Reason Magazine - Staff

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.

Don't Take Your Guns to Town

droot@reason.com (Damon W. Root) — Wed, 26 Nov 2008 15:00:00 EST

"As President, I will uphold the constitutional rights of law-abiding gun-owners, hunters, and sportsmen. I know that what works in Chicago may not work in Cheyenne." That was Democratic presidential candidate Barack Obama on June 26, 2008, responding to the Supreme Court's landmark decision in District of Columbia v. Heller, which struck down Washington, DC's draconian handgun ban and held that the Second Amendment protects an individual right to keep and bear arms—not a collective one.

"I have always believed that the Second Amendment protects the right of individuals," Obama went on, "but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures."

While it wasn't exactly a ringing endorsement of the decision, Obama's statement was an improvement over his previous equivocations. But that line about Chicago and Cheyenne definitely stood out. Chicago, after all, has a gun ban in place that's just as constitutionally dubious as the one struck down in Heller. Indeed, Alan Gura, the attorney who successfully argued Heller before the Court, is now working on the challenge to the Windy City law.

So last week's announcement that President-elect Obama has tapped outspoken gun control advocate Eric Holder to serve as his attorney general should come as something less than a complete shock. Holder, who served as deputy attorney general under President Bill Clinton and as acting attorney general under President George W. Bush (a position he held until John Ashcroft was confirmed), has pushed for sweeping and restrictive gun control measures throughout his career while also endorsing the now-discredited collective rights interpretation of the Second Amendment. Obama's selection of Holder raises some serious concerns about his administration's commitment to upholding the entire Bill of Rights.

In the aftermath of the 9/11 attacks, for instance, Holder took to the pages of The Washington Post, where he played on the public's newfound fear of terrorism to lobby for additional gun show regulations. But as National Review's Jim Geraghty recently pointed out, of the two "terrorists" that Holder claimed were stalking America's gun show circuit, one was eventually acquitted of supplying guns to terrorists (though not of the separate charge of weapons smuggling), while the other, a man named Ali Boumelhem, didn't buy so much as a camouflage vest at a gun show. Since he had a felony record he let his brother do the shopping. In Holder's mind, that's a "loophole" that needs closing, but as Geraghty notes, "background checks like the one Holder was calling for would not have stopped [it], since the straw purchaser (the surrogate for the real buyer) is chosen because he has a clean record." Unless Holder wants to forbid gun sales to people with disreputable family members or friends, it's hard to imagine how any law could prevent this situation.

More recently, Holder was one of thirteen former Justice Department officials to sign an amicus brief on behalf of the D.C. government in the Heller case. That document, which endorsed restrictive gun control measures and cited rare and sensational events like the Columbine and Virginia Tech school shootings as evidence of "the deadly toll that firearms exact," also made the case for the collective rights interpretation that has now been rejected by both the Supreme Court and leading liberal legal scholars.

What does all this mean for Eric Holder's Department of Justice? Nothing good, says Second Amendment scholar and Independence Institute Research Director David Kopel. As Kopel told me via email, under the leadership of Attorney General Janet Reno and Deputy Attorney General Eric Holder, "the DOJ used the U.S. Attorneys offices for the aggressive prosecution of gun owners and sellers, often on flimsy charges. We may expect many more such prosecutions under Holder." Moreover, Holder's turf now includes the Bureau of Alcohol, Tobacco, Firearms & Explosives, which was transferred from the Treasury Department to the Justice Department after 9/11. That's one tool that Reno didn't have in her kit. "Now that the Bureau is part of DOJ," Kopel explained, "Attorney General Holder will have great power to force the imposition of onerous new regulations on firearms sales, on firearms stores, and on manufacturers."

Attorney General John Ashcroft, of course, famously attacked critics of the government's anti-terrorism policies for chasing "phantoms of lost liberty" and giving "ammunition to America's enemies." Let's hope that Second Amendment supporters won't be chasing as many "phantoms" once Eric Holder inherits the Bush administration's sweeping law enforcement powers.

Damon W. Root is an associate editor at reason.

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.

Progressive Insurance

droot@reason.com (Damon W. Root) — Wed, 12 Nov 2008 15:00:00 EST

Does the election of Barack Obama represent the triumph of progressivism and the end of libertarianism? Many on the left seem to think so. Obama's victory, argued blogger Matthew Yglesias, represents a "resounding victory for progressive ideals." The "old assumptions of free-market fundamentalism," declared The New Yorker's George Packer, "have, like a charlatan's incantations, failed to work."

But what the current vogue for the term progressive fails to acknowledge is that the original progressives embraced the worst abuses of state power in the late nineteenth and early twentieth centuries. Libertarians, by contrast, stood as consistent defenders of individual liberty in all spheres of human life.

Consider the Jim Crow South. As historian David Southern has written, disfranchisement, segregation, race baiting, and lynching all "went hand-in-hand with the most advanced forms of southern progressivism." Plessy v. Ferguson (1896), the Supreme Court decision that enshrined the doctrine of "separate but equal" and serves as perhaps the most potent symbol of the Jim Crow regime, dealt with a Louisiana law forbidding railroads from selling first-class tickets to black customers. That's not the free market making life worse. It's the government.

Moreover, as economist Tim Leonard points out, progressives believed in a "powerful, centralized state, conceiving of government as the best means for promoting the social good," a belief that directly contributed to the widespread progressive support for eugenics, racial collectivism, and various coercive "reforms." Progressive darling Theodore Roosevelt, for instance, held notoriously racist and imperialist views, including the notion of "race suicide," which held that the white race faced the risk of being out bred by its "little brown brothers." He also believed that the 15th Amendment should never have been ratified since the black race, in his words, was "two hundred thousand years behind" the white.

In opposition to all that stood libertarians like Moorfield Storey, the great lawyer and activist who helped found both the National Association for the Advancement of Colored People (NAACP) and the Anti-Imperialist League. A proponent of the gold standard and laissez-faire economics, Storey argued and won the NAACP's first victory before the Supreme Court, a 1917 decision that relied on a defense of property rights to squash a residential segregation law.

The New Deal-era saw some heroic resistors as well. Among them was Supreme Court Justice George Sutherland, one of the "Four Horsemen of Reaction" (along with Justices James McReynolds, Pierce Butler, and Wiliam Van Devanter), so named for reliably voting against New Deal regulations. An advocate of property rights and liberty of contract, Sutherland was also an outspoken defender of women's rights who, as a U.S. Senator from Utah, introduced legislation that became the 19th Amendment.

In his majority opinion in Adkins v. Children's Hospital (1923), one of the precedents later overturned by the New Deal Court, Sutherland struck down Washington, D.C.'s minimum wage law for women, arguing that it violated their liberty of contract under the 14th Amendment. As historian Jim Powell observed, this law had thrown numerous women out of work, including elevator operator Willie Lyons, one of the figures in the case, who was promptly fired and replaced by a man willing to work at her old wage. In his majority opinion, Sutherland denounced the law for encouraging such perverse consequences. "Surely the good of society as a whole," Sutherland wrote, "cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members."

Sutherland's most famous vote, however, arguably came without comment in Schechter Poultry Corp. v. United States, the 1935 decision that struck down the National Recovery Administration (NRA), which at that point was the centerpiece of the New Deal. Specifically, NRA price controls and other "codes of fair competition" had made it illegal for the Schechter brothers, who maintained a small Kosher slaughterhouse in New York, to set their own prices and let their customers pick out their own chickens. (Similarly, dry cleaner Jacob Maged would spend three months in jail in 1934 for charging 35 cents to press a suit, rather than the NRA-mandated 40 cents.)

"Extraordinary conditions may call for extraordinary remedies," Chief Justice Charles Evans Hughes held for the unanimous Court. "But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional powers." The NRA was finished.

But Roosevelt, who denounced the ruling for its "horse and buggy definition of interstate commerce," would have the last laugh. Two years later (two months after FDR threatened to "pack" it with more sympathetic justices, in fact) the Court overruled Sutherland's Adkins decision to uphold another minimum wage law for women, arguing this time that the state had a duty to "preserve the strength and vigor of the race" by protecting current and future mothers—a line that hasn't exactly sat well with feminist legal scholars. As historian William E. Leuchtenburg put it, "the Court was now stating that local and national governments had a whole range of powers that this same tribunal had been saying for the past two years that these governments did not have."

From that point on, the Supreme Court proved ready and willing to defer to FDR's vision for the country. Which might sound great to today's progressives, until they recall that FDR ordered the wartime internment of Japanese Americans, an executive action that the pliant Supreme Court upheld in Korematsu v. United States (1944). Sutherland, who died in 1942, at least did what he could to oppose the Rooseveltian juggernaut.

Indeed, as Sutherland and Storey's careers demonstrate, libertarian ideas have long served as a crucial check against the illiberal impulses of progressive majorities. The Jacob Weisbergs of the world notwithstanding, libertarianism matters now more than ever.

Damon W. Root is an associate editor of reason.

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.

Sterilized by the State

droot@reason.com (Damon W. Root) — Sat, 01 Nov 2008 22:48:00 EDT

In his startling new book Three Generations, No Imbeciles (Johns Hopkins University Press), Georgia State University law professor Paul A. Lombardo looks at the Supreme Court’s notorious 1927 decision in Buck v. Bell, which upheld a Virginia law permitting the forced sterilization of the “feebleminded and socially inadequate.”

At the center of the case was a young woman named Carrie Buck. She had been raped and impregnated by the nephew of her foster mother, then committed to a state institution by her foster parents, where she was sterilized. In his majority opinion, Justice Oliver Wendell Holmes dismissed Buck, her mother, and her daughter as “mental defectives” and declared, “Three generations of imbeciles are enough.”

Associate Editor Damon Root spoke with Paul A. Lombardo in September.

Q: What happened to the girl at the center of the case?

A: Carrie Buck was a girl who was about 17 years old. When the story begins she finds herself pregnant without a husband. She gives birth in the same year that the Virginia legislature passed a law that calls for sterilization of people who are so-called socially inadequate, which includes people who are in institutions like the Virginia Colony for the Epileptic and the Feeble-Minded. Carrie Buck gets sent to that colony, which is an asylum for people with various kinds of disabilities. She gets sent there because she is declared to be a moral defective.

Q: Her lawyer, Irving Whitehead, has a relationship with this institution, right?

A: One of the great ironies is that the building in which Carrie Buck is sterilized has a plaque on the front of it—it’s still there—which has her lawyer’s name on it as a member of the board of directors of the Colony in its earliest years. He advises and votes in favor of sterilization.

He essentially throws the case. He doesn’t present any evidence on her behalf, no witnesses at all. In the book, I think I present good evidence that the fix was in. By any measure, whether it’s today or the measure of 100 years ago, he stands out in terms of his unethical behavior.

Q: Justice Holmes’ ruling shows incredible deference to the state.

A: It’s the most blunt kind of statism. If we can draft you into the Army, he suggests, then we ought to be able to sterilize you. We execute criminals; why can’t we sterilize these people in the asylums? He says, well, we’ve endorsed the idea of vaccinating people in the time of smallpox epidemics. If we can vaccinate them, we ought to be able to sterilize them. He says it’s not too much of a leap from doing a vaccination to cutting the fallopian tubes, as if these two things were somehow equivalent. So Holmes does really break new ground in terms of a radical definition of state power.

Q: Does the idea of eugenics still have any appeal?

A: Most people, if given the option, would vote to have less of a burden of social welfare costs and lower taxes. That’s a popular idea for all of us. The argument that’s made during the Buck case is that you get there by doing away with the people who generate those costs.

Q: The real problem is that we all still feel that way today. Not that we want to be Nazis, and not that we want to re-enact eugenic laws. But we all still are looking for solutions to socialproblems and ways of managing the inevitable social burdens of crime, poverty, and disease. The hope that we can find those solutions is of course still with us—and should be, I think—but what we use as a means toward those is of course the question. I argue in this book that one of the things we shouldn’t use is the power of government through coercive medicine. When governments start deciding who can have children, they almost always botch it.

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.

Sign Your Life Away

droot@reason.com (Damon W. Root) — Wed, 29 Oct 2008 15:00:00 EDT

Prior to 2006, few Americans had much reason to think about presidential signing statements. That changed with the passage of H.R. 2863 on December 30, 2005. Also known as the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, this awkwardly named bill featured 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, its passage was seen as a major victory against the use of waterboarding and other forms of torture by U.S. forces. But on the same day he signed the law, President George W. Bush also issued a signing statement declaring that he would only implement the McCain Amendment "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."

Three months later, after signing the USA Patriot Improvement and Reauthorization Act in a well-publicized White House ceremony, Bush issued another important signing statement. This time he declared that the executive branch was in no way bound by those provisions requiring congressional oversight of the FBI's new surveillance powers, since such oversight "could impair...national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."

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. As Charlie Savage reports in his superb 2007 book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy, Bush has issued hundreds of similar statements claiming his authority to reject or ignore more than 1,000 sections of federal law—the very laws, it's worth repeating, that Bush has just signed. Such documents, Savage writes, "left it to legal specialists to point out in plain English that Bush was claiming that only the parts of the bill that expanded his power were constitutional, essentially nullifying the parts of the bill that checked those new powers."

The U.S. Constitution, of course, already provides the president with a crucial check on the legislative branch: It's called the veto. Nowhere in our founding documents, however, does the president receive the authority to pick and choose which laws he's going to obey.

Thankfully, George W. Bush won't be president much longer. But the executive powers he helped forge will still be around. Is there any reason to think his successor will be much better?

Not really. Last December, the Boston Globe quizzed all of the major party candidates about executive authority. With less than a week before the election—and with qualms about presidential power apparently forgotten in the frenzy to bring about hope, change, and the nationalization of Wall Street—it's useful to revisit what Sen. John McCain (R-Ariz.) and Sen. Barack Obama (D-Ill.) had to say about signing statements.

For what it's worth, McCain gave one of the best responses of his campaign: "As President, I won't have signing statements. I will either sign or veto any legislation that comes across my desk." It's hard to improve on that, though as reason's Jacob Sullum has noted, "his campaign has indicated that McCain's view of the president's authority is broad enough to permit violation of statutes governing surveillance of people in the United States."

Obama proved a little harder to pin down. On the one hand, he told the Globe it was "a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability." But he also added this: "No one doubts that it is appropriate to use signing statements to protect a president's constitutional prerogatives." No one? And what's the difference between making an "end-run" around legislation and protecting the "constitutional prerogatives" of the president? Bush clearly saw his actions as appropriate, not as some sort of dodge. What's to stop Obama (or anybody else) from doing the same?

It's not like this is a partisan issue. Democratic President Bill Clinton, for instance, issued signing statements undermining 140 sections of federal law—at that point, the second largest amount in American history. In a November 1993 memo prepared for Clinton White House counsel Bernard Nussman, moreover, Assistant Attorney General Walter Dellinger endorsed this approach. "If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers," Dellinger wrote, "then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing." Therefore, Dellinger continued, "a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce...such a provision, can be a valid and reasonable exercise of Presidential authority."

With a cooperative Democratic Congress on his side, Obama probably won't need to use signing statements. But what happens if the Republicans regroup, regain the majority, and offer an agenda of their own? At that point, Obama will have every incentive to emulate the Clinton administration and use signing statements to protect his "constitutional prerogatives" against a Republican Congress.

At that point, of course, it'll be conservatives howling about an imperial presidency and liberals rallying around the executive. How far does the president have to go before both sides agree to rein him in? Perhaps it's better if we don't find out.

Damon W. Root is an associate editor of reason.

"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.