East Coast Libertarian

Announcement - Moving on...

2008-06-26T16:41:00.002-04:00

From here on out, I will no longer be blogging at East Coast Libertarian. My time committments are such that trying to maintain a blog, consistently post and bring readers to this site is not something I can do as well as I would like to.

That said, I'll still be in the blogging business. I will be co-blogging at Publius Endures. I was honored to have been asked by Mark to join him over there and decided that it would be for the best. I love his work so to be associated with him and his site is frankly an honor.

To my readers, please update your blogrolls and feel free to join us for discussions over there. Thank you all.

Chief Justice Obama?

2008-05-29T13:51:00.004-04:00

Not that anyone should ever take a politician at his word, but I found this statement rich in irony. From Senator Obama:

“I would call my attorney general in and review every single executive order issued by George Bush and overturn those laws or executive decisions that I feel violate the constitution,” said Obama.

New boss...same as the old boss?

Executive orders may be one thing, but last I checked, I do not recall learning that it is the role of the Executive Branch to overturn laws the President deems to be unconstitutional. I guess anything's possible this day and age.

And no disrespect to Obsidian Wings, but that is not a statement that should put a smile on anyone's face. It's a politician's pandering at its worst.

Another reason why I will never vote for the man.

For what it's worth, let's just say I have some disagreement's with the Bush Administration's constitutional positions. Rather than explain in detail, this paper by The Cato Institute should suffice.

Hat tip: Publius Endures

Question of the Day

2008-05-21T16:00:00.005-04:00

Is the suggestion that one self-fornicate an appropriate response to this drivel? Maybe I should email Phillip Klein over at The American Spectator, only I don't like wasting time with idiots.

No doubt to the disappointment of some libertarians, all three candidates took a stand against kiddie porn.

Just asking.

Hat tip to The Agitator, whose comeback was rather enjoyable.

Now, it's time for my obligatory post on the judicial activism discussion...

2008-05-20T11:15:00.009-04:00

Mark at Publius Endures has written a series of posts (here, here, and here) that not only defend the California Supreme Court decision but the proper role of the judiciary in light of the sort of criticisms of "judicial activism" and "legislating from the bench" that are as predictable as they are dull and devoid of any real meaning. While I would call all of these posts "must reads", the second post, which explains in plain English what the judiciary does, should be mandatory reading for those before they put a foot in mouth with hopelessly weak arguments about the tyranny of the judiciary. Seriously.

Marc Moore ("MM") at Poligazette responds to Mark's assertions here. The third link above is Mark's response to Marc. It is a civil and interesting exchange. I have some comments and disagreements with Marc Moore's commentary.

I would have said that the judiciary’s primary function was to defend the Constitution against increasing irrelevancy in the face of excessive expansions by the other two branches. To define and defend the fundamental laws and values of the nation...

and later...

Assuming that we accept Mark’s assertion that the judiciary’s prime directive is to defend the legislatively defenseless there is still a question about how much leeway judges should have - or use, to put it a different way - to redefine societal norms.

MM is concerned about the judicial discretion afforded to judges based on Mark's view of the judiciary in the context of "redefining" societal norms, yet does not acknowledge the same problems in his own definition. I also wonder why his view of the role of the judiciary excludes state actions, but there is little need to press that issue for now.

By citing "increasing irrelevancy", as opposed to a strict enforcement of constitutional boundaries, he is placing in the hands of judges the discretion to determine what is relevant, what is not relevant and how it should be defined when applied to actual cases and controversies. Since we are already dealing with an irrelevant document, the argument goes, let us just do our best to enforce the outer boundaries and give judges the responsibility to enforce it. Depending on whether the fundamental value is respecting the doctrine of enumerated powers or deferring to democratic process in each specific case brings about a different set of inconsistent results. No wonder that the appointment of Supreme Court justices is such a political affair!!

To MM second point about judges redefining "societal norms", that is not the realm of judges per se and when they go beyond their vested powers to do so, as it can be argued they did with the busing case he cites, it is more than a little problemmatic. Fair point.

However, to quote KipEsquire, commenting in Mark's latest post:

"Federalism" -- like "democracy" -- is only noble to the extent that it respects individual rights. To the extent that it is invoked to infringe rights, it is evil -- and utterly subject to and deserving of negation by courts.

Setting aside the fact that "societal norms" becomes a "defined by who and by what standard?" problem that screams "Kip's Law" (the definition and numerous examples here), when "societal norms" are enforced into legal prohibitions restricting activities involving consenting individuals and violating the rights of no one, it is an arbitrary, irrational and illegitimate action on behalf of a democratic majority which saw fit to violate the rights of individuals under the rubric of "common good", "social order" or a "right to self govern". In these instances, it is absolutely the role of judges, when a case or controversy arises, to strike down these laws. If the question is individual liberty on one hand and striking down a "societal norm" that violates the rights of other individuals despite its status as a traditional practice, liberty should prevail. Always.

The Supreme Court, in overturning the same-sex sodomy law in Lawrence v Texas, did not recognize a "right to same-sex sodomy" as conservatives may have us believe, nor did it attempt to "redefine a social norm". Rather, the Court recognized, correctly, that there are clear limits on the ability of democratic majorities to put their personal preferences about how the rest of us should behave into law, especially when the law attempts to prohibit otherwise rightful conduct (rightful being not violating the rights of others). At times, reading conservative commentary on this case and others that provide a check on unbridled majoritarianism, I wonder whether conservatives confuse the concepts of "redefining social norms" and reminding the people that the "right to govern over others" has its limitations.

On the matter of judicial activism, MM believes that the California case is small potatoes by comparison in terms of "activism from the bench" but provides neither a defintion of activism (unless we look to his example of the busing case as guidance) or any support to the claim of rampant activism he believes exist.

In the context of a blawgosphere debate between Randy Barnett, Stephen Bainbridge and others approximately four years ago, Randy Barnett blogged on the subject of "judicial activism". The whole post is a fascinating read, but I will only cite this portion:

...what exactly IS judicial activism? Unfortunately, apart from his reference to "democratic values," Professor Bainbridge does not tell us, but given that he has chosen to single me out let me ask:

-Is discovering and enforcing the original meaning of the Ninth Amendment activism? Or is it activism to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in his infamous confirmation testimony?

-Is discovering and enforcing the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment activist? Or is it activist to characterize this inconvenient piece of text as an "ink blot" on the Constitution, as Robert Bork did in the Tempting of America?

-Is insisting on the original meaning of the Commerce Clause and Necessary and Proper Clause activism? Or is it activist to ignore the limitations imposed on Congress by these provisions, as Robert Bork all but did in The Tempting of America?

-Is it activism to construct a doctrine to define the wholly unenumerated "police power" of states in a manner that is consistent with the limits on state power enumerated in the Fourteenth Amendment? Or is it activism to give states unchecked power, notwithstanding the Fourteenth Amendment?

-Surely Professor Bainbridge would not encourage conservatives to remain as uninformed of the meaning of all these crucial provisions as Robert Bork proved to be in the last book in which he opined on the Constitution. Or do they all just happen to have no discernable meaning, and no constitutional purpose, despite what they apparently say?

-Judicial "activism," as usually used, is entirely empty of meaning. Typically, it refers to judicial nullification of statutes with which the speaker disagrees, without telling us why the judges were in error. Without a conception of "activism," we just do not know exactly why Professor Bainbridge is offended.

If MM wishes to elaborate on his theories of "judicial activism" and what he believes the proper role of the judiciary should be and defend the legitimacy of his theories (or his overall definition of legitimacy), he'll have to provide more detail. In Marc's defense, his focus seemed be on other points put forth by (the other) Mark regarding conservative disdain for the Constitution. I have little to say there, as the points Mark make are pretty much similar to my own.

Bingo...

2008-05-14T09:04:00.003-04:00

Via Tim Lee, discussing school choice and voucher programs:

What we have, then, is a program that offers more choices to low-income parents, is extremely popular with those parents (the Milwaukee program has been repeatedly expanded to make room for rising demand), saves the state money (because the voucher is almost always for a significantly smaller amount than the average per-pupil cost of public schools), and seems to perform no worse than the more expensive public school option. In a rational world, a program that performs no worse than the program it replaced, is popular with its target audience, and saves taxpayers money would be regarded as a modest success that ought to be replicated elsewhere. Yet in the bizarro world of education policy, such the fact that voucher and public schools seem to perform similarly is taken as evidence that vouchers are fatally flawed and ought to be abandoned. It’s really odd.

I could not have said it better myself. I have noticed that when given a situation where you have on one hand a government-run program or law (i.e. minimum wage law) and choice on the other (school choice or freedom of contract) and little or negative net difference between the two as far as impact, even if freedom gets us to the same place at the end of the day, the burden is on us to explain why we should have the ability to choose and not have the government do it for us.

Bluntly put, Tim's comment exemplifies the Left's aversion to the freedom of choice. It isn't limited to education policy either.

So what happened?

2008-05-12T16:19:00.002-04:00

Lots of things really.

Before I go on, I want to extend my gratitude to Donald Douglas at American Power, Gayle at the Dragon Lady's Den, Mark at Publius Endures, and Patrick at Driving Out the Snakes for their kind words of encouragement. It meant a lot. Thank you.

Things have turned out just fine, as I thought they would; however, I did not expect things to turn around as quickly as they did. Some background:

I work in the commercial real estate business on the capital markets side. I spent the last three years at one of the major Wall Street banks working in the capacity of advising on major institutional real estate transactions (I was more of a junior level person at that firm). I had a front row seat to the sorts of major transactions that were getting executed whether in the capacity of single asset sales ($1 billion plus transactions in New York City at very high per square foot prices), major securitizations of commercial real estate mortgages, bank loans, residential mortgages, etc. etc. and some of the largest mergers and acquisitions transactions that have ever taken place, driven largely in part by Wall Street's ability to finance these transactions which was driven in part by the demand for securitized paper. I learned more in those three years than I did in my first nine, by several multiples.

I also watched the whole thing hit the skids (I am hesitant to declare that the whole operation has fallen apart because there will always be markets for securitized fixed income products in my opinion (even with those markets in the shape they are in now, investors in that sector are looking to buy existing paper and take advantage of perceived dislocations in those markets). I was caught up in the layoffs. I had friends who got laid off and I have friends who are constantly worrying about whether or not they are going to be next. A significantly slower deal flow adds to the anxiety.

I really feel lucky. I was laid off on March 31. I was going to be alright for a while, as I received a rather generous severance package, but as luck would have it, on April 3, I received a job offer with another commercial real estate company. In hindsight, the second I walked out of the interview the Thursday before, the second I knew that I would receive an offer from the company, only I wasn't sure whether it would be a good one. I did accept the offer but because of my severance agreement, I was precluded from starting another job until May 1st. Basically, within 3 days of being laid off, I had accepted a job and got to take a month off of work. I can't complain about that, although it got old being off of work for so long.

I hope no one takes this as anecdotal evidence that things are good. I just happened to find a situation that matched my skillset to a "T" with a company that has a mandate to grow, selectively increase headcount and ride out this market downturn. The fact that I have a real estate-based skillset as opposed to a loan underwriting skillset allowed me to stand out against others whom I was competing with in a job market that is, at least in my end of the business, incredibly soft. While I am not going to paint a gloom-and-doom picture for anyone, there are a lot of things that concern me right now.

I've spent the last month more or less off the reservation. I haven't had time to blog. My days have been very busy and, as an avid gamer and flight simmer, I tend to spend my evenings in the skies engaging in combat in WWII-era fighter planes (and eagerly awaiting the release of the next generation combat flight sim that will recreate the Battle of Britain). I'll try to emerge from my slumber and increase my presence a bit, but for now, all is well and thanks again for the concern.

About that other thing, there's that old saying "if at first you don't succeed..."

:)

Update

2008-03-19T11:37:00.002-04:00

March has not been a good month for me for many reasons.

First, as expected (at least for the most part), I was not able to avoid the axe on Wall Street. Anyone with half a clue who has been following the capital markets since last summer understands the situation, understands that things have only gotten worse, especially over the last 45-60 days. I worked in the commercial real estate space (private market dispositions) so I have had a front row seat to the mess that has become of attempting to finance real estate transactions, especially via Wall Street, where spreads for loans that will be pooled into commercial mortgage backed securities are probably 1% to 2% higher than what life companies can lend at (i.e. a 9% mortgage vs. a 7% mortgage).

I am not too worried, as the package I'm receiving on my way out will hold me over for a while. In addition, as I come from a commercial real estate background, as opposed to an investment banking or financing background, I am starting to look for opportunities on the investing side of the business and my skill set fits in very well there. The job market's a bit soft but I'm seeing potential opportunities.

Second, my wife and I were expecting and she miscarried. Even if she was in the very early stages (7 weeks or so), it never makes the news easy to handle, especially after people have been told the good news. Going back and giving people the bad news is akin to rubbing salt in a wound (not as much to me but certainly my wife). Shit happens.

My overall mood has been good, but my motivation to write has been a bit tempered. My energies have been focused elsewhere and my mind is not on the plethora of topics I have started to write about but never found the will to finish (i.e. FISA/PAA idiocy, Spitzer and prostitution, foreign policy, law, etc. etc.). I do intend to keep this going but for now I have some matters to tend to.

I'll keep my one and a half readers updated. :)

I should thank NASA for my guitars?

2008-02-28T11:49:00.005-05:00

That's odd. To think that for all of these years, I have wasted time thanking, among others, people like Les Paul, Leo Fender, Jim Marshall, Ted McCarty and Seymour Duncan (there are many others as well) for their contributions towards guitars, especially with the contributions over the last 50 to 60 years which are too numerous to list.

I read about this over at Kip's blog. Because I am a bit of a guitar aficionado (and an admitted snob), so I went on over to the NASA site to check things out.

I guess the good news is that I do learn something new every day. I was not aware that guitars manufactured under the Ovation brand did have a link to NASA. How interesting. However, all the aeronautical engineering, fiberglass bodies and broken windows* that may have went into this so-called NASA contribution does not change the fact that the best tones come from quality woods (mahogany, koa, rosewood).

Despite my tone snobbery, let us not lose sight of the big picture that Kip explains so well:

- NASA is not a public good, nor will it ever be...

- Because NASA is funded via taxation, every dollar that is used to fund NASA is a dollar forcibly removed from private individuals, making it more difficult for the Leo Fenders, Les Pauls and Jim Marshalls of the world to create/invent/modify something that a market for that product may call "neat-o".

* if you do not understand the meaning of the title used in Kip's post, it is worth following the link he provides.

Not about the truth, huh?

2008-02-21T14:47:00.003-05:00

I was in a bit of an evolution-creationism discussion earlier today, which is somewhat funny since my scientific knowledge on these matters is not close to what it should be. In the context of that discussion, here is a comment that was in a response to me:

Us Christians are ONLY told to SHARE the Gospel NOT CONVINCE anyone that it is true.

While people can hold whatever religious views they wish to hold so long as they are not violating the rights of other individuals, in the context of the discussion at hand, I responded:

Yet, you seek to "disprove" science by pointing out its gaps, which, if such a futile tactic actually worked, would leave only one default explanation for the origins of the world. You're right though. You are not out to convince that your version of things is true, only every other possible explanation is false. Gee, sleazy telemarketers are more subtle than that.

I thought God hated liars and hypocrites, or is your kind of hypocrite somehow exempt from His wrath?

Even in the broader context, I do not believe this statement to be true. I spent fourteen years living in the Midwest and my dealings with fundamentalist Christians were such that everything about religion was about seeing the truth as they see it. My experiences were more inline with what Andrew Sullivan discussed in The Conservative Soul and the fundamentalist mindset than a friendly, cordial exchange of ideas.* As I said, sleazy telemarketers are more subtle.

I was also smeared (at least I believe I was) as an anti-Christian bigot, which is funny because I always thought that the difference between people like the person I was having the discussion with and myself is that I am more than capable of leaving well enough alone and not using the force of government to soothe my aching feelings. I'm sure my gay friends will know exactly what I'm referring to, although I wish they didn't have to.

* For what it's worth, I recognize that there exceptions.

Be Back to Blogging Soon...

2008-02-20T14:58:00.002-05:00

I have a million things going on so my blogging will be a bit sporadic for the near-term. Hope all is well.

The Pot Calling the Kettle Deranged Indeed...

2008-02-12T10:29:00.004-05:00

Americaneocon over at American Power attempts to pillory Andrew McCarthy's recent article "McCain Estrangement Syndrome". He never addresses any of the substantive points of McCarthy's legal arguments, criticizes McCarthy for "having an easy out" and, in general, proves McCarthy's point in the third paragraph about not only the pot calling the kettle deranged, but the fact that such attempts in doing so are futile.

Rather than fisk the McCarthy article, I will summarize his three main points below:

First, McCarthy explains his discomfort towards McCain as being capable of appointing conservative judges. McCarthy correctly notes that McCain has been at odds with judicial conservatives on a number of different issues (the First Amendment and the Geneva Conventions being two of them - as one can gather by reviewing the relevant case law). On the second page of McCarthy's article, there is a whole litany of other items that are addressed.

Second, McCarthy suggests that there is a valid conservative case to rejecting John McCain as a presidential nominee by suggesting a Republican-controlled Congress would fare better if set against a Democrat president. That issue, however is moot since McCarthy himself rejects this argument on the grounds that McCain would serve far better as commander-in-chief than a President Obama or a President Clinton could. Given that this carries more weight (barely) than his other concerns, it is obvious to me that he would support McCain in November.

His last point is a point that some of the more rational and reasonable McCain supporters have made: without the so-called "irrational right", it is uncertain that McCain can win a general election. I am not going to predict whether or not McCarthy is correct here, but it seems like winning elections does require a bit of coalition building.

What does McCarthy get for his troubles? Well, let us start with the subject of McCain's deviations from the principles held by judicial conservatives as a matter of constitutional law:

But who does this help? Certainly not Mike Huckebee, who was the target of the irrational right around the time of his big win in the Iowa caucuses. Remember, Huck's the governor who wanted illegal aliens to attend college. Aghast, an open-borders recidivist!!

So what's McCarthy doing? He's turning the psychological tables.

Obviously, the arguments elucidating McCain Derangement Syndrome have been compelling, so the Malkin-tents and the Rush-bots need to fight fire with fire.

McCarthy all but states in the article that he would support McCain in an election against Obama or Clinton so he is not trying to help Huckabee (in fact, he criticizes Huckabee). Turning the psychological tables? How? Dr. Sanity's link, while interesting, certainly would not apply to arguments like the ones made by McCarthy because McCarthy has not, anywhere (and I dare anyone to show me otherwise), taken anything close to the more absurd positions taken by conservative pundits like Hannity, Levin, Malkin, Limbaugh, etc.

All of the ranting and raving about psychological ploys does not change the fact that this is a major issue amongst legal conservatives, who for decades have building a sizable legal establishment and wish not to see their efforts tossed aside as easily as McCain tossed aside the First Amendment. (Slate's Dahlia Lithwich has more here) It strains any and all credibility to suggest that the arguments made by legal conservatives, who understand the stakes if more moderate or liberal nominees are appointed to the Court, are a defense against the highly persuasive arguments for "McCain Derangement Syndrome". There are consequences here that will outlast a McCain presidency, in the event there is one. Of course, if I was a legal conservative (I'm not), I don't think that response would have done anything to placate my own concerns.

Going on to the next part, McCarthy suggests that he would vote for McCain for reasons explained above. Americaneocon's response?

So, that it? It's a no brainer that conservatives have a rational, principled position to take in continued oppostion of McCain? But in the next breath they have the easy out in backing the Arizona Senator because of the war.

Aha!! There it is, the Holy Grail!!

Base conservatives can continue to rail away at McCain's apostasies, while simultaneously they can concede that things must be resolved in favor of the war!

This is not estrangement, but further derangement. There's no such thing as the perfect Republican presidential candidate.

Reagan certainly wasn't.

Aha!!! There it is, the Holy Strawman...

McCarthy never once speaks of the perfect candidate (Reagan is neither mentioned nor implied), never claims that he would take his ball and go home if John McCain was the nominee for the GOP (as others have) and appears to do what many people have, in perhaps their own peculiar ways, have wanted conservatives critical of McCain to do: support him.

Obviously, that's not good enough. One must not only be committed to voting for him, but also committed to his form of conservatism and view it as a "great" form of conservatism:

But maybe there's hope here, as McCarthy perhaps reveals the seeds of clarity in his argument. Perchance, with this prompt, anti-McCainiacs can start pumping up the benefits of a McCain presidency, while realizing that his conservative bona fides are just a strong as many of his great Republican predecessors.

McCarthy's argument is as clear as day: 1) there are reasons to believe McCain is faithful to the legal principles of judicial conservatism; 2) there are principled and rational reasons to oppose voting for McCain in a general election; 3) it would be unwise to engage in (2) because McCain is arguably the best suited candidate to address the national security concerns with respect to the war on terror.

Has Americaneocon addressed McCarthy's arguments? Not at all. He dismisses him as deranged. He sets up strawman to refute arguments McCarthy does not make. He goes on to rant and rave about Anthony Kennedy, movement conservatives who are completely and utterly irrelevant to the topic of constitutional law and judicial appointments, which centered on conservative interpretations of law as opposed to movement conservatism (and succeeding to lump McCarthy in with that group).

Get over yourself. Millions of voters, many of whom will have a wide range of disagreements with the man on the issues and on whether or not he represents the sort of bonafides that voters want to see in a conservative candidate, will vote for him. They will not now, if ever, view McCain in the same mold as Reagan (who is not held as perfect - another strawman). The best you can possibly do is get those people to vote for McCain and hash out the disagreements later. If you don't like McCarthy's legal arguments, try a substantive response. Simple as that.

Of course, going Lew Rockwell on people and attacking them for not seeing the ideological greatness of your own preferred candidate (a page out of the paleolibertarian playbook when dealing with us Ron Paul critics - I will not provide links) proves McCarthy right.

It is almost ironic that this neoconservative, who has skewered Paul for months and taken a couple of less-than-impressive cheap shots towards libertarians, has taken a page out of the paleolibertarian playbook and attempts to excorciate someone who all but said he would support McCain for not being supportive enough. It's enough to make Justin Raimondo proud.

It would be funny if it wasn't so sad. If you'll excuse me, I must go and get fitted for a straightjacket. I hope they have them in black.

Michael Medved on McCain and Free Speech

2008-02-04T10:12:00.001-05:00

Oh boy. McCain Derangement Syndrome may be a bug irritating the backside of some of McCain's supporters, but it hardly is a worthwhile excuse to explain unbridled stupidity.

Micheal Medved does not disappoint (via Sparks from the Anvil). Here's an excerpt. The whole thing is in his post.

TRUTH: McCain-Feingold was a piece of useless, misguided legislation but it’s done no serious damage to the country, the constitution or the conservative pro-life cause. After nearly seven years on the books, robust and impassioned discussion of political issues and candidates is more vibrant and free-wheeling than ever. The pro-life movement (with McCain’s enthusiastic support) has made substantial progress in the last seven years, changing minds and hearts and driving abortion rates to their lowest point in 29 years—unimpeded by McCain-Feingold.

I can boil Medved's analysis down to the following theme using a crude utiltarianism: McCain-Feingold - stupid but not so bad. Broadcaster Freedom Act - Great because the Fairness Doctrine is bad. Net-net, he is a protector of free speech.

From a political point of view, the world is full of idiots who can rationalize their to whatever policy position they prefer. Perhaps I have been guilty of that from time to time.

That said, "no law" means "no law". That is how the law works. It is no less illegal for some illegal alien to cross over the Rio Grande in our country in violation of the laws of our country than it is for Congress to pass a law that clearly abridges political speech. McCain (and a whole lot of others including the idiot President who signed it) crossed that line. All the excuse making and rationalization will not change the fact that it disrespects the Constitution. If that does not bother you, then so be it. I will strongly disagree with that position but at least be honest about it.

Furthermore, Medved's shameless shilling really got awful:

It’s important to me as a talk show host and as an American that John McCain has already stood up to defend conservative talk radio even while its most prominent practitioners used their microphones to defame the man every day. A lesser politician might easily succumb to the temptation to deploy government power – or even the threat of government power – to silence the chorus of hysterically strident voices raised against him. McCain’s refusal to do so says something powerful about his character.

Defamation is a crime. You want to clear that hurdle by criticizing a politican? Good luck. (see NY Times v Sullivan). Furthermore, am I to believe that is a testament to a morally defective politician's character that, despite criticism that "defames him" that he is strong enough to turn away the urge to use the power of government against those critics? Please. First and foremost, it would be political suicide to do so and even a half-wit can figure that out. Second, such an act would certainly run into a brick wall with the First Amendment, that is, if the political process did not derail it first. Who is he kidding?

If conservative supporters of John McCain find this so-called McCain Derangement Syndrome a bit of a pain in the ass, so be it. I'm no fan of the Coulters, Malkins, Levins and Limbaughs of the world so their histrionics will not have a sympathetic ear on this end. However, I would urge a bit of caution. Putting lipstick on a pig won't turn that pig into the supermodel of your dreams or some other creation in your own image. All you have is the same nasty, smelly pig with lipstick on it.

Medved's analysis lacks substance. The merits of his arguments are weak and resemble the sort of excuse making and crude consequentialism relativists use to justify their own preferred positions on issues. Call me unconvinced.

Any Call of Duty 4 Players?

2008-02-03T17:08:00.001-05:00

Any of my readers?

PC or XBox?

I just got hooked on the PC version and have played the multiplayer rather extensively over the past two nights. Lots of fun!

Just saying...

Evil Economists and Moral Repugnance...

2008-01-31T13:16:00.000-05:00

Wow. From a NYTimes article:

“The problem is not that economists are unreasonable people, it’s that they’re evil people,” he said. “They work in a different moral universe. The burden of proof is on someone who wants to include” a transaction in the marketplace... - Paul Bloom, Professor of Psychology, Yale University

I ought to send this to the Weekly Standard so they can add another talking point against the evil Milton "Freedman".

Going beyond evil economists...

I suppose I operate in a different moral universe also. I do not believe that the burden of proof is on someone who wants to include a transaction in the marketplace. We're in Kip's Law territory now. By whose standard is the transaction beneficial? What burden has to be met? Who gets to decide what that burden is? In practice, this is the realm of unbridled democratic majoritarianism and the belief that judicial review should simply defer to these decisions. Not surprisingly, my moral repugnance alarm bells are ringing.

If people want to predict what's repugnant or not, then so be it. However, it is a non-sequitir. Bloom's hubris notwithstanding, moral repugnance is not a negative externality, as defined as having one's rights violated through the actions of another. The fact Person A engages in Activity B that Person C finds offensive but in no way violates his or rights does not give C the right to go to Legislator D, who, along with other like-minded legislators, passes Law E that prohibits A from engaging in B and placates C's sensibilities.

It does not logically follow that because Activity B can not be prohibited by law on the basis that such actions do not violate the rights of others, that is morally acceptable. The decision to choose to engage in Activity B or find Activity B morally taboo belongs with the individual. It is not up to us to "prove" our worth. It is up to government to prove necessity and propriety.

H/T: Greg Mankiw

Will Wilkinson on "National Greatness Conservatism"

2008-01-28T14:36:00.000-05:00

Even if the tone has rubbed some people the wrong way, I did take some pleasure in this:

I am more and more coming to the conclusion that National Greatness Conservatism, like all quasi-fascist movements, is based on a weird romantic teenager’s fantasies about what it means to be a grown up. The fundamental moral decency of liberal individualism seems, to the unserious mind that thinks itself serious, completely insipid next to very exciting big boy ideas about shared struggle, sacrifice, duty, glory, virtue, and (most of all) power. And reading Aristotle in Greek.

and this:

National Greatness Conservatism is like a grotesque wood-paneled den stuffed with animal heads, mounted swords, garish carpets, and a giant roaring fire. Only the most vulgar tuck in next to that fire, light a fat cigar, and think they’ve really got it all figured out. But I’m afraid that’s pretty much the kind of thing you get at the Committee on Social Thought. If you declaim the importance of virtue loudly enough, you don’t have to actually think.

This is was in response to another absurd contribution to the "libertarian-bashing on things libertarians have nothing to do with" mantra by the esteemed idiots at the Weekly Standard who were too f---ing stupid to notice that Milton "Freedman" was mispelled. You'd think someone would have caught that.

It's not without its criticism but I found it amusing nonetheless, and its fairly representative of my disdain toward big-government conservatism and its contempt towards individualism.

Just in case anyone gets the wrong idea, it is not virtue, honor, duty or sacrifice I have a problem with. It is nationalism and collectivism and the perversions that can result from both. That should be evident but people can take what I say the wrong way.

A Special Thanks to Publius Endures...

2008-01-25T10:55:00.000-05:00

for the Carol Moore links that describes some of the history of movement libertarianism and how it all relates to the situation with Ron Paul, etc.

As someone who was rather oblivious to movement libertarianism up until about six months ago (although the deep divides were made much clearer recently), I found her perspective valuable.

Mark's blog post with the Carol Moore articles is here. If you've never read Publius Endures, you should. Therefore, I am not posting direct links to Carol's articles. How coercive ;)

As a sidenote, does anyone know where I can find Lew Rockwell's article on paleolibertarianism (From 1990)? Liberty's online archives date back to 2002. Maybe I'll actually have to go to a library. Eek. :)

With all due respect to Justin Logan...

2008-01-24T12:55:00.000-05:00

he's being far too nice when he says...

I’m loath to predict political outcomes. Maybe as a political matter this sort of thing will sell. But abandoning conservative economic principles in the pursuit of political success and simultaneously indulging the worst jingoist excesses of neoconservatism is a positively revolting platform. Looking at the slate of candidates for the Republican presidential nomination, maybe this new welfare-warfare fusionism has legs. But it certainly doesn’t offer very much to libertarians.

It offers nothing. Nothing at all.

If I vote for the GOP candidate in November, it would be to keep the Clintons out of the White House. It would have nothing to do with unity towards a GOP I find so repugnant that if the whole movement flushed itself down the toilet, I wouldn't lose a second of sleep over it.

I don't know what a Quantum of Solace is supposed to be...

2008-01-24T10:36:00.000-05:00

...other than the new title of the next James Bond movie. That's good enough for me. Unfortuneately, November is a ways away, but there's a Batman movie waiting in the wings as well (no pun intended).

I thought Casino Royale kicked ass, probably a top-five movie out of all the Bond films. The "allow me..." line pretty much did it for me, although I liked watching a Bond that seemed to be a bit mentally unstable at times. Daniel Craig did a great job with the role and I hope he makes more of them (FWIW, I also liked his character best in Munich).

I also hope Judy Dench gets a lot of material to work with as M.

Going for term number three...

2008-01-23T21:26:00.000-05:00

Andrew Sullivan writes (referring to Bill Clinton):

It really is time to acknowledge that Clinton is running for a third term - in flagrant violation of the 22d Amendment. He's fighting for unelected power by proxy - just as his wife fought for hers in 1992 and 1996. Their deal is now explicit. And their goal - four terms between them - is in their grasp.

Even I think the first sentence is a bit of an exaggeration, perhaps it's not too unreasonable to discuss the Clintons with respect to the 22nd Amendment. David Boaz did have this to say over at Cato-at-Liberty:

Legally, of course, Hillary Rodham Clinton has not previously served as president. She is no less eligible for election to the presidency than was George W. Bush, the son of a president. But the intent of the 22nd Amendment, the spirit of a presidential term limit, is to ensure that no one person holds that vast power for so long. When the federal government and the presidency were vastly less powerful than today, George Washington thought that a republic should not be led by one man for more than eight years. His example set a standard for the American republic until that republic encountered the powerlust of Franklin D. Roosevelt, after which we made George Washington’s example a legal rule.

Even if I may slightly disagree with Andrew's constitutional interpretation, I share his concern towards a third Clinton term (yes, I think that is a very appropriate way to put it) as well as his contempt towards Bill Clinton. David's comments are also a bit alarming to me considering we have a similar (if not greater) sort of powerlust and a federal government that is exponentially more powerful than it was in 1932.

If there's anyone that could force me to vote for a Republican in November, it would be a Clinton. Trust me, that says a lot.

Wrestling with pigs...

2008-01-21T17:27:00.000-05:00

Apparently, a blogger over at Lew Rockwell decided that to criticize libertarians by digging up from the dead two of the most debunked and, in my opinion, brain-dead criticisms of libertarians: 1) atomistic individualism and 2) libertinism. Going further, he blames the libertines for equating libertarianism to "heroin addict, prostitute and private military contractor, not peace, free markets and local communities."

There's little to say on the libertine/atomistic individual nonsense , as I think Murray Rothbard covered that ground quite well (and you'd think the bloggers at Rockwell's site would know this, especially since this article was on the main page of the Mises Institute site about a week ago or so). Furthermore, in one of my favorite contributions to the fantastic collection of essays in George Carey's Freedom and Virtue, Murray Rothbard writes:

If the fusionist position is simply the libertarian position on freedom-and-virtue, then what of the fusionist critique of libertarianism: that it ignores virtue altogether in the pursuit of freedom (or, at least, ignores virtue insofar as it goes beyond freedom itself)? Much of this critique rests on a fundamental misunderstanding of what libertarianism is all about. Thus, Professor John P. East speaks of the traditionalist concern about contemporary libertarianism (which he, as a fusionist, seems to share): "of taking a valid point, in this case the importance of the individual and his rights, and elevating it to the first principle of life with all other considerations excluded".* Even Frank Meyer, uncharacteristically and in the heat of the ideological fray, identified libertarianism as a "libertine impulse [which] . . . raises the freedom of the individual . . . to the status of an absolute end." But this is an absurd straw-man. Only an imbecile could ever hold that freedom is the highest or indeed the only principle or end of life. Freedom is necessary to, and integral with, the achievement of any of man's ends. The libertarian agrees completely with Acton and with Meyer himself that freedom is the highest political end, not the highest end of man per se; indeed, it would be difficult to render such a position in any sense meaningful or coherent.

Maybe the libertine criticism, as weak as it is, is not directed specifically towards people like me because the first thing I think of when I think of libertarian is individual liberty. Freedom, peace and free markets flow from that, but "local communities"? Like Mark, at Publius Endures, I see the sort of majoritarian difficulty that James Madison so eloquently addressed in Federalist 10, as opposed to a healthy respect for both federalism and the proper role of the state police power, especially when I read complaints about a community's right "to teach intelligent design in their schools". Of course, when "their" schools are government schools (and not "their" schools in the private property sense), it is the state that is teaching religion masked as science, and yes, that is not a valid role of the police power.** If "their" schools were privately funded institutions, I do not know of a single libertarian that would support using the state to prohibit the teaching of intelligent design.

I should also mention, as if it needs to be said, that individuals have rights. "Community rights" should be viewed simply as the collective sum of individual rights and nothing more. To suggest otherwise is collectivism. Libertarianism and collectivism mix about as well as drinking and driving.

More thoughts from Tim Sandefur.

For some background on my choice of a title, please read David Boaz.

** Some would make that argument for public education. I'm avoiding that discussion for the time being.

Random thoughts on a Friday Morning...

2008-01-18T10:09:00.000-05:00

Julian Sanchez writes a follow-up blog post regarding some of the comments and criticisms he received by way of the article at Reason co-authored with David Weigel. Sanchez does a good job debunking some of those criticism, and shares many of my sentiments. There's little reason to fisk it since we're pretty much in agreement (although he's far too kind to FormerBeltwayWonk, whose cheap shots at "cosmo-orange-tarians" or whatever the hell term he/she/it's using are absurd (see here)). Julian addresses the "cosmotarian cabal" conspiracy schtick nicely so there's no point in me doing it.

Julian makes a point that I'll reiterate because it's one I've had about all of this. In 1981, I was a third-grader who was the shortest kid in his class and spent my recesses being chased by all the evil little schoolgirls. The Rothbard-Crane split and the squabbling between the Cato and Mises/Rockwell factions never crossed my mind. Hell, when I first discovered libertarian political theory and began to embrace it as my own, I wasn't even aware of these squabbles. Granted, I spent a lot more time perusing the Cato blogs and Reason online than I did Mises or Rockwell although I did and still do visit both of those sites.

I have little use for petty squabbles and less patience for some of the neocon-conspiracy theory mongering that come from certain people. The big picture for me is spreading the belief that liberty matters. What perhaps upset me most about the Reason article was learning that hatred for the state (more specifically, the central government) became more important than the idea of liberty. Like it or not, I find it unacceptable, and it shouldn't take a Beltway-Libertarian-Neocon-Warmonger conspiracy to have to come to that conclusion.

I enjoyed this as much as it pissed me off...

2008-01-17T11:53:00.000-05:00

I am way late to the game in getting a post up about Ezra Levant. I was inspired by Levant's closing statements most and it strong enough to cut through the sheer outrage I was feeling towards the Canadian government and anyone who believes this is how governments should monitor their citizens. I'm still outraged for that matter.

A system of law that protects our rights is legitimate. A system of law that panders to the warm and fuzzy in the name of socially engineering a society where no one ever gets mad at each other is both illegitimate and complete B.S.

Hat tip to Fusionist Libertarian for reminding me to put something up about this and every other blogger who covered this no matter what your political affiliation.

This will certainly make some friends...

2008-01-16T15:06:00.001-05:00

An article written by Julian Sanchez and David Weigel discussing who wrote the newletters going out under Ron Paul's name is available at Reason.

I won't spoil the surprise, although I doubt anyone will be surprised.

Cue hysterical, conspiracy theory-based reactions against the cosmotarians and Tom Palmer in 3...2...1...

Ok, I'm amused...

2008-01-16T14:40:00.000-05:00

Fusionist Libertarian points out Lew Rockwell's appreciation for libertarians who do not support Ron Paul.

Rockwell cites a Dennis Perrin HuffPo post to support his "Eek a mouse!" comment. Of course, Perrin addresses the racism comments, the Kirchik hit piece of the smear job, surveillance state issues, etc. in terms of how liberals should address this problem and does not attempt to address the core concerns of libertarians. Of course, that doesn't stop Rockwell from exaggerating its significance. No surprise.

However, I do appreciate the link to the HuffPo article. There's a relevant passage:

To quote James Ridgeway, liberals can be and often are the meanest motherfuckers around. Criticize any of their scared[sic] beliefs, then watch out. They'll come at you with anything they've got, doesn't matter if it's truthful, accurate, or even sane. American liberals truly feel that they are humanity's Final Word. If you dispute that, you're a bigot, a hater, a piece of slime that deserves only the nastiest treatment. And baby, you'll get it.

Sounds a bit too familiar.

A Michael Moore Award Nominee Speaks...

2008-01-15T22:10:00.000-05:00

An Andrew Sullivan Michael Moore Award Nominee, liberal blogger Amanda Marcotte, writes:

For the slower (willfully and not) people out there, the rhetoric about protecting the innocent states from the all-powerful federal government—rhetoric that would have basically every stalwart Republican and Libertarian out there pumping his fist in solidarity—is referencing Alabama’s “right” to prevent black people from voting, with violence if necessary.

It’s important to have long memories, because the language about “small government” and “states rights” is with us today, and there’s no reason to think the basic meaning has changed significantly from the days when it was about stopping black people from voting. “States rights” dresses itself up as anti-tyrannical language, but it’s actually pro-tyranny.

It’s about crafting a nation that makes it the easiest to use government power to override individual rights. Remember this picture every time you hear someone waxing on about the inherent nobility of “leaving it to the states”, because odds are they’re beating the same drum they have since the South lost their war to preserve slavery. (emphasis added)

Criticisms of states rights don't bother me, but the fact it comes from a liberal blogger who makes a couple of points that rub me the wrong way, I thought I'd comment:

The image of libertarians (perhaps the paleos notwithstanding) marching in unison with Republicans celebrating the "right of the state" to initiate force to oppress the rights of it citizens is patently absurd to the point of sheer ignorance. Of course, the recent association of libertarianism with many of these elements may have crossed her mind when she wrote this. Perhaps I did not concern myself with this issue as much as others did. Last night, I was not willing to give the benefit of the doubt on this point, but I think I will. That said, it's still horrifically wrong and I think some people in the comments section at Pandagon have pointed that out.

Of course, I am more than a bit tickled by the underlined sentence because you know, only people that believe in states rights and people that are far-right wing religious wingnuts are the only ones who would ever consider using government to "override" individual rights. Progressives were more than complicit in using the power of state governments to infringe upon an individual's liberty to contract*.

Furthermore, let us not allow Marcotte's criticisms of the doctrine of states rights to mask the Progressive disdain for federalism. Let's remember that the next time someone waxes poetic about those waxing poetic about "leaving it to the states".

What a Beatdown!

2008-01-15T10:58:00.000-05:00

If my criticism of Michael Kinsley's piece on libertarianism, figuratively speaking of course, left him with perhaps a black eye and a bit of a bloody nose. Tony at Rolling Doughnut, again, figuratively speaking, hacks him to pieces.

It's too good not to give a direct link to. Well done!

I probably should have hit the problems of knowledge and interest more than I did. Then again, I always think I should have written a better post after I post it.

Maybe I should read some of the stuff on Mike Huben's old site to find a challenge, although what he calls the "clearest indictment of libertarianism" looks like the twisted offspring of a Hymowitz-Kinsley anti-libertarian screed (and both familiar and predictable). It's a bit dated so I'll leave it alone.

Charged with the Crime of Siding with The State's Thought control in the Ron Paul Newsletter Affair...

2008-01-14T16:45:00.001-05:00

You got to be kidding me.

Although the website was taken down, via Julian Sanchez (and commenter Kevin B. O'Reilly), some clown has decided that it would be a brilliant idea to create A Libertarian War Crimes Tribunal. Their crime: "Siding with the State's Thought Control in the Ron Paul Newsletter Affair".

You can see the list of people here.

Of course, it's all about individual liberty, right?

I don't know if I want to grab a beer or brass knuckles after reading this unbridled stupidity.

Question for my one-and-a-half libertarian readers...

2008-01-14T12:44:00.001-05:00

Non-libertarians are welcome to chime in as well...

Given everything surrounding the Ron Paul fiasco, does anyone else have the urge to choke the living s--- out of the people at Reason?

Road trip? ;)

About those Paulistinians...

2008-01-14T12:26:00.000-05:00

Though, of course, not all...

The Fusionist Libertarian speaks. I listen:

In fact, they're pretty much this woman I once overheard talking about how much she just loved Michael Jackson. And she just couldn't believe the lies circling about him: that he was a pedophile; that he'd paid off children and their families; that his personal life was deeply, deeply bizarre.

It didn't matter to this woman. She wouldn't even entertain the possibility. Why not? Well, she really loved his music, and how could a man who made such beautiful music possibly be a pedophile?

and Bingo was his name-O.

I know not everyone who supports the man feels this way and this is not geared towards those who are rational. I have friends who will still support Ron Paul and I respect, albeit disagree, with their decision.

I know I'm late to the game on this. I haven't blogged at all about the so-called Paulbots because 1) I never encountered them and 2) I figured once their candidate went away, they'd find better things to do with their time then spam polls and flock to any blog that criticizes their man. Of course, now that I have seen a little more at stake here for liberty lovers than the outcome of a presidential election, I've decided that maybe I do have a few things to say about all of this.

**Paulistinian is a registered trademark of The Liberty Papers :)

Blog Roll Updates

2008-01-14T12:21:00.000-05:00

Well, I finally updated my blogroll for the first time since I set up this blog. I don't think I got everything on there but close enough for now.

If I'm missing something or if anyone wants to recommend something, please let me know.

-- The Management

The Biggest Problem with Libertarianism is the Belief in Individual Liberty

2008-01-13T10:51:00.000-05:00

Michael Kinsley's op-ed on libertarians, as I understand it, makes that argument without really coming out and calling a spade a spade. Since he appreciates libertarians because we force people like him to "think everything through from scratch", I'd like for people like him to force themselves to think a little harder on a few points here.

Before I go on, I'm not exactly sure what he means by "extremely limited government". I suppose it's a matter of perspective but it's not helpful because while libertarians do believe in limits on government, the extent to which government has a role is always being debated internally and there are a diverse range of opinons. Therefore, to respond to Kinsley, I'll speak to my own views.

For those libertarians, like myself, who believe that states can be legitimate (not all states are), the basic argument for a state comes is written quite clearly in the Declaration of Independence: That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Personally, I see the ideas of John Locke as opposed to an introduction to economics.

Second, he conflates the concept of externalties to Kip's Law. While I believe that government intervention to address certain negative externalities is acceptable (so long as a valid public purpose is being served - i.e. public health or safety), he decides what negative externalities are those society can live without and would then support appropriate legislation to remedy those externalities. The example he provides is his support for seat belt laws, although I would argue that the negative externalities in his example are not caused by not wear a seat belt of being killed in a traffic accident, but the traffic accident itself.

Third, he is obviously a utilitarian because he chides us for having "a tendency to see too many issues in terms of property rights". One who views the notion of liberty from a moral (perhaps deontological) position, either rights exist or they do not and if rights exist, then they can not be violated by anyone under any circumstance. The proper role of government is to protect those rights, not to decide whether legislation will produce a net-net gain to society (see Kip's Law). This is not surprising given that he later claims, with respect to bans on unpasteurized milk, "[a]ll that is lost by letting the government take care of it is the right of a few idiots to be idiots. That right deserves respect. But not much. "

For Kinsley, the value of rights is wholly dependent on the amount of respect we should provide to them. Of course, who cares about a few idiots who want to drink unpasteurized milk. The rest of us aren't harmed by this regulation. Let's take it one step further: who cares if states enact gay marriage bans, most of us aren't harmed by it and society is better off if we don't allow gays to threaten the institution of marriage.

It is sheer and utter hypocrisy, yet unsurprising for liberals who view property rights only in terms of who they can have sex with and the ability to terminate pregnancies. I wonder if people who share his mindset realize how much in common they have with the sort of insolent, homophobic bigots they constantly criticize as far-right theocrats. Absurd.

Last, I hate to burst his bubble but his "classic libertarian fantasy", albeit not in the way he describes has taken to fruition in a couple of situations. Private investors paid a tidy sum in exchange for a leasehold interest for the Indiana Toll Road, subject to all sorts of terms and conditions. The Chicago Skyway is under a similar arrangement and several states have contemplated entering into leasehold arrangements or selling off minority interests in toll roads (i.e. The State of New Jersey has considered selling a 49% interest in the Turnpike). Sure, it's not privatized stoplights, but these arrangements are far closer to a free-market contractual arrangement then top-down command and control. Even if the Indiana example has a whole hosts of restrictions and covenants, the investors consented to them. I expect to see more of this kind of thing in the future.

In summary, our views are useful when he wants them to be. Property rights are useful except when they are not and libertarians are simply too stuck worshipping on the altar of Milton Friedman (although he should get a F- for mentioning Ron Paul) to see the good things government can do to increase the common good.

Other than that, it's not a bad op-ed piece. Maybe one rung above Kay Hymowitz on the "Critics of Libertarianism" ladder.

Ron Paul Commentary

2008-01-12T21:39:00.000-05:00

Tim Sandefur has compiled quite a list of blog links discussing the Ron Paul situation. Great stuff despite my being on there.

The man's on fire. His primer on libertarianism is a must-read as well, especially if you aren't familiar with the different variations.

The Last Throes of the Beltway Libertarians...

2008-01-12T10:48:00.001-05:00

Via the Lew Rockwell Blog

We've rendered the DC libertarians' attempts to join the Washington Establishment irrelevant. No wonder they're fuming and grasping at straws.

Dick Cheney wasn't the first person I had in mind:

Sorry. Couldn't help myself.

(hat tip - Tim Sandefur)

Some thoughts on a Friday afternoon...

2008-01-11T10:37:00.000-05:00

Patrick's most recent post at Driving Out the Snakes opines about the depravity pervasive in society's moral fabric in the context of reality television, from the Czech Republic, where subscribers to a program can watch prostitutes have sex with johns.

He is certainly well within his right to find such a thing morally depraved. I may have different views on the subject but my primary disagreement is with this passage:

A liberal-minded person might argue that it's all voluntary and no one is harmed. I beg to differ.

Consider poor Nick, who is quoted above (something tells me that Nick isn't exactly a Don Juan back home in France.) This 36-year-old, unmarried "bank security technician" isn't doing himself any favors with this activity, especially if he has any visions of ever settling down with a woman. And there is probably a woman in France who would like to settle down with a guy like Nick - but she won't get to do so because he has taught himself that women are nothing but sex objects. She's a victim, too.

Then there are the prostitutes. They may be well-paid, but at what cost to their dignity, their health, and their self-image? Finally there are the thousands of people, mainly men, who view this material and become addicted. Many marriages are destroyed in this way, leaving wives and children shattered into pieces. From there the trail of destruction expands geometrically.

I don't disagree that the consequences from making wrong decisions can devastate families. I can relate to that specificially, being a child of parents who divorced after 35 years because of the decision of one of them to violate the marital vows. There was harm and I experienced a great deal of pain from it firsthand.

However, should my outrage at my own situation and the harm I suffered be sufficient justification to try to do everything I possibly can to prevent people who have not been harmed from acting in this manner? Should Patrick's outrage towards sleazy reality television and the widespread availability of pornography and the harm he believes to happen as a result sufficient justification for a democratic majority of like-minded individuals to use legislation as a weapon to cure evil social ills?

The problem here is with the use of the word harm. I do not believe it truly represents the classically-liberal/libertarian view on the role of government because the word "harm" can be construed so broadly that governance based on a harm principle can be plausibly argued to justify just about any sort of encroachment into the private affairs of individuals.

This specific liberal (or (l)ibertarian if you will) would argue that not only is the action between two individuals voluntary and consensual, but it does not violate the rights of others. In this context, while we can argue that each of the parties above could conceivably suffer harm, in no case is the rights of anyone violated.

While the woman who could have settled down with Nick may "be a victim" of Nick's poor decisionmaking, she had no right to settle down with him. As far as the prostitute, as she has control over her decisions. Nick is not coercing her into sacrificing her self image, health and dignity. It is a consensual sex act, not an act of rape.

As callous as it sounds, while people who cheat on their spouses or view pornography may be violating a multitude of morally (and perhaps legally) binding oblgiations, looking at rights from the perspective I have been (i.e. natural rights to life, liberty and property), again it is clear to me that no rights have been violated.

To reiterate, I do not mean to suggest that these actions may not be immoral, reckless, irresponsible and/or exercised with the worst judgment possible (if I did this, it would be - that's for sure).

There's more that can be said about this, but Patrick did not explicitly state whether or not government should enforce prohibitions on this sort of activity. Anything else I would add on this involves that discussion, but since we haven't had it, there's little use starting one at this point.

On Cultural Libertarianism...

2008-01-10T14:39:00.000-05:00

James Poulos at the Postmodern Conservative writes:

In a world where libertarians are utterly doomed on the political front and turned loose with glee instead on the culture, the flattening out of local, particular political power -- the inevitable result of sovereign individuality -- drives prideful, envious democratic souls to the rational recognition that therapeutically throwing themselves, and one another, into the headlong pursuit of trivial novelties is the only way to enjoy life under the advanced logic of equality and social freedom (without opting for the unpopular hermit route).

Yet again my big prob with libertarians these days is their unwillingness to make this analytical distinction. As bluntly as I can phrase it, with the condition of the west today as the independent variable, cultural libertarianism actively destroys political libertarianism, and unless we figure out a way to do political libertarianism first, we may be in for some serious pink police state action.

Like Julian Sanchez, who responds here, I do not see how cultural libertarianism actively destroys political libertarianism for the fact that if cultural libertarianism is responsible for anything, it is a political environment that allows for people to choose how they live their lives so long as they do not violate the rights of others. If Poulos wishes to criticizes people for their moral decisions, then so be it. I have no problem with that. I do think, however, Frank Meyer did make that analytical distinction (from Murray Rothbard's contribution to George Carey's Freedom and Virtue)

. . . freedom can exist at no lesser price than the danger of damnation; and if freedom is indeed the essence of man's being, that which distinguishes him from the beasts, he must be free to choose his worst as well as his best end. Unless he can choose his worst, he cannot choose his best...

...For moral and spiritual perfection can only be pursued by finite men through a series of choices, in which every moment is a new beginning; and freedom which makes those choices possible is itself a condition without which the moral and spiritual ends would be meaningless. If this were not so, if such ends could be achieved without the continuing exercise of freedom, then moral and spiritual perfection could be taught by rote and enforced by discipline – and every man of good will would be a saint. Freedom is therefore an integral aspect of the highest end...

Furthermore, I would probably argue that what would hold back political libertarianism is not cultural libertarianism but economic libertarianism. I would think that far more people would be offended by school vouchers, the repeal of minimum wage laws, rent control laws, laws requring employers collectively bargain with labor unions, public accommodations laws, anti-discrimination laws, or Social Security than by people who choose to fornicate with whomever and in whatever fashion they see fit.

Perhaps it's why constitutional law protects "sexual" substantive due process and not "economic" substantive due process (as hypocritical as that is).

Yes, Another Thank You Blog Post

2008-01-10T11:21:00.001-05:00

This time to Copious Dissent, who has done us all a wonderful service with his series of posts of Milton Friedman "debating" Naomi Klein. I quote the word because it's not a live debate, but then again, if a debate were to take place between the two, I'd still end up putting the word in quotes.

Check them all out!!!

Via Cafe Hayek

My Obligatory Ron Paul Post...

2008-01-09T14:34:00.000-05:00

UPDATED

By now, most of the free world has probably heard what some of us already knew about Ron Paul courtesy of Jamie Kirchick's "Angry White Man": that there are publications, points of view and perhaps speeches in the man's past, directly or indirectly, that are obscene, racist, homophobic and downright despicable. That anyone would want to associate with some of the kooks, cranks, nutjobs and outright assholes that have written in some of the publications that have gone out under his name is beyond my comprehension. Furthermore, the fact that his campaign seems to think this is not such a big deal is inexcusable.

Perception is reality, and my perception is (and has been) of a man that has, at best, poor judgment in the type of company he chooses to keep. That alone makes him unqualified to be the President of the United States. Aside from my disagreements on some of his positions, it is his lack of judgment that has completely turned me off. In any event, the hell with it. I never supported him, and to me, he was more Robert Bork than James Madison when it came to individual liberty, preferring an open-ended police power to one which places rightful limitations on what states can and can not do.

I sympathize and agree with Tony here but I wonder what kind of damage can be done:

I don't think the problem has been libertarians supporting Rep. Paul. We all make compromises at some point. But we must be honest about them. We should talk about ideas, and something makes them more possible to discuss in public forums, we should seek to use that opportunity. Still, labels matter. With even a cursory look at his positions, it was always clear that Rep. Paul is not a libertarian.

So now the careless have hitched our principles to an unstable vehicle of political expediency. Why? We knew that we weren't getting a libertarian president in November, even if Rep. Paul was a libertarian. We're often accused of being too rigid in adhering to how little government should do. There is no justification for abandoning that rigidity at the first whiff of minor success in the public consciousness. First impressions.

Now I'm angry at being forced into guilt-by-association. Thanks.

I don't know how much guilt-by-association is really here though. Although I wasn't particularly impressed with Kirchick piece, if he did one good deed, it was this distinction (albeit imperfect)*:

To understand Paul's philosophy, the best place to start is probably the Ludwig von Mises Institute, a libertarian think tank based in Auburn, Alabama. The institute is named for a libertarian Austrian economist, but it was founded by a man named Lew Rockwell, who also served as Paul's congressional chief of staff from 1978 to 1982. Paul has had a long and prominent association with the institute, teaching at its seminars and serving as a "distinguished counselor." The institute has also published his books.

The politics of the organization are complicated--its philosophy derives largely from the work of the late Murray Rothbard, a Bronx-born son of Jewish immigrants from Poland and a self-described "anarcho-capitalist" who viewed the state as nothing more than "a criminal gang"--but one aspect of the institute's worldview stands out as particularly disturbing: its attachment to the Confederacy. Thomas E. Woods Jr., a member of the institute's senior faculty, is a founder of the League of the South, a secessionist group, and the author of The Politically Incorrect Guide to American History, a pro-Confederate, revisionist tract published in 2004. Paul enthusiastically blurbed Woods's book, saying that it "heroically rescues real history from the politically correct memory hole." Thomas DiLorenzo, another senior faculty member and author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, refers to the Civil War as the "War for Southern Independence" and attacks "Lincoln cultists"; Paul endorsed the book on MSNBC last month in a debate over whether the Civil War was necessary (Paul thinks it was not). In April 1995, the institute hosted a conference on secession at which Paul spoke; previewing the event, Rockwell wrote to supporters, "We'll explore what causes [secession] and how to promote it." Paul's newsletters have themselves repeatedly expressed sympathy for the general concept of secession.
In 1992, for instance, the Survival Report argued that "the right of secession should be ingrained in a free society" and that "there is nothing wrong with loosely banding together small units of government. With the disintegration of the Soviet Union, we too should consider it."

The people surrounding the von Mises Institute--including Paul--may describe themselves as libertarians, but they are nothing like the urbane libertarians who staff the Cato Institute or the libertines at Reason magazine.
Instead, they represent a strain of right-wing libertarianism that views the Civil War as a catastrophic turning point in American history--the moment when a tyrannical federal government established its supremacy over the states. As one prominent Washington libertarian told me, "There are too many libertarians in this country ... who, because they are attracted to the great books of Mises, ... find their way to the Mises Institute and then are told that a defense of the Confederacy is part of libertarian thought."

If there was any basis for a guilt-by-association, it existed long before any Ron Paul Revolution. Though I am relatively new to the philosophy (2-3 years) and have known about paleolibertarianism's past, seeing these so-called libertarians cozying up with the populist, nationalist, racist, homophobic and anti-Semitic elements that are an affront to both liberty and individualism made me sick and upset. I know others who feel the same way. Perhaps a bit of a mea culpa is in order here since I suppose I could uncovered this sooner if I wanted to look harder.

There are numerous places for additional Ron Paul commentary that are worth checking out: Freespace, Althouse, Andrew Sullivan, Volokh Conspiracy, Vodkapundit, Rolling Doughnut, Fusionist Libertarian, and of course Reason (see the link in the first paragraph). The Memeorandum link for more is here.

Update: Paleolibertarian Karen Decoster responds to the Kirchick article here and rants about a blog called Right Watch which, like Tom Palmer's blog, presents the views of certain libertarians in a rather, ahem, harsh light.

Not surprisingly, she takes the anonymous author of Right Watch to task for a lack of evidence yet spends the better part of a long paragraph speculating that Tom Palmer is behind the attacks on Lew Rockwell with, again not surprisingly, no evidence. Pot? Kettle? I suppose it would do no good to say that Palmer himself claimed that he had nothing to do with it but as he's a Washington-insider-neocon-warmonger-statist-[FILL IN THE BLANK HERE], that will probably earn me neocon status, although I don't think the neoconservatives would want me in their ranks.

Lastly, just out of curiousity, what do my libertarian readers think of this rather passionate defense of Lew Rockwell:

His success is hated by those who can't gain the same ground. After all, he has been a one-man show and has done far more for the libertarian philosophy - over the last 9 years - than a whole staff at Cato.

One man, folks. One man has made a huge difference and has brought many Internet wanderers to the libertarian way. And you think they don't envy Rockwell for his highly-successful, decentralized operation?

I didn't reach libertarianism through Rockwell and I am grateful for that (although I am grateful to the exposure to Rothbard and Mises). I'll think I'll stick with David Boaz on this one:

But of course Ron Paul isn’t running for president. He’s not going to be president, he’s not going to be the Republican nominee for president, and he never hoped to be. He got into the race to advance ideas—the ideas of peace, constitutional government, and freedom. Succeeding beyond his wildest dreams, he became the most visible so-called “libertarian” in America. And now he and his associates have slimed the noble cause of liberty and limited government.

Mutterings about the past mistakes of the New Republic or the ideological agenda of author James Kirchick are beside the point. Maybe Bob Woodward didn’t like Quakers; the corruption he uncovered in the Nixon administration was still a fact, and that’s all that mattered. Ron Paul’s most visible defenders have denounced Kirchick as a “pimply-faced youth”—so much for their previous enthusiasm about all the young people sleeping on floors for the Paul campaign—and a neoconservative. But they have not denied the facts he reported. Those words appeared in newsletters under his name. And, notably, they have not dared to defend or even quote the actual words that Kirchick reported. Even those who vociferously defend Ron Paul and viciously denounce Kirchick, perhaps even those who wrote the words originally, are apparently unwilling to quote and defend the actual words that appeared over Ron Paul’s signature.

Those words are not libertarian words. Maybe they reflect “paleoconservative” ideas, though they’re not the language of Burke or even Kirk. But libertarianism is a philosophy of individualism, tolerance, and liberty. As Ayn Rand wrote, “Racism is the lowest, most crudely primitive form of collectivism.” Making sweeping, bigoted claims about all blacks, all homosexuals, or any other group is indeed a crudely primitive collectivism.

And these are the people who claim to be about freedom and liberty? What do you think?

Thank You Tim Sandefur...

2008-01-08T10:14:00.000-05:00

...for the wonderful news of a new Randy Barnett response to Kurt Lash in their exchanges on the original meaning of the Ninth Amendment.

I read Lash's latest last year, and while I'm not up to speed on the details compared to others, the one thing I never understood from his work (and perhaps the works of others) is how one gets from the concept of individual rights (a la Locke or the Declaration of Independence) to the concept of collective rights (the theme throughout Akhil Reed Amar's The Bill of Rights, where he speaks of the Ninth and Tenth Amendments in the collective sense).

If the idea that we are endowed with natural rights by our Creator and those rights are inalienable, then are they not (without some exceptions) beyond the reach of positive law, whether such a decree comes from a monarch or a democratic majority?

Of course, I admit that I may be straddling a philosophical argument and a more formal legal argument and that those who believe that our principles have support in the natural rights philosophy are a relatively small number of classical liberals and libertarians.

Nonetheless, the articles written by both of them have interested me and I am grateful that there are people out there having these debates, whether I agree with them or not.

Tim's Blog Here

Padilla v Yoo? - my layman's "perspective"

2008-01-07T12:28:00.000-05:00

(h/t: Volokh Conspiracy)

Although, legally speaking, this is way out of my base of knowledge, I was intrigued to read that Jose Padilla has filed a lawsuit against Jose Padilla. A press shown on Volokh's site reads:

John Yoo, the author of legal memos that gave the go-ahead for government agents to use torture against terrorism suspects, was sued this morning in federal court in San Francisco. The lawsuit was brought by Jose Padilla, an American citizen seized from a civilian setting and interrogated for years in a military prison, and his mother, Estela Lebron. The lawsuit claims that Yoo, then a senior lawyer in the Justice Department, purported to provide legal justifications for torture. This is the first lawsuit against Yoo seeking to hold him accountable for the suffering unleashed by his 'Torture Memos.' Yoo's memos justified and set in motion the use of harsh and illegal interrogation methods not only abroad -- in places like Guantanamo Bay and the secret CIA 'black sites,' -- but also here in the United States.

More at Legal Ethics Forum and Opinio Juris. There are enough legal issues (immunity, whether or not lawyers can be held legally liable for their opinions, causation, etc. etc.) to make my head swim. Ouch!

Look, I may have more than a few rather strong disagreements with John Yoo's legal opinions (nor am I the only one), but given that the prayer for relief consists of $1, attorney fees and "a judgment declaring that the acts herein are unlawful and violate the Constitution and the laws of the United States", nothing more than a judicial rebuke, then why go after John Yoo?

Duncan Hollis' at Opinio Juris writes:

...by naming Yoo alone, it makes this case less about upending the Executive Branch or Justice Department's positions, and much more about attacking John Yoo as a lawyer. Indeed, Padilla and his counsel appear to have made a conscious decision to use this suit as a rhetorical tool. Yoo’s assets aren’t the focus of attention here. I suspect, for example, Yoo will argue immunity and get a government-funded lawyer in his defense (although he may well spend some money to retain his own counsel and maybe those costs could add up). And although a judicial rebuke, however unlikely, of Yoo would have undoubted implications for the President and the Executive Branch, the end-game appears to be much more about shaming John Yoo. Indeed, the prayer for relief suggests a remedy that simply declares that John Yoo was wrong, with the attendant effects that might have on his reputation and standing in the academic and legal communities...

Again, while I may be a fish out of water with regards to the multitude of legal issues I have encountered while reading up on this situation, I don't know if I like the implications here either. Those his legal opinions may have led to the violations of rights of an individual or individuals, he didn't directly order any such actions that would have led to a violation of rights (proximate causation?).

I'm not sure I like where something like this could go. Does this mean that if Lawyer X advises President Y about Issue Z, which Person A challenges in federal court and ruled unconstitutional, that Person A may have a civil claim against Lawyer X (or worse)?

I'm sure I'm missing a few things here (perhaps notable as well), but I'm not comfortable with this. As always, I'm open to suggestions and commentary, especially from people who know this stuff better than I do.

A few certainties via Tyler Cowen

2008-01-05T18:07:00.000-05:00

I tend to agree with Tyler on all counts. While many are significant, Number 12 really jumps out at me:

It is a big mistake -- even in rhetoric -- to conflate concern for the poor with comparative egalitarian intuitions. The left ought to turn its back on this mistake, although it would mean losing one of their most effective rhetorical tools.

This is probably because I had the misfortune of reading an Ezra Klein juvenile, anti-libertarian temper tantrum(H/T Julian Sanchez) which, well, does reinforce not only Number 12 but Number 13 as well:

When your ideology actually boils down to things like "I think a substantial majority of this nation's children should go without health insurance" and "I think the Civil Rights Act was an unconscionable infringement upon individual property rights," you probably shouldn't try and play the "shorter X" game.

At the risk of violating certainity Number 13 (and launching a polemic), I will call bullshit on that position. In a response to a liberal blogger lamenting the practices of credit card companies KipEsquire writes:

Isn't "my outrage and disgust over it entitles me to prevent those who are not outraged and disgusted over it from doing it, despite the fact that I am in no way harmed by others doing it, apart from my outrage and disgust" the modus operand of the anti-gay bigots? Why would you possibly want to borrow a page from their playbook?

In principle, the moral authoritarianism of the Left and Right are identical, as both wish to use the state and the purported "legitimacy" of democratic processes to create a society in the majority's image. Richard Epstein, while defending same-sex marriage, wrote in an op-ed piece from 2004:

My fear is that the American left chiefly understands liberty by carving out some preferred class of "intimate" associations of two (but in an unexplained burst of traditionalism, most definitely not more) individuals. After all, even on associational freedoms, the American left has become far more statist in rejecting freedom of association claims in the Boy Scout and campaign finance cases. Its support for gay marriage, therefore, looks opportunistic because it refuses to apply the same standard of free association to economic legislation for fear of what it will do to unions and their fiefdoms...In its own way, the moral left is as authoritarian as the moral right.

On that note, can someone please explain to me why liberals, who have more in common with anti-equality homophobic bigots than they may realize, would presume to lecture libertarians on notions of equality?

Pot meet kettle.

Does it Really Matter That Much?

2008-01-05T17:16:00.000-05:00

William Kristol has joined the editorial staff of the New York Times. Ok. I know a few liberals who are a bit upset by it. I also understand that, not surprisingly, that the left blogosphere threw an apoplectic fit. No biggie.

Personally, as much as I find Stephen Chapman more up my alley, I could care less. As far as I see it, it's just another target for me to take from the NYTimes op-ed page.

Via Reason, I came across a Slate article written by Jack Shafer defending the Kristol hiring.

Calling Kristol's addition to the page redundant because David Brooks, a former Weekly Standard-bearer, already works there reveals a lack of familiarity with both men's writings. Brooks is "pro-choice and pro-gay marriage," as Ross Douthat noted three years ago in the National Review. Kristol is neither. Brooks is a journalist first and always has been. Kristol is a political operator. Brooks tries to persuade his readers of his views gently, as if he's a guest in the house. Kristol lives to brawl and make enemies. To him, writing is fighting.

Good. Bring on the fight. Give NYTimes readers a swift kick in the ass. Hopefully, he'll send a few my way (albeit indirectly of course).

What fun is consistently reading people you agree with anyway?

Merry X-Mas to All

2007-12-25T10:56:00.002-05:00

and to all a good night.

RIP Oscar Peterson

2007-12-25T10:56:00.001-05:00

A great jazz pianist has left us.

Are the same people who criticized some of Ron Paul's supporters...

2007-12-21T10:25:00.000-05:00

going to be the same people who will now take aim at Mike Huckabee? Via Cato-at-Liberty:

I read in Robert Novak’s column this morning that Mike Huckabee held a fundraiser earlier this week at the Houston home of Dr. Steven Hotze. As Novak notes, Hotze is “a leader in the highly conservative Christian Reconstruction movement.”

Christian Reconstructionists, for those unfamiliar with the term, are Religious Right radicals who believe that America, and the rest of the world besides, should be governed in accordance with strict Biblical law. And yes, that includes stoning adulterers. Here’s a snippet from “A Manifesto for the Christian Church,” a 1986 document from an outfit called the Coalition on Revival that was signed by, among others, Steven Hotze:

We affirm that the Bible is not only God’s statements to us regarding religion, salvation, eternity, and righteousness, but also the final measurement and depository of certain fundamental facts of reality and basic principles that God wants all mankind to know in the sphere of law, government, economics, business, education, arts and communication, medicine, psychology, and science. All theories and practices of these spheres of life are only true, right, and realistic to the degree that they agree with the Bible.

For more, check out this audio clip of Hotze from back in 1990. Over the years, Hotze has achieved some prominence for his anti-abortion and anti-gay activism. Also, the good doctor appears to be a total quack.

Frankly, I have as much concern about the Christian Reconstructionists supporting Huckabee as I do fringe neo-Nazi groups supporting Ron Paul. The very odds of either of these groups having any influence are next to nothing. I'd also rather spend my time focusing on issues than wasting my time worrying about who is giving money to who, especially at this stage in the process.

For those who want to make fodder out of campaign contributors, consistency would suggest that it is time to send the nutjob police after Huckabee, although I doubt I'll see open letters anytime soon.

My Favorite Things

2007-12-19T16:53:00.000-05:00

I hear this during the holiday season quite a bit so why not post a version with the master himself playing it (that would be John Coltrane):

Sweet!!!

Light Blogging For the Rest of the Year

2007-12-18T16:22:00.000-05:00

Happy Holidays!

My One and Only Post on NIE and Iran

2007-12-12T15:41:00.000-05:00

It is a nice little quote from Richard Fernandez's post on the matter at Pajamas Media (with my added emphasis):

Whether we like it or not, there are limits to what intelligence can know at any one time. The inescapable uncertainties may make it impossible to decide the status of Iran’s nuclear program “once and for all”. As in the case of the Soviet Union changes in the situation and leadership happen all the time. Honest analysts must keep revising the picture as new information comes to light. While Washington politics describes any change in intelligence estimates as examples of ‘lying’ or incompetence the plain fact is that altering assessments is endemic to the process. An unchanging intelligence picture is a wrong picture. Changing your mind is a natural thing to do.

Think of all the time and headaches that could have been spared with a little common sense thinking, but common sense thinking, and in some cases just the act of thinking, is asking quite a lot of people. After all, it's certainly more fun to use the report to paint President Bush as some sort of criminal or to spin wild-ass conspiracy theories about the use of the report to deliberately undermine The Bush Administration. That crap gives me a headache. All of it.

Yes, a military option may be off the table today. It may be back on the table tomorrow given a different set of circumstances and facts. We must always keep our eyes open to the possibility of changing circumstances.

That was my view before the NIE came out. That is my view now. It's common sense to me, but I was already wrong on something today so I could be going 0 for 2 for all I know.

COMPUSA Closing

2007-12-12T11:45:00.000-05:00

Via Instapundit.

The only reason I am blogging about this is because I am surprised it did not happen several years ago. Best Buy is far better in terms of selection for both computer hardware and software and the financing terms via the store credit cards are more competitive.

Moreso, for PC parts, the online retailers like Newegg, ZipZoomFly and Tiger Direct are far more competitive in terms of purchasing parts.

As an example, in 2005, I upgraded my gaming PC by purchasing 2 gigabytes of high-end gaming memory and a near (at the time) top-of-the line video card that in total cost me somewhere close to $600. It would have cost me $250 more had COMPUSA gotten the parts for me. Heck, COMPUSA's prices on "value" memory was close to twice what it was (is) at Newegg. How they made any money selling PC parts I do not know.

Imagine the price difference if one had to build a PC from scratch, as I did in 2004 (ok, someone built it for me).

A couple of thoughts on topics related to Austrian economic theory

2007-12-12T10:07:00.000-05:00

Via Cafe Hayek, EconTalk hosts George Mason University's Pete Boettke in a discussion about Austrian economic theory. The snippets I have listened to seem very interesting and it is something that I will certainly download for my iPod.

This is good timing because the book I am currently reading, After War: The Political Economy of Exporting Democracy, a book that analyzes the complexities of nation building from the perspective of economics, was written by Chris Coyne, an Austrian School economist and is, among other things, chock full of these ideas. One critical idea is the role incentives play in determining whether or not informal institutions can complement the establishment of formal institutions such as central government.

For a discussion of incentives, we can look at the Page 99 Test that was done, which discusses the incentive problems amongst different agencies within the U.S. Government (coincidentally, it happens to cover this topic). The paragraph discussing David Phillips' observations, as brief as it is, is particularly revealing of the sort of pitfalls of central planning that get so widely overlooked. However, the fact that central planners can and do disagree is not an original idea (Hayek discusses this in The Road to Serfdom).

I am about 75 pages into the book (out of 180), and because the material is rather dense with heavy analytical content, it is something that will take me some time to finish. I am still working through some of the theoretical implications as they are applied to the two nation building "successes" we have had (West Germany and Japan). Iraq and Afghanistan are discussed later in the book.

In a political environment of supposed pre-surge, post-surge mentalities, the need for people (on both the Left and Right) to attempt to validate their views using the worst source available (public opinion) and the overall pisspoor practice of pointing to short-term situations as some reliable indicator of the actual long-term outcome (which could take years to figure out), it is refreshing to see an economist take on this project and lay out the framework for why these projects are far from a cakewalk.

The downside here, thus far, is that the book is rather dense and the indepth discussions of economic theory, game theory (i.e. the Prisoner's Dilemma), neighborhood effects, etc. could turn a lot of readers off who do not have an economics background. I do hope I am wrong about that.

The Cato Institute Book Forum can be found here (another addition to my iPod library)

Does Hollywood Have it Wrong?

2007-12-10T13:51:00.000-05:00

Via Instapundit, a reader writes an email wondering how Hollywood can claim the public does not want Iraqi War movies when Call of Duty 4: Modern Warfare, an excellent first-person-shooter video game set in the environment of modern combat, has sold over 3 million copies?

So, if as Hollywood whines that the public doesn' t want Iraqi War movies, why is this selling so well, top of the rental lists, and ever so popular? At this rate it'll be the successful game companies, that gives the pubic what they want, who'll buy out the studios for their IP and name. Hollywood appears to have missed the impact of the technological shift as badly as MSM has. The public is getting the entertainment they crave, just not in the form that the old gatekeepers dispense.

I would bet a gamer didn't write this. Please do not get me wrong, there are kernels of truth to what he is writing, but any gamer who was playing Battlefield 1942 circa 2003 would have noticed the immense popularity of Desert Combat, the (free) modern combat mod to Battlefield 1942 and the follow up to BF1942, Battlefield 2, a modern combat shooter with U.S. Forces battling the Middle Eastern Coalition and a Chinese Army. If I recall, the bad guys in Counterstrike are terrorists as well.

Call of Duty 4's success does not surprise me. The Call of Duty series is probably the gold standard (at least on PC) as far as infantry-only first person shooters are concerned (albeit not perfect) ever since the first one came out (although it took several months of fixes to get it right IMO). The cinematic quality of the single player campaigns are nearly unparalleled, and the multiplayer is a blast. The franchise delivers in its most recent version as well, as I hear from people who have played it (I have not).

I would also guess that the immersive nature of the game, being involved in the storyline and the countless hours of single player and, especially, multiplayer gaming is what makes games like this popular, not any political message. Most people I know play for the enjoyment of the entertainment experience. It does not necessarily follow that one can translate that experience into a theatrical experience. It can happen, but I doubt video game sales have much to do with it.

I have a sinking suspicion that people play games not to get in touch with their inner patriot, but to blow s--t up. I know I loved doing the latter.

After all, there was nothing like getting people really upset in BF2 with my impeccable technique with what is known as the "Jihad Jeep". If you did not play Battlefield 2, you probably will not appreciate the clip because you would not appreciate the talent of loading a vehicle with C4 and propelling it towards enemy tanks:

P.S.: When was the last time a movie based on a video game was anything worth writing home about? Doom, Mortal Kombat and Street Fighter (yes, I saw them all) were awful. Anyone have any ideas?

Too Good to Pass Up

2007-12-10T13:33:00.000-05:00

Today's Poem - From CrunchyCon:

Sorry guys. As scandals go,
Torture beats fellatio.

Classic.

At least I think it's funny.

Rediscovering an Old Love - Jazz Guitar

2007-12-10T12:04:00.001-05:00

I've slowed down a bit on the blogging, part of being the holiday and the other part being that I rediscovered my love for learning jazz guitar so I spend very little time on blogging or commenting on other blogs in the evenings. The two hours or so I do have are better spent practicing chops, learning new licks, listening to music or studying music theory. I haven't decided how much, if any, I will blog about this subject, as it will probably be a bunch of YouTube clips of people I like with little substance to add. Also, it's not like discussing tritone substitutions will generate a whole lot of traffic.

Any fans of jazz guitar, or people looking to get into jazz guitar should seriously look into this box set. Four CDs with over 70 songs from just about jazz guitar giant imaginable. I damn near fainted when I saw this at the store. The box set spans from the more traditional jazz (bop, modal, swing), takes us into fusion, a few rock tunes (a la Jimi Hendrix's Manic Depression) and then into the more most modern/post-modern styles.

As an aspiring guitar player, it is a treasure trove of musical ideas, phrases and influences. Many of the people on the box set I've heard in the past but it has opened several more doors.

I can only say I regret not listening to Allan Holdsworth any sooner. His solo starts around 4:30 (although I put this up more for me than anyone else LOL).

The GOP and "Freedom"

2007-12-10T10:06:00.000-05:00

Hat tip: KipEsquire and Crossed Pond

Mitt Romney: “Freedom requires religion, just as religion requires freedom. Freedom opens the windows of the soul so that man can discover his most profound beliefs and commune with God. Freedom and religion endure together, or perish alone.”

Rudy Giuliani: “Freedom is about authority. Freedom is about the willingness of every single human being to cede to lawful authority a great deal of discretion about what you do.”

Certainly a far cry from this GOP candidate:

We see in the sanctity of private property the only durable foundation for constitutional government in a free society. And beyond that, we see, in cherished diversity of ways, diversity of thoughts, of motives and accomplishments. We do not seek to lead anyone's life for him - we seek only to secure his rights and to guarantee him opportunity to strive, with government performing only those needed and constitutionally sanctioned tasks which cannot otherwise be performed.

Find me a GOP candidate who believes the latter and I may begin to take the GOP seriously. Of course, I have a better chance of getting struck my lightning in my own home before we see another Barry Goldwater so I suppose we'll have to suffer through more painful rhetorical masturbation from politicians who need to pander to the morally authoritarian and liberty-challenged social conservatives.

There is a silver lining in this. No longer do I have to link to Hayek's "Why I am not a Conservative" as a supporting document when describing my own views. I can use these two nice little quotes as my own version of it. Besides, as I understand it, my neoconservative readers may not know who Hayek is anyway so this will make it easier on them. ;)

Last point and a good one:

As one of the commenters at Crossed Pond mentioned, if we put Romney and Giuliani together, we get Iran. What a beacon of freedom that country is.

74 Years Ago Today...

2007-12-05T12:20:00.000-05:00

Prohibition ended.

May this message serve as a friendly reminder to all social engineers and central planners that reality usually tempers their ambitions and can often lead to dismal failure, which is what alcohol prohibition was in its time and what drug prohibition is today.

Thank You - The Management

More at Cafe Hayek

A Nanny Stater Responds to Andrew Sullivan and ECL Gets Annoyed

2007-12-04T12:05:00.000-05:00

Per the Daily Dish:

A reader writes:

You asked:

"Since when did the federal Congress have the right to micro-manage what school-kids get from snack machines?"

Answer: Since childhood obesity has led to such an explosion in life-long healthcare costs which have become an enormous (no pun intended) strain on the U.S. health system, economy, and, yes, the tax-payers. As long as the American people have to pay the bills for children who aren't provided any healthy eating options, they have a right to try to lessen the burden.

Ouch.

Phrased another way using another situation, the possiblity of gun violence in schools potentially threatens the quality of education that children receive. In turn, this means they are less-prepared for the challenges of the real world once they leave the educational system. Therefore, there is a suggestion that these people could become a burden on our economy (which threatens interstate commerce) as opposed to being productive citizens. So long as the American people have to shoulder this burden, they have a right to lessen the burden. Federal legislation prohibiting guns within a certain distance of a school zone is representative of the American people's right to lessen this burden.

Now, I may not be 100% accurate on the arguments made regarding the Guns Free School Zone Act, which was struck down as unconstitutional by the Supreme Court in United States v Lopez in 1995, but I think it generally shows how the same sort of "Six Degrees of Kevin Bacon" reasoning that leads people to believe that federal intervention can be justified on any possible grounds (the courts have done us no favors by buying into this (see Wickard v Filburn).

Also of note is that the woefully positivistic view of "rights", where left-wing nanny-staters, like their right-wing nanny-staters believe in a "right" to use "powers" wherever and whenever they see fit.

It would not be so annoying if it was not a dominant strain of thought amongst the American populace.

Welfare Receipients and the Fourth Amendment - Revisited*

2007-12-02T13:24:00.000-05:00

Radley Balko asks whether or not welfare applicants should forfeit their Fourth Amendment protections against searches and seizures:

That seems to be the conclusion to draw from the U.S. Supreme Court’s refusal to hear a case from San Diego, where the D.A.’s office has been sending agents to conduct suspicionless, warrantless searches on the private homes of welfare applicants.

Yes, applicants were free to refuse the searches, though I suspect that refusing a search would itself be (unofficially) enough to trigger further investigation. Refusing a search also means forfeiting welfare benefits.

Setting aside the standard libertarian discontent for welfare, I have two big problems with this: 1) the idea of "consent" is a joke, because, as I understand it, no consent is equal to no benefit, but even worse: 2) the government, in no, way, shape or form, should be allowed to use fundamental constitutional liberties as bargaining chips in exchange for government programs. One would think that the unconstitutional conditions doctrine would apply, especially in a situation where government lacks a compelling interest.

I almost blogged about this several months when this was brought to my attention via A Stitch in Haste. A quote that he used from the dissent in the relevant case, Sanchez v. County of San Diego, is posted below (my emphasis added):

The intrusion here is the unannounced search of the home of a person under no suspicion whatsoever by fraud investigators, who are required not only to question the applicant but to pry into the applicant's most private spaces -- to look through drawers, medicine cabinets, closets, garbage, and the like....

The government does not search through the closets and medicine cabinets of farmers receiving subsidies. They do not dig through the laundry baskets and garbage pails of real estate developers or radio broadcasters. The overwhelming majority of recipients of government benefits are not the poor, and yet this is the group we require to sacrifice their dignity and their right to privacy. This situation is shameful.

Fraud may be a problem, as one of the commenters at A Stitch in Haste suggests. Fair enough. No one has a right to engage in fraud. However, if fraud is a sufficient enough reason to stand the Fourth Amendment on its head for one group, why would this principle not apply to Social Security recipients or farmers or the families of college students who are looking to get government loans? Is combating fraud in any other entitlement program any less important than it is in San Bernandino County?

The solution is a simple one. As Kip stated in his original post (and worth quoting since I can't explain it better myself):

Here's a better jurisprudence: Innocent until proven guilty. If and when San Diego authorities have probable cause to suspect welfare fraud, then let them proceed to investigate, by way of a warrant issued by a neutral magistrate -- just as they would with any other crime.

It should never be any other way - ever.

* For what it's worth, the reason this is "revisited" is because, although I ultimately did not blog about it, via the post at A Stitch in Haste, I did spend some time reading the Ninth Circuit opinion, some of the opinions of the cases cited and other relevant text. It did pique my interest in Fourth Amendment jurisprudence and the unconstitutional conditions doctrine. Sadly, I was hoping to write a follow-up post on an announcement that the Supreme Court would take this case, but as that is not happening, I can only voice my discontent.

More "Judicial Restraint" Nonsense

2007-11-30T10:55:00.000-05:00

Bluntly speaking, "judicial restraint", whether proferred by Oliver Wendell Holmes, Jr., Felix Frankfurter or Antonin Scalia, is just another nice way of describing avoiding constitutional issues on the basis of "the will of the people" and other such nonsense.

Therefore, it is probably no surprise to hear this from the President of the Brady Campaign to Prevent Gun Violence (H/T: Cato-at-Liberty) :

More than 30 years ago, the elected representatives on the D.C. City Council decided to enact a system of strict gun laws to help protect public safety. The people in D.C. strongly support these laws. The District's police strongly favor them as well.

The District's decision has been attacked over and over again by outside interests more concerned with pleasing the gun lobby than respecting the will of the people. Some in Congress have tried multiple times to overrule the District's preference for strict gun regulations, but have failed each time.

In 2003, however, a wealthy benefactor decided to fund a challenge in federal court to the District's strong gun laws. A fellow of the libertarian Cato Institute, his argument lost soundly at trial.

On appeal to the federal circuit court, however, two judges handed him a "victory." They decided to ignore almost 70 years of Supreme Court precedent, over 200 years of American history, and even the text of the Constitution itself. In so doing, they imposed their own policy preferences on the people of D.C.

It was a textbook example of judicial activism at its worst.

For more than 200 years, communities across America have used their right to vote for gun laws they believe are needed to protect their safety. Yet the federal appeals court decided to limit that authority with a misguided view of the Constitution. That was wrong.

The people of this country know that sensible gun laws save lives. For example, Hawaiians banned assault weapons and required a permit to purchase handguns. Californians banned assault weapons and required universal background checks for every gun purchase. Coloradans closed the gun-show loophole. Illinois residents closed the gun-show loophole and required child safety locks sold with each handgun. Michiganders require lost or stolen guns to be reported to the police. New Yorkers banned assault weapons and closed the gun-show loophole. Virginians limited handgun purchases to one a month.

All across America, the power of the people to pass laws like these was put at risk by the reasoning in the lower-court decision.

Judicial activism at its worst? That is a pretty bold claim and, given that conservatives of late, like liberals in the 1930's, have made judge-bashing a political pasttime, it is one I can not in good conscience take seriously. Moreso, there is an element of irony to the claim. When the claim of judicial activism has been leveled against the "will of the people", whether responding to decisions in Lawrence v Texas or Lochner v New York*, the "judges making policy from the bench" were, as the story goes, protecting rights that were not specifically enumerated in the Constitution (i.e. the New Deal jurisprude mindset).

Here, Mr. Helmke, takes the judges to task for ignoring the will of the people for an enumerated right, while hedging his bet by calling the Court's position on the Second Amendment "misguided". While one can get away with this given the length limits in op-ed pieces, I will at least suggest that whether the Court was misguided is hardly a settled matter. While I know my own opinion will not settle things, if individuals have inviolable natural rights, then one must have an inviolable right to defend them. This is not to suggest an absolute Second Amendment right beyond the reach of any legislation. Under current doctrine, I would argue that, as both an enumerated and an individual right, any sort of legislation that potentially conflicts with the Second Amendment should receive the highest level of scrutiny possible ("strict scrutiny" in legalese).

It also odd that one can find "deep respect with judicial precedent" and "for a close reading of the Constitution" at the same time. Those who have at least a passing knowledge of judicial precedent, especially for those who find the concept of the "will of the people", i.e. legislative supremacy, far more dangerous that judicial supremacy could ever be, know that "judicial precedent" is a wasteland of legislative supremacy that purports to be couched in the "legitimacy" of judicial restraint. Those who understand legitimacy know better.

For what it's worth, I fail to see "a right to vote for gun laws they believe are needed to protect their safety" in the Constitution (yes it looks silly but that is the point). Passing laws is not a right, it is a power, and one of unlimited scope. While public safety is a valid use of the state police power, the fact that the majority "believes" it to be necessary does not mean we are to automatically assume it so, despite what champions of unbridled majoritarianism would have us believe.

This is unsettling. Let's hope the Supreme Court comes to the correct decision.

I didn't see this coming...

2007-11-27T17:05:00.000-05:00

Kevin Dubrow, the lead singer of Quiet Riot, passed away.

My condolences to friends and family.

The Cato Supreme Court Review now available

2007-11-26T13:12:00.000-05:00

Enjoy!!!

I like reading these articles. It demonstrates how little I really know about law.

In any event, I spent a few minutes going through Brannon Denning's article, which is an alternative opinion of Gonzales v Carhart. It is a rather interesting analysis of the Partial Birth Abortion Ban under the Commerce Clause framework put forth in U.S. v Morrison and U.S. v Lopez.

While I know what these cases represent, I am not fully up to speed on the doctrine put forth in those cases. That said, I gleaned enough to enjoy the analysis.

I plan on reading through the rest of these in the coming months, although political blogging and jazz guitar keep me away from any semblance of legal blogging.

Name that Moonbat...

2007-11-25T19:47:00.000-05:00

The sheer arrogance of this moonbat makes me sick:

“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.”

“It is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad.”

“No nation could preserve its freedom in the midst of continual warfare.”

“The executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.”

“War should only be declared by the authority of the people, whose toils and treasures are to support its burdens, instead of the government which is to reap its fruits.”

“Each generation should be made to bear the burden of its own wars, instead of carrying them on, at the expense of other generations.”

This is some of the most undisciplined, unprincipled "Blame America Firstism" I have ever seen.

Who is this? The answer is here.

Now, you didn't really think I was going to waste my time blogging about moonbats, did you? Sorry, that market's already cornered by about 20,000,000,000 conservative bloggers.

Hat tip to The Liberty Papers, whose post reminded me that I needed to write a post of my own.

The Care Bear Stare - Short Form

2007-11-23T15:59:00.000-05:00

People are more than welcome to read the post below on the Care Bear Stare. If you want the short-form version for people who think we can "will" our way to whatever outcome we desire, we can watch the Care Bear Stare in action.

The Care Bears Make A Comeback

2007-11-22T14:27:00.000-05:00

It was perhaps coincidental that I had read about the Care Bear Stare approach to solving all the world's problems (via Julian Sanchez) shortly after having a brief conversation with someone on foreign policy, stating that our struggles would be minimized, if not eliminated if only we had "the will". Care Bear-ism is, of course, not limited to one ideological side. The only difference is how each side chooses to employ it.

Rod Dreher's article on Real Clear Politics describes how this all works:

Behind The Care Bear Stare is the ideological conviction that there's no problem that can't be solved by the power of human intelligence and relentless application of good will. It's premised on the refusal to recognize limitation, as well as an inability to accept that some things simply must be lived with, at least for the time being. The Care Bear Stare is the psychological weapon of choice for people who cannot reconcile themselves to a world without guaranteed happy endings.

Alas for the Care Bears and their cute little tummies glowing with gladsome light, we live in an imperfect world. History teaches that the attempt to perfect it is not only futile but could make things worse (e.g., communism as a solution to povertyand inequality). This tragic vision does not deny the possibility of betterment but cautions that meaningful progress usually occurs incrementally, after skeptical deliberation; almost always requires compromise; and is never permanent.

And then there's the Care Bear vision, which takes as given the perfectability of humankind and correspondingly interprets all problems as fixable, given the right conditions. Care Bearism involves, in Thomas Sowell's words, "a disdainful dismissal of arguments to the contrary as either uninformed, irresponsible or motivated by unworthy purposes." Should the critics prove, after the fact, to have been right, Care Bearists grant themselves absolution because their hearts were in the right place.

Since at least the 1960s, liberalism has provided an ideological wigwam under whose pastel-colored flaps the Caring-American community has gathered to emote and caucus in its therapeutic and sentimental fashion, always looking forward to a better future (in part, because it means they don't have to look at the wreckage of their past schemes). Some latter-day conservatives began as liberals, until they understood that The Care Bear Stare was no effective defense against problems originating in human nature, which is not infinitely malleable, and in the intractability of evil.

Conservatives - even compassionate ones - pride themselves on being hard-headed realists who roll their collective eyes at the fuzzy-wuzzy schemes of the goo-goo left. But the right is by no means averse to indulging in The Care Bear Stare when doing so suits its purposes.Care Bear Conservatives, for instance, proclaim that the only thing standing between us and victory in Iraq is belief in ourselves and our cause.

Never mind the persistence of sectarian hatred and the cultural unsuitability of Iraqis for liberal democracy - if the U.S. ultimately withdraws from Iraq having failed to achieve victory, Care Bear Cons will argue, as they did post-Vietnam, that the news media sapped the will of the American people.

Care Bearism is irrational, intellectually dishonest and an exercise in sheer hubris. While I do not mind a "can do" attitude, the manner in which disagreements are met is exactly how Thomas Sowell describes it. A great summary of this was written by Patrick of Driving Out the Snakes. While his focus was more narrow, it still applies to anyone so unshakable in their beliefs that the possibility that they can not be wrong is out of the question. When faced with disagreement, especially one that calls credibility to their own views, the fundamentalist either "1) ignores it; 2) dismisses it or 3) insults whoever said it."

Moreso, it is beyond naivety to imply, as Care Bearism does, that all factors beyond our control can somehow be brought under our control. Anyone who understands how unintended consequences, especially those brought about by some form of state intervention, can exacerbate the very problems such intervention was aiming to address, are skeptical if not outright hostile to this notion.

Lastly, I am plainly sick and tired of people trying to point the finger elsewhere without looking at their own views first. Blaming Hollywood, the left, the mainstream media, Ron Paul or whatever target du jour presents itself does not impress me. Frankly, I find it kind of lazy.

Happy Thanksgiving

2007-11-22T12:21:00.000-05:00

Enjoy the holiday.

I'll probably be blogging lightly and updating the blogroll. I have far more blogs on my RSS feed than in here so I'm reading more than what my lists indicate.

Supreme Court to Hear Landmark 2nd Amendment Case

2007-11-20T14:35:00.000-05:00

Via Cato-at-Liberty, the Supreme Court will hear the case involving the constitutionality of Washington, DC's ban on guns. It will be a major victory for individual rights if the ban is overturned. I am hoping for that outcome.

Catohas some interesting commentary on Bob Levy, the scholar who has been instrumental in getting this case to the Supreme Court. In addition, the Center of Constitutional Studies has a variety of informative resources regarding The Second Amendment. The link above will send you in the right direction.

Also, an informative piece about the case and some of the players behind it is in this month's edition of the ABA Journal online (here).

The case is Parker v. District of Columbia

Regime Stabilization in Pakistan?

2007-11-20T12:40:00.001-05:00

In todays NYTimes, Frederick Kagan and Michael O' Hanlon believe that now is the appropriate time to think about "our feasible military options in Pakistan".

Pakistan’s officer corps and ruling elites remain largely moderate and more interested in building a strong, modern state than in exporting terrorism or nuclear weapons to the highest bidder. But then again, Americans felt similarly about the shah’s regime in Iran until it was too late.

Moreover, Pakistan’s intelligence services contain enough sympathizers and supporters of the Afghan Taliban, and enough nationalists bent on seizing the disputed province of Kashmir from India, that there are grounds for real worries.

The most likely possible dangers are these: a complete collapse of Pakistani government rule that allows an extreme Islamist movement to fill the vacuum; a total loss of federal control over outlying provinces, which splinter along ethnic and tribal lines; or a struggle within the Pakistani military in which the minority sympathetic to the Taliban and Al Qaeda try to establish Pakistan as a state sponsor of terrorism. All possible military initiatives to avoid those possibilities are daunting.

With 160 million people, Pakistan is more than five times the size of Iraq. It would take a long time to move large numbers of American forces halfway across the world. And unless we had precise information about the location of all of Pakistan’s nuclear weapons and materials, we could not rely on bombing or using Special Forces to destroy them.

The task of stabilizing a collapsed Pakistan is beyond the means of the United States and its allies. Rule-of-thumb estimates suggest that a force of more than a million troops would be required for a country of this size. Thus, if we have any hope of success, we would have to act before a complete government collapse, and we would need the cooperation of moderate Pakistani forces.

I do not dispute that the collapse of Pakistan could pose problems for us, but as I have seen nothing that indicates that this will happen anytime soon. I think we're putting the cart before the horse here. However, there are greater problems here.

Furthermore, with Iraq, an argument was made for preventive war ("regime change" if you will) on the basis that the WMD program did pose an immediate threat to the security of the United States. Now, we have an argument for a preventive war to prevent a situation where we have to go to a war that could be far more daunting and challenging than what we have faced before? We fight now so we don't have to fight later? Are we suggesting that our foreign policy calls for us to use military force against the possibility, however remote, that an enemy "may" be a threat to our national security at some undetermined point in the future?

Kagan and O'Hanlon, at seems, are selling "regime stabilzation" as part of our wide array of products and services designed to make the world safe for democracy. If I order now, do I get the free AEI Signature Series neoconservative bobblehead doll whose head pops off at very mention of Ron Paul's name?

Anyway, quoting Erin Manning at CrunchyCon:

Although I certainly want America and Americans protected from terrorists, I also want America to remain America, and I can't even imagine any of the founding fathers accepting acquiescently the notion that the government of the United States has the power to fight an embryonic "pre-war" in an effort to maintain the status quo of our relationship with another sovereign nation. To be blunt, I can hardly imagine a less American idea.

Gasp!!! You don't want another 9/11 do you? Just kidding. I couldn't have said it better myself.

Not Like I Needed Anyone to Tell Me...

2007-11-16T14:44:00.001-05:00

Cash Advance Loans

Must be my good looks.

My Favorite Scene From Mars Attacks

2007-11-16T14:32:00.000-05:00

How interesting. Ron Paul's speeches and/or political views seem to have the same impact on certain segments of the population.

Bizarre...

2007-11-16T10:40:00.001-05:00

(via CrunchyCon and The Debatable Land)

A man caught trying to have sex with his bicycle has been sentenced to three years on probation...Robert Stewart, 51, admitted a sexually aggravated breach of the peace by conducting himself in a disorderly manner and simulating sex...Sheriff Colin Miller also placed Stewart on the Sex Offenders Register for three years.

Ouch. A sex offender registry to boot?

A commenter at CrunchyCon asked whether or not Lawrence v Texas would apply to this case. If this were in the United States and not Scotland, the conviction would be overturned in my opinion.

I would pay money to sit in on the oral arguments for a case like this. I read the Lawrence transcript and was more than entertained at the ill-fated attempts by the State of Texas to explain the "rational basis" of their now overturned sodomy law. I can only imagine how hard I'd be laughing at the attempted justifications of protecting bicycles from evil fornicators.

It could look a little something like this: although you'd have to substitute the drug reference for our current subject (from one of my favorite South Park episodes):

Having a twisted sense of humor has its advantages.

Not that I would ever do this...

2007-11-16T10:19:00.000-05:00

Order a custom cake from Wal-Mart:

The funny thing is that I've had people doing word processing work for me that actually did something like that once. I didn't laugh then but I suppose I can laugh about it now.

via Andrew Sullivan

Redefine Privacy?

2007-11-13T10:49:00.000-05:00

It is amazing that people like this are referred to as intelligence officials. This is not the way I would initiate a discussion on privacy, but leave it to a government official to fall short of my expectations (I've compiled the quotes from the above link):

"Those two generations younger than we are have a very different idea of what is essential privacy, what they would wish to protect about their lives and affairs. And so, it's not for us to inflict one size fits all...
Protecting anonymity isn't a fight that can be won. Anyone that's typed in their name on Google understands that...
Our job now is to engage in a productive debate, which focuses on privacy as a component of appropriate levels of security and public safety...
I think all of us have to really take stock of what we already are willing to give up, in terms of anonymity, but (also) what safeguards we want in place to be sure that giving that doesn't empty our bank account or do something equally bad elsewhere."

If I order a PC from Dell, I am not doing so anonymously, and, by entering into the transaction, I consent to having certain information provided as part of the transaction, including information that I do not want shared with anyone else. I expect Dell to take all reasonable measures to protect my personal information based on whatever terms and conditions we mutually agree to (i.e. - using zip codes for "marketing purposes"). Although imperfect, the free market has done a good job of addressing information sharing and how that information is to be protected. As incentives exist, people (entrepreneurs) step in to provide solutions. We're already 20 steps ahead of Donald Kerr.

Furthermore, if we really need to redefine our "reasonable" expecation of privacy, we should at least understand what constitutes a reasonable expectation of privacy. For me, it is clearly summarized as the opening paragraph of Justice Harlan's concurring opinion in the landmark Katz v United States (1967):

(a) that an enclosed telephone booth is an area where, like a home, Weeks v. United States, 232 U.S. 383, and unlike a field, Hester v. United States, 265 U.S. 57, a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic, as well as physical, intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment, [p361] and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.

Therefore, if 1) the Fourth Amendment protects persons from unreasonable searches, such as monitoring electronic communications originated from a private place (such as a home) without a search warrant, and 2) exceptions to the warrant rule have, to my knowledge, never applied to a search within a home (hot pursuit notwithstanding), then how is one to "expect less privacy" without accepting the notion of increasing instances of warrantless searches if not the elimination of the warrant requirement from the definition of reasonable (per Katz, and recently reaffirmed, albeit indirectly, in Kyllo v United States (2001))?**

This would require such a profound shift in constitutional doctrine that I think the only way to appropriately address this is via an amendment.

Adding fuel to the fire, as others have mentioned (here and here), the administration has been, nicely put, less than noble in respecting the rule of law or using surveillance outside of what most reasonable observers may think as appropriate. The very people who want to have a conversation with us to suggest we "refine" our view of privacy are the same ones who have acted in such a way that makes it very difficult to trust them.

I have no problem with people like Donald Kerr wanting to have a sort of rhetorical sit-down to discuss what he thinks we need and why should refine our expectations of privacy. I will always listen. However, I will not hesitate to remind him (and other likeminded individuals) that there is a right way and a wrong way to go about doing things.

Hat tips - KipEsquire, Dispatches from the Culture Wars

** As a clarifying footnote, in Kyllo, the question before the court was whether or not the use of a thermal imaging decision to detect heat signatures consistent with the cultivation of marijuana was considered a search in the constitutional sense. Because it was considered a search and the police did not secure a search warrant, the search was considered unreasonable.

Joe Lieberman for Vice President?

2007-11-12T09:01:00.001-05:00

For the Republicans? William Kristol seems to think this is a winning idea:

As for Rudy and John and Fred and Mitt and Mike: Take a break from kissing babies to pick up the phone and congratulate Joe. Seek his endorsement after you win the nomination. What the heck--offer him the vice presidency. (Rudy, you might try State or Defense, since you'll need a pro-life running mate.) But McCain-Lieberman, Thompson-Lieberman, Romney-Lieberman, Huckabee-Lieberman--those sound like winning tickets to us. It's true, given the behavior of the congressional Democrats, the GOP nominee might well win with a more conventional running mate. But why settle for a victory if you can have a realignment?

The "congratulating Joe" bit has to do with the speech that is cited on the first page of that article, where Lieberman laments the current direction of the Democratic Party, although his complaints about the Democrats retaking Congress should not be news to anyone. The Democrats were not elected to pursue Lieberman's vision. If voters wanted that, the GOP would still be in control of Congress.

Anyway, Daniel Larison has some thoughts:

This seems unhinged to me. Realignment? Because of Joe Lieberman? In the context of a presidential election, realignment implies a landslide with 40+ states lining up behind a ticket, a dramatic, sudden shift in the balance of power from one party to another. 1932, 1968, 1980 are often given as the elections where major realignments occurred, which involved the building of broad electoral coalitions. What Kristol proposes is that nominating Lieberman would create the conditions for such a massive victory for the Republicans, when the woes of the latter are closely tied to the foreign policy decisions that constitute the chief reason why Kristol admires Lieberman and thinks he should be a VP nominee.

Unless people are focusing exclusively on national security that people pay attention to nothing else, I can not see liberal hawks throwing themselves behind a socially conservative President. Furthermore, if I were a betting man, I'd guess that the number of people gained would be far less than the number of people heading for the exits. It would not just be because of Iraq. As David Boaz of The Cato Institute points out:

Only if you believe that continuing to support the war in Iraq outweighs all other issues combined–for the next five years–could a conservative reasonably support Joe Lieberman. And apparently some Republicans and conservatives are willing to toss aside his commitment to high taxes, higher spending, more regulation, and entitlement expansion in order to get a vice president firmly committed to long-term entanglement in Iraq.

Well, it's not like The Republican Party has shown anything close to a committment toward that silly and outdated notions like limited government and fiscal responsibility. let alone liberty

In any event, if Giuliani is the frontrunner, this is all moot, although I'd be amused to see two liberals running under the banner of "conservatism" (although others probably won't find it funny at all - nor should they).

Note to Self...

2007-11-11T17:45:00.000-05:00

Try not to blog with a 101 degree fever and a respiratory infection.

Bad things can happen, like saying good things about universal health care.

They can't win...

2007-11-10T17:44:00.001-05:00

About gays...

Here is a little gem Ed Brayton quotes on Dispatches from the Culture Wars and then proceeds to demolish thereafter. From the imitable Rick Scarborough:

Homosexuals are attempting to use the legislative process to bring their sexual practices and preferences into our workplace and discriminate against people of faith. They are attempting to do this under the disguise of a new employment discrimination law.

Remember, when gays go the courts to fight to get blatantly unconstitutional laws struck down, it's "judicial activism". We are then reminded that the "proper" approach is going through "legitimate" democratic processes. When that is done, the same group of, ahem, individuals, view this as an assault on their values.

The homophobic bigot mindset runs on the principle of mind over matter: if we mind, you don't matter.

I have little use for clowns like Rick Scarborough.

Laughter is the Best Medicine:

2007-11-10T14:58:00.001-05:00

I have been feeling like crap for the better part of the last week, especially today. For a good ten minutes or so, I got to forget all about that. I was laughing so hard I was nearly in tears. Hat tip to KipEsquire, the Hero of the Day!:

Go here (I can't get this on my page...too bad)

What do I think could trigger such a response?

He hates the Iraq war. He hates the rest of our foreign policy. He pretty much thinks we shouldn't have a foreign policy. He hates our bloated and meddlesome federal government. (What's that they say about stuck clocks?) He hates abortion. He hates the Treasury and floating currency. Basically, he wishes it were 1796 and he could wear a powdered wig without being ridiculed in public.

I was going to offer up the suggestion for a tin foil hat, but I think I really like this instead. Silence from certain segments of the political blogosphere would be a welcome thing, at least until my headache goes away.

My type of humor.

A Response to Tim Lee

2007-11-09T23:03:00.000-05:00

Tim Lee at Angry Blog wrote a thoughtful response to Tim Sandefur's criticism of Ron Paul (Sandefur responds here). In that were some comments made in my second of two criticisms of Rep. Paul's position. Although Sandefur (I'll use last names as it'll be easier) responded to every point, I would like to elaborate on the comments made toward the quote Lee attributes to me. I'll post the relevant portion of the text:

I think the same principle applies to the claim that “no right-minded libertarian subscribes to Bork’s (or Paul’s) pandering to democratic majorities.” There’s absolutely nothing contradictory about saying that the constitution permits states to enact some statist policy (abortion restrictions, sodomy laws, hate crime laws, etc) but that one doesn’t think that policy should be enacted. Indeed, I would argue that intellectual honesty requires libertarian legal scholars to concede in at least some cases that the constitution to enact policies that we don’t agree with. It would plainly be silly to argue that the constitution doesn’t permit federal post offices.

In principle, I agree with this in its entirety. There is nothing contradictory about making certain statements about statist policies in terms of being opposed to them yet acknowledging the Constitution permits them. I think a great example of this is the ruling in the 1877 case of Munn v Illinois, where the Supreme Court upheld a state law regulating rates for grain elevators and warehouses on the basis that the "property is affected with a public interest". As a libertarian, I love Justice Field's dissent; however, I concede here (and in other cases as well) that a case can be made for its constitutionality although I don't like it (one can argue it set up one of the worst decisions ever handed down by the court, the 1934 case of Nebbia v New York).

There are numerous regulations that may legitimately serve public health or public safety concerns and that are neutral in nature (they don't serve to favor or disfavor one or multiple groups. Some of these I may find repugnant to my libertarian beliefs, but if they legitimately protect the rights of the general public, from a constitutional standpoint, I would concede that these do not exceed the proper role of the state police power. I may dislike them but the Court should uphold them.

Although these are fair points to bring up, the issue here is not that I think libertarianism and the Constitution go hand in hand (I have never made that claim and never will although I could have been unclear). The question is whether or not Rep. Paul's views on what states can or can not do reflect the proper role of the state police power, which has support in the Constitution. If we define the proper role of the state police power as 1) preventing wrongful acts on others and 2) passing laws and establishing regulations that serve to protect the rights of others (i.e. laws that involve public health, public safety, public welfare and, to some extent, public morals issues), then, as Sandefur argues, he has exceeded that threshold quite considerably. I will also state that the proper role of the state police power would constitutionally permit several types of laws that libertarians of all stripes would undoubtedly find offensive. I never intended to suggest otherwise.

One last point, I appreciate Lee's citation of the debate between Gene Healy and Roger Pilon. Here is a more extended treatment of the discussion. Perhaps the most troubling apsect of Healy's solution in this article that he basically suggests that we suggests that we are "freer to adopt a narrow construction of the 14th Amendment than we would otherwise be". This is based on the circumstances on which the amendment was ratified (I understand the history but can offer no response).

Healy puts the concept of interpretation as a matter of illegitimacy on the table, in a sense, to prevent the Left from taking a broad interpretation (which he argues they have). My concern is that with the idea of illegitimacy on the table and no foreseeable way to limit the concept of what is illegitimate to ratification, then there is nothing at all from stopping the Left from applying its own principle of illegitimacy as an excuse to interpret the Constitution as they see fit. As we know, they have already one this, arguing that the original document as ratified is illegitimate and lacks moral authority because of the compromises with slavery (Harry Jaffa discusses Thurgood Marshall's views here in the context of liberal judicial activism).

Whether well-intended or not (I think it is, for what it's worth), the principle Healy invokes is the same principle that justified the very thing he seems to deplore. Am I missing something here? By all means, I am open to suggestions and comments on this matter. I don't mean to suggest Healy is a liberal judicial activist (his writings at Cato and his libertarian views certainly suggest otherwise), but there were a couple of things that struck me as odd. That's all.

A Perverse Sort of War

2007-11-09T10:51:00.000-05:00

Let's say two countries declare war on one another (A and B). The government of A launches the first strike, a direct assault on the Citizens of A. Seeing this outrage, the government of B launches a counterattack on the Citizens of B. Not to be outdone, A will no sooner raise the stakes, doing further harm to the Citizens A, which will undoubtedly be matched by increased harm to the Citizens of B. So the cycle goes.

This is, in a nutshell, economic protectionism. To "protect" one's industries from the "evils" of global competition, requires the state to tangibly harm its citizens. Tariffs do a wonderful job of this, and at their worst, can be devastating. Consumption is reduced. Output is reduced. Trade is reduced. This is all in the name of "protecting" us from harm.

Help us by hurting us. Perverse indeed.

Hat tip to Cafe Hayek

ENDA, Civil Rights and Civil Liberties

2007-11-09T10:07:00.000-05:00

A quick post written by Julian Sanchez more or less sums up my position on ENDA or any anti-discrimination law for that matter, as "civil liberties groups would want the whole thing scrapped as a burden on freedom of association, because civil liberties are immunities from government imposition". I think this is spot on correct. Civil liberties, or immunities, those rights that pre-exist government and those rights that are not surrendered to general government (and were not under our Constitution) are not the same as civil rights, as civil rights are typically established through the democratic process and defined as a matter of positive law.

However, libertarians may want to consider an alternative approach. As KipEsquire has explained:

I stick to my view that it is no betrayal of libertarian principles to insist that a law that you may disagree with facially at least be applied as reasonably and as consistently as possible. Stated differently, even if a libertarian paradise would have neither room nor need for a hate crimes law, the fact that we have one demands that it be the most objectively sensible one possible — and that in turn demands that sexual orientation be included. A bad law applied well is better than a bad law applied badly.

Moreso, cutting off one's nose to spite one's face as a matter of principle is one thing. Cutting off the noses of other people to spite one's face is a whole other matter, and unjust. Footnote Four of U.S. v Carolene Products, one of, if not the key structural element of modern constitutional rights jurisprudence (for good or for ill), states in its last paragraph:

... Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious ... or national ... or racial minorities ...: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry

While practice, quite unfortuneately, has been inconsistent with principle, the principle is clear: if we have a legal regime that has civil rights laws that protects classes of individuals based on a designation of "being a discrete and insular minority" (and laws that will not go away anytime soon), then on principle, this should apply to all groups. Period. Libertarians may be (rightly) offended by the encroachment on natural rights as a matter of principle, but it is, to me at least, no less offensive and very bad policy to have laws applied unequally, whether we think those laws conform to our principles.

$9 Trillion

2007-11-08T15:49:00.000-05:00

I heard it on the radio this morning and just read about it over at Andrew Sullivan's blog. To paraphrase: Between Washington and Reagan, we accumulated $1 Trillion in debt. Between Reagan and Bush II, that number has increased to $9 Trillion.

Sullivan (rightly) beats President Bush over the head with this, but Congress is equally culpable. Since President Bush took office, the debt limit has been raised five times, and each of those five times, Congress sent a bill to the President so he can sign it.

A little fiscal responsibility would be nice, although I'm sure it's wishful thinking (oh and the variety that doesn't purport to raise taxes under the guise of being responsible).

This is a joke, right?

2007-11-08T14:51:00.001-05:00

Via Brian Doherty, from an article written by Justin Logan (an interesting read), comes this zinger about Norman Poderhetz:

Podhoretz penned a meandering essay in Harper's in 1977 titled "The Culture of Appeasement" which likened antiwar sentiment in post-Vietnam America to the wariness of war in Britain after World War I, and then linked the latter to a homosexual yearning for relations with all the young men who perished in the Great War. In Podhoretz's view, "the best people looked to other men for sex and romance," and as a result, didn't much like them being killed by the score on the Continent. "Anyone familiar with homosexual apologetics today will recognize these attitudes."

Tying things back into the 1970s, Podhoretz pointed to the "parallels with England in 1937" and warned that "this revival of the culture of appeasement ought to be troubling our sleep." (A correspondent in a subsequent issue of Harper's would admit that he "had not previously realized that Winston Churchill fought the Battle of Britain almost singlehandedly while England's ubiquitous faggotry sneered and jeered from below.")

I suppose I should feel comforted that my anti-war position has called only my patriotism into question and not my masculinity. I guess this is what we call progress? Wow.

Not uncoincidentally, this little "thesis" reminded me of something Murray Rothbard wrote in his review of Poderhetz's Breaking Ranks, a Political Memoir. Fans of Poderhetz would do best not to read it:

In fact, there is a still greater irony in the Podhoretz saga. He jabs at Arendt’s concept of the "banality of evil," but his very own life demonstrates that Arendt was right. For Norman Podhoretz has not only fostered evil by his corrosion of true intellectual standards, his ethnic narcissism, and his promotion of the statist status quo; he also represents banality through and through. Were this a just society, Podhoretz would be spending his years as a writer for some AFL-CIO sheet, trotted out at union conventions as one of their resident intellectuals. As it is, we all have to put up with the continuing infliction of this schmendrick upon our consciousness, and we will have to begin to brace ourselves for the inevitable next installment of the living legend of Norman Podhoretz.

Ouch.

Milton Friedman on Greed

2007-11-08T10:53:00.000-05:00

I don't remember the first place I saw this, but I liked it so much I am posting it here. He takes Phil Donahue to school. I'll be glad to give the hat-tip but I don't know who to give it to. Sorry.

Away we go:

Hurricane Noel - Christmas for Surfers and Bodyboarders

2007-11-08T10:17:00.000-05:00

Not that I should really like things that can cause great losses of life and property, but as a bodyboarder, I had the pleasure of riding some waves that were left over from the swells caused by Hurricane Noel.

Here is a link with some fantastic pictures of what mother nature offered East Coast surfers and bodyboarders. Luckily for me, I was in the water on Sunday and not Saturday. I didn't have to deal with the overhead stuff but more of the waist-to-chest high variety. Besides, because of the north winds, the Jersey shore was a sloppy mess, but Long Island was gorgeous, as some of those pictures will show.

Ron Paul - Judicial Conservative?

2007-11-07T11:02:00.000-05:00

While I thought I would have left Ron Paul alone after explaining why I will not support his campaign, Tim Sandefur served up an opportunity that was too good to pass up. Quoting Rep. Paul re: Lawrence v Texas (my emphasis added):

Consider the Lawrence case decided by the Supreme Court in June. The Court determined that Texas had no right to establish its own standards for private sexual conduct, because gay sodomy is somehow protected under the 14th amendment “right to privacy.” Ridiculous as sodomy laws may be, there clearly is no right to privacy nor sodomy found anywhere in the Constitution. There are, however, states’ rights—rights plainly affirmed in the Ninth and Tenth amendments. Under those amendments, the State of Texas has the right to decide for itself how to regulate social matters like sex, using its own local standards. But rather than applying the real Constitution and declining jurisdiction over a properly state matter, the Court decided to apply the imaginary Constitution and impose its vision on the people of Texas.

Outside of a perhaps small group of libertarians, libertarians were pleased with the Lawrence decision. Rep. Paul's comments reflect the mindset of the "New Deal Jurisprude", who believes that unenumerated liberties should be determined via democratic process rather than vigorously protected against the passions of democratic factions. On that note, he sounds more like a judicial conservative, echoing similar sentiments heard amongst conservatives when the Lawrence decision was handed down.

Moreso, I do not read the Ninth and Tenth Amendments the way Rep Paul does. The Tenth Amendment states, clearly, that those powers specifically not granted to the federal government are reserved to the states or to the people. From this, we can draw two conclusions: 1) the amendment itself is a reaffirmation of the pre-existing constitutional structure. It adds nothing that can not be derived from the original Constitution. 2) the Tenth Amendment recognizes additional powers that fall to local responsibility but in no way makes any determination as to what those powers are or what those powers are not. In other words, the Bill of Rights does not define the proper role of the state police power (although, properly interpreted, it establishes firm constraints with respect to the Privileges or Immunities and the Due Process clauses of the 14th Amendment). It may begin the discussion, but it does not end it.

Also, if the Ninth Amendment suggests that individual unenumerated rights are to be protected in the same fashion as enumerated rights, what pray-tell does this have to do with states rights? Furthermore, as the Ninth Amendement describes individual rights and the Tenth Amendment describes power, why conflate the two?

I know there is some scholarly research that addresses this (i.e. the Ninth Amendment debates between Randy Barnett and Kurt Lash), and, although I may have a passing knowledge of the issues, I am not up to speed on all of the arguments. However, that is basically irrelevant. This is not a debate about the proper way to interpret the Constitution (I do not ignore the possibility that my view of things could be - or have been - proven to be different than how I understand them to be). To me, he is more Robert Bork than Randy Barnett, and no right-minded libertarian subscribes to Bork's (or Paul's) pandering to democratic majorities at any level of government. Libertarians know better.

Now, why do people refer to him as a libertarian? I agree with Sandefur that he his more akin to a paleoconservative.

Hat tip to Tim, although I think that his link "II" at the bottom of his post is a duplicate of "I". I'd really love to read that Part II. :)

Utah Voucher Referendum Fails to Pass

2007-11-07T10:56:00.000-05:00

According to Cato-at-Liberty, with 90% of precincts reporting, the referendum was defeated by a 3-2 margin.

Someone's prediction was correct.

I can't say I'm thrilled, yet I can't say I'm surprised either.

Count me in as Number 4...

2007-11-06T23:52:00.000-05:00

KipEsquire, Tim Sandefur and Shawn Klein are all libertarians (damn intelligent ones at that) and none of them support Ron Paul. On that note, count me in.

On my now defunct ConLawGeek blog, I had recently made a few comments to the extent that I didn't think he was a libertarian (on a cached page of ConLawGeek, a couple of sentences are devoted to that point on the third post down). Since others have put forth some very well-written posts (or series of posts) on this matter, I thought I'd toss my hat in the ring and make my declaration as well.

For me, it was his support of the putrid DOMA, his voting for the Federal Partial Birth Abortion Ban (despite being a constitutionalist, which, by definition, would never equate an in-state abortion procedure with interstate commerce), his constant overtures to the concept of states rights, which any libertarian should find offensive (although it may be that certain paleolibertarians are comfortable with it - a notion I am admittedly wrestling with a bit but for the time being I'll leave alone).

Now, courtesy of Mr. Sandefur, I just had my first experience with Ron Paul on the Establishment Clause. Needless to say, I'm not impressed. In fact, I would have surmised that a standard bearer for libertarian ideas would not come across as a crude version of a Bill O' Reilly-esque culture warrior of sorts.

I not only hold that one equal right of conscience stems from the natural right of one's self ownership, but also that the proper role of the state police power, which, at least from the classically liberal perspective, could accept legitimate regulations pertaining to public health, public safety and public welfare regulations so long as their application is equal in nature, has no room for any sort of law that would purport to favor one religion over another or religion over "non-religion" in general. To deviate from these principles would be completely anti-libertarian.

The analyses put forth by Kip, Tim and Shawn are far more indepth than mine so I would certainly check those posts out as well. The only complaint I have is that I think Shawn, perhaps a bit unfairly, mischaracterizes The Cato Institute's as, I suppose, isolationist by advancing the view that "if we only leave the Islamists alone, they would not attack us".

While The Cato Institute's position is generally one of non-intervention, as I review the Cato Handbook for the 108th Congress, I think the policy recommendations are nothing like the isolationist position some paleolibertarians have taken. In fairness, while the Handbook is four years old, it is my understanding that its position on this matter has not changed (I could be wrong on this). Granted, Cato's positions may not be as robust a policy as some may like it to be, but it does not logically follow that they advocate isolationism.

Aside from that, everything else I agree with.

Tim Sandefur on Clint Bolick's New Book

2007-11-06T20:48:00.000-05:00

Tim Sandefur has a very interesting review of Clint Bolick's David's Hammer - The Case for an Activist Judiciary available - here. While I have not read the book, I am familiar with its contents, as I did make it a point to view the presentation Clint Bolick made to the Cato Institute last April.

A few comments:

It is worth noting that we should all pay very special attention to the striking similarities between judicial liberalism (circa the 1930s and even today) and judicial conservatism (i.e. Robert Bork). Both schools of thought believe that mere majorities, if a "rational" basis exists for a law, can determine the rights of individuals. Sandefur has, in the past, referred to this as the "liberty of the wolf", which he does in this review of Kermit Roosevelt's The Myth of Judicial Activism. Randy Barnett has also addressed this in the past both as a blogger and in his book Restoring the Lost Constitution.

To further reinforce Sandefur's point on this matter, please be sure to check Clint Bolick's presentation at the Cato Institute, if not for his comments, for the comments made by Jeff Rosen (from the liberal perspective) and Ed Whelan (from the conservative perspective). There are some notable similarities.

Also, I have always liked the way Sandefur presents his arguments because they are concise, readable and highly informative. He boils down Bolick's lessons to the fundamentals. Perhaps the only reason why I would comment on a book reviewer's review without actually having read the book first is because of the presentation of Bolick's key takeaway points. There are three and they not only clearly illustrate constitutional theory from a libertarian perspective, but also how greatly they differ from modern constitutional doctrine:

1. Legislative activism poses the greatest threat to liberty
2. A judiciary that upholds an unconstititonal law do far greater damage to the cause of liberty
3. Liberty comes before democracy

These are points worth remembering, even if I have yet to read the book, although at some point I will.

So easy to use that I'm an idiot for not doing so sooner...

2007-11-06T12:32:00.000-05:00

I have been blogging, if one wishes to call it that, for about 18 months and I just started using a RSS Reader this morning. In less than 10 minutes, I was up and running using the Google Reader. It seems like a good one to use although I'm (obviously) no expert on this.

I think I prefer web-based readers because I tend to blog from at least two different computers.

I can see why people don't like blogs that don't have RSS feeds. It's so much easier to find updated posts that I wonder why I didn't do this sooner.

I would be thrilled if I wasn't a bit embarrassed, although certainly not embarrassed enough to tell the world about my idiocy. :)

On Utah's Citizen's State Referendum 1

2007-11-05T23:06:00.000-05:00

Reasonable people can and do disagree about school voucher programs. Hell, my mother and I have gone back and forth on this with me being for them and her against them. We agree to disagree. Fair enough.

Via Cato-at-Liberty, I discovered that voters in Utah will be voting on a school choice program. I wish the advocates, referred to, in perjorative fashion, as "Radical Friedmanites" by a left-wing knee jerk reaction on the Salt Lake Tribune's editorial page that reads like an editorial but is short on substance and perhaps a bit long on rhetoric.

The editorial grossly mischaracterizes the school voucher plan as being offensive to the Constitution by routing taxpayer funds to private institutions through "the laundering medium" known as vouchers. Cute, but wrong. The Supreme Court upheld Ohio's Pilot Project Scholarship Program, a school choice program, in Zelman v Simmons-Harris on the basis that the program did not offend the Establishment Clause. I think the majority's opinion was correct and the reasoning sound, and most of it applies here:

1. The purpose of the program is to provide educational assistance to the poor - a very valid secular purpose.

2. The program itself is neutral to religion, as it focuses strictly on private choice. No one or group of religions are favored or disfavored.

3. In fact, it can be argued that religious institutions are disincentivized to take school vouchers, as the amounts that they receive from individuals receive a smaller amount of funds relative to the higher tuition rates they typically charge. With this disincentive in place, it almost makes it hard to argue with a straight face that an epidemic of taxpayer funds flowing from public coffers to private coffers would occur to the alarming degree school choice opponents make it seem.

I would also like to note that the Salt Lake Tribune's editorial laments the fact that under a system of school choice, private schools would be less accountable to taxpayers, and that their teachers would not have to be certified and the testing would be less rigorous. Call me a skeptic, but when I see teacher certification being used as an argument against school choice, I see this less for the benefit of the students receiving the education and more for the teachers unions who have used the power of the state to achieve its position as a protected cartel, one that would struggle to survive had it been left to the forces of free market competition.

As far as accountability is concerned, a system of choice makes everyone equally accountable, as now public and private schools alike will be incentivized to respond to the needs and demands of those they are trying to serve, or else they will take their vouchers and go elsewhere. Is there a better form of accountability?

As Andrew Coulson points out in the Cato piece, many critics of school choice view the problem in terms of social conflict. I also note that social conflict is the predominant emphasis in the dissent in Zelman that was authored by Justice Breyer. Although I may have some sympathy in wanting to alleviate social conflict, a recent Cato Institute policy paper on public education demonstrates that public schools are a breeding ground for social conflict (more research from Cato here)

Unfortuneately, the Salt Lake Tribune has no interest in rationally debating the issue. Rather, it has to rely on misinformation, distortions and smears (the whole Milton Friedman - radical nonsense) to attempt to maintain an institution that has not served the children well and will continue to fail in this respect. After all, should we not be looking out in their best interest? They are our future.

When Conservatives and Feminists Unite

2007-11-05T21:42:00.000-05:00

As Stephen Chapman reminds us, in the 1980's, conservatives and feminists took up the common cause against the evils of pornography, not only on the basis of morality but on the basis of the supposed correlation between porn and sexual violence. As Chapman notes, pornography is more available than ever:
That's due in substantial part to the rise of the Internet, where the United States alone has a staggering 244 million Web pages featuring erotic fare. One Nielsen survey found that one out of every four users say they visited adult sites in the last month. So in the last two decades, we have conducted a vast experiment on the social consequences of such material. If the supporters of censorship were right, we should be seeing an unparalleled epidemic of sexual assault.

But all the evidence indicates they were wrong. As raunch has waxed, rape has waned. This is part of a broad decrease in criminal mayhem. Since 1993, violent crime in America has dropped by 58 percent. But the progress in this one realm has been especially dramatic. Rape is down 72 percent and other sexual assaults have fallen by 68 percent. Even in the last two years, when the FBI reported upticks in violent crime, the number of rapes continued to fall.

No one is going to suggest that correlation means causation, but this is worth looking at, if only for the intuitive result that the prognosticators were far off the mark (ok, so I like to stick it to nanny-state do gooders and moralists once and a while). Chapman also notes a paper presented at Stanford Law School that suggested that sexual urges do play a role in rape "and that pornographic Web sites provide a harmless way for potential predators to satisfy their desires". It is not conclusive theory, but from my own reasonableness standpoint, it does not sound out of the realm of reason.

Even with all this supposed moral evil, society seems to be doing quite fine, if the numbers are telling the right story.

Enough about me, what about me?

2007-11-05T10:56:00.000-05:00

Welcome to my new digs.

While I still have an existing website, Con Law Geek (which at the time of this writing is still down), I will probably be using that domain for some other personal uses and not blogging. Therefore, I have decided to make a home for myself over here.

The change, in many ways, is a refreshing one of sorts. When I began blogging, I had the intention of some light legal blogging with respect to constitutional law, yet I found myself frustrated for two reasons. First, my limitations of knowledge on the subject I was writing about drastically slowed down my ability to write, although each time I did, I overcame those obstacles by learning more about the material. In this case, there was always a silver lining in the clouds. Even if I never completed a blog post involving a constitutional issue, which happened more times than not, I have increased my knowledge base substantially since April 2006. That said, as I want to actually write and produce posts of my own, the pace at which this was going was unsatisfyingly slow for me.

The more frustrating aspect was that, as perhaps an unintended consequence of my developing love for political theory and study of political philosophy, my disdain for modern constitutional doctrine, already somewhat developed as a result of reading several books on consitutional law and the events and cases leading up to the transformation of constitutional doctrine in the mid-to-late 1930's, multiplied exponentially. We have gone from, to paraphrase Samuel Chase in his opinion in the landmark Calder v Bull, protecting citizens from laws that take from A to give to B to what Randy Barnett has described as a "presumption of constitutionality, where those rights not specifically enumerated in the Constituiton can be wished away by a mere democratic majority, upheld by a court so long as an argument can be made that a "rational basis" exists for a law.

As principles became more important than existing legal doctrine, I find myself looking at doctrine against principles, rather than evaluating cases and controversies and decisions in light of those doctrines. After a while, I was simply analyzing current events, social issues and other things that attracted my attention against my own libertarian principles. At that point, I stopped worrying about legal blogging at all. If something comes up, I will be sure to comment on it.

Thus, the reality is that I have moved away (and did perhaps even a year ago) from being a "Con Law Geek" and viewing myself as blogging from a legal perspective and come around to a more well-rounded style of blogging where I hope to blog on a variety of subjects and hoping to provide colorful commentary and analysis whenever I can.

This is probably not news to people who have read my work for some time, but I think that it is worth saying nonetheless for anyone who looks here for the first time. For those who do not know me, I am a 34-year old male, married with one son and hopefully another on the way. I live in New Jersey, work in NYC and am reminded everyday of the horrors of September 11 as I take the PATH train in the World Trade Center station.

My political views revolve around the concepts of natural rights (as Jefferson and Madison understood them), individual liberty, personal responsibility, free markets, limited constitutional government, epistemological humility and a strong national defense that does just that. My influences are too numerous to mention, but to throw out a few - John Locke, Thomas Hobbes, Adam Smith, FA Hayek, Thomas Jefferson, Herbert Spencer, Milton Friedman, Ludwig von Mises, Randy Barnett and Richard Epstein.

The general areas of academic study I have found most interesting have traditionally been economics, finance and law. In the past twelve months or so, I have delved more into political theory, philosophy and, to a lesser extent, public policy. It has been in the last couple of months that I have, albeit slowly, began dabbling in serious foreign policy study. Given work, family, life and other writing committments, it is a slow go but one I hope to shed more perspective on as time passes.

If new readers have found me and read the title of my blog, they will know what my political persuasion is so there's little need to say more about it than I already have. My analysis and commentary will come from that perspective. Disagreements are expected if not encouraged as well as civil discourse.

Again, thanks for stopping by.

Test

2007-11-05T10:43:00.001-05:00

More to come...