Via my friend Carrie. Full link here.
Friday, May 28, 2010
Friday, May 21, 2010
Just for Fun Friday
Today is Pac-Man's 30th birthday. In honor of that, here is an interview with the little yellow hero of my youth.
Enjoy.
H/T Dara Lind
Enjoy.
H/T Dara Lind
Wednesday, May 19, 2010
Situational Constitutionalism: Jurisdiction of Federal Judiciary
Predictably--and certainly not without warrant--the Left is now attacking last night's GOP victor for Kentucky's vacated Senate seat, Rand (son of Ron) Paul. One of the sticking points, as explained by TAP's Adam Serwer, is Paul's desire to restrict the federal judiciary from hearing abortion cases:
Article III, Section 2 of the Constitution clearly states:
That Congress has not often acted to reduce the scope of federal jurisdiction is a testament to the reverence our system typically pays to the Judiciary. But no less important is the political cost that any Congress would be forced to pay if it overstepped its conventional prerogatives, even if they acted within their legal capacity. Between the political pressure and the sort of gentlemen's agreement between Congress and the Court, unpopular SCOTUS decisions tend to be sustained, or contravened only at the margins. This is certainly not the most secure way to maintain the Court's independence--trusting politicians to be responsible--but it seems to be enough to be a large enough counterweight to aggressive overreach when combined with Congressional electoral self-interest.
I engaged Mr. Serwer on this issue before and after my lunch break, and at one point he wrote:
The point is, the Constitution means what it says. We can disagree about some of the more ambiguous passages, but we can't just ignore the plain text when the implications give us pause. To do so is the hypocrisy I refer to as "situational constitutionalism." We can't just toss aside parts we don't agree with because they may lead to policies we don't like--whether they involve right to counsel, habeas corpus, or jury trials for suspected terrorists, or First Amendment expression by third parties in election campaigns. Conversely, we can't just pretend limits don't exist to implement policies we might like, such as federally protected abortion access, eminent domain for revitalization/rezoning projects, or health insurance mandates. All these exceptions are proposed, for the most part, with good intent. But good intent doesn't trump the Constitution any more than bad policy outcomes do. Everybody has a reason why they want to skirt the Constitution--but if we always ignore it for reasons we think important, then the limits placed by the document cease to mean anything once our political adversaries take power. (Or, in the case of libertarians, seemingly when anyone is in power.)
I share Mr. Serwer's disgust with Congressional authority over federal jurisdiction--but that doesn't make it unconstitutional.
He also wants to offer legislation "restricting federal courts from hearing cases like Roe v. Wade."Unfortunately, it very well may be.
Yeah, that sounds constitutional.
Article III, Section 2 of the Constitution clearly states:
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;--between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.Whether we like it or not--and I, for one, don't--Congress's authority to limit federal jurisdiction is explicit in the text of the Constitution and thus has the full force of law. Though the "least dangerous branch" of our federal system, the Judiciary is nevertheless limited by a hefty Congressional check on its authority.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. (emphasis added)
That Congress has not often acted to reduce the scope of federal jurisdiction is a testament to the reverence our system typically pays to the Judiciary. But no less important is the political cost that any Congress would be forced to pay if it overstepped its conventional prerogatives, even if they acted within their legal capacity. Between the political pressure and the sort of gentlemen's agreement between Congress and the Court, unpopular SCOTUS decisions tend to be sustained, or contravened only at the margins. This is certainly not the most secure way to maintain the Court's independence--trusting politicians to be responsible--but it seems to be enough to be a large enough counterweight to aggressive overreach when combined with Congressional electoral self-interest.
I engaged Mr. Serwer on this issue before and after my lunch break, and at one point he wrote:
[I]t would make the bill of rights irrelevant if you could strip the court's authority to review cases involving themThis is not actually true. The Court has ruled that where it has original jurisdiction and explicit (enumerated) authority is not within the power of Congress to restrict. Certainly, the Bill of Rights (or any other explicit power or protection in the Constitution) qualifies by its very existence. Emanations and penumbras? Well...not so much.
The point is, the Constitution means what it says. We can disagree about some of the more ambiguous passages, but we can't just ignore the plain text when the implications give us pause. To do so is the hypocrisy I refer to as "situational constitutionalism." We can't just toss aside parts we don't agree with because they may lead to policies we don't like--whether they involve right to counsel, habeas corpus, or jury trials for suspected terrorists, or First Amendment expression by third parties in election campaigns. Conversely, we can't just pretend limits don't exist to implement policies we might like, such as federally protected abortion access, eminent domain for revitalization/rezoning projects, or health insurance mandates. All these exceptions are proposed, for the most part, with good intent. But good intent doesn't trump the Constitution any more than bad policy outcomes do. Everybody has a reason why they want to skirt the Constitution--but if we always ignore it for reasons we think important, then the limits placed by the document cease to mean anything once our political adversaries take power. (Or, in the case of libertarians, seemingly when anyone is in power.)
I share Mr. Serwer's disgust with Congressional authority over federal jurisdiction--but that doesn't make it unconstitutional.
Tuesday, May 18, 2010
Mark Souder and His Part-time Lover
What happened to Mark Souder--or, more appropriately, what Mark Souder did to himself--is what Malcolm would probably refer to as "chickens coming home to roost." He is just another politician who has made his living moralizing to others while living his own life in accordance with a separate (lower) standard of personal virtue. I am not personally offended by his affair because I think a man's (or woman's) personal life is his own business. He set himself up for this, and be it Karma or poetic justice, he got what he deserved.
The reason why I'm commenting isn't about his sexual hypocrisy, though. (Notice, for example, I don't blog about outted anti-gay conservatives caught with men. Most of us pretty much expect that any more.) Outside of having been my Congressman in my last years in Fort Wayne, Mark Souder was the #1 drug warrior in Congress. All of his braying nonsense about morality, abstinence and what have you take a backseat to his amoral stance of imposing his anti-drug crusade at the point of a gun:
One of the reasons why then-Speaker Dennis Hastert originally appointed me to the Homeland Security Committee was to pressure Congress and the Executive Branch not to forget about our duty to fight illegal drugs in the wake of the September 11, 2001, terrorist attacks. Although Democrats now control Congress, in my position as the Republican leader of the Homeland Security Subcommittee on Border, Maritime and Global Counterterrorism, I am continuing to insist that we include battling narco-terrorism as a critical part of our homeland security efforts. Like child and spousal abuse, we will never completely eradicate illegal drug use, but we have a moral obligation to fight this battle.Narco-terror isn't different from any other kind of terror, save the fact that its driven by profit from the prohibition of drugs. The overzealous war on commerce that Souder and his ilk wage upon American citizens, third world farmers, and nearly every type of person in between, helps fund global terrorism while deploying state-sanctioned terror into people's homes. There are alternative solutions, of course, but his high and mighty morality--blind to the immoral outcomes of his preferred policies--pressed him into waging war against his own country.
I don't care that he shtupped a "part-time" staffer. But, for the good of the country, I'm glad he did and was forced out of office by it.
Monday, May 17, 2010
Friday, May 14, 2010
Just for Fun Friday
Ok, so there is a message here too, but I love this bit.
| The Daily Show With Jon Stewart | Mon - Thurs 11p / 10c | |||
| Back in Black - Glenn Beck's Nazi Tourette's | ||||
| ||||
Small "L" Libertarianism, Corporations and Regulation
Part of my job requires answering questions about our policies, ideas, and articles that come from the general public. Earlier this week, a gentleman wrote to complain about a blog post a colleague wrote about SCOTUS nominee Elena Kagan's jurisprudence in the abstract, and how that contrasts with the values Cato holds dear. I'm posting this to give those of you less familiar with my organization, our work, and our worldview a glimpse into how we think and why we think it. I was somewhat hesitant to print this because I didn't want it to seem as if I was beating up a straw man, but I think his questions are indicative of some common misconceptions about libertarianism generally. Further, I hope my response illustrates, if implicitly, the difference between libertarianism and what is commonly known as modern American conservatism.
Below is my (lightly edited) reply to his email, with his questions included verbatim.
Dear Mr. _____:
I’m replying to your email from May 10 [excerpted below].
First of all, thank you for reading Cato@Liberty and contacting us with your questions. I want to answer both of your questions fully, but would also like to unpack them a little bit so we’re on the same page.
To those ends, we support policy changes that remove legislative and administrative regulations that impinge upon the right of an individual to make a living for himself and those that unfairly redistribute wealth to the benefit of special interests. Indeed, the “libertarian system” that we propose is the quintessential American system: the system of government laid out in the U.S. Constitution. Today’s governmental leviathan is a far cry from the system of enumerated—and thus limited—powers that protect the freedom of every individual to live their life as they see fit. The transition could take a number of forms, but the wealth freed from wasteful governmental control would stimulate the economy to a much greater extent than any government “stimulus” plan could ever hope to achieve. It makes no sense to keep pouring money into agencies, however well-intended, that continue to do more damage than good to our country.
A fundamental concept of economics is that of “creative destruction”: those vocations and industries that no longer serve the economic interests of the community die away. If this essential process didn’t occur, we’d still be supporting candle makers and buggy manufacturers who were put out of business by the advent of light bulbs and automobiles. Unfortunately, our current system of government resists market forces and maintains inefficient and damaging agencies and enterprises—both public and private—ultimately to everyone’s loss. Bureaucrats who lose their jobs in any transition could be compensated for a time once their positions are eliminated—and even into retirement. It would still be cheaper and better in the long run than paying them to do what they do, which is often much more harmful to the economy and liberty than just paying their salary and benefits.
Beyond the jobs of bureaucrats, whom I would hope would join the private sector to do something useful for a living, I can’t think of too many people (certainly not “millions”) that would be adversely affected, let alone destroyed, by eliminating wasteful spending and onerous regulation. Those people—usually special interests with powerful lobbies—that rely too heavily on the government for protectionist policies (e.g., tariffs, regulatory barriers to entry, etc.) should become self-sufficient or suffer the consequences of maintaining unsustainable business models. So much of the regulation that is currently in place was written by, or for the benefit of, the corporations you address in your second question. That is what lobbyists do—they get government to bend the rules to their advantage. We, at Cato, don’t support legislation or regulations meant to benefit the few at the expense of the many. We are pro-market, not pro-business.
The first thing that comes to mind is the minimum wage. The fact of the matter is that most people who are employed at minimum wage don’t stay on minimum wage for long because it is an entry level pay rate and, over time, they move off of that. It’s not as if a non-unionized manufacturer, for example, pays all their employees minimum wage from the time they are hired until the time they retire. The work-for-reward incentive works for most businesses, large and small, because even unskilled workers increase their own value over time. A raise in the minimum wage tends to exacerbate unemployment, as those workers at that wage are newer and/or marginal hires to begin with, so their positions are eliminated because they lose profitability. Businesses that compensate their employees better than their competitors attract workers and thus have a larger pool to hire from. This isn’t to say they are lavish with them, but if you’re an employee and you know you can get better compensation at another firm for the same amount of work, you would go to that other firm. Maximizing profits is about more than just making a product at the cheapest possible rate and selling it for the most you possibly can. (Think: Google.)
The second example I can think of is OSHA. Now, given recent events like the BP explosion and consequent spill in the Gulf of Mexico and the coal mining explosion in West Virginia, it would be entirely naïve of me to say that all American jobs are 100% safe. But, if you pay attention to both of those stories, there isn’t a lack of regulation involved in either of those instances. The same could be said for the banking, housing, and other financial disasters—it wasn’t for lack of regulation that these terrible things happened. It was lack of effective regulation. Yet, the politically popular move in the wake of each of these crises was to increase regulation, instead of implementing those that are already on the books. It doesn’t make much sense to increase the power of the people under whose noses all the ineptitude and malfeasance happened without holding them accountable. Yet, this is the typical reaction: increase the size and power of government instead of making the government work better. It’s insult to injury when the people for whom the regulations were intended to limit end up writing or otherwise heavily influencing the regulation to their own benefit to the exclusion of more responsible actors. This is what Public Choice economists call “Regulatory Capture.”
There are more examples, but I think this email is long enough and don’t want to bore you. It all boils down to this: we think the government is too big and, without adhering to the laws laid out in the Constitution, the government continues to grow, inefficiencies increase, and more money is wasted at the expense of individual liberty and the American taxpayer. I have also attached a PDF of a short pamphlet that Roger Pilon, Cato’s Vice President of Legal Affairs, wrote entitled “The Purpose and Limits of Government.” I think most of what we believe to be the correct way to reshape the government is outlined therein.
I hope this was helpful to you. Thank you again for reading our blog.
Regards,
JPB
Below is my (lightly edited) reply to his email, with his questions included verbatim.
Dear Mr. _____:
I’m replying to your email from May 10 [excerpted below].
First of all, thank you for reading Cato@Liberty and contacting us with your questions. I want to answer both of your questions fully, but would also like to unpack them a little bit so we’re on the same page.
I noticed you used capital “L” libertarian to describe an administration of our liking. While it may be a semantic argument, as a 501(c)(3) organization, it must be said that Cato is a non-partisan organization and thus we do not align ourselves with the Libertarian or any other political party. “Libertarian” has become a sort of catch-all term for the general principles that we promote in our publications and other policy work. I know [the blog post author] prefers the term “classical liberal” to “libertarian,” but we all strongly believe in Cato’s mission of “individual liberty, free markets, and peace.”1) How would you at Cato propose that a Libertarian Administration could make a transition from the present "system of government" in the United States to a Libertarian system without destroying millions of lives and organizations? I see that removing controls and regulations that were proven necessary over the centuries will [sic]
To those ends, we support policy changes that remove legislative and administrative regulations that impinge upon the right of an individual to make a living for himself and those that unfairly redistribute wealth to the benefit of special interests. Indeed, the “libertarian system” that we propose is the quintessential American system: the system of government laid out in the U.S. Constitution. Today’s governmental leviathan is a far cry from the system of enumerated—and thus limited—powers that protect the freedom of every individual to live their life as they see fit. The transition could take a number of forms, but the wealth freed from wasteful governmental control would stimulate the economy to a much greater extent than any government “stimulus” plan could ever hope to achieve. It makes no sense to keep pouring money into agencies, however well-intended, that continue to do more damage than good to our country.
A fundamental concept of economics is that of “creative destruction”: those vocations and industries that no longer serve the economic interests of the community die away. If this essential process didn’t occur, we’d still be supporting candle makers and buggy manufacturers who were put out of business by the advent of light bulbs and automobiles. Unfortunately, our current system of government resists market forces and maintains inefficient and damaging agencies and enterprises—both public and private—ultimately to everyone’s loss. Bureaucrats who lose their jobs in any transition could be compensated for a time once their positions are eliminated—and even into retirement. It would still be cheaper and better in the long run than paying them to do what they do, which is often much more harmful to the economy and liberty than just paying their salary and benefits.
Beyond the jobs of bureaucrats, whom I would hope would join the private sector to do something useful for a living, I can’t think of too many people (certainly not “millions”) that would be adversely affected, let alone destroyed, by eliminating wasteful spending and onerous regulation. Those people—usually special interests with powerful lobbies—that rely too heavily on the government for protectionist policies (e.g., tariffs, regulatory barriers to entry, etc.) should become self-sufficient or suffer the consequences of maintaining unsustainable business models. So much of the regulation that is currently in place was written by, or for the benefit of, the corporations you address in your second question. That is what lobbyists do—they get government to bend the rules to their advantage. We, at Cato, don’t support legislation or regulations meant to benefit the few at the expense of the many. We are pro-market, not pro-business.
2) Do you all really believe that American Corporations, operating without controls, would treat their workers well when so many have proven otherwise?Cato isn’t a large group of anarchists, so I can’t say you’d find scholars calling for an abrupt end to every regulatory regime in the country. However, there is a broad consensus that there is too much and we would like many of those regulations removed. I’m not sure what specific controls you are referring to, but I’ll take a stab at this, operating on some of the more common regulations that affect businesses.
The first thing that comes to mind is the minimum wage. The fact of the matter is that most people who are employed at minimum wage don’t stay on minimum wage for long because it is an entry level pay rate and, over time, they move off of that. It’s not as if a non-unionized manufacturer, for example, pays all their employees minimum wage from the time they are hired until the time they retire. The work-for-reward incentive works for most businesses, large and small, because even unskilled workers increase their own value over time. A raise in the minimum wage tends to exacerbate unemployment, as those workers at that wage are newer and/or marginal hires to begin with, so their positions are eliminated because they lose profitability. Businesses that compensate their employees better than their competitors attract workers and thus have a larger pool to hire from. This isn’t to say they are lavish with them, but if you’re an employee and you know you can get better compensation at another firm for the same amount of work, you would go to that other firm. Maximizing profits is about more than just making a product at the cheapest possible rate and selling it for the most you possibly can. (Think: Google.)
The second example I can think of is OSHA. Now, given recent events like the BP explosion and consequent spill in the Gulf of Mexico and the coal mining explosion in West Virginia, it would be entirely naïve of me to say that all American jobs are 100% safe. But, if you pay attention to both of those stories, there isn’t a lack of regulation involved in either of those instances. The same could be said for the banking, housing, and other financial disasters—it wasn’t for lack of regulation that these terrible things happened. It was lack of effective regulation. Yet, the politically popular move in the wake of each of these crises was to increase regulation, instead of implementing those that are already on the books. It doesn’t make much sense to increase the power of the people under whose noses all the ineptitude and malfeasance happened without holding them accountable. Yet, this is the typical reaction: increase the size and power of government instead of making the government work better. It’s insult to injury when the people for whom the regulations were intended to limit end up writing or otherwise heavily influencing the regulation to their own benefit to the exclusion of more responsible actors. This is what Public Choice economists call “Regulatory Capture.”
There are more examples, but I think this email is long enough and don’t want to bore you. It all boils down to this: we think the government is too big and, without adhering to the laws laid out in the Constitution, the government continues to grow, inefficiencies increase, and more money is wasted at the expense of individual liberty and the American taxpayer. I have also attached a PDF of a short pamphlet that Roger Pilon, Cato’s Vice President of Legal Affairs, wrote entitled “The Purpose and Limits of Government.” I think most of what we believe to be the correct way to reshape the government is outlined therein.
I hope this was helpful to you. Thank you again for reading our blog.
Regards,
JPB
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