Saturday, May 31, 2008

Anti-Capitalism and Environmentalism Are Not Coextensive

...And I really wish that Progressives would stop pretending like they are. If fossil fuels are evil and are the biggest source of global warming such that we need to collectively take steps to reduce our use of fossil fuels, then surely anything that reduces that use cannot be a bad thing correct?
Similarly, if corporate profits are inherently evil such that we need to create a "Reasonable Profits Board" for the purveyors of fossil fuels, then any environmental measures that increase prices (and thereby corporate profits) cannot be a good thing, correct?
Of course, the answers to both of these questions are rhetorical. The problem is that at least as applied to oil and fossil fuels, anti-capitalism and environmentalism are utterly inconsistent with each other.
The proof? According to the Federal Highway Administration:

The FHWA’s “Traffic Volume Trends” report, produced monthly since 1942, shows that estimated vehicle miles traveled (VMT) on all U.S. public roads for March 2008 fell 4.3 percent as compared with March 2007 travel. This is the first time estimated March travel on public roads fell since 1979. At 11 billion miles less in March 2008 than in the previous March, this is the sharpest yearly drop for any month in FHWA history.

And of course, the reason for this is high gas prices. In other words: perhaps nothing has had more of a positive effect in terms of reducing greenhouse gas emissions than higher gas prices. So why would any committed environmentalist want to intervene in the market in order to make gas prices lower, on the grounds that high gas prices create "unreasonable" (to whom? by whose standards?) profits?

Meanwhile if higher gas prices (and thereby higher corporate profits) are an inevitable element of any attempt to reduce carbon emissions, then why would any committed anti-capitalist ever be willing to work towards the reduction of carbon emissions?

I suppose one way you could work out these discrepancies is through massive government internvention wherein profits from carbon fuels are either illegal or so highly taxed as to effectively make the oil and gas industries nationally controlled. But if that is the answer, I warn you: that way lies madness. It is impossible to escape the laws of supply and demand - you may as well try to escape the laws of gravity, and any attempt to reconcile anti-capitalism with environmentalism as applied to carbon fuels must, repeat MUST, require an attempt to escape the laws of supply and demand.

In other words, to my Progressive friends: environmentalism or anti-capitalism- you can choose one, but not both. For what it's worth, I might mention that many of you are apparently a lot less anti-capitalist than you think, so perhaps you already have chosen but just want to express anti-capitalism because you think as a Democrat you're supposed to be anti-capitalist. Why do I say this? Because, according to this study, Democrats are as likely to support free trade, pro-business policies as Republicans, when those issues are presented without reference to political party.

Bottom line: if you're an environmentalist who wants us to cut back significantly on our carbon emissions, then you should support big profits for oil companies, in addition of course to some sort of Pigou tax - whether we sign Kyoto is almost irrelevant if fuel prices go sufficiently high.

H/T: Coyote Blog

Friday, May 30, 2008

Of Scarves and Terrorism

Kyle at CFLF weighs in on Scarf-gate and comes away saying that it is "How we know the terrorists have won." The post is one of Kyle's best; normally I'd provide some commentary of my own, but he hits it so far out of the park that I actually have nothing to add.
My only quibble is that I think the terrorists won the second we made it impossible to set foot in public or turn on the TV without seeing Rachael Ray and her annoying awful-catchphrase spouting mug.

Thursday, May 29, 2008

Songs of Freedom

Back in October, I blogged with great sadness about the murder of Lucky Dube by carjackers in Johannesburg, South Africa in front of Lucky's own children. In the post, I discussed Lucky's lifelong passion for freedom and individual liberty as expressed through his music. As I said then, but no other musician had as much an effect on my worldview as he did - not even the great Bob Marley. I doubt he was even vaguely familiar with the philosophy of libertarianism, but Lucky's music oozed freedom, liberty, and individualism, as you can see from the lyrics I quoted in the October post. His song "Together As One" was the first anti-apartheid song ever to make it through the airwaves of South African radio, making Lucky a truly courageous freedom fighter. Moreover, he didn't give up the fight for freedom when apartheid ended- if anything, his lyrics became even more anti-authoritarian, pro-liberty, and pro-individualism with songs like "Taxman" and "Affirmative Action," amongst others including the pro-gay rights "Sleeping Dogs Lie."

Alas, Lucky was barely heard of here in the States. And so, I think it is my solemn duty to change that fact as much as I can. Starting this week, I'm going to try to post one Lucky Dube video every Friday. Enjoy.


Why Obama Could Be the Best Dem President in Recent Memory

I still have every intention of supporting Bob Barr this election as an F-You to the Republicans. But stuff like this gives me hope that a President Obama actually would undo a lot of the harm done by President Bush and Co.:

If elected president, Democratic White House hopeful Barack Obama said one of the first things he wants to do is ensure the constitutionality of all the laws and executive orders passed while Republican President George W. Bush has been in office.
Those that don’t pass muster will be overturned, he said.

Maybe he will do this, and maybe he's just pandering. But if it's pandering, then it's not the sort of pandering that the average person cares about. Regardless, the very fact that he is making a statement like this at least creates the possibility that a President Obama would follow through on it. Would McCain do something like this? I guess it's possible, but as long as he has to walk the tightrope of keeping Bush at arm's length but not so far as to piss of the GOP base, I don't see it happening. As for Sen. Clinton? Please- do you really think that she of the legendary executive privilege battles and of the Health Care Task Force would be willing to overturn decisions that gave her more power?

H/T: Jim Henley at Art of the Possible (via Obsidian Wings).

More at Memeorandum.

Wednesday, May 28, 2008

Best Wishes to Libby!

Libby Spencer is one of the most kind, considered, and intellectually honest bloggers around, left, right, libertarian, or otherwise. Libby blogs at a number of sites, two (Newshoggers and The Impolitic) of which are in my "regular reads" - and in each instance, this is largely because of Libby's smart and honest commentary. Even though I disagree with her probably as often as I agree with her (which is more than I agree with most Progressives thanks to her great work on the War on Drugs and on civil liberties), she has never said an uncivil word in response.

So it was with a strange combination of sadness and relief that I read that the tumor she has been dealing with these last few months was deeper and more extensive than expected, but was also successfully removed. According to her co-bloggers at the Newshoggers, her surgery yesterday was a complete success, and she is recovering well. If you have a second, you can leave her your best wishes here.

Mind-Numbingly Bad Statistics

Since I fit in with neither side, I like to think that I try really hard to criticize the Left as much as the Right. But this week, this has been almost impossible.

A new poll shows that a majority of Californians now support gay marriage and oppose the proposed constitutional amendment banning it. As you may know, I have argued that judicial "activism," to the extent that it protects insular minorities against the tyranny of the majority, is actually a good thing. As such, I don't buy into the arguments made by conservatives these days that the decision validating gay marriage was "legislating from the bench" in a way that usurps the "will of the people." But nonetheless, having a poll that shows that the "will of the people" in fact supports gay marriage pretty much destroys any argument that the "will of the people" has in fact been usurped.

And so, of course, the only response for conservatives who oppose gay marriage and claim that their position is the "will of the people" must either back down from their arguments, or try to discredit the poll. And, given the poll from a week or so ago showing substantially different results from this one, it is entirely possible that this poll is flawed. BUT, if you're going to discredit a poll, it's probably a good idea to be intellectually honest about it, rather than doing what JammieWearingFool does here:

Of course, if you refer to the poll, you see under ideology a full 70 percent of those sampled consider themselves middle of the road (53-35%), moderately liberal (72-23) or strongly liberal (85-11))and they overwhelming favor gay marriage. If you look at the 30% considered moderately conservative (61-32) or strongly conservative (85-11). When broken down by party, the sample is 43% Democrat, 33% Republican, 24% non-partisan. In other words, Republicans are outnumbered 67-33%. Los Angeles County and the San Francisco Bay Area comprise 46% of those polled.In other words, this poll doesn't even come close to a fair representation of the
population. Granted, California is a blue state, but you cannot possibly claim a poll where left outnumbers right 70-30% as valid.

The trouble of course with this is that JammieWearingFool makes several totally absurd assumptions here: 1. That people who consider themselves "middle of the road" are part of the "left"; 2. That people who consider themselves "non-partisan" are part of the "left"; and 3. That even under his unbelievably broad definition of "left," only slightly more than half the voters should be part of the "left."

So when JammieWearingFool says that "left outnumbers right 70-30%" in the poll, he is being more than a little obtuse. In reality, the poll numbers reflect that left and center outnumber right 70-30%, but that self-identified liberals are outnumbered by self-identified conservatives, 30-28%. If California were a pure "purple" state, then you would essentially expect left, right, and center to be about 33% each. Since, as JammieWearingFool acknowledges, California is a "blue" state, a decrease of only 3% from this norm is not exactly earth-shattering. Moreover, this poll from SurveyUSA (and I'm sure there are plenty others from other firms that make similar findings) shows that only about 26% of Californians self-identify as "conservative," with 42% self-identifying as "moderate" and the remaining 22% as "liberal." So, if anything, the poll slightly oversampled conservatives and liberals by about an equal amount.

But the flaws in JammieWearingFool's analysis go further. He decries that only 33% of the respondents to the poll self-identified as Republicans, leaving 2/3 of the people as "not Republicans." In the process, he seems to ignore that 24% of the respondents self-identified as independents, and that Dems only outnumber Republicans 43%-33%. And looking at the numbers from the 2004 elections, we find that in 2004, 43% of voters identified themselves as Democrats, 34.7% as Republicans, and 23% as independents. So, at worst, the poll undersampled Republicans by a whopping 1.7%; of course, given the hard times the GOP has gone through since 2004, it's more likely that self-identified Republicans have decreased by about 2% in California.

Finally, JammieWearingFool criticizes the fact that 46% of poll respondents were from Los Angeles County and the Bay Area. Well, according to the 2006 US Census data, just over a quarter of California residents lived in LA County; and roughly another 20% lived in the Bay Area....which adds up to, you guessed it, 46%!

I look forward to the retraction.

More at memeorandum.

**UPDATE**Lest you think that I'm just picking on one lonely lesser-known Righty blogger, I note that at least one other Righty blogger has picked up the meme from JammieWearingFool.

Political Correctness Strikes Again

At this point, I think we libertarians are officially fighting alone when it comes to the war against political correctness. Clearly, after Michelle Malkin's latest, the Right has lost any and all credibility on this front. To recap: in a commercial for Dunkin' Donuts, Lucifer....err, Rachael Ray, wore a scarf that apparently, kinda sorta, looked like a keffiyeh, which is a Palestinian head dress (most famously the trademark head gear of Yasser Arafat). According to Malkin (clearly an authority on these matters), keffiyeh-like scarves are now a fashionable way of showing solidarity with Palestinian terrorism or for expressing anti-war sentiments (you know, since those two things are clearly two sides of the same coin). As a result, Malkin launched a campaign against Dunkin' Donuts over the ad, threatening a boycott in the, really.

It seems that Dunkin' Donuts has decided to cave in to this threatened boycott. Celebrating her victory, Malkin writes, without a hint of irony that:

"It’s refreshing to see an American company show sensitivity to the concerns of Americans opposed to Islamic jihad and its apologists. Too many of them bend over backwards in the direction of anti-American political correctness. "

Compare this statement to Jesse Jackson's statement in the wake of the Don Imus firing by CBS that the firing was a "victory for public decency." Or to the NAACP's statement that the controversy over that firing was "refreshing." Get my drift?

Political correctness is idiotic, whether it comes from the Right or the Left. And threatening a boycott over a freaking scarf is an all-time new low for trivialities.

More at memeorandum.

Tuesday, May 27, 2008

Non-Political Thought of the Day

As painful and depressing as this season has been for me as a Mets fan, I never seem to tire of listening to the SNY TV crew. I honestly can't imagine a better color team than Ron Darling and Keith Hernandez. To be sure, there are more entertaining crews (the NESN crew come to mind, but never underestimate the "I am Keith Hernandez" factor at SNY), and there may even be more informative crews (though I doubt it), but there can't be a better all-around broadcasting team in baseball.

Tonight was an outright high point, with Keith Hernandez moving down to the front row seats behind home plate to get a different view. He and Ronnie wound up having one of the most instructive discussions about pitching and hitting that I've ever heard.

The thing about this crew is that they don't condescend to the viewer like certain (coughcough McCarver coughcough) other commentators, and so they actually contribute something to your enjoyment of the game by being willing to give the viewer credit for understanding the basics of baseball. Where most color teams are Baseball for Dummies, the SNY crew winds up being more Baseball 301: Advanced Theory and Application.

Plus, you have two members of the '86 Mets doing color....and they're not shy about telling war stories. How bad can that be?

Big Government Conservatism, Part II

Tom Coburn has an Op-Ed in the Wall Street Journal today that makes the case against so-called "compassionate conservatism" and, believe it or not, against spending increases for Iraq and Afghanistan. The piece argues, correctly, that Republicans are in denial that what ails the Republican Party is that Republicans over the last 8 years have ceased to act like Republicans but are instead trying to be big-government liberals. As any of the millions of libertarians and libertarian-leaning conservatives who have abandoned the GOP over the last 8 years will tell you, this is exactly correct.

The response to Coburn's piece from the Right is particularly telling in demonstrating just how much the Right has ceased to care about limited government.

Self-described "libertarian (HA!)" Karl from Protein Wisdom argues that in fact it is Coburn who is in denial, noting that "The 2006 exit poll data suggests that the GOP lost control of Congress because: (a) about half of the electorate had a bad opinion of the economy; (b) the Iraq mission was unpopular; and (c) voters did not see the GOP as particularly ethical. " Of course, all three of these things are symptoms of big-government conservatism, but Karl is unwilling to admit that.

AJStrata: "But that is a minor problem, the bigger problem with Coburn is his whining finger pointing. I have numerous examples of compassionate conservatism which were wholly conservatism and were low to no cost, proving that his rants against the impure are fiction. " Strata goes on to claim that Coburn is a hypocrite since as a Senator he played a part in all of this. This ignores the fact that Coburn has been perhaps the single most steadfast opponent of the growth of government spending in the Senate.

These arguments are not about effective governance, which is what conservatism was once about. Instead, they are arguments about how to gain power. But by focusing for the last 8 years on how to gain and maintain power, Republicans have inevitably governed poorly. Which is why they now stand on the verge of losing all the power they had gained, with virtually no conservative accomplishments to be proud of.

Monday, May 26, 2008

Big Government Conservatism

See-dubya, writing at Michelle Malkin's site, demonstrates how modern conservatism is ultimately more about finding things for the government to do than it is about limiting the size of government. In the post, he says that it is a "fair question" of what our counter-terrorism strategy should be "when" we defeat al-Qaeda. One would think that once the biggest threat (and entire raison d'etre for most of the government's counter-terrorism expansions) was eliminated, the appropriate conservative response would be to, quite simply, eliminate those elements of the government.

But that is not what See-dubya thinks. Instead it would appear that the appropriate conservative reaction to beating al-Qaeda, rather than being to decrease the size of government, is instead to "look[] beyond the end of Al Qaeda and consider[] what fresh horror radical Islam may try to release upon the world. " In other words: once we've beaten the threat of al-Qaeda, the next step ought to be to convert our current unofficial war on Islam into an official war on Islam. I'm sure that won't do ANYTHING to push more people into terrorism and radicalism.

Neo-conservatism is increasingly nothing more than a giant self-fulfilling prophecy.

**UPDATE** I forgot to mention this little nugget from See-dubya's post:

"Administrating the peace is every bit as important as winning the war, as the history of a badly drawn peace after WWI shows."

Of course, the fact that the peace after WWI was so badly drawn arose out of a desire to punish the Central Powers as much as possible (just as See-dubya wants to punish Islam as much as possible) seems to have escaped his memory.

(Last sentence edited for grammar)

A Few More Notes on Barr

Although I have thought Barr was the wisest choice for the LP all along, there were still some areas where I personally had some major hangups (although he previously answered a lot of my concerns about his immigration policy, as I wrote here).

Anyways, after reading about his answers during the LP debate Saturday night, the "major" policy disagreements I have with him were reduced to almost zero. There are still disagreements, to be sure, but for the most part they are matters of detail rather than big picture issues. Quoting from Stephen Littau's liveblog, the most important statements Barr made for me were:

"Barr says U.S. policies are based on fear. Kill the PATRIOT Act real good. "
"What immigration policy? Make sure immigrants are not security threats then let them in. "
"Barr: regrets sponsoring the Defense of Marriage Act. Will work to repeal it."

As far as I know, those were the three areas where Barr's libertarian credibility was most in question. As long as you believe his sincerity (and I do), then I think he passes the libertarian litmus test in just about every way.

For what it's worth, I might add that at least on the immigration issue, Barr's position is more consistent with libertarianism than libertarianism's alleged savior, Ron Paul. Also, his recent work on marijuana policy reform demonstrates a greater commitment to ending the War on Drugs than Ron Paul has ever shown.

Sunday, May 25, 2008

Bob Barr '08

Count me amongst those who are relieved that Bob Barr will be at the top of the Libertarian Party's ticket this fall. To be sure, his Congressional record was far from libertarian. But as I wrote last month, I believe his "conversion" to libertarianism is authentic. The basis for my belief arises from several occasions I had to meet the Congressman (albeit only briefly) back in 2003-2004, long before he called himself a libertarian. Prior to that, in mid-2001, I covered one or two hearings in which Barr participated while interning during law school. The Bob Barr I met in 2003-2004 was already a politically changed man in comparison to the Bob Barr of mid-2001, particularly with respect to foreign policy and civil liberties issues. That this evolution would have continued through the following 4 years strikes me as more than likely. For that reason, I believe Barr that many of his current positions are sincerely held.

Barr is someone who brings an instant level of credibility to the LP that it has not had in its entire history. In a year with so many disgruntled libertarian-leaning conservatives, he represents a real opportunity to siphon off votes from McCain.

But the purists are correct when they say that it shouldn't just be about votes - the LP's mission is to spread the libertarian philosophy. Barr represents an opportunity to do precisely that, as there is a chance (perhaps only 1 in 3, but a chance nonetheless) that he will gain enough support to get into the Presidential debates. If he can do that, then he will have an actual platform to spread libertarian ideals; without that platform, no LP candidate will ever succeed in spreading libertarianism. As such, without that platform, the candidate the LP nominates is irrelevant.

This leaves the next question, that of the Vice Presidential nominee. Friend of PE and contributor at Nick Bradley offers some interesting thoughts:

In my mind, the most appropriate course for the LP to take is to go with whatever wing of the party is currently in power, i.e. go with a right-libertarian ticket in order to counter the biggest current threat to liberty, the GOP, and go with a left-libertarian ticket if/when the Dems become a bigger threat to liberty.

The implication of this would seem to be that Root is the better nominee, an idea that may have gained some traction after Root's concession speech. I think there is a lot to that concept.

However, for this election, I wonder if the better nominee wouldn't be Steve Kubby, who was apparently being courted for the VP slot by just about everyone this weekend. I say this not because Kubby would be a way of pacifying the purists in the party - I don't think that Barr's running mate should be an olive branch for a couple of hundred particularly disgruntled party insiders when Barr represents a likelihood of picking up an additional several hundred thousand to several million votes by himself. However, Kubby represents an interesting VP candidate if - and only if - Barr can get into the debates. Importantly, I think Kubby's personal story combined with Barr's notoriety could get enough press coverage to push the LP above the debate threshold. But then, in the Vice-Presidential debates, Kubby would have the ability to undermine public support for the War on Drugs like no person in history. I would love to see the VP candidate of the Republican Party personally explain to Kubby - on national television - exactly why it is that medical marijuana should remain illegal.

Alas, I expect that Root will be the VP nominee, which is fine by me. I just don't think he adds to the ticket as much as others seem to believe.

Finally- many thanks to Stepen Littau and Jason Pye at the Liberty Papers for their coverage of the convention this weekend.

More at memeorandum.

***UPDATE***Ron Chusid says that Root got the VP nomination as expected. Again, this is fine by me; but I still think Kubby would have added a lot to the ticket.

Friday, May 23, 2008

Ahead of the Curve

Last week I argued that what the California Supreme Court did was not only correct as a matter of law, but that its "activism" fulfilled a role that is absolutely central to our form of government. In the process, I quoted extensively from Hamilton's Federalist #78, and pointed out that democracy is not an end in itself, but rather a means to end, and that without freedom and legal equality, democracy is meaningless. I further noted that we do not live in a democracy but rather a constitutional republic.

Today, Glenn Greenwald argues that what the California Supreme Court did was not only correct as a matter of law, but that its "activism" fulfilled a role that is absolutely central to our form of government. In the process, he quoted from Hamilton's Federalist #78. He further noted that we do not live in a democracy but rather a constitutional republic. So, not surprisingly, I fully approve of this:

The principal purpose of the Constitution is to prohibit the enactment of rights-abridging laws which, by definition (given that they are being democratically enacted), are supported by majorities. Anyone who argues that a court is acting improperly solely by virtue of the fact that it is striking down a popular law is someone who doesn't believe in the American system of government created by the Founders.

This of course was the central point of my argument last week. It is also the basis for my subsequent post pointing out that conservative reactions to the gay marriage decision have frequently shown a disdain for the Constitution that was once their touchstone.

(H/T: Sully)

Litigating Against Subsidies: Bleg

My last post on agriculture subsidies got me wondering, particularly in combination with my support of judicial "activism" in the sense of overturning laws. The question I was wondering about is this: Has there ever been an attempt to overturn pork barrel spending through a lawsuit where the basis for the suit was the spending's non-budgetary consequences?

The last part of this question is the important part. There have been numerous attempts to overturn various government programs in the past; however, they almost never work because the person suing the government rarely has legal standing to sue (the courts have repeatedly found no standing where the basis for standing is the plaintiff's status as a taxpayer). What I am not aware of, however, is a situation in which someone sued the government because the government's spending policy had a direct, negative effect on them.

Specifically, has there ever been an instance where the government was sued on the grounds that a subsidy had direct negative effects on a taxpayer in the form of higher costs? If so, was there standing? It's been a few years since I delved into that area of law, but I seem to recall precedent from law school that would suggest there would be standing.

If there is legal standing, then the second question would be: what causes of action, if any, would have the best chance of success in overturning agriculture subsidies?

The Evil of Agriculture Subsidies

Publius at Obsidian Wings hits on something that I've been meaning to post on for a couple of weeks:

Instead, farm bill opponents should have spent more time arguing that it’s a substantively bad bill — more precisely, it’s a bill that jeopardizes health and
increases hunger. For one, the subsidies of corn, sugar, and meat play a huge
role in our nation’s obesity problem (not to mention in the broader lack of nutrition). Ezra Klein in particular has been criticizing the meat subsidies lately (see here and here). Second, the ethanol subsidies are, quite literally, about the worst policy you could imagine. They not only actually harm the environment (mostly through land use changes/deforestation), they are quite literally starving people across the globe.... In fact, you could easily imagine a progressive-evangelical political coalition forming around this issue.

I believe that this issue is one that provides the blogosphere an actual opportunity to have an effect on the real world. Although I lack the time, prestige, or influence to lead such an effort, I am hereby proposing an organized blogosphere campaign against agriculture subsidies, especially Demon Ethanol. As I wrote in a comment to Publius' post:

I've been meaning to write about this myself for about a week now. The estimates I have seen have attributed at least 25% of the increase in food prices to ethanol; the other factors are largely out of anyone's control. I read last fall that the food crisis could cause literally hundreds of millions of deaths over the next decade worldwide. Even using the low end of that estimate, it's likely that 25% of that number would still be in the tens of millions. Which means that ending ethanol subsidies (and Western agriculture subsidies more generally) could save tens of millions of lives.

Frankly, if ever there was an issue where the blogosphere actually could have a positive impact on a policy, it would be this. The interests causing the subsidies are small in number; they are successful only because: 1. (Most importantly) Almost no one cares about the farm bill other than the people who seek to benefit from it, meaning that there is no political risk in supporting the farm bill; 2. They are well organized; and 3. The size of the subsidies makes it rational for them to spend an unbelievable amount of money lobbying on the issue and making campaign donations. Without those factors, it would be irrational for politicians to support the subsidies, especially considering how tiny in number the subsidy advocates are. An organized internet campaign against subsidies would actually have a chance of success in a way that other organized internet campaigns can only dream of, because the main reason these subsidies exist is that there is no political risk in supporting them. An organized internet campaign would change that equation substantially by raising awareness of the issue. This is not like other issues where there is or would be a vocal and sizable constituency on both sides no matter what you do, thereby making an organized campaign highly unlikely to succeed.

Moreover, this is an issue that ought to have appeal to just about every part of the blogosphere: Liberals ought to be motivated by it because it is an actual opportunity to strike a blow against corporate interests. Conservatives ought to be motivated by it because it is such an egregious example of government waste. Libertarians ought to be motivated by it because it is the epitome of everything we view as being wrong with government. And most importantly all sides ought to be motivated by the fact that it has such devastating effects on people all over the world.

One more thing- for those seeking an apolitical contribution to helping the world's hungry, Dyre Portents is conducting an internet blogosphere food drive that I highly recommend.

Wednesday, May 21, 2008

Disturbing Admission by Camden, NJ Police Dept.

This post is far from my usual subject matter, but I think the events described in it are worth publicizing so others might do something with it.

While doing research this morning for a case I'm working on, I stumbled across a recent decision out of the US District Court for New Jersey. The case, Monaco v. City of Camden, 2008 U.S. Dist. LEXIS 10455 (D. N.J. Feb. 13, 2008) contains a revealing insight into the way in which internal affairs investigations are conducted when it comes to allegations of police brutality and harassment. The case itself stems from a fight in 2002 outside of a concert to which police responded. The plaintiff in the case was not involved in the fight, but was nonetheless allegedly brought to the ground, beaten, and arrested, suffering numerous injuries in the process. He was then allegedly detained for two hours before being interrogated. During the interrogation, he was allegedly accused of drinking in public (of all things), ordered to confess to this "crime," and then threatened with additional charges should he choose to fight the public drinking charge in court. He eventually pled "not guilty" to the charge, and the Department refused to provide him with information substantiating the charge upon his request; as a result, the charge was eventually dismissed for lack of prosecution. The plaintiff ultimately filed suit against the City (and the relevant, but mostly unnamed, police officers) for civil rights violations and for malicious prosecution. After discovery, the City and police officers moved for summary judgment, which the court wound up denying in part and granting in part (the reasons for which are unimportant for purposes of this post).

The decision on the summary judgment motion contained the following paragraphs, which suggest some deep-seated problems with the way in which complaints against the police are handled.

Shortly after the incident at the [concert] occurred, Plaintiff and Police Department Captain Joseph Richardson were each interviewed on television by a news reporter about the fight and the police officers' response. Captain Richardson stated in the interview that if Plaintiff submitted a complaint about the events of May 31, 2002, the Police Department would investigate the matter.

It appears that the Police Department did not investigate Plaintiff's allegation that he had been the victim of police misconduct until February 2005, after Plaintiff filed his Complaint in this action. Detective Xemaril Cruz, who works in the Police Department's Internal Affairs division, was assigned to investigate Plaintiff's allegations. As part of her investigation, Detective Cruz conducted what she referred to during her deposition as "interview[s]" of the police officers who might have come into contact with Plaintiff on May 31, 2002. Detective Cruz did not ask the officers any questions at these interviews, but instead simply informed them that an Internal Affairs investigation was underway and that they were required to submit reports to her summarizing their recollections of the [concert] incident. Based on the information she received in these reports, Detective Cruz determined that Plaintiff's allegations had not been sustained, which, as she explained during her deposition testimony, meant that "there was an incident and there was an assault involved, but it could not be determined if it was the officers who . . . committed the assault . . . due to the large fight that took place." Detective Cruz did not speak with the officers in order to clarify these indeterminate findings or clarify the contents of their reports. When asked during her deposition why she did not speak with the officers and relied exclusively upon the contents of their reports, Detective Cruz replied that "that's the way that we do it."

(my emphasis).

As disturbing as I find the fact that a police department would wait three years to investigate a complaint, only after that complaint was the basis for a lawsuit, and that the "investigation" would be no more than a request for the officers to provide their own written reports of the incident, it is the last sentence that is most disturbing. That sentence makes clear that the standard practice of the Camden Police Department (and most likely many other departments) for investigating complaints is to merely give the officers involved a pen and paper to describe the events at their leisure. No questioning each officer individually, no requiring the officers to answer questions on the spot, just a report that the officers could work on at their leisure and on which they could easily collaborate.

Monday, May 19, 2008

One More Post on Judicial Activism

Marc Moore at the Poligazette has a thoughtful response to my two recent posts arguing in favor of a kind of judicial activism. His response warrants a couple of clarifications on my part:
1. Not all judicial activism is "good." There are instances where the courts in fact do make new "law" without simply ruling on the constitutionality or unconstitutionality of a law or a part of the law. In such instances, the courts are actually having a coercive effect on private citizens. The example provided by Marc is directly on point here: it was one thing for the courts to overrule "separate but equal" laws, but quite another to then mandate school busing. My point about judicial activism being a nearly-exclusive good is limited to situations where the court is overturning a law/executive action or significantly limiting its application. I am extremely suspicious of instances where the court acts "passively" and chooses to uphold a law under popular pressure (think, e.g., of the New Deal cases), but I am equally suspicious of judicial "activism" wherein the court goes beyond protecting a less-powerful faction and actually makes that less-powerful faction the more powerful faction. In the case of the California decision, though, the court is simply insisting that the law be "blind" as to the two factions in issue, which is precisely the purpose of "equal protection."
2. My argument that the judiciary exists "primarily" as a means of protecting the minority against the tyranny of the majority is based on a couple of logical steps that I did not lay out in the original post. Marc would have preferred that I wrote "that the judiciary’s primary function was to defend the Constitution against increasing irrelevancy in the face of excessive expansions by the other two branches. To define and defend the fundamental laws and values of the nation, in other words." In a sense, Marc's version is accurate; however, my view- based largely on my unhealthy obsession with Federalist #10 - is that the protection of less-powerful factions from more-powerful factions is a (maybe even "the") central "fundamental value of the nation" as expressed in the Constitution. Put another way, the American experiment in self-governance is in my view fundamentally based on the desire for self-government wherein the government is hamstrung as much as possibly from acting tyrannically. Because the legislative and executive branch have the sole power to make and execute* the law as they see fit, it falls on the courts to ensure that they are not doing so in a way that can be construed as tyrannical under concepts like "equal protection,"** freedom of speech and religion, etc.
3. Marc also writes that:

The issue that conservatives have with the ruling is the recent tendency for courts to drive change into every state in the union, whether it’s wanted locally or not. The Constitution is also supposed to divide powers between the state and federal level, a division that, to the framers, had been made quite clearly in the language of the document. Unfortunately, the balance of power has tilted dramatically in favor of the federal government.

Conservatives do no disdain the Constitution as Mark suggests. But many do disapprove of actions taken in its name without justification. If the gay marriage debate were to end with the California case I suspect that most conservatives would be happy enough to let the ruling stand. But it won’t and that’s the rub.

My dispute with this statement is that what we are talking about here is a state court decision, not a federal court decision. I, for one, most certainly agree that the balance of power has tilted far too dramatically in favor of the federal government on most issues. But this is why I do not understand the desire of so many conservatives to seek federal intervention (in the form of a Constitutional amendment) on an issue that is being decided on a state level. It is these conservatives who, consciously or not, are showing a disdain for the very Constitutional principles they once sought to uphold.
Moreover, if you view the Constitution (and most state constitutions) as a document that seeks to protect the political rights of less-powerful factions vis-a-vis more-powerful factions (I again refer to Federalist #10 here), then the California court's action is hardly without justification. This, mind you, is not an issue of reading rights out of "penumbras" and whatnot, but instead flows directly from words such as "equal protection" and "privileges or immunities" (I am one who remains appalled that the Slaughterhouse Cases were never overturned).
Also, we cannot and should not forget the 9th Amendment (as is too often done), which makes very clear that individual rights are not limited to what is stated in the Constitution and its amendments; instead, the powers of government are supposed to be restricted to those powers specifically enumerated in the Constitution. To be sure, I doubt that there is a 9th Amendment-like clause in the California constitution; my point is simply to show the way in which the foundations of American government demonstrate a distrust of governmental power and a desire to protect less-powerful factions against more-powerful factions.
*In the post-New Deal, and especially post-Chevron era, the difference between "execution" of the law and "legislation" is extremely small, perhaps close to non-existent.
**Not an endorsement of the entire body of equal protection doctrine, much of which has become arbitrary thanks to affirmative action jurisprudence. But affirmative action jurisprudence demonstrates the importance of judicial activism- an "activist" judge would be willing to overturn affirmative action laws as unconstitutional under "equal protection" or, if they had the courage to overturn the Slaughterhouse Cases, the "privileges or immunities" clause.

Sunday, May 18, 2008

Conservatives Show Their Disdain for the Constitution

***UPDATE***The original version of this post included a quote from Patterico. Patterico left a comment to the effect that his inclusion for criticism in this post did not make sense. Looking at his quote again, I realized that his complaint was justified, and that I should not have singled his post out for criticism within the context of this post (although I obviously disagree strongly with his position nonetheless). I apologize for that, and have removed that portion of this post.

The other day, I wrote a defense of "judicial activism" in which I showed how "activism," in the sense of judges overturning laws, is in fact one of the two primary purposes of the judiciary (along with the obvious job of arbitrating criminal and civil cases). In support of my contention, I quoted extensively from Alexander Hamilton's Federalist #78 (and if you recall your history, Hamilton was far from a libertarian, at least in relation to the other Founding Fathers).

To be sure, it is the job of the judiciary to "interpret" the Constitution (or the state constitution in the case of the gay marriage decision). But the job is substantially larger when it comes to statutory or administrative law rather than Constitutional law - in that case, the job of the courts is to both "interpret" the law AND, if the interpretation runs afoul of the Constitution (or state constitution), to either overturn the law or interpret it so that it does not run afoul of the Constitution. If the courts do not have this power then, as Hamilton pointed out, the legislature, executive, and/or temporary popular majority faction are able to disregard the Constitution (or state constitution) as they please. Indeed, it's worth pointing out that consideration of the constitutionality of a statute or referendum is almost never considered by a legislature or in a public debate.

Constitutions exist to ensure that everyone plays by the same rules- rules that must be respected both by powerful majority and tiny minority factions. When one faction - usually the powerful majority - fails to play by those rules, then it is the duty (not option, not prerogative, but actual duty) of the courts to turn that majority back.

What is so disturbing about conservatives' reactions to the California decision is the way in which it shows they have so utterly abandoned their stated respect for the Constitution in the 1980s for a form of self-serving majoritarianism in which the sole power capable of overturning local legislative action is through the Presidency of the United States (Oregonians know of what I speak). In the 1980s, Justices Scalia, Rehnquist, and others became folk heroes of the conservative movement for their willingness to overturn laws whenever they (correctly, I might add) found those laws violative of the Constitution (typically in the arena of federalism jurisprudence). By almost any definition those decisions, which interpreted laws in such a way as to find a conflict with the Constitution and which significantly departed from about 50 years of SCOTUS jurisprudence, were "activist." And conservatives and libertarians alike celebrated these decisions. During the several years I considered myself a conservative, it was this view of the role of the courts to which I thought I was signing on. But that all changed, most notably with the Terry Schiavo ridiculousness, but really well before that even.

The reactions to the California court's decision demonstrate just how far the conservative view of the judiciary has strayed.

For instance:

Robert Stacy McCain:

"What Justice George overlooks is the question of who makes the laws in a democratic polity. It is not up to judges to arbitrarily re-write the laws that the people have enacted through their freely elected representatives. If the people of California wished their state laws to recognize same-sex unions, they could petition their legislature to enact such laws."

NRO's Editorial Board:

"But in a representative democracy, everyone ought to agree that any changes should result from legislation, not from activist judges who twist and distort constitutional text to their own ends."

But - giving credit where credit is due - there is also Allahpundit, giving an analysis that represents the conservative legal philosophy as I once understood it:

"All they’re doing is denying gays the label of marriage to preserve a sense of stigma, which is almost a paradigm case of what equal protection is meant to prevent. I have no problem with the ruling as long as other states aren’t compelled to recognize Cali marriages per full faith and credit, which, needless to say, is the battleground on which this decision’s going to be fought in the presidential race. Taking the federalist approach and letting each state decide for itself is an easy call for Maverick; what about the Prince of Peace?"

That all said, there is one thing I am finding quite noteworthy about this decision. That is the relative indifference that is meeting it from the conservative blogosphere on the whole. Oh, to be sure, they're still not happy about it. But they seem to have bigger fish to fry, something which suggests that gay marriage opponents are going to have a mighty hard time mobilizing voters to overturn the court's decision in November.

More at memeorandum.

Friday, May 16, 2008

Obligatory Post on CA Marriage Equality: In Defense of Judicial Activism

Actually, obligatory suggests that I don't actually want to write about this, which is false. There is no doubt that the California decision is a landmark, and what I read of the 162 page set of opinions was quite well-reasoned. For the most part, neither dissent resorts to demagoguery (which is pretty typical when you have relatively independent judges doing the decision-writing), with the most vehement dissent taking great care to complement the majority on their sensitive and considered approach to the issue. The second, less vehement, dissent raises some important issues though that I want to address more.

But first - after all the claims of the Religious Right over the last few years that same-sex marriage would destroy marriage as an institution, I'll admit my commute home from work this evening was filled with fear. Would my wife and child still be home, waiting for me? Would my wife still be wearing her wedding ring? Would my wedding ring begin to fade away, as if it were a photograph in the hands of Marty McFly? By the time I was home, I was in a cold sweat. When I walked in the door, my worst fears appeared to be coming true - my wife wasn't wearing her wedding ring! I immediately broke down into tears, begging Chri....err, the Ghost of Jerry Falwell for forgiveness. My confused wife then informed me that she had just taken her ring off to take a quick shower. In other words: California now allows same sex marriage, but my marriage didn't fall apart! Shocking, I know. But also true.

Anyways, on to the issue raised by the dissent in the CA marriage cases. This specific issue was the argument that it is not the role of the courts to overturn as unconstitutional the will of the people. It is essentially an argument against so-called judicial activism.

But judicial activism is good, perhaps even close to an unqualified good, at least as far as it refers to a willingness of the courts to overturn public policy and laws. "But we live in a democracy - what can possibly be more undemocratic than a couple of old fogies in black robes overturning the popularly expressed will of the People?" This complaint is the quintessential argument against so-called "judicial activism"; it also demonstrates a complete lack of understanding of the proper function of the courts.

As many libertarians are quick to point out democracy is a means, not an end in itself - democracy without freedom is meaningless; freedom without democracy is not (think Monaco here, for example). Moreover, we do not live in a pure democracy, but in a constitutional republic; a republic which, according to Madison's Federalist #10 (you knew this was coming), is set up to prevent any one group from gaining dominance over any other group. The constitutional republic that is the United States, and which forms the template for many, even most, state constitutions (including, I think, California's, despite its bad habit of direct democracy), is specifically intended to prevent the tyranny of the majority. In other words, our system of government is supposed to distrust mob rule every bit as much as it distrusts the rule of a king. Indeed, the authors of the Constitution viewed the legislature as the most dangerous branch of government precisely because it was susceptible to the tyranny of the majority.

So, how to defend against this most dangerous branch of government that poses the greatest threat of imposing the tyranny of the majority? The answer, of course, is the judiciary. Indeed, in many ways the very purpose of having an independent judiciary (such as exists in California and on the federal level) is to deter the tyranny of the majority as expressed through the legislature (as well as the tyranny of the Presidency). And the only tool that the courts have at their disposal to accomplish this critical end is to overturn legislation.

In other words: far from being anathema to Constitutional principles, judicial activism is itself a critical Constitutional principle. An independent judiciary does not exist solely to "interpret" the law; it actually exists primarily as a means of defending the minority against the tyranny of the majority. As such, gays seeking to overturn bans on gay marriage through the courts rather than or in addition to the legislature are not seeking to "subvert the will of the people," but are instead following the precise path that the Constitution intends them to take.

Those who complain that judicial activism somehow subverts the Constitution would therefore do well to re-examine their Federalist Papers. Especially Federalist #78 (and it pains me that this is Hamilton essay rather than a Madison essay), in which Hamilton writes:

"[T]hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter....The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority: such for instance as it shall pass no bills to attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights and privileges* would amount to nothing."

And if you still aren't convinced, how about this, also from Federalist #78:

"The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body."

And finally:
"It is not to be inferred . . . that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing constitution, would on that account be justifiable in a violation of those provisions....But it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community."

*I note that at the time Hamilton wrote this, the Bill of Rights, including the 9th and 10th Amendments, did not exist as part of the proposed Constitution. However, he argued that the pre-Bill of Rights Constitution actually protected rights better than a Constitution with a Bill of Rights since a Bill of Rights would be construed to create exceptions to powers which the government did not have, thereby implying that the government actually did have those powers. So when Hamilton refers to "particular rights and privileges," he is talking about far more than just enumerated rights and privileges of the People.

Thursday, May 15, 2008

A Challenge to My Progressive Friends

Megan McArdle comments on the farm bill passed yesterday, and explains how it will provide almost no benefit to the small farmers that Dems and Progressives purport to care so much about, while continuing to provide massive benefits to huge agri-business (aka "the rich").

As commenter Will Allen, in response to Megan's post, points out:

"The bill that passed yesterday, with overwhelming support of Democrats, and mixed support of Republicans, is so bad it can barely be described. Truly disgusting, and the next time Democrats start yammering about Republicans being in the pocket of the rich (which they often are, of course), this bill should be shoved in their faces."

Given the massive food shortages being caused by subsidies like this, and given the fact that on this issue, for once, President Bush is actually siding against big business, I have two questions for my Progressive friends:

1. Will you join in denouncing these subsidies as being horrific examples of the Dems siding with the "rich" in a manner that actively makes the lives of countless millions of destitute people worldwide worse?
2. If not, can you explain how continuing these subsidies to farmers with adjusted income up to $950,000 is a good idea?

Tuesday, May 6, 2008

Return of the Realignment Watch: Dem Edition

I've been making a conscious effort to avoid discussing the increasingly cynical Democrat primary, at least to the extent it has become focused on utterly silly issues. However, I have argued that the lengthening of the Dem primary campaign, particularly in light of Obama's increasingly inevitable victory, is bad for both the Dems and the country as a whole. My rationale for this was that the drawn-out campaign, particularly with Hillary Clinton's have-to-see-it-to-believe-it working class hero act, has increasingly forced the candidates into an economic populism from which they will not be able to back down in the general election. This is bad for the ultimate Dem candidate as it makes them less able to move to the center in the general election. But it is equally bad should the Dem candidate still win the general election since it will be almost impossible for that candidate to completely back off from their newfound economic populism.

Tonight, however, it occured to me that the polarization of the Dem campaign may actually be good for the country in the long run, and may create a situation in which libertarians will be better able to influence the Democrats than ever before. Why do I say this? It's the juxtaposition of two things: this interview at The Art of the Possible with Glenn Greenwald, and the staggering number of Clinton voters tonight who said they would either vote for McCain or not vote at all should Obama win the Dem nomination (around 35-40% in both North Carolina and Indiana, it looks like). The bitterness engendered by the Dem nomination battle may result in the departure of a substantial portion of the Dem voter base for the Republican party. As I will explain below, this portion of the Dem voter base also happens to be the least libertarian-friendly, and may allow the Dem Party to liberalize its agenda on issues of importance to libertarians (including trade) without having the union bosses looking over their shoulder so much.

The Greenwald interview, by itself, doesn't break much new ground, though it does help reinforce the notion that cooperation between Progressives and libertarians is, at least in the short term, a good idea. As is usually the case with Greenwald, the interview is well worth a read, even though there are several items about which I could not disagree with him strongly enough. But the passage that clicked for me is this:

I think that many liberals have become much more skeptical of government power and the notion of trusting government leaders as a result of the abuses of the last eight years. Obviously, there are some of them who will quickly lose that skepticism and distrust if there is a Democrat in the White House, but — while recognizing this is just speculation — I honestly believe that’s a minority. I think the radicalism of the last eight years in terms of expansive government power has engendered a real political realignment and made liberals and libertarians far more natural allies than libertarians and those on the Right.

(My emphasis).

In large part, at least, I think Greenwald is right on this point, though I should be more hesitant to allow him to speak for Progressive/liberals as a group, and he clearly underestimates the importance of free market economics to libertarianism as a philosophy. Still, the point that libertarians in recent years have increasingly found common cause with the American Left is nothing new, as the very existence of a site like the Art of the Possible can attest.

Indeed, the biggest hurdle to such an alliance is the American Left's deep discomfort with free market economics (or, put another way, libertarians' deep discomfort with the economics of the American Left).

Should the bitterness of the Dem primary campaign actually result in a large swath of Hillary Clinton voters switching sides to vote for McCain, then we legitimately could see a small but important political realignment take place. This is because the voters and groups most likely to support Sen. Clinton without being willing to back Obama in a general election campaign are the voters with the most anti-free market positions (and, for that matter, the least understanding of economics of any sort- look at the idiotic pandering that is Hillary's gas tax holiday proposal and you'll get the picture).

As these anti-trade economic populists move to the McCain camp, Obama will have less incentive to go through the motions of being an economic populist. This is because his remaining supporters are likely to be more educated about the issues of free trade, and at least willing to accept the notion that free markets can play a valuable role and are often (if not always) better than the alternatives.

To be sure, Obama will need to find a way of building a sufficient coalition to win the election. To do so, he could try to win the populists back over, but he will be trying to convert an extraordinarily skeptical crowd whose opinion of him has been poisoned (fairly or unfairly) beyond repair. Moreover, in doing so, he will lose a huge chunk of his ability to snatch independent voters from the claws of apathy while having no chance of winning over a sizable portion of the lost Hillary voters. The other, perhaps more likely, way for Obama to build a winning coalition will be for him to create a new Dem coalition that maintains his stronghold amongst intellectuals and highly educated liberals while also appealing to the millions of educated disgruntled Republicans who have only slightly more love for McCain than they have for Bush. These disgruntled ex-Republicans are likely to be war opponents, or at least harsh opponents of the Bush-era expansions of executive power, socially liberal, and fiscal dissidents of the Bush spending sprees- a group that roughly includes most libertarians these days.

Without the need to maintain the economic populists, who Obama has already lost, Obama would be much more able to return to the generally pro-free market positions he most likely actually holds (based on his relationship with respected economist Austan Goolsbee). Such a newly formed coalition would not be libertarian, taken as a whole. However, it would be a coalition that would be far more cohesive than, say, the existing Republican coalition wherein so-called "libertarians" are often just war mongering theocrats who like lower taxes.

This isn't to say that the above-described realignment will happen, or even that it is likely. Just that it's a possibility should the deep divisions caused by the Democratic primary campaign not heal relatively quickly.

Friday, May 2, 2008

Congressional Letters

I have a couple of posts I'm working on for this weekend, but in the meantime, Kyle recommended that I repost a comment I left at CFLF.

Anyways, the context of this is as follows: Kyle, justifiably outraged at the collective yawn that occured in the wake of the revelations that President Bush personally approved torture, sent his local (Republican) congresswoman a letter in connection with an ACLU letter-writing campaign. He was shocked when he received a response back, apparently bearing the signature of the congresswoman herself. Then he read the letter, which not surprisingly amounted to a non-responsive response. Then he fact-checked some of the claims in the letter. Somewhat surprisingly, he found that the underlying facts for the claims in the Congresswoman's letter were, uhh, inconsistent at best.

My reply to Kyle's post was as follows:

It’s been about 10 years since I was “working” on Capitol Hill, though I did some stuff on the lobbying side of things during and just after law school. But I can pretty much explain step by step what happened here to provide some context for you (in some ways, this makes this story even worse, in other ways less bad because it’s pretty standard procedure…of course, the fact that it’s standard procedure on both sides of the aisle ought to tell you something about the futility of ever achieving good governance):
1. Sometime in the two years since the watered-down Military Commissions Act passed, and almost certainly well before you sent your letter, some other constituent from your district sent a letter to the Congresswoman about the torture issue. Based on the language of the response you received, I’m guessing that the letter from the prior constituent was written in anger about Bush’s cynical signing statement to circumvent that Act, though I could well be wrong about this.
2. An intern in the Congresswoman’s office opened the prior constituent’s letter, reviewed it, and determined the Legislative Assistant (”LA”) in the office most likely to be responsible for correspondence on the torture issue.
3. This LA (most likely in his/her mid-20’s since Republicans aren’t too concerned about torture and would thus likely assign this issue to a junior LA rather than a senior LA or the Legislative Coordinator) then reviewed his/her file of form letters and determined that none of the existing form letters would even remotely apply to this constituent’s letter.
4. The LA (who was, again, almost certainly in his/her mid-20’s, with no legal background whatsoever) then tried to research the official GOP talking points on this issue; they may have also pulled the Congressional Research Services file on torture and cherry-picked, out of context, the bullet points seemingly most favorable to their boss’ position.
5. Most likely using a template for constituent correspondence where the constituent disagrees with the Congresswoman, the LA then attempted to draft a letter that was both an inoffensive-sounding non-response response to the original constituent letter and generic enough to be used as a reply to future related constituent correspondence. The LA then gave the draft to the LC and maybe the Chief of Staff for a quick once-over, and the letter was then sent out to the constituent, with a staffer signing on behalf of the Congresswoman.
6. The LA saved a copy of the “Congresswoman’s” response on the office hard-drive, probably with a file name along the lines of “Torture- Anti” (ok, maybe not that blatant) or “Presidential Position on Geneva - anti”
7. Several months, and probably over a year later, the Congresswoman’s office received your letter and step 2 was repeated, as was most of step 3.8. This time, though, the LA decided that a relevant form letter did exist as a possible response to your letter. Although the existing letter was not 100% on point to your concerns, it was deemed close enough, especially since the ABC report received so little play and was thus unlikely to generate enough constituent letters to warrant a significant redraft of the existing form letter. This is the letter you received.

This isn’t to say in anyway that the Congresswoman is off the hook for the poorly researched statement of her position on Geneva. Actually, it’s worse: it goes to show the way in which politicians (and believe me, the Dems are just as bad on this stuff) figure out their positions first, and the facts later. In this case, the Congresswoman, like many Republicans, takes the position of “my country and my President, right or wrong.” This position then becomes the position to which the staffers need to reconcile the facts.

Thursday, May 1, 2008

The Ideal Government

For a long while, I've been meaning to post about my conception of an ideal libertarian government based on my particular brand of libertarianism. The central issue with which I have been philosophically concerned has been the concept of centralization and competition between governments.

This post by Angelica at The Art of the Possible gave me the opportunity to delve into this concept a bit, although by no means completely. The conclusion I have arrived at is that a system that decentralizes almost all powers over the private sector is far preferable than one that places those powers entirely into the hands of one central government. However, it is also my contention that a strong centralized government is an absolute necessity - but almost entirely as a safeguard of individual rights against local governments. My full comment is below with some minor edits for grammar and comprehensibility:

One of the most important things - maybe even THE most important thing - about decentralization is that it creates something loosely resembling a free market of governments. Although costs of moving remain too high to make this a true free market, the costs are low enough that bad governance (e.g., excessive cronyism) results in fewer government “customers” (ie, taxpayers). (All this, by the way, is approximately what happened in many of the corrupt cities of the Northeast and old Rust Belt; a good comparison is between the area surrounding Buffalo, NY, which has suffered an exodus of mammoth proportions due to its corruption and incompetence, and the area surrounding the nearby City of Rochester, which, while not exactly avoiding suffering, has managed to stay on its feet in a way Buffalo could only dream about).

But since the costs of leaving a given town/locality remain relatively high as does the amount of goodies the local government can offer to cronies, there is a legitimate concern that people unable to pay those costs of leaving will get stuck in a cycle of competition between localities for cronies rather than for taxpayers. All of which is to say that [it is correct to assume] that decentralization can spread problems.

That said, I think there is an important caveat to these concerns. That caveat is that when problems arise from decentralization, they occur gradually over time as the rent-seeking* company bribes, blackmails, and extorts its way to ever-more concessions from ever-more localities. But when rent-seeking occurs on a centralized basis, it immediately effects all localities subject to the centralized government. So in the former case, the opposition has time to organize in order to reverse, stunt, or at least significantly slow the corrupt practices, while in the latter case, the rent-seekers are able to win on a mammoth, even national, scale in a matter of one or two legislative or administrative acts, possibly before opponents even have an opportunity to organize.

This isn’t to say decentralization is perfect, or even that there is no role for centralized powers. Local rent-seeking and corruption will obviously continue on a large, but mostly below-the-radar scale in a decentralized system. Because the rent-seeking and corruption are at a lower level unlikely to be exposed on a politically significant level, it is far easier to get away with corruption (and other invidious government actions) on that lower level.

Luckily, there is a ready and obvious fix to significantly mitigate these problems, which would be unavailable in a fully centralized system (in which there is no higher authority than the authority making all the decisions). That fix is to make oversight of local governments one of -if not the - primary power of the central government. In essence, the fix is to apply the broadest possible reading of the 14th Amendment as a means for the federal government to intervene to stop clearly invidious local government actions. This would mean overturning the Slaughterhouse cases and reviving Lochner, but as a libertarian, this requirement is a feature rather than a flaw. A nearly-ideal conception of government from my perspective is one in which the centralized government’s primary responsibility beyond national defense is to ensure that subsidiary governments are respecting the rights of their citizens.