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Archive for the ‘Civil Liberties’ Category

Bill Clinton is often quite a delight as ex-president, free to opine on a variety of subjects without being confined by anyone’s talking points. Case in point: his comments on Edward Snowden delivered before the Naval Academy earlier this week. As reported by Dustin Volz (National Journal):

“Mr. Snowden has been sort of an imperfect messenger, from my point of view, for what we need to be talking about here,” Bill Clinton said during a 50-minute speech at the Naval Academy in Annapolis, Md. “The Snowden case has raised all of these questions about whether we can use technology to protect the national security without destroying the liberty, which includes the right to privacy, of basically innocent bystanders.”

And

“We cannot change the character of our country or compromise the future of our people by creating a national security state, which takes away the liberty and privacy we propose to advance,” Bill said Wednesday, adding, “Don’t kill the goose that laid the golden egg.”

I am assuming many would disagree with his statements, including the former Secretary of State and the current President. But this appears not to trouble him in the least. Give him a podium and he will speak (and speak). That is the unbearable lightness of being Bill Clinton.

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Reporters without Borders has issued its annual World Press Freedom Index (map here, discussion here). The US has tumbled to 46, just above Haiti. To place things in context, the US was 17 in 2002 when the first index was published.

printing-press-tyrants-foe

As Reporters without Borders explains:

Countries that pride themselves on being democracies and respecting the rule of law have not set an example, far from it. Freedom of information is too often sacrificed to an overly broad and abusive interpretation of national security needs, marking a disturbing retreat from democratic practices. Investigative journalism often suffers as a result.

This has been the case in the United States (46th), which fell 13 places, one of the most significant declines, amid increased efforts to track down whistleblowers and the sources of leaks. The trial and conviction of Private Bradley Manning and the pursuit of NSA analyst Edward Snowden were warnings to all those thinking of assisting in the disclosure of sensitive information that would clearly be in the public interest.

(more…)

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Snowden v. Leviathan

One of the more consequential events of the 2013 involved the ongoing revelations about the NSA.  Barton Gellman (Washington Post) has an excellent piece on Edward Snowden based on some recent interviews.  One excerpt:

“For me, in terms of personal satisfaction, the mission’s already accomplished,” he [Snowden] said. “I already won. As soon as the journalists were able to work, everything that I had been trying to do was validated. Because, remember, I didn’t want to change society. I wanted to give society a chance to determine if it should change itself.”

I remain uncertain as to what to make of Snowden. But clearly his revelations have forced a higher level of attention to the surveillance state created in the wake of 9/11. Whether there are significant changes in policy remains to be seen. Crisis invariably leads to an expansion of state power, and as Robert Higgs reminds us, it is usually a one-way ratchet.

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Madison Aghast

U.S. District Court Judge Richard Leon ruled yesterday that the NSA collection of metadata is likely unconstitutional under the 4th amendment (Klayman et al., v Obama et. al.). The most notable paragraph:

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.  Surely, such a program infringes on ‘the degree of privacy’ that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.” (p. 64)

It is an interesting decision (for example, on page 49, Leon describes the technology used to store and analyze metadata as “almost-Orwellian.” On page 61, when questioning the efficacy of the program, he notes that “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”). The footnotes are interesting as well (e.g., an analogy to the Beatles in note 36).

It will likely be some time until the decision works its way through the process–I imagine it will end up at the Supreme Court. You can find the complete decision here.

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A Living Death

The Economist has a painful piece about mandatory life sentences in the United States, much of which is drawn from a new report by the ACLU entitled “A Living Death.” A few interesting points:

  • At least 3,278 people are serving life sentences without parole for non-violent crimes.
  • “Around 79% of them were convicted of drug crimes. These include: having an unweighably small amount of cocaine in a shirt pocket, selling $10-worth of crack to a police informant and mailing small amounts of LSD to fellow Grateful Dead fans. Property crimes that earned offenders a permanent home in prison include shoplifting three belts, breaking into an empty liquor store and possessing stolen wrenches.
  • One-fifth of those non-violent offenders with mandatory life sentences without parole were given this penalty for a first offense.

The brief story is full of interesting and disturbing facts about the racial biases in sentencing and the overall costs. There is much, much, more on the ACLU website for the report. All of this should prove more than a bit disturbing for those who care about civil liberties, the failed war on drugs, and the growth of the surveillance state.

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Conor Friedersdorf (the Atlantic) has published the text of a talk he gave to students at Pepperdine (h/t John Moser). The brief talk is worth reading in its entirety. Much of the talk addresses the ongoing assault on civil liberties and frustration over how much of the Right is concerned over infringements on economic liberties but silent over the ongoing war on terror and the war on drugs.  For example:

But I grow frustrated with the faction on the right that treats very marginal changes in economic liberty as if tyranny itself will soon follow, but mostly ignores things like massive spying on everyone. Or flying robots we operate but don’t acknowledge when they kill children. Or government officials who strapped humans to a board, forced water into their lungs, and tried to terrify them into believing that any minute they were going to drown. And again, I don’t mean to suggest that war on terrorism abuses are the only urgent issue in America. Look into our juvenile-justice system, and the staggering number of kids who, while wards of the state, are sexually abused by guards. The point I want to drive home is that liberty isn’t just something that could be transgressed against at the end of some road to serfdom if we’re not careful. State-sponsored thuggery is happening now. It is prudent to worry about slippery slopes. But it shouldn’t blind us to abuses happening every day. Remedies are needed right now.

The piece ends with some good advice for those interested in making the case for liberty, and much of this involves ongoing participation in public discourse, looking for allies rather than heretics, and setting an example for others who may not agree with your positions. The final paragraph is worth quoting in full (Nick—mentioned earlier in the talk—is someone the speaker disagrees with on his Catholicism but nonetheless assumes that there must be  “nuggets of truth within it if it inspires people like Nick to be this good”).

How open will people be to libertarian ideas? That depends, in large part, on the libertarians they encounter. This is, of course, the hardest advice to follow. I’m telling you to be good. To show, by personal example, how your ideas can better the world in concrete ways. Well, not everyone can pull that off like my friend Nick. But to the degree that you can, there’s nothing more powerful. You’ll reach people that no liberty-minded politician or activist or journalist could possibly reach.

Civility, persuasion, and ongoing personal engagement: good advice for anyone hoping to make the case for liberty (or anything else).

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The other day I referenced Tom Watson’s piece in Salon, rejecting any libertarian involvement in the Stop Watching Us demonstration (as you might recall, libertarians were the ones who use a “few positive civil liberties positions as a predator uses candy with a child”).

Watson’s piece generated a useful response  in Salon from David Segal: “Liberals Should Unite with Libertarians (sometimes).”

A few quotes:

While the benefits of this sort of cooperation are concrete, Watson never convincingly describes the potential harm. Yes, when those on the left and right meet, perhaps some impressionable young progressives will become more libertarian in their leanings — but it’s important that burgeoning libertarians be made to understand that not all Democrats stand with President Obama, Dianne Feinstein, Steny Hoyer, Nancy Pelosi and other party leaders as shills for the state’s surveillance apparatus, and perhaps that (and a few friends they make while marching with lefties this weekend) will encourage them to learn more about, and eventually embrace, progressive economic principles – post-Keynesians, please. …

We cannot cover up harms perpetrated by our government just because pointing them out might make some people more inclined to distrust the state.  If we hope to maintain enough credibility with voters to one day win progressive majorities at the ballot box then we must not shy away from naming state overreach and corruption where it is transparently manifest.

Certainly, as Segal points out, left-libertarians alliances have borne fruit in the past and there remain many things that the left and libertarians can agree on–most notably opposition to growth of the security-surveillance state, the targeted execution of U.S. citizens abroad, indefinite detentions, and the absurdities of the War on Drugs–and there remains much work to do. While Segal hopes that a few libertarians might learn more above progressivism, it may also be the case that a few progressives (Watson included) will learn more about classical liberalism in the process.

What’s the harm?

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After weeks of media obsession with Senator Cruz, the GOP-forced government shutdown, and the impact on public opinion, the Obama administration’s use of drones and the NSA’s vast surveillance efforts are once again gaining some space above the fold. The Washington Post has an interesting piece on the civilian casualties from drone attacks, reviewing the recent findings of Human Rights Watch and Amnesty International.

In Yemen, Human Rights Watch investigated six selected airstrikes since 2009 and concluded that at least 57 of the 82 people killed were civilians, including a pregnant woman and three children who perished in a September 2012 attack.

In Pakistan, Amnesty International investigated nine suspected U.S. drone strikes that occurred between May 2012 and July 2013 in the territory of North Waziristan. The group said it found strong evidence that more than 30 civilians were killed in four of the attacks.

Although the White House declined to comment on the reports, it directed attention to President Obama’s May 2013 speech where he said that “drones would be used only against people who pose a ‘continuing, imminent threat’ to the United States and only in cases in which the avoidance of civilian casualties would be ‘a near-certainty.’” Excellent.

Meanwhile, past allegations of NSA interception of phone conversations abroad (in Argentina, Brazil, Columbia, Germany, Mexico, etc.) were updated with new information about  its interception of French phone calls on a “massive scale.”    Not to worry. A National Security Council spokeswoman explained: “We’ve begun to review the way that we gather intelligence, so that we properly balance the legitimate security concerns of our citizens and allies with the privacy concerns that all people share.” Once again, excellent.

None of this has received the kind of attention one might have imagined.  Stop Watching Us is planning a rally in Washington DC on October 26—the twelfth anniversary of the signing of the PATRIOT Act—to “demand the U.S. Congress reveal the full extent of the NSA’s spying programs.” The rally has the backing of a broad and diverse set of advocacy groups, ranging from the ACLU and the Electronic Frontier Foundation to the Libertarian Party and (believe it or not) the US Pirate Party.

Of course, Tom Watson (Salon) objects to the NSA’s policies, but not as much as he objects to the participation of libertarians in the protest (h/t Reason).   Why object to the libertarians? Because “their own argument for privacy is weakened by the pollution of an ideology that uses its few positive civil liberties positions as a predator uses candy with a child.” Strong stuff, but it gets better:

libertarianism is a form of authoritarianism disguised in a narrow slice of civil liberties. In trumpeting the all-knowing, ever wise wonders of the totally free and unencumbered market, it bestows all the power on those with access to capital. You may say we’re there already, but under a pure libertarian system, things would get much worse.

Watson concludes that for libertarians, “it’s always about the man on the balcony,” making reference to Hayek’s support for Pinochet (for a more nuanced presentation, see an ungated version of a paper by Farrant, McPhail and Berger here). In the end, one might conclude that the odd fear of some future libertarian authoritarianism is greater than concerns about the revelations of the past several years involving the targeted executions of U.S. citizens abroad, the extensive use of drones, and the NSA’s global surveillance efforts. Imagination trumps reality.

One can only hope against hope that the rally is a success and that the media’s obsession with the post mortems on the government shutdown and the daily fluctuations in the opinion polls will leave some space for a more significant debate about civil liberties, one that draws on the broadest coalition possible.

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New Hampshire has an abnormally strong regime for the protection of privacy rights. It extends from strong wiretapping laws to laws prohibiting the retention of personal information in government databases against the consent of the individual. While getting my driver’s license in Claremont, N.H. yesterday, I snapped this photo, which got memed by the Free State Project and is now going viral on Facebook:

nh-privacy

Too bad every state doesn’t have the same protections.

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As you likely know, David Miranda (the partner of Glenn Greenwald, the journalist for the Guardian at the center of the Snowden releases) was detained for nine hours (the maximum allowed under Schedule 7 of the UK’s Terrorism Act of 2000) and had personal items (e.g., laptop, thumb drives, DVDs, cellphone) confiscated. As the Washington Post reports, the Obama administration admittedly had a “head’s-up,” but (in the words of White House spokesman Josh Earnest) “This was a decision that was made by the British government without the involvement and not at the request of the United States government. It’s as simple as that.” Ryan Chittum (the Columbia Journalism Review) has his doubts, and describes the detention as “police-state stuff” and “an attack that is at the very least implicitly backed by the Obama administration.”

The Guardian’s Editor Alan Rusbridger has provided an account of some of the events preceding the detention. The quote above is from a Whitehall representative seeking to lay claim to the Snowden material.  According to Rusbridger, when the telephone requests bore no fruit, things only escalated:

one of the more bizarre moments in the Guardian’s long history occurred – with two GCHQ security experts overseeing the destruction of hard drives in the Guardian’s basement just to make sure there was nothing in the mangled bits of metal which could possibly be of any interest to passing Chinese agents. “We can call off the black helicopters,” joked one as we swept up the remains of a MacBook Pro.

I am hoping that this was but a ham-handed act of intimidation (i.e., rather than reflective of a genuine belief that the documents in question were to be found only on the hard drives in the basement of the Guardian).

A Guardian’s editorial has more on the Miranda detention and argues that there is a larger lesson:

States pass anti-terror laws that grant exceptional powers on the strict understanding that terror poses exceptional threats and that such powers will be used proportionately. The Miranda detention betrays that understanding, since it does not involve terrorism in any way. Democratic leaders have likewise claimed to recognise the legitimacy of a public debate about the proportionate nature of the state’s weaponry against terrorism. This case suggests the state takes us for fools.

Philip Bump (The Atlantic Wire) notes: “In the battle with the security state, those who might commit acts of journalism have three choices: acquiesce, push back, or step away.” There is little indication that the Guardian (or Greenwald) are prepared to do anything other than push back.

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Mother Jones has followed up on the story reported here about the controversy over the city of Concord’s acquisition of a Bearcat armored truck. The Concord police chief has this to say about the language of the grant citing the Free State Project and Occupy New Hampshire as potential sources of domestic terrorism:

While the sovereign citizens movement has a history of racism and violence, Police Chief John Duval now says that he doesn’t actually believe the Free State Project or Occupy New Hampshire are domestic terror threats. “I wish I would have worded things different in retrospect,” he says. “I understand why their eyebrows are raised about that.” He chalks up the wording to the limitations of writing a detailed proposal in only three pages and says it was meant to refer to the “unpredictable nature of unpredictable people who attach themselves to otherwise lawful situations.”

Duval has no plans to issue a formal apology, but he has exchanged emails with Carla Gericke, president of the Free State Project, to explain his position, which he has also attempted to clarify with local reporters.

HT: FSP

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That is the title of the leader in the new edition of the Economist, which devotes quite a bit of space to the ways in which liberty has been sacrificed for security by the Bush and Obama administrations.  A quote:

Every intelligence service will impinge on individual liberties—and America’s has succeeded in its main job: to prevent attacks. But every democracy also needs to keep those impingements in check and to hold its spies to account. Of all the world’s democracies, the one that should best understand this tension is the United States. Its constitution rests on the notion that the people in charge are fallible.

The more substantial article (“In the Secret State”) is also worth reading. It describes the “collection-first” model, wherein you compile the haystack, and then look for the needle. The Economist suggests that public opinion is shifting in opposition to the NSA surveillance. One can only hope that the public and congressional concerns over these programs will prove to be more than temporary. Alas, the issue-attention cycle moves quite quickly in the United States. The attention to today’s crisis can be quickly displaced by a new collection of shiny objects.

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Suspicious Stuff

The newest revelations regarding the NSA surveillance programs have focused on XKeyscore, described by the NSA as its “widest reaching” system for collecting intelligence from the internet. As Glenn Greenwald notes: “XKeyscore provides the technological capability, if not the legal authority, to target even US persons for extensive electronic surveillance without a warrant provided that some identifying information, such as their email or IP address, is known to the analyst.”(Guardian. See Slate coverage here).

The NSA training materials (available here) are rather interesting. When presenting the criteria for targeting individuals for surveillance under XKeyscore, the NSA includes:

“Someone searching the web for suspicious stuff.”

Of course, “suspicious stuff” is a technical term, so it is difficult to know what it might include.  Thankfully, the NSA has assured the Guardian that “there are multiple technical, manual and supervisory checks and balances within the system to prevent deliberate misuse from occurring.”

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So says the normally level-headed Matt Yglesias:

This raises “really tricky legal-type questions” about the permissible scope of eminent domain law, but a fully empowered mayor could get the job done. Detroit famously can’t get 40 percent of its traffic lights to work, and its 58-minute 911 response time for major crimes is abysmal. Abandoning whole areas of the city and forcibly relocating families into currently vacant structures closer to the core would be a drastic step, but in a way, it wouldn’t be so different from a normal eminent domain process to build critical infrastructure. In this case, rather than creating new services, it would allow Detroit to provide much better services to a new, smaller city. And with over 20 percent of the existing housing units in the city vacant, it would be feasible to rehouse a large number of people.

Why, those cretins living in Detroit don’t even know enough to live close to services! God, how stupid. Fortunately, we DC-based bloggers know better. They must be “forcibly” shown the error of their ways.

Here’s a better idea: Why not decentralize Detroit and let neighborhoods take care of their own services? Not only is it likely to be more efficient than a centrally planned, new city, but it’s also consistent with, shall we say, basic human rights?

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The NSA and FISA

There was an  interview with Glen Greenwald this weekend at Salon that should be of great interest to anyone following the Snowden revelations and the NSA’s surveillance activities. Here is a quick excerpt.

…hovering over everything is always the Fourth Amendment, regardless of what Congress says is legal. The Fourth Amendment constrains what Congress and the government are permitted to do. One of the arguments from privacy activists and the ACLU and other groups has always been that the new FISA law, which was passed in 2008 with the support of all parties in Congress including President Obama, which was designed essentially to legalize the illegal Bush-Cheney warrantless eavesdropping program, is unconstitutional. And there have been all sorts of lawsuits brought to argue that this law that Congress passed is unconstitutional, and yet no court has been able to rule on the merits of it, because the Obama administration has gone into court repeatedly and said two things: Number 1: All this is too secret to allow courts to rule on, and Number 2: Because we keep everything so secret, nobody can prove that they’ve been subjected to this spying, and therefore nobody has standing to contest the constitutionality of it. So there’s this huge argument out there, which is that all of this is illegal because it’s a violation of the Constitution, that the Obama DOJ has succeeded in preventing a judicial answer to.

(more…)

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My marriage is a sacred compact between my wife and me before God. No law, proposition, or court decision can ever change that. The government’s recognition of my marriage did not make it the sacred compact that it is; the government’s recognition of anyone else’s relationship does not affect what mine is; and no legal definition or redefinition of any term touches it in the least.

To paraphrase Psalm 27: Whom, then, shall I fear?

The recent Supreme Court decision did not redefine Christian marriage, because no court could ever do so even if it wanted to. For a Christian, a marriage was and remains a sacrament before God between a man and a woman, and its authorities derive from sources other than, indeed beyond, those of the state. The fact that others have different conceptions of marriage, or that some want to call a relationship a “marriage” that a Christian does not recognize as counting as a “marriage,” is, frankly, irrelevant. I am thankful to live in a country where we do not have to agree on everything in order to live with one another peacefully and respectfully.

It is beyond passing strange, however, that some of the same Christians so vehemently resisting the Affordable Care Act’s decrees that violate their religious freedom—and they are right to do so, in my view—are among those so anxious to have the government validate their religiously based conception of marriage. As Albert Jay Nock reminded us, whatever power you give the government to do something for you, you give it also to do something to you. You lose your right to complain when the government you have empowered and supported when it aligned with your worldview then decides to stray from your worldview and begins employing the power you gave it in the service of other ends. As the saying goes, government is, like fire, a dangerous servant and a fearful master: You should have known what deal you were making. 

The solution, it seems to me, is to return to the beginning: We must recognize freedom of religion, and the freedom of conscience it implies, as our first freedom, and abolish all government connection to it. No special favors, no legal protections, and no legal restrictions. “Render unto Caesar the things that are Caesar’s, and to God the things that are God’s,” as a wise man said a long time ago.

Perhaps the most astonishing aspect of this affair, however, is the incredible speed with which public opinion changed on the subject of same-sex marriage. Remember, the Defense of Marriage Act passed overwhelmingly (342–67 in the House; 85–14 in the Senate), enjoyed broad bipartisan support (even among many who subsequently called for its repeal and who now applaud the Supreme Court’s decision), and it was signed into law by President Bill Clinton (who also later decided to oppose it). And all that happened only in 1996. Contemplate for a moment that in the compass of just seventeen years, our culture went from broad and deep opposition to same-sex marriage to not only support for legalizing same-sex marriage but finding it obvious, even self-evident, that it should be legal and assuming that any opposition to it could come only from gross stupidity or blind bigotry—or both. I cannot think of another complete cultural about-face of this speed and magnitude.

In light of these recent events, I say to those who are disheartened by the Supreme Court’s striking down of DOMA: take heart! You now have the opportunity to witness to the world what your conception of marriage is not by relying on statutory props but by living your conception. Have the marriage you espouse; be the parents you extol; live the life you preach. Do not underestimate the power of personal example.

Moreover, if our culture can change this quickly about one matter, it can change this quickly about other matters as well. Perhaps this decision, along with other recent government mischief, can awaken from its dogmatic slumbers the American spirit of liberty—a spirit, that is, that once chafed not only at one or another particular invasion of conscience and privacy, but at invasions of conscience and privacy generally. Lord knows there remain many threats to our liberties to which a revivified love of personal choice and freedom could fruitfully turn its jealous scrutiny.

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Last week I noted, with some frustration, that the revelations about the NSA were not attracting the attention of much of the public (only 33 percent of Americans over 50 and only 12 percent of those between the ages of  18 and 29 were following the coverage of the NSA actions closely).   Apparently, the Senate has received the message. Only a minority of our senators attended thursday’s closed door briefing with National Intelligence Director Clapper and NSA Director Keith Alexander.

The Hill quotes Danielle Pletka from the American Enterprise Institute:

“If members were more diligent about attending briefings they would be far better informed about what’s going on, and they would also be far more willing to challenge the intelligence community on the conclusions that they come to,” she said.

“The truth is that members always come in at the end of the game, and as a result they take as gospel the assessments that they receive from the intelligence community,” she added.

Fundraising, Father’s Day, democratic oversight of the NSA’s surveillance programs…so much to do, so little time. And to schedule such things on a Thursday (i.e., the weekend).

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I have been frustrated in the past by the results of public opinion polls (see my earlier post on drones, for example). Given that the polls show high levels of support for the use of drones, one should not be surprised that a narrow majority has no problem with the NSA’s surveillance program, according to Pew. Fifty-six percent find acceptable the “NSA getting secret court orders to track calls of millions of Americans to investigate terrorism.” Similarly, 62 percent “say it is more important for the federal government to investigate possible terrorist threats, even if that intrudes on personal privacy.”

What I do find striking is the big yawn. This issue is of little interest to most Americans and it is of the least interest to those who are between the ages of 18 and 29. As Pew notes:

As with most news stories, interest is far higher among older Americans than the young: one-in-three (33%) Americans ages 50-and-older are following news about the government tracking phone records very closely. Among those ages 18-29, just 12% are following very closely, while 56% say they are not following closely at all.

I find this interesting for an obvious reason. Those between 18 and 29 live through social media—their hourly Facebook postings, emails, texts, and tweets. I have former students (my “friends” on Facebook) who have posted literally thousands of pictures of themselves and use social media to report everything from their current location (as if anyone should care) to the music they are listening to on Spotify (ditto).  One would assume that they would have some interest in the issue.

Given the support for the NSA’s policies and the lack of salience among the population as a whole, I would not expect the current controversy to amount to much. My greatest concern: a generation that exposes all through social media and is unconcerned about government surveillance may not prove to be one that would vigorously defend liberty as it ages. Perhaps Grover is right: there is reason to be depressed.

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For some ideas on how to keep your conversations private from the NSA, see this Victory Girls blog post.

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If you read enough political philosophy, at some point you wonder whether there really is anything new under the sun. On the heels of Edward Snowden’s wonderful and astonishing leaks, we get this:

U.S. Rep. Peter King, chairman of the House Homeland Security Committee’s Subcommittee on Counterterrorism and Intelligence, called Snowden “a defector” who should be turned over to the United States with an eye toward harsh prosecution.

“This person is dangerous to the country,” King said on CNN’s “Starting Point” on Monday.

While Snowden has not yet been charged with a crime, the Justice Department said Sunday night that it had begun a preliminary investigation into what it called “the unauthorized disclosure of classified information by an individual with authorized access.”

I could not read this without recalling John Locke’s words in defense of revolution (casting out of the government) in the Second Discourse. Locke responds to those who insist on the immorality, the injustice, perhaps even the violation of natural law involved in rebellion. First, Locke’s justification for revolution:

Sec. 222. The reason why men enter into society, is the preservation of their property; and the end why they choose and authorize a legislative, is, that there may be laws made, and rules set, as guards and fences to the properties of all the members of the society, to limit the power, and moderate the dominion, of every part and member of the society: for since it can never be supposed to be the will of the society, that the legislative should have a power to destroy that which every one designs to secure, by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavor to take away, and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge, which God hath provided for all men, against force and violence. Whensoever therefore the legislative shall transgress this fundamental rule of society; and either by ambition, fear, folly or corruption, endeavor to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people; by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who. have a right to resume their original liberty, and, by the establishment of a new legislative, (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society. What I have said here, concerning the legislative in general, holds true also concerning the supreme executor, who having a double trust put in him, both to have a part in the legislative, and the supreme execution of the law, acts against both, when he goes about to set up his own arbitrary will as the law of the society.

Then, Locke responds to the objection that this rationale is a justification for trivial incidence of revolution:

Sec. 226. …this doctrine of a power in the people of providing for their safety a-new, by a new legislative, when their legislators have acted contrary to their trust, by invading their property, is the best fence against rebellion, and the probablest means to hinder it: for rebellion being an opposition, not to persons, but authority, which is founded only in the constitutions and laws of the government; those, whoever they be, who by force break through, and by force justify their violation of them, are truly and properly rebels: for when men, by entering into society and civil-government, have excluded force, and introduced laws for the preservation of property, peace, and unity amongst themselves, those who set up force again in opposition to the laws, do rebellare, that is, bring back again the state of war, and are properly rebels: which they who are in power, (by the pretense they have to authority, the temptation of force they have in their hands, and the flattery of those about them) being likeliest to do; the properest way to prevent the evil, is to show them the danger and injustice of it, who are under the greatest temptation to run into it.

Locke is claiming, in effect, that it is not those who rise up in response to despotic government that are guilty of injustice, but those who use their authority to violate the trust of the governed. It does seem likely that Snowden violated some laws here, but King and his ilk are ignoring the prior question, whether in the conduct of its work the executive branch is guilty of the first violations of our fundamental law, the Constitution. It is certainly possible the answer to that is negative, but there can be no doubt that is the right question to ask, and that without an answer to it there is no moral judgment to be made about Snowden’s conduct.

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As the revelations about the NSA’s data mining emerge, it is useful to remember that this is a continuation and expansion of activities initiated more than a decade ago.

In the wake of 9/11, the Defense Advanced Research Projects Agency (DARPA) began developing a host of new programs as part of the war on terror. Under the direction of John Poindexter, DARPA initiated a program called “Total Information Awareness.” John Markoff, New York Times, reported in November 2002:

As the director of the effort, Vice Adm. John M. Poindexter, has described the system in Pentagon documents and in speeches, it will provide intelligence analysts and law enforcement officials with instant access to information from Internet mail and calling records to credit card and banking transactions and travel documents, without a search warrant.

As one might expect, this raised grave concerns among civil libertarians and computer scientists. The Times article quoted one computer scientist who had examined the program as part of a panel of experts. She noted: “A lot of my colleagues are uncomfortable about this and worry about the potential uses that this technology might be put, if not by this administration then by a future one. Once you’ve got it in place you can’t control it.” (more…)

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This has not been a good week for those who value liberty and limited government (what Albert Jay Nock would refer to as “the Remnant”). On Monday, the Supreme Court handed down its decision in Maryland v King, ruling that “the government has a legitimate interest in collecting DNA from arrestees” (see Robert Barnes, Washington Post). As Justice Scalia warned in his dissent: “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” I am certain that many will dismiss Scalia’s concerns. After all, if you are not guilty, why should you care if your DNA ends up in a database?

The newest revelation: the National Security Agency has been collecting the telephone records of  tens of millions of Verizon customers. Glenn Greenwald, who broke the story on the Guardian,  notes: “These recent events reflect how profoundly the NSA’s mission has transformed from an agency exclusively devoted to foreign intelligence gathering, into one that focuses increasingly on domestic communications.”

As the Washington Post reports:

The order falls under Section 215 of the Patriot Act, which authorizes the government to make broad demands on telephone carriers for information about calls. In this case, the order requires Verizon to provide “ongoing, daily” information about “all call detail records . . . created by Verizon for communications between the United States and abroad; or wholly within the United States, including local telephone calls.”

The Foreign Intelligence Surveillance Court does not require a showing of probable cause, of course. “Rather, all that is required is a showing that “there are reasonable grounds to believe” that the tangible things sought are “relevant to an authorized investigation . . .to obtain foreign intelligence information . . . or to protect against international terrorism or clandestine intelligence activities.”

All of this started under the Bush administration, in the wake of 9/11. The NSA began collecting call records in October 2001. But until now, there was little to suggest that this policy had continued.  The most recent revelation provides additional evidence that once new powers are claimed by the state—often under the pretense of crisis—they are usually permanent.  See Robert Higgs, Crisis and Leviathan to place this event in the broader historical context.

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This post will illustrate how users can customize the freedom index according to their own judgments about how various policies affect freedom. In particular, it will show how the weighting for tax burden can be significantly reduced and explores the consequences of this choice. It will also discuss briefly how abortion policies might be included in a customized index. Readers interested in customizing the freedom index should download the weighting spreadsheet at freedominthe50states.org.

Weighting Taxation

The freedom index “weights” each policy variable by the dollar-terms amount of benefit received by victims of government intervention from a one-standard-deviation, nationwide shift in the variable in a freer direction. So the weight for taxation is simply the number of dollars represented by a one-standard-deviation shift in state and local tax burden as a percentage of personal income. The mean of tax burden is 0.095 (9.5% of personal income). The standard deviation is 0.0124. Therefore, the weight of the variable in the index is 0.0124 times national personal income, which was $12.357 trillion in 2010: $153.1 billion. That ends up being worth 28.6% of the total weights for all variables in the index.

That’s a lot. The numbers don’t lie, but we do note in the text one reason why this number may actually overestimate the true “loss of freedom” caused by taxation:

This index’s weight for tax burden assumes that all taxes take away freedom. But in fact some taxpayers consent to at least some of the taxes that they pay, as long as the taxes are legal and generally paid by others. Therefore, taxation is not wholly a violation of their freedom, as “freedom” is defined above. However, most criminal justice policies do not operate along these lines. For instance, an imprisoned drug possessor is no more likely to consent to being confined if others are as well, and a driver fined for not wearing a seat belt does not usually consent to being fined if others are, and so on.

Rather than trying to figure out how much of the observed taxation truly represents a diminution of freedom, this study uses aggressive estimates of the value of freedom from taxation and other fiscal policy measures, and then boosts the weighting of certain personal freedoms and economic regulations, as explained in the relevant sections below. The point is to make sure that the index is using an equally aggressive method for estimating the values of all the different freedoms it covers.

Now, one might believe that we have not gone far enough to adjust for this problem, and indeed that is the whole point of putting the spreadsheet online and encouraging reader customization. The freedom index as it currently stands is in some ways a libertarian’s index. If you think that all taxation diminishes freedom, you will like the weight it enjoys in the published study.

But what if you are a philosophically sophisticated progressive or “liberaltarian,” who does not have any personal issue with taxation, but who nevertheless thinks that negative liberty is part of justice, and that the costs that others associate with taxation are worth taking into account. What weight should you put on tax burden?

Let’s assume that the current tax burden in each state represents the ideal point of the median voter. Positive theories of democracy would suggest that this is as good a guess about where public opinion lies as any. Then 50% of voters would prefer a higher tax burden (and the services it would finance), and 50% would prefer a lower tax burden. Right away, we can slash the tax burden weight in half, because 50% of voters nationally would not see the taxes they currently pay as any diminution of their freedom at all. Now, this move assumes that the median-dollar taxpayer is the same as the median voter. That is unlikely to be the case. In fact, the median-dollar taxpayer is likely to be somewhat wealthier than the median voter and thus more ideologically conservative and more hostile to taxation. Thus, if anything, slashing tax burden in half on these grounds is somewhat too aggressive.

But we’re not done yet. Of the 50% of voters/taxpayers who would prefer a lower tax burden, most of them would not see all of the taxes they pay as a diminution of their freedom. That is, they would be fully willing to pay a lower tax burden that is greater than zero. To illustrate the logic, assume a normal probability density function over possible tax burdens, as follows:
normal
On the X axis is tax burden, and on the Y axis is the proportion of the population corresponding to a particular view on tax burden. Fifty percent of the curve lies to the left or right of the mean of the tax burden distribution, which is 9.5, the actual national mean of state and local tax burden. (I have drawn the curve under the assumption of a standard deviation of 2.375, a fourth of the mean, but nothing that follows hinges on this assumption. Note that the standard deviation of voters’ views on taxation should be significantly greater than the standard deviation of actual state tax burdens, because each state tax burden roughly represents a median of a distribution.)

Now, what are the losses experienced by those who prefer a lower tax burden than what currently exists in their state? The loss curve will look like a mirror image of the left side of the normal density function. Those who want zero taxation will see all 9.5% of income taxed away as a loss of freedom. Those who want taxation of 2.5% of income will see 7% of income taxed away as a loss of freedom. And so on. Because the loss function is a mirror image of the probability density function, the area under the loss curve is also 0.5. So only 4.75% of personal income, in total, is a loss to those who prefer lower taxation. We can divide tax burden’s weight by two again, or by four in total.

The way to do this in the weighting spreadsheet is as follows. On the 2001-2011 worksheet, you can find all the standard deviations and weights of the variables in column GW. The weight for tax burden (“ainctot3″) is in cell GW10. You can divide the value there by four to create a new weight. All the other weighting cells automatically recalculate, and you now see in cell GV10 that tax burden is now worth just 9.19% of the index. (Why not one-fourth of 28%? Because reducing taxation’s weight also reduces the sum of all weights.) Fiscal policy as a whole is now worth just 17% of overall freedom, while personal freedom is 42%, and regulatory policy is 41%.

Note that all of the measures we took to boost personal freedom in the study remain in place, so this approach really does aggressively reduce the importance of taxation. I’ll call this new, nerfed-taxation index “Sandals,” as contrasted with the published index, which I’ll call “Suits.” How do the rankings of states differ between “Suits” and “Sandals”? See the table below.

“Suits” “Sandals”
1. North Dakota 1. North Dakota
2. South Dakota 2. Indiana
3. Tennessee 3. New Hampshire
4. New Hampshire 4. Tennessee
5. Oklahoma 5. Nevada
6. Idaho 6. South Dakota
7. Missouri 7. Utah
8. Virginia 8. Iowa
9. Georgia 9. Delaware
10. Utah 10. Georgia
11. Arizona 11. Idaho
12. Montana 12. Nebraska
13. Alaska 13. Virginia
14. Texas 14. Missouri
15. South Carolina 15. Kansas
16. Indiana 16. Arizona
17. Delaware 17. Colorado
18. Alabama 18. Oklahoma
19. Colorado 19. North Carolina
20. Nevada 20. Alaska
21. New Mexico 21. Maine
22. Nebraska 22. Texas
23. Florida 23. South Carolina
24. North Carolina 24. Minnesota
25. Iowa 25. Wyoming
26. Kansas 26. Massachusetts
27. Kentucky 27. Oregon
28. Oregon 28. Montana
29. Washington 29. Florida
30. Massachusetts 30. Ohio
31. Pennsylvania 31. Pennsylvania
32. Arkansas 32. Wisconsin
33. Ohio 33. New Mexico
34. Minnesota 34. Kentucky
35. Michigan 35. Vermont
36. Wyoming 36. Washington
37. Louisiana 37. Michigan
38. Wisconsin 38. Connecticut
39. Maine 39. Arkansas
40. Connecticut 40. Alabama
41. Mississippi 41. Rhode Island
42. West Virginia 42. Louisiana
43. Vermont 43. Maryland
44. Maryland 44. West Virginia
45. Illinois 45. Hawaii
46. Rhode Island 46. Illinois
47. Hawaii 47. Mississippi
48. New Jersey 48. New Jersey
49. California 49. California
50. New York 50. New York

The two rankings still look pretty similar! Three of the same states are in the top five in both indices, and the bottom three are identical as well. Indiana moves up from #16 to #2 between “Suits” and “Sandals,” and Nevada moves up from #20 to #5. Meanwhile, Oklahoma falls from #5 to #18, and Alabama falls from #18 to #40. But those are some of the biggest changes in rank; most states stay in a pretty similar location. It turns out that even a left-leaning index of negative liberty puts red and purple states at the top and deep blue states at the bottom.

Including Abortion

Abortion policies have to be imported from another spreadsheet in order to be included in the freedom index. A little more Excel mastery is helpful here. The abortion policy spreadsheet is available at statepolicyindex.com (p_abor_11.xls).

Now, there are a few things to note about state abortion laws. Most state abortion laws that are actually enforced do not do much to limit first- and second-trimester abortions. Because of Roe v. Wade, states do not have the right to prohibit abortions before fetal viability. However, some abortion policies we code, like requiring that only licensed physicians perform abortions, requiring that abortions be performed in a hospital, restricting private insurance coverage of abortions, and imposing waiting periods for abortions, can raise the effective cost of getting even an early abortion. Some pro-choicers, particularly libertarians, might well see certain state restrictions, such as prohibiting Medicaid funding for abortions, restricting partial-birth and late-term abortions, and requiring parental notification for minors’ abortions, as justifiable.

The variable “pabor” gives a summary indicator of state abortion laws based on principal component analysis. It is available only for 2006-2010 because one of the constituent variables is unavailable for 2000. States scoring higher on “pabor” have more abortion restrictions, including limits on public funding. To insert the variable into the freedom index, simply create two new rows in the freedom index spreadsheet and paste the “pabor” values into the first row (values/transpose). Since abortion laws affect personal freedoms on any interpretation, you may wish to include abortion policies with the personal freedoms, for instance on rows 139 and 140. You may wish to carry 2006/7 values back to 2001.

Next, you need to adjust the raw values of “pabor” to put them on a standardized scale with other variables. Every other row of the spreadsheet consists of these adjusted values. The adjusted values lie right below the raw values of each policy variable. If you think fewer abortion restrictions enhance freedom, then you think that higher values on “pabor” are worse. Find another variable like that — “tpubfin” is an example on rows 125-126. You can copy and paste the formula for adjusted “tpubfin” values to adjust the “pabor” values. If you think fewer abortion restrictions threaten freedom, then you think that higher values on “pabor” are better. Find another variable like that — “tgprp” on rows 133-134 is an example. Copy and paste the “adjusted” row.

Next, make sure that the mean and standard deviation of the variable are calculated in columns GV and GW. Below the mean and standard deviation are the weights. For the purposes of this exercise, I’ll give abortion a weight equal to same-sex partnerships, about $10.4 billion. Make sure that the percentage weight is calculated in column GV by copying and pasting one of the bolded percentage weights from another variable (it doesn’t matter which). Also make sure that the summed weights is updated by changing the formula at the bottom of column GW (row 243 after inserting two rows for abortion). Make sure that the dollar weight for abortion laws is included.

Finally, update the personal freedom scores. For instance, go into GU143 and type at the end of the parenthetical expression: “+GU140*$GV140″ (without quotes). That updates Wyoming’s score. Then just drag the formula all the way to the left. Personal freedom scores are all updated, and overall freedom updates automatically.

Now what does the freedom ranking look like? I’ve taken the steps to create a pro-choice ranking that also nerfs taxation. Here it is:

Pro-Choice Sandals
1. New Hampshire
2. North Dakota
3. Indiana
4. Tennessee
5. Nevada
6. Delaware
7. South Dakota
8. Iowa
9. Utah
10. Nebraska
11. Georgia
12. Idaho
13. Virginia
14. Colorado
15. Kansas
16. Arizona
17. Alaska
18. Missouri
19. North Carolina
20. Oklahoma
21. Maine
22. Texas
23. Oregon
24. South Carolina
25. Wyoming
26. Minnesota
27. Montana
28. Massachusetts
29. New Mexico
30. Florida
31. Vermont
32. Ohio
33. Pennsylvania
34. Wisconsin
35. Washington
36. Kentucky
37. Michigan
38. Connecticut
39. Arkansas
40. Alabama
41. Rhode Island
42. West Virginia
43. Maryland
44. Hawaii
45. Louisiana
46. Illinois
47. Mississippi
48. New Jersey
49. California
50. New York

Not all that different. I’ve taken all the assumptions most favorable to a “liberaltarian” conception of negative liberty, and most states do not jump or fall very many places in the ranking. I don’t say this to tweak liberaltarians, but to point out how robust the freedom ranking is to even drastic changes of assumptions. It’s such a big dataset that seemingly big changes have small effects on the end result. New York, California, and New Jersey really are the most regulated states, no matter how you slice it. The Dakotas, Tennessee, and New Hampshire really are among the least regulated states. “Conservatarians” may be distressed by the low placement of states like Mississippi, West Virginia, and Louisiana in the published index. My guess is that the freedom ranking will be equally robust to changes in more right-wing direction, such as by nerfing many of the bonuses we gave to personal freedom variables, including abortion restrictions as a plus for freedom, and so on.

Although the freedom index is reasonably robust to changing assumptions about which freedoms matter how much, we still encourage readers to tinker with customizing the index. For one thing, very radical changes may well have radical effects. If you are interested in marijuana laws and business regulations but not at all in taxation, gun laws, or tobacco laws, your freedom index might look quite different after all. Our freedom index is tailored to the “average American” adversely affected by government intervention, but the “average American” is a statistical construct that probably corresponds to no actual person.

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The Keene Activity Center (KAC) is a place where (mostly) young libertarians and anarchists in Keene, New Hampshire congregate to talk philosophy, plan activism (including civil disobedience), and generally relax and socialize. Apparently the Federal Bureau of Investigation has been trying very, very hard to infiltrate the KAC, judging from this account of the arrest of one of the club’s members, Rich Paul, on marijuana charges.

Paul is going on trial for petty marijuana distribution offenses pursuant to testimony by an undercover FBI informant. It looks as if the trial is on state charges, but what’s interesting and disturbing is the interest the federal government has taken in the case. FBI agent Phillip Christiana apparently tried to pressure Paul into wearing a wire into the KAC and luring people into pot transactions, offering him immunity from prosecution in exchange. Follow the link to read more about how the FBI agent tried to coerce and trick Paul into waiving his right to counsel.

Here are some questions the FBI ought to answer, that is, if they were in any way accountable to those of us who are paying their salaries under duress:

  1. Why is the FBI taking such a keen interest in these small-scale marijuana offenses?
  2. Is the FBI targeting Keene libertarians, anarchists, and “voluntaryists” for their political views?
  3. Does the FBI countenance or authorize the deceptive and coercive interrogation tactics reportedly used by this agent?

I’m hoping Paul finds himself a good lawyer and negotiates a good plea bargain. His trial starts April 16th, though, so time is short. The local activists seem to be aiming for jury nullification. They shouldn’t bet the house on that. The prosecutor will paint Paul as a big-time drug dealer and scary anarchist.

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Last time I was here, I had a lot of fun teasing American libertarian readers, at least until the earthquake brought my guest blogging to an abrupt halt.

Support for liberty is a lot like support for GMO-free food. If you survey people, they’ll tell you how much they love it. They might even tell you it’s the most important thing in the world for them. But make them pay $0.50 extra to have it and they’ll choose the next product on the shelf. A few pay extra for the GMO-free tags, but if you’d probably be disappointed if you launched a GMO-free brand based on a survey of how much people claimed to hate genetically modified foods.

Jason Sorens and William Ruger have done great work in showing the substantial differences in experienced freedom across the 50 US States. A lot of libertarians live in New York; New York tends to come last in these surveys. Moving someplace that doesn’t keep trying to ban large sodas would mean giving up easy access to Broadway shows. It’s fine to be a pluralist and to weigh Broadway shows against personal liberties in some great personal utilitarian calculus, but it’s not exactly consistent with ‘Live Free or Die’ rhetoric.*

Absolute differences across American states are perhaps not large enough to make it worth moving. But if that’s the case, what are we to make of libertarian activism in the less-free states? It’s exceptionally unlikely that even the most effective activist in New York could move the state more than a point or two in the ordinal rankings, but that same person could take an oil job in North Dakota and move from worst to first while working there to help make North Dakota even better.

I’ve also argued, and often, that American libertarians should consider moving to New Zealand, which ranks first in the worldwide index weighing civil and economic freedoms. Why not choose to live free, or as free as is possible in the current world?

The Honours thesis I’m supervising this year will examine the price of liberty. The international ranking above gives a nice cross-sectional snapshot of differences in liberty across countries. Some of the measures can be extended backward in time. My student, Chris Read, is going to add these measures to international migration data to estimate the elasticity of migration flows to measured liberty and compare that elasticity to things like expected income differences across countries. Most people are messy pluralists; I’m really curious to see how things here pan out. Hopefully by the end of it, we’ll be able to say “A unit increase in civil liberties, all else equal, has about the same effect on inbound migration as a $X increase in median income.” That X will be close to a revealed preference measure of the price of freedom.

Later this week, I’ll post reassessing some of my Kiwi-enthusiasm in light of the post-earthquake policy experience. I’ve been pretty disappointed with how things here have panned out. We are not as far outside of the asylum as I had thought.

* I count myself as a messy pluralist of this sort too; I’m not trying to disparage it! Freedom matters, other stuff matters too.

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The new, book-length edition of Freedom in the 50 States: Index of Personal and Economic Freedom will be released on March 28 by the Mercatus Center at George Mason University. In the days leading up to release, I will be “teasing” a few of the novel findings and methods from the study. Here at Pileus, I’ve already posted a couple of teasers over the past few months, linked here:

This post will explain the logic and method behind the weighting scheme in the new edition. Every index of freedom has to use some way of weighting its variables to come up with an aggregate measure of freedom. The Heritage Foundation’s “Index of Economic Freedom” and Fraser Institute’s “Economic Freedom of the World” and “Economic Freedom of North America” essentially weight each variable equally, either within categories that are themselves weighted equally in the overall index (Fraser) or across the index as a whole (Heritage). The most commonly used international indices of democracy, Polity IV and Freedom House, and the first two editions of Freedom in the 50 States use “arbitrary” weights, that is, the researchers weight the categories according to their own judgment using general criteria.

We were unsatisfied with all of these approaches, as well as with inductive statistical alternatives known as “principal component analysis” and “factor analysis.” Here is how we put the case in the book:

Because we want to score states on composite indices of freedom, we need some way of “weighting” and aggregating individual policies. One popular method for aggregating policies is “factor” or “principal component” analysis, which weights variables according to how much they contribute to the common variance—that is, how well they correlate with other variables.

Factor analysis is equivalent to letting politicians weight the variables, because correlations among variables across states will reflect the ways that lawmakers systematically prioritize certain policies. Of course, partisan politics is not always consistent with freedom (e.g., states strong on gun rights tend to be weak on gay rights). The index resulting from factor analysis would be an index of “policy ideology,” not freedom.

Another approach, employed in the Fraser Institute’s “Economic Freedom of North America,” is to weight each category equally, and then to weight variables within each category equally. Of course, this approach assumes that the variance observed within each category and each variable is equally important. In the large dataset used for the freedom index, such an assumption would be wildly implausible. We feel confident that, for instance, tax burden should be weighted more heavily than court decisions mandating that private malls or universities allow political speech.

Previous versions of this index used a subjective weighting system, based on a rough assessment of the importance of each policy in terms of the number of people affected and the value they were likely to place on their infringed freedom. We were dissatisfied with the imprecise and subjective manner in which we constructed those weights, and for this edition we have tried to use a much more objective and independent measure of the “value” of each freedom.

The new, “objective” method of weighting variables is what we call the “freedom value” approach. Here is how we describe it: (more…)

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Asymmetrical Information

Access to information is an important topic. Citizen access to information is critical if norms of democratic accountability are to have any meaning. At the same time, the Bill of Rights and a long series of court decisions limit the capacity of the state to collect information on its citizens without first obtaining a probable cause warrant.

There is a fascinating piece on Politico today by Jim Vandehei and Mike Allen entitled “Obama, the puppet master.” The article focuses on the ways in which the White House has dramatically limited press access to President Obama: “The president has shut down interviews with many of the White House reporters who know the most and ask the toughest questions. Instead, he spends way more time talking directly to voters via friendly shows and media personalities. Why bother with The New York Times beat reporter when Obama can go on ‘The View’?”

Then, of course, there is the creative use of social media and staged events to create the illusion of access:

Obama boasted Thursday during a Google+ Hangout from the White House: “This is the most transparent administration in history.” The people who cover him day to day see it very differently.

… something is different with this White House. Obama’s aides are better at using technology and exploiting the president’s “brand.” They are more disciplined about cracking down on staff that leak, or reporters who write things they don’t like. And they are obsessed with taking advantage of Twitter, Facebook, YouTube and every other social media forums, not just for campaigns, but governing.

What should we conclude? Transparency is maximized when those in power tightly control information and use technology to create an alternate universe that reinforces the president’s priorities and excludes any media outlet that may ask uncomfortable questions or challenge the performance record.

While there are efforts to limit the availability of the information necessary to enforce genuine norms of transparency and accountability, there are simultaneously efforts to develop a greater capacity to collect information on citizens via domestic drones, as revealed in several recent articles.

By way of background, the National Defense Authorization Act for FY 2012  (section 1074) directed the Secretary of Defense, in consultation with the Federal Aviation Administration (FAA), to submit a report describing and assessing “the rate of progress in integrating unmanned aircraft systems into the national airspace system.” It also (section 1097) directed the FAA to “establish a program to integrate unmanned aircraft systems into the national airspace system at six test ranges.”

Brian Bennett and Joel Rubin (LA Times) report that the Federal Aviation Administration has already issued 1,428 permits to domestic drone operators. Robert Johnson (Business Insider) reports FAA projections that there could be 30,000 drones in US skies by the end of the decade, making the domestic drone market worth hundreds of millions of dollars.

Bennett and Rubin describe some concerns that all of this raises for civil libertarians:

 “The technology is evolving faster than the law. Congress and courts haven’t determined whether drone surveillance would violate privacy laws more than manned planes or helicopters, or whether drone operators may be held liable for criminal trespassing, stalking or harassment.”

To get a sense of the state and local debates, see Josh Harkinson, “Can Police Be Trusted with Drones?”  (Mother Jones)  As the surveillance state expands, there is some evidence that state governments are formulating a response. See Allie Bohm (ACLU) “Status of Domestic Drone Legislation in the States” for a list of states legislating on this issue. Whether this amounts to more than an uneven patchwork remains to be seen.

A chief concern is that the federal government will push forward with domestic drone deployment without careful reflection on the implications for civil liberties. Given the first story and the recent White Paper on administration policy,  perhaps the best we can hope for are  some vague assurances (issued via Twitter or in a Google+ Hangout) that we can trust well intentioned officials to consider the implications.

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Some Republicans (including former VP Dick Cheney) applaud the Obama administration’s use of drones for targeted killing of US citizens abroad. Senator Rand Paul (R-KY), in contrast, is threatening to filibuster John’s Brennan’s confirmation to head the CIA, based on his failure to answer a simple question during last week’s hearings (transcript here, see pages 56-57).

Senator Ron Wyden (D-OR):

I’ve asked you how much evidence the President needs to decide that a particular American can be lawfully killed, and whether the administration believes that the President can use this authority inside the United States. In my judgment, both the Congress and the public needs to understand the answers to these kinds of fundamental questions. What do you think needs to be done to ensure that Members of the public understand more about when the government thinks it’s allowed to kill them, particularly with respect to those two issues — the question of evidence, and the authority to use this power within the United States?

The Response:

I have been a strong proponent of trying to be as open as possible with these programs as far as our explaining what we’re doing. What we need to do is optimize transparency on these issues, but at the same time, optimize secrecy and the protection of our national security. I don’t think that it’s one or the other; it’s trying to optimize both of them. And so, what we need to do is make sure we explain to the American people: what are the thresholds for action; what are the procedures, the practices, the processes, the approvals, the reviews.

The Office of Legal Counsel advice establishes the legal boundaries within which we can operate. It doesn’t mean that we operate at those outer boundaries. And, in fact, I think the American people would be quite pleased to know that we’ve been very disciplined and very judicious, and we only use these authorities and these capabilities as a last resort.

Senator Wyden, unfortunately, failed to force John Brennan to respond to the core question about the domestic use of drones.  Much turns on whether one interprets Brennan’s “response” as a conscious effort to sidestep the issue or simply a failure for no particular reason to answer both parts of the question.

Senator Paul’s interpretation, as reported in the Hill, is clear:

What I want to hear from John Brennan before I let his nomination go forward is that no, a CIA or the Department of Defense cannot kill someone in America without any kind of judicial proceeding. By Brennan not saying no, that he won’t strike Americans in America, he is essentially saying yes, and that is very scary and worrisome to me.

One could argue that Senator Paul’s fears are overblown.  At the same time, if we could turn the clock back to September 10, 2001, my guess is that most would not believe that there would be a time in the near future when we would condone “enhanced interrogation techniques,” indefinite detainment at GITMO, extraordinary rendition, the expansive powers granted in the PATRIOT Act, the use of drones for domestic surveillance or the use of drones for the targeted killing of US citizens abroad.

I don’t believe that anything Mr. Brennan would have said in his hearings would be binding on the federal government going foreword. But this seems like a reasonable question that deserves a response (regardless of whether it would somehow compromise the preferred balance between transparency and national security).

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The White Paper

The Justice Department White Paper on the targeted killing of US citizens is out, and worth a read. There are no surprises here, for anyone who has followed this sordid affair. Much of the same policy was articulated by AG Holder last year in his speech at Northwestern Law. Holder basically assured his audience that these were not assassinations because assassinations are illegal and we should trust that the deliberations internal to the executive provided more than enough due process (you can read excerpts in this post).

For those who go to the White Paper, the discussion of what constitutes an “imminent” threat (p. 7) seems like something issued by the Ministry of Peace:

“the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Note, the OED provides the following definition:

“Of an event, etc. (almost always of evil or danger): Impending threateningly, hanging over one’s head; ready to befall or overtake one; close at hand in its incidence; coming on shortly.”

Apparently, the definition can now be presented in a more concise fashion:

“Of an event, etc. (almost always of evil or danger): Impending threateningly, hanging over one’s head; ready to befall or overtake one; close at hand in its incidence; coming on shortly.”

In the present case, if someone has been involved in the past “in activities posing an imminent threat …and there is no evidence suggesting that he has renounced or abandoned such activities,” this fact would “support the conclusion that the member poses an imminent threat.” One wonders what happens if we insert the administration’s definition of imminent threat into this statement of policy.

I could go on, but you can read the paper for yourself. Jacob Sullum has written a decent review of the White Paper at Reason that is also worth a quick read. The final paragraph is a gem:

“The problem is that to accept this position [the argument in the White Paper], you have to put complete trust in the competence, wisdom, and ethics of the president, his underlings, and their successors. You have to believe they are properly defining and inerrantly identifying people who pose an imminent (or quasi-imminent) threat to national security and eliminating that threat through the only feasible means, which involves blowing people up from a distance. If mere mortals deserved that kind of faith, we would not need a Fifth Amendment, or the rest of the Constitution.”

One might also quote James Madison (Federalist 51) who made what would now appear to be an inconvenient point:

” If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

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One of the regular Pileus bloggers asked me to elaborate on a claim I made briefly in my earlier discussion of BHL. I had said “there is an intra-libertarian debate [that it is useful to have about philosophical justification: is a system of individual rights ultimately justified because it accrues the best results for the poor, or is it justified for some other reason(s), and has the beneficial characteristic of accruing the best results for the poor?” and suggested I thought it was the latter. The idea that the social order can only be justified if it brings about the best results for the worst off, which is a prominent feature of Rawlsian welfare-state liberalism, has been employed as a rationale for classical-liberal non-redistributionist policies. I certanily like the irony that the chief heuristic of redistributionist theory undermines redistributionist institutions. And, as I said in the orginal post, I appreciate the positive outreach effects of noting that free market policies help everyone prosper, especially the poor. But I am hesitant to agree that the Rawslian principle is why we should have free markets. For one thing, I think we should have free markets for the same reason I think we should be free generally. I do not differentiate “civil liberty” and “economic liberty.” The latter is simply the manifestation-in-transactions of the former. Without the freedom to transact, my “freedom to choose” is pretty superficial. Rawls himself argues that we must have a system of equal freedom to choose and believe and think and speak – rights that cannot be trumped by social utility. It is only trading and acquiring rights that he says can be interfered with. But as Nozick demonstrated, you cannot interfere with transactional freedom without simultaneously interfering with freedom of choice. There are not two kinds of liberty, civil and economic, there’s just liberty (although there are of course different contexts in which we talk about liberty). And I think liberty is a necessary component of human flourishing. Humans cannot achieve virtue and happiness by coercion. “Rights” should be understood as a way to secure the possibility of self-directed activity in the social setting. The social order is thus justified if it is one which protects individual rights, and unjustified otherwise. That is the why of classical liberalism. The fact that classical liberalism and free markets help the poor better than redistributive statism is a great thing, both intrinsically and in terms of explaining its virtues to others. But the justification must be something else, something universal. Put it another way: if everyone were wealthy, would individual rights no longer be important? Of course not.

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Doesn’t it figure that President Obama shoots left-handed?!

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I’m really just kidding as I also shoot rifles and shotguns lefty (though pistols right-handed) and few serious people would accuse me of being a man of the left.  Moreover, I think the traditional left-right scale is fairly unhelpful (see here).

But I do find the release of this photo by the White House to be pure propaganda and thus offensive to the democratic spirit.

First, does anyone really expect us to believe that this Harvard-trained, elite, Chicago libgressive is a big shooting enthusiast?  Of course, someone with that profile could be.  However, it is very unlikely.  I can count the number of northern academics and elites who regularly shoot guns on my fingers (hello Marc!).  And none of them are Democrats.  Of course, there is the big Vermont anomaly - but I don’t think Barry would agree with the Green Mountain State’s gun control regime (which is basically this: aim well and point your gun downrange- for now).  More importantly, there is little support for any claim that Obama is a shooter.  That is why this Onion piece works as humor.  Heck, the guy couldn’t even pretend to be a decent bowler!

And this is fine. Just because I like to do something and have the right to do it does not mean that others have to agree with my preferences.  Indeed, I’d be perfectly ok with a President who said, “I don’t care for guns and have little interest in using them for any reason.  Indeed, I think owning a gun is a poor use of one’s freedom.  However, I do think that the Constitution secures the individual right to bear arms, and since I have pledged to support and uphold the Constitution, I will work to protect that right even as I disagree with its exercise.”  This is how I think about many rights that individuals enjoy and often (unfortunately) exercise.  Yet, I don’t believe the President really cares what the Constitution says nor that he should let it get in the way of his policy preferences.

Second, it is probably not chance that Obama is shooting a shotgun in the information operations/propaganda photo since this is how the Dems are trying to triangulate the gun control issue – “We don’t want to stop sportsmen from owning and shooting guns.  But true sportsmen don’t need ‘assault weapons.’”  I’d be more convinced of Obama’s credibility on the 2nd Amendment if the WH showed him firing my handgun of choice: the Smith and Wesson M&P 9mm.  But that would hurt the narrative even though the Administration claims it isn’t going after handguns (despite the fact that Marc pointed out earlier that these are the real weapons of choice for those killing others).

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Several of my progressive Facebook friends posted about Gabrielle Giffords’ testimony before Congress about gun legislation, editorializing that we/they should pay close attention because of her personal experience as a victim of violence. Now, I understand why some criminal courts allow victim-impact statements: before deciding what sort of punishment should be meted out, it’s relevant to see how the crime has had an impact on the victim. But Congress isn’t in the business of punishing particular offenders – its function is to create legislation for the good of the country. (Yes, I’m rolling my eyes too, but let’s stipulate this arguendo.) So the relevance of victim-impact statements in this context is…what? This strikes me as legislating the ad misericordiam fallacy, using raw emotion as a substitute for rational analysis. But what’s especially irritating is that the last big example of this was when the other party was in power, and the party in power always has a predictably selective memory. After 9/11, emotions were pretty raw. A lot more pain and suffering that day than after any of the recent mass shootings. What was the result? A decade-long war in Afghanistan. Rampant abuse of executive power. Indefinite detention without trial. Lost privacy rights. The TSA. Kill lists. Mass shootings are to the left what terrorist attacks are to the right: emotional outcry by the public leading to grandstanding by whichever party is in power, and increased erosion of liberty. This is what happens when you legislate based on raw emotions, and disregard both the Constitution and the very idea of rational analysis. Let’s not keep making the same mistake.

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As a resident of Connecticut, I have followed the events surrounding the Newtown shooting with great interest and sadness. By way of full disclosure, I am a hunter. When I was a child in Wisconsin, my father took his sons to gun safety classes taught in the basement of the local police department. Both of my sons went through hunter training courses before they joined me hunting pheasants (neither really liked hunting, but at least I knew that they understood to respect firearms, use them safely, and lock them up when not in use). I have never hunted with a semiautomatic weapon. I find it unsportsmanlike.

I am sympathetic to the claim that some may want firearms for home protection (although as a friend of mine—a Marine sharpshooter and Connecticut state trooper—notes, the best weapon for home defense is a shotgun, not a semiautomatic pistol or an assault rife. Unless one is trained for combat, one loses fine motor skills under stress and is likely incapable of using these weapons effectively or accurately).

With these disclosures in mind, what to make of Newtown?

John Kingdon’s classic work Agendas, Alternatives, and Public Policies made the case quite persuasively that in the world of public policy, there are many solutions waiting for a problem to happen.  Crises can open a window of opportunity for policy change. In Kingdon’s words:

“When a window opens, advocates of proposals sense their opportunity and rush to take advantage of it.”

Often, this occurs immediately. Policy advocates know that windows of opportunity open, but they can close rather quickly.

The tragic shooting in Newtown most certainly created a window of opportunity for policy change. One could have anticipated the political response ex ante, although there were a few surprises along the way.  On Sunday’s Meet the Press, for example, one commentator noted that the shooting should give anyone pause who wants to cut Medicare and Medicaid entitlements, given the funding they provide for mental health issues (the fact that the shooter was 20 from an affluent family seemed immaterial).

It is difficult to discern what lessons one should draw from the Newtown shooting. Those who want to use the shooting to make the case for more demanding gun regulations face the problem that Connecticut already has some of the most stringent gun controls in the country and the guns were purchased legally. Those who want to restrict interstate sales and the loopholes for gun shows face similar difficulties given that neither would have prevented the tragedy. Those who want to make the argument for greater public funding for mental health treatment face the problem that the shooter was from an affluent family; the lack of public funding was not an issue.

Advocates of an assault weapon ban (similar to that created under the Public Safety and Recreational Firearms Use Protection Act of 1994) may stand on firmer ground, given that the shooter used an assault rifle (a Bushmaster .223).  But the 1994 law did not ban semiautomatic rifles (automatic rifles are already illegal for all intents and purposes) nor did it ban the .223 Remington cartridge. It did ban the manufacturing of magazines that were capable of holding 10 or more rounds of ammunition (by comparison, semiautomatic big game rifles—unaffected by the assault rife ban—have clips that hold 5 cartridges). One wonders how great a barrier such a restriction would have posed, given that the shooter was armed with two semiautomatic pistols (legal under the assault rifle ban) and smaller clips could be ejected and replaced in a matter of seconds.

In my mind, the chief lesson of Newtown is a difficult one: even when you have strict gun laws (as Connecticut clearly has) and citizens abide by those laws (the owner of the guns reportedly purchased all guns legally), tragedies can nonetheless occur.

There is little question that gun violence is a problem in the US. Although violent crime has been in long-term decline in the US, the FBI reports there were 68,720 murders between 2007-2011. Of that number, 46,313  (67.4 percent) were committed with a firearm. But of this number, 1,874 murders were committed with rifles (in contrast, 2,945 were committed with blunt objects like clubs or hammers). Handguns were the weapons of choice. With respect to handguns, most were likely acquired illegally (my guess. I am not certain that the FBI publishes that data).

Some readers of Pileus may want to make the argument that any regulation of firearms is an infringement of our Second Amendment rights. Let the comments fly. When I used to take my sons hunting, I took some comfort in knowing that anyone we encountered in the field had undergone some training on the safe use of a firearm.

If President Obama and the Congress turn to gun control in the wake of the Newtown tragedy, one can only hope that they ground policy in a broader understanding of gun violence rather than searching the events of last week for lessons that may not exist.

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Conor Friedersdorf offers up some justifiably tough words in response to Obama senior adviser Robert Gibbs’ glib defense of the drone assassination of 16-year-old, Denver-born American citizen, Abdulrahman al-Awlaki (essentially: “he should have chosen a different father”):

Again, note that this kid wasn’t killed in the same drone strike as his father. He was hit by a drone strike elsewhere, and by the time he was killed, his father had already been dead for two weeks. Gibbs nevertheless defends the strike, not by arguing that the kid was a threat, or that killing him was an accident, but by saying that his late father irresponsibly joined al Qaeda terrorists. Killing an American citizen without due process on that logic ought to be grounds for impeachment. Is that the real answer? Or would the Obama Administration like to clarify its reasoning? Any Congress that respected its oversight responsibilities would get to the bottom of this.

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Imagine two countries, each the size of the U.S. In one of them, the average tax rate is 1% (of income) lower than the other, but unlike the other it randomly selects ten innocent individuals for execution each year (perhaps ritual human sacrifice!). Assuming personal income of $12 trillion like the United States, the lower tax rate in this country allows for more freedom worth $120 billion a year, by our method. If the statistical value of a life is $7 million, however, the execution policy only costs $70 million a year in freedom. Thus, not only is the human-sacrifice state with a slightly lower tax rate “freer” by this crude metric, but it is not even close.

Which is truly the freer country, assuming they are exactly alike in all other respects? And by how much?

The first paragraph above comes from the forthcoming third edition of Freedom in the 50 States: Index of Personal and Economic Freedom.

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The Obama administration’s growing reliance on drones in the war on terror has attracted a great deal of attention, as of late.

Things became interesting two weeks ago when the NYT published an article emphasizing the President’s role in approving the secret kill list. As the piece noted, the administration

“in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.”

This is a convenient means of undercounting the number of civilian deaths, of course. But the underlying assumption—guilty and condemned to death unless proven innocent—should give us pause. However, the greater concern of Congress was whether the story was based on  leaks to the press that could threaten national security.

Other news regarding the use of drones in counter-terrorism:

  • Bruce Stokes (Der Spiegel) attributes the declining support for Obama and the US to the extensive use of drones.
  • Ibrahim Mothana (NYT) claims that A.Q.A.P. is gaining strength in Yemen in response to the use of drones and the civilian casualties. “Certainly, there may be short-term military gains from killing militant leaders in these strikes, but they are minuscule compared with the long-term damage the drone program is causing. A new generation of leaders is spontaneously emerging in furious retaliation to attacks on their territories and tribes.”

On the domestic front, drones have popped up in a number of stories, some humorous (e.g., the confusion created by one drone in Washington DC, which was spectators thought was a UFO) others…not.

According to Lorenzo Franceschi-Bicchieral (Wired): “There are 64 drone bases on American soil. That includes 12 locations housing Predator and Reaper unmanned aerial vehicles, which can be armed.” The story includes a link to a map (from  Public Intelligence) of current and future drone bases.

This week, Rand Paul (the Hill) has “introduced the Preserving Freedom from Unwarranted Surveillance Act, which would require the government to get a warrant before using aerial drones to surveil U.S. citizens.” According to Paul:

 “Like other tools used to collect information in law enforcement, in order to use drones a warrant needs to be issued. Americans going about their everyday lives should not be treated like criminals or terrorists and have their rights infringed upon by military tactics.”

Paul’s concerns are shared by the ACLU, which has a number of interesting pieces on its drone blog. One can only hope that Paul’s commitment to basic civil liberties will not place him in the minority of Senators. Alas, I don’t hold out much hope on this one.  As we have seen in the past, crisis (real or perceived) drive the expansion of state power, and there appears to be a one-way ratchet.

Note: For those interested in the vast variety of drones and robotic devices currently being developed for military and security applications, there was a fascinating piece in the Economist’s Technology Quarterly that I highly recommend.

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As you likely know, the Paycheck Fairness Act died in the Senate earlier this week, with strong GOP opposition. (see coverage here). The key provisions of the bill are nicely summarized in the Christian Science Monitor:

The legislation…would require employers to prove that differences in pay are based on qualifications, education and other “bona fides” not related to gender. It also would prohibit employers from retaliating against employees who ask about, discuss or disclose wages in response to a complaint or investigation. And it would make employers who violate sex discrimination laws liable for compensatory or punitive damages. Under the bill, the federal government would be exempt from punitive damages.

Of course, introducing the bill that stood no chance of passage was largely a symbolic act designed to document the Republican “war on women.”

There are the obvious debates about the empirical record (e.g., if women make 77 cents on the dollar for the same employment, does this reflect genuine gender discrimination or some other factors such as time taken out for child rearing?). One might also question whether adding a new set of regulations makes sense in the current economic climate. But there is another debate about whether such legislation can be justified. For many libertarians, the answer is obvious.

The Economist blog, Democracy in America, takes up this issue and uses it to  excoriate Rand Paul for his rejection of the Paycheck Fairness Act. The critique hinges on Paul’s efforts to draw some parallel between the aspirations of the law and central planning:

“Three hundred million people get to vote everyday on what you should be paid or what the price of goods are,” Paul told reporters on Capitol Hill. “In the Soviet Union, the Politburo decided the price of bread, and they either had no bread or too much bread. So setting prices or wages by the government is always a bad idea.”

The Economist notes that wages are set by the employer, not a central planner. The only question is whether the employer has violated the provisions of Title VII of the Civil Rights Act of 1964 (prohibiting discrimination in employment) and the Equal Pay Act of 1963 (which prohibits sex-based wage discrimination), and this is a decision that should be left to the courts.

The piece moves on, then, to a thought experiment:

But should it be illegal to offer different pay for the same work based on an employee’s sex? Maybe not. Mr Paul’s argument here implies he thinks it should be okay. So, let’s try a thought experiment. How would you react to seeing a job advertisement that read: “Associate lawyer in patent firm, 3 years’ experience required, salary $100k for man, $77k for woman”? Is that okay? If not, why not? How about this: “Associate lawyer in patent firm, 3 years’ experience required, salary $100k for Christian, $70k for Jew”? How about “Salary $100k for white, $65k for negro”?

I don’t think there is evidence that Rand Paul thinks discrimination is “okay,” rather, I am assuming he believes—as most libertarians—that market forces are sufficient to limit the extent of discrimination.  But let’s take the thought experiment seriously. How would you react to the above job ads?

My first response is simple: I would not do business with firms that adopted these policies.  I assume that many others—perhaps even a majority—would have a similar response. Businesses might freely adopt any employment practices they wish, but it they could face a significant backlash from consumers. One might also assume that these employment practices would limit the effective labor market for these firms, further reducing their competitiveness and potentially driving them out of business.

So if we believe if freedom of association and the right of individuals to engage in voluntary economic transactions, we might be content to allow markets to sort things out without the intervention of the state.

But is this sufficient?

If the forms of discrimination noted above are universalized—e.g., every firm chooses to pay women less than men—the market would not impose much in the way of discipline.  Moreover, even if the market would impose discipline, none of this would provide much satisfaction for those who were discriminated against in the first place. Those of us who believe in a higher power have faith that God will ultimately judge the quick and the dead. But we nonetheless also seek justice in the temporal realm.

One response to this last point is evident. An individual has no entitlement to a particular job, and so the denial of employment (or the offer of employment at a particular wage) does not fall into the realm of justice. For those who wish to see a more elegant development of this argument, see our own James Otteson’s fine book, Actual Ethics.

The question of whether the state has exceeded its bounds by moving beyond the protection of life, liberty and property seems to me to be a separate issue (even though it is of great interest to many of us). Discrimination in employment and wages is already illegal. Given the laws currently on the books, is there great harm in facilitating access to information and reducing the legal transaction costs faced by those who have legitimate claims?

Someone make the argument.

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This is awesome. As we all know, the Obama Administration claims that it has the right to kill anyone it considers a terrorist, so long as it has some internal process for deciding whom to kill. Now someone has set up a petition on whitehouse.gov:

Considering that the government already has a “Do Not Call” list and a “No Fly” list, we hereby request that the White House create a “Do Not Kill” list in which American citizens can sign up to avoid being put on the president’s “kill list” and therefore avoid being executed without indictment, judge, jury, trial or due process of law.

Not that it will really accomplish anything. But humiliating the turncoat in the Oval Office would nevertheless warm the cockles of my jaded heart.

HT: Glenn Greenwald

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George Will has a good column today on civil asset forfeiture abuse. He highlights an ongoing case in Tewksbury, Mass., where the DOJ and local police department are colluding to seize a motel from the owners because some drug dealers have stayed there in the past. The government is not claiming that the owners knew or even should have known about criminal activity at the motel; they can seize the property anyway, accusing an inanimate object of committing a crime. The Institute for Justice, who put out the recent Policing for Profit report blowing the whistle on ongoing forfeiture abuse around the country, is representing the owners and challenging the forfeiture on both Eighth and 10th Amendment grounds.

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I’ve never voted for a Democrat or Republican for president at a general election. I’ve always voted for a Libertarian (in 2008 I voted for George Phillies, who was on the ballot as a Libertarian in New Hampshire in addition to the official candidate, Bob Barr), and I’ve never had reason to regret my vote. Throughout my adult life (I first voted in 1996), every U.S. president has been worse than the one before, and the major-party candidates they defeated would almost certainly have been just as bad.

One common argument I hear from Republicans is that libertarians should vote for Republican presidential candidates because of the Supreme Court. And indeed, libertarians generally share conservatives’ enthusiasm for the prospect of the Supreme Court’s overturning at least part of the PPACA. However, the recent 5-4 Supreme Court decision authorizing invasive strip searches of all arrestees shows us the other side of the coin: the Supreme Court’s conservatives are disturbingly willing to defer to the executive branch on issues of non-economic personal liberties. Most of the politically controversial cases with which the federal judiciary deals have to do with civil liberties and civil rights. Major Commerce Clause cases come around only once every few years — and even there, Scalia and Kennedy are unreliable.

How will the current Court (more…)

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