Ideas Have Consequences

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It probably couldn’t be any worse. The current presidential candidates are about as bad as bad can be.

Just look at them.

  • Ted Cruz, who called a press conference to say that he would not “copulate” with a rat like Donald Trump.
  • Donald Trump, who had every opportunity to gather all anti-establishment voters into his fold but insisted, instead, on alienating as many as possible — e.g., stipulating that in some hypothetical world in which abortion was outlawed, women who had abortions should be “punished,” then putting out a press release saying that he didn’t really mean that, and then saying what he didn’t mean again.
  • Bernie Sanders, spouting non-facts 24/7.
  • Hillary Clinton — say no more.

The temptation is to attribute the horror of 2016 to the candidates’ abominable personalities, or at most to the failures of the electoral system, which is warmly responsive to televisable personalities (Trump), and to the indefatigable pressure groups that gave us Clinton and Sanders (and Jeb Bush and a few other sparklers).

I think that those factors are important, but they are as nothing when compared with the ideas that are insisted upon by the pressure groups and are projected so abominably by the personalities.

All the problems that are used to justify the literally insane campaigns now being waged were the direct results of unlimited government.

The ideas aren’t many. We’re not dealing with the intellectual intricacy of the questions that Lincoln and Douglas debated. Most of what passes for ideas in today’s campaigning results from a handful of crude, outdated assumptions, as follows:

1. The idea that work produces wealth, and therefore ought to be rewarded — an idea that had the stuffing knocked out of it by the discovery of the principle of marginal utility, a mere 14 decades ago.

2. The age-old idea that wealth should be apportioned by political means; i.e., by force.

These two ideas provide most of Bernie Sanders’ intellectual equipment, if you want to call it that.

3. The pre-1830s idea that free trade is bad for the economy.

Here you will recognize Donald Trump’s motivating idea, and one of Sanders’.

4. The 1970s idea that racial — and “racial” — sensitivities have rights that government must enforce.

This belief, which is merely the flipside of the much older belief that white racial sensitivities must be enforced by government, is the basis of the grievance industry which fuels both Sanders and Clinton, and without which their candidacies might not be able to exist.

5. The idea that, as H.L. Mencken said, “the people know what they want and deserve to get it, good and hard.”

This is populism, which fuels the preposterous windbaggery of Trump and Sanders, and to a degree that of Cruz. It was adequately discredited by the idiotic behavior of the ancient, direct democracies, if not of modern Detroit, Chicago, and New York City.

Now, you may say, and you would be right to say to it, these fallacious notions get a lot of their steam from the true, or sort of true, ideas that are associated with them. Sanders’ people and Trump’s people are right in believing that the financial system is rigged against the majority of Americans. Trump’s people and Cruz’s people are right in thinking that the country is being run into the ground by small groups of wealthy, or otherwise privileged, self-serving apostles of political correctness, seemingly bent on outraging all feelings but their own. Trump’s people are right in thinking that a welfare state cannot admit hordes of immigrants without grossly disadvantaging its own citizens. Clinton’s people are right in their visceral aversion to populism.

It’s remarkable that Clinton’s supporters, though undoubtedly the best “educated” of any of these groups, has the fewest ideas, right or wrong. It’s certainly a commentary on elite education.

But the most remarkable fact is that all the problems that are used to justify the literally insane campaigns now being waged were the direct results of unlimited government. If the American people had voted to increase income inequality, strangle the middle class, create racial tensions, ship jobs overseas, enlarge the permanent underclass, and grant a permanent veto power to an unelected class of well-paid parasites, they couldn’t have gotten better results from their decades of votes for people who wished to expand the government.

Now people of common sense and what used to be common knowledge are seeing (the cliché is unavoidable) the chickens coming home to roost. Are you happy? I’m not.




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Unfair Competition from Robotland

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This campaign season brings many complaints about “shipping jobs overseas.” Candidates promise to crack down on the offending corporations. American workers and the United States as a whole must compete on a slanted playing field against foreigners paid much below a dollar an hour. Moreover, the foreigners manipulate their currencies. They buy less from us than we from them, putting the US into a trade deficit (more exactly, a current-account deficit) costing us many billions of dollars a year. China, Japan, and Mexico count among the worst offenders. Free trade is fine, but only when it is fair.

In a similar but imaginary scenario, technology has advanced so far that “Robots” (in a stretched sense of the word) displace American workers at costs equivalent to Robot wages of 50 cents an hour. What is the difference between shipping jobs to Bangladesh and shipping jobs to Robotland? Well, Robotland does not have a balance of payments, so it cannot be accused of buying less from us than we from it, fleecing us of the difference. In the real world, automatic market mechanisms, if allowed to operate, forestall worrisome trade deficits and surpluses; and if the foreigners do make unbalanced sales to us, what can they do with the money? They acquire American bank accounts, securities, and properties, so supplying us with financial capital on advantageous terms.

What sense does the notion of one country competing with others have? Does it mean that international trade is a zero-sum game, with countries squabbling over shares in a fixed total of gains? On the contrary, international trade and advanced technology are alike in making desired goods more abundant. One country’s relatively low standard of living would trace to technological and entrepreneurial backwardness and perhaps to bad government. It would be absurd to blame its relative poverty on incompetent trade-policy negotiators.

One country’s relatively low standard of living would trace to technological and entrepreneurial backwardness and perhaps to bad government.

In the real world, conceivably, Robotland technology might displace many American workers, inviting Luddite arguments. I do not want to get into that issue here. I merely ask what the difference is between the scenarios of foreign competition and robots.

I wish that today’s vapid political debates could give way to ones with candidates testing one another’s policy-relevant understanding by posing questions like the one about robots. Other questions might be: How do your trade-policy proposals square with the principle of comparative advantage? What light might the absorption approach to balance-of-payments analysis shed on a connection between a trade deficit and a government budget deficit? In what sense is the Social Security trust fund a reassuring reality and in what sense a deceptive farce?

Unfortunately, such questions would not faze Donald Trump. He would respond with vicious personal insults and with reiterations of his own excellence. Anyway, allowing such questions could be entertaining. They might even enlighten some voters.




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Poor Little Me

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According to Madeleine Albright, I’m going to hell. As is every woman who isn’t voting for Hillary Clinton. All I can say is that heaven won’t be much of a paradise if it’s populated with the fools who are.

But if a lot of other self-proclaimed leftist smarties are right, I can’t go to hell, because I don’t even exist. After all, I’m a female libertarian. Further complicating matters is that now the progressive Left has decreed that gender does not exist. So not only am I going to hell (though I don’t exist because I’m a libertarian woman, and hell doesn’t exist because these people don’t believe in it), but I can’t be a woman because gender is nonexistent. Color me confused.

I don’t think I can even call myself a left-libertarian anymore. I want nothing whatsoever more to do with the Left. I’m glad that in 2016, a woman can run for president and be taken seriously, but the possibility that Hillary Clinton is not only running, but just might win, makes my blood run cold. I guess progressives still want me to be a woman so I can be a good little victim and vote for her. These people are so crazy, they make me want to run for my life.

If one out of every two people on the planet was helpless against the other, our species would have died out hundreds of thousands of years ago.

As a woman, I am expected, by the so-called progressives who have taken out a copyright on feminism, to sit around crying, “Poor little me!” I refuse to do that, not because I hate every woman in the world, or fail to care about our rights, but because I’m not an idiot. If I am not very much mistaken, we have been half of the human race since the Garden of Eden. Which means that over the millennia, we’ve had every bit as much to do with how things have turned out as men have. If we haven’t, then we’ve all been idiots.

According to the sort of history I’ve been taught since I was a girl, men have always been awful brutes — while women have been just sitting there and taking it. That doesn’t correspond to the history of my life, or the lives of most of the women I’ve ever known. I don’t even think that most of us could possibly believe it. If we were such ineffectual feathers in the wind, we’d never muster the will to get up in the morning.

My philosophy of politics and history is one in which every individual will has an influence on the whole. Events unfold as they do because of the interaction of multitudes. This was one of the aspects of libertarianism that attracted me from the start: everybody counts. The human drama is far too unruly to be centrally planned or collectively organized. If one out of every two people on the planet was helpless against the other, our species would have died out hundreds of thousands of years ago.

Certainly the rules by which we’ve played haven’t always been fair. It’s appalling to me that my grandmothers — each of whom had as much sense as any man I’ve ever met — couldn’t vote until 1920. But that arrangement was OK with most of the women in this country until it wasn’t anymore, after which it was changed. Women do as much to keep each other down (if not more) than men have ever done to oppress them.

What we dearly need is not an amendment to the Constitution, but an adjustment of attitude.

A crucial reason why women have lacked the power wielded by men is that men tend to be loyal to one another, and women do not. We compete with one another so fiercely and viciously that men shudder to think of it. They may kill each other in wars, but the rest of the time they manage to cooperate pretty nicely. We undermine and sabotage each other nearly every day of our lives from nursery school to nursing home.

Although I’m gay, I never liked playing with little girls when I was a kid. They made me nervous. One day they’d be friendly, the next they’d get mad — for no apparent reason — and the day after that, they’d be sugar and spice once again. I rarely trusted them. Most of my friends were boys, because they were temperamentally pretty much the same, day in and day out. I usually knew what to expect.

In my adult life, most of the really treacherous things ever done to me have been done by women. A lot of women have been kind and supportive, too, and it would be unfair for me to overlook them. But all along the way, I’ve benefitted from the support, encouragement, and mentorship of a variety of men. As has every other woman who has ever succeeded at much of anything in life — whether she’ll admit it or not.

I regard it as highly offensive when I’m informed that I should vote for Hillary Clinton because she’s a woman. It’s utter nonsense to suggest that this is any less sexist than the notion that a guy ought to vote for Donald Trump, Ted Cruz, or Bernie Sanders because they’re men. It will be “our turn” to be president when the majority of men and women determine that a female candidate is worthy of the office.

Women finally got the vote because enough women thought that every other woman deserved the franchise. When we get over the inferiority complex that tells us that men’s opinions of us carry more weight than our own of ourselves and one another, that’s when we’ll finally “achieve equality.” As long as we allow the political left to convince us that we’re helpless and victimized little nitwits, that’s exactly how we’ll behave. What we dearly need is not an amendment to the Constitution, but an adjustment of attitude. We’ve got vastly more power than we think.




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Cuba, Obama, and Change

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Although Republicans and, no doubt, the Castro brothers perceive President Obama’s visit to Cuba on March 20 as American kowtowing, the perception on the Cuban street is entirely different.

To Cubans, the visit is an honor ranking right up there with the Pope’s visit, and one not vouchsafed to the island since President Coolidge’s visit in 1928. El mulato, as he’s informally referred to in the Cuban fashion of conferring nicknames on everyone, and his historic visit, bring the promise of hope and change to the island more concretely than any pronouncement ever made by the Castros.

I know. Three days ago I returned from a 30-day bike journey across the island, from Baracoa in the east to Havana. American flags were everywhere — in cars, taxis, horse- and pedal-drawn taxis, even clothing — even before the visit was announced. Warned by guidebooks and savants to minimize exchanges with uniformed personnel, and never to photograph any, I found the admonition accurate. These were all serious, unfriendly, incorruptible, suspicious, and averse to any sign of curiosity. But once the visit was announced, I decided to test the premises. Passing soldiers, policemen and God-knows-what functionaries, I’d yell, “We’re not enemies anymore!” and I’d add some typical Cuban sassy wordplay non-sequitur as a true native would. I managed to get a few smiles and even some playful responses. Things are changing.

The hustle, bustle, entrepreneurship, and raw energy that permeated every person was a far cry from the typical listless socialist citizen.

Back in March 2012, in a Liberty article entitled “The Metamorphosis,” I outlined the changes to the Cuban economy legislated by the Castro government (see also “Cuba: Change We Can Count On?”, Liberty, December 2010). The changes attempted to drop one-fifth of the workers from government jobs and make them self-employed — this in a country where everyone is employed by the government at pay scales of $1–2 per day. But the fine print indicated internal ideological conflicts. While dozens of job categories were authorized — from transportation to food, to lodging, to construction, to personal grooming (and many more) — permits, taxes, limits on employees and much red tape don’t make the goal easy to achieve.

Nonetheless, the hustle, bustle, entrepreneurship, and raw energy that permeated every person pursuing his hopes and dreams along miles of city streets and rural roads was a far cry from the typical listless socialist citizen. Ironically, even the poorest — those whom socialism is touted to help the most — were selling homemade sweets, cucuruchos, in the Sierra Maestra Mountains without permits! One told me he’d be fined $3,000 if caught. To a poor guajiro unable to pay such a fine, jail would await.

Seemingly everyone is trying to become independent of the government and develop self-employed income. One university economics grad student whose psychologist wife still works for the state now runs a B&B in Las Tunas, where I overnighted between Bayamo and Camagüey. Next year he plans on studying Milton Friedman and Frederick Hayek. I asked whether that was possible; he said definitely, in advanced academia. His study plan had already been approved.

Three blocks from the capitolio in Havana, along the Prado, I spotted a sandwich board advertising real estate. A university economics professor tended the spot. He had no office other than his board, his clipboard, and the built-in bench on the promenade. Though we’d seen many “For Sale” signs on many buildings, including the humblest of abodes, we saw no real estate offices. I excitedly elbowed my wife Tina, a realtor in Arizona, to engage her interest.

Bad move.

A middleman agent of finance — the epitome of freewheeling capitalism — just didn’t fit into her perception of a socialist economy. Either the man was deluded or he was a scammer (an unlikely scenario: the police are ruthless with physical and financial crimes). I insisted on us engaging the man. Immediately she blurted out, “How can you own property in Cuba when there are no property rights and the state can confiscate your property at any time for any reason?”

Seemingly everyone is trying to become independent of the government and develop self-employed income.

The poor man, without a vestige of the ingeniousness of an American used-car-salesman, took on a pained and thoughtful look. He didn’t know where to start, but he understood that Tina had zeroed in on the heart of the matter. Translating his response was an exercise in empathy. He told us of a building across the street from the capitolio whose residents had just been told by the government to move out: the government needed the space. He didn’t know whether compensation, alternative housing, or even a grace period had been granted. He was the first to admit that Cuba has no property rights and no judicial system to enforce them. Nonetheless, what was he to do? New laws, albeit extremely constricted, allowed for the buying and selling of cars and property. No mortgages are available; only cash transactions. Interest is still illegal. But someone was paying him four times the salary he’d made at the university. He had nothing but hope and an optimistic outlook: “This time the people will not let the changes be reversed.”

I reminded him of the roadside billboards that read, “The changes in progress are for MORE SOCIALISM” — a sure sign, he counterintuitively agreed, along with Obama’s visit, that the changes now have a better chance of sticking than any previous promises. Or as one informant put it, “Castro educated us; now we know what he’s up to.”




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Fantasy Politics

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I’ve become convinced that here in the US, voters read too many comic books. They want super-powers to do super-duper things. Because the government wields such awesome might, they feel small and vulnerable. Only through their favorite political candidate do they believe they can live out their grand fantasies. If “their” guy or gal wins, together they can rule the world!

Politics are an even more intoxicating stupidity potion than team sports. Superman and Batman are much more fun. People don’t think that if their team wins the championship, their lives will be happier for any longer than a couple of weeks. But they’re sure that if their candidate wins the election, he will vanquish every evildoer on earth, transform the country into paradise, and guarantee a fabulously prosperous future. He says he will, and — against all reason, and despite every past disappointment — they believe him.

Hillary Clinton wants us to think she’s Wonder Woman. For a long time, many people did. The mental picture of her in short-shorts, a star-spangled brassiere, and a tiara is so traumatizing that imagining it makes me want to drink bleach. She has, however, survived not only invisible Bosnian bullets but more scandals than a stray dog has fleas. We’ll have to buy the next issue of the comic to see if she can dodge indictment for having compromised national security as Super Secretary of State.

People who think like gullible children also vote like them. Because their fondest wish is to be taken care of by Mommy and Daddy, forever and ever, amen, an awful lot of them can be bribed with free goodies.

Vastly more entertaining is The Donald. That’s a superhero nickname, if I ever heard one. Singlehandedly, he’s going to Make America Great Again. He declares that once elected, he will build a second Berlin Wall along our southern border, transport millions of people out of the country with a sweep of his scepter, and make Vladimir Putin cry like a little girl.

The fact that no president has the power to work such wonders doesn’t daunt his devotees. Never before has a president been The Donald! Or Tremendous Ted. Or the Magnificent Marco. Any one of whom can do all things — because he says so.

What worries me is that people who think like gullible children also vote like them. They do their deepest reading by flashlight in a blanket fort. Because their fondest wish is to be taken care of by Mommy and Daddy, forever and ever, amen, an awful lot of them can be bribed with free goodies. We’re just liable to end up electing not Superman but the Tooth Fairy, in the unlikely form of Tinkerbell Sanders. That’s a prospect that should make all libertarians reach for the arsenic.




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Whose Phone Is It, Anyway?

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Some people think — and I wonder about this myself — that it would be my duty as a libertarian to side with Apple in its contest with the United States government about the question of whether the company may justly be compelled to assist the government in opening the cellphone of the (dead) San Bernardino terrorist Syed Farook. The government is looking for terrorist associates of Farook who may have left traces in the guts of his phone.

The legal issues and history have been ably summarized by Gabriel Malor, on the website of the libertarian-conservative Federalist Society. He concludes for the government. But what is chiefly of interest to libertarians is the question of whether the government has a moral right to invade the privacy of Farook’s phone, and by possible implication millions of other phones, such as the one sitting beside me as I write this Reflection.

The government hired and maintained in its employ a person who, not without previous indication, turned out to be an activist for a genocidal foreign state.

For me, there are real claims to privacy, and there are spurious ones. Much neglected in the discussion of Mr. Farook’s phone is an issue mentioned by Sen. Susan Collins (R-ME): “The phone was not even owned by the terrorists; it was owned by the county for whom he worked, and the county has given the FBI permission to search the contents of the phone.” Apple concurs on the issue of the phone’s ownership.

So while being anxious about the government’s creating a precedent by forcing a company to assist it in extracting information from a cellphone, perhaps we should also be laughing at the joke: the government hired and maintained in its employ a person who, not without previous indication, turned out to be an activist for a genocidal foreign state; the government gave him a cellphone to use in its service; and the government lost track of the contents of his cellphone, perhaps with future hideous results.

Only one thing is lacking in this picture: the government’s usual claim that the data it “owns” must be retained as a deep secret in the bowels of its HR departments, so that the privacy of its employees can be maintained in primordial sanctity. Today it is a private organization that is making the meretricious claim to privacy.

Libertarian anarchists will disagree, but here’s the story as it appears to me. If there’s a fire in my neighborhood, the government has a legitimate power to make me open a gate so the fire engines can get through. It also has a legitimate power to enforce a warrant to enter someone’s property, looking for the source of the neighborhood’s fires. In this case, the gate is Apple’s, and the property is — the government’s!




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Now the Majority

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Amid all the hoopla surrounding the elections, the nation passed a milestone worth noting. We now have right-to-work (RTW) laws in place in the majority of states. This is a cause for quiet celebration.

Earlier this month, West Virginia — long a stronghold of Big Labor (specifically, the United Mine Workers) — voted to become the nation’s 26th RTW state. This was as surprising as Michigan’s decision a couple of years ago.

Workers find their dues used to elect politicians who want to close down the very industries that employ those workers.

It took maneuvering. The law had narrowly passed the Republican-dominated legislature the week before, but Democrat Governor Earl Ray Tomblin vetoed it. However, the state constitution allows the legislature to override a veto with a simple majority. The Republican-dominated legislature did just that, by 18–16 in the Senate and 54–43 in the House.

Undoubtedly the driving force for this change is something I have long noted in these pages. Ever since FDR, there has long been an unholy alliance between Big Labor and the Democratic Party. Labor unions freely used enormous amounts of workers’ money to elect Democrats, who then passed laws favorable to unions, but often opposed to the desires of workers. Over the past 20 years, and especially with the election of Obama, Big Labor has elected Democrats who are environmental extremists. This is the ultimate in irony: workers find their dues used to elect politicians who want to close down the very industries that employ those workers!

That is especially true in West Virginia. Of course, the state has long had major coal-mining operations. But Obama’s campaign against coal has devastated those industries. This has been the major reason that West Virginia has the second-highest unemployment rate in the nation — 6.5%, or about a third higher than the average.

Workers of the country, unite, and throw off the chains with which the vicious environmentalist Democrats have shackled you! Not only will you be free — you may just keep your job!




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Antonin Scalia, R.I.P.

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This week Liberty's editors provide two different takes on Justice Scalia's passing. Stephen Cox's elegy is here. - See more at: http://libertyunbound.com/node/1519#sthash.dl79qO6R.dpuf
This week Liberty's editors provide two different takes on Justice Scalia's passing. Stephen Cox's elegy is here. - See more at: http://libertyunbound.com/node/1519#sthash.dl79qO6R.dpuf

This week Liberty's editors provide two different takes on Justice Scalia's passing.
Andrew Ferguson speaks ill of the dead here.

Justice Antonin Scalia, who died on February 12, was a person of intransigent mind, with a well-justified contempt for the intellectual weakness and silliness of his professional colleagues. He was the greatest influence on the Supreme Court in its present period and the Court’s best writer since, perhaps, the 1930s. He was devoted to the idea that the Constitution means what it says, not what a momentarily prestigious legal philosophy thinks it should say. He tried to interpret the Constitution according to its actual words, not according to the results he himself might have preferred. For that reason, his passing is a disaster for everyone who believes in constitutional, and therefore limited, government.

Among other good things, Scalia:

  • Attempted to keep organs of the executive branch from becoming “junior varsity Congress[es],” establishing rules, procedures and “guidelines” that had the force of law.
  • Spoke for the Court in denying government the power to circumvent the Constitution’s search-and-seizure provisions by the use of new electronic methods.
  • Spoke for the Court in denying government the right to use claims of “hate speech” to circumvent constitutional rights.
  • Spoke for the Court in maintaining Americans’ rights to gun ownership in the crucial Heller case, and dissented forcefully when the Court declined to consider more advanced Second-Amendment cases.
  • Spoke for the Court in maintaining the right to sell ultraviolent video games.
  • Memorably opposed the majority decisions upholding Obamacare: “The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”
  • In connection with the same decisions, stripped the mask of impartiality from his colleagues’ sorry faces: “Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. . . . And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”
  • Provided the deciding vote for freedom and fairness in eminent domain, in the Williamson Country Regional Planning case.
  • Was strongly influential in arguing against the use of “balancing act” criteria in decisions about constitutional rights.
  • Was strongly influential in arguing against the use of “legislative history” as a way of qualifying or reversing the explicit meaning of statutes.

This list might be greatly extended. I could also compile a list of Scalia’s inconsistencies and blindnesses. But the fact is that for decades Scalia was the intellectual leader of the Court, whenever it admitted of any intellectual leadership, and the best bulwark of constitutionalists against the ability of modern-liberal judges to make the constitution what their ideology thinks it ought to be.

Scalia was an unembarrassed believer in the idea that the Constitution should be interpreted in the same way as any other text — by reading what is there and not what we want to be there.

Many libertarians don’t like Scalia, because of his particular rulings. So be it. But the disagreement often goes deeper. It goes to the philosophy of interpretation that many libertarians maintain. They think the Constitution was written to express broad principles of individual freedom and that its wording must always be interpreted in that light. Like modern liberals, who frequently refer to the Constitution as a “living entity,” the meanings of which are not bound by its actual wording, they want judicial decisions to embody a wide range of rights (i.e., a right to “privacy”) that never come close to being mentioned by the Constitution. If you want a judge to find them there, how can you object when the judge finds a lot of other things that aren’t there, and enforces them? This is what modern liberal jurists have been doing for several generations, and libertarians should not try to wish it away by appealing to essentially the same philosophy.

It was in his opposition to such ideas that Scalia truly distinguished himself. He was an unembarrassed believer in the idea that the Constitution should be interpreted in the same way as any other text — by reading what is there and not what we want to be there. He knew he would be despised as unsophisticated, at best, and as a mere advocate of his own bigotries, at worst. He repaid scorn with scorn — and who would not be scornful of the sophistries of Chief Justice Roberts, cynically arguing for the constitutionality of Obamacare immediately after he had argued for its unconstitutionality, or the inanities of the four modern liberal justices, who never saw a modern liberal law they didn’t like? What reflective person would deny Scalia’s contention that "the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one's own views"? When Scalia joined the Court, this idea, though obvious, had been evaded for far too long, with devastating effects on the constitution’s system of limited government. Scalia’s aggressive advocacy of “textualism” gave it new importance, made its intellectual power impossible to ignore.

The truth is that the Constitution, if interpreted in the light of what it says, not of the pleasant emanations we sometimes feel radiating from its penumbra, would give us a world incomparably more libertarian than the one we currently inhabit. It would not be a world governed solely by principles of individual right, because the Constitution was not written solely to do that. But it would be a world so free that it would be a pleasure to suggest the few revisions that would complete the picture — instead of spending immense amounts of time and money fighting off attacks by modern liberals and conservatives who believe in legislating from the bench. And this is what people who care about individual freedom will now have to do, during the long, intellectually dismal period between Justice Scalia’s death and the confirmation of his successor.




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Antonin Scalia, R.I.P.

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This week Liberty's editors provide two different takes on Justice Scalia's passing.
Stephen Cox's elegy is here.

Antonin Scalia, longtime associate justice of the Supreme Court of the United States, was a talented writer whose position afforded him innumerable chances to wield his pen in forceful argument for his often curiously shifting but nonetheless deeply felt views. He was also by some distance the most public justice, often giving speeches laying out his judicial philosophy and thoughts on upcoming jurisprudence, sometimes to the point that he had to recuse himself from a case.

Scalia’s pompous blowhardity made him a gleefully divisive figure in the highest court of a land drifting ever farther away from his own conservative, masculinist Catholicism. After Harvard Law and a little while in private practice, Scalia taught for several years at the University of Virginia Law School, and would later return to academia at the University of Chicago. His own jurisprudence bore the hallmarks of his time as a teacher: his opinions—which, unlike many justices, he did not largely hand off to his passel of clerks—were didactic, condescending, and all-too-aware of the distance between his enrobed augustness and all else outside the cloakroom.

As a public figure, Scalia devoted himself above all else to the preservation of executive-branch powers, whether actually enumerated or distantly dreamed. He scarcely met a presidential prerogative he didn’t like, whether the right to order the torture of supposed enemies, deny due process at will, or pursue “interstate commerce” into the individual home. Despite his famed “faint-hearted originalism,” Scalia was never far from trampling over the Ninth and Tenth Amendments in the service of executive might. Even when his decisions favored a broadly libertarian policy, such as eliminations of gun control or overturnings of illegal searches, they often did so in a way that declined to limit future exercises of the power of the state. More often, though, when he looked to the Constitution, he found justifications for his own predilections to expand use of the death penalty even to the mentally disabled, criminalize homosexual acts, and sign onto four separate dissents against gay marriage.

Scalia devoted himself above all else to the preservation of executive-branch powers, whether actually enumerated or distantly dreamed.

It is, in one sense, ironic that the first response of Republican legislators in response to the death of their originalist hero was to defy constitutional statements clearly allowing the sitting president, no matter how lame a duck he might be, to suggest a replacement for the fallen justice. But it’s certainly not surprising: in this, the GOP is simply following Scalia’s own example (as well as that of basically every other politician), honoring and vociferously upholding the Constitution when it supports their own tribal position, and ignoring it as soon as it suits them to do so.

There remains a great deal to sort out in the wake of Justice Scalia’s sudden death. Any cases for which decisions have not been rendered, even those which have been argued and voted upon, will not take Scalia’s vote into account. In the short term, this means public unions nationwide get a reprieve from right-to-work measures, and President Obama’s climate change plan is likely to survive a little longer. In the medium term, it means a nasty confirmation fight, as Obama tries to get a justice though a Republican Congress with no intention to allow one. (Probably the worst case here, actually, is a compromise candidate in the form of a socially moderate, tough-on-crime-and-terroists type, à la David Barron.) In the long run, the court has lost its most entertaining and most self-consciously intellectual jurist. We could do with a few less like him.



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The Few, the Proud, the Insufferably Entitled

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Students at the University of Oregon have demanded that a quotation by Martin Luther King, Jr., be removed from the wall of their student union building because King’s remarks were not “inclusive” enough. The offending words? “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character. I have a dream . . .”

It seems that King did not acknowledge the LGBT community when he argued for racial equality, and that makes him privileged and insensitive. So, off with his head — and his quotation.

Never mind that King was risking his own life to lead the way for racial equality (a risk that ended in his murder). Never mind that he was a minority voice with no political power save the art of persuasion. Never mind that his dream of his children being judged by the content of their character can include minorities of all kinds, or that the LGBT community and the feminist movements were blazing trails of their own at the time. King is privileged and insensitive for not including them specifically.

When you’re blazing a trail, you cut away the biggest obstacles first, and leave the paving of the road for those who come behind.

Change is a process. You install new carpet and then realize the walls need new paint, which makes the curtains look dingy so you replace those, and before long you have a whole new room of furniture. Yet these same students who are so self-righteously criticizing the leaders of the past have no idea whose rights they are ignoring — or even trampling — today.

It was, in fact, Oregon students who 30 years ago demanded that the university replace its motto, “Leader in the quest for the good life for all men,” with the King quotation, after feminists objected that the motto did not include women. Too bad they didn’t think of the LGBT community back then. (And too bad they didn’t realize that the word “men” originally was inclusive of both genders.) The point is, when you’re blazing a trail, you cut away the biggest obstacles first, and leave the paving of the road for those who come behind. It’s a process, not a destination.

This same criticism is made against the Founding Fathers because they did not address the slavery issue when they declared independence from Great Britain. And yes, they were Founding Fathers. Not a single woman signed the Declaration. But that doesn’t mean women weren’t involved. They were managing family farms, running family businesses, overseeing their children’s education, maintaining home security, and ensuring there would be enough income and capital to allow their husbands to focus on freedom. These were partnerships, even if the women’s names didn’t appear on the documents.

I dream of a time when people will be judged by the culture of their own times, and not by the social progress of the future.

Should they have emancipated the slaves at the same time? From our perspective, of course. But the country wasn’t ready for that much change. Slavery had been an economic institution for millennia, and few people realized that you could persuade people to do the grunt work without a whip, simply by paying them a good wage. It was a revolutionary idea to think that a country could be governed of, by, and for the people without a monarch in charge. To proclaim that everyone had been born with certain inalienable rights took six bloody years to prove. They blazed the trail. Blacks and then women would pave it.

I dream of a time when people will be judged by the culture of their own times, and not by the social progress of the future. I forgive the imperfections of past leaders, because they were blazing new trails for me, cutting through oppressive underbrush and battling archaic beliefs, so that I could travel their broad highways while searching for new trails to blaze.




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