GOP’s Gay Marriage Silence Speaks Louder than Words

Guy Benson, the political editor at the conservative website Townhall.com and a Fox News contributor, had a new book out last week with Mary Katharine Ham: End of Discussion: How the Left’s Outrage Industry Shuts Down Debate, Manipulates Voters, and Makes America Less Free (and Fun). In a footnote in the book, added at the last minute, Benson reveals for the first time that he’s gay.

The reaction to the revelation, leaked a month early, was interesting. Some gay websites reacted angrily, as with Queerty’s ”the fact that Republicans have been running for decades on homophobia makes us inclined to sweep Benson and his anti-gay apologizing rhetoric out with the rest of the garbage.” And the commenters, as usual, were worse.

On the right, the American Family Association demanded that Benson be fired and barred from conservative conferences. But other conservatives barely seemed to notice. Benson reported that he got positive messages from Karl Rove and Sean Hannity, along with a softball interview with Megyn Kelly on Fox. He and Ham are speaking at the College Republican National Convention, the Reagan Library, the Western Conservative Summit and the Illinois Policy Institute.

That sound you don’t hear right now, of major Republican candidates making gay marriage a key issue in their campaigns? That’s the sound of social change happening.”

Conservatives clearly aren’t ready to join Benson and Ham in supporting gay marriage. But they don’t seem to be bothered to discover that an articulate young conservative is both gay and a supporter of marriage equality.

And this isn’t the only example of conservatives losing interest in cultural war. Robert Costa and Philip Rucker report in the Washington Post that while conservative talkers like Bill Bennett and Rush Limbaugh are denouncing Bruce Jenner’s declaration that he is now a woman named Caitlyn – Limbaugh called Jenner a “freak show” — Mike Huckabee was the only Republican presidential candidate to make a critical comment.

Karl Rove wrote this month in the Wall Street Journal that Republicans must find a way to talk about social issues without alienating the growing number of social moderates and liberals in the electorate, noting that support for same-sex marriage has risen from 40% in 2009 to 60% today.

Republicans were already taking that advice, mostly by trying to avoid the issue. Even in 2012 Republicans could see the long-term damage that the anti-gay crusade was doing them. Back in 2004 they thought that social issues, especially gay marriage bans, would help them win the presidential election. It wasn’t really true even then: it turns out George W. Bush’s share of the vote rose just slightly less in the marriage-ban states than in the other states: up 2.6% in the states with marriage bans on the ballot, up 2.9% in the other states.

In 2012, even though President Obama and the Democratic platform endorsed marriage equality, Mitt Romney and the Republicans stayed away from the issue. With good reason. The Washington Post reported that October: ”Voters back gay marriage by 21 points in Florida, 15 points in Ohio and nine in Virginia.”

Republican candidates and their advisers know that opposition to same-sex marriage remains strong in their base, but that more than two-thirds of young voters support it. Campaigning against gay marriage is a good way to make the Democratic advantage among young people permanent.

Sometimes social change happens when people announce a change of heart. Sometimes you know it’s happening when one side tries to change the subject. That sound you don’t hear right now, of major Republican candidates making gay marriage a key issue in their campaigns? That’s the sound of social change happening.

Posted on June 16, 2015  Posted to Cato@Liberty

Interracial Marriage as a Precedent for a Gay Marriage Decision

As we await a Supreme Court decision on gay marriage, we take note that 48 years ago on June 12 the court struck down Virginia’s ban on interracial marriage.

Mildred Jeter, a black woman (though she also had a Native American heritage and may have preferred to think of herself as Indian), married Richard Loving, a white man, in the District of Columbia in 1958. When they returned to their home in Caroline County, Virginia, they were arrested under Virginia’s anti-miscegenation statute, which dated to Colonial times and had been reaffirmed in the Racial Integrity Act of 1924.

A decade from now, will we celebrate the joint anniversary of the Loving and Obergefell decisions, both of which extended liberty and justice—and the freedom to marry—to all?”

The Lovings were indicted and pleaded guilty. They were sentenced to a year in jail: The state’s law didn’t just ban interracial marriage; it made such marriage a criminal offense. However, the trial judge suspended the sentence on the condition that they leave Virginia and not return together for 25 years. In his opinion, the judge stated:

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Five years later, the couple filed suit to have their conviction overturned. The case eventually reached the Supreme Court, which struck down Virginia’s law unanimously. Chief Justice Earl Warren wrote for the court:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

Here’s how ABC News reported the case on June 12, 1967:

David Boies and Ted Olson, the two lawyers who led the challenge to California’s Proposition 8, which outlawed same-sex marriage in 2008, connected the Loving case to the case of Perry v. Schwarzenegger here:

In 2011, as their case proceeded through the federal courts, Boies and Olson spoke at the Cato Institute, joined by John Podesta, then president of the Center for American Progress, and Robert A. Levy, chairman of Cato. Podesta and Levy served as co-chairs of the advisory committee of the American Foundation for Equal Rights, the nonprofit group that brought the Perry case. They wrote in The Washington Post in 2010:

Now, 43 years after Loving, the courts are once again grappling with denial of equal marriage rights—this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law….

Over more than two centuries, minorities in America have gradually experienced greater freedom and been subjected to fewer discriminatory laws. But that process unfolded with great difficulty.

As the country evolved, the meaning of one small word— all”—has evolved as well. Our nation’s Founders reaffirmed in the Declaration of Independence the self-evident truth that “all Men are created equal,” and our Pledge of Allegiance concludes with the simple and definitive words “liberty and justice for all.” Still, we have struggled mightily since our independence, often through our courts, to ensure that liberty and justice is truly available to all Americans.

Thanks to the genius of our Framers, who separated power among three branches of government, our courts have been able to take the lead—standing up to enforce equal protection, as demanded by the Constitution—even when the executive and legislative branches, and often the public as well, were unwilling to confront wrongful discrimination.

In his remarks at Cato, and in this newspaper column, Levy argued that it would be best to get the government out of marriage entirely—let marriage be a private contract and a religious ceremony but not a government institution, a point that I have also made. For some, that’s a libertarian argument against laws and court decisions that would extend marriage to gay couples: It would be better to privatize marriage. But Levy goes on to say:

Whenever government imposes obligations or dispenses benefits, it may not “deny to any person within its jurisdiction the equal protection of the laws.” That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.

When it comes to the current marriage case of Obergefell v. Hodges—and if only the court had made the parallel case of Love v. Beshear the main case, so that the Loving decision could be followed by the Love decision—there are legitimate federalist and democratic objections.

One might say that marriage law has always been a matter for the states, and it should stay that way. Let the people of each state decide what marriage will be in their state. Leave the federal courts out of it. Federalism is an important basis for liberty, and that’s a strong argument.

There’s also the discomfiting argument that a Supreme Court decision striking down bans on gay marriage is undemocratic, that it would be better to let the political process work through the issue. Some people, even supporters of gay marriage, warn that a court decision could be another Roe v. Wade, with decades of cultural war over an imposed decision.

Those are valid objections. Not all issues have an obvious right side. In this case, I always ask critics of the federal court decisions striking down gay marriage bans, and the possibility of a Supreme Court decision confirming those decisions: How do you feel about the Loving case?

Do you think the court should have declined to strike down state bans on interracial marriage (which were still highly popular in 1967, according to a Gallup poll)? And if you do support the Loving decision, then how are these cases different? The Cato Institute has urged the court, in an amicus brief, to find that bans on same-sex marriage violate the equal protection clause of the Constitution.

Here is one more video, featuring the speakers from the Cato forum on Perry v. Schwarzenegger (plus me):

Controversial Supreme Court decisions are often handed down at the end of the court’s term, in June. A decade from now, will we celebrate the joint anniversary of the Loving and Obergefell decisions, both of which extended liberty and justice—and the freedom to marry—to all? Or will we have to explain how the court managed not to find that the principles of Loving applied to Obergefell?

Posted on June 16, 2015  Posted to Cato@Liberty

Marriage and the Court, Yesterday and Today

As we await a Supreme Court decision on gay marriage, we take note that 48 years ago today the Court struck down Virginia’s ban on interracial marriage.

Mildred Jeter, a black woman (though she also had Native American heritage and may have preferred to think of herself as Indian), married Richard Loving, a white man, in the District of Columbia in 1958. When they returned to their home in Caroline County, Virginia, they were arrested under Virginia’s anti-miscegenation statute, which dated to colonial times and had been reaffirmed in the Racial Integrity Act of 1924. The Lovings were indicted and pled guilty. They were sentenced to a year in jail; the state’s law didn’t just ban interracial marriage, it made such marriage a criminal offense. However, the trial judge suspended the sentence on the condition that they leave Virginia and not return together for 25 years. In his opinion, the judge stated:

Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.

Five years later they filed suit to have their conviction overturned. The case eventually reached the Supreme Court, which struck down Virginia’s law unanimously. Chief Justice Earl Warren wrote for the court,

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival.

Here’s how ABC News reported the case on June 12, 1967:

David Boies and Ted Olson, the two lawyers who led the challenge to California’s Proposition 8, which outlawed same-sex marriage in 2008, connected the Loving case to the case of Perry v.Schwarzenegger here:

In 2011, as their case proceeded through the federal courts, Boies and Olson spoke at the Cato Institute, joined by John Podesta, then president of the Center for American Progress, and Robert A. Levy, chairman of Cato. Podesta and Levy served as co-chairs of the advisory committee of the American Foundation for Equal Rights, the nonprofit group that brought the Perry case. They wrote in the Washington Post in 2010:

Now, 43 years after Loving, the courts are once again grappling with denial of equal marriage rights — this time to gay couples. We believe that a society respectful of individual liberty must end this unequal treatment under the law….

Over more than two centuries, minorities in America have gradually experienced greater freedom and been subjected to fewer discriminatory laws. But that process unfolded with great difficulty.

As the country evolved, the meaning of one small word — “all” — has evolved as well. Our nation’s Founders reaffirmed in the Declaration of Independence the self-evident truth that “all Men are created equal,” and our Pledge of Allegiance concludes with the simple and definitive words “liberty and justice for all.” Still, we have struggled mightily since our independence, often through our courts, to ensure that liberty and justice is truly available to all Americans.

Thanks to the genius of our Framers, who separated power among three branches of government, our courts have been able to take the lead — standing up to enforce equal protection, as demanded by the Constitution — even when the executive and legislative branches, and often the public as well, were unwilling to confront wrongful discrimination.

In his remarks at Cato, and in this newspaper column, Levy argued that it would be best to get the government out of marriage entirely—let marriage be a private contract and a religious ceremony, but not a government institution, a point that I have also made. For some, that’s a libertarian argument against laws and court decisions that would extend marriage to gay couples: it would be better to privatize marriage. But Levy goes on to say:

Whenever government imposes obligations or dispenses benefits, it may not “deny to any person within its jurisdiction the equal protection of the laws.” That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.

When it comes to the current marriage case of Obergefell v. Hodges – and if only the Court had made the parallel case of Love v. Beshear the main case, so that the Loving decision could be followed by the Love decision – there are legitimate federalist and democratic objections. One might say that marriage law has always been a matter for the states, and it should stay that way. Let the people of each state decide what marriage will be in their state. Leave the federal courts out of it. Federalism is an important basis for liberty, and that’s a strong argument. There’s also a discomfiting argument that a Supreme Court decision striking down bans on gay marriage is undemocratic, that it would be better to let the political process work through the issue. Some people, even supporters of gay marriage, warn that a court decision could be another Roe v. Wade, with decades of cultural war over an imposed decision.

Those are valid objections. Not all issues have an obvious right side. In this case, I always ask critics of the federal court decisions striking down gay marriage bans and the possibility of a Supreme Court decision confirming those decisions, How do you feel about the Loving case? Do you think the Court should have declined to strike down state bans on interracial marriage (which were still highly popular in 1967, according to the Gallup poll)? And if you do support the Loving decision, then how are these cases different? The Cato Institute has urged the Court, in an amicus brief, to find that bans on same-sex marriage violate the equal protection clause of the Constitution.

Here is one more video, featuring the speakers from the Cato forum on Perry v. Schwarzenegger (plus me):

Controversial Supreme Court decisions are often handed down at the end of the Court’s term, in June. A decade from now, will we celebrate the joint anniversary of the Loving and Obergefell decisions, both of which extended liberty and justice—and the freedom to marry—to all? Or will we have to explain how the Court managed not to find that the principles of Loving applied to Obergefell?

Posted on June 12, 2015  Posted to Cato@Liberty

David Boaz’s blog post “Scott Walker Defends Corporate Welfare for NBA” is cited on WTMJ News Radio

Posted on June 10, 2015  Posted to Cato@Liberty

Everything Forbidden Is Also Compulsory

Conservatives are fond of saying, usually in regard to homosexuality, “Everything not forbidden is compulsory.” At National Review recently, Kevin Williamson reminded readers of the provenance of that particular formulation:

One of the finest books ever written about politics is The Once and Future King, in which young Arthur, not yet king, is transformed by Merlin into various kinds of animals in order to learn about different kinds of political arrangements: Hawks live under martial law, geese are freewheeling practitioners of spontaneous order, badgers are scholarly isolationists, and ants live under totalitarianism, with T. H. White famously rendering their one-sentence constitution: “Everything not forbidden is compulsory.”

The District of Columbia can go the ants one better: It makes things simultaneously forbidden and compulsory. D.C. banned discrimination on the basis of sexual orientation in 1973, but didn’t repeal its sodomy law until 1993. So for 20 years you couldn’t be fired for being gay, but you could be arrested.

Now the District has extended its confusion to the mundane matter of taxicab regulation. WAMU reports that

Several Washington cab companies may miss a June 29 deadline to upgrade at least 6 percent of their fleets to wheelchair-accessible vehicles….Under the D.C. Taxi Act of 2012, the 27 cab companies with fleets of at least 20 taxis were supposed to convert or purchase accessible vehicles….After meeting the 6 percent ratio this month, D.C. cab companies will be faced with upgrading to 12 percent by the end of 2016 and 20 percent by Dec. 31, 2018. 

Disability-rights advocates are angrily demanding that the companies “give us the taxicabs we deserve.”

But meanwhile the District limits entry into the taxi business with a tag system, so that:

Because of the District’s freeze on the issuance of H-tags, independent drivers may not purchase and operate their own wheelchair-accessible taxis. Instead drivers have to rent the taxi, usually a minivan with a rear ramp for power wheelchairs or motorized scooters, off a company’s lot.

D.C. native Arika Woodson, 35, approached the D.C. Taxicab Commission with a proposal to operate her own taxi company exclusively for people in wheelchairs, but was turned away because of the H-tag freeze.

So the District government is requiring taxi companies to spend money to make their cabs wheelchair-accessible. At the same time, it’s also refusing to grant taxi licenses to entrepreneurs who want to put wheelchair-accessible cabs on the streets. It’s compulsory and forbidden all at the same time!

And one more point: Before the conversion mandate, “Two government-subsidized ride programs, Roll DC and Transport DC, provided 19 vehicles for people in wheelchairs, primarily to make doctors’ visits.” So wheelchair-accessible taxis are forbidden, compulsory, AND taxpayer-subsidized in the District of Columbia. It’s a trifecta of interventionism.

Posted on June 9, 2015  Posted to Cato@Liberty

Scott Walker Defends Corporate Welfare for NBA

On ABC News’ This Week yesterday, Gov. Scott Walker defended his proposal to spend $250 million of taxpayers’ money to build a new arena for the Milwaukee Bucks:

“Our return on investment is three to one…” Walker said. “It’s a good deal.”

The Bucks franchise, valued at $600 million, is owned by a group of billionaire financiers in New York. But no matter what it’s worth, Walker’s statement is at wide variance with the findings of independent economists.

Economic projections for subsidized stadiums are always vastly overstated. As Dennis Coates and Brad Humphreys wrote in a 2004 Cato study criticizing the proposed D.C. stadium subsidy, “The wonder is that anyone finds such figures credible.”

And indeed the Washington Examiner reported in 2008:

Attendance at Nationals Park has fallen more than a quarter short of a consultant’s projections for the stadium’s inaugural year, cutting into the revenue needed to pay the ballpark bonds and spurring a D.C. Council member to demand the city’s money back.

Several Cato studies over the years have looked at the absurd economic claims of stadium advocates. In “Sports Pork: The Costly Relationship between Major League Sports and Government,“ Raymond Keating finds:

The lone beneficiaries of sports subsidies are team owners and players. The existence of what economists call the “substitution effect” (in terms of the stadium game, leisure dollars will be spent one way or another whether a stadium exists or not), the dubiousness of the Keynesian multiplier, the offsetting impact of a negative multiplier, the inefficiency of government, and the negatives of higher taxes all argue against government sports subsidies. Indeed, the results of studies on changes in the economy resulting from the presence of stadiums, arenas, and sports teams show no positive economic impact from professional sports — or a possible negative effect.

In Regulation magazine, (.pdf) Dennis Coates and Brad Humphreys found that the economic literature on stadium subsidies comes to consistent conclusions:

The evidence suggests that attracting a professional sports franchise to a city and building that franchise a new stadium or arena will have no effect on the growth rate of real per capita income and may reduce the level of real per capita income in that city.

And in “Caught Stealing: Debunking the Economic Case for D.C. Baseball,” Coates and Humphreys looked specifically at the economics of the new baseball stadium in Washington, D.C., and found similar results:

Our conclusion, and that of nearly all academic economists studying this issue, is that professional sports generally have little, if any, positive effect on a city’s economy. The net economic impact of professional sports in Washington, D.C., and the 36 other cities that hosted professional sports teams over nearly 30 years, was a reduction in real per capita income over the entire metropolitan area.

Stadiums, arenas, convention centers, arts centers, the story is the same. In 2011 the Washington Post reported that the financial projections for a government-funded arts center, Artisphere, in Arlington, Virginia, didn’t seem to have panned out.

A 2014 report by Don Bauder in the San Diego Reader is worth quoting at length:

Would you take advice from a gaggle of consultants whose forecasts in the past two decades have been off by 50 percent?

Of course you wouldn’t. But all around the U.S., politicians, civic planners, and particularly business executives have been following the advice of self-professed experts who invariably tell clients to build a convention center or expand an existing one.

A remarkable new book, Convention Center Follies: Politics, Power, and Public Investment in American Cities, published by the University of Pennsylvania Press, tells the amazing story of how one American city after another builds into a massive glut of convention-center space, even though the industry itself warns its centers that the resultant price-slashing will worsen current woes.

The author is Heywood Sanders, the nation’s ranking expert on convention centers, who warned of the billowing glut in a seminal study for the Brookings Institution back in 2005. In this new, heavily footnoted, 514-page book, Sanders, a professor of public administration at the University of Texas/San Antonio, exhaustively examines consultants’ forecasts in more than 50 cities….

The worst news: “These expansions will keep happening,” as long as “you have a mayor who says it is free,” says Sanders.

Or a governor:

“We would lose $419 million over the next 20 years if we did nothing, if we said, go on, move somewhere else, which the NBA said they would do,” Walker continued. “In this case, we don’t raise any taxes. There are no new taxes, only existing taxes. And we get a three to one return.”

The project will be funded by existing taxes on hotel rooms and rental cars, though the Wisconsin Center Board has the authority to raise the rate, he said.

“In this case, we take the tax, the revenues on hotels and rental cars that are currently paid for the convention center and allow those to continue to be paid for a new arena,” Walker said. “It’s not a new tax.”

This wasn’t the worst thing Scott Walker said to Jonathan Karl on ABC. He also said he wouldn’t rule out re-invading Iraq. But any presidential candidate who believes that taxpayer-subsidized stadiums are “a good deal” shouldn’t be anywhere near the federal Treasury.

An earlier version of this post relied on an erroneous quotation by ABC News in the first and last paragraphs. The post has been corrected to reflect the video with Walker’s actual language.

Posted on June 8, 2015  Posted to Cato@Liberty

Maoist Shaming Tactics Spread from Shanghai to Santa Monica and Silicon Valley

Ariana Eunjung Cha reports on the newest target of public shaming in China:

Long before the Internet was invented, China’s Communist Party was already skilled in the art of public shaming.

Dissidents have been known to disappear and then reappear after having published essays of self-criticism. On state-run television, business people, celebrities and editors have appeared so regularly from behind prison bars speaking about their misdeeds that the segments were like an early take on reality TV.

Now officials are using the tactic on another group that it feels has wronged the country: smokers.

Beijing has not relied just on public humiliation. It has banned smoking in indoor public places and workplaces, complete with large fines and massive propaganda campaigns. It also plans to

take more dramatic measures by posting the names of those breaking the law three times on a Web site in order to shame them.

That may not sound like a big deal, but in Asia the reaction of online citizens to inappropriate behavior can be harsh. Among the most infamous cases is one in 2005 when a woman in South Korea who refused to clean up her dog’s waste was caught in photos that were posted online. Internet users quickly discerned her identity and she was harassed so badly that she reportedly quit her university.

We expect this sort of thing in a country ruled by the Chinese Communist Party and still influenced by Maoist ideas and practices. What’s disappointing is to see such tactics spreading in a country founded on the principles of life, liberty, and the pursuit of happiness. Where once people feared harassment for giving to gay-rights groups, now we see people harassed for giving money to oppose gay marriage. Silicon Valley CEO Brendan Eich was forced to resign for having donated $1000 to the campaign for Proposition 8. A small-town pizzeria in Indiana was faced with a firestorm of media, Twitter harassment, and death threats after one of its family owners said they wouldn’t provide pizzas for a hypothetical gay wedding reception. Two gay entrepreneurs, generous contributors to gay causes, were targeted after they had dinner with anti-gay-rights senator Ted Cruz. Numerous people caught in such crosshairs, including Eich and the dinner hosts, have issued statements of self-criticism, just like during the Cultural Revolution in China. Andrew Sullivan, a pioneering crusader for gay marriage, deplored the defenestration of Eich, asking in a blog post titled “The Hounding of a Heretic”:

Will he now be forced to walk through the streets in shame? Why not the stocks? The whole episode disgusts me – as it should disgust anyone interested in a tolerant and diverse society. If this is the gay rights movement today – hounding our opponents with a fanaticism more like the religious right than anyone else – then count me out. If we are about intimidating the free speech of others, we are no better than the anti-gay bullies who came before us.

And now we have “drought shaming” in California. The state refuses to do something sensible like charging market prices for water, so it’s forced to rationing and hectoring. And bring on the shaming:

California’s drought is turning neighbor against neighbor, as everyone seems to be on the lookout for water wasters….

In this new age of social media and apps for everything, so called “droughtshaming,” can be much more public, and nastier than what Demian got a taste of.

Just look at Twitter. If you search the social media site for the hashtags #DroughtShame or #DroughtShaming,” you’ll find hundreds, if not thousands of very public reprimands of water wasters, often with pictures, video, and a lot of addresses….

And there’s more — droughtshaming apps….

There’s another, newer app devoted only to droughtshaming, and it’s called, obviously, DroughtShameApp. Creator Dan Estes, a Santa Monica real estate agent, says he made the app just a few weeks ago out of a feeling of responsibility.

“I think like a lot of Angelenos, I’m a little freaked out by the drought,” he told NPR. “It just seems like something has to be done to avoid a long-term catastrophe.” Estes’ app lets users upload geo-located photos, with captions and addresses to report water wasters.

In many of these cases, actual legal coercion goes along with the public shaming. Beijing will fine smokers and bars, florists are being forced to supply flowers for gay weddings, and California has mandatory water restrictions. But the public shaming adds a new dimension of mob behavior and chilling effects.

Technology is part of the problem here. Back in 1978, when gays and their allies feared being on a list of opponents of the antigay Briggs Initiative, the list of donors was officially public. But you had to go to the office of the secretary of state (or maybe the county clerk) to inspect such a list. By 2008, when Proposition 8 was on the ballot, donor lists could be downloaded and posted on the internet in alphabetical and searchable form. From the privacy of your own home you could find out whether your friends, neighbors, or favorite celebrities had contributed to the side you found morally reprehensible. Today Facebook, Twitter, and specialized apps make it easier than ever to point a public finger at anyone who offends you.

I’m a First Amendment absolutist. I don’t want anyone forbidden to publicly criticize others. But I don’t want to live in a Cultural Revolution either. Chinese novelist Murong Xuecon remembers his childhood:

[My] teacher summoned me before an assembly of the whole school to read a 600-word essay of self-criticism that he had made me write. I admitted I was lazy. I said I didn’t respect discipline and had let down my teachers and parents. My classmates appeared amused and my teacher satisfied. For me it was like I had been exposed naked to all.

This kind of scene is not uncommon. From primary school to university, I witnessed countless such public humiliations: for fighting, cheating or petty misdemeanors. Caught committing any of these offenses and you may have to stand before the student body, criticizing your own “moral flaws,” condemning your character defects, showing yourself no mercy, even exaggerating your faults. Only those who have endured it can know the depth of shame one feels.

Our new bouts of Twitter shaming and demands for firings and public apologies feel too much like that. Murong went on to write:

Socialist countries tend to emphasize national and collective interest ahead of individual rights and dignity. This has been a constant throughout 66 years of Communist rule in China, but in the past two years the tendency has become increasingly strident. Cases of public shaming show us how in the name of some great cause, individual rights, dignity and privacy can all be sacrificed.

Respecting the rights of individual citizens — even wrongdoers — is a fundamental principle of a moral society. 

Indeed it is. Calling out genuine prejudice or threatening behavior is one thing. But public denunciations of people for holding the positions that, say, President Obama held a few years ago are too reminiscent of the forced conformity of authoritarian regimes. Let’s not let technology turn us into a new theocracy.

Posted on June 2, 2015  Posted to Cato@Liberty

David Boaz discusses his book, ‘The Libertarian Mind’, on Arlington Independent Media’s The Bookman’s Corner

Posted on June 1, 2015  Posted to Cato@Liberty

Cato Institute’s pocket constitution is promoted on CMN’s The Jim Bohannon Show

Posted on June 1, 2015  Posted to Cato@Liberty

From the Rights of Englishmen to the Inalienable Rights of All Men

Daniel Hannan writes in the Wall Street Journal today about Magna Carta, whose 800th anniversary will also be celebrated at a Cato conference next week. Alas, he persists in an error that I regret to say he’s made before.

Hannan is a great advocate of liberty and particularly of English liberty. His patriotism is admirable in an English representative to the European Parliament. But he fails to grasp the shift in the idea of liberty that took place in America in the 1770s. Hannan, I think correctly, celebrates Magna Carta as the great foundation of ordered liberty, of what I have called the greatest libertarian achievement in history, bringing power under the rule of law:

As Lord Denning, the most celebrated modern British jurist put it, Magna Carta was “the greatest constitutional document of all time, the foundation of the freedom of the individual against the arbitrary authority of the despot.”

It was at Runnymede, on June 15, 1215, that the idea of the law standing above the government first took contractual form. King John accepted that he would no longer get to make the rules up as he went along. From that acceptance flowed, ultimately, all the rights and freedoms that we now take for granted: uncensored newspapers, security of property, equality before the law, habeas corpus, regular elections, sanctity of contract, jury trials.

But he goes wrong when he glosses over the change in thinking that occurred around 1776 in the American colonies:

The American Revolutionaries weren’t rejecting their identity as Englishmen; they were asserting it. As they saw it, George III was violating the “ancient constitution” just as King John and the Stuarts had done. It was therefore not just their right but their duty to resist, in the words of the delegates to the first Continental Congress in 1774, “as Englishmen our ancestors in like cases have usually done.”

Nowhere, at this stage, do we find the slightest hint that the patriots were fighting for universal rights. On the contrary, they were very clear that they were fighting for the privileges bestowed on them by Magna Carta. The concept of “no taxation without representation” was not an abstract principle. It could be found, rather, in Article 12 of the Great Charter: “No scutage or aid is to be levied in our realm except by the common counsel of our realm.” In 1775, Massachusetts duly adopted as its state seal a patriot with a sword in one hand and a copy of Magna Carta in the other.

I recount these facts to make an important, if unfashionable, point. The rights we now take for granted—freedom of speech, religion, assembly and so on—are not the natural condition of an advanced society. They were developed overwhelmingly in the language in which you are reading these words.

When we call them universal rights, we are being polite.

It’s true that the colonists came here with the spirit of English liberty running in their veins. They brought with them the books of Locke and Sydney, the examples of Lilburne and Hampden, the writings of Edward Coke. In the 18th century they read Cato’s Letters and William Blackstone. They petitioned Parliament and the king for their rights as Englishmen. 

But the Declaration of Independence marks a break in that thinking. When Thomas Jefferson sat down to write “an expression of the American mind,” he did not appeal to the rights of Englishmen. Instead, the Americans declared:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. (emphases added)

They appealed not to the British Parliament nor to King George III, but rather to “the opinions of mankind…a candid world…the Supreme Judge of the world.” Hannan glosses over this when he makes reference to 1774 and writes, “Nowhere, at this stage, do we find the slightest hint that the patriots were fighting for universal rights.” True, not in 1774. But by 1776, when Thomas Paine published Common Sense, in which he defended “the natural rights of all mankind” and denounced kings as “ruffians” and “a French bastard landing with an armed banditti,” and the Continental Congress made its case on the basis of the unalienable rights of all men, American thinking had changed. Americans declared their belief in universal rights and their independence from a nation that denied those rights.

As I was researching this post, I found a similar argument from Tim Sandefur a year ago. Alas, Hannan persists in making this error year after year. Besides citing the argument of the Declaration, Sandefur presents in evidence the thoughts of John Quincy Adams on the 50th anniversary of the Constitution:

English liberties had failed [the Patriots]. From the omnipotence of Parliament the colonists appealed to the rights of man and the omnipotence of the God of battles. Union! Union! was the instinctive and simultaneous cry throughout the land. Their Congress, assembled at Philadelphia, once—twice had petitioned the king; had remonstrated to Parliament; had addressed the people of Britain, for the rights of Englishmen—in vain. Fleets and armies, the blood of Lexington, and the fires of Charlestown and Falmouth, had been the answer to petition, remonstrance and address.

Independence was declared. The colonies were transformed into States. Their inhabitants were proclaimed to be one people, renouncing all allegiance to the British crown; all co-patriotism with the British nation; all claims to chartered rights as Englishmen. Thenceforth their charter was the Declaration of Independence. Their rights, the natural rights of mankind. Their government, such as should be instituted by themselves, under the solemn mutual pledges of perpetual union, founded on the self-evident truths proclaimed in the Declaration…. The omnipotence of the British Parliament was vanquished. The independence of the United States of America, was not granted, but recognized. The nation had “assumed among the powers of the earth, the separate and equal station, to which the laws of nature, and of nature’s God, entitled it.”

Daniel Hannan is a thoughtful, forceful, and eloquent advocate of liberty under law. But he needs to read the Declaration of Independence and respect what it says, that the United States of America, though inspired by the tradition of English liberty, was founded on the self-evident truth that all men are endowed by their Creator with certain unalienable Rights, and that those rights reside in all men and women in every country of the earth.

 

Posted on May 30, 2015  Posted to Cato@Liberty

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