulse to freeze the system, to try to tape all the cracks and staple all the cleavages, to ensure that nobody has to explain to their kid why Christmas this year is going to be a lousy Christmas, that is one of our greatest dangers. Our sympathy, untutored by a grasp of the larger scheme, can perversely make itself ever more necessary. When we feel compelled to act on our uncoached fellow-feeling, next year’s Christmas is likely to turn a bit worse for everybody. And then somebody has to explain to the kids that they can’t find a job at all.

"I'm probably the only district judge with this many tattoos"

droot@reason.com (Damon W. Root) — Mon, 17 Nov 2008 17:52:00 EST

The Houston Chronicle has an interesting profile of Kevin Fine, a criminal defense attorney and self-described former drug addict who was elected this month as a Texas district court judge. From the story:

The devil tattooed on Kevin Fine's upper arm holds a razor blade, a mirror and an eight ball symbolizing cocaine. His forearm sports a tattoo of Jesus holding up a man who has collapsed amid the waves of a massive storm.

[...]

The crumpled man in Jesus' arms is a metaphor for the way he later faced his own skeletons and weathered the problems of addiction, said Fine, a criminal defense lawyer who will take the bench in January.

Fine believes he is qualified to help those who truly want to battle their own demons and says he'll be able to spot the phonies.

As the story notes, Fine will be replacing incumbent Judge Devon Anderson, whose responsibilities currently include volunteering one day per week at Harris County's "drug court," where judges determine whether or not to mandate certain drug offenders into treatment facilities rather than locking them up behind bars. "Fine said he plans to volunteer for the drug court after a year of learning the ropes as a new judge," the Chronicle reports.

This certainly raises some interesting questions: Will having a self-described former addict who is able to spot the "phonies" be good news for Harris County's drug offenders? More importantly, are drug courts that deal out treatment rather than incarceration really mitigating the Drug War's negative impact? It's obviously hard to argue that getting sent to drug treatment is worse than going to jail or prison, but does that mean that this sort of mandatory treatment is something that Drug War opponents should support? Here's what Thomas Szasz had to say on the subject in an interview with Jacob Sullum in February 2000:

Reason: In the area of drug policy, you've criticized the idea of shifting from a criminal justice approach to a "medical" or "public health" model, which you say would only reinforce the therapeutic state. But if a drug offender who might otherwise go to jail can instead undergo "treatment"—which is now the case in Arizona, for example—isn't he better off, even if the treatment is bogus?

Szasz: He may be better off in the sense in which a Jew in 15th-century Spain may have been better off converting to Christianity than being tortured. But I reject the dilemma. One of these so-called treatment options may be less punitive for the subject. But the side effect is that it reinforces the legitimacy of this kind of medical autocracy.

Full Houston Chronicle story on Fine here. reason's interview with Szasz here.

(Chronicle story via How Appealing)

"Often those lawsuits add an unwanted deterrent against the sale of desperately needed drugs."

droot@reason.com (Damon W. Root) — Fri, 14 Nov 2008 17:44:00 EST

In his latest Forbes.com column, Richard Epstein explains why the outcome of Wyeth v. Levine, which the Supreme Court heard this week, matters a very great deal:

Wyeth v. Levine...posed one simple question. Once the Food and Drug Administration has approved the warnings about drugs licensed for sale, may a plaintiff bring state law action for damages on the ground that those warnings are inadequate?

The principled answer to that question is a resounding "no." Concede—no insist—that the FDA is far from flawless. All too often, however, its extreme risk aversion keeps newer and safer drugs off the market—or requires strong, "black box" warnings that over-deter valuable use.

Against this backdrop, it is folly to act as if the private lawsuits attacking FDA warnings just backstop a porous and lax FDA. Often those lawsuits add an unwanted deterrent against the sale of desperately needed drugs. That risk is multiplied by hyperventilated state tort law that, in many instances, is lopsidedly pro-plaintiff.

[...]

The specter of heavy litigation expense and crushing liabilities by runaway juries could easily block the pharmaceutical industry from initiating life-saving changes.

Whole thing here. Ronald Bailey on "the FDA versus dying cancer patients" here, Todd Seavey on whether the FDA is even necessary here.

Lionizing Old Hickory

droot@reason.com (Damon W. Root) — Mon, 10 Nov 2008 17:05:00 EST

Writing in The New York Times, Janet Maslin gives the thumbs up to Jon Meacham's new American Lion: Andrew Jackson in the White House, noting that Meacham "dispenses with the usual view of Jackson as a Tennessee hothead and instead sees a cannily ambitious figure determined to reshape the power of the presidency during his time in office." As Maslin notes:

In its cogent fashion this book illustrates how Jackson’s more polished political rivals, like Henry Clay and John C. Calhoun, were unable to look past Jackson’s confrontational style to see the president’s true agenda. At the time of the Compromise of 1833, when Jackson found ways to satisfy the conflicting interests of both nationalists and states’ rights advocates while asserting the power of the presidency, he displayed the fine political art of projecting while looking for a way out.

John Yoo, the former Justice Department attorney and author of the Bush administration's notorious "torture memo," recently made a similar argument, claiming that Jackson's successes as president all stemmed from his "vigorous exercise of his executive powers." That's true as far as it goes, but as I argued in my article on Yoo's Jacksonian conservatism, Old Hickory offers a truly terrible model of presidential behavior. His bullying politics see-sawed from decentralist to nationalist, held together only by his own considerable sense of self-righteousness and, as Maslin points out, his calculated efforts to expand the powers of the presidency. Meacham, it appears from Maslin's review, is on Yoo's side, arguing that Jackson's aggressive behavior held the country together and "kept the possibility of progress alive." Ah, progress. Tell that to the Cherokee.

"A satisfying slap in the face to racism and parochialism"

droot@reason.com (Damon W. Root) — Fri, 07 Nov 2008 17:47:00 EST

Left-libertarian Roderick Long offers some good reasons why he's "more pleased than not" with Tuesday's election results:

Sure, Obama is a corporate liberal whose policies are not really any less fascistic or imperialistic than McCain's, but a) he at least seems less trigger-happy than McCain; b) culturally, his election is a satisfying slap in the face to racism and parochialism (it's great to see a black person at last in the nation's highest-profile and most influential job—I just wish the nation's highest-profile and most influential job weren't the goddamn presidency)...

More here. Gene Healy on how the goddamn president became so influential here.

Rangel-Obama 08!

droot@reason.com (Damon W. Root) — Tue, 04 Nov 2008 22:11:00 EST

Embattled rent control crook and English Only-tax evader Rep. Charlie Rangel (D-N.Y.) is playing host to a massive election night party outside the Adam Clayton Powell State Office Building on 125th Street tonight in Harlem. I'd try estimating the size of the turnout, but it was really too damned crowded to tell. The main focus was the jumbo TV erected at the side of the plaza, but there was also a stage where Rangel and other bigwigs piped up periodically to address the crowd.

To call the mood celebratory would be a serious understatement. This is a crowd steeped in the historical importance of the moment, quite conscious that they're gathered in America's most famous black neighborhood to watch the election of America's first black president. That's something every classical liberal should appreciate. When it comes to state-sanctioned violence and oppression—including restrictions on such fundamentals as the right to own property and the right to keep and bear arms—African Americans have suffered the very worst that government has to offer. That's not to say that the coming Obama adminstration is going to be very good for individual liberty, but his election represents a victory for classical liberalism nonetheless.

Here are some of the photos I shot.

You can't quite tell, but Charlie Rangel was wearing one damn fine bowtie.

This following image, or versions of it, were everywhere, even on the podium above. Just who's running for president, anyway? Isn't the dude on the left getting top billing?

Here's the free market in action, even in Obama's America!

Here's one of the capitalists selling the above pins.

No comment.

On a final, unsettling note, here's overlord Chris Matthews, overseeing all from the jumbotron.

Putting the F-Word on Trial

droot@reason.com (Damon W. Root) — Mon, 03 Nov 2008 12:18:00 EST

Adam Liptak had an amusing article in The New York Times this weekend setting the stage for tomorrow's Supreme Court oral arguments in Federal Communications Commission v. Fox Television Stations. At issue in the case is whether the accidental live broadcast of such unspeakable words as fuck and shit violates federal indecency laws prohibiting material that "depicts or describes sexual or excretory activities or organs." Here's Liptak:

Thus, when the pop star Bono emphasized his glee at receiving a Golden Globe award in 2003 by saying his victory was "really, really"—insert a form of the word here—"brilliant," the commission contended there was a sexual element. So too when Cher, on another awards show, used the word to propose something that ought to be done to her critics.

And there was sex in the air, the commission said, when Nicole Richie, at a third awards show, veered from these scripted comments: "Have you ever tried to get cow manure out of a Prada purse? It's not so freaking simple." Ms. Richie did not say "manure," and she did not say "freaking."

Bono, Cher and Ms. Richie all made sexual references, and all were indecent, the commission says. "It hardly seems debatable," the commission wrote in 2006, "that the word's power to ‘intensify' and offend derives from its implicit sexual meaning" as "one of the most vulgar, graphic and explicit words for sexual activity in the English language."

Sadly, as Liptak notes, the Court rejected C-Span's request for immediate access to the audiofile of the arguments. This means we'll have to wait until sometime next year for the chance of hearing one or more of the justices curse.

Whole thing here.

Wait, Wasn't Ayn Rand Opposed to Government Regulation?

droot@reason.com (Damon W. Root) — Fri, 31 Oct 2008 12:56:00 EDT

It's not much of a shocker to learn that New York Gov. David Paterson went before Congress this week in search of some bailout money for the state. It is, however, a surprise to see him enlisting Ayn Rand in the cause of government intervention:

The great novelist Ayn Rand advised us in the Fountainhead that our country, the greatest country in the world, was founded on the basis of individuals, where people were encouraged to adventure, not to be complacent; to be daring, not dormant; to prosper, not to plunder. But, unfortunately, an infection of greed and mismanagement combined with a lack of transparency and government regulation have brought us to the point where our nation faces a downturn in its economy only rivaled by the Great Depression.

Maybe that's what Alan Greenspan meant.

(Via Gothamist)

Morality and the Market

droot@reason.com (Damon W. Root) — Wed, 29 Oct 2008 20:09:00 EDT

The John Templeton Foundation is hosting a very interesting online debate centered on the question, "Does the free market corrode moral character?" There are a number of major league contributors, including economist Tyler Cowen and political theorist John Gray (who notes that "actual life in Soviet societies was more like an extreme caricature of laissez-faire capitalism, a chaotic and wasteful environment in which each person struggled to stay afloat"). Here's Columbia University economist Jagdish Bhagwati arguing in defense of globalization:

There is now plenty of evidence that India and China, two countries with gigantic poverty problems, have been able to grow so fast by taking advantage of trade and foreign investment, and that by doing so, they have reduced poverty dramatically. They still have a long way to go, but globalization has allowed them to improve material conditions for hundreds of millions of their people. Some critics have denounced the idea of attacking poverty through economic growth as a conservative "trickle-down" strategy. They evoke images of overfed, gluttonous nobles and bourgeoisie eating legs of mutton while the serfs and dogs under the table feed on scraps and crumbs. In truth, focusing on growth is better described as an activist "pull-up" strategy. Growing economies pull the poor up into gainful employment and reduce poverty.

Read the whole debate here.

"Generally, the court is institutionally conservative"

droot@reason.com (Damon W. Root) — Mon, 27 Oct 2008 18:28:00 EDT

Over at The Volokh Conspiracy, Orin Kerr highlights Barack Obama's recent response to the Detroit Free Press about the sort of Supreme Court justices he'll appoint if elected. Here's a snippet of Obama's answer:

Generally, the court is institutionally conservative. And what I mean by that is, it's not that often that the court gets out way ahead of public opinion. The Warren Court was one of those moments when, because of the particular challenge of segregation, they needed to break out of conventional wisdom because the political process didn't give an avenue for minorities and African Americans to exercise their political power to solve their problems. So the court had to step in and break that logjam.

I'm not sure that you need that. In fact, I would be troubled if you had that same kind of activism in circumstances today.... So when I think about the kinds of judges who are needed today, it goes back to the point I was making about common sense and pragmatism as opposed to ideology.

I think that Justice Souter, who was a Republican appointee, Justice Breyer, a Democratic appointee, are very sensible judges. They take a look at the facts and they try to figure out: How does the Constitution apply to these facts? They believe in fidelity to the text of the Constitution, but they also think you have to look at what is going on around you and not just ignore real life.

That, I think is the kind of justice that I'm looking for--somebody who respects the law, doesn't think that they should be making law...but also has a sense of what's happening in the real world and recognizes that one of the roles of the courts is to protect people who don't have a voice.

Whole thing here.

That's at least a better answer than the one he gave to Planned Parenthood last year, where he described his ideal justice as "somebody who's got the heart, the empathy" to sympathize with society's downtrodden. Occasional adherence to the Constitution is better than none at all, though Obama's slippery position on the Second Amendment shows just how far his "fidelity" to the Bill of Rights goes.

Executive Power and the Election

droot@reason.com (Damon W. Root) — Fri, 24 Oct 2008 15:19:00 EDT

The New York Review of Books asked a number of its high profile contributors for their take on the upcoming election (Spoiler Alert: They're all in favor of Barack Obama). Gary Wills made a particularly strong case for why the Republicans should lose:

When Dick Cheney was vetting the last two candidates for the [Supreme] Court, he did not really care about their views on abortion. He concentrated on their attitude toward the many executive usurpations of the Bush administration, and he was satisfied on this account with John Roberts and with Sam Alito.

When Charles Gibson was questioning Governor Palin, he should not have asked about the Bush Doctrine (a wavering concept, and touching only one matter, war). He should have asked for her views on the unitary executive—the question Cheney asked the Court nominees. That is what matters most to the Bush people. It affects all the executive usurpations of the last seven years—not only the right of the president to wage undeclared wars, but his right to create military courts, to authorize extraordinary renditions, secret prisons, more severely coercive interrogation, trials with undisclosed evidence, domestic surveillance, and the overriding of congressional oversight in every aspect of government from energy policy to health services.

The use of presidential signing statements to undermine federal law has been another aspect of Bush's executive power grab. As The Boston Globe's Charlie Savage has extensively reported, Bush has issued more than a 1100 signing statements claiming the authority to reject or ignore portions of the very laws he has just signed.

In December 2005, for instance, Bush signed the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act. This exhaustively titled bill was most notable for containing the so-called McCain Amendment, which prohibited "cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States government."

At the time, the bill's passage was seen as a victory against waterboarding and other torture tactics. But consider the passage from Bush's signing statement that specifically refers to the McCain Amendment:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power.

President Bush, in other words, would be waging the War on Terror as he saw fit, regardless of what Congress or the courts had to say about it.

"Truly free markets are also free of privilege"

droot@reason.com (Damon W. Root) — Fri, 24 Oct 2008 12:41:00 EDT

Sheldon Richman, the editor of The Freeman, adds another nail into Jacob "end of libertarianism" Weisberg's coffin:

According to Weisberg, editor in chief of Slate, the financial turmoil taking place worldwide is the fault of . . . libertarians. That must mean libertarians have been in a position to repeal generations of deep-seated government intervention in the financial and related industries, including the Federal Reserve system. That would have taken a long time, yet I don't recall reading that a libertarian revolution occurred in the United States. Surely it would have been in the newspapers. Hence, I must conclude that I, like old Rip [van Winkle], was slumbering all those years. I missed the revolution! It's the only possible explanation.
Unless Weisberg is wrong.
[...]
Weisberg obviously hasn't been paying attention. For him the Community Reinvestment Act, Fannie and Freddie, and past bailouts make up three separate libertarian explanations, when in fact they are all parts of a single integrated explanation of how government intervention created the problem. That he doesn't know this suggests that he doesn't understand the libertarian case. One ought to understand something before dismissing it.

Whole thing here. reason on Weisberg's lousy article here and here.

"Will we ever stop electing Andrew Jackson?"

droot@reason.com (Damon W. Root) — Wed, 22 Oct 2008 15:17:00 EDT

The New Yorker's Jill Lepore has a great article tracing the unsavory history of one of publishing's lowest arts: the campaign biography. Not surprisingly, it's all Old Hickory's fault:

In 1824, [John] Eaton published a revised "Life of Jackson," founding a genre, the campaign biography. At its heart lies a single, telling anecdote. In 1781, when Jackson was fourteen and fighting in the American Revolution, he was captured. A British officer, whose boots had got muddy, ordered the boy to clean them: Jackson refused, and the officer beat him, badly, with a sword. All his life, he bore the scars. Andrew Jackson would not kneel before a tyrant.

[...]

The United States has had some very fine Presidents, and some not so fine. But their campaign biographies are much of a muchness. The worst of them read like an Election Edition Mad Libs, and even the best of them tell, with rare exception, the same Jacksonian story: scrappy maverick who splits rails and farms peanuts and shoots moose battles from the log cabin to the White House by dint of grit, smarts, stubbornness, and love of country.... Nixon learned how to be a good Vice-President by warming the bench during college football games. Palin forged bipartisan political alliances in step-aerobics class. Parties rise and fall. Wars begin and end. The world turns. But American campaign biographies still follow a script written nearly two centuries ago. East of piffle and west of hokum, the Boy from Hope always grows up to be the Man of the People. Will we ever stop electing Andrew Jackson?

Whole thing here. reason on the odious Andrew Jackson here and here.

Conservatives Against Heller

droot@reason.com (Damon W. Root) — Tue, 21 Oct 2008 17:47:00 EDT

New York Times Supreme Court correspondent Adam Liptak has an article describing the recent grumblings by conservative federal appeals court judges Harvie Wilkinson III and Richard Posner about the Court's gun rights decision in D.C. v. Heller. As Liptak notes, both Wilkinson and Posner have accused Justice Antonin Scalia of resorting to the same illegitimate judicial methods in his Heller opinion that he typically castigates the Court's liberals for using.

In my article on the subject last month, I argued that Wilkinson does have a point, though it's not one that undermines the outcome in Heller. As Wilkinson correctly notes, Scalia typically argues that judges ought to defer to the will of legislative majorities. There's also the point, made by Scalia and other proponents of judicial restraint, that the courts should avoid the "political thicket" whenever possible. So why not let D.C. voters and local officials settle their own gun control debate? The answer, of course, is that the courts should strike down unconstitutional laws regardless of whether they're popular with a majority of people. But that's not judicial restraint, which is what Wilkinson—who's nobody's idea of a liberal judicial activist—points out.

The Constitution: "At least as easy to understand as a cell phone contract--and vastly more important."

droot@reason.com (Damon W. Root) — Mon, 20 Oct 2008 17:51:00 EDT

Today's Wall Street Journal features an excerpt from a speech Justice Clarence Thomas gave last week at the Manhattan Institute on the topic of "How to Read the Constitution." This passage gets right down to business:

Let me put it this way; there are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up. No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores. To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

It's notable to see Thomas referring to "original intent," rather than "originalism" or "textualism," which are the preferred methodologies on the right. Justice Antonin Scalia, for one, dropped the earlier locution, arguing that since the minds of the framers were unknown to us, we certainly couldn't know what they intended. Originalists, on the other hand, argue that we should look to the written text, particularly its established public meaning at the time of constitutional ratification. I'm assuming Thomas meant something more along those lines. If that's the case, I'd agree. We should look at the text, the larger constitutional context, the relevant history, the author or authors' statements of purpose, and the statements of support from those who supported and ratified the document.

But none of that means that the debate will necessarily be over. What about unenumerated rights? Do we have a right to privacy? What about a right to send our kids to private school? Former federal appeals court Judge Robert Bork, for instance, maintains that if the Constitution does not specifically mention a right, it doesn't protect it. Scalia has argued along the same lines. But then there's the 9th Amendment, which states that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparate others retained by the people." Bork, in his failed Supreme Court confirmation hearings, compared the 9th Amendment to an "inkblot." Randy Barnett, however, argues that the amendment "means what it says;" namely, it protects unwritten rights.

In any case, it's an interesting speech and well worth perusing.

"It's not because either of these men are overtly evil."

droot@reason.com (Damon W. Root) — Fri, 17 Oct 2008 17:40:00 EDT

J.D. Tuccile recently had a dual review of Gene Healy's The Cult of the Presidency and Dana Nelson's Bad for Democracy in the DC Examiner. It's a great read, though the topic isn't exactly cheery. And it's definitely hard to argue with his lede:

What kind of president will the winner of November's national popularity contest be? If history is any judge, the nation's next chief executive, whether Democrat Barack Obama or Republican John McCain, will be something of a monster.

Whole thing here. Healy on "the radical expansion of executive power" here.

"If I get stoned I'm just carrying on an old family tradition"

droot@reason.com (Damon W. Root) — Tue, 14 Oct 2008 10:29:00 EDT

If imitation is the sincerest form of flattery, what exactly do we call the horrific self-parody on example yesterday as Hank Williams Jr. butchered one of his better songs, the pro-drug, anti-Nashville "Family Tradition," by refashioning it into the moronic "McCain-Palin Tradition"? Here are a few snippets from my own transcription:

John and Sarah tell you just what they think
They're not gonna blink
And they don't have radical friends to whom their careers are linked

[...]

Sarah, why do you hunt?
John, why do you fish?
How can you be so smart and savvy and such a "hey good lookin'" dish?

That's a reference to Gov. Palin, by the way, not the Maverick. Hardly an improvement on this bit from the original:

Hank, why do you drink?
Hank, why do you roll smokes?
Why must you live out the songs that you wrote?

Here's the video from yesterday's rally at the Richmond International Raceway:

Listen to the Great Debates of '08

droot@reason.com (Damon W. Root) — Mon, 13 Oct 2008 17:07:00 EDT

In Saturday's Wall Street Journal, Terry Teachout reviewed the intriguing new CD Debate '08: Taft and Bryan Campaign on the Edison Phonograph, a collection of 22 speeches recorded in 1908 by presidential candidates William Howard Taft and William Jennings Bryan. As Teachout notes,

Bryan and Taft were the first political candidates to make commercially recorded campaign speeches on their own behalf, and the records they made were frequently played in alternation at public meetings in order to create the illusion of an actual debate. One enterprising nickelodeon operator in New York City even set up wax dummies of the candidates standing behind a pair of flag-draped podiums that flanked the door to his store.

There's also this bit of timeliness:

Most of what they have to say is now of purely academic interest, though once in a while their comments make you sit up and take notice. It's startling, for instance, to hear Taft, who at the time was Theodore Roosevelt's secretary of war, state unapologetically that "Christianity and the spread of Christianity are the only basis for hope of modern civilization in the growth of popular self-government," or to listen to Bryan, the Great Commoner, castigate the evils of American imperialism: "Instead of profit it has brought loss. Instead of strength it has brought weakness. Instead of glory it has brought humiliation. It has more than doubled our standing army, and there is talk of further increase."

Read the rest here, complete with audio clips from both candidates.

Paul Krugman Wins the Nobel Prize in Economics

droot@reason.com (Damon W. Root) — Mon, 13 Oct 2008 07:38:00 EDT

Via The New York Times:

American economist Paul Krugman won the 2008 Nobel prize for economics for bringing together analysis of trade patterns and where economic activity takes place, the prize committee said on Monday.
The Royal Swedish Academy of Sciences said the prestigious 10 million crown ($1.4 million) prize recognised Krugman's formulation of a new theory to answer questions driving world-wide urbanisation.
"He has thereby integrated the previously disparate research fields of international trade and economic geography," the committee said in its statement.

Rest here. reason Contributing Editor David Henderson on Krugman's The Return of Depression Economics here. Contributing Editor Mike Lynch on why "Krugman may be a smart economist, but he's a stupid columnist" here.

Damon Root on the Radio

droot@reason.com (Damon W. Root) — Fri, 10 Oct 2008 15:46:00 EDT

I’ll be on Sirius Satellite Radio’s NRA News tonight at 9:40 eastern time discussing the 2nd Amendment and the states with host Cam Edwards. Tune in to Sirius channel 144 or watch the webcast at NRA News.com.