David Boaz

Cato fellow Lawrence Gasman has a new book out: Nanotechnology Applications and Markets. It’s about business opportunities in nanotech, not policy, though it has a very brief discussion of the pros and cons of government funding.

But if you’re interested in the business of nanotech, Gasman knows the technology field well.

Supporters of the Marriage Protection Amendment say that even though it failed in the Senate on Wednesday, they are pleased that it did better than two years earlier. But let’s do the math. In 2004 supporters lost a cloture vote 48-50, with two opponents not voting. So their strength on moving the amendment to a floor vote was 48-52. This year the vote was 49-48, far short of the 60 needed to invoke cloture or the 67 for a constitutional amendment. If all senators had voted, the vote would likely have been 50-50. So maybe that’s a pickup of two votes for amendment supporters.

But the Republicans picked up four Senate seats in the 2004 election. So relative to the number of Republicans in the Senate, support for the amendment actually slipped by two votes. Supporters picked up no Democrats, and they lost two Republicans. Judiciary Committee chairman Arlen Specter voted for cloture in 2004, though he would have voted against the amendment itself; this year he voted against cloture and quoted two Cato publications in his Senate speech. Judd Gregg joined his New Hampshire colleague John Sununu in voting for federalism over centralism after realizing that the 2003 Massachusetts court ruling for marriage equality in that state is not being replicated nationwide. Given that younger voters are much more supportive of same-sex marriage than older voters, it seems unlikely that support for an amendment will grow in future years.

On a trip to East Germany last week I talked to a politician who had been involved in the 1989 Leipzig protests that led to the opening of the Berlin Wall. I asked him, “When Reagan said ‘Mr. Gorbachev, tear down this wall!’ in 1987, did you know that?” He said, yes, not from East German TV but from West German TV, which they could watch. And what did you think, I asked. “We thought it was good, but we thought it was impossible.” And yet just two years later, “peace prayers” in Leipzig’s Nikolaikirche turned into protests for liberalization and open borders. The Leipzig politician told me, “As it says in the Bible, we walked seven times around the inner city, and the wall came down.”

Then I went to a museum exhibit in Leipzig on the history of the German Democratic Republic. It was very impressive, with a large collection of posters, letters, newspapers, video, and more. Alas, it was all in German, so I had only a dim understanding of what it all said. I did get the impression that it wasn’t a balanced presentation of communism such as might be found in a Western museum; these curators knew that communism had been a nightmare, and they were glad to be out of it. As it happened, the only English words in the entire exhibit came in the collection of audio excerpts that greeted visitors in the entry foyer. And they were a familiar voice proclaiming “Mr. Gorbachev, open this gate!”

The New York Times reports on a new production of Samuel Beckett’s “Waiting for Godot” which “implies that that the mysterious, perpetually awaited Godot, often thought of as God, is actually the Federal Emergency Management Agency.”

Which makes sense, since too many people in the theater and allied worlds think that the federal government is God.

Here’s a new topic for Chairman Sensenbrenner’s suddenly awake Judiciary Committee: “RECKLESS JUSTICE: Does the Marriage Protection Amendment Trample the Constitution?” Of course, the case seems open and shut. In the landmark Lopez case a decade ago, Chief Justice Rehnquist opened with the basics: “We start with first principles. The Constitution establishes a government of enumerated powers.”

Marriage law has always been reserved to the states in our federal system. Law professor Dale Carpenter calls the Marriage Protection Amendment, which the Senate will debate and vote on next week, “a radical intrusion on the nation’s founding commitment to federalism in an area traditionally reserved for state regulation” in his Cato study released today.

Conservatives claim to believe in federalism, until the states do things they don’t like. Then they turn into New Deal liberals, believing that the federal government should correct the errors of the 50 states. The proposed Marriage Protection Amendment would not just protect states from being forced to recognize same-sex marriages made in other states, as some proponents claim. It would forbid any of the several states from deciding — through court decision, legislative action, or even popular initiative — to extend marriage to gay couples. Depending on the interpretation of its language, it may even ban civil unions and domestic partnerships.

Of course, it’s not good lawmaking to propose an amendment to the Constitution whose language is so unclear, even to its supporters. But then, this really isn’t lawmaking. Majority Leader Bill Frist knows the amendment won’t pass the Senate next week. It failed in 2004 and is likely to get only a handful more votes this time. A majority leader usually doesn’t bring legislation to the floor that he knows will fail. Frist must have some other purpose in mind in bring this amendment up for a futile vote.

At last Republican congressional leaders have found an abuse of executive power that offends them:

An unusual FBI raid of a Democratic congressman’s office over the weekend prompted complaints yesterday from leaders in both parties, who said the tactic was unduly aggressive and may have breached the constitutional separation of powers between the executive and legislative branches of government….

Republican leaders, who previously sought to focus attention on the Jefferson case as a counterpoint to their party’s own ethical scandals, said they are disturbed by the raid. Senate Majority Leader Bill Frist (R-Tenn.) said that he is “very concerned” about the incident and that Senate and House counsels will review it.

House Speaker J. Dennis Hastert (R-Ill.) expressed alarm at the raid. “The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case,” he said in a lengthy statement released last night.

“Insofar as I am aware, since the founding of our Republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this Separation of Powers line, in order to successfully prosecute corruption by Members of Congress,” he said….

Former House speaker Newt Gingrich (R-Ga.), in an e-mail to colleagues with the subject line “on the edge of a constitutional confrontation,” called the Saturday night raid “the most blatant violation of the Constitutional Separation of Powers in my lifetime.”

If they are finally awake to the executive branch’s indifference to constitutional restrictions, they could find some more opportunities for oversight and correction here and here.

The Financial Times selects the most influential pundits and commentators in countries around the world. Their South African correspondent writes that the opinions of Moeletski Mbeki “arguably carry more clout” than those of his brother the president. If so, that’s good news for South Africa. Judging by his Cato paper “Underdevelopment in Sub-Saharan Africa: The Role of the Private Sector and Political Elites,” Mbeki has a pretty insightful understanding of what Africa suffers from. He blames African poverty on mismanagement and exploitation by political elites that control the state and see it as a source of personal enrichment. Inhibiting wealth creation by the private sector, the elites use marketing boards and taxation to divert agricultural savings to finance their own consumption and to strengthen the apparatus of state repression. He writes that peasants, who constitute the core of the private sector in sub-Saharan Africa, must become the real owners of their primary asset — land — over which they currently have no property rights (in much of sub-Saharan Africa, though South Africa is an exception to this).

On “The McLaughlin Group,” John McLaughlin asks if the United States should impose tariffs on Mexico equal to the cost of providing social services to Mexican immigrants if Mexico doesn’t stop illegal cross-border traffic. Pat Buchanan responded by emphasizing the need for U.S. border security, Eleanor Clift said it would be too costly for Mexico, and Tony Blankley said it would probably be a violation of WTO. Mort Zuckerman said the reaction to such a law in Mexico would move the country far to the left.

It seems to me that all of these insightful pundits missed the point: McLaughlin was proposing that Mexico build a wall to keep Mexicans inside. Immigration advocates sometimes warn that a fence along the border would be “a new Berlin Wall.” But that’s a little over the top; the Berlin Wall was designed to keep East Germans in, to declare them the property of a repressive regime that couldn’t survive if it allowed people to vote with their feet. Whatever its demerits, an American fence would be intended to protect our borders and regulate who could come in.

But McLaughlin’s proposed Mexican wall would be a new Berlin Wall. Anybody can stumble into a bad idea, but it’s disappointing that not one of McLaughlin’s four guests noticed the import of his proposal.

Two consecutive stories on NPR’s “Morning Edition” Friday took very different approaches to the issue of medical risk and scientific proof. First Snigdha Prakash reported on a new study showing that heart problems from Vioxx can last up to a year after you stop taking the drug. She quoted only critics of Vioxx and gave no indication that there might be another side to the story. She noted that Merck has won three trials and lost three so far; she didn’t remind us of the famous quote from Merck’s highest-profile loss:

Jurors who voted against Merck said much of the science sailed right over their heads. “Whenever Merck was up there, it was like wah, wah, wah,” said juror John Ostrom, imitating the sounds Charlie Brown’s teacher makes in the television cartoon. “We didn’t know what the heck they were talking about.” (Merck Loss Jolts Drug Giant, Industry, August 22, 2005, The Wall Street Journal)

In the next story Joanne Silberner reported on concerns that four California women “had died after taking the two-drug abortion pill combination, Mefipristone, sometimes called RU486, and Misoprostol….The deaths appeared to be a horrific side effect of the drugs.” But Silberner immediately noted that “it’s not likely to be that simple.” She quoted experts who cautioned against jumping to conclusions. She noted that the numbers were small. We need to know much more before we could assume there was a problem with these abortion drugs.

It was a good example of careful, cautious reporting. But why are journalists seemingly much more cautious in reporting medical risks involving abortion than in reporting other kinds of risks? There are plenty of critics of the “junk science” involved in the Vioxx stories; why aren’t they interviewed in Vioxx stories? The numbers were small in the Vioxx study, as in the case of the abortion drugs, but that fact was dismissed in one report and emphasized in the other.

Cato’s Jerry Taylor noticed something similar in a Wall Street Journal column 11 years ago (January 3, 1995; not online). He noted that the Journal of the National Cancer Institute

caused quite a stir by publishing an epidemiological study suggesting that women who have abortions are 50% more likely to develop breast cancer than women who do not….”Not so fast,” countered epidemiologists; a 1.5 risk ratio (as epidemiologists put it) “is not strong enough to call induced abortion a risk factor for breast cancer.”

Taylor agreed that a 1.5 risk ratio is below the appropriate level of concern. But he wondered why “the same risk ratio that was so widely pooh-poohed by scientists as insignificant and inconclusive when it comes to abortion was deemed by the very same scientists an intolerable health menace when it comes to secondhand smoke. Actually, that’s not quite true. The 1.3 risk factor for a single abortion was significantly greater than the really hard to detect 1.19 risk ratio for intensive, 40-year, day-in-day-out pack-a-day exposure to secondhand smoke (as figured by the EPA).”

Taylor worried that too many people fail to understand statistical probabilities or assume that correlation equals causation. He also wondered whether even scientists are susceptible to a political bias against smoking or for a woman’s right to choose. How much more true that must be for journalists.

Microsoft has agreed to remain under Justice Department supervision until 2009, to ensure that it continues to be forced to give away its property to competitors. (That is, it will continue “to provide access to Windows communications code that would let competitors write software to link with Windows-powered personal computers with the same facility as servers using Microsoft software.”)

Given the relative success of Microsoft and the U.S. government when it comes to innovation, help for the American economy, and customer satisfaction, it would probably make more sense to put the U.S. government under Microsoft’s supervision until 2009.