George Will on Rand Paul
George Will, whose speech at the Milton Friedman Prize for Advancing Liberty Dinner can be heard here, writes today about Rand Paul’s victory in Kentucky:
Democrats and, not amazingly, many commentators say Republicans are the ones with the worries because they are nominating strange and extreme candidates. Their Exhibit A is Rand Paul, winner of Kentucky’s Republican primary for the U.S. Senate.
Well. It may seem strange for a Republican to have opposed, as Paul did, the invasion of Iraq. But in the eighth year of that war, many Kentuckians may think he was strangely prescient. To some it may seem extreme to say, as Paul does, that although the invasion of Afghanistan was proper, our current mission there is “murky.” But many Kentuckians may think this is an extreme understatement.
These critical commentators range from David Frum and Commentary to the Huffington Post — the entire spectrum of the welfare-warfare state. But as Will says, Paul’s opposition to the Iraq war is shared by 60 percent of Americans. And plenty of mud was thrown at Paul by his Republican opponents, and Republican voters had this reply:
(H/T: DailyPaul.com)
Will also notes the surprising support for Rep. Ron Paul’s book End the Fed from Arlo Guthrie, whose anti-bailout song “I’m Changing My Name to Fannie Mae, was celebrated here.
Federal Aid: 45 Years of Failure
Yesterday, the Washington Post reviewed the life of Phyllis McClure, who was an advocate for federal education spending in low-income neighborhoods.
Once an aspiring journalist, Ms. McClure joined the NAACP Legal Defense and Education Fund in 1969. She immediately used her penchant for muckraking to illuminate the widespread misuse of federal funds meant to boost educational opportunities for the country’s neediest students.
The money was part of the new Title I program, created under the Elementary and Secondary Education Act of 1965. The slim volume that Ms. McClure wrote in 1969 with Ruby Martin — ‘Title I of ESEA: Is It Helping Poor Children?’ — showed how millions of dollars across the country were being used by school districts to make purchases — such as a Baptist church building in Detroit and 18 portable swimming pools in Memphis — that had little to do with helping impoverished students.
The authors charged that money meant for poor children was being used illegally by school districts as a welcome infusion of extra cash to meet overhead expenses, raise teacher pay and other such general aid. In addition, they wrote, districts were using Title I funds to continue racial segregation by offering black children free food, medical care, shoes and clothes as long as they remained in predominantly black schools.
That all sounds rather familiar–state and local governments misusing federal aid dollars. As I’ve written about at length, there was an explosion in federal aid for the states in the 1960s, with hundreds of new programs established. But huge problems developed almost immediately–excessive bureaucracy and paperwork, one-size-fits-all federal regulations stifling local innovation, and the inability of federal aid to actually solve any local problems.
I live in Fairfax County, Virginia. The county receives about $15 million a year in federal “Title I” aid for disadvantaged schools–the program Ms. McClure was worried about. But Fairfax is the highest-income county in the nation! Why are hard-working middle-income taxpayers in, say, Ohio, paying for local schools in ultra-wealthy Fairfax?
Aside from the misallocation problem, academic evidence suggests that state and local governments mainly offset federal spending for poor schools by reducing their own spending on poor schools. Poor schools end up being no further ahead.
The federal aid system is crazy. Even if federal aid is a good idea in theory–and it isn’t–the central planners haven’t been able to make it work as they envisioned in more than four decades. The federal aid system has simply been a giant make-work project for the millions of well-paid federal/state/local administrators who handle all the paperwork and regulations.
Even if federal aid was constitutional or it made any economic sense, it will never work efficiently. Aid will always be a more wasteful way of funding local activities than if local governments funded activities by themselves. Aid will always be politically misallocated by Congress. Aid will always involve top-down regulations from Washington that reduce local flexibility and innnovation. And aid will always undermine federalism and the American system of limited government.
It’s time to blow up the whole system. Title 1 and all 800 other state aid programs should be repealed.
Filed under: Education and Child Policy; Government and Politics; Regulatory Studies
Is the War in Afghanistan Winnable?
The Economist is featuring an online debate this week around the proposition “This house believes that the war in Afghanistan is winnable.” John Nagl of the Center for a New American Security agrees. Peter Galbraith takes the opposing view.
The organizers of the event invited me to contribute my two cents. Excerpts of my essay (“Featured Guest,” on the right side of the page) are posted below:
The appropriate question is not whether the war is winnable. If we define victory narrowly, if we are willing to apply the resources necessary to have a reasonable chance of success, and if we have capable and credible partners, then of course the war is winnable. Any war is winnable under these conditions.
None of these conditions exist in Afghanistan, however. Our mission is too broadly construed. Our resources are constrained. The patience of the American people has worn thin. And our Afghan partners are unreliable and unpopular with their own people.
Given this, the better question is whether the resources that we have already ploughed into Afghanistan, and those that would be required in the medium to long term, could be better spent elsewhere. They most certainly could be.
[...]
America and its allies must narrow their focus in Afghanistan. Rather than asking if the war is winnable, we should ask instead if the war is worth winning. And we should look for alternative approaches that do not require us to transform what is a deeply divided, poverty stricken, tribal-based society into a self-sufficient, cohesive and stable electoral democracy.
If we start from the proposition that victory is all that matters, we are setting ourselves up for ruin. We can expect an endless series of calls to plough still more resources—more troops, more civilian experts and more money, much more money—into Afghanistan. Such demands demonstrate a profound misunderstanding of the public’s tolerance for an open-ended mission with ill-defined goals.
More importantly, a disdain for a focused strategy that balances ends, ways and means betrays an inability to think strategically about the range of challenges facing America today. After having already spent more than eight and a half years in Afghanistan, pursuing a win-at-all-costs strategy only weakens our ability to deal with other security challenges elsewhere in the world.
Will ‘Hauser’s Law’ Protect Us from Revenue-Hungry Politicians?
David Ranson had a good column earlier this week in the Wall Street Journal explaining that federal tax revenues historically have hovered around 19 percent of gross domestic product, regardless whether tax rates are high or low. One reason for this relationship, as he explains, is that the Laffer Curve is a real-world constraint on class warfare tax policy. When politicians boost tax rates, that motivates taxpayers to earn and/or report less income to the IRS:
The feds assume a relationship between the economy and tax revenue that is divorced from reality. Six decades of history have established one far-reaching fact that needs to be built into fiscal calculations: Increases in federal tax rates, particularly if targeted at the higher brackets, produce no additional revenue. For politicians this is truly an inconvenient truth. …tax revenue has grown over the past eight decades along with the size of the economy. It illustrates the empirical relationship first introduced on this page 20 years ago by the Hoover Institution’s W. Kurt Hauser—a close proportionality between revenue and GDP since World War II, despite big changes in marginal tax rates in both directions. “Hauser’s Law,” as I call this formula, reveals a kind of capacity ceiling for federal tax receipts at about 19% of GDP. …he tax base is not something that the government can kick around at will. It represents a living economic system that makes its own collective choices. In a tax code of 70,000 pages there are innumerable ways for high-income earners to seek out and use ambiguities and loopholes. The more they are incentivized to make an effort to game the system, the less the federal government will get to collect.
Several people have asked my opinion about the piece. I like the column, of course, but I’m not nearly so optimistic that 19 percent of GDP represents some sort of limit on the federal government’s taxing power. There are many nations in Europe with tax burdens closer to 50 percent, for instance, so governments obviously have figured how to extract much higher shares of national output. Part of the difference is because America has a federal system, and state and local governments collect taxes of about 10 percent of GDP. That still leaves a significant gap in total tax collections, though, so the real question is why American politicians are not as proficient as their European cousins at confiscating money from the private sector?
One reason is that European countries have value-added taxes, which are a disturbingly efficient way of generating more revenue. So does this mean that “Hauser’s Law” will protect us if politicians are too scared to impose a nationwide sales tax? That’s certainly a necessary condition for restraining government, but probably not a sufficient condition. If you look at the table, which is excerpted from the OECD’s annual Revenue Statistics publication, you can see that nations such as New Zealand and Denmark have figured out how to extract huge amounts of money using the personal and corporate income tax.
In some cases, tax rates are higher in other nations, but the main factor seems to be that the top tax rates in other nations are imposed at much lower levels of income. Americans don’t get hit with the maximum tax rate until our incomes are nine times the national average. In other nations, by contrast, the top tax rates take effect much faster, in some cases when taxpayers have just average incomes. In other words, European nations collect a lot more money because they impose much higher tax rates on ordinary people. Here’s a chart I put together a few years ago for a paper I wrote for Heritage (you can find updated numbers in Table 1.7 of this OECD website, but the chart will still look the same).
Europeans also sometimes impose high tax rates on rich people, but this is not the reason that tax receipts consume nearly 50 percent of GDP in some nations. Rich people in Europe, like their counterparts in America, have much greater ability to control the amount of taxable income that is earned and/or reported. These “Laffer Curve” responses limit the degree to which politicians can finance big government on the backs of a small minority.
But class-warfare tax rates on the rich do serve a very important political goal. Politicians understand that ordinary people will be less likely to resist oppressive tax rates if they think that those with larger incomes are being treated even worse. Simply stated, higher tax rates on the rich are a necessary precondition for higher tax rates on average taxpayers.
For “Hauser’s Law” to be effective, this means proponents of limited government need to fight two battles. First, they need to stop a VAT. Second, they need to block higher tax rates on the so-called rich in order to prevent higher tax rates on the middle class.
Filed under: Government and Politics; International Economics and Development; Tax and Budget Policy
Elena Kagan, Super Tuesday, Tea Parties, Guns
Just as Tuesday’s primary elections were good news for libertarians, they were bad news for Elena Kagan. Now that Arlen Specter (D-R-D-PA) will never again face an electorate, we will be able to see his true colors, whatever they are – this should be interesting! — on the Senate Judiciary Committee. Blanche Lincoln (D-AR), assuming she wins her June 8 primary run-off (having to tack left to do so), will be a possible vote against Kagan so she can show skeptical Arkansans that she’s not an Obama-Reid-Pelosi rubber stamp. And Rand Paul’s trouncing of establishment candidate Trey Grayson in the Republican primary should strike fear into the hearts of all senators running for re-election this fall (or even 2012) such that they refuse to accept pablum from a judicial nominee’s testimony.
The above races, combined even more notably with Scott Brown’s victory in Massachusetts in January, reinforce that voters are upset with Washington and they ain’t gonna take it any more. Put simply, this fall’s election is shaping up to be a repeat of 1994 — except now we have protesters, the Tea Party movement, actively opposing every type of government expansion, bloat, and “stimulus” emanating from the federal government. Elena Kagan will still get confirmed but she will face tough questions about the limits on government power; a 59-seat majority is nothing to sneeze at, but her confirmation margin is eroding every day.
Turning to one aspect of Kagan’s record that will get some attention in coming weeks, Ken Klukowski of the American Civil Rights Union argues that the nominee “confirms that President Obama’s gun-control agenda is to create a Supreme Court that will ‘reinterpret’ the Second Amendment until that amendment means nothing at all.” Now, even though Ken and I have tangled before, I have no doubt that Obama is not the best president ever for the defense of the natural right to keep and bear arms for self-defense. Still, Ken’s claim here that Kagan’s decision not to file a brief on behalf of the United States in McDonald v. City of Chicago indicates that she is anti-gun rights is specious.
Doug Kendall of the Constitutional Accountability Center — a progressive group that nevertheless has the intellectual integrity to support the application of the right to keep and bear arms via the Privileges or Immunities Clause — has a detailed refutation to these allegations:
As one of two lawyers who met with General Kagan on behalf of the petitioner, Otis McDonald, to request that she file a brief in support of McDonald, I can say first hand that this assertion is nonsense. It is also worth pointing out, as I do below, that Klukowski’s post has important factual distortions in it.
As has been reported in the press, I joined McDonald’s lead counsel, Alan Gura, in a meeting with General Kagan and her staff to ask the Solicitor General to file a brief in support of McDonald and incorporation, against the City of Chicago.
From the outset, it was clear to me that McDonald was a difficult case for the Obama Administration, and that we therefore faced a decidedly uphill battle in seeking support from the United States.
On the incorporation question, there is also the fact that the Solicitor General’s Office has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case. As former Solicitor General Erwin Griswold explained in a 1970 Supreme Court brief, the outcome of incorporation cases is rarely of direct interest to the federal government, while “fundamental considerations of federalism militate against executive intrusion into the area of State criminal law.” Noting that incorporation cases often arise from questions surrounding state criminal procedure, Griswold indicated that the Solicitor General’s Office was particularly wary of getting involved in a potentially vast number of cases in which criminal defendants sought to expand the procedural protections of the federal Due Process Clause.
General Kagan gave us an entirely fair opportunity to state our case, and the decision by her office to refrain from filing a friend-of-the-court brief in this case tells us nothing meaningful about Kagan’s views on the Second Amendment.
In short, as Josh Blackman says, Kagan had plenty of reasons not to file a brief in McDonald and her decision not to says absolutely nothing about her views on the right to keep and bear arms. Again, I have no doubt that Elena Kagan, being a standard modern liberal, is no friend of the Second Amendment. But the evidence Ken Klukowski purports to marshal is no evidence at all.
Federal Spending Transparency: Unlocking the Power of Abstraction
I’ll present a short paper and lead some discussion on federal spending transparency today at an OMB Watch conference entitled “Strengthening Federal Spending Transparency: A Working Conference to Develop a Plan of Action.”
My paper is called “Federal Spending Transparency: Unlocking the Power of Abstraction.” It builds on lessons I learned from developing the Earmarkdata.org model aimed at getting earmark information out of Congress.
Information scientists will find the paper amateurish and riddled with imperfections. Policy people will find it obscure and dense. That’s what you get when you translate between two languages and cultures.
The goal:
Each piece of the policy making process—the budgets, bills, votes, etc.—should originate as structured data, feeding directly into the information infrastructure that the transparency community creates. A budget should come out not just in paper and PDF versions, but as a data set containing all the meaning that exists in the physical documents.
Make sense? If not, you’ll want to get yourself to where it does.
Filed under: Tax and Budget Policy; Telecom, Internet & Information Policy
The Lieberman-Brown Bill and Your Right to Stay out of Gitmo
The attempted Times Square bombing prompted Senators Joseph Lieberman (I-CT) and Scott Brown (R-MA) to propose that anyone suspected of providing material support, as defined by 18 U.S.C. § 2339A, to State Department-listed terrorist groups be stripped of their citizenship. As Julian Sanchez points out, existing law provides for expatriation for a number of reasons, but in two distinct categories. The first is for actions that demonstrate intent to relinquish citizenship: swearing loyalty to another nation, serving in a foreign military as an officer or non-commissioned officer (or in any capacity if that country is at war with the United States), formal renunciation before a diplomatic official, and similar actions. The second is for serious crimes against national security: treason, rebellion, insurrection, advocating the overthrow of the government, seditious conspiracy, and levying war against the United States.
As Julian and I point out in this piece at Politico, there is a key difference between the existing expatriation provision and the Lieberman-Brown proposal.
The existing expatriation capacity triggers, if at all, after conviction for listed crimes against national security. The Lieberman-Brown proposal would strip citizenship where there is an allegation of material support to a Foreign Terrorist Organization.
With this very important distinction, it is clear that the Lieberman-Brown bill does not merely update expatriation law for the 21st century. I discuss some of the low points of this legislation in this podcast:
This bill is an end-run around the jurisdictional limitation of the military commissions. After expatriation, a former citizen could be shipped off to Guantanamo for trial by a panel of military officers for a domestic crime. This is a step that the Bush administration never took. The military commissions, from the original executive order through the Military Commissions Acts of 2006 and 2009, are limited in jurisdiction to non-citizens. This is an attempt to take terrorism prosecutions out of civilian federal courts, which already effectively deal with domestic terrorism, and put defendants in a forum where they will have fewer rights.
What if the defendant is expatriated by a preponderance of the evidence (51% sure that they provided material support to an FTO) but are acquitted at the commission? Now we have the possibility of a natural-born non-citizen, who, unlike the traditional expatriation subject, has no other nationality to fall back on.
This procedure won’t pass constitutional muster anyway, as David Cole points out. Citizenship cannot be stripped so lightly against a person’s will.
In short, this is an ineffectual political stunt that aspires to be a radical threat to civil liberties. This proposal shouldn’t become law.
Filed under: Foreign Policy and National Security; Law and Civil Liberties
Collecting Dots and Connecting Dots
As Jeff Stein notes over at the Washington Post, the declassified summary of the Senate Intelligence Committee’s report on the Christmas underpants bomber ought to sound awfully familiar to anyone who thumbed through the 9/11 Commission’s massive analysis of intelligence failures. Of the 14 points of failure identified by the Senate, one pertains to a failure of surveillance acquisition: the understandably vague claim that NSA “did not pursue potential collection opportunities,” which it’s impossible to really evaluate without more information. (Marc Ambinder tries to fill in some of the gaps at The Atlantic.) The other 13 echo that old refrain: Lots of data points, nobody managing to connect them. Problems included myopic analysis—folks looking at Yemen focused on regionally-directed threats—sluggish information dissemination, misconfigured computers, and simple failure to act on information already in hand.
Yet you’ll notice that in the wake of such failures, the political response tends to be heavily weighted toward finding ways to collect more dots. We hear calls for more surveillance cameras in our cities, more wiretapping with fewer restrictions, fancier scanners in the airport, fewer due process protections for captured suspects. Sometimes you’ll also see efforts to address the actual causes of intelligence failure, but they certainly don’t get the bulk of the attention. And little wonder! Structural problems internal to intelligence or law enforcement agencies, or failures of coordination between them, are a dry, wonky, and often secret business. The solutions are complicated, distinctly unsexy, and (crucially) don’t usually lend themselves to direct legislative amelioration—especially when Congress has already rolled out the big new coordinating entities that were supposed to solve these problems last time around.
But demands for more power and more collection and more visible gee-whiz technology? Well, those are simple. Those are things you can trumpet in a 700-word op-ed and brag about in press releases to your constituents. Those are things pundits and anchors can debate in without intimate knowledge of Miroesque DOJ org charts. In short, we end up talking about the things that are easy to talk about. We should not be under any illusions that this makes them good solutions to intel’s real problems. Hard as it is for pundits to sit silent or legislators to seem idle, sometimes the most vital reforms just don’t make for snazzy headlines.
Filed under: Foreign Policy and National Security; General; Law and Civil Liberties
The Ninth Circuit as a Denial of Service Attack on American Justice
The Supreme Court is expected to decide tomorrow whether to summarily overturn a Ninth Circuit Court ruling, hear an appeal of that ruling, or let the Ninth Circuit’s decision stand. The case involves Arizona’s k-12 scholarship tax credit program that helps families afford private schooling, which the Ninth Circuit found last year to violate the First Amendment.
Before the Ninth Circuit handed down its decision, I predicted that it would rule against the tax credit program, and that it would eventually be overturned by the Supreme Court. The first part of that prediction came to pass, and I still expect the second part to as well. For the reasons why SCOTUS will overturn the Ninth Circuit, see Cato’s brief in the case.
Ilya Shapiro (with whom I co-wrote that brief) draws attention today to a great column by George Will in which Will likens the Ninth Circuit to a “stimulus package” for the Supreme Court. It’s a funny analogy, but it’s too benign. It’s more accurate to see the Ninth Circuit as a Denial of Service Attack on American justice. A D.O.S. is a computer attack that prevents Internet surfers from accessing a particular website/server by flooding it with spurious requests. By failing to take Supreme Court precedents seriously, as the Ninth Circuit routinely does, it creates a torrent of ridiculous rulings that demand the Supreme Court’s attention, thereby preventing the nation’s highest court from taking other important cases.
If there is a way for SCOTUS to reprimand the Ninth Circuit for spuriously consuming the nation’s most important legal resources, it would be in the interest of justice for it to do so.
Filed under: Education and Child Policy; General; Law and Civil Liberties
Libertarians Rejoice
Here’s a headline you don’t often see on election night:
Rand Paul Challenges the Establishments
In his Kentucky Republican primary victory speech last night, Rand Paul took a well-placed shot at one of the more repulsive props used by Beltway politicians:
“We have come to take our government back from the special interests who think that the federal government is their own personal ATM … from the politicians who bring us over-sized fake checks emblazoned with their signature as if it was their money to give.”
The comment immediately brought to mind a C@L blog I wrote in 2008 that criticized the Senate Minority Leader from Kentucky, Republican Mitch McConnell, for being a hypocrite when it comes to big government spending. I titled the post “The Bluegrass Porker” and included this picture:
That fellow on the right holding the fake, over-sized Treasury check is Mitch McConnell. Last night, Paul defeated McConnell’s hand-picked choice for the Republican nomination, Trey Grayson. Perfect.
I’d prefer to believe Paul’s victory last night was a repudiation of the GOP establishment as much as it was a repudiation of Washington in general. Popular discontent with the statist Democrat establishment in Washington is well recognized. But if Kentucky Republicans just signaled their displeasure with the statist Republican establishment, better days for liberty could be ahead.
Supreme Court Should Call Out Ninth Circuit in Education Case
Friend-of-Cato and 2010 Milton Friedman Prize Dinner keynote speaker George Will published an excellent column today about a case under review at the Supreme Court, Arizona Christian School Tuition Organization v. Winn:
The case concerns an Arizona school choice program that has been serving low- and middle-income families for 13 years. The state grants a tax credit to individuals who donate to nonprofit entities that award scholarships for children to attend private schools — including religious schools. Yes, here we go again.
The question — if a question that has been redundantly answered remains a real question — is whether this violates the First Amendment proscription of any measure amounting to government “establishment of religion.” The incorrigible 9th Circuit has declared Arizona’s program unconstitutional, even though there is no government involvement in any parent’s decision to use a scholarship at a religious school.
If this case hadn’t originated in a state within the Ninth Circuit’s jurisdiction, nobody would have heard about it because any other federal appellate court would probably have decided it correctly. Will correctly and convincingly argues for summary reversal — as our friends at the Institute for Justice, who represent the petitioners, request — because the Ninth Circuit’s decision ignores clear Supreme Court precedent allowing parents to choose how to direct state funds for their children’s education (to a sectarian school or otherwise):
So, [Chief Justice William] Rehnquist wrote [in 2002], public money “reaches religious schools only as a result of the genuine and independent choices of private individuals.” Therefore any “advancement of a religious mission” is merely “incidental” and confers “no imprimatur of state approval . . . on any particular religion, or on religion generally.” These standards had been developed in various prior cases.
Cato filed a brief in this case that I previously blogged about. And you can listen to Will’s Friedman Dinner address here. (Unrelatedly, if you still haven’t read his masterful Men at Work: The Craft of Baseball – which has sold many more copies than any of his political books — pick up the re-issued twentieth anniversary edition.)
Filed under: Education and Child Policy; Government and Politics; Law and Civil Liberties
Souder’s Departure
In case you haven’t heard, Rep. Mark Souder (R-Ind.) is departing Congress because of an extramarital affair with one of his staffers. His replacement can only improve Indiana’s Third District on drug policy and limited government (and here).
During the initial hearings on the creation of the Department of Homeland Security, Souder was one of two representatives (the other being former Rep. Benjamin Gilman (R-N.Y.)) stressing the need for DHS to get into the drug war business. Souder went so far as to compare drug use to chemical warfare: “more than 4,000 Americans die each year from drug abuse – at least the equivalent of a major terrorist attack.” Rep. Gilman went so far as to propose that the DEA fall under the DHS since, as anyone can see, its supervision of nearly two-dozen subordinate agencies isn’t enough. And drug dealer = terrorist. Clearly.
While it would be preferable for voters of his district to reject pork-barrel spending and the nonsensical drug war, this resignation is not lamentable.
Filed under: Government and Politics; Law and Civil Liberties
The Use and Misuse of Foreign Law in U.S. Courts
On Tuesday I discussed the Supreme Court’s decision to strike down laws that allow juveniles to be sentenced to life without parole (LWOP) for non-homicide crimes. What concerns me here isn’t so much the morality or policy wisdom in applying such sentences — though Chief Justice Roberts makes some good policy points in his concurrence — or even the interpretation of what constitutes a “cruel and unusual punishment” — which I think Justice Kennedy mishandles in a confusing discussion of national consensuses.
No, the most troubling part of that case was the unfortunate reference to foreign authorities to support the Court’s interpretation of the Eighth Amendment. Justice Kennedy notes that juvenile LWOP has been “rejected the world over.” “The judgment of the world’s nations that a particular sentencing practice is inconsistent with basic principles of decency,” he writes, “demonstrates that the court’s rationale has respected reasoning to support it.”
Justice Thomas, in his dissent, disputes Justice Kennedy’s math, noting that 11 countries allow the punishment. More importantly, “foreign laws and sentencing practices” are “irrelevant to the meaning of our Constitution.” He adds that most democracies around the world remain free to adopt the punishment should they wish to. “Starting today,” Thomas concludes, “ours can count itself among the few in which judicial decree prevents voters from making that choice.”
And that’s the crux of the matter: citing foreign law, using it to support a given reading of domestic law undermines democratic self-governance. The interpretation of the U.S. Constitution should depend on that document’s text, structure, and history, what it means in the context of the American polity. Even if a judge cares about ”evolving standards of decency” or invokes the “living Constitution,” it should be the updated standards in America that matter, or the opinions and values of modern Americans.
That is, federal judges derive their powers from the Constitution, which is a wholly American document. To the extent they use foreign extrinsic evidence to interpret this document, they are engaging in something — comparative law? social science? — that is not judging. It’s not a matter of being closed-minded or provincial — I actually enjoy reading comparative political research, and think our legislators and constitutional draftsmen engage in malpractice if they don’t use it — but, as Justice Thomas describes in Graham, the judicial role is different than the legislative or academic one.
Now, in practice U.S. courts actually rarely cite foreign law, and most of the time when they do it’s not controversial. For example, it’s relevant to see how all the contracting parties interpret a treaty, because you want a treaty (a contract among nations) to be understood the same way everywhere. Similarly, foreign court pronouncements are relevant to interpreting customary international law – the law of nations as the Framers understood it — to the limited extent it applies to a given case (crime on the high seas and the like). Next we have the coordination of litigation, with international companies suing each other based on contracts that specify that “X” provision is subject to British law whereas “Y” deals with Hong Kong law, and that the arbitration forum is supposed to be Switzerland: here the citation of foreign law is absolutely appropriate. Another appropriate use is in conflict of laws analysis: figuring out which law applies and sometimes even applying foreign law as binding in a dispute.
But using foreign law to interpret domestic law, and especially the Constitution, is problematic — but the Supreme Court does it more than lower courts, particularly in high profile cases: those involving the culture wars, moral issues like the death penalty and abortion, and other charged cases like affirmative action and sex discrimination. Libertarians should not welcome this trend because it signals judging based on something other than the principled reading of our own laws — in short, judicial usurpation of the policy-making function.
Hans Bader of CEI provides a longer write-up of Graham, and here again is Cato’s brief. For a pithy critique of the improper use of foreign law by U.S. courts, see Richard Posner’s now-famous article in Legal Affairs. And for an in-depth and entertaining exploration of these issues, read or watch a debate Justices Scalia and Breyer had in 2005.
Coincidentally, the same day the Court issued both Graham and Comstock (which I discuss here), it also decided an important case, Abbott v. Abbott, that uses foreign law to interpret an international treaty on child abduction. (While I haven’t yet gone through the Abbott decision, both the majority and dissent are correct to use foreign law to help them reach their conclusions.)
Neocons Finish Out of the Money in Kentucky Race
Rand Paul’s landslide victory in the Kentucky Republican primary is being hailed as a big win for the Tea Party movement, a slap in the face to the Republican establishment, and maybe even as a harbinger of the rise of libertarian Republicanism. (Only 19 percent of Kentucky Republicans say they’re libertarians, but that’s got to be more than before the Rand Paul campaign.) It’s also a big loss for Washington neoconservatives, who warned in dire terms about the horrors of a Paul victory.
Back in March, Jonathan Martin reported in Politico:
Recognizing the threat, a well-connected former aide to Vice President Dick Cheney convened a conference call last week between Grayson and a group of leading national security conservatives to sound the alarm about Paul.
“On foreign policy, [global war on terror], Gitmo, Afghanistan, Rand Paul is NOT one of us,” Cesar Conda wrote in an e-mail to figures such as Liz Cheney, William Kristol, Robert Kagan, Dan Senor and Marc Thiessen.
With an attached memo on Paul’s noninterventionist positions, Conda concluded: “It is our hope that you can help us get the word out about Rand Paul’s troubling and dangerous views on foreign policy.”
In an interview, Conda noted that Paul once advocated for closing down the detention center at Guantanamo Bay and sending some suspected terrorists to the front lines in Afghanistan.
“This guy could become our Republican senator from Kentucky?” he exclaimed. “It’s very alarming.”
A week later, Dick Cheney himself issued his first endorsement of the campaign season to Secretary of State Trey Grayson, hardly the most promising Republican candidate of 2010. Obviously, Cheney was urging Kentuckians not to vote for Rand Paul.
David Frum kept up the pressure on his website and in national magazines, where he tossed around words like “extremist,” “conspiracy monger,” and “his father’s more notorious positions.” (That column also included the most amazing confession of political error I’ve ever seen: “many of my friends fell (briefly) victim to Lyndon Larouche’s mad ideology, which exploited those good themes to bad ends.” Say what? I never knew anyone who fell for Lyndon Larouche; I never even heard of any actual person who followed him; but David Frum had “many friends” who became followers of the nuttiest guy ever to run for president? That’s some band of friends.)
The big-government Republican establishment rallied to Grayson’s side against the previously unknown opthalmologist from Bowling Green. Late in the campaign, Grayson ran ads featuring endorsements from Senate Minority Leader Mitch McConnell of Kentucky, Cheney, Rick Santorum, and Rudy Giuliani. That’s more raw tonnage of Republican heavyweights than you’d see on a national convention stage.
And after all that Kentucky Republicans gave a 25-point victory to a first-time candidate who opposed bailouts, deficits, Obamacare, and the war in Iraq. That’s a sharp poke in the eye to the neocons who tried so hard to block him. They don’t want a prominent Republican who opposes this war and the next one, who will appeal to American weariness with war and big government. They don’t want other elected Republicans — many of whom, according to some members of Congress, now regret the Iraq war — to start publicly backing away from perpetual interventionism.
There were plenty of winners tonight. But the big losers were the neoconservatives, who failed to persuade the Republican voters of Kentucky that wars and bailouts are essential for national progress.
Collecting Your DNA—Not Controversial
That’s why the House of Representatives has put “Katie’s Law” (H.R. 4614, the Katie Sepich Enhanced DNA Collection Act of 2010) on the “Suspension Calendar” today. That’s the procedure for considering non-controversial bills, giving them about 20 minutes of debate.
The bill would promote collection of DNA samples from people based simply on their arrest for certain crimes. Needless to say, being arrested is nothing close to conviction of a crime, at which time it might be fair to collect a person’s DNA for use as a powerful identifier in later criminal investigations. And if DNA evidence is relevant, let it be collected and used according to existing procedures.
But getting your DNA put in a database just because an investigator got you in his or her sights? It’s the reverse of “innocent until proven guilty.”
Filed under: Law and Civil Liberties; Telecom, Internet & Information Policy
George W. Bush Is Not Missed
An atrocious ruling from the Supreme Court yesterday in United States v. Comstock, as has been noted. It is no real surprise that the liberals on the Court ruled the way they did. They believe in big government and need a way to get around a Constitution that set up a federal government of limited and enumerated powers. Thus, we are told a “living” Constitution “evolves” in such a way as to accomodate the administrative state that is all around us. But the law at issue in the Comstock case did not arise during the Clinton years. The Adam Walsh Child Protection Act was championed by conservative legislators in the Congress and signed by Bush.
Until the Comstock ruling was issued, court watchers were unsure of how committed Bush’s Supreme Court picks (Roberts and Alito) were to the constitutional doctrine of enumerated powers. The answer has now arrived: Not much. As the Bush memoir makes its way to the bookstores, I expect there will be a good deal of spin about how good the Bush presidency was. Well, it wasn’t.
Filed under: General; Government and Politics; Law and Civil Liberties; Political Philosophy
Without Intent
One of the major problems with the growing body of federal crimes – over 4,500 and counting, expanding at the rate of 500 each decade – is that many lack the traditional requirement that the defendant has acted with a guilty mind, or mens rea. Highlighting the overcriminalization of nearly everything is necessary to educate the citizenry and put pressure on politicians not to pass overbroad and ill-defined criminal offenses. At some point, however, Congress must act to address the existing flawed statutes and put procedural barriers between bad ideas and the federal criminal code.
Enter the Heritage Foundation and the National Association of Criminal Defense Lawyers with their groundbreaking report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.
The report studies the legislation proposed or passed by the 109th Congress (2005-2006) and finds that a majority lacked an adequate mens rea requirement. The report closes with a strong case for several fundamental changes in the way that Congress creates criminal laws:
- Enact default rules of interpretation ensuring that guilty-mind requirements are adequate to protect against unjust conviction.
- Codify the rule of lenity, which grants defendants the benefit of the doubt when Congress fails to legislate clearly.
- Require adequate judiciary committee oversight of every bill proposing criminal offenses or penalties.
- Provide detailed written justification for and analysis of all new federal criminalization.
- Redouble efforts to draft every federal criminal offense clearly and precisely.
This report is indicative of a broad effort developing across the political spectrum to fix a federal criminal code that has become disconnected from traditional notions of punishing blameworthy conduct. Northwestern Law’s Searle Center on Law, Regulation and Economic Growth held its 2009 Judicial Symposium on Criminalization of Corporate Conduct.
The Heritage Foundation is hosting an event highlighting the findings of Without Intent on Monday, May 24 that can also be viewed online.
The Good Side of Bad News in Europe
What does the Greco-Euro currency/debt crisis mean for the U.S. economy?
Nearly everyone except the uniquely wise economist John Cochrane assumes very bad “contagion” effects –on U.S. banks, exports and particularly U.S. manufacturing.
This echoes identical anxieties while the world went through a far more dramatic Asian currency crisis after July 1997, and a Russian debt crisis the following May.
The most widely ignored effect of that crisis, however, was to depress foreign demand for oil, and thus slash oil prices to U.S. buyers from $25 a barrel in early 1997 to $11 by the end of 1998.
Oil is a major input into the manufacturing process (e.g., chemicals and plastics), and a major cost of distribution (trucks, trains and airplanes). It is also a major determinant of the cost of all energy sources used in making other goods such as aluminum and paper. When marginal costs go down, it becomes profitable to expand production.
At the height of the Asian/Russian crises, the table below shows that U.S. manufacturing output rose by more than 10 percent. It’s an ill wind that doesn’t blow somebody some good.
Looking at the same phenomenon from the other side, every recession but one (1960) was preceded by a big increase in the price of oil. For oil importers like the U.S., cheaper oil is definitely better.
During the last big foreign currency/debt crisis, the real growth of U.S. Gross Domestic Purchases (the home-grown portion of GDP) jumped by 4.7% in 1997 and 5.5% in 1998. Yet the Fed cut interest rates three times in October and November of 1998 because of what was happening in other countries.
The table show what happened to the price of oil and to U.S. manufacturing from June 1997 to December 1998. The middle column is the price of a barrel of West Texas crude, and the column to the right is the U.S. industrial production index for the manufacturing sector.
1997-06 19.17 87.80
1997-07 19.63 88.12
1997-08 19.93 89.69
1997-09 19.79 90.45
1997-10 21.26 90.98
1997-11 20.17 92.05
1997-12 18.32 92.52
1998-01 16.71 93.36
1998-02 16.06 93.31
1998-03 15.02 93.13
1998-04 15.44 93.68
1998-05 14.86 94.25
1998-06 13.66 93.53
1998-07 14.08 92.96
1998-08 13.36 95.40
1998-09 14.95 95.11
1998-10 14.39 95.96
1998-11 12.85 96.08
1998-12 11.28 96.63
In recent weeks, as the debt and currency problems in Euroland hit the front page, the price of crude oil fell by about 20 percent.
Once again, as in 1997-98, everyone may be watching the wrong ball in the wrong court.
Filed under: Energy and Environment; Finance, Banking & Monetary Policy; Foreign Policy and National Security; International Economics and Development
Krugman and Oil Spills, cont’d
Last week Paul Krugman seized on the Gulf oil spill as another occasion to bash libertarians in general and the great Milton Friedman in particular. On Friday David skewered the Times columnist over his odd rhetorical ploy of treating politicians’ failure to follow Friedman’s principles as a refutation of those principles. Now economist Alex Tabarrok at Marginal Revolution reports that Krugman also completely misunderstands the current set of laws governing oil spill liability:
The Oil Pollution Act of 1990 (OPA), which is the law that caps liability for economic damages at $75 million, does not override state law or common law remedies in tort (click on the link and search for common law or see here). Thus, Milton Friedman’s preferred remedy for corporate negligence, tort law, continues to operate and there is no doubt that BP’s potential liability under common law alone would be in the billions of dollars.
…The point of the OPA was not to limit tort law but to supplement it.
Tort law, as traditionally understood, could only be used to recover damages to people and property rather than force firms to pay cleanup costs per se. Thus, in the OPA as I read it — and take the details with a grain of salt since I’m not a lawyer–there is no limit on cleanup costs. Moreover, the OPA makes the offender strictly liable for cleanup costs which means that if these costs are proven the offender must pay them regardless (there are a few defenses, such as an act of war, but they are unlikely to apply). The offender is also strictly liable for up to $75 million in economic damages above and beyond cleanup costs. Thus the $75 million is simply a cap on the strictly liable damages, the damages that if proven BP has to pay regardless. But there is no limit, even under the OPA, on economic damages in the event that BP failed to follow regulations or is otherwise shown to be negligent (same as under common law).
The link Krugman supplies, and perhaps the source of his error, was this Talking Points Memo item baldly describing “the maximum liability for oil companies after a spill” as “a paltry $75 million.” Even the most passing acquaintance with the aftermath of real-world oil spills should have been enough for Krugman and TPM author Zachary Roth to realize that liability for assessments to this one federal rainy-day fund is but one component, perhaps but a minor one, of liability for overall spill damage. And even as regards this one specialized federal fund, Krugman and Roth got it wrong, as a glance at the May 1 edition of Krugman’s own paper would have revealed:
When a rich and well-insured company like BP is responsible for the spill, the government will seek reimbursement of what it spends on cleanup from the company and its insurers.
So Krugman’s post not only strained to take a cheap shot at libertarians, but also thoroughly botched a factual background that it would have been easy enough for him to have looked up. Other that that, it was fine.
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