He’s No Libertarian

Dana Milbank of the Washington Post warns readers that "Rick Perry is no libertarian." Good point. Now if only the Post had warned voters about Barack Obama back in 2007. And alas, Milbank could be kept busy for the next few weeks writing about presidential candidates who are "no libertarian."

Posted on August 31, 2011  Posted to Cato@Liberty

How Judges Protect Liberty

In my Encyclopedia Britannica column this week, I take a look at "the responsibility of judges to strike down laws, regulations, and executive and legislative actions that exceed the authorized powers of government, violate individual rights, or fail to adhere to the rules of due process." Certainly they don't always live up to those expectations, as Robert A. Levy and William Mellor wrote in The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom The column might have been more timely last summer, when Judge Andrew Napolitano concluded one of his Freedom Watch programs on the Fox Business Channel by hailing four federal judges who had courageously and correctly struck down state and federal laws:
  • Judge Martin L. C. Feldman, who blocked President Obama’s moratorium on oil drilling in the Gulf of Mexico;
  • Judge Susan Bolton, who blocked Arizona’s restrictive immigration law;
  • Judge Henry Hudson, who refused to dismiss Virginia’s challenge to the health care mandate; and
  • Judge Vaughn Walker, who struck down California’s Proposition 8 banning gay marriage.
That was a good summer for judicial protection of liberty. But as I note, there have been more examples this year, reminding us of James Madison's predictions that independent judges would be "an impenetrable bulwark against every assumption of power in the legislative or executive."

Posted on August 30, 2011  Posted to Cato@Liberty

David Boaz on the economic costs of Hurricane Irene on FBN

Posted on August 29, 2011  Posted to Cato@Liberty

Stop the Madness, President Calderon

The Wall Street Journal covers a single day in Mexico's drug war, a day on which 25 people died in separate incidents. The summary paragraphs tell a story of failure:
Since President Felipe Calderón took office in December 2006, declaring war on traffickers, roughly 43,000 people have been killed in drug-related homicides here, according to government figures and newspaper estimates. The pace of killings is escalating. More than half the dead, 22,000, were killed in the past 18 months, a rate of one every 35 minutes.... Mexico's murder rate has more than doubled, to 22 deaths per 100,000 residents in 2010, in just four years, a period that parallels the drug war. Before that, it had been falling steadily. In the U.S. the murder rate is about 5 per 100,000.
This policy is not working. President Calderon, I beseech you, in the bowels of Christ, think it possible you may be mistaken. Read the advice of President Fox's foreign minister or this discussion by Cato's Ted Galen Carpenter. American policymakers should also recognize that this crisis threatens us -- and that we can help to end it.

Posted on August 29, 2011  Posted to Cato@Liberty

Judges and the Rule of Law

David Boaz

Two weeks ago federal judge Nancy Freudenthal ruled against an Interior Department policy that rolled back exemptions from environmental review for certain oil-and-gas activities on federal lands. In "a setback for the Obama administration, which has sought to expand scrutiny of the environmental impact of oil-and-gas drilling," she said that the policies were issued without proper public notice and comment.


Three months ago a Wisconsin judge ruled that Wisconsin's controversial collective-bargaining had been passed improperly. (That ruling was reversed in June by the Wisconsin Supreme Court, and the law went into effect.)

Whatever you think about the substance of these laws, we should all be glad that there are independent judges, in both federal and state courts, prepared to strike down the actions of the legislative and executive branches when necessary. When liberal judges do that, conservatives disparage it as "judicial activism." When conservative judges do it, it's liberals who complain about "judicial activism." But everyone who believes in individual rights, limited government, and the rule of law should welcome a vigilant judiciary. It is the responsibility of judges to strike down laws, regulations, and executive and legislative actions that exceed the authorized powers of government, violate individual rights, or fail to adhere to the rules of due process.

In proposing the Bill of Rights in the House of Representatives, James Madison said that


independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.


And in Federalist 78, Alexander Hamilton wrote that the judiciary would be the "least dangerous" branch of government because it possesses the power of neither sword nor purse.

Sometimes the courts live up to those aspirations, in cases from Lochner and Brown v. Board right up to the last days of the past Supreme Court term. Sometimes not so much, as Robert A. Levy and William Mellor wrote in The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom. But as legal scholar Richard Epstein said in a 1984 debate with Judge Antonin Scalia, "the imperfections of the judicial system must be matched with the imperfections of the political branches of government." And legislatures make plenty of mistakes.

Last summer Judge Andrew Napolitano concluded one of his Freedom Watch programs on the Fox Business Channel by hailing four federal judges who had courageously and correctly struck down state and federal laws:

  • Judge Martin L. C. Feldman, who blocked President Obama's moratorium on oil drilling in the Gulf of Mexico;
  • Judge Susan Bolton, who blocked Arizona's restrictive immigration law;
  • Judge Henry Hudson, who refused to dismiss Virginia's challenge to the health care mandate; and
  • Judge Vaughn Walker, who struck down California's Proposition 8 banning gay marriage.

It was a remarkable summer for judicial protection of individual rights and limited government.

One charge that's often raised in these politically polarized times is that judges simply rule on the basis of their partisan allegiance — Democratic-appointed judges uphold Obamacare, Republican-appointed judges rule against it. That would be a troubling pattern. One of the reasons we have life tenure for federal judges is to free them from such political pressures. Fortunately, the charge is not entirely true. Judge Jeffrey Sutton, a former law clerk to Justice Scalia who was vigorously opposed by liberals when President George W. Bush appointed him to the Sixth Circuit, voted to uphold the individual mandate. Judge Frank Hull, a Clinton appointee, voted in the 11th Circuit to strike down the law. Judge Freudenthal, who struck down the Obama administration's attempt to make oil and gas drilling on federal lands more difficult, is not only a Democrat; she was appointed to the bench in 2009 by President Obama while her husband Dave served as the Democratic governor of Wyoming. And perhaps most famously, Judge Vaughn Walker, who struck down Proposition 8, was appointed by President Reagan in 1987; his nomination was so effectively opposed by Rep. Nancy Pelosi, Sen. Edward M. Kennedy, the NAACP, and gay-rights groups that he had to be renominated two years later by another Republican president, George Bush.

Democrats and Republicans alike can read the Constitution. They both know that it says that "Congress shall make no law ... abridging the freedom of speech, or of the press." They both know that the principal author of the Constitution, James Madison, wrote in Federalist 45, "The powers delegated by the proposed Constitution to the federal government are few and defined." They both know that American citizens, even those accused of terrorism, are entitled to their "constitutional rights — like habeas corpus, which requires the government to justify continued detentions, and the Sixth Amendment, which assures a speedy and public jury trial with assistance of counsel."

The separation of powers, with an independent judiciary, is essential to the rule of law and the protection of freedom. It is refreshing to see how often judges do live up to the expectation that they would "be an impenetrable bulwark against every assumption of power in the legislative or executive."

Posted on August 29, 2011  Posted to Cato@Liberty

Hurricane Irene as Economic Stimulus

Oh, dear. Oh, dear. No matter how many times economists debunk the broken window fallacy, not a natural disaster goes by that journalists don't try to cheer us up by saying "at least it will stimulate economic growth." This time it's Josh Boak (no relation!), the economics reporter (!) at Politico, who was "educated at Princeton and Columbia." And Sunday afternoon he posted this story:
Irene: An economic blow or boost?
The power outages and shuttered airports may stop the engines of commerce for several days, but Hurricane Irene might have provided some short-term economic stimulus as billions of dollars will likely be spent to repair the damage to the East Coast over the weekend. Cumberland Advisors Chairman David Kotok saw the storm as likely jolting employment in construction, an industry paralyzed by the bursting of the real estate bubble in 2008.

“We are now upping our estimate of fourth-quarter GDP in the U.S. economy,” he said in an email Sunday. “Billions will be spent on rebuilding and recovery. That will put some people back to work, at least temporarily.”

Kotok expects GDP growth — which limped along at less than a percentage point for the first half of the year — to exceed 2 percent in the last three months of the year and potentially reach 3 percent. Mark Merritt, president of crisis-management consulting firm Witt Associates, said the hurricane should provide a bump in economic activity over the next few months. “After a disaster, there’s always a definite short-term increase,” Merritt said. “There will be furniture bought, homes repaired, new carpet, new flooring, all the things affected by flooding.”
The story quotes no economist, who might have pointed out that the destruction of homes, businesses, and other property cannot actually be good for the economy. As economist Sandy Ikeda summed it up last year, the argument is that "paying $100 to replace a broken window somehow creates more prosperity than having an intact window and spending that $100 on something else." He goes on to ask, as many economists have: If destruction is so good for an economy, why wait for a hurricane or a bombing raid? Why not just bomb your own cities? As Frederic Bastiat explained the "broken window fallacy," a boy breaks a shop window. Villagers gather around and deplore the boy’s vandalism. But then one of the more sophisticated townspeople, perhaps one who has been to college and read Keynes, says, “Maybe the boy isn’t so destructive after all. Now the shopkeeper will have to buy a new window. The glassmaker will then have money to buy a table. The furniture maker will be able to hire an assistant or buy a new suit. And so on. The boy has actually benefited our town!” But as Bastiat noted, “Your theory stops at what is seen. It does not take account of what is not seen.” If the shopkeeper has to buy a new window, then he can’t hire a delivery boy or buy a new suit. Money is shuffled around, but it isn’t created. And indeed, wealth has been destroyed. The village now has one less window than it did, and it must spend resources to get back to the position it was in before the window broke. As Bastiat said, “Society loses the value of objects unnecessarily destroyed.” In the comic strip "Pearls Before Swine," the nefarious Rat used the destruction-as-stimulus argument to defend his client's blowing up downtown: But that's a comic strip. Journalists should do better. Please, call one of these economists. They can tell you that destruction is destructive. When property is destroyed, people have less wealth. The money they had been saving for a new business or a new computer or a college education, now they have to spend it on rebuilding what they had. That is not "a bump in economic activity."

Posted on August 28, 2011  Posted to Cato@Liberty

Drug Decriminalization Has Failed?

David Boaz

Michael Gerson, former speechwriter for President George W. Bush and now a columnist for the Washington Post, has denounced libertarianism as "morally empty," "anti-government," "a scandal," "an idealism that strangles mercy," guilty of "selfishness," "rigid ideology," and "rigorous ideological coldness." (He's starting to repeat himself.)


In his May 9 column, "Ron Paul's Land of Second-Rate Values," he went after Rep. Paul for his endorsement of drug legalization in the Republican presidential debate. "Dotty uncle," he fumed, alleging that Paul has "contempt for the vulnerable and suffering." Paul holds "second-rate values," he added.

What did Paul do to set him off? He said that adult Americans ought to have the freedom to make their own decisions about their personal lives — from how they worship, to what they eat and drink, to what drugs they use. And he mocked the paternalist mindset: "How many people here would use heroin if it were legal? I bet nobody would say, 'Oh yeah, I need the government to take care of me. I don't want to use heroin, so I need these laws.'"

Gerson accused Paul of mocking not paternalists but addicts: "Paul is not content to condemn a portion of his fellow citizens to self-destruction; he must mock them in their decline." Gerson wants to treat them with compassion. But let's be clear: He thinks the compassionate way to treat suffering people is to put them in jail. And in the California case Brown v. Plata, the Supreme Court just reminded us what it means to hold people in prison:


California's prisons are designed to house a population just under 80,000, but ... the population was almost double that. The State's prisons had operated at around 200% of design capacity for at least 11 years. Prisoners are crammed into spaces neither designed nor intended to house inmates. As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correctional officers. As many as 54 prisoners may share a single toilet. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth-sized cages without toilets.


Gerson knows this. His May 27 column quoted this very passage and concluded, "[I]t is absurd and outrageous to treat [prisoners] like animals while hoping they return to us as responsible citizens."

Gerson contrasted the "arrogance" of Paul's libertarian approach to the approach of "a Republican presidential candidate [who] visited a rural drug treatment center outside Des Moines. Moved by the stories of recovering young addicts, Texas Gov. George W. Bush talked of his own struggles with alcohol. 'I'm on a walk. And it's a never-ending walk as far as I'm concerned... . I want you to know that your life's walk is shared by a lot of other people, even some who wear suits.'"

Gerson seems to have missed the point of his anecdote. Neither Bush nor the teenagers in a Christian rehab center were sent to jail. They overcame their substance problems through faith and personal responsibility. But Gerson and Bush support the drug laws under which more than 1.5 million people a year are arrested and some 500,000 people are currently in jail.

Our last three presidents have all acknowledged they used illegal drugs in their youth. Yet they don't seem to think — nor does Gerson suggest — that their lives would have been made better by arrest, conviction, and incarceration. If libertarianism is a second-rate value, where does hypocrisy rank?

Gerson seems to have a fantastical view of our world today. He writes, "[D]rug legalization fails. The de facto decriminalization of drugs in some neighborhoods — say, in Washington, D.C. — has encouraged widespread addiction."

This is mind-boggling. What has failed in Washington, D.C., is drug prohibition. As Mike Riggs of Reason magazine wrote, "I want to know where in D.C. one can get away with slinging or using in front of a cop. The 2,874 people arrested by the MPD for narcotics violations between Jan. 1 and April 9 of this year would probably like to know, too."

Michelle Alexander, author of The New Jim Crow, writes, "Crime rates have fluctuated over the past few decades — and currently are at historical lows — but imprisonment rates have soared. Quintupled. And the vast majority of that increase is due to the War on Drugs, a war waged almost exclusively in poor communities of color." Michael Gerson should ask Professor Alexander for a tour of these neighborhoods where he thinks drugs are de facto decriminalized.

In a recent Cato Institute report, Jeffrey Miron of Harvard University estimated that governments could save $41.3 billion a year if they decriminalized drugs, an indication of the resources we're putting into police, prosecutions, and prisons to enforce the war on drugs.

What Gerson correctly observes is communities wracked by crime, corruption, social breakdown, and widespread drug use. But that is a result of the failure of prohibition, not decriminalization. This is an old story. The murder rate rose with the start of alcohol Prohibition, remained high during Prohibition, and then declined for 11 consecutive years when Prohibition ended. And corruption of law enforcement became notorious.

Drug prohibition itself creates high levels of crime. Addicts commit crimes to pay for a habit that would be easily affordable if it were legal. Police sources have estimated that as much as half the property crime in some major cities is committed by drug users. More dramatically, because drugs are illegal, participants in the drug trade cannot go to court to settle disputes, whether between buyer and seller or between rival sellers. When black-market contracts are breached, the result is often some form of violent sanction.

When Gerson writes that "responsible, self-governing citizens ... are cultivated in institutions — families, religious communities and decent, orderly neighborhoods," he should reflect on what happens to poor communities under prohibition. Drug prohibition has created a criminal subculture in our inner cities. The immense profits to be had from a black-market business make drug dealing the most lucrative endeavor for many people, especially those who care least about getting on the wrong side of the law. Drug dealers become the most visibly successful people in inner-city communities, the ones with money and clothes and cars. Social order is turned upside down when the most successful people in a community are criminals. The drug war makes peace and prosperity virtually impossible in inner cities.

There is a place where drugs have been decriminalized, not just de facto but in law. Maybe Gerson should have cited it instead of Washington, D.C. Trouble is, it doesn't make his point. Ten years ago Portugal decriminalized all drugs. Recently Glenn Greenwald studied the Portuguese experience in a study for the Cato Institute. He reported, "Portugal, whose drug problems were among the worst in Europe, now has the lowest usage rate for marijuana and one of the lowest for cocaine. Drug-related pathologies, including HIV transmission, hepatitis transmission and drug-related deaths, have declined significantly."

Posted on August 26, 2011  Posted to Cato@Liberty

The Kennedy View of Wealth

In a column bemoaning Ayn Rand's influence in America, Kathleen Kennedy Townsend writes:
I also see a moral issue with Ayn Rand's insistence that all of us, CEOs included, should be totally free of the ties that bind. I especially disagree when it comes to CEOs. As I wrote here a few months ago, the wealthy have a special responsibility. Much will be asked of those to whom much has been given. Participating in government and civic life, serving in war, helping the less fortunate, and--yes--paying a fair share of taxes are inescapable responsibilities for all Americans, especially for those who have realized the American dream that inspires us all. (emphasis added)
I hear this idea a lot, and of course it can be traced to the words of Jesus: "For unto whomsoever much is given, of him shall be much required." (King James Version, Luke 12:48) But something struck me in its being quoted by Kathleen Kennedy Townsend. Much has been given to her, and to her relatives. And thus wealth has always seemed to her something that falls like manna from heaven. Townsend is the granddaughter of Joseph P. Kennedy and of coal magnate George Skakel. Wikipedia sums up the charmed life her grandparents' wealth gave her:
Townsend was born in Greenwich, Connecticut....She spent most of her childhood in McLean, Virginia and attended Stone Ridge School in nearby Bethesda, Maryland. She graduated from The Putney School in Vermont. She attended Radcliffe College (which later became part of Harvard University), receiving her bachelor's degree in history and literature with honors in 1974.
It's a wonderful life. To her and her family, much was given -- by the hard work of an earlier generation. But most CEOs are not given anything. They have to create wealth. The ones who get the richest, the entrepreneurs, typically work very hard for years. They invent things -- cars, copying processes, software systems, computers, business practices. Sam Walton became fabulously wealthy by delivering mundane items a few pennies cheaper to tens of millions of people, Ray Kroc by standardizing the cheap and efficient delivery of reliable hamburgers. Sure, some CEOs inherit their jobs, but they still have to work to update their products and keep up with the competition. A person who makes money doesn't feel that "much has been given" to him, though rich Americans do nevertheless give a great deal to charity. Perhaps we might change Kennedy Townsend's mantra to
To those from whom we have received much -- the incredible standard of living that investors and businesspeople have helped us all to achieve -- much gratitude is owed.  And if they also devote some of their own wealth to charitable endeavors, they are doubly beneficent.

Posted on August 24, 2011  Posted to Cato@Liberty

Paternalism and Parks

Or, as Timothy Egan titles it at the New York Times: "Nature Without the Nanny State." After reporting on a higher level of deaths this year at Yosemite, and an increased level of warnings and lawsuits, Egan notes:
My experience, purely anecdotal, is that the more rangers try to bring the nanny state to public lands, the more careless, and dependent, people become.
That point might have broader application than national parks.

Posted on August 23, 2011  Posted to Cato@Liberty

David Boaz discusses the role of libertarianism in the 2012 elections on The Brian Wilson Show

Posted on August 23, 2011  Posted to Cato@Liberty

About David Boaz

Click here to learn more.