Fun Facts about Electoral Votes

I just learned that Lloyd Bentsen, Dukasis's running mate in 1988, received one electoral vote because an elector from West Virginia voted for Bentsen as president and Dukakis as vice president. Well, what do you expect from a State that went for Bush but also sends Jay (raise taxes, I can afford it) Rockefeller and Bobby (Ku Klux Klan) Byrd to the Senate?

Libertarian Nay-Saying on Foreign and Defense Policy

I've noticed that most "professional libertarians" -- those affiliated with places like Cato Institute and Reason Foundation -- have an isolationist (or "hands off") view of foreign policy and military ventures. (See the writings of Cato's Ted Galen Carpenter, for example.)

It's wise to be skeptical about the emanations from Foggy Bottom and the Pentagon. But knee-jerk isolationism is unwise -- and unbecoming a libertarian. Libertarians generally take the view that defense is a legitimate function of government. Waiting until the enemy is at our shores or hidden among us isn't an effective defense strategy.

Yes, we can go -- and often have gone -- too far in the other direction: making unnecessary commitments to "allies" of dubious worth and wasting billions on ineffective and inappropriate weapons. But there are worthwhile alliances and suitable military postures. Libertarian specialists in foreign and defense affairs would be more credible if they would spend more time saying what's worthwhile and suitable, and less time saying "no" to whatever comes out of Foggy Bottom and the Pentagon.

In sum, libertarian think-tankers should be innovators, and not mere reactionaries, when it comes to foreign and defense policy. A detailed, coherent libertarian statement with a positive vision of foreign policy and military posture could be a compelling document. But it must a white paper, not a book. The executive summary should fit on one typeset page; the text should run no more than 10 typeset pages. Are you listening out there at Cato and Reason?

P.S. A nutty, Mises Institute-type position paper that tries to explain why defense isn't a public good will get you laughed out of town and might even cost you some big contributions.

Call-Blocking and Free Speech

The Corner's Jonah Goldberg, noting that political organizations aren't covered by the Do Not Call Registry Law, says "it would in fact be worse if the government could block political speech because it's inconvenient" to the person receiving an unsolicited call. Let's put aside the Do Not Call Registry for a moment, and consider the real issue.

Remember door-to-door salesmen? (If you don't, you certainly don't remember bums.) Well, if you didn't want salesmen or bums knocking at your door, you would post a "No Soliciting" sign on your gate or at your front door. That would usually deflect unwanted callers (as we used to refer to people who came to the front door). If that didn't work, you would post a "No Trespassing" sign, which clearly meant "Don't come here without an invitation unless you're a postman, census taker, sheriff, police officer, or fireman."

Unsolicited phone calls are like door-to-door salesmen and bums. The callers have a right to call people who are willing to be called, but they don't have a right to call people who don't want to be called. It's my phone and my house, dammit. There's no free speech issue. Does freedom of speech give anyone the right to burst into your house at dinner time and shout "Joe Schmoe for dogcatcher!"? I don't think so.

Now, the only question is how to block those uninvited calls. The best way is to sign up for caller ID and buy a call bouncer, which blocks calls from designated numbers and diverts calls from other numbers to your answering machine unless you've flagged them as "acceptable." Calls from acceptable numbers will ring longer before going to the answering machine. That gives you a chance to pick up if you're there and want to do so. (The setup also allows you to screen your calls and avoid long-winded conversations with friends and family when you don't have time for such conversations.) The technology works and it's cheap.

The Do Not Call Registry is just another pseudo-panacea. It's a "gift" from the same people who gave you the McCain-Feingold Act.

So, It's Not About Religion?

From BBC News World Edition:

Iraq captors 'free Turk hostages'
Three Turkish men kidnapped by militants in Iraq last week have been released, say Turkish government officials.

The men were apparently held by a group linked to a man said to be al-Qaeda's Iraq chief - Abu Musab al-Zarqawi.

A masked man in a video aired by Arab TV al-Jazeera said the men were freed because Turkey's Muslims had protested against the US.

The kidnappers had earlier threatened to behead the men.

Headlines I'd Like to Read

Some headlines and subheads that came to mind as I fumed about the Supremes' power grab in the detainee cases:

Bush Defies Court on Detainees, Citing Liberty Corner

8 Justices Resign in Protest of Bush Move
President Nominates Thomas as Chief Justice,
Vows to Name 8 "Like Justice Thomas" to Fill Vacancies

Nader on Ballot in 50 States, Endorsed by Gephardt

Bush Wins
First Candidate with Popular Vote Majority since 1988
Coat Tails Enlarge GOP Majority in House
Senate Majority Grows to 67-33

Bush's First Post-Election Budget a Stunner
Cuts Non-Defense Spending in Half
"Just a Start," President Says

Bush Sends Social Security Reform to Congress
Easy Passage of Privatization Seen
Eventual Doubling of Average Retiree's Benefit "A Cinch,"
According to Leading Economists

Bonus headlines:

Senate Ousts Kerry for Poor Attendance

Mass. State Police Reopen Kopechne Case

Hollywood Liberals in Mass Exodus to France
Chirac Nationalizes French Film Industry,
Caps Stars' Salaries at $1,000 a Week

Gore Admitted to Bellevue Hospital
Sources Cite "Bizarre Behavior" on Election Night
Others Say Gore "Seemed His Usual Self"

Michael Moore's Studio Burns to Ground, No One Injured
Investigators Say Lightning Struck on Sunny Day
Moore Sees Bush in Plot with God

Something Completely Different

Michelle Malkin is having an "All Wet T-Shirt Contest". As she says, "it's not what you think." She got the idea from a "USA Today feature on Hollywood leftists who are marketing political t-shirts." So she's "inviting readers to leave their suggested t-shirt slogans for their favorite stars." Just click on the link above and add your entry by scrolling to "Post a comment" at the bottom.

Most of the entries are fairly lame, but there are a few good ones, espcially this one from "KB":

Because of George W. Bush, I lost my job, my home, and my two sons were killed in an unjust war. Stop the madness. Vote Kerry.

-Saddam Hussein

Here are mine:

T-shirts for any left-wing celebrity:

Front:
Freedom Is Precious
Back:
Why Waste It on Iraqis?

Front:
Peace on Earth
Back:
At Any Price

Front:
Guns Kill
Back:
So Beware My Bodyguard

Front:
I Love GIs
Back:
If They're Cute
(suitable for either gender, in Hollywood)

Front:
Bush and Ashcroft Are Fascist Pigs
Back:
So Why Am I Still Walking Around Wearing This Stupid T-shirt?

You be the judge.

More about War and Civil Liberties

In the previous post I chastised the U.S. Supreme Court for finding that enemy combatants taken on foreign soil have access to American courts, saying that the Court's rulings "give aid and comfort to our enemies." That is the effect of the Court's rulings, it seems to me. But I'm certainly not accusing the Court of treason. (There will be no "Impeach Earl Warren" bumper stickers on this site.)

I am nevertheless irked by the Court's willingness to intrude into matters where it need not intrude. That is why I cited the counter-example of an earlier Court's ruling in the case of the Japanese-Americans who were relocated during World War II.

Some might think that my views on the Court's present rulings are inconsistent with my trashing of Cass Sunstein for his statist views (see here, here, here, here, and here). I see a vast difference between Sunstein's philosophy and mine.

Sunstein proposes a permanent diminution of liberty for the sake of achieving certain outcomes, such as avoiding group polarization (though how this can be achieved by government coercion is beyond me) and advancing FDR's essentially socialist agenda for America (which, to our detriment, has been achieved in the main).

I am not talking about the diminution of anyone's liberty (unless it counts as a diminution of liberty to capture enemy soldiers). What I am saying is this: It is a perfectly legitimate defense of liberty to treat our enemies as enemies when we are engaged in a legal war. When we begin to treat our enemies as mere criminals, and inject them into civilian courts, we accord them a status they do not deserve, and we put ourselves at greater risk of losing liberty, life, and happiness.

For a much longer treatment of this and related issues, click here.

P.S. to Previous Post

If I were commander-in-chief, I might say, in Jacksonian fashion: "The Supreme Court has made its decision, now let them enforce it."

But I would go further than that and remind the Court of what an earlier Court ruled when it held for the government's relocation of Japanese-Americans during World War II (Justice Frankfurter in a concurring opinion):

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is "the power to wage war successfully."...Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless.

Justice Frankfurter was writing about American citizens being relocated, involuntarily, within the United States. Today's Court rulings are about enemy soldiers who were captured overseas in a war being waged legally by the United States.

I used the Frankfurter quotation in an earlier post, where I argued, among other things, that the suspension of civil liberties in the course of a legal war hasn't -- and needn't -- put us on the path to serfdom. War is war, and our enemies are the real threat to our civil liberties. Today's rulings give aid and comfort to our enemies.

The Court Opines

The U.S. Supreme Court has found against the government in the cases of Yaser Esam Hamdi, an American citizen being held at Gitmo as an enemy combatant, and several foreign nationals also being held at Gitmo. All were captured abroad, fighting in the cause of the Taliban.

Specifically, the Court has ruled that the plaintiffs in both cases are entitled to access to American courts -- Hamdi because he is a citizen, the others because they are being held at Gitmo, which is effectively U.S. territory. These narrow decisions aren't unmitigated losses for the forces of anti-terrorism. (You can read them here and here.)

I take away this lesson: Don't ship enemy combatants to Gitmo, hand them over to the Afghanis or Iraqis.

Current Reading

I'm 79 pages into A Student of Weather, a novel by Elizabeth Hay. Brilliant -- that overused adjective -- is in order here. Hay is one of those rare, observant writers who can capture character, feeling, mood, and setting in a few words, phrases, or sentences.

The book begins in a small farming community on the Saskatchewan prairie, in the dust-bowl year of 1938. A leading character is Maurice, a 23-year old botanist from Ottawa who comes to the farming community several times a year to study prairie grasses. A middle-aged woman who develops a crush on Maurice discovers that he doesn't remember her from his previous visit:

[H]e trailed disappointment behind him and was unaware of it. She was only a vague face in his mind, a farmwife from Belgium, or was it Holland?

And then she realized the value of Prairie reserve. It was reliable, it did not set you up for disappointment, it let you alone and it was balanced by steady courtesy. People never failed to recognize you, and they never pried.

Hay has been doing this for 79 pages. I have no doubt that she will continue doing it for the next 285 pages.

An (Imaginary) Interview with Cass Sunstein

This is the last of this series of posts about Cass Sunstein, unless he deigns to reply to me. I have many positive things to say about many subjects, and I have been neglecting other targets of opportunity.

Liberty Corner: Apropos the preceding post, I wish you, Cass Sunstein, would quit beating around the bush. If you want something, you have to spell it out. Don't be coy, Cass, tell us how you would amend the Constitution to ensure that all internet users are exposed to points of view that they would otherwise eschew.

Cass Sunstein: Let's start with the First Amendment, which deals with freedom of speech and of the press, among other things. I'm suggesting that we simply recognize that not all speech is protected and use that fact to force the purveyors of extreme points of view to acknowledge opposing points of view.

LC: Tell us how you would restate the First Amendment so that it does the right thing.

CS: I would add the following codicil: Congress, in order to promote a more efficacious deliberative democracy, may require persons to acknowledge opposing points of view when they communicate on a subject. Further, Congress may require communications media to assist in that endeavor and to transmit points of view other than those which they might willingly transmit.

LC: So, in the name of political freedom you would curtail freedom?

CS: I don't think of it that way. We're all more free, in an intellectual way, when we're exposed to a diversity of experiences and points of view. Besides, freedom is something we receive from government; government may therefore withdraw some freedom from us when it's for our good.

LC: Let's assume, for the sake of this discussion, that people desire political freedom, and the other types of freedom that flow from it. Would we really be more free if government forced us to hear or at least take part in the transmission of views with which we disagree, or would we simply be encumbered with more rules about how to live our lives?

CS: That's a negative way of looking at it.

LC: Let me draw an analogy from fiction. Have you read Portnoy's Complaint?

CS: You aren't about to slur my ethnicity, are you?

LC: No, not at all. It's just that the novel's protagonist, Alex Portnoy, has an experience that reminds me of your proposed codicil to the First Amendment. His mother stood over him with a knife in an effort to make him eat his dinner. Do you think government should act like Alex Portnoy's mother?

CS: Well, she didn't need to pull a knife on Alex, but she obviously needed to exert her maternal authority.

LC: You don't think Alex would have voluntarily eaten his dinner, in a day or two, rather than starve?

CS: Why take chances?

LC: So not doing what's good for one's self is the moral equivalent of doing harm to another?

CS: Yes. Alex's mother obviously suffered from anxiety caused by Alex's refusal to eat his dinner.

LC: But Alex's mother -- being older and larger than Alex, though evidently not wiser -- might have reflected on the ramifications of her threat. She didn't really save Alex from starvation, but she did cause him to disrespect and hate her.

CS: What does that have to do with my version of the First Amendment?

LC: It has a lot to do with what happens to the cohesiveness of society, which you seem to value, when government forces people to behave in certain, non-neutral ways. You can figure it out if you think about it. But let's move on. What about the rules that would require the acknowledgement of opposing points of view? Who would make those rules? In particular, with respect to web sites, who would select those "sites that deal with substantive issues in a serious way"? And who would identify "highly partisan" web sites that “must carry” icons pointing to those "sites that deal with substantive issues in a serious way"?

CS: An agency authorized by Congress to do such things.

LC: The FCC, for instance?

CS: The FCC might be the appropriate agency, but Congress would have to take its oversight role more seriously.

LC: Pressuring the FCC to pressure a broadcaster to stifle a certain radio personality isn't enough for you?

CS: What?

LC: Never mind. Let's assume it's the FCC, whose members are appointed by the president, subject to confirmation by the Senate. The FCC is essentially a political body, composed of some mix of Democrats and Republicans.

CS: That's inevitably the case with any regulatory agency.

LC: Right you are. So the FCC, or any agency newly created for the purpose, wouldn't be neutral about such issues as what constitutes an opposing point of view, which sites deal with substantive issues in a serious way, and which sites are highly partisan.

CS: You have to rely on the judgment of those appointed to perform the task of making such evaluations.

LC: But not the judgment -- or preferences -- of purveyors of news and views?

CS: No, because they're likely to be wedded to their positions and not open to opposing ideas.

LC: Unlike the political appointees on the FCC?

CS: Well, those political appointees would be scrutinized by Congress.

LC: Which, of course, is always balanced and neutral in its views, and which never tries to inflict particular points of view on regulatory agencies.

CS: You're trying to get me to say that my version of the First Amendment would impose the judgment of politicians and their minions on the news and views of corporate and individual communicators.

LC: Isn't that exactly what would happen?

CS: But we're better off when our duly elected representatives and their agents make such decisions. That's how deliberative democracy is supposed to work.

LC: Oh, we elect them to tell us how to live our lives?

CS: If that's what it takes to make us better citizens, yes.

LC: You think coercion of that sort would make us a more cohesive society and would make us more appreciative of points of view that differ from our own?

CS: It's worth a try.

LC: And where do you stop?

CS: What do you mean?

LC: How do you know when society is sufficiently cohesive and that an acceptable fraction of its members have become appreciative of differing points of view? What do you do if society simply refuses to cooperate with your program?

CS: Well, as to your first question, the FCC would simply monitor the content of broadcasts and web sites. As to your second question, the FCC might shut down uncooperative outlets or place them in the hands of an appointed operator, much as bankruptcy courts use court-appointed receivers to hand the affairs of bankrupt businesses. In the extreme, the FCC might have to resort to criminal sanctions -- fines and imprisonment. But that probably wouldn't happen more than a few times before communicators began to comply with the law.

LC: Or simply quit trying to communicate.

CS: Well, that's always an option.

LC: I'm beginning to get the picture. Before we stop, however, I'd like to pose a hypothetical. Suppose the FCC were composed entirely of members who had a peculiar regard for the original meaning of the Constitution. Suppose, further, that we had, at the same time, a president who felt the same way about the Constitution, and that Congress was in the hands of a sympathetic majority. Now, in the course of monitoring web sites the FCC comes across your essay on "The Future of Free Speech" and deems it an extremist screed, subversive of the Constitution. What do you suppose would happen?

CS: The FCC should order The Little Magazine to post a link to Liberty Corner's commentary on my essay. Or it might order The Little Magazine to remove my essay from its site.

LC: Suppose the FCC did neither. Suppose the FCC gave the matter some thought and concluded that it would do nothing about your essay. Instead, it would hew to the original meaning of the Constituion and let you bloviate to your heart's content.

CS: I would turn myself in to the FCC and demand to be sanctioned to the letter of the law.

LC: Oh, really? Can I count on that? I just want to be sure that you're willing to live by the rules that you would impose on others.

CS: Most assuredly.

LC: Thank you very much for your (imaginary) time. That's all for now. But don't worry, I'll be keeping an eye on you.

Cass Sunstein's Truly Dangerous Mind

UPDATED BELOW

Cass Sunstein's recent blatherings about FDR's "Second Bill of Rights" at The Volokh Conspiracy made me want to find out more about his understanding of the proper role of government in our society. I Googled the eminent professor and hit upon "The Future of Free Speech", which appears in The Little Magazine, a South Asian journal (thus the British English spellings in the quotations below). Hold your nose and follow Sunstein's argument in these quotations from "The Future of Free Speech":

My purpose here is to cast some light on the relationship between democracy and new communications technologies. I do so by emphasising the most striking power provided by emerging technologies: the growing power of consumers to “filter” what it is that they see. In the extreme case, people will be fully able to design their own communications universe. They will find it easy to exclude, in advance, topics and points of view that they wish to avoid. I will also provide some notes on the constitutional guarantee of freedom of speech.

An understanding of the dangers of filtering permits us to obtain a better sense of what makes for a well-functioning system of free expression. Above all, I urge that in a heterogeneous society, such a system requires something other than free, or publicly unrestricted, individual choices. On the contrary, it imposes two distinctive requirements. First, people should be exposed to materials that they would not have chosen in advance....Second, many or most citizens should have a range of common experiences. Without shared experiences, a heterogeneous society will have a much more difficult time addressing social problems; people may even find it hard to understand one another....

Imagine...a system of communications in which each person has unlimited power of individual design....Our communications market is moving rapidly toward this apparently utopian picture....[A]s of this writing, a number of newspapers allow readers to create filtered versions, containing exactly what they want, and excluding what they do not want....

I seek to defend a particular conception of democracy — a deliberative conception — and to evaluate, in its terms, the outcome of a system with perfect power of filtering. I also mean to defend a conception of freedom, associated with the deliberative conception of democracy, and oppose it to a conception that sees consumption choices by individuals as the very embodiment of freedom....

The US Supreme Court has...held that streets and parks must be kept open to the public for expressive activity. Hence governments are obliged to allow speech to occur freely on public streets and in public parks — even if many citizens would prefer to have peace and quiet, and even if it seems irritating to come across protesters and dissidents whom one would like to avoid....

A distinctive feature of this idea is that it creates a right of speakers’ access, both to places and to people. Another distinctive feature is that the public forum doctrine creates a right, not to avoid governmentally imposed penalties on speech, but to ensure government subsidies of speech....Thus the public forum represents one place in which the right to free speech creates a right of speakers’ access to certain areas and also demands public subsidy of speakers....

[T]he public forum doctrine increases the likelihood that people generally will be exposed to a wide variety of people and views. When you go to work, or visit a park, it is possible that you will have a range of unexpected encounters, however fleeting or seemingly inconsequential. You cannot easily wall yourself off from contentions or conditions that you would not have sought out in advance, or that you would have chosen to avoid if you could. Here too the public forum doctrine tends to ensure a range of experiences that are widely shared — streets and parks are public property — and also a set of exposures to diverse circumstances. A central idea here must be that these exposures help promote understanding and perhaps in that sense freedom. And all of these points can be closely connected to democratic ideals, as we soon see....

The public forum doctrine is an odd and unusual one, especially insofar as to create a kind of speakers’ access right to people and places, subsidised by taxpayers. But the doctrine is closely associated with a longstanding constitutional ideal, one that is far from odd: that of republican self-government. From the beginning, the American constitutional order was designed to be a republic, as distinguished from a monarchy or a direct democracy. We cannot understand the system of freedom of expression, and the effects of new communications technologies and filtering, without reference to this ideal....

The specifically American form of republicanism...involved an effort to create a “deliberative democracy.” In this system, representatives would be accountable to the public at large, but there was also supposed to be a large degree of reflection and debate, both within the citizenry and within government itself. The system of checks and balances — evident in the bicameral system, the Senate, the Electoral College and so forth — had, as its central purpose, a mechanism for promoting deliberation within the government as a whole....

We are now in a position to distinguish between two conceptions of sovereignty. The first involves consumer sovereignty; the second involves political sovereignty. The first ideal underlies enthusiasm for “the Daily Me.” The second ideal underlies the democratic challenge to this vision, on the ground that it is likely to undermine both self-government and freedom, properly conceived.

Of course, the two conceptions of sovereignty are in potential tension. A commitment to consumer sovereignty may well compromise political sovereignty — if, for example, free consumer choices result in insufficient understanding of public problems, or if they make it difficult to have anything like a shared culture....

Group polarisation is highly likely to occur on the Internet. Indeed, it is clear that the Internet is serving, for many, as a breeding ground for extremism, precisely because like-minded people are deliberating with one another, without hearing contrary views....

The most reasonable conclusion is that it is extremely important to ensure that people are exposed to views other than those with which they currently agree, in order to protect against the harmful effects of group polarisation on individual thinking and on social cohesion....

The adverse effects of group polarization…show that with respect to communications, consumer sovereignty is likely to produce serious problems for individuals and society at large — and these problems will occur by a kind of iron logic of social interactions....

The phenomenon of group polarisation is closely related to the widespread phenomenon of ‘social cascades’. No discussion of social fragmentation and emerging communications technologies would be complete without a discussion of that phenomenon....

[O]ne group may end up believing something and another the exact opposite, because of rapid transmission of information within one group but not the other. In a balkanised speech market, this danger takes on a particular form: different groups may be led to dramatically different perspectives, depending on varying local cascades.

I hope this is enough to demonstrate that for citizens of a heterogeneous democracy, a fragmented communications market creates considerable dangers. There are dangers for each of us as individuals; constant exposure to one set of views is likely to lead to errors and confusions. And to the extent that the process makes people less able to work cooperatively on shared problems, there are dangers for society as a whole.

In a heterogeneous society, it is extremely important for diverse people to have a set of common experiences....

This is hardly a suggestion that everyone should be required to participate in the same thing. We are not speaking of requirements at all. In any case a degree of plurality, with respect to both topics and points of view, is also highly desirable. My only claim is that a common set of frameworks and experiences is valuable for a heterogeneous society, and that a system with limitless options, making for diverse choices, will compromise the underlying values.

The points thus far raise questions about whether a democratic order is helped or hurt by a system of unlimited individual choice with respect to communications. It is possible to fear that such a system will produce excessive fragmentation, with group polarisation as a frequent consequence. It is also possible to fear that such a system will produce too little by way of solidarity goods, or shared experiences. But does the free speech principle bar government from responding to the situation? If that principle is taken to forbid government from doing anything to improve the operation of the speech market, the answer must be a simple Yes.

I believe, however, that this is a crude and unhelpful understanding of the free speech principle, one that is especially ill-suited to the theoretical and practical challenges of the next decades and beyond. If we see the Free Speech Principle through a democratic lens, we will be able to make a great deal more progress.

There should be no ambiguity on the point: free speech is not an absolute. The government is allowed to regulate speech by imposing neutral rules of property law, telling would-be speakers that they may not have access to certain speech outlets....Government is permitted to regulate unlicensed medical advice, attempted bribery, perjury, criminal conspiracies (“Let’s fix prices!”), threats to assassinate the President, criminal solicitation (“Might you help me rob this bank?”), child pornography, false advertising, purely verbal fraud (“This stock is worth $100,000”), and much more....And if one or more of these forms of speech can be regulated, free speech absolutism is a kind of fraud, masking the real issues that must be confronted in separating protected speech from unprotected speech....

If the discussion thus far is correct, there are three fundamental concerns from the democratic point of view. These include:
• the need to promote exposure to materials, topics, and positions that people would not have chosen in advance, or at least enough exposure to produce a degree of understanding and curiosity;
• the value of a range of common experiences;
• the need for exposure to substantive questions of policy and principle, combined with a range of positions on such questions.

Of course, it would be ideal if citizens were demanding, and private information providers were creating, a range of initiatives designed to alleviate the underlying concerns....But to the extent that they fail to do so, it is worthwhile to consider government initiatives designed to pick up the slack....

1. Producers of communications might be subject...to disclosure requirements....On a quarterly basis, they might be asked to say whether and to what extent they have provided educational programming for children, free airtime for candidates, and closed captioning for the hearing impaired. They might also be asked whether they have covered issues of concern to the local community and allowed opposing views a chance to be heard....Websites might be asked to say if they have allowed competing views a chance to be heard....

2. Producers of communications might be asked to engage in voluntary self-regulation....[T]here is growing interest in voluntary self-regulation for both television and the Internet....Any such code could, for example, call for an opportunity for opposing views to speak, or for avoiding unnecessary sensationalism, or for offering arguments rather than quick ‘sound-bytes’ whenever feasible.

3. The government might subsidise speech, as, for example, through publicly subsidised programming or Websites....Perhaps government could subsidise a ‘public.net’ designed to promote debate on public issues among diverse citizens — and to create a right of access to speakers of various sorts.

4. If the problem consists in the failure to attend to public issues, the government might impose “must carry” rules on the most popular Websites, designed to ensure more exposure to substantive questions. Under such a program, viewers of especially popular sites would see an icon for sites that deal with substantive issues in a serious way....Ideally, those who create Websites might move in this direction on their own. If they do not, government should explore possibilities of imposing requirements of this kind, making sure that no program draws invidious lines in selecting the sites whose icons will be favoured....

5. The government might impose “must carry” rules on highly partisan Websites, designed to ensure that viewers learn about sites containing opposing views....Here too the ideal situation would be voluntary action. But if this proves impossible, it is worth considering regulatory alternatives....

Emerging technologies are hardly an enemy here....But to the extent that they weaken the power of general interest intermediaries, and increase people’s ability to wall themselves off from topics and opinions that they would prefer to avoid, they create serious dangers....

So let's all put on our brown shirts and march to a public rally at which we will be "allowed" to shout: "Dark is light; black is white; Sunstein is right."

In an earlier post I said that Cass Sunstein is to the integrity of constitutional law as Pete Rose is to the integrity of baseball. It's worse than that: Sunstein's willingness to abuse constitutional law in the advancement of a statist agenda reminds me of Hitler's abuse of German law to advance his repugnant agenda.

Oops, I should link to an opposing view. Sunstein doesn't have a blog, so how about this?

UPDATE (04/05/05): Tom G. Palmer has an excellent take on Sunstein at NRO. (Thanks to Freespace for the tip.)

Sen(seless) Economics

Cass Sunstein's penultimate Volokh Conspiracy essay on FDR's Second Bill of Rights invokes Amartya Sen:

Randy [Barnett] asks whether the Second Bill should be seen as protecting "natural rights." To say the least, the natural rights tradition has multiple strands; a good contemporary version is elaborated by Amartya Sen (see his Development as Freedom).

In other words, the Bill of Rights (the real one) codified certain natural rights, but not all of them, according to Sunstein and his fellow travelers. The Second Bill of Rights envisioned by FDR would (and perhaps did) codify the Sunstein-Sen version of economic freedom as a natural right on a par with, say, freedom of speech, freedom of the press, and freedom from self-incrimination.

Here's Dr. Sen (the 1998 Nobel laureate in Economics and a professor at Trinity College, Cambridge) to explain what he means by economic freedom (from an online essay entitled "Development as Freedom"):

We…live in a world with remarkable deprivation, destitution, and oppression....

Overcoming these problems is a central part of the exercise of development. We have to recognize the role of different freedoms in countering these afflictions. Indeed, individual agency is, ultimately, central to addressing these deprivations. On the other hand, the freedom of agency that we have is inescapably constrained by our social, political, and economic opportunities. We need to recognize the centrality of individual freedom and the force of social influences on the extent and reach of individual freedom. To counter the problems we face, we have to see individual freedom as a social commitment....

I view the expansion of freedom both as the primary end and as the principal means of development. Development consists of removing various types of unfreedoms that leave people with little choice and little opportunity of exercising their reasoned agency....

Development requires the removal of major sources of unfreedom: poverty as well as tyranny, poor economic opportunities as well as systemic social deprivation, neglect of public facilities as well as intolerance or overactivity of repressive states.

What's wrong with this picture? Sen, Sunstein, and their ilk -- clever arguers, all -- equate economic freedom (delivered in the form of make-work jobs, welfare, the minimum wage, social security, subsidized housing, free medical care, legalized extortion of employers through unionization, etcetera, etcetera) with political freedom (or liberty as it's better known). The two things are incommensurate. Indeed, they are incompatible.

In order for some persons to enjoy the kind of economic freedom envisioned by FDR and his acolytes, government must impose what Sen would call economic unfreedom and on other persons, through taxation and regulation. "Robbing Peter to pay Paul" still says it best.

Political freedom (liberty) works the other way around. One person's political freedom -- the freedom to speak out, to publish a newspaper, to cast a vote, and so on -- doesn't diminish another person's political freedom. To the contrary, political freedom is most secure when it is widely held.

True economic freedom flows from political freedom. True economic freedom encompasses such things as pursuing a better education, limited only by one's ability and financial resources; finding and keeeping a job, without paying union dues or belonging to a minority group; starting a business of one's own and running it freely, without extorting or cheating others; making a campaign contribution in any amount to any political candidate; not being forced to subsidize candidates one opposes; and saving for one's old age (in a real savings account) or buying a sports car, as one chooses. These are just a few of the many economic freedoms that government has circumscribed in its typically Orwellian effort to improve us by making us less free.

More importantly, from the Sunstein-Sen point of view, FDR-style economic freedom reduces the range of options available to individuals by significantly diminishing the economy (see "The True Cost of Government"). If the economy hadn't been stunted by FDR-style economic freedom, and if FDR-style economic freedom hadn't discouraged the habit of private charity, the poor, infirm, and aged of this land -- and many other lands -- would be far better off than they are today.

The irony would be amusing if it weren't tragic.

"Je ne regrette rien"

From today's online edition of the New York Times:

Cheney Owns Up to Profanity Incident and Says He 'Felt Better Afterwards'
By RICHARD W. STEVENSON

SIOUX CITY, Iowa, June 25 - Vice President Dick Cheney, long portrayed by his aides as unperturbed by partisan attacks, admitted Friday that he "probably" cursed at a senior Democratic senator this week, said he did not regret it and added that he "felt better afterwards."

The "probably" is a bit weak, but other than that, I like it. None of that ooze about "I'm sorry if I said anything to offend anyone." He said what he meant and he meant what he said. Good for him.

The True Cost of Government

Americans are far less prosperous than they could be, for three reasons:

• Government uses resources that would otherwise be used productively in the private sector (19 percent of GDP in 2003).

• Government discourages work and innovation by taxing income at progressive rates and by transferring income from the productive to the non-productive (12 percent of GDP for recipients of Social Security, Medicare, Medicaid, etc., in 2003).

• Government regulation stifles innovation and raises the cost of producing goods and services (a net loss of 16 percent of GDP in 2003).

Because of the cumulative, corrosive effects of government spending, progressive tax rates, redistributive welfare schemes, and regulation, GDP is now as much as 45 percent below where it could be.

Here's what happened: Real GDP began to rise sharply in the late 1870s, thanks mainly to the Second Industrial Revolution. Despite the occasional slump -- which the economy worked its way out of, thank you -- things continued to go well until 1906. Then the trajectory of GDP growth fell suddenly, sharply, and (it seems) permanently.

Why? First, the regulatory state began to encroach on American industry with the passage of the Food and Drug Act and the vindictive application of the Sherman Antitrust Act, beginning with Standard Oil (the Microsoft of its day). There followed the ratification of Amendment XVI (enabling the federal government to tax incomes); World War I (a high-taxing, big-spending operation); a respite (the boom of the 1920s, which was owed to the Harding-Coolidge laissez-faire policy toward the economy); and the Great Depression and World War II (truly tragic events that imbued in the nation a false belief in the efficacy of the big-spending, high-taxing, regulating, welfare state).

The Great Depression also spawned the myth that good times (namely the Roaring '20s) must be followed by bad times, as if good times are an indulgence for which penance must be paid. Thus the Depression often is styled as a "hangover" that resulted from the "partying" of the '20s, as if laissez-faire -- and not wrong-headed government policies -- had caused and deepened the Depression.

You know the rest of the story: Spend, tax, redistribute, regulate, elect, spend, tax, redistribute, regulate, elect, ad infinitum. The payoff: GDP per capita was almost $38,000 in 2003; without government meddling it might have been as much as $68,000.

The moral: By entrusting our economic security to government, we have lost untold trillions in wealth and income.

First Principles, for the Second Time

After reading the effusions of Cass Sunstein at The Volokh Conspiracy (see previous post and links therein), I needed to come up for air. What better way than to republish the text of an earlier post? Here it is:

A society is formed by the voluntary bonding of individuals into overlapping, ever-changing groups whose members strive to serve each others' emotional and material needs. Government -- regardless of its rhetoric -- is an outside force that cannot possibly replicate societal bonding, or even foster it. At best, government can help preserve society -- as it does when it deters aggression from abroad or administers justice. But in the main, government corrodes society by destroying bonds between individuals and dictating the terms of social and economic intercourse -- as it does through countless laws, regulations, and programs, from Social Security to farm subsidies, from corporate welfare to the hapless "war" on drugs, from the minimum wage to affirmative action. On balance, the greatest threat to society is government itself.

The constitutional contract charges the federal government with keeping peace among the States, ensuring uniformity in the rules of inter-State and international commerce, facing the world with a single foreign policy and a national armed force, and assuring the even-handed application of the Constitution and of constitutional laws. That is all.

The business of government is to protect the lawful pursuit and enjoyment of income and wealth, not to redistribute them.

Liberty is the right to make mistakes, to pay for them, and to profit by learning from them.

The most precious right is the right to be left alone.

Call Me a Constitutional Lawyer

If Professor Cass Sunstein is a good constitutional lawyer, I'm a flying wombat. In his latest extrusion at The Volokh Conspiracy, he talks about "constitutive commitments" -- better known as backdoor amendments to the Constitution. He opens with this:

It's standard to distinguish between constitutional requirements and mere policies. An appropriation for Head Start is a policy, which can be changed however Congress wishes; by contrast, the principle of free speech overrides whatever Congress seeks to do. But there's something important, rarely unnoticed, and in between -- much firmer than mere policies, but falling short of constitutional requirements. These are constitutive commitments.

It seems that the good professor hasn't heard that the U.S. Supreme Court upheld the provisions of the so-called Campaign Finance Reform Act which suppress free speech as blatantly as it can be suppressed. He nevertheless pushes on, in his ignorance, to tell us that

Constitutive commitments have a special place in the sense that they're widely accepted and can't be eliminated without a fundamental change in national understandings....Current examples include the right to some kind of social security program; the right not to be fired by a private employer because of your skin color or your sex; the right to protection through some kind of antitrust law.

That's what happens when the constitution is amended by judicial acquiescence in legislative malfeasance. The national program of social security is blatantly unconstitutional and a ripoff of the first order (see here and here). The "right" not to be fired because of skin color or gender amounts to the "right" to hold a job regardless of competence. The "right" to the "protection" of anti-trust laws (when all we need is enforcement of laws against fraud, deception, and theft) amounts to a license for government to undermine the dynamism of free markets.

Sunstein then reverts to his main theme, which is FDR's so-called Second Bill of Rights (see here and here):

[FDR] wasn't proposing a formal constitutional change; he didn't want to alter a word of the founding document. He was proposing to identify a set of constitutive commitments. One possible advantage of that strategy is that it avoids a role for federal judges; another possible advantage is that it allows a lot of democratic debate, over time, about what the constitutive commitments specifically entail.

In other words, FDR wanted to amend the constitution by extra-constitutional means. Instead of avoiding a role for federal judges, however, FDR (and his successors) got their way with the help of a cowed and hand-picked Supreme Court.

As for "democratic debate", we have judges to say what's debatable (that is, within the scope of the Constitution) and what's not debatable. When judges fail in their duty to the Constitution, as they often have in the last 70 years, demagogues (like FDR) take over. That's why people believe in "rights" that aren't rights: social security, affirmative action, nailing the "big guy" mainly because he's successful, and many others it pains me too much to mention.

Cass Sunstein is to the integrity of constitutional law as Pete Rose is to the integrity of baseball.

What Anonymous Really Meant to Say

The headlines and stories about Imperial Hubris, by good old Anonymous (must be related to me), focus on the Bush-bashing, of course:

Bush told he is playing into Bin Laden's hands

Al-Qaida may 'reward' American president with strike aimed at keeping him in office, senior intelligence man says

Julian Borger in Washington
Saturday June 19, 2004
The Guardian

A senior US intelligence official is about to publish a bitter condemnation of America's counter-terrorism policy, arguing that the west is losing the war against al-Qaida and that an "avaricious, premeditated, unprovoked" war in Iraq has played into Osama bin Laden's hands.

Imperial Hubris: Why the West is Losing the War on Terror, due out next month, dismisses two of the most frequent boasts of the Bush administration: that Bin Laden and al-Qaida are "on the run" and that the Iraq invasion has made America safer.

But Talking Points Memo (TPM) has interviewed Anonymous (links here and here). TPM's commentary and the Q and A with Anonymous tell quite a different story, and a much more compelling one. We get this from the first TPM post about Imperial Hubris:

Does the book exhibit contempt for the administration's policies? Certainly. It also takes a dim view of the White House's conception of what motivates al-Qaeda and how to fight it. But in the book and in an interview, Anonymous doesn't traffic in Bush-bashing. He has much harsher words to say about the leadership of the intelligence community, whom he faults for bending too far to the predispositions of the policymakers they serve.

ANONYMOUS: The intelligence community, and especially the CIA, serve the president....

I tend to blame, as I do in the book, a leadership generation in the intelligence community that is more interested in its next promotion and its career prospects than it is in talking about hard issues. Somebody needed to go and say, not just to Mr. Bush, but to Mr. Clinton, "Mr. President, this is a war about Islam. You can say all you want that it's not a war about religion, but it is." And it's much more so now than in 1992, and still no one will say it.

Things get even more interesting in the second post. We begin, again, with TPM's gloss on Imperial Hubris:

[W]e fail to understand that bin Laden doesn't hate us because of our freedom. Or, rather, while he does hate the licentiousness and modernity that the U.S. represents, it's not what compels him to declare war on us. Nor does an anti-modernist bent explain bin Laden's appeal across the Muslim world. Instead, it's what Anonymous identifies as six points bin Laden repeatedly cites in his communiqués:

I'll interrupt here to explain that I'm numbering Anonymous's rendition of bin Laden's six points, for later ease of reference.

"[1] U.S. support for Israel that keeps the Palestinians in the Israelis' thrall; [2] U.S. and other Western troops on the Arabian peninsula; [3] U.S. occupation of Iraq and Afghanistan; [4] U.S. support for Russia, India and China against their Muslim militants; [5] U.S. pressure on Arab energy producers to keep oil prices low; [6] U.S. support for apostate, corrupt and tyrannical Muslim governments."

If that's what bin Laden and his fellow fanatics really want, then we're in for a fight to the finish -- I've never doubted it, but a lot of Americans still don't believe it. Why? Putting aside points 2, 3, 4, and 6, we're still left with point 1 (support for Israel, which cannot be acceptable to Muslim fanatics in any form) and point 5 (which is really about our access to Middle Eastern oil). Those are -- or should be -- non-negotiable U.S. objectives. Given that, let's cut to the chase and read what Anonymous thinks will happen. We begin with TPM quoting from Imperial Hubris:

To secure as much of our way of life as possible, we will have to use military force in the way Americans used it on the fields of Virginia and Georgia, in France and on Pacific islands, and from skies over Tokyo and Dresden....

Killing in large numbers is not enough to defeat our Muslim foes. With killing must come a Sherman-like razing of infrastructure. Roads and irrigation systems; bridges, power plants, and crops in the field; fertilizer plants and grain mills--all these and more will need to be destroyed to deny the enemy its support base. … [S]uch actions will yield large civilian casualties, displaced populations, and refugee flows. Again, this sort of bloody-mindedness is neither admirable nor desirable, but it will remain America's only option so long as she stands by her failed policies toward the Muslim world.

But how can we avoid "failure" if "failure" comprises supporting Israel and securing access to Middle Eastern oil? Here's Anonymous, from the interview with TPM:

I think we should look somewhat at our relationship with Israel. Clearly we need an energy policy, not just in the United States but in the West, that makes us less dependent on oil out of the Gulf. For myself, I can't figure out what American interest we would have in Saudi Arabia if it wasn't for oil. If they all killed each other to their heart's content, it wouldn't affect America at all.

Such rich and helpful insights! In other words, we're not about to abandon Israel or Middle Eastern oil. That's why Anonymous actually makes sense when he says to TPM:

The war we need to conduct is simply to protect America. It's to stop the enemy, to have him cease and desist from attacking us....If we don't use our military power, we really just sit and take it....

Exactly. When your enemy makes non-negotiable demands, you don't surrender, you go for his throat.

More from Sunstein

Cass Sunstein, a professor of constitutional law at the University of Chicago, is guest-blogging at The Volokh Conspiracy. His first post provoked this response from me. Now he says, "A system of free markets isn't law-free; it depends on law. Property rights, as we enjoy and live them, are a creation of law; they don't predate law."

Please get it right, professor. Free markets and property rights have existed and still exist without being protected by or codified in law. But free markets (which rest on property rights) operate more efficiently when markets and property are protected by law from force and fraud. It is therefore a legitimate function of law (government) to protect free markets and to codify property rights. That isn't "government intervention", as Sunstein (or is it his hero, FDR?) calls it. No, that is simply government acting in its proper, nightwatchman role.

When government goes beyond its proper role to actively intervene in free markets and destroy property rights, it harms everyone (except selected interest groups) by making markets inefficient.

Note to the University of Chicago's economics department: Please give Professor Sunstein a lecture in the principles of microeconomics -- now!

What We're Fighting

The nation wasn't unified against the enemy by 9/11 in the same way as it was by Pearl Harbor. Many Americans are still in denial about the implacability of Islamic fundamentalism. The wishful thinkers among us believe that the enemy will "go away" if we simply stop provoking it in places like Afghanistan and Iraq. They need to think again:

Iraqi Prime Minister Targeted for Assassination
Zarqawi Purportedly Issued Death Threat in Online Audiotape

By Robert H. Reid
The Associated Press
Wednesday, June 23, 2004; 10:20 AM

BAGHDAD, Iraq -- A recording purportedly made by the mastermind of bombings and beheadings in Iraq [said, in part]..."We will carry on our jihad against the Western infidel and the Arab apostate until Islamic rule is back on Earth."

UNTIL ISLAMIC RULE IS BACK ON EARTH. Do you get it now?

Sunstein at The Volokh Conspiracy

Cass Sunstein, a professor of constitutional law at the University of Chicago, is guest-blogging at The Volokh Conspiracy. His maiden effort, "The Greatest Generation, is about the New Deal. It's not an auspicious start. Here's the text of my e-mail to Sunstein:

In your first post at The Volokh Conspiracy, you wrote about FDR's Second Bill of Rights: "The leader of the Greatest Generation had a distinctive project, running directly from the New Deal to the war on Fascism -- a project that he believed to be radically incomplete. We don't honor him, and we don't honor those who elected him, if we forget what that project was all about." I think that most readers of The Volokh Conspiracy know quite well what that project was all about. It was about turning Americans into wards of the welfare state -- not intentionally, but in effect. And there were plenty of contemporary critics who knew what it was all about and tried in vain to warn their countrymen.

I know as much as anyone my age (63) can know about the Depression and the fears that it spawned in Americans. My parents and their many siblings were young adults during the Depression, and all of them had to go to work at an early age (when they could find work) because their families were poor. Knowing the members of my parents' generation as I do, I reject the notion that "true individual freedom cannot exist without economic security and independence." Economic security and independence are always relative matters. I had little economic security when I was 21, but I had plenty of freedom, as did my parents when they were 21. Freedom (in a society that has free political institutions) doesn't depend on economic security, it depends on inner security (self-reliance) -- a trait that many Americans of later generations lack because they have developed the habit of looking to government, instead of themselves, for the solutions to their problems. You are not free if you have sold your soul to the devil in exchange for a bit of gold.

It is fatuous to say that those who are hungry and jobless "are the stuff out of which dictatorships are made." The United States didn't become a dictatorship (despite what many Republicans said about FDR). Britain didn't become a dictatorship, and on, and on. The notable exceptions (Germany, Russia, Italy, and Japan) arose from other, pre-Depression causes. Nevertheless, FDR finally got his way -- posthumously -- as Truman, Johnson, and others completed most of the work of the New Deal.

The New Deal was born of fear. FDR succumbed to that fear. Ironically, FDR said it best: "the only thing we have to fear is fear itself -- nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance." It was fear that caused FDR to do exactly the wrong thing. Instead of letting the economy work its way out of the Depression, as it would have sooner than it did under FDR's "stewardship," he began the long descent into American socialism by turning the tinkerers loose on the economy. (Most of them were -- and still are -- lawyers and academics with no real idea about the business of business.) At the same time, he seduced most of the masses into dependence on government. The cycle of power and dependence begun by FDR has only gained strength over the years.

I have owned and managed businesses in the regulatory-welfare state of "economic freedom" that is FDR's legacy. I'm here to tell you that Americans are worse off than they would be if the New Deal had died at birth. That's FDR's legacy, and I most decidedly do not want to honor it.

Modern Utilitarianism

Jeremy Bentham (English, 1748-1832) devised modern utilitarianism, which is best captured in the John Stuart Mill's phrase "the greatest amount of happiness altogether" (Chapter II of Utilitarianism).

From Bentham's facile philosophy grew the ludicrous notion that it might be possible to quantify each person's happiness and, then, to arrive at an aggregate measure of total happiness for everyone (or at least everyone in England). Utilitarianism, as a philosophy, has gone the way of Communism: It is discredited but many people still cling to it, under other names.

Modern utilitarianism lurks in the guise of cost-benefit analysis. Governments often subject proposed projects and regulations (e.g., new highway construction, automobile safety requirements) to cost-benefit analysis. The theory of cost-benefit analysis is simple: If the expected benefits from a government project or regulation are greater than its expected costs, the project or regulation is economically justified. Luckily, most "justified" projects are scrapped or substantially altered by the intervention of political bargaining and budget constraints, but many of them are undertaken -- only to cost far more than estimated and return far less than expected.

Here's the problem with cost-benefit analysis -- the problem it shares with utilitarianism: One person's benefit can't be compared with another person's cost. Suppose, for example, the City of Los Angeles were to conduct a cost-benefit analysis that "proved" the wisdom of constructing yet another freeway through the city in order to reduce the commuting time of workers who drive into the city from the suburbs.

Before constructing the freeway, the city would have to take residential and commercial property. The occupants of those homes and owners of those businesses (who, in many cases would be lessees and not landowners) would have to start anew elsewhere. The customers of the affected businesses would have to find alternative sources of goods and services. Compensation under eminent domain can never be adequate to the owners of taken property because the property is taken by force and not sold voluntarily at a true market price. Moreover, others who are also harmed by a taking (lessees and customers in this example) are never compensated for their losses. Now, how can all of this uncompensated cost and inconvenience be "justified" by, say, the greater productivity that might (emphasize might) accrue to those commuters who would benefit from the construction of yet another freeway.

Yet, that is how cost-benefit analysis works. It assumes that group A's cost can be offset by group B's benefit: "the greatest amount of happiness altogether."

Here's the proper "utilitarian" rule: If it must be done by government, it isn't worth doing unless it is done "to establish Justice, insure domestic Tranquility, [or] provide for the common defence."

What Has Happened to the Fifth Amendment?

The U.S. Supreme Court's decision yesterday in Hiibel v. Sixth Judicial District Court has created the usual uproar in the civil liberties hen-house. There is much clucking and flapping about the decision, especially its implications for the Fifth Amendment. First some background: Larry D. Hiibel is a Nevada rancher who was stopped by a deputy sheriff who (as reported in the New York Times)

had responded to a telephone report of a man hitting a woman in the cab of a truck parked along a rural road. Arriving to investigate a possible domestic assault, the deputy found a man who turned out to be Mr. Hiibel standing outside the truck, with a young woman sitting inside the cab. She turned out to be his daughter.

Eleven times, the deputy asked Mr. Hiibel for identification, and 11 times, he refused to provide it....

Eventually, Mr. Hiibel was arrested and charged with the misdemeanor of refusing to identify himself. He was convicted and fined $250. The Nevada Supreme Court upheld his conviction.

As the Times notes, "Twenty states...have such laws on their books, as do a number of cities and towns." The clincher that has civil libertarians all a-twitter is the effect of the Court's ruling (from the Times, again):

People who have given the police some reason to suspect that they may be involved in a crime can be required to identify themselves unless their very name would be incriminating....

How did we ever get to such a convoluted reading of the Fifth Amendment? It says, in relevant part, "nor shall any person...be compelled in any criminal case to be a witness against himself..."

In other words, if you're suspected of a crime, the police can't question you about the crime if you aren't willing to be questioned. And if you're charged with a crime, the prosecution can't compel you to sit in the witness box as a prosecution witness. That seems straightforward enough.

Suppose, however, that by giving your name to a law-enforcement officer you identify yourself as a wanted criminal or suspect in a crime. That is not the same thing as being compelled "to be a witness against" yourself. But some Supreme Court justices (notably Mr. Stevens) and many civil libertarians treat it as if it were the same thing.

Hiibel's champions didn't suddenly arrive at such a perverted interpretation of the Fifth Amendment. No, they've merely taken what is, for them, the next logical step in a long progression of precedents that has subverted the original meaning of the Fifth Amendment.

What's worse is that the majority in Hiibel said, in effect, that Hiibel wasn't denied the protection of the Fifth Amendment because he wouldn't have incriminated himself by giving his name. The majority suggested, however, that it might rule otherwise in a case in which a person incriminates himself by giving his name.

What seems to have escaped the majority, the minority, and all the other cluckers and flappers in this case is that a person cannot incriminate himself by giving his name. A person is incriminated by his acts, not by his name. Being forced to state your name is by no stretch of the imagination the same thing as being compelled to answer questions about a crime or to give testimony against yourself in court.

Having said that, I confess that I sympathize completely with Hiibel's refusal to give his name to the deputy. That would have been my reaction in the same circumstances. Hiibel had done nothing wrong and he was not charged for any crime other than refusing to give his name.

But I'm fed up to my eyebrows with the way the Constitution has been tortured all out of recognition. The Fifth Amendment is merely the most recent part of the Constitution to have been stretched on the rack of jurisprudence.

Ideological or Just Logical?

You've undoubtedly heard or read something like this: Libertarians are merely ideological parrots who keep repeating "leave it to the free market." Economic libertarianism isn't ideological -- it's logical. In fact, it's better than logical -- it's an empirically sound position.

You're Driving Me Crazy (Revised Version)

Driving habits that seem to have become universal in the past several years:

1. Pulling onto the road in front of an oncoming vehicle when it's the only vehicle in sight.

2. Looping left to make a right turn, and vice versa.

3. Making an abrupt turn without giving a signal, when there are other drivers around you who would benefit from knowing your plans.

4. Going just slow enough to make it through a light as it turns yellow, then speeding up after the cars behind you have braked for the light.

5. Staying in the left lane of an interstate highway while driving at the speed limit (or slower). (This habit dates back at least 20 years, but it has become standard practice in certain places: Virginia and Florida, to name two.)

6. Going 55 mph in the middle lane of an interstate highway when the speed limit is 65 or 70 mph. (Can't you and the jerks in the left lane read the signs that say "Slower Traffic Keep Right"?)

7. Getting all ticked off and speeding up when someone tries to pass you on an interstate highway, even though you had been dawdling along obliviously at 55 mph.

8. Yielding the right of way when it's yours -- out of a misplaced sense of courtesy -- thus confusing the driver who doesn't have the right of way and causing traffic behind you to back up needlessly.

9. Of course, there's talking on a cell phone while driving in heavy traffic.

10. Then there's talking on a cell phone while driving in heavy traffic and leaning into the back seat to slap your child. (Here's a case where I think the government should confiscate your car -- and your child.)

11. How about those drivers who cross the center line while taking a curve because they can't exert the bit of effort required to stay in the proper lane? (What, no power steering, you self-centered jerks?)

12. Don't you love those drivers who like to take corners by cutting across the oncoming lane of traffic? Jerks, jerks, jerks.

13. Then there are the drivers who simply drive down the middle of unstriped roads and parking-lot lanes. They either have poor spatial judgment, suffer from extreme nervousness, or flunked sharing in Kindergarten.

14. What are those stripes for on either side of a parking space? Might they be meant to be parked between? No, they're just targets to aim for. As long as your car is straddling one stripe or the other, you're okay. SUV drivers -- being mostly obnoxious jerks -- are the worst offenders, but yuppie women in small BMWs are close contenders.

The longer I make this list, the more irritated I get. I'm ready to hop in my car and go 30 mph through a 20 mph school zone. Then I will keep going 30 mph when I get onto a nice 45 mph boulevard. Then I will honk at you if you dare pass me. Why not? Everyone else seems to do it.

With Apologies to a Female INTJ

In "IQ and Personality" (March 14, 2004), I said "if you encounter an INTJ (Introverted, iNtuitive, Thinking, Judging), there is a 37% probability that his IQ places him in the top 2 percent of the population." That is, among the 16 personality types in the Myers-Briggs taxonomy, INTJs are the most likely (by a large margin) to have a very high IQ.

A reader has commented on my use of the masculine pronoun in the passage quoted above: "Just letting you know that I am an INTJ and I am a female."

I'm guilty of lazy writing, for which I apologize. Even though I'm a type-proud, male INTJ, I don't assume that all INTJs are males.

His Life As a Victim

The New York Times has posted a piece about Bill Clinton's memoir, My Life. Should we laugh, cry, or scream at Weeping Willie's latest outrage? You be the judge.

Let's start with the Jones case, which led to Clinton's impeachment. The Times says that Clinton

takes the whip to [among others] the Supreme Court, which ruled unanimously in 1997 that Paula Jones's sexual harassment case against him could go forward while he was in office. He called that one of the most politically naive and damaging court decisions in years.

Of course, he would place himself above the course of justice. You know, the person who holds the presidency is only holding a job temporarily. He's not indispensible; in fact, he's rather easily replaced. It was Clinton's fault that he was sued for sexual harassment. If he couldn't defend the suit and do his job at the same time, he had two options: resign the presidency or step down temporarily under the provisions of Amendment XXV of the Constitution.

Then there's this compelling bit about terrorism:

Mr. Clinton defends his record on terrorism, arguing that he pressed the allies for more of a focus on counterterrorism and citing speeches in which he called terror "the enemy of our generation."

He also notes that in 1996 he signed two directives on terrorism and appointed Richard A. Clarke to be the administration's terrorism coordinator.

That's telling 'em, boy. But I guess bin Laden wasn't listening to Bill's speeches or reading his directives. Osama damn sure wasn't impressed by Dick Clarke.

Whitewater? Oh, that:

[Clinton] explained the sudden appearance of Mrs. Clinton's legal billing records in the White House residence as the product merely of sloppy record-keeping in Arkansas.

Huh?

Finally, we come to the "new, new, new" Clinton:

Mr. Clinton closes the book with a short meditation on the lessons he has learned about accepting personal responsibility, letting go of anger and granting forgiveness. He said that in the many black churches he had visited he had heard funerals referred to as "homegoings."

"We're all going home," he wrote, "and I want to be ready."

Well, he ain't ready yet, as these snippets from the Times article attest:

[the] autobiography...is by turns painfully candid about his personal flaws and gleefully vindictive about what he calls the hypocrisy of his enemies....The book's length gives the former president plenty of room to settle scores, and he does so with his customary elan....He reserved special venom for Kenneth W. Starr....

Of course he did. Starr's determined effort to uphold the rule of law finally resulted in a small measure of justice when Clinton was disbarred by the State of Arkansas and the U.S. Supreme Court. Such is Clinton's "legacy".

Very Helpful, I'm Sure

Headline:

World Leaders Condemn Hostage Slaying

I remember when anti-Vietnam War protesters circled the Pentagon, joined hands, and tried to will an end to the war. That was more effective than the rote condemnation of terrorists for the killing of Paul Johnson in Saudi Arabia.

The same article quotes Human Rights Watch (a world leader in what?) as calling Johnson's slaying "a heinous crime that no political cause can justify." You know all you need to know about Human Rights Watch when it elevates al Qaeda's Islamo-fascist agenda to the status of a political cause. Right up there with George Washington and company. Moral relativism just makes me sick.

The 9/11 Commission

The fault-finding commission deluxe. But I've already said all that needs to be said about these 10 turkeys in search of headlines.

Where Your Tax Dollars Go -- Installment 9,999,999,999

From the web site of a taxpayer-funded think tank:

Throughout The X Corporation, employees, in small groups and through individual efforts, are making a difference in the quality of their communities and in the lives of their friends, neighbors, and the many who are in need. Through innumerable acts of kindness and concern and commitments of time and boundless energy, a culture has grown within X that shows that extraordinary acts by ordinary people can make a difference in the world.

Giving back to the community is a priority at The X Corporation....

How about focusing on the work that taxpayers are paying you for? That would be the best way to "give back to the community."

P.S. This is small potatoes. The real ripoff is in the absurdly high salaries paid by such tax-exempt organizations.

P.P.S. Oh, yes, and what would we do without diversity? Here's what The X Corporation has to say about its diversity program, which is run by a full-time Diversity Coordinator:

Differing points of view, different frames of reference, and a broad range of life experiences bring an energy to the workplace that has helped X become a world leader in producing effective, insightful analysis. [Actually, if this organization is a "world leader" in anything, it's b.s. Good analysis requires educated intelligence and perspicacity.]

X maintains an all-inclusive diversity program. Supported by an advisory committee, X's diversity efforts are designed to ensure that we attract, develop, respect, motivate, and retain highly skilled people without regard to race, ethnicity, gender, personal background, religious beliefs, sexual orientation, education, or position within X. [An all-inclusive diversity program, by definition, ensures the hiring of people -- some of them not highly skilled -- precisely because of their race, etc., etc.]

See all the great things you get for your tax dollars?

What, No Trial?

I'm sure we'll hear from Human Rights Watch about this (courtesy AP via Yahoo News):

Saudi al-Qaida Leader Reportedly Killed

CAIRO, Egypt - The purported leader of al-Qaida in Saudi Arabia was killed in a raid in the capital Friday, Saudi security officials said. Abdulaziz al-Moqrin, 31, was killed by security forces who had surrounded militants in a downtown neighborhood shortly after the discovery of the body of an American killed earlier in the evening, the officials said, speaking on condition of anonymity.

Or perhaps Madonna will share her views with us.

Tokyo Rose Meets Professor Irwin Corey

More ethereal transmissions from Madonna (courtesy BBC News World Edition):

Madonna has said US President George Bush and ex-Iraqi leader Saddam Hussein are alike because "they are both behaving in an irresponsible manner"....

During the US interview Madonna tried to draw a line under her wild days, vowing to be "part of the order, not the chaos, of the world".

She said: "The stance of a rebel is 'I don't care what you think'. But if it's just for the sake of upsetting the apple cart, you're not really helping people.

"You turn the apple cart over and then what? Then everyone's looking at an apple cart that's turned over and they're like, well, now what do I do?"

The 45-year-old mother-of-two said her days of shedding her clothes on stage or in front of the camera are also over.

Madonna wants to shed her old image

"I thought I was liberating mankind but, like I said, I wasn't really offering an alternative.

"To a certain extent I was saying 'Look, you know, why do men only get the job of objectifying women in a sexual way? I want to do it too.'

"There was an element of that, but there was also an element of being an exhibitionist and saying 'look at me'. It wasn't that altruistic. I can admit that."

That Madonna -- always reinventing herself. Give her 10 years and she'll be a Republican.

More about the Worrying Classes

I wrote recently about the worrying classes. Worriers are the many among us who cannot be convinced that people would be better off with less regulation, with private Social Security accounts, with even fewer restraints on international trade, and on, and on. Worriers seem incapable of envisioning the greater good that economic freedom brings to most people. There are several worrying classes.

In my previous post I wrote about the the jabberers. They are the denizens of Capitol Hill, the media, universities, and so-called knowledge professions whose main task is to promote the worriers' agenda.

The other worrying classes are the activists, the entrenched, the "engineers", and the romantics. Activists are represented by such organizations as Greenpeace, the Sierra Club, and other irresponsibly luddite groups. Then there are all the groups that represent outraged feminists, homosexuals, persons of color, and their sympathizers. To top it off, there are the groups that want to spend your tax dollars for their pet diseases and disabilities.

The entrenched class includes labor unions, regulated industries, and various professions (notably medicine and law). They promote laws and regulations to shelter themselves from competition by playing on the fears of the worrying masses.

"Engineers" are those physical and social scientists who try to out-think free markets. They're smarter than the rest of us, you see.

Romantics simply want a better world. Their tenuous grasp of reality causes them to believe in peace through surrender and prosperity through socialism. Many of them are activists. Those who are not activists constitute a large fraction of the worrying masses -- those who lend their votes, money, and sympathy to the worrying classes.

"Those Who Can, Do,...

...those who can't, teach," the old saying goes. These days it should be "those who can are forced to put up with those who merely think and talk." The jabbering class -- which resides on Capitol Hill, and in the media, universities, and so-called knowledge professions -- talks a good game, but most of its members aren't equipped to play the real game of life. They thrive only when they have the power of government on their side. That is why they try so avidly to control it, shape its rules, and divert tax dollars to their causes.

If we truly had constitutional government and laissez-faire capitalism, most members of the jabbering class would be begging on corners. And they wouldn't do it very well.

It Is the Economy -- And a Few Other Things

Predicting presidential elections is fairly easy. To begin with, the incumbent or the nominee of the incumbent party wins most of the time -- 60 percent of the time from 1920 through 2000. (I've picked 1920 as the starting point for this analysis because it marks the birth of the modern, post-Teddy Roosevelt, more-or-less laissez-faire Republican Party.)

Why do incumbents or the incumbent party's nominee tend to win? Because the private economy grows most of the time. (My measure of growth in the private economy is the change in real GDP per capita, net of government spending.) Naive voters (that's most of them) tend blame or credit the current president with the state of the economy. Such blame or credit is seldom merited.

With three exceptions, which I'll come to, the incumbent or the incumbent party's nominee lost the election when the private economy was shrinking in election year or was about where it had been four years earlier. Such was the case in 1920 (Cox lost to Harding), 1932 (Hoover lost to FDR), 1952 (Stevenson lost to Eisenhower), 1960 (Nixon lost to JFK), 1976 (Ford lost to Carter), 1980 Carterr lost to Reagan), and 1992 (Bush I lost to Clinton). The more attractive personalities of Eisenhower (vs. Stevenson), JFK (vs. Nixon), and Reagan (vs. Carter) may also help to explain their victories. Clinton's personality may have helped him beat Bush I, but he was helped greatly by Perot, who probably siphoned far more votes from Bush I than he did from Clinton.

The only three election outcomes that violate the rule of growth are those of 1944, 1968, and 1980. The private economy was growing in 1944, but it had shrunk since 1940. However, it had shrunk because of the massive diversion of resources to a popular war. People understood that and stuck with Roosevelt, albeit by a smaller margin than in 1932, 1936, and 1940.

In 1968 and 2000, by contrast, incumbent vice presidents (Humphrey and Gore) failed to win election in their own right, despite strong economic growth.

The 1968 election was, as much as anything else, a referendum on the war in Vietnam and the cultural war in America. Humphrey was the target of the electorate's rage for the failure of the war in Vietnam and for the rise of the counter-culture. Nixon's victory over Humphrey would have been even larger had Wallace not captured a large part of the counter-counter-culture vote.

The 2000 election was Gore's to lose, and he lost it, but barely. Yes, the U.S. Supreme Court made the right decision, albeit for the wrong reason. The Florida Supreme Court tried, selectively, to give some voters a second chance after they had failed to cast proper ballots, in contravention of the rules adopted by the Florida legislature and therefore in contravention of the U.S. Constitution.

The strong desire of conservative voters to punish Gore for Clinton's sins was probably offset by the strong desire of liberal voters to vindicate Clinton by electing Gore. Gore may have been hurt by the contrast between his own rather scolding, school-marmish personality and Clinton's sunny personality, but Bush certainly wasn't (and isn't) an Eisenhower, JFK, or Reagan. Gore simply ran a bad campaign; he zigged left and zagged right, always transparently pandering to one interest group or another. He ultimately lost the election because many people on the far left suspected his bona fides and cast their votes for Nader. And there went Florida. Gore was the Titanic of presidential candidates -- seemingly robust but fatally vulnerable.

What will happen in 2004? Bush stands a good chance if the economy continues to rebound strongly until election day. But he will probably lose if the economy stutters or if voters see Iraq as a second Vietnam. A major terrorist attack in the United States could cut either way. It will be close.

Fair's Fair

Doctor Proposes Not Treating Some Lawyers

AP reports that Dr. J. Chris Hawk, a South Carolina surgeon, asked "the American Medical Association to endorse refusing care to attorneys involved in medical malpractice." According to AP, Dr. Hawk "said he made the proposal to draw attention to rising medical malpractice costs. The resolution asks that the AMA tell doctors that — except in emergencies — it is not unethical to refuse care to plaintiffs' attorneys and their spouses."

Of course, there were loud protests, and Dr. Hawk withdrew his proposal. But I like the idea.

Next target: politicians who meddle with health care.

The Worriers

The worrying classes got hold of government in the 1930s. Then the worrying masses got in the habit of looking to government to solve every problem -- no, to anticipate every problem so that nothing bad ever happens to anyone.

Rational people -- libertarians, thinking conservatives, and free-market economists -- can talk until their throats go dry, but it won't sway the worriers. Worriers cannot be convinced that people would be better off with less regulation, with private Social Security accounts, with even fewer restraints on international trade, and on, and on. Worriers seem incapable of envisioning the greater good that economic freedom brings to most people. And having lost the habit of private charity, they cannot imagine that the many who profit by economic freedom will help the few who do not.

Ironically, FDR said it best: "the only thing we have to fear is fear itself--nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance." But FDR, as usual, did exactly the wrong thing. He turned government over to the worrying classes and seduced the worrying masses into dependence on government. The cycle of power and dependence remains unbroken.

Why Not Just Use SAT Scores?

Here's what happens when universities insist on having a "diverse" student body (from the New York Times online):

Diversity Plan Shaped in Texas Is Under Attack
By JONATHAN D. GLATER

AUSTIN, Tex., June 8 — Texas lawmakers thought they had found the ideal alternative to race-based affirmative action.

Seven years ago, after a federal court outlawed the use of race in the admissions policies of the state's public universities, the Legislature came up with an answer: It passed a law guaranteeing admission to the top 10 percent of the graduating class from any public or private high school. After a few years of hard work, diversity was restored and other states, including California and Florida, adopted similar approaches. The law looked like a success.

But the 10 percent rule, which seemed to skirt the tricky issue of race so deftly, is coming under increasing attack these days as many wealthy parents complain that their children are not getting a fair shake. A consensus seems to be building that some change is necessary.

Parents whose children have been denied admission to the University of Texas at Austin, the crown jewel of Texas higher education, argue that some high schools are better than others, and that managing to stay in the top 25 percent at a demanding school should mean more than landing in the top 10 percent at a less rigorous one. The dispute shows how hard it is to come up with a system for doling out precious but scarce spots in elite universities without angering someone.

Of course, the Times had to work in a gratuitous reference to "wealthy parents." The real question is whether the 10-percent rule discriminates against the more intelligent high school grads in Texas. The answer is: It must.

The amount of money a school district has to spend per student depends on the average income of households in the school district. Income depends, to a large degree, on intelligence. And intelligence is a heritable trait. Thus, students from "wealthier" school districts are generally more intelligent than students from "poorer" school districts -- because they were born smarter, not because of their more expensive schooling.

The 10-percent rule thus has the same effect as old-fashioned affirmative action. It discriminates against brighter students.

Favorite Posts: Affirmative Action and Race

The Right Is Smarter Than the Left

This content of this post is now incorporated in "Intelligence, Personality, Politics, and Happiness."

In the "Old News" Department

Headline from AP, via Yahoo News:

Research Shows Dogs Can Comprehend Words

Science once again catches up with reality.

Torture

I knew that recent disclosures about legal memos regarding the use of torture would send Democrats and media types scurrying to re-mount their high horses. An excellent post by Tom Smith of The Right Coast saves me the trouble of composing my own post. Smith has it just right.

In the "Nausea" Department

From Reuters.com:

Film Industry Gives Controversial Iraq Film Ovation
By Arthur Spiegelman

BEVERLY HILLS, Calif. (Reuters) - Director Michael Moore's controversial anti-Iraq war film "Fahrenheit 9/11" won a standing ovation on Tuesday night from an audience of film industry professionals attending its West Coast debut at Academy Award headquarters.

After an audience of more than 600 people in the theater of the Academy of Motion Picture Arts and Sciences cheered, whistled and laughed their way through the two-hour film, they jumped to their feet to give Moore a standing ovation as he took the stage.

Respect for Presidents

In the previous post I referred to Ronald Reagan as President Reagan and Mr. Reagan, whereas I called Bill Clinton plain old Clinton. I'm not of the school that accords every president or ex-president the same degree respect when it comes to honorifics. Presidents must earn my respect by their actions. I'm their employer, after all.

Here's how I think of the men who have served as president since the end of World War II:

Truman -- sometimes Mr. Truman and sometimes Harry; it depends on which Truman I'm thinking of at the moment, the no-nonsense Truman or the partisan Democrat.

Eisenhower -- Ike, with respect for his soldiering days, or President Eisenhower.

Kennedy -- Jack or JFK is the best I can do for the playboy of the West Wing.

Johnson -- LBJ or something unprintable for the biggest crook on this list, after Nixon.

Nixon -- Nixon, when I'm being kind; otherwise, only Tricky Dick fits the man.

Ford -- Jerry, because it rhymes with ordinary.

Carter -- Jimmy, because it's the undignified label he gave himself; better than he deserves. (A "great ex-president" my foot.)

Reagan -- Mr. Reagan or President Reagan; Gipper is too familiar for a man who was pleasant but dignified.

Bush I -- Bush I is the best I can do for a career bureaucrat who had to have his turn in the White House.

Clinton -- Clinton, when I'm being kind; otherwise, Slick Willie or something unprintable for this walking amalgam of JFK, LBJ, and Nixon.

Bush II -- Bush II, when he's being a compassionate conservative; otherwise, President Bush.

Presidential Values

My local paper, apparently unable to bear any longer the outpouring of adulation for President Reagan, today ran a front-page article on his failings as a father. The headline, "Reagan championed family values, but had complicated relationships with his own children," all but accuses the late president of moral hypocrisy. Now, how are Mr. Reagan's supposed parental shortcomings related to his accomplishments as a president? They're not, as far as I can see. But the liberal press simply cannot stand by and let Mr. Reagan pass into history unsullied.

If Mr. Reagan's personal life is irrelevant to his performance as president, why was there all that fuss about Bill Clinton's extra-curricular activities with Monica Lewinsky? Democrats persist in saying that the impeachment of Clinton was "just about sex." But it wasn't.

Clinton was impeached for lying under oath before a federal grand jury and for obstructing justice in the Paula Jones case. Whatever Jones may have said publicly after she settled her suit against Clinton, she had nevertheless chosen freely to sue him. Her suit became a federal case, under the laws that Clinton had sworn implicitly to uphold in his capacity as president.

Oh, but Clinton wasn't guilty because the Senate didn't convict him on any of the articles of impeachment. Wrong! Clinton was guilty, but he wasn't convicted because Democrats -- to a man and woman -- effectively refused to hear the evidence. They had made it clear from the beginning that the trial would be a farce. And it was. Some Republican senators, knowing that Clinton couldn't be convicted, chose to vote "not guilty" out of political expediency. Clinton would have been convicted if Democrats had acted in good faith.

If you need more evidence of Clinton's guilt than the articles of impeachment, consider this: In the aftermath of the impeachment trial, Clinton was disbarred in his home State of Arkansas and by the U.S. Supreme Court.

Now, tell me why the media must flaunt Mr. Reagan's purported failings as a father.