Posts tagged ‘rule of law’

Hobby Lobby, Obamacare and Contraception

A few thoughts

  1. This is one of those "bad policy conflicts with bad policy" decisions that I have trouble getting excited about.   The government should not be mandating tiny details of health insurance policies.  On the flip side, personal religious beliefs should not trump the rule of law (example:  the fact someone has a religion that says it is legal to beat his wife should not create an exception allowing spouse abuse).
  2. That being said, the case only seems legally difficult if one completely ignores the existence of the 1993 RFRA, which most on the Left seem to want to ignore.
  3. I have zero patience with the facile argument that corporations have no individual rights.  Corporations are just assemblies of people.  Our right to assembly should not cause us to lose our other rights.  If I have freedom of speech as an individual, I don't give it up when I create a corporation.
  4. I am even more exhausted with the argument that opposing government subsidies of an activity is the same as opposing the activity itself.  Though half the readers who see this post will assume that I am anti-abortion or anti-contraception, which I am not. (Update:  This seems to be a prevalent argument today, though -- see here)
  5. The most ignored fact of this case in my mind is the absolute insanity of the government mandating that regular, predictable purchases be covered in an insurance policy.  Intelligent health insurance policies should no more cover routine contraception than home insurance policies should cover the cost of light bulb replacements.   Sure, I have no problem if some private person wanted such a policy and a private company offered one -- but mandating this craziness is just amazingly bad policy.
  6. If you really want to help women and reduce their net cost of contraception, stop requiring a prescription for certain contraceptives, like birth control pills.

Counter-Proposal for Kevin Drum on Voting Rights

Kevin Drum argues that rules preventing voting in many states by felons are unfair.  After all, we don't deny them their first amendment rights for having been in prison, right?

Well, unlike Drum, I put voting further down the list of essentials for a free society, well behind property rights and the rule of law (see here and here).  If I wanted to get worked up about post-incarceration loss of rights, I would address the increasingly draconian post-incarceration restrictions on those convicted of even trivial "sex" crimes (treating 17 years olds that sent a nude selfie the same as a rapist).

However, let's talk voting.  Yes we do not deny ex-cons their first amendment rights.  But we do deny them their second amendment rights.  So I offer this compromise:

I propose this bipartisan compromise: Voting and gun ownership rights for convicted felons should be identical. Set them wherever you think is fair, but make them consistent. I am not sure this is really a very fair comparison -- after all, a politician can do a heck of a lot more damage than a gun -- but as I said, I am willing to compromise.

Waaaaaaaay Too Late, And I Bet Obama Knows It

Via the WSJ:

President Barack Obama said Thursday that insurers will be able to continue health-insurance coverage next year for current policy holders that otherwise would be canceled under the new health-care law....

"Insurers can offer consumers the option to renew their 2013 health plans in 2014 without change, allowing these individuals to keep their plans," a senior White House official said, previewing Mr. Obama's announcement. These consumers will be given the opportunity to re-enroll, the official said, essentially extending the so-called grandfather clause in the 2010 health overhaul that allowed people to keep their plans if they were in place before the law passed.

"This step today is in the interest of fixing some of the challenges that have arisen" since then, the official said.

Under the plan, insurers are required to notify consumers whether their renewed plans don't include coverage that was required under the new health law, which set minimum coverage standards. They must tell consumers that new insurance options and possibly tax subsidies may be available for policies bought through online federal marketplace.

1.  The President announced this today to try to head off Congressional legislation to do the same thing.  Have we just given up on the rule of law?  Can the President unilaterally modify any law he pleases?  Shouldn't a modification in existing legislation have to come from the Legislature?  Can we just make it official and change the Constitution to say that the President can alter any legislation he wants as long as his party originally passed it?

2.  How is this even going to be possible?   My understanding is that insurance companies spend months preparing the pricing and features of their products for the next year.  The have done no preparation to offer these plans in 2014, because, you know, they were (and still are, whatever the President says in a news conference) illegal.   Its like your wife telling you to take the next exit when you are in the left lane driving 75 miles an hour in heavy traffic and the exit is about 100 yards away.  With 31 business days between now and the new year, how are they supposed to do this?  Or are they even expected to be able to do so?  Is this the President's way to blame shift to insurance companies?

Update:

"Slander" Is Anything Bad Said About Me

Richard Cohen wrote in the Washington Post

"[p]eople with conventional views must repress a gag reflex when considering the mayor-elect of New York — a white man married to a black woman and with two biracial children,"

Apparently people responded to the article by saying that Cohen was as a minimum deeply out of touch and perhaps a tad bigoted himself.  Of course, since this is the Internet age, some folks said these things in juvenile and deeply unproductive ways.

I am not going to comment much on his original statement.  I think the article is far more revealing of Mr. Cohen's mental outlook than that of anyone in Iowa, particularly since he brought no facts to the table, but a lot of people have already pointed that out.  I wanted to comment on his follow-up statement

I don’t understand it …. What I was doing was expressing not my own views but those of extreme right-wing Republican tea party people. I don’t have a problem with interracial marriage or same-sex marriage. In fact, I exult in them. It’s a slander…

Seriously?  So people's opinions about actual statements made by Richard Cohen in writing are slander, but ugly accusations made about Republicans or Tea Partiers he has not even met are not?  At least his critics are working with his actual statements, rather than offering an opinion of a large, inhomogeneous group's state of mind as fact.

He added, “I think it’s reprehensible to say that because you disagree with something that you should fire me. That’s what totalitarians do.”

Yeah, because totalitarians never broad brush vilify whole groups who constitute their political opponents.

This is a great example of how ad hominem argumentation works.  The Left has spent a lot of time attempting to vilify the Tea Party as flat-out BAD PEOPLE, in a similar way to how we climate skeptics have been vilified.  Once one is successful at this, then all the rules of discourse don't apply.   You don't have to engage them or treat them seriously because they are BAD PEOPLE.   We good liberal-minded folks would never stereotype large groups, except of course the Tea Party but that is OK because they are BAD PEOPLE.  And everyone knows that the rule of law, much less the rules of normal discourse, do not apply to BAD PEOPLE.

The Real Problem with the Pledge of Allegiance

Atheists in Massachusetts are challenging the Pledge of Allegiance.  I certainly think mention of God in a national standard oath is problematic Constitutionally.

However, there is a bigger problem with the Pledge that no one, even many libertarians, seem to mention:  It is abhorrent for our government to be requiring its citizens to take a loyalty oath.  This is particularly true in that the requirement typically falls on minors who don't have the experience and cognitive ability to parse what they are pledging (there is a reason we don't allow minors to sign legal papers).

There is nothing in our original model of government that requires that citizens be loyal to the country or to its government.  We must observe the rule of law and respect the rights of others, but at some level what does "allegiance" even mean?  I said above that kids can't understand what they are promising to do, but I don't even understand.  When I say those words, what commitment am I making, exactly?

Historically, the requiring of citizen loyalty oaths has certainly not been a marker of a free society.  In general, the more totalitarian the society, the more emphasis is placed on allegiance pledging.  It could be worse -- the most abusive of regimes generally require loyalty oaths directly to the ruler, rather than to the nation itself.  We have not gotten there yet, though some morons seem to be begging for just this sort of personality-cult totalitarianism.

Message to Obama: Respecting the Rule of Law includes respecting the Constitution

I have been on the road with business, and working on a fairly big announcement for next week, so I have been slow in keeping up with the emerging NSA scandal.  I want to give a few brief thoughts on Obama's defense of extensive NSA data gathering.  Obama said:

That’s not to suggest that, you know, you just say, trust me, we’re doing the right thing, we know who the bad guys are. And the reason that’s not how it works is because we’ve got congressional oversight and judicial oversight. And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.

  1. I don't trust any of the three branches of government.  You know what, neither did many of the folks who wrote the Constitution
  2. The involvement of the three branches of government in this issue boil down to less than two dozen people:  the President, a subset of the 15 members of the Senate Intelligence Committee, and a subset of the 11 judges (3?) on the FISA court, which has demonstrated pretty conclusively that they will approve any warrant no matter how absurdly broad
  3. Non-specific warrants that basically cover open-ended data gathering on every single person in the country, with no particular suspect or target named, are clearly un-Constitutional.  "and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  I would love to know what probable cause the NSA cited to seized Warren Meyer's Verizon call records.  20 Washington insiders cannot change the Constitution -- that requires a vote of 3/4 of the states.
  4. Obama has stopped even pretending to care about the Constitution, an amazing fact given that he is nominally a Constitutional professor
  5. Partisan hypocrisy has never been clearer, as traditional defenders of civil liberties and opponents of the Patriot Act like Al Franken rush to defend the NSA spying (thank God for Linsey Graham, who can be counted on to be a consistent authoritarian).  Democrats and Republicans have basically switched sides on the issue.

When assessing any new government power, imagine your worst political enemy wielding the power and make your judgement of the powers' appropriateness based on that worst-case scenario.  Clearly, though, no one can see past the occupant of the White House. with Coke party members backing powers for Coke Presidents but opposing them for Pepsi Presidents and vice-versa.

New Education Department Guidelines: Violating 3 Constitutional Amendments Simultaneously

I have been meaning to write on the new Obama Administration guidelines to colleges for treating speech as sexual assault and reducing the due process rights of accused students.  But George Will does such a great job I am going to let him do it.

Responding to what it considers the University of Montana’s defective handling of complaints about sexual assaults, OCR, in conjunction with the Justice Department, sent the university a letter intended as a “blueprint” for institutions nationwide when handling sexual harassment, too. The letter, sent on May 9, encourages (see below) adoption of speech codes — actually, censorship regimes — to punish students who:

Make “sexual or dirty jokes” that are “unwelcome.” Or disseminate “sexual rumors” (even if true) that are “unwelcome.” Or make “unwelcome” sexual invitations. Or engage in the “unwelcome” circulation or showing of “e-mails or Web sites of a sexual nature.” Or display or distribute “sexually explicit drawings, pictures, or written materials” that are “unwelcome.”

It takes some work to simultaneously violate this many Constitutional protections in one letter, but the Obama Administration continues to demonstrate its heroic determination to ignore that aging document.

By the way, I cannot find any story about a single university President in the whole country who has objected to these rules.  What a bunch a spineless conformists we running universities.

A few things I would add to Will's comments:

  1. I have written about this emerging "right not to be offended" on University campuses for some time.  This is the Obama Administration trying to codify this nutty BS "right" into law.
  2. There is no way in a rule of law where one can have a law where only the opinion of the victim matters in determining culpability.  To some extent, the loss of due process rights are almost secondary here -- if it is a crime if the victim says it is (ie they were offended), then what defense can one have, anyway?
  3. Given that everyone takes offense to something nearly every day, this law would quickly cause everyone to be kicked out of school.  The Venn diagram of speech that is offensive either to, say, fundamentalist Christians or Muslims and to radical feminists would encompass essentially all of speech related to sex.    Since everyone will not be kicked out of school, the rules will almost certainly be enforced disparately, likely punishing speech with which the university administration disagrees but being far less aggressive in pursuing "unwanted" sexual speech with which it might disagree.

Cyprus and the Rule of Law

There was no particularly good way to resolve the banking mess in Cyprus.  But what worries me about how things played out is that there appears to be no rule of law that applies to bank failure in Europe.  There should be some clear principle that guides a bank resolution - e.g. equity holders and bondholders get wiped out first, then uninsured depositors, then insured depositors.  Or perhaps there is some ratio of pain between insured and uninsured depositors.

It is clear that no such rule exists across Europe (or if it does, it does not enjoy any particular force such that folks feel free to ignore it in real time).  That is the real danger here.  Results, however bad, should be transparent and predictable in advance, which is far from what happened in Cyprus.  Without a rule of law, one gets a rule of men -- in other words, rules are set by individual whim, often based on which government or corporate interests wield the most influence.

Think I am being too cynical?  Here is a detail that was new to me about the depositor haircuts in Cyprus:

A few weeks ago, the Central Bank of Cyprus published a curious set of "clarifications for the better understanding of the resolution measures." The principle of a bail-in—that uninsured creditors should suffer losses before taxpayers are on the hook—turns out to contain a few lacunae. "Financial institutions, the government, municipalities, municipal councils and other public entities, insurance companies, charities, schools, and educational institutions" will be excused from contributing to the depositor haircuts, though insurers later were removed from the exempt list.

Apparently, individual parties are lining up for special exemptions as well (much like connected corporations did with the Obama Administration to get exemptions from early provisions of the PPACA).  Essentially, all bank losses will be assigned to depositors who don't have access to powerful friends in the government.

Cronyism and the GM/Chrysler Bailouts

Companies and assets don't go *poof* in a bankruptcy.   In fact, if any of you are even somewhat of a frequent airline flyer, over the last 10 years you likely flew an airline in bankruptcy.  Companies operate all the time, sometimes for years, out of Chapter 11.  In fact, that is what chapter 11 is all about -- helping creditors get more value from a company by keeping it in operation  (only in truly hopeless cases, like Solyndra, is liquidation a higher value outcome for creditors than continued operation).

As such, then, the Obama Administration did not "save" GM and Chrysler, it simply managed their bankruptcy to political ends, shifting the proceeds from those guaranteed them by the rule of law to cronies and political allies.  In the process, they kept these companies on essentially the same path that led them to bankruptcy in the first place, only with a pile of taxpayer money to blow so they could hang around for a while.

To this end, the WSJ has a great editorial on the whole mess

In a true bankruptcy guided by the law rather than by a sympathetic, rule-bending political task force, GM and Chrysler would have more fully faced their competitive challenges, enjoyed more leverage to secure union concessions, and had the chance to divest money-losing operations like GM's moribund Opel unit. True bankruptcy would have lessened the chance that GM and Chrysler will stumble again, a very real possibility in the brutally competitive auto industry.

Certainly President Obama threw enough money at GM and Chrysler to create a short-term turnaround, but if the auto makers find themselves on hard times and return to Washington with hats in hand, his policy will have been no rescue at all.

I will refer the reader back to my editorial way back in 2005 why it was OK to let GM die

From the "I Don't Think That Word Means What You Thinik It Means" Files

Via Ed Driscoll, from Richard Cohen in the Washington Post:

The odd thing about the Tea Party is that it uses Washington to attack Washington. This is a version of Hannah Arendt’s observation that totalitarian movements use democratic institutions to destroy democracy. (This is what Islamic radicals will do in Egypt.) Note that the Tea Party is nowhere near a majority — not in the House and not in the Senate. Its followers have only 60 seats in the 435-member House, but in a textbook application of political power they were able to use parliamentary rules to drive the congressional agenda. As we have known since Lenin’s day, a determined minority is hands down better than an irresolute majority.

The Tea Party has recklessly diminished the power and reach of the United States. It has shrunk the government and will, if it can, further deprive it of revenue. The domestic economy will suffer and the gap between rich and poor, the educated and the indolently schooled, will continue to widen. International relations will lack a dominant power able to enforce the rule of law, and the bad guys will be freer to be as bad as they want. Maybe the deficit will be brought under control, but nothing else will. I worry — and I envy (but will not forgive) those who don’t

Yep, those dang totalitarians -- always trying to shrink government and diminish its power and reach.

I Can Die a Happy Blogger Now. George Will Quoted Me in a Column

Those of you who are regular readers are probably tired of hearing me rant about the proposed Glendale, Arizona subsidy of the Phoenix Coyote's team (here, here, here), a subsidy that runs afoul both of our state Constitution and of common sense.  This week, George Will enters the fray, and actually quotes me at the bottom of his column.  Most of the column should be familiar to those following the story here, but of course being George Will it is so much pithier than I could tell the story.  I liked this bit:

NHL Commissioner Gary Bettman agrees with McCain that the world is out of joint when people can second-guess the political class: “It fascinates me that whoever is running the Goldwater Institute can substitute their judgment for that of the Glendale City Council.” He will learn not to provoke Olsen, who says, “It happens to fascinate me greatly that the commissioner thinks a handful of politicians can substitute their judgment for the rule of law.”

Auto Bailouts and the Rule of Law

Todd Zwicki has a great article on the auto bailouts.  Here is a brief excerpt of a long and very comprehensive article.

Of the two proceedings, Chrysler's was clearly the more egregious. In the years leading up to the economic crisis, Chrysler had been unable to acquire routine financing and so had been forced to turn to so-called secured debt in order to fund its operations. Secured debt takes first priority in payment; it is also typically preserved during bankruptcy under what is referred to as the "absolute priority" rule — since the lender of secured debt offers a loan to a troubled borrower only because he is guaranteed first repayment when the loan is up. In the Chrysler case, however, creditors who held the company's secured bonds were steamrolled into accepting 29 cents on the dollar for their loans. Meanwhile, the underfunded pension plans of the United Auto Workers — unsecured creditors, but possessed of better political connections — received more than 40 cents on the dollar.

Moreover, in a typical bankruptcy case in which a secured creditor is not paid in full, he is entitled to a "deficiency claim" — the terms of which keep the bankrupt company liable for a portion of the unpaid debt. In both the Chrysler and GM bankruptcies, however, no deficiency claims were awarded to the wronged creditors. Were bankruptcy experts to comb through American history, they would be hard-pressed to identify any bankruptcy case with similar terms.

To make matters worse, both bankruptcies were orchestrated as so-called "section 363" sales. This meant that essentially all the assets of "old Chrysler" were sold to "new Chrysler" (and "old GM" to "new GM"), and were pushed through in a rush. These sales violated the longstanding bankruptcy principle that an asset sale should not be functionally equivalent to a plan of re-organization for an entire company — what bankruptcy lawyers call a "sub rosa plan." The reason is that the re-organization process offers all creditors the right to vote on the proposed plan as well as a chance to offer competing re-organization plans, while an asset sale can be carried out without such a vote.

In the cases of GM and Chrysler, however, the government essentially pushed through a re-organization disguised as a sale, and so denied the creditors their rights. As the University of Pennsylvania's David Skeel observed last year, "selling" an entire company of GM or Chrysler's size and complexity in this manner was unprecedented. Even on a smaller scale, it would have been highly irregular: While rush bankruptcy sales of much smaller companies were once common, the bankruptcy laws were overhauled in 1978 precisely to eliminate this practice.

At first, the fact that the companies' creditors (and especially Chrysler's creditors, who were so badly mistreated) put up with such terms and waived their property rights seems astonishing. But it becomes less so — and sheds more light on how this entire process imperils the rule of law — when one considers the enormous leverage the federal government had over most of these creditors. Many of Chrysler's secured-bond holders were large financial institutions — several of which had previously been saved from failure by TARP. Though there is no explicit evidence that support from TARP funds bought these bond holders' acquiescence in the Chrysler case, their silence in the face of a massive financial haircut is otherwise very difficult to explain.

Indeed, those secured-bond holders who were not supported by TARP did not go nearly as quietly.

Backwards

Well, as usual, the progressives have the rights and roles of private individuals vs. government exactly backwards, from Kevin Drum:

As I said earlier, I'm on the fence a bit about whether an indiscriminate release of thousands of U.S. embassy cables is useful. After all, governments have a legitimate need for confidential diplomacy. But when I read about WikiLeaks' planned financial expose [release of private emails from a private corporation], I felt no such qualms. A huge release of internal documents from a big bank? Bring it on!

The government and public officials acting in a public capacity have no rights to privacy of their work and work products from the public that employs them (except to the extent that privacy pays some sort of large benefit, which I would define pretty narrowly).  While things like the recent Wikileak are certainly damaging to things like sources and foreign relations, I have sympathy for such a mass dump when the government so systematically defaults to too much secrecy and confidentiality for what should be public business, mainly to avoid accountability.  The public has the right to know just about whatever the government is doing, in detail.

In the private sector, ordinary citizens have no similar "right to know" the private business of private entities, the only exception being in criminal investigations where there are clear procedures for how confidential private information may be obtained, used, and protected.  Had the proposed email dump related to alleged misconduct, I would have been pretty relaxed about it.  But the proposed document dump is just voyeurism.  One may wish for more accountability processes vis a vis banks, but in a country supposedly still founded on the rule of law, we don't get to invent new ex post facto rules, such as "if your industry pisses off enough Americans, all the material that was previously legally private is retroactively made part of the public domain."

Drum may be gleeful now, but someday he just might be regretful of establishing a precedent for consequence-free theft and publication of private information.   Had, for example, the words "big bank" in the paragraph been replaced by, say, "Major newspaper," we would likely see Drum in a major-league freak out, though the New York Times corporation has exactly the same legal status as Citicorp.

Everyone thinks his own information is "different" and somehow on a higher plane than other people's information.  Drum likely thinks his communication by email with sources is special, while I would argue release of my confidential internal communication about new service offerings and pricing strategies would be particularly damaging.  The way we typically settle this is to say that private is private, and not legally more or less private based on subjective opinions by third parties about the value of the data.

Prosecutorial Abuse

One of my theories I have mentioned before on this blog is that the worst abuses of freedom occur when the Left and Right in this country agree.  Here is another great example -- combine the Right's law-and-order drive to hand more power to,  and remove accountability from, police and prosecutors with the Left's need to string up some executives after the Enron collapse -- and you get this:

The DOJ has inexplicably teed up another trial of Brown, who was the only one of the Merrill defendants who was convicted on additional charges of perjury and obstruction of justice for having the temerity of protesting his innocence to the grand jury that originally investigated the Nigerian Barge deal. Brown's new trial is currently scheduled to begin on September 20.

But in the meantime, Brown's legal team has been leafing through enormous amounts of exculpatory evidence that the Enron Task Force withheld from the Merrill defendants in connection with the first trial back in 2005, but which the DOJ has recently been forced to disclose.

The result of the Brown team's effort is set forth below in the Supplemental Memorandum in support of a motion for a new trial for Brown on the perjury and obstruction charges (the downloaded version of the memo is bookmarked in Adobe Acrobat to facilitate ease of review). The memorandum details the appalling length that the Enron Task Force went during the first trial in suppressing exculpatory evidence in favor of Brown and his co-defendants and generally disregarding the rule of law in order to obtain convictions. As the memorandum concludes:

The conclusion is now inescapable that the ETF engaged in a calculated, multi-step process to deprive Brown of his constitutional right to Due Process. (1) They repeatedly denied the existence of Brady material, told this court they had met their Brady obligations and fought vehemently against producing anything [exhibit reference and footnote omitted]. They highlighted only selected material in a veritable garden of Brady evidence "“ much of their selections being vague, tangential or marginal"“while working around clear, declarative, relevant exculpatory material even in the same page, paragraph or document. (3) When ordered by the Court to produce summaries to the defense, they further redacted even the Brady material they had themselves highlighted and withheld the crucial facts that they had highlighted as Brady. (4) They egregiously capitalized on their misconduct at trial by making assertions that were directly belied by the exculpatory evidence they withheld.  .  .  .

The memorandum goes on to set out dozens of Brady violations, including charts that compare the exculpatory statements that the Enron Task Force withheld prior to the first trial with the incriminating statements that the Enron Task Force extracted from witnesses during that trial.

Folks, this is really bad stuff. But as bad as it is, I have not seen any mention of it in the mainstream media.

Immigration Debate May Get Uglier (and Nuttier) Here in Arizona

Readers know I oppose recent Arizona immigration legislation and enforcement initiatives.  I don't think government should be stepping in to effectively license who can and can't work in this country, and am thus a supporter of open immigration (which is different from citizenship, please note).  As I support open immigration, both from a philosophic standpoint as well as a utilitarian perspective, I don't support laws to get tougher on illegal immigrants, any more than I support laws to get tougher on the failed practice of drug prohibition.

That being said, reasonable people can disagree, though some for better reasons than others.  But I don't see how all these folks who support tougher laws on immigration with the mantra that it is all about the rule of law can justify this piece of unconstitutional garbage:  (Hat tip to a reader)

Buoyed by recent public opinion polls suggesting they're on the right track with illegal immigration, Arizona Republicans will likely introduce legislation this fall that would deny birth certificates to children born in Arizona "” and thus American citizens according to the U.S. Constitution "” to parents who are not legal U.S. citizens. The law largely is the brainchild of state Sen. Russell Pearce, a Republican whose suburban district, Mesa, is considered the conservative bastion of the Phoenix political scene....

The question is whether that would violate the U.S. Constitution. The 14th Amendment states that "all persons, born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It was intended to provide citizenship for freed slaves and served as a final answer to the Dred Scott case, cementing the federal government's control over citizenship.

But that was 1868. Today, Pearce says the 14th Amendment has been "hijacked" by illegal immigrants. "They use it as a wedge," Pearce says. "This is an orchestrated effort by them to come here and have children to gain access to the great welfare state we've created." Pearce says he is aware of the constitutional issues involved with the bill and vows to introduce it nevertheless. "We will write it right."

I didn't like SB1070 that much, but as ultimately amended it was not nearly as radical as this.  I think those of us who feared SB1070 as a first step on a slippery slope should feel vindicated by this.

Like I Would Know What To Do In The Majority

I never said my immigration opinions were widely held here in Arizona, but apparently they are not popular nationally either:

The new poll finds 61 percent of voters nationally think Arizona was right to take action instead of waiting for the federal government to do something on immigration. That's more than twice as many as the 27 percent who think securing the border is a federal responsibility and Arizona should have waited for Washington to act. . . . Significantly more voters think the Obama administration should wait and see how the new law works (64 percent) than think the administration should try to stop it (15 percent).

Oh well.  Its not like being in the minority is a new thing for me.

What I would really like to understand is:  what drives these folks?

I will take them at their word that it is not racism.

If its violent or property crime, the stats are pretty clear that immigrants don't really contribute to these crimes disproportionately.

If its gang violence at the border, I am wondering what people see in the law's rules that allow easier harassment of day laborers and brown-skinned people with broken turn signals that they think is going to deter gang members supposedly armed with AK47's.

If its competition for jobs, well, I encourage folks to learn how the economy actually works (hint:  it's dynamic, not static), and further, encourage them to figure out why they feel they can't compete with unskilled, uneducated laborers who don't speak the native language.

Finally, if it is, as many of my emailers claim, just a matter of the rule of law -- "THEY ARE ILLEGAL" as I get in many emails, inevitably all in caps, then why not just legalize their presence?  After all, I lament all the hardships associated with marijuana law enforcement but you don't see me advocating new rules to incrementally harass potential possessors -- I am grown up enough to know form history that such efforts are never going to work as long as their is an enthusiastic supply and demand.  I advocate legalization.

Illegal Immigration and the Rule of Law

As is usual when I make an immigration post (wherein I am supportive of open immigration and suspicious of gung-ho enforcement efforts) I got mail saying that the real concern here is the rule of law.   People inevitably want to inform me that this immigration is ILLEGAL (usually in caps) and that these immigrants are BREAKING THE LAW and that the law cannot be enforced unevenly.

First, I am happy to listen to this argument from any commenter who has never broken the speed limit or done a rolling stop at a stop sign.

Second, I would like to offer the rule of law folks, especially those on the right side of the aisle, a thought problem:  Soon, it will be illegal to not purchase a health insurance policy that meets specifications set by Congress.  It is anticipated, however, given relatively low fines, that many people will break this law and not obtain health insurance.   This failure will be ILLEGAL.  These people will be criminals.  Do those of you who seek higher penalties, more robust enforcement, police sweeps, and reduced standards of probable cause for people committing the crime of illegal immigration also plan to seek the same higher penalties for lawbreakers who do not buy an insurance policy?   After all, as you have said, this is not about the law itself but respect for the rule of law.

By your immigration logic, we should be ruthless about lawbreakers who do not have the right insurance policy.  We should encourage the Minutemen to patrol for people without health insurance -- after all, they have said that their concern is with people breaking the law, not immigration or Mexicans per se.  There should be sweeps where people can be arrested for suspicion of not having health insurance, just as they can be arrested under our new AZ law for suspicion that they do not have a green card.

If there is a difference, please explain it to me.  I understand that you may be opposed to open immigration or high immigration rates or immigration by poor uneducated people or whatever.  If so, fine, we disagree -- but stop saying that this is all about the rule of law, or telling me we can't pick and choose what laws we violate.  Because we do the latter all the time.  Our willingness to challenge the state is a large part of American exceptionalism.

PS- Just to avoid misunderstandings from trolls who do not usually read this site, of course I do not advocate the above for health insurance violations.  Just as I don't for Mexicans seeking a better life in this country without obtaining a license to do so from the government.

Disclosure: I have several good friends who are illegal immigrants.  They are wonderful, hard-working people who have been in this country for years.  If we were to conduct tests of people's acceptability to be present in this country, they would pass with scores far ahead of many US citizens.

Update:  I find the argument that open immigration and an overly-generous welfare state can't coexist to be moderately compelling, though I don't see why we could tie citizenship narrowly to receiving these benefits.  I have problems saying that a government license in the form of a green card is required for mere presence in the country.  I have no problem imposing this licensing requirement for receipt of unearned goodies.

Happy July 4: How Even Those Who Love America Often Miss the Point

This is a recurring post on Coyote Blog on Memorial Day, but I forgot this year so I will repost it on July 4.  Greetings this year from the Mother Country, from which I will be returning soon.  And let's give a big shout-out to the Dutch, who seldom get much love on this point, but the Dutch perhaps even more than the English really pioneered a lot of things that are important to us - e.g. capitalism, a republic, and tolerance.

Every Memorial Day, I am assaulted with various quotes from people thanking the military for fighting and dying for our right to vote.  I would bet that a depressing number of people in this country, when asked what their most important freedom was, or what made America great, would answer "the right to vote."

Now, don't get me wrong, the right to vote in a representative democracy is fine and has proven a moderately effective (but not perfect) check on creeping statism.  A democracy, however, in and of itself can still be tyrannical.  After all, Hitler was voted into power in Germany, and without checks, majorities in a democracy would be free to vote away anything it wanted from the minority - their property, their liberty, even their life.   Even in the US, majorities vote to curtail the rights of minorities all the time, even when those minorities are not impinging on anyone else.  In the US today, 51% of the population have voted to take money and property of the other 49%.

In my mind, there are at least three founding principles of the United States that are far more important than the right to vote:

  • The Rule of Law. For about 99% of human history, political power has been exercised at the unchecked capricious whim of a few individuals.  The great innovation of western countries like the US, and before it England and the Netherlands, has been to subjugate the power of individuals to the rule of law.  Criminal justice, adjudication of disputes, contracts, etc. all operate based on a set of laws known to all in advance.

Today the rule of law actually faces a number of threats in this country.  One of the most important aspects of the rule of law is that legality (and illegality) can be objectively determined in a repeatable manner from written and well-understood rules.  Unfortunately, the massive regulatory and tax code structure in this country have created a set of rules that are subject to change and interpretation constantly at the whim of the regulatory body.  Every day, hundreds of people and companies find themselves facing penalties due to an arbitrary interpretation of obscure regulations (examples I have seen personally here).

  • Sanctity and Protection of Individual Rights.  Laws, though, can be changed.  In a democracy, with a strong rule of law, we could still legally pass a law that said, say, that no one is allowed to criticize or hurt the feelings of a white person.  What prevents such laws from getting passed (except at major universities) is a protection of freedom of speech, or, more broadly, a recognition that individuals have certain rights that no law or vote may take away.  These rights are typically outlined in a Constitution, but are not worth the paper they are written on unless a society has the desire and will, not to mention the political processes in place, to protect these rights and make the Constitution real.

Today, even in the US, we do a pretty mixed job of protecting individual rights, strongly protecting some (like free speech) while letting others, such as property rights or freedom of association, slide.

  • Government is our servant.  The central, really very new concept on which this country was founded is that an individual's rights do not flow from government, but are inherent to man.  That government in fact only makes sense to the extent that it is our servant in the defense of our rights, rather than as the vessel from which these rights grudgingly flow.

Statists of all stripes have tried to challenge this assumption over the last 100 years.   While their exact details have varied, every statist has tried to create some larger entity to which the individual should be subjugated:  the Proletariat, the common good, God, the master race.  They all hold in common that the government's job is to sacrifice one group to another.  A common approach among modern statists is to create a myriad of new non-rights to dilute and replace our fundamental rights as individuals.  These new non-rights, such as the "right" to health care, a job, education, or even recreation, for god sakes, are meaningless in a free society, as they can't exist unless one
person is harnessed involuntarily to provide them to another person.
These non-rights are the exact opposite of freedom, and in fact require
enslavement and sacrifice of one group to another.

Don't believe that this is what statists are working for? The other day I saw this quote from the increasingly insane Lou Dobbs (Did you ever suspect that Lou got pulled into a room a while back by some strange power broker as did Howard Beale in Network?):

Our population explosion not only detracts from our quality of life but
threatens our liberties and freedom as well. As Cornell's Pimentel puts
it, "Back when we had, say, 100 million people in the U.S., when I
voted, I was one of 100 million people. Today, I am one of 285 million
people, so my vote and impact decreases with the increase in the
population." Pimentel adds, "So our freedoms also go down the drain."

What?? In a society with a rule of law protecting individual rights, how does having a diluted vote reduce your freedom?  The only way it does, and therefore what must be in the author's head, is if one looks at government as a statist tug of war, with various parties jockeying for a majority so they can plunder the minority.  But in this case, freedom and rule of law are already dead, so what does a dilution of vote matter?  He is arguing that dilution of political power reduces freedom "” this country was rightly founded on just the opposite notion, that freedom requires a dilution of political power.  What he is really upset about is someone is wielding coercive power and its not him.

At the end of the day, our freedoms in this country will only last so long as we as a nation continue to hold to the principle that our rights as individuals are our own, and the government's job is to protect them, not to ration them.  Without this common belief, all the other institutions we have discussed, from voting to the rule of law to the Constitution, can be subverted in time.

So to America's soldiers, thank you.  Thank you for protecting this fragile and historically unique notion that men and women own themselves and their lives.

Update: A corollary to all this is that "self-determination for an ethnically homogeneous group" is not among the key factors above.  Which is where Woodrow Wilson went so far wrong.  I have said for years we need to start over with the UN and build a new organization for multi-lateral cooperation based on principles of individual rights.  Here is the UN by contrast, in a press release by its Human Rights Council honoring Cuba:

Cuba had withstood many tests, and continued to uphold the principles of objectivity, impartiality and independence in pursuance of the realisation of human rights. Cuba was and remained a good example of the respect for human rights, including economic, social and cultural rights. The Universal Periodic Review of Cuba clearly reflected the progress made by Cuba and the Cuban people in the protection and promotion of human rights, and showed the constructive and responsive answer of Cuba to the situation of human rights. Cuba was the victim of an unjust embargo, but despite this obstacle, it was very active in the field of human rights.

Haiti on the Potomac

The Liberty Papers thinks we have become a lawless Banana Republic.  George Will is thinking along the same lines, snarkily observing that Sweden, China, and Mexico have all observed in one way or another that the Feds seem to be acting outside the rule of law.

I have opined in the past that what really extended the Great Depression was not any real underlying economic issue, or even vast increases in government spending per se.  It was that arbitrariness with which the Roosevelt administration dealt with economic matters.  With nutty programs like the Mussolini-inspired National Industrial Recovery Act coming and going, investors and businesses never knew from day to day what the rules of the game would be next year, or even next week.

I fear that this is exactly the climate Obama and Congress are creating today.

  • When Congress reacts to CNN headlines by retroactively confiscating legal compensation that it had protected just weeks before, what will happen to my compensation?
  • When government deficits soar by trillions of dollars, what will taxes look like next year?
  • When the Administration says that Co2 will have to be reduced by 80%, what numbers do I plug into my forecasts for fuel and electricity?
  • When the government decides on a whim to print a trillion dollars more money to pay off government debt, what will inflation look like in the coming months and years?

As of two months ago, my company was still investing.  We were still getting bank credit, particularly for equipment financing, though it took more work than in the past to secure it.  We still saw opportunity in our business, and in fact saw increased opportunity in the recession for low-cost recreation options and outsourcing of public recreation facilities.

But today, I am reluctant to make any new investments.  Investing $5000 now for $8,000 a year from now normally sounds good, but what happens now that the Feds have more than doubled the money supply?  How much will $8,000 really be worth a year from now?  What will my taxes be on the increase?**  What new costs or liabilities  might be retroactively placed on me for making the investment?  What happens if beltway pundits start thinking I am making too much money?

All this commotion of government intervention started when Paulson and other Bush appointees started screaming that the banking system was going to shut down and therefore crash the whole economy.  As my readers know, I believe to this day that this was all sky-is-falling over-reaction and panic-mongering, and most of the credit crunch resulted from uncertainty about the Treasury and its statements, not due to realities on the ground.   However, whatever tightening of credit we might or might not have avoided by government action, it pales in its effect on investment in comparison to the arbitrariness and trillion-dollar-plan-of-the-day that has been the first 60 days of the Obama administration.

** footnote: For those of you who have not lived through high inflation times, taxes and inflation are a deadly combination.  That is because the Federal Government, after creating inflation, then taxes each of us on its effects.  Here is an example:  Invest $5000 now at a fixed 10% a year.  Suddenly, inflation goes up to 8% a year.  In five years, I now have a bit over $8000.  In economic terms I have made a small profit of, since $8000 in five years at 8% inflation is worth $5,445 today.

But the IRS thinks I have made $3000, not just $445, and will tax me on the full $3000.  If they take a third, I only have $7000 at the end, or $4,764 in current dollars, meaning that after taxes, I actually lost money.

Unbundling Citizenship

Those who oppose more open immigration generally have three arguments, to which I have varying levels of sympathy:

  • It's illegal!  Illegal immigration violates the rule of law.  I have always thought this argument weak and circular.  If the only problem is that immigrants are violating the law, then the law can be changed and its now all legal.  Since this is not the proposed solution, presumably there are other factors that make more open immigration bad beyond just the fact of its illegality.  I am positive I could come up with hundreds of bad laws that if I asked a conservative, "should I aggressively enforce this bad law or should I change it," the answer would be the latter.
  • We will be corrupting our culture.  I am never fully sure what these arguments mean, and they always seem to carry a touch of racism, even if that is not what is intended.  So I will rewrite this complaint in a way I find more compelling:  "We are worried that in the name of liberty and freedom, we will admit immigrants who, because of their background and culture, will vote against liberty and freedom when they join our democracy."  I am somewhat sympathetic to this fear, though I think the horse may already be out of the barn on this one.  Our current US citizens already seem quite able to vote for restrictions on liberties without any outside help.  If I were really worried about this, I might wall off Canada before Mexico.
  • Open Immigration or Welfare State:  Pick One.  I find this the most compelling argument for immigration restrictions.  Historically, immigration has been about taking a risk to make a better life.  I have been reading a biography of Andrew Carnegie, which describes the real risks his family took, and knew they were taking, in coming to America.  But in America today, we aren't comfortable letting people bear the full risk of their failure.  We insist that the government step in with our tax money and provide people a soft landing for their bad decisions (see:  Mortgage bailout) and even provide them with a minimum income that in many cases dwarfs what they were making in their home country. 

My problem with conservatives is that they are too fast to yell "game over" after making these arguments, particularly the third.  There are some very real reasons why conservatives, in particular, should not so easily give up on finding a way to allow more free immigration.  Consider these questions:

  • Should the US government have the right and the power to dictate who I can and cannot hire to work for me in my business?
  • Should the US government have the right and the power to dictate who can and cannot take up residence on my property (say as tenants)?

My guess is that many conservatives would answer both these questions in the negative, but in reality this is what citizenship has become:  A government license to work and live in the boundaries of this nation.

I can't accept that.  As I wrote here:

The individual rights we hold dear are our rights as human beings, NOT
as citizens.  They flow from our very existence, not from our
government. As human beings, we have the right to assemble with
whomever we want and to speak our minds.  We have the right to live
free of force or physical coercion from other men.  We have the right
to make mutually beneficial arrangements with other men, arrangements
that might involve exchanging goods, purchasing shelter, or paying
another man an agreed upon rate for his work.  We have these rights and
more in nature, and have therefore chosen to form governments not to be
the source of these rights (for they already existed in advance of
governments) but to provide protection of these rights against other
men who might try to violate these rights through force or fraud....

These rights of speech and assembly and commerce and property
shouldn't, therefore, be contingent on "citizenship".  I should be
able, equally, to contract for service from David in New Jersey or Lars
in Sweden.  David or Lars, who are equally human beings,  have the
equal right to buy my property, if we can agree to terms.  If he wants
to get away from cold winters in Sweden, Lars can contract with a
private airline to fly here, contract with another person to rent an
apartment or buy housing, contract with a third person to provide his
services in exchange for wages.  But Lars can't do all these things
today, and is excluded from these transactions just because he was born
over some geographic line?  To say that Lars or any other "foreign"
resident has less of a right to engage in these decisions, behaviors,
and transactions than a person born in the US is to imply that the US
government is somehow the source of the right to pursue these
activities, WHICH IT IS NOT...

I can accept that there can be some
minimum residence requirements to vote in elections and perform certain
government duties, but again these are functions associated with this
artificial construct called "government".  There should not be, nor is
there any particular philosophical basis for, limiting the rights of
association, speech, or commerce based on residency or citizenship,
since these rights pre-date the government and the formation of borders.

I have advocated for years that the concept of citizenship needs to be unbundled (and here, on the Roman term Latin Rights).   Kerry Howley makes a similar argument today:

Citizenships are club memberships you happen to be born with. Some
clubs, like the Norway club, have truly awesome benefits. Others, like
the Malawi club, offer next to none. Membership in each club is kept
limited by club members, who understandably worry about the drain on
resources that new members might represent. Wishing the U.S. would
extend more memberships in 2008 isn't going to get you very far.   

Conceptually,
for whatever reason, most of us are in a place where we think labor
market access and citizenships ought to be bundled. A Malawian can't
come work here, we think, without the promise of a club membership,
which is nearly impossible to get. This is an incredibly damaging
assumption for two reasons: (1) memberships are essentially fixed in
wealthy democratic societies (2) uneven labor market access is a major
cause of global inequality. Decoupling the two leads to massive gains,
as we see in Singapore, without the need to up memberships.   

Here's
another way to think about it: Clubs have positive duties toward their
members, including those of the welfare state. But the negative duty
not to harm outsiders exists prior to clubs, and denying people the
ability to cooperate with one another violates their rights in a very
basic way. Our current policy is one of coercively preventing
cooperation. In saying "we can't let people into this country unless we
confer upon them all the rights and duties of citizenship," you are
saying that we need to violate their right to move freely and cooperate
unless we can give them welfare benefits. But that's backwards.

Statist Hall of Fame

I propose that we waive the normal waiting period and induct Eliot Spitzer right away into the statist hall of fame.  Few men in modern government have been able to demonstrate such a lack of respect for the rule of law and individual rights vs. their own power than Mr. Spitzer:

New York Gov. Eliot Spitzer was unabashed on Wednesday
about declaring himself a "steamroller" and the most accomplished
governor in the history of the state after three weeks on the job.

"I
am a fucking steamroller and I'll roll over you or anybody else," the
Democratic governor told Republican Assemblyman James Tedisco in a
private conversation last week, the New York Post reported on Wednesday.

"I've done more in three weeks than any governor has done in the history of the state," Spitzer also said, the Post reported. 

Asked at a news conference if the comments were inappropriately boastful, Spitzer replied tersely, "No. Next question."

Twenty-five years ago at Princeton, Mr. Spitzer's uniquely irritating ruling style inspired the normally silent and apathetic majority to rise up in an incredibly humorous coup, let by the Antarctic Liberation Front.

As Good A Theory as Any

For those who, like me, have trouble decoding why certain SCOTUS justices make the rulings that they do, Richard Epstein propounds an interesting theory in the WSJ ($) today.  He says that you can't relay on traditional conservative or liberal monikers to predict when a justice will back an expansion of government and when she/he will rule to reign it in.

In principle, it would nice if both sides of the
ideological spectrum displayed a sound and consistent position on
statutory construction. Unfortunately, each bloc is opportunistic. The
litmus test for this erratic behavior boils down to a factor not found
in any statute: trust.

The court's two wings share one trait: They defer only
to the government officials they trust. Otherwise, they read a statute
carefully to rein in the authority of officials they don't trust. The
two factions don't differ in their philosophy of language, or in their
on-again, off-again adherence to the rule of law. Rather, the court's
liberal wing profoundly distrusts this president, but has great
confidence in the domestic administrative agencies that regulate
matters such as the environment. The conservative wing of the court
flips over. It willingly defers to the president on national security
issues while looking askance at expansionist tendencies of the
administrative agencies.

This feels as right as any theory I have read of late.  And I certainly can get behind this:

Our Constitution starts out with a presumption of distrust of all
government actors, which is why it drew a sharp line between the
legislative and executive branches. We can argue until the cows come
home whether national security or environmental protection presents the
greater threat of executive or administrative misuse. But that ranking
really doesn't matter, because there is no reason why the Supreme Court
has to defer to overaggressive public officials in either context.
Justice Stevens rightly chastised the president for flouting the rule
of law in Hamdan. But he was tone deaf on the easier question
of statutory construction when blessing the Corps' extravagant reading
of the statute in Rapanos.

Happy Fourth of July

Happy Birthday to the greatestn nation on earth.  I spend a lot of time criticizing our leaders and their policies, but there is no place else I would live.  The US Constitution is still, over two-hundred years after its creation, the greatest single document ever written.  Many other countries since have written constitutions and spilled tons of ink pontificating on theories of government, but none have had similar success in protecting individual rights while creating an environment where every individual can focus their productive energies in whatever direction they choose with generally minimal interference.

A while back I wrote about how wealth was created, and I pointed out that the great leaps we have made in human well-being over the last two hundred or so years stem from two effects:

  1. There was a philosophical and intellectual
    change where questioning established beliefs and social patterns went
    from being heresy and unthinkable to being acceptable, and even in
    vogue.  In other words, men, at first just the elite but soon everyone,
    were urged to use their mind rather than just relying on established
    beliefs
  2. There were social and political changes that greatly increased
    the number of people capable of entrepreneurship.  Before this time,
    the vast vast majority of people were locked into social positions that
    allowed them no flexibility to act on a good idea, even if they had
    one.  By starting to create a large and free middle class, first in the
    Netherlands and England and then in the US, more people had the ability
    to use their mind to create new wealth.  Whereas before, perhaps 1% or
    less of any population really had the freedom to truly act on their
    ideas, after 1700 many more people began to have this freedom.
Many revisionist historians struggle to find some alternate explanation for the wealth and power the US enjoys today -- natural resources, isolation, luck, etc.  But the simple and correct explanation is that more than any other country past or present, we created a country where more people are free to use their minds and more freely pursue the implications of their ideas.

Sure, our leaders, our military, and sometimes the nation as a whole screws up.  I and others are quick to point these screw-ups out and sometimes we find ourselves wallowing in them.  But at the end of the day, unlike in the majority of countries in the world, these screw-ups are treated as such, talked about and debated, and dealt with rather than treated as the norm. 

Take the US military in an occupying role in Iraq.  Out of 100,000 or so people, you are going to have some criminals who commit criminal acts, even in the military.  The US army, unlike nearly every occupying army in history, generally treats its soldiers' crimes as crimes, and not as the inherent right of victors to rape and pillage.  US soldiers who have committed crimes in Iraq will generally go to jail, while worse malefactors in most armies, even the holier-than-thou UN peacekeepers who seem to be engaging in rape and white slavery around the world, generally go unpunished.  For all the crap the US military takes around the world, I bet you that if you took an honest vote on the question of "Which world army would you choose to occupy your country if you lost a war" most people would answer the US.  If for no other reason because, despite all the charges of imperialism, our armies eventually leave rather than remain on as lingering masters.

So tomorrow, I will start dealing out more crap to our leaders, to the administration, to Congress, to the SCOTUS, and most especially to most every bureaucrat who thinks they can better manage my business or my property.  But today I will step back and see the forest rather than the trees, and observe I am dang lucky to be an American.

For further thoughts, I refer you to my essay last year where I opined that many Americans miss the true greatness of America.  They tend to celebrate first the "right to vote", when in fact many people get to vote but few enjoy the freedoms we do.  The greatness of our country is in our protection of individual liberties and the rule of law.  And the great insight our country was founded with is that rights flow from the very fact of our humanity -- they are not granted to us by kings or Congress.  This last is perhaps most important, as I wrote:

At the end of the day, our freedoms in this country will only last so
long as we as a nation continue to hold to the principle that our
rights as individuals are our own, and the government's job is to
protect them, not to ration them.  Without this common belief, all the
other institutions we have discussed, from voting to the rule of law to
the Constitution, can be subverted in time

Now I am off to see Buckingham Palace.  If I see the Queen, would it be in bad taste to wish her a happy Fourth of July?

Thoughts on the Fourth of July

I was going to write a Fourth of July post, but it kept looking like my past Memorial Day effort, so, since I am in France and ready to go consume more food, I will take a shortcut this holiday:

Every Memorial Day, I am assaulted with various quotes from people
thanking the military for fighting and dying for our right to vote.  I
would bet that a depressing number of people in this country, when
asked what their most important freedom was, or what made America
great, would answer "the right to vote."

Now, don't get me wrong, the right to vote in a representative
democracy is great and has proven a moderately effective (but not
perfect) check on creeping statism.  A democracy, however, in and of
itself can still be tyrannical.  After all, Hitler was voted into power
in Germany, and without checks, majorities in a democracy would be free
to vote away anything it wanted from the minority - their property,
their liberty, even their life.   Even in the US, majorities vote to curtail the rights of minorities all the time, even when those minorities are not impinging on anyone else.  In the US today, 51% of the population have voted to take money and property of the other 49%.

In my mind, there are at least three founding principles of the
United States that are far more important than the right to vote:

  • The Rule of Law.  For about 99% of human
    history, political power has been exercised at the unchecked capricious
    whim of a few individuals.  The great innovation of western countries
    like the US, and before it England and the Netherlands, has been to
    subjugate the power of individuals to the rule of law.  Criminal
    justice, adjudication of disputes, contracts, etc. all operate based on
    a set of laws known to all in advance.

Today the rule of law actually faces a number of threats in this
country.  One of the most important aspects of the rule of law is that
legality (and illegality) can be objectively determined in a repeatable
manner from written and well-understood rules.  Unfortunately, the
massive regulatory and tax code structure in this country have created
a set of rules that are subject to change and interpretation constantly at
the whim of the regulatory body.  Every day, hundreds of people and
companies find themselves facing penalties due to an arbitrary
interpretation of obscure regulations (examples I have seen personally here).

  • Sanctity and Protection of Individual Rights.
    Laws, though, can be changed.  In a democracy, with a strong rule of
    law, we could still legally pass a law that said, say, that no one is
    allowed to criticize or hurt the feelings of a white person.  What
    prevents such laws from getting passed (except at major universities)
    is a protection of freedom of speech, or, more broadly, a recognition
    that individuals have certain rights that no law or vote may take
    away.  These rights are typically outlined in a Constitution, but are
    not worth the paper they are written on unless a society has the desire
    and will, not to mention the political processes in place, to protect
    these rights and make the Constitution real.   

Today,
even in the US, we do a pretty mixed job of protecting individual
rights, strongly protecting some (like free speech) while letting
others, such as property rights or freedom of association, slide. 

  • Government is our servant.
    The central, really very new concept on which this country was founded
    is that an individual's rights do not flow from government, but are
    inherent to man.  That government in fact only makes sense to the
    extent that it is our servant in the defense of our rights, rather than
    as the vessel from which these rights grudgingly flow.

Statists
of all stripes have tried to challenge this assumption over the last
100 years.   While their exact details have varied, every statist has
tried to create some larger entity to which the individual should be
subjugated:  the Proletariat, the common good, God, the master race.
They all hold in common that the government's job is to sacrifice one
group to another.  A common approach among modern statists is to create
a myriad of new non-rights to dilute and replace our fundamental rights
as individuals.  These new non-rights, such as the "right" to health
care, a job, education, or even recreation, for god sakes, are
meaningless in a free society, as they can't exist unless one
person is harnessed involuntarily to provide them to another person.
These non-rights are the exact opposite of freedom, and in fact require
enslavement and sacrifice of one group to another.

Don't believe that this is what statists are working for? The other day I saw this quote from the increasingly insane Lou Dobbs (Did you ever suspect that Lou got pulled into a room a while back by some strange power broker as did Howard Beale in Network?):

Our population explosion not only detracts from our quality of life but
threatens our liberties and freedom as well. As Cornell's Pimentel puts
it, "Back when we had, say, 100 million people in the U.S., when I
voted, I was one of 100 million people. Today, I am one of 285 million
people, so my vote and impact decreases with the increase in the
population." Pimentel adds, "So our freedoms also go down the drain."

What??
In a society with a rule of law protecting individual rights, how does
having a diluted vote reduce your freedom?  The only way it does, and therefore what must be in the author's head, is if
one looks at government as a statist tug of war, with various parties
jockeying for a majority so they can plunder the minority.  But in this
case, freedom and rule of law are already dead, so what does a
dilution of vote matter?  He is arguing that dilution of political
power reduces freedom -- this country was rightly founded on just the
opposite notion, that freedom requires a dilution of political power.

At the end of the day, our freedoms in this country will only last
so long as we as a nation continue to hold to the principle that our
rights as individuals are our own, and the government's job is to
protect them, not to ration them.  Without this common belief, all the
other institutions we have discussed, from voting to the rule of law to
the Constitution, can be subverted in time.

So to America's soldiers, thank you.  Thank you for protecting this
fragile and historically unique notion that men and women own
themselves and their lives.

I Don't Necesarily Treasure the Right to Vote

Every Memorial Day, I am assaulted with various quotes from people thanking the military for fighting and dying for our right to vote.  I would bet that a depressing number of people in this country, when asked what their most important freedom was, or what made America great, would answer "the right to vote."

Now, don't get me wrong, the right to vote in a representative democracy is great and has proven a moderately effective (but not perfect) check on creeping statism.  A democracy, however, in and of itself can still be tyrannical.  After all, Hitler was voted into power in Germany, and without checks, majorities in a democracy would be free to vote away anything it wanted from the minority - their property, their liberty, even their life.   Even in the US, majorities vote to curtail the rights of minorities all the time, even when those minorities are not impinging on anyone else.  In the US today, 51% of the population have voted to take money and property of the other 49%.

In my mind, there are at least three founding principles of the United States that are far more important than the right to vote:

  • The Rule of Law. For about 99% of human history, political power has been exercised at the unchecked capricious whim of a few individuals.  The great innovation of western countries like the US, and before it England and the Netherlands, has been to subjugate the power of individuals to the rule of law.  Criminal justice, adjudication of disputes, contracts, etc. all operate based on a set of laws known to all in advance.

Today the rule of law actually faces a number of threats in this country.  One of the most important aspects of the rule of law is that legality (and illegality) can be objectively determined in a repeatable
manner from written and well-understood rules.  Unfortunately, the massive regulatory and tax code structure in this country have created a set of rules that are subject to change and interpretation constantly at the whim of the regulatory body.  Every day, hundreds of people and companies find themselves facing penalties due to an arbitrary interpretation of obscure regulations (examples I have seen personally here).

  • Sanctity and Protection of Individual Rights.  Laws, though, can be changed.  In a democracy, with a strong rule of law, we could still legally pass a law that said, say, that no one is allowed to criticize or hurt the feelings of a white person.  What prevents such laws from getting passed (except at major universities) is a protection of freedom of speech, or, more broadly, a recognition that individuals have certain rights that no law or vote may take away.  These rights are typically outlined in a Constitution, but are not worth the paper they are written on unless a society has the desire and will, not to mention the political processes in place, to protect these rights and make the Constitution real.

Today, even in the US, we do a pretty mixed job of protecting individual rights, strongly protecting some (like free speech) while letting others, such as property rights or freedom of association, slide.

  • Government is our servant.  The central, really very new concept on which this country was founded is that an individual's rights do not flow from government, but are inherent to man.  That government in fact only makes sense to the extent that it is our servant in the defense of our rights, rather than as the vessel from which these rights grudgingly flow.

Statists of all stripes have tried to challenge this assumption over the last 100 years.   While their exact details have varied, every statist has tried to create some larger entity to which the individual should be subjugated:  the Proletariat, the common good, God, the master race.  They all hold in common that the government's job is to sacrifice one group to another.  A common approach among modern statists is to create a myriad of new non-rights to dilute and replace our fundamental rights as individuals.  These new non-rights, such as the "right" to health care, a job, education, or even recreation, for god sakes, are meaningless in a free society, as they can't exist unless one
person is harnessed involuntarily to provide them to another person.
These non-rights are the exact opposite of freedom, and in fact require
enslavement and sacrifice of one group to another.

Don't believe that this is what statists are working for? The other day I saw this quote from the increasingly insane Lou Dobbs (Did you ever suspect that Lou got pulled into a room a while back by some strange power broker as did Howard Beale in Network?):

Our population explosion not only detracts from our quality of life but threatens our liberties and freedom as well. As Cornell's Pimentel puts it, "Back when we had, say, 100 million people in the U.S., when I voted, I was one of 100 million people. Today, I am one of 285 million people, so my vote and impact decreases with the increase in the population." Pimentel adds, "So our freedoms also go down the drain."

What??

In a society with a rule of law protecting individual rights, how does having a diluted vote reduce your freedom?  The only way it does, and therefore what must be in the author's head, is if one looks at government as a statist tug of war, with various parties jockeying for a majority so they can plunder the minority.  But in this case, freedom and rule of law are already dead, so what does a dilution of vote matter?  He is arguing that dilution of political power reduces freedom -- this country was rightly founded on just the opposite notion, that freedom requires a dilution of political power.

At the end of the day, our freedoms in this country will only last so long as we as a nation continue to hold to the principle that our rights as individuals are our own, and the government's job is to protect them, not to ration them.  Without this common belief, all the other institutions we have discussed, from voting to the rule of law to the Constitution, can be subverted in time.

So to America's soldiers, thank you.  Thank you for protecting this fragile and historically unique notion that men and women own themselves and their lives.