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Liberty & Limited Government Archive

Friday

16

January 2009

1

COMMENTS

Dumbing Down 'Disaster'

Written by , Posted in Liberty & Limited Government

On Tuesday President Bush declared Barack Obama’s inauguration a federal disaster, a move designed to allow more money to funnel into a city that’s about to be up to the neck in hope and change.  But the move also provided a fitting end to Bush’s presidency, as he declared more such disasters than any previous President. It also provides, I suspect, a strong foreshadowing of the disastrous presidency about to begin.

Monday

15

December 2008

0

COMMENTS

Reflections On National Bill Of Rights Day

Written by , Posted in Liberty & Limited Government, The Courts, Criminal Justice & Tort

December 15th is National Bill of Rights Day. The holiday was established in 1941 to commemorate the 150th anniversary of the ratification of the first ten amendments to the Constitution. It is of a deep irony that the President who authorized the holiday, Franklin Roosevelt, was one of the most prolific violators of the document.

This observation ties in rather well to the larger question of this post: was the Bill of Rights a good idea? I know what you’re thinking, “Of course it was! We need the Bill of Rights to protect us from government infringement on our rights.” Certainly this is a noble goal, and all of the items within the Bill of Rights are worthy of such protections. But in a world of campaign finance reform (violates First Amendment), drug wars (Ninth and Tenth) and their enforcement (Fourth), eminent domain abuse (Fourth and Fifth), coercive “plea bargaining” tactics (Sixth), gambling laws (Ninth) and social security (Tenth), it seems quite reasonable to me to consider whether the Bill of Rights has accomplished its goal, or even done more harm than good.

There was strong debate over the Bill of Rights before the ten amendments were added. The Anti-Federalists thought that the Constitution provided for a central government that would be too big and would take power from the states. History has shown that their concerns were warranted. As a check on the federal government, they demanded a Bill of Rights be included. But the arguments of the Federalists opposing the Bill of Rights have also proven prescient.

In Federalist No. 84, Alexander Hamilton argued that a bill of rights “would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” Given that the enumerated powers of the Constitution are now all but ignored, this argument has gained historical weight.

It was also worried that a listing of rights would imply that those rights not mentioned had no protections, or were less important. In the infamous footnote 4 of United States v. Carolene Products Co. (1938), Justice Stone (actually, it was written by his law clerk Louis Lusky) articulated a distinction between different rights, stating that some would get “more exacting judicial scrutiny,” while others, like our now eroded economic rights, would not. The Footnote Four framework would remain in effect until the Supreme Court found a right to privacy in Griswold v. Connecticut, where Justice Goldberg cited the Ninth Amendment in his concurrence. Despite this, the current framework (Footnote Four-Plus) still treats the ninth and tenth amendments largely as afterthoughts. At present judges simply pick and choose which unenumerated rights deserve a presumption of constitutional protection. This is exactly the opposite of what the Constitution intended, where government would be forced to justify its actions from the list of enumerated powers, rather than being able to do anything that wasn’t expressly prohibited.

The Federalists were able to foresee this outcome, yet went along with the Bill of Rights anyway. The popular historical account is that this was a purely political concession designed to ensure enough states ratified the Constitution. This is not entirely accurate. James Madison, a Federalist, acknowledged that, “My own opinion has always been in favor of a bill of rights, provided it be so framed as not to imply powers not meant to be included in the enumeration.” In other words, a bill of rights would be desirable if it could be constructed to avoid the negative outcomes Federalists predicted. Taking the lead in authoring the amendments, Madison attempted to accomplish just such a feat. Unfortunately, we are left to conclude he was not successful. Our economic rights remain in exile, while the Ninth and Tenth amendments are all but ignored by the federal government and the courts.

Yet it is not altogether clear to me that we’d be better off without the Bill of Rights. It’s plausible that things might otherwise be worse, that even more rights would be ignored by the government. Still, it seems equally plausible that, if not for the enumerated rights (and the contrast it creates with unenumerated rights), government might have found less legal justification to stray from its enumerated powers. In either case, it’s hard to imagine a set of amendments more clear in their protections, thus suggesting little hope that better crafted amendments would better constrain government. Though if I were to offer one modest suggestion, I’d reword the Ninth amendment to say: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. And this time we mean it!

Tuesday

9

December 2008

0

COMMENTS

Bush: The Democrat's Useful Idiot

Written by , Posted in Free Markets, Labor Unions, Liberty & Limited Government

Having already decimated the free market ideology with his reckless acceptance of liberal economics, President Bush is set to deliver another blow to rational, limited government by preparing to compromise on a $15 billion bailout for the Big Three automakers.

Democrats have been frantic to get this passed while Bush is still in office. One has to wonder just why that is when Obama has already pledged support for a bailout. The democrats desperately want Bush involved because they need political cover for what is essentially a handout to the UAW. The public is against a bailout, so Democrats need a useful idiot to take the blame with them. Bush, it seems, is their man. Rather than force the democrats to wait only a month and a half until they control all branches of government, and thus would have take full political blame, Bush has once again muddied the political waters and stolen a winning issue from republicans.

Saturday

6

December 2008

0

COMMENTS

Happy Belated Repeal Day

Written by , Posted in Free Markets, Liberty & Limited Government

Friday marked the 75th anniversary of the end of Prohibition. Notice I use a capital ‘P’ in Prohibition, because lowercase prohibition is still alive and well.

For 13 years the 18th Amendment prohibited the manufacture, sale and distribution of alcohol, with trivial exceptions. The results were clear: a modest reduction in consumption, but also a significant increase in both the number of alcoholics and fatalities from contaminated liquor. It also created a black market, which lead to the rise of Al Capone and organized crime.

It turns out that, when you ban a substance, the net effect is a lot more complicated than just the predicted drop in use. Yes, there was less alcohol consumption. Prices rose significantly as predicted, and as predicted consumption went down. But demand didn’t completely go away. The rise in prices, unsurprisingly, served to attract new producers into the market. The fact that it was an illegal market insured that those with the least respect for the law were most likely to enter.

The high risk/high reward environment not only insured that competition would be fierce and deadly, but also that the product itself would be much more potent. Because of the uncertainties of smuggling and the ever increasing risk of police interception with every shipment, suppliers needed every shipment to be carrying the maximum value possible.  They weren’t going to risk getting caught just to sell cheap beer.  This is a large reason why there was an increase in the actual number of alcoholics.

What’s the relevance of all this today?  Isn’t Prohibition over with, never to return?  Unfortunately, the lessons of prohibition are very relevant to today.  Complete alcohol prohibition is unlikely to ever return, but there is a neoprohibition movement working away at the edges of legal drinking.

Restrictive state laws distort the market, enforcing a three-tiered system of alcohol distribution.  Granted significant government protections, middlemen distributors account for a significant percentage of the cost of alcohol, while taxes also raise costs by 20%.  Direct sale from manufacturers to retailers, or consummers is banned.  Wine is a notable exception, as direct sale has been allowed recently in many states, though often times they engage in protectionism that restricts consumer choice.

The attacks on legal drinking includes arresting citizens just for being drunk in bars.  Thousands of individuals have been nabbed by the Texas Alcoholic Beverage Commission in sting operations.  These people have done nothing wrong. They did not drive drunk, get in a fight or otherwise harm anyone.  Texas, however, thinks they are criminals.

The fascist attack on drinkers isn’t the only prohibition movement alive in the modern day.  There’s a well-funded and highly visible tobacco prohibition movement.  Fatty foods are also under attack, which achieved a temporary success with Chicago’s fois gras ban. Other movements have achieved even more success.  There’s currently a blanket prohibition on prostitution,  with the predictable result being the rise of a criminal class (pimps) and increased exposure to disease from those who (unsurprisingly) ignore the ban.

Worst of all, however, is the current prohibition on drugs.  Everything that went wrong with alcohol prohibition is being repeated with the drug war.  The rise of drug cartels and gangs is a direct result of the prohibition.  Our southern neighbor is seeing the worst of it, as Mexico is quickly turning into the next Colombia.  Chaos next door is a security threat to America.

While trillions of dollars have been spent on the drug war (which far exceeds the economic costs of drug use), little good has come from it.  Drugs are much stronger than they would otherwise be (if not for the drug war, there likely would have never have been such a thing as crack cocaine).  Police officers are becoming ever more corrupted by the fight, as happened during prohibition.  They are also increasingly militarized, executing raids on low level users (and often innocents) that result in numerous unjustified deaths every year.  Our prison’s are overflowing with non-violent offenders, and our court system is choking on the backlog.

So while we raise our glasses to celebrate the end of one of the worst legislative mistakes in American history, let us try and learn from it.  Prohibition was wrong in 1920, and it’s wrong in 2008.

Friday

28

November 2008

0

COMMENTS

Treat The Illness

Written by , Posted in Free Markets, Liberty & Limited Government, Waste & Government Reform

I recently sent the following letter to the New York Times:

To the Editor:

As “NASA’s Black Hole Budgets” (editorial, Nov. 24) noted, NASA has a “culture that has lost control of spending.” As a former employee, Alan Stern has seen this problem first hand. Unfortunately, the solution he offers is little more than a call to just try harder. Politicians can’t be counted on to “turn from the self-serving protection of local NASA jobs.” Moreover, the problems he describes in NASA are not unique to the space agency; they are the results of systemic flaws in the bureaucratic system.

We should be treating the illness rather than the symptoms. This requires a fundamental rethinking of how we approach space exploration. A good start would be to rely less on government bureaucracies and more on private endeavors, which can be promoted through tax breaks and prize offerings. But so long as bureaucrats are encouraged to feed on the public trough, we shouldn’t be surprised when they pig out.

Sincerely,

Brian Garst

Monday

24

November 2008

4

COMMENTS

Polarization: No End In Sight

Written by , Posted in Liberty & Limited Government

While John McCain and Barack Obama disagreed on taxes, health care and foreign policy, there is at least one issue on which they found common ground during the recent presidential campaign: the polarization of Washington and the nation. Both candidates made it one of their central themes. McCain observed that he’s “never seen Washington as polarized as it is today,” while Obama thought that President Bush “polarized us when he should have pulled us together.”  McCain promised, while accepting his party’s nomination, to end the “constant partisan rancor” of Washington, while Obama made sure to clarify that he wasn’t blaming voters by noting that “the country is not as polarized as our politics would suggest.” Rather, we are to conclude, it is cynical politicians who exploit wedge issues to win elections, and launch personal attacks against their opponents, that are to blame. To hear each candidate tell it, all we need is the right leader with a conciliatory tone to unite America and end polarization. History shows this to be a fantasy.

The conventional wisdom is that politicians create polarization by being excessively negative in their campaigning. Every four years we are told that the current election is the most negative in history. Commentators bemoan the debasement of the political process, while reporters highlight voters turned off by the negative tone. Rarely are these assertions placed into historical context. The problem with the conventional wisdom is that our politics are no more contentious today than in the past.

The birth of the attack campaign can be traced back to 1800 and the contest between President John Adams and then Vice-President Thomas Jefferson. Despite the personal friendship of the candidates, the campaign was brutal. Adams was accused of having a “hideous hermaphroditical character, which has neither the force and firmness of a man, nor the gentleness and sensibility of a woman.” Jefferson was “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.”

This is not to say that Americans haven’t become more polarized, but we should separate the distinct issues of campaign negativity and polarization of voters. Political mudslinging is not new, but there has been an increase in the degree to which voters view others as not just political opponents, but as outright enemies. Negativity is a constant and thus incapable of explaining changes in polarization. To what, then, can we attribute increasing polarization?

While negative campaigning has not changed since 1800, the size and scope of government has. It doesn’t matter which measurement is used; they all tell the same story. Per capita expenditures – the amount of money spent by the government per citizen – exploded during the 20th century, growing in 2004 to 55 times that of 1910. Total government expenditures at all levels (federal, state and local) grew 417% in just the last half century. Economic growth cannot account for this increase, as it has been significantly outpaced by government spending. With the federal government falling all over itself to hand out shockingly large sums of money to banks, automakers and any other big business that asks nicely, or at all, this trend shows no signs of slowing.

Despite the modest downsizing after the end of the Cold War, by 2000 the federal government employed almost 3 million people, and government employment at the federal, state and local level now combine for 16% of the total national work force. There are ten additional cabinet positions compared to the beginning of the 20th century. So in addition to spending more, they are also doing more.

We have all these bureaucrats to manage the regulations covering every aspect of our lives. Government tells us what we can eat, where we can smoke, what medicines we can use and what insurance we can purchase. It even tells us who we can marry and where we must send our children to school, along with what they must be taught.

This intrusion of government has sparked the “culture war.” It exists because government, by design, requires one-size-fits-all solutions on issues on which there is no one size that fits all. As an example, when parents cannot choose where to send their kids to school, they must fight within the political system to see that the schools teach what they want. Different parents have different ideas, often mutually exclusive, on what they want their children to learn. Because they must fight over control of the same system, some must inevitably lose.

When issues of importance to the people must be fought over, it’s understandable that the fighting can be intense. A lot is at stake in every election. Repeat this process again and again, on issue after issue, and it is little wonder why Americans are polarized today. Government has pit us against our fellow citizens in a battle for control of our own lives. It’s a battle we can only lose, and which the new administration’s big government programs can only make worse.

Wednesday

19

November 2008

0

COMMENTS

Parker’s Wrong Diagnosis

Written by , Posted in Liberty & Limited Government

In response to her latest column, in which she seeks to cure the Republican party of its ills, I sent Kathleen Parker the following response:

Mrs. Parker

Big government Republicanism is what’s killing the party, and it comes from both sides of the religious line. The religious right and secularized Republicans alike have contributed to the eroding of the core Republican principles of limited government and fiscal responsibility. Blaming the religious is a reflection of your obvious bigotry – evidenced by the numerous pejoratives in your piece – not the result of an honest evaluation of the facts.

While many of the religious right, such as Michael Gerson, have promoted and celebrated big government, the two groups are not equivalent. Drumming out religious conservatives will not only unnecessarily alienate many who believe in republican ideals for no reason, it will leave untouched many others who contributed to the Rrepublican collapse. It’s simply a wrong diagnosis. The GOP doesn’t need to give up on God, it needs to give up on big government.

– Brian Garst

Thursday

13

November 2008

0

COMMENTS

A Society That Cares Will Butt Out

Written by , Posted in Liberty & Limited Government

The left operates under the delusion that its policies are more caring than those of limited government. This story from Australia illustrates one of the many problems with this assumption:

THE Rudd Government is under pressure from all fronts, even Labor colleagues, to overturn a decision denying German doctor Bernhard Moeller permanent residency in Australia because his son Lukas has Down syndrome.

The Immigration Department this week rejected Dr Moeller’s application for permanent residency, saying the potential cost to the taxpayer of 13-year-old Lukas’s condition was too great.

This is not to say that the left doesn’t care at all. The point here is that the policies they claim are more caring have a dark, and largely ignored, downside. When you collectivize responsibility to care for individuals, you give the collective the right to judgments it had no business making before. All of society now gets to dictate the behaviors of individuals on the grounds that they share the cost of their decisions. This is why morality must be left to the individual and not collectivized.

Monday

10

November 2008

0

COMMENTS

The Lobbyists Aren't Going Anywhere

Written by , Posted in Liberty & Limited Government, Waste & Government Reform

CQ Politics thinks lobbyists are going to do just fine under an Obama administration:

“Folks like us have been constructive participants in good public policy making,” said Dutko CEO Mark Irion. “I do not believe this administration is not going to work with the community here that does the kind of things that we do.”

To the contrary, Irion said the Democratic party’s “predisposition to believing that government is part of the solution” is likely to generate “a lot more activity” for policy makers and lobbyists, alike.

Michael S. Ferrell, head of the legislative practice at Venable, agreed, saying the new administration’s desire to shift the country in a new direction is bound to create winners and losers. “And anytime there is a game of winners and losers people pick a side and they need a team,” Ferrell said.” That’s where the lobbying industry comes in, he added.

Bingo.  This idea that Obama is somehow going to end special interest politics is absurd.  We’ll see more money and influence peddling around Washington under Obama for one very simple reason: government will be involved in more aspects of our economy and our lives.  To quote David Boaz of the Cato Institute, “When you spread food out on a picnic table, you can expect ants. When you put $3 trillion on the table, you can expect special interests, lobbyists and pork-barrel politicians.”

The only sure way to reduce lobbying and special interest politics is to reduce the scope and power of the federal government.  Obama has not demonstrated an inclination to do either.

Monday

20

October 2008

0

COMMENTS

Blame The Messenger

Written by , Posted in Liberty & Limited Government

You have to read this to believe it. Jacob Weisberg says the financial crisis has killed libertarianism. Notably absent from his list of villains are any of the people actually responsible (to see the real culprits, as well as my prediction for just this kind of left-wing response, see here).

There’s just so much nonsense in his article, it’s difficult to know where to begin. Weisberg clearly is not prepared to address any argument on its merits, but rather wants to tar his opponents with dismissive labels and insults. Libertarians are “immature” and the intellectual equivalent of Marxists in denial about the failure of communism. I find it ironic that such a hatchet piece, which freely admits that the author cannot and won’t address specific arguments from free market adherents (really, he waves them away with his magic wand in the second paragraph), would label anything immature.

The reason the author has to resort to such insults is because the facts are overwhelmingly against him. It’s pretty hard to lay the financial crisis at the feet of libertarians (who have warned of the disastrous consequences of meddling for years, identifying specifically this kind of crisis) when 12,000 bureaucrats were regulating the financial sector in the lead up to the meltdown. Does that sound like libertarianism? A libertarian market would have looked nothing like what we had. Just go back a few years and look at all the libertarians railing against the current system. If no libertarian was satisfied with the system, what makes Weisberg think it was libertarian?

Blaming the messenger is always tempting, but it’s utterly dishonest. The real blame rests with government interventionists who think they can meddle in markets without creating moral hazards. They were wrong, and now silly apologists like this author are intent to make sure they can do it again. We all know who will be asked to pony up the next time they fail.