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LAWSUIT: ‘Neither the Courts nor Government Can Determine What Is a Sin’

January 13, 2016/in Courts & Law, Culture War, Featured, Healthcare, Policy, Politics, Regulation, Religion/by Thomas More Law Center

The Thomas More Law Center (TMLC), a national public interest law firm based in Ann Arbor, Michigan, yesterday, filed a friend of the court brief in the case of Zubik v. Burwell, in support of seven non-profit organizations including the Little Sisters of the Poor who claim they cannot comply with the Department of Health and Human Services’ mandate (“HHS Mandate”) because even the so called “accommodations” make them actively complicit in the sin of abortion. TMLC’s brief asserts that the Court is not the arbiter of sacred Scripture and, therefore, cannot determine whether or not an act constitutes a sin; it can only determine whether the government’s penalties for refusal to complete the sinful act are a substantial burden on religious liberty.

Richard Thompson, President and Chief Counsel of TMLC, portrays this case as a potential turning point in American legal history, stating, “The HHS Mandate is a monumental attack on religious liberty. If this appeal is lost, the government becomes the head of every religious denomination in the country by its assumed authority to determine what is in fact a sin.”

The HHS Mandate requires religious non-profit organizations to participate in a government scheme to provide free contraceptives, including abortion causing drugs and devices (abortifacients), to their employees or face monumental fines that would result in closing the doors of most non-profit organizations that object to the HHS Mandate.

However, the HHS Mandate allows non-profit organizations like the Little Sisters to receive a so-called accommodation from directly providing free contraceptives and abortifacients to their employees. The accommodation requires the non-profit organizations to either (1) fill out a form as notice of their objection to contraceptives and abortifacients and provide that form to their insurers, which includes language instructing the insurers to provide free contraceptives and abortifacients to the women in the non-profits’ health plans, or (2) write and send a detailed letter to HHS with all of the information necessary to notify the non-profits’ insurers of their newfound obligation to provide free contraceptives and abortifacients to the women in the non-profits’ health plans.

These notification requirements trigger the non-profits’ insurers to provide free contraceptives and abortifacients to the women in the non-profits’ health plans. This notification requirement makes the non profits complicit in the provision of a service that they find sinful, thereby causing them to sin themselves.

TMLC’s brief argues, supported by a long line of Supreme Court precedent, that neither the government nor the Supreme Court can determine whether an act does or does not violate a person’s religious beliefs. Rather, the Supreme Court must accept the non-profits’ assertions that the notification requirement is indeed against their religion. To accept otherwise is to supplant the Church and the Bible with the government, allowing the Supreme Court and the government to interpret tenants of faith. This slippery slope would subject all religious exercise to the whim of the government’s approval.

Excerpts from TMLC’s Amicus brief:

“This Court has already determined that the fines for noncompliance with the HHS Mandate impose a substantial burden on employers. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2776 (2014). The ultimate question, therefore, is whether compliance is actually against the Petitioners’ religion. This is something that is for Petitioners to determine, not the Court.”

“The Court is not the arbiter of sacred scripture and cannot determine whether the notification form and letter are attenuated enough from the provision of contraceptives that they do not substantially burden Petitioners’ religion. Delving into this inquiry requires the Court to interpret Petitioners’ religious beliefs on the morality of the different levels of complicity with sin. Thomas v. Review Bd. of Indian Employment Security Div., 450 U.S. 707, 718 (1981). Therefore, the Court can only determine whether Petitioners are being compelled to do something that violates their faith—here, filling out the notification form or writing a notification letter to HHS, both of which trigger the dissemination of contraceptives and abortifacients to their employees in connection with their employee health plans.”

“While women have a right to obtain contraceptives, see Griswold v. Connecticut, 381 U.S. 479, 485-486 (1965), this does not mean they have a right to free contraceptives and abortifacients. Moreover, this right certainly does not mean that a person has the right to obtain contraceptives and abortifacients—either directly or indirectly—from their employer at the expense of pillaging the employer’s religious liberty.”

Click here to read TMLC’s entire 19-page brief

TMLC, representing thirty-six plaintiffs including six religious non-profit organizations, has filed twelve lawsuits challenging the illegal aims of the HHS Mandate.

Brazil Is the New Greece by Tyler Cowen

January 7, 2016/in Culture War, Economy, Policy, Politics, Regulation/by Foundation for Economic Education (FEE)

At 70% of GDP, public debt is worryingly large for a middle-income country and rising fast. Because of high interest rates, the cost of servicing it is a crushing 7% of GDP. The Central Bank cannot easily use monetary policy to fight inflation, currently 10.5%, as higher rates risk destabilising the public finances even more by adding to the interest bill. Brazil therefore has little choice but to raise taxes and cut spending.

Too often, at the popular level, there is a confusion between “austerity is bad” and “the consequences of running out of money are bad.”

Sophisticated analysts of fiscal policy do not make this mistake.

By the way, here is a long study of how Brazilian fiscal policy has been excessively pro-cyclical.

And how is Brazilian output doing you may wonder?

By the end of 2016 Brazil’s economy may be 8% smaller than it was in the first quarter of 2014, when it last saw growth; GDP per person could be down by a fifth since its peak in 2010, which is not as bad as the situation in Greece, but not far off.

Two ratings agencies have demoted Brazilian debt to junk status. Joaquim Levy, who was appointed as finance minister last January with a mandate to cut the deficit, quit in December.

Any country where it is hard to tell the difference between the inflation rate — which has edged into double digits — and the president’s approval rating — currently 12%, having dipped into single figures — has serious problems.

Don’t forget this:

Since the constitution’s enactment, federal outlays have nearly doubled to 18% of GDP; total public spending is over 40%. Some 90% of the federal budget is ring-fenced either by the constitution or by legislation.

Constitutionally protected pensions alone now swallow 11.6% of GDP, a higher proportion than in Japan, whose citizens are a great deal older. By 2014 the government was running a primary deficit (ie, before interest payments) of 32.5 billion reais ($13.9 billion).

Brazilian commodity prices have fallen 41% since their 2011 peak, so I say Ed Prescott has earned his Nobel Prize right there.

The first underlying article/op-ed also is from the Economist. Without intending any slight to their other recent issues, the January 2-8 issue is one of their best in a long time. (I am very pleased to have bought it in advance at the airport rather than waiting to get to my copy back at home.)

This post first appeared at Marginal Revolution.

Tyler Cowen

Tyler Cowen is an American economist, academic, and writer. He occupies the Holbert C. Harris Chair of economics, as a professor at George Mason University, and is co-author, with Alex Tabborak, of the popular economics blog Marginal Revolution.

The Barbarianism of Paternalism by Aaron Ross Powell

January 5, 2016/in Culture War, Economy, Policy, Politics, Regulation/by Foundation for Economic Education (FEE)

Lots of people do lots of things I wish they wouldn’t. And lots of people don’t do lots of things I wish they would. In fact, I’m rather certain the world would be a better place for me and people just like me if more people were willing to go along with my desires and tastes, instead of stubbornly pursuing their own thing.

Take drinking tons of soda. For the life of me, I can’t figure out why people consider sugar water a multiple-times-a-day beverage. It’s like wanting to pour chocolate sauce on everything, or eat brownies with every meal. In short, to my sensibilities, it’s gross. And it’s way less healthy than drinking water — which tastes a whole lot better, too.

Part of being civilized — arguably most of being civilized — is recognizing that different people do things differently and that such differences deserve respect. Respecting difference means allowing behaviors we find disagreeable, provided those behaviors don’t cause us harm. This covers big stuff like religious toleration — those people of other faiths sure do eat weird things and have a funny way of talking, but that’s their business — to, yes, even the dreadful behavior of drinking half-a-dozen Cokes a day.

Of course, civilized people aren’t prevented from making their opinions known. I just did, with my quips about soda, and if I happen to see you drinking one, I’m free to tell you what I think. (Though I risk coming across as an officious jerk if I’m not careful.) What civilized people don’t do is hit each other with clubs over such differences.

That’s why the paternalism Sarah Conly offers three cheers for in the pages of the New York Times amounts to a rah-rah for barbarism. Conly, an assistant professor of philosophy at Bowdoin College and author of Against Autonomy: Justifying Coercive Paternalism, wants those upstanding chaps of the NYPD to flex their might to stop Americans from getting so fat.

To support her preference for state interference, Conly turns to the great classical liberal John Stuart Mill.

In his great work, On Liberty, Mill advances the “harm principle” as a crucial limit on the authority of the state:

The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right.

Which sounds pretty bad for the soda ban. But not so fast, Conly says. She tells us Mill endorsed preventing our freely chosen actions “when we are acting out of ignorance and doing something we’ll pretty definitely regret. You can stop someone from crossing a bridge that is broken, he said, because you can be sure no one wants to plummet into the river.”

From that, she gets to the idea that, because people underestimate the dangers of drinking lots of soda, they’re (often/usually) acting out of ignorance when they drink it, and so we’re justified in at the very least making it much more difficult for them to consume the stuff in bulk.

But read the full passage from Mill:

If either a public officer or any one else saw a person attempting to cross a bridge which had been ascertained to be unsafe, and there were no time to warn him of his danger, they might seize him and turn him back, without any real infringement of his liberty; for liberty consists in doing what one desires, and he does not desire to fall into the river.

Nevertheless, when there is not a certainty, but only a danger of mischief, no one but the person himself can judge of the sufficiency of the motive which may prompt him to incur the risk: in this case, therefore (unless he is a child, or delirious, or in some state of excitement or absorption incompatible with the full use of the reflecting faculty), he ought, I conceive, to be only warned of the danger; not forcibly prevented from exposing himself to it.

It seems Conly left out the bit about such interference requiring first “no time to warn him of his danger.” Nor does she seem at all bothered by the important limit that, “when there is not a certainty, but only a danger of mischief, no one but the person himself can judge of the sufficiency of the motive which may prompt him to incur the risk.”

Even accounting for the cognitive biases — which Conly says, if only he’d known about them, would’ve led Mill to support soda nannyism — it’s difficult to square the harm caused by a large Coke with the imminent danger and certainty of effect needed to override the harm principle.

In fact, a great deal of On Liberty seems perfectly aimed at exposing the immorality of Conly’s paternalism. She should’ve read not only the rest of that passage, but also the rest of On Liberty. Mill warns of an increasing inclination to stretch unduly the powers of society over the individual, both by the force of opinion and even by that of legislation: and as the tendency of all the changes taking place in the world is to strengthen society, and diminish the power of the individual, this encroachment is not one of the evils which tend spontaneously to disappear, but, on the contrary, to grow more and more formidable.

The disposition of mankind, whether as rulers or as fellow-citizens to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power; and as the power is not declining, but growing, unless a strong barrier of moral conviction can be raised against the mischief, we must expect, in the present circumstances of the world, to see it increase.

This “mischief” results from that urge to have others prefer the same thing we prefer, to have others behave the way we behave. But, like I said above and like Conly seems to forget, civilization means recognizing the primacy of individual choice, even choices we think silly.

There is no reason that all human existences should be constructed on some one, or some small number of patterns. If a person possesses any tolerable amount of common-sense and experience, his own mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode.

Human beings are not like sheep; and even sheep are not undistinguishably alike. A man cannot get a coat or a pair of boots to fit him, unless they are either made to his measure, or he has a whole warehouseful to choose from: and is it easier to fit him with a life than with a coat, or are human beings more like one another in their whole physical and spiritual conformation than in the shape of their feet?

If it were only that people have diversities of taste, that is reason enough for not attempting to shape them all after one model. But different persons also require different conditions for their spiritual development; and can no more exist healthily in the same moral, than all the variety of plants can in the same physical, atmosphere and climate.

The same things which are helps to one person towards the cultivation of his higher nature, are hindrances to another. The same mode of life is a healthy excitement to one, keeping all his faculties of action and enjoyment in their best order, while to another it is a distracting burthen, which suspends or crushes all internal life.

Such are the differences among human beings in their sources of pleasure, their susceptibilities of pain, and the operation on them of different physical and moral agencies, that unless there is a corresponding diversity in their modes of life, they neither obtain their fair share of happiness, nor grow up to the mental, moral, and aesthetic stature of which their nature is capable.

Is drinking large sodas a way of life, though? Conly mocks the idea: “Large cups of soda as symbols of human dignity? Really?” But consider that if you drink 32 ounces of Coca-Cola, you’ll rack up 388 calories. A 20-ounce Iced White Chocolate Mocha from Starbucks has 500. Both aren’t good for you, but the Mocha’s worse. The difference is that the kinds of people who want to use government to save ignorant Americans from the harms of soft drinks are the kinds of people who prefer an Iced White Chocolate Mocha to a Coca-Cola.

That Conly calls for a ban on Cokes and not Mochas indicates that what really bothers her is the behavior of those low-brow folks who slam giant soft drinks, but not so much the worse behavior of the middle-class and educated who just can’t start the day without a latte. About this tendency to use ourselves as the moral yardstick, Mill noted, “our idea of improvement chiefly consists in persuading or forcing other people to be as good as ourselves.”

So the real trouble is people aren’t acting like Conly — or the majority Conly imagines agrees with her — would like them to. Thus it’s time to call in the law. To which Mill says this:

A theory of “social rights,” the like of which probably never before found its way into distinct language — being nothing short of this — that it is the absolute social right of every individual, that every other individual shall act in every respect exactly as he ought; that whosoever fails thereof in the smallest particular, violates my social right, and entitles me to demand from the legislature the removal of the grievance.

So monstrous a principle is far more dangerous than any single interference with liberty; there is no violation of liberty which it would not justify; it acknowledges no right to any freedom whatever, except perhaps to that of holding opinions in secret, without ever disclosing them: for the moment an opinion which I consider noxious, passes any one’s lips, it invades all the “social rights” attributed to me by the Alliance.

The doctrine ascribes to all mankind a vested interest in each other’s moral, intellectual, and even physical perfection, to be defined by each claimant according to his own standard.

To which Conly likely offers another three cheers. Especially when the individual rights she wants violated in the name of social rights are so, well,dumb. “As irritating as it may initially feel, the soda regulation is a good idea,” she writes. “It’s hard to give up the idea of ourselves as completely rational. We feel as if we lose some dignity. But that’s the way it is, and there’s no dignity in clinging to an illusion.”

Writing in The Subjection of Women — regarding a different group then burdened with the charge of irrationality — Mill had this to say about a Conly-style disregard for personal choice: “The yoke is naturally and necessarily humiliating to all persons, except the one who is on the throne, together with, at most, the one who expects to succeed to it.”

Conly may cheer the power of the throne, but the civilized among us should not.

This essay first appeared at Libertarianism.org.

Aaron Ross Powell

Aaron Ross Powell is a research fellow and editor of Libertarianism.org.

Bernie Sanders Wants Us to Be Like Denmark by Marian L. Tupy

October 14, 2015/in Culture War, Economy, Policy, Regulation/by Foundation for Economic Education (FEE)

For those of you who did not watch the Democratic Party presidential debate last night, Senator Bernie Sanders says he wants America to be more like Denmark.

In some ways, that is an excellent idea. Denmark, it turns out, has freer trade and better business environment than the United States. Its overall economic freedom is almost identical to that of the United States, as is its well-being index.

But don’t take my word for it. Look at the United Nations and World Bank data brought to you courtesy of HumanProgress.org.

The one area where the United States might not want to copy Denmark is the size of government, which is a proxy measure of taxation and redistribution.

1. Free trade

2. Business environment

3. Overall economic freedom

4. Human development index

5. Size of government

This post first appeared at Cato.org.

Marian L. Tupy

Marian L. Tupy is the editor of HumanProgress.org and a senior policy analyst at the Center for Global Liberty and Prosperity.

Federal Bureaucrats Are Paid 78% More than Private Sector Workers by Chris Edwards

October 7, 2015/in Culture War, Economy, Policy, Politics, Taxes/by Foundation for Economic Education (FEE)

New data show that worker compensation is rising faster in the federal government than in the private sector. After rapid growth in federal pay during the George W. Bush years, growth slowed from 2011 to 2013 after policymakers enacted a partial freeze on federal wages.

That era of restraint is now over. The latest data from the Bureau of Economic Analysis (BEA) show that wages rose 2.9 percent in the federal government in 2014, on average, compared to 1.7 percent in the private sector.

When benefits such as pensions and health care are included, federal compensation increased 2.8 percent, on average, compared to 1.3 percent in the private sector.

Federal civilian workers had an average wage of $84,153 in 2014, compared to an average in the private sector of $56,350. The federal advantage in overall compensation (wages plus benefits) is even greater. Federal compensation averaged $119,934 in 2014, which was 78 percent higher than the private-sector average of $67,246.

This essay discusses trends in federal and private pay.

The BEA provides compensation data by industry. The figure shows average compensation in 17 major private industry groups, as well as compensation for federal civilian workers, the military, state and local governments, and federal government enterprises (mainly the postal service).

The federal government has the fourth highest paid workers in the United States, after utilities, mining, and the management of companies.

Federal compensation is higher, on average, than compensation in the information, finance and insurance, and professional and scientific industries.

Federal compensation is more than twice as high as compensation in the education industry, and it is more than three times higher than compensation in the retail trade industry.

For more information, see here.

Cross-posted from Cato.org.

Chris Edwards

Chris Edwards is the director of tax policy studies at Cato and editor of DownsizingGovernment.org.

Gallup: More Americans Say Federal Government a Threat

September 26, 2015/in Featured, Government Transparency, Gun Rights, Policy, Politics/by NRA Institute for Legislative Action

The Bill of Rights in the U.S. Constitution is there for a simple reason: Our Founding Fathers wisely understood that even a national government of supposedly limited powers could overstep its bounds and infringe upon the rights of the people. In the landmark Heller decision, the U.S. Supreme Court recognized that the Founders considered the Second Amendment a failsafe that would provide the people with the means “to oppose an oppressive military force if the constitutional order broke down.”

Whatever else can be said about the efficacy or integrity of the government these days, America is fortunate that its people still have ample means to seek peaceful redress of grievances. Yet a new poll shows that the Founders’ concerns about the overreaching tendencies of centralized power remain on the mind of many U.S. citizens. Gallup reported on Monday that the share of Americans saying that the federal government poses “an immediate threat to the rights and freedoms of ordinary citizens” has risen from 30 percent in 2003 to 49 percent today.

Those who believe the government poses a threat say that it does so in a wide variety of areas, ranging from the feeling that the government wields too much power in general, to numerous specific concerns. Gallup notes, however, that “[t]he most frequently mentioned specific threats involve gun control laws and violations of the Second Amendment to the Constitution, mentioned by 12% who perceive the government to be an immediate threat.” That was a greater percentage of Americans than those expressing concern over government surveillance of Americans’ email and phone activities, Obamacare, and encroachments on freedom of religion and other First Amendment rights.

Gallup also reports that during the four-year gap between its 2006 and 2010 polls, the share of Democrat and Democrat-leaning respondents believing the government posed a threat decreased from 59 percent to 26 percent, while the share of Republican and Republican-leaning respondents holding the same opinion increased from 24 percent to 63 percent. For that reason, Gallup concludes that party affiliation tends to determine whether a person perceives a threat, with Democrats more likely to having felt threatened during the presidency of George W. Bush and Republicans more likely to having the same opinion since Barack Obama took office.

However, Gallup’s numbers show that adherents of both parties are more threatened by government power under Obama than they were during the Bush administration. Comparing responses from the two parties by averaging the results of the four polls taken during each administration shows that Democrats are four points more suspicious of government under Obama than Republicans were under Bush. The poll also shows that, overall, Republicans are more threatened by the government under Obama than Democrats were under Bush.

But make no mistake. Any way you break down the numbers, a growing number of people of all political persuasions see the Obama administration as a threat to our freedoms.

Gallup’s take-away from its polls is that “the persistent finding in recent years that half of the population views the government as an immediate threat underscores the degree to which the role and power of government remains a key issue of our time. . . . From the people’s perspective, then, a focus on the appropriate role for government should be at the forefront of the nation’s continuing political discourse and should be a key point of debate in the current presidential election campaigns.”

The United States is unique in its commitment to an armed citizenry. It is also unique in the level of personal freedom and self-determination enjoyed by its citizens. We don’t think that’s a coincidence. We also don’t think it’s any surprise that more Americans are feeling concerned about a government that increasingly signals it doesn’t trust them with their fundamental freedoms, including the Right to Keep and Bear Arms.

One solution, of course, is provided by Article II of the Constitution, which details the manner in which Americans are to elect their president. We again have the opportunity to exercise that sacred freedom next year. Candidates on both sides of the aisle have already begun articulating their views on the Second Amendment, and gun owners should be paying close attention. If Americans again elect an executive who does not hold the trust of the people, we will have only ourselves to blame.

Big Government Is Still Young by Alberto Mingardi

September 24, 2015/in Economy, Policy, Politics, Regulation, Taxes/by Foundation for Economic Education (FEE)

I am reading Charles Murray’s By the People. Rebuilding Liberty Without Permission. By the way, it is quite an engaging read.

Right at the beginning of the book, Murray struggles to give some measure of the extent of increase in government involvement with everyone’s life.

Here’s a passage:

Until the 1930s, the federal government remained tiny. The federal budget of 1928 totalled $38.0 billion, expressed in 2010 dollars. …

Of that total budget in 1928, $9.4 billion went to defense. Of non-defense spending, another $9.4 billion went to repayment of the national debt and $9.0 billion went to pensions and the Veteran Bureau. That left $10.2 billion for everything else — all the expenses associated with the White House, the federal judiciary, and the Departments of State, Treasury, Justice, Commerce, Labour, Interior, the Post Office, and all the independent agencies of the federal government.

Expressed as per capita spending in constant dollars, that $10.2 billion amounted to 1.0 percent of comparable federal spending in 2013. Think about it: one one-hundredth.

Murray has quite a few similar “facts from the past” that turn out to be rather surprising for the contemporary reader. To me, the most striking thing is how fast government expansion was accomplished. I fear we very often forget that.

In Western countries, most people today think pensions are a most common feature of human life — and yet human beings had compulsory savings and pension systems for a minuscule fraction of their history.

If government grows fast, however, culture changes fast too. The sense of entitlement takes root easily in society.

For one thing, looking back makes us think that big government is not inevitable: after all, government was capricious, tyrannical, arbitrary during most of human history, but it never was this intrusive and expensive.

For the other, it is remarkable how easy we get used — perhaps, we become addicted? — to new government programs, and how strongly they can permeate society and change culture.

First published at © Econlog. Reprinted with permission.

Alberto Mingardi

Alberto Mingardi is Director General of Istituto Bruno Leoni, Italy’s free-market think tank.

Government Can’t Censor Content — Even If It’s ‘For Your Own Good’ by Evan Bernick

September 7, 2015/in Commentary, Courts & Law, Policy, Regulation/by Foundation for Economic Education (FEE)

Will a recent Supreme Court decision unleash more speech than Americans can handle?

In a recent New York Times article, reporter Adam Liptak (rightly) refers to Reed v. Town of Gilbert as “the sleeper case of the last Supreme Court term.” Liptak spoke with Robert Post, First Amendment scholar and dean of Yale Law School, and Floyd Abrams, constitutional lawyer and free-speech advocate.

In Reed, the Court invalidated a town sign code that treated signs promoting church services more harshly than signs promoting other messages, and made plain that such content-based restrictions on speech must undergo strict judicial scrutiny.

Abrams praised the decision; Dean Post, according to Liptak, predicted that it will “endanger[] all sorts of laws,” “roll consumer protection back to the 19th century,” and “destabilize First Amendment law.”

Those, like Abrams, who believe that “the First Amendment is about liberty” and that “we all lose by reading it narrowly” should welcome the ruling in Reed and pay no heed to Post’s parade of horribles.

Reed resolved an ambiguity that had confused lower courts for decades and rendered many Americans’ freedom to speak uncertain in important areas. In so doing, Reed honored the broad mandate of the First Amendment, which prohibits any law “abridging the freedom of speech,” making no exception for certain messages, ideas, or subject matters — regardless of whether the government promises that curbing speech is for our own good.

How did we get to Reed? The first major case to focus on content-based speech restrictions was Police Department of Chicago v. Mosley (1972), which concerned a Chicago ordinance that barred picketing within 150 feet of schools during the school day — except for picketing related to labor disputes.

The Court invalidated the ordinance because the government provided no credible evidence that labor picketing was less likely to be disruptive than other forms of picketing.

To selectively proscribe speech on the basis of its subject matter, said the Court, is to “completely undercut the ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.’”

Subsequent cases would make clear that intent to censor is not essential to a determination that a restriction on speech is content-based; if the government had to inspect the content of speech to determine how it could be regulated, that was sufficient to trigger strict scrutiny.

But the nature of the Court’s content-based jurisprudence became muddled as it began to review First Amendment challenges to local zoning rules concerning adult businesses. These zoning rules clearly regulated speech based on its subject matter — they only applied to businesses whose expression was sexually explicit.

However, in City of Renton v. Playtime Theaters, Inc. (1986), the Court concluded that an ordinance targeting theaters that specialize in sexually explicit films was content-neutral and, thus, not subject to strict scrutiny, because it was “justified without reference to the content of the regulated speech” — specifically, because “the Renton ordinance is aimed not at the content of the films… but rather at the secondary effects of such theaters on the surrounding community.”

Renton was hotly debated by First Amendment scholars at the time, and scholar Laurence Tribe expressed concern that the newly-minted secondary effects doctrine would “undermine the very foundation of the content-based/content neutral distinction.”

In Ward v. Rock Against Racism (1989), Tribe’s concern was validated. Ward involved a content-neutral rule that required the use of city-provided sound equipment at concerts in Central Park, regardless of what was being performed.

Drawing upon Renton, the Court stated that the “[t]he principal inquiry in determining content neutrality… is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”

Some lower courts understood Ward to stand for the proposition that facially discriminatory laws — that is, laws that identify regulated speech based on its content — could be treated as content-neutral for purposes of the First Amendment, so long as the courts believed that those laws were enacted for public-spirited reasons.

But since government officials always profess benign intentions, proving censorial intent proved difficult. The result: the proliferation of speech restrictions, including licensing schemes restricting occupational speech (such as that of tour guides, interior designers, and veterinarians), panhandling bans, and noise ordinances that exempt certain noises from regulation depending on either their message or who is speaking.

Reed v. Town of Gilbert was a perfect example of this trend. In the decision below in Reed, the Ninth Circuit Court of Appeals determined that Gilbert’s sign code was “content-neutral” because of the town’s assurances that it had no intention to discriminate.

To combat this censorial trend, when the Supreme Court granted certiorari inReed, the Institute for Justice filed an amicus brief urging the Court to clarify that strict scrutiny applies:

If a law expressly requires the government to look at the content of speech in determining whether or not it is subject to regulation, or
When a law’s purpose is to censor messages with certain subject matters or viewpoints.

And thankfully, to the benefit of speakers across the country, the Supreme Court did exactly that.

Writing for the Court, Justice Thomas explained,

A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus’ toward the ideas contained in the regulated speech.

The Court easily concluded that the sign code at issue classified signs on the basis of their content because whether or not the restrictions applied to any given sign “depend[ed] entirely on the communicative content of the sign.”

Having done so, the Court went on to perform the kind of truth-seeking judicial engagement that is required to ensure that the government does not act as a censor, insisting that the government demonstrate, with reliable evidence, that it was pursuing a compelling interest through means narrowly tailored to that end.

The town failed to carry its burden. Although the town claimed that the sign code “preserv[ed] the Town’s aesthetic appeal” and protected “traffic safety,” the town “allow[ed] unlimited numbers of other types of signs that create the same problem[s]” and did not demonstrate that “directional signs pose a greater threat to safety than do ideological or political signs.”

Even assuming that the town’s stated interests were compelling, the Court concluded that the sign code was insufficiently narrowly tailored to pass constitutional muster.

Which brings us to the present where, as Liptak observes, Reed is already having an impact.

In the wake of Reed, the Seventh Circuit Court of Appeals revisited an ordinance barring panhandling in the “downtown historic district” of Springfield, Illinois.

Last year, the Seventh Circuit had upheld the ordinance as content-neutral, even though an officer enforcing the ordinance would have to listen to the content of the speaker’s message in order to determine whether the ordinance had been violated. (A request for a charitable donation might be impermissible, but a request for a commercial transaction would not.)

Following Reed, the Seventh Circuit accepted a petition for rehearing and a unanimous panel invalidated the Springfield ordinance. Judge Easterbrook, writing for the panel, recognized the broad scope of Reed’s holding: “Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.”

Although Reed reaffirmed the Court’s historical (and highly critical) view of content-based regulation, not everyone sees the ruling as cause for celebration. But Dean Post’s specific criticisms are unwarranted.

Although Post argues that the decision could undermine restrictions on misleading advertising and professional malpractice, such laws have coexisted with the First Amendment for over 200 years, and there is no reason to believe that the Court’s decision will change that. Nor will Reed destabilize our First Amendment law; it stabilizes that law by providing much-needed guidance to lower courts.

Dean Post’s real complaint is that, for over a quarter century, the Court has gradually shifted away from his preferred theory of the First Amendment — one that would allow the government to privilege certain favored categories of speech — towards a more libertarian view, which leaves such judgments about the value of speech to the free choices of Americans. Reed v. Town of Gilbert is simply the most recent step in that evolution, and it is nothing to be afraid of.

In Reed, the Court affirmed that the government is not free to pick and choose what topics it would prefer Americans speak about or what information they can be trusted with, even if the government earnestly professes that it has our best interests at heart. Reed will help to ensure that speech remains uninhibited, robust, and wide open.

A version of this article first appeared at the Huffington Post.

Evan Bernick

Evan is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, a libertarian public interest law firm.

On Privatizing Marriage: No, Matrimony Is Not Irreducibly Public by Max Borders

August 25, 2015/in Culture War, Must Read, Policy, Politics, Religion/by Foundation for Economic Education (FEE)

Marriage is society’s primary institutional arrangement that defines parenthood. – Jennifer Roback Morse

The idea of marriage privatization is picking up steam. And it makes strange bedfellows.

There are old-school gay activists suspicious that state marriage is a way for politicians to socially engineer the family through the tax code. There are religious conservatives who are upset that a state institution seems to violate their sacred values. Don’t forget the libertarians for whom “privatize it” is more a reflex than a product of reflection.

But they all agree: it would be a good idea to get the government out of the marriage business. Principle, it turns out, is pragmatic.

First, let’s disentangle two meanings for one word that easily get confused. When we say “marriage,” we might be referring to:

A. a commitment a couple enters into as a rite or acknowledgment within a religious institution or community group (private); or

B. a legal relationship that two people enter into, which the state currently licenses (public).

Now, the questions that follow are: Does the government need to be involved inA? The near-universal answer in the United States is no. But does the government need to be as involved as it is in B? Here’s where the debate gets going.

I think the government can and should get out of B, and everyone will be better for it. This is what I mean by marriage privatization.

Some argue that marriage is “irreducibly public.” For Jennifer Roback Morse, it has to do with the fate of children and families. For Shikha Dalmia, it has to do with the specter of increased government involvement, a reinflamed culture war, and a curious concern about religious institutions creating their own marriage laws.

First, let’s consider the issue of children. According to Unmarried.org:

39.7 percent of all births are to unmarried women (Centers for Disease Control, 2007).
Nearly 40 percent of heterosexual, unmarried American households include children (Child Protective Services, 2007).
41 percent of first births by unmarried women are to cohabiting partners (Larry Bumpass and Hsien-Hen Lu, 2000).

Does the law leave provisions for the children of the unmarried? Of course. So while state marriage might add some special sauce to your tax bill or to your benefits package, family court and family codes aren’t likely to go anywhere, whatever we do with marriage. This is not a sociological argument about whether children have statistically better life prospects when they are brought up by two married parents. Nor is it a question about gender, sexuality, and parental roles. It’s simply a response to the idea that marriage is “irreducibly public” due to having children. It is not. (I’ll pass over the problem for this argument that some married couples never have children.)

Dalmia is also concerned that “true privatization would require more than just getting the government out of the marriage licensing and registration business. It would mean giving communities the authority to write their own marriage rules and enforce them on couples.”

It’s true. Couples, as a part of free religious association, might have to accept some definition of marriage as a condition of membership in a religious community. But, writes Dalmia, “This would mean letting Mormon marriages be governed by the Church of the Latter Day Saints codebook, Muslims by Koranic sharia, Hassids by the Old Testament, and gays by their own church or non-religious equivalent.” And all of this is could be true up to a point.

But Dalmia overstates the case. Presumably, no religious organization would be able to set up codes that run counter to the civil laws in some jurisdiction. So if it were part of the Koranic sharia code to beat your wife for failure to wear the hijab at Costco, that rule would run afoul of criminal laws against spousal abuse. Mormon codes might sanction polygamy, but the state might have other ideas. So again, it’s not clear what sort of magical protection state marriage conjures.

What about Dalmia’s concern that in the absence of state marriage, “every aspect of a couple’s relationship would have to be contractually worked out from scratch in advance”? Never mind that some people would see being able to work out the details of a contract governing their lives as a good thing (for one, it might prevent ugly divorce proceedings). There is no reason to think that all the functions normal, unmarried couples with children and property have in terms of recourse to “default” law would not still be available. Not only would simple legal templates for private marriage emerge, but states could establish default civil unions in the absence of couples pursuing private alternatives.

There is no reason to think that all the functions normal, unmarried couples with children and property have in terms of recourse to “default” law would not still be available.

Indeed, if people did not like some default option — as they might not now — there would be better incentives for couples to anticipate the eventualities of marital life. People would have to settle questions involving cohabitation, property, and children just as they do for retirement and for death. Millions of gay couples had to do this prior to the Supreme Court’s ruling on marriage equality. Millions of unmarried couples do it today. The difference is that there would be a set of private marriage choices in a layer atop the default, just as people may opt for private arbitration in lieu of government courts.

In the debates leading up to marriage equality, an immanently sensible proposal had been that even if you don’t like the idea of hammering out a detailed contract with your spouse-to-be, simply changing the name of the entire statutory regime to “civil unions” would have gone a long way toward putting the whole gay-marriage debate to bed. The conservatives would have been able to say that, in terms of their sacred traditions and cultural community (as in A), “marriage” is between one man and one woman. Gay couples would have to find a church or institution that would marry them under A. But everybody would have some equal legal provision under the law to get all the benefits that accrue to people under B. You’d just have to call it a “civil union.”

And that’s fine as far as it goes.

But I like full privatization because “marriage” is currently a crazy quilt of special privileges and goodies that everybody wants access to — unmarried people be damned. But marriage should confer neither special favors nor goodies from the state. We can quibble about who is to be at the bedside of a dying loved one. Beyond that, marriage (under definition B) is mostly about equal access to government-granted privileges.

Not only does the idea that marriage is irreducibly public represent a failure of imagination with respect to robust common law, it also resembles arguments made against privatization in other areas, such as currency, education, and health care. Just because we can’t always envision it doesn’t make it impossible.

Max Borders

Max Borders is the editor of the Freeman and director of content for FEE. He is also co-founder of the event experience Voice & Exit and author of Superwealth: Why we should stop worrying about the gap between rich and poor.

VIDEO: Why Wouldn’t You Save a Drowning Child? by Matt Zwolinski

August 25, 2015/in Culture War, Policy, Taxes, Video/by Foundation for Economic Education (FEE)

Would you lose $500 to save a drowning child? We explore a thought experiment that just may save someone’s life.

Imagine you’re walking to work in the morning down a quiet rural road to the side of the road there’s a pond and pass by every day. Only today, something is different. Today you see a small child in that pond.

He is alone, he’s flailing his arms, and if you don’t act quickly it looks like he is going to drown. Luckily, the pond is shallow. You can wade in, grab the child, and bring him to safety without putting yourself in any danger at all.

Unluckily, you’re wearing a very expensive set of clothes, and there just isn’t enough time to take them off. So even though saving the child is perfectly safe, it is going to cost you at least $500 to replace your suit and shoes. There’s no one else around, so the decision is yours alone to make.

Do you wade in, save the child, and ruin your expensive clothes? Or do you decide that $500 just too high a price to pay for the life of someone you don’t even know and walk on by.

If you’re like most people, the answer is obvious. Of course you save the child. Anyone that would would let us small child die just to keep their nice clothes from getting wet would be a moral monster. As peter singer, the philosopher who originated this drowning child thought experiment argued, if you had the power to prevent something really bad from happening to someone else just by suffering something merely slightly bad yourself, then “taking the hit” is the right thing to do.

Now of course most of us will never come across a drowning child on her way to work but all of us do find ourselves living in a world where over six million children die each year from preventable causes. And while none of us have the power to help all of those children, almost all of us have the power to help some of them. By donating a small amount of money much less than $500 to an effective charity through a site like GiveWell.org, you could literally save someone’s life. But that brings up another question.

How do we make sure aid efforts do the most good and the least harm?

Matt Zwolinski

Matt Zwolinski is an Associate Professor of Philosophy at the University of San Diego. He is also a co-director of USD’s Institute for Law and Philosophy, a member of the editorial board of Business Ethics Quarterly, and a blogger for Bleeding Heart Libertarians.

When Judges Quit Protecting Liberty by David S. D’Amato

August 21, 2015/in Commentary, Courts & Law, Regulation/by Foundation for Economic Education (FEE)

How do we decide if a government action is legitimate?

When courts are asked to determine whether a government action has violated an individual’s rights, they apply one of several different “standards of review” or “levels of scrutiny,” ranging from “strict scrutiny” (reserved for a very narrow category of cases) to “rational basis scrutiny.”

Rational basis tests erect the lowest possible legal hurdles for the government, yet they are applied in cases that implicate some of our most important liberties, such as the right to earn a living, simply because they were not listed by name in the Bill of Rights.

For example, a law requiring an expensive permit to arrange flowers will only merit a rational basis review. And while rational basis review is a test for constitutionality, it doesn’t have anything to do with the Constitution or its history.

As Timothy Sandefur pointed out in the Cato Unbound issue on judicial activism, such rational basis tests have “no foundation whatsoever in the Constitution of the United States.” Rather, they were simply made up, fashioned by judges out of whole cloth during a period when courts were increasingly willing to defer to legislators and bureaucrats and their arbitrary and needless interference with private enterprise.

Rational basis review amounts to carte blanche for petty tyrants in legislatures, city councils, and regulatory agencies. Since the New Deal, courts have refused to give any real constitutional protection to the basic right to choose your profession and earn an honest living.

The 1934 Supreme Court decision in Nebbia v. New York is an important episode in the creeping evolution of rational basis. Leo Nebbia, a grocer, was convicted of the heinous crime of selling milk at a price that was too low, according to the bullies at New York’s “Milk Control Board.”

Writing for the Court, Justice Owen Roberts declared that as long as a law has “a reasonable relation to a proper legislative purpose,” the courts have no authority to strike it down.

Though he admitted that “the reasonableness of each regulation depends upon the relevant facts,” Roberts still maintained that, once a law is enacted, “every possible presumption is in favor of its validity.” If a “policy may reasonably be deemed to promote public welfare,” judicial review is basically over.

As a practical matter, this strange, circular reasoning means that a legislative body determines for itself whether its bills are constitutional. Merely by passing the law, the legislature settles the question and obliges the courts to accept any explanation offered for it. Such a theory eviscerates meaningful judicial review and leaves the individual defenseless, without any legal recourse against the nearly omnipotent modern state. And, since the Nebbia decision, the courts have only become more deferential.

Conservatives mistakenly associate judicial “activism” with the progressive left, but the New Deal-era progressive judges were actually the architects of the judicial “deference” that reigns today. Traditional common law protections were discarded in favor of expedience: the desire to get out of government’s way as it systematically planned, monitored, and regulated society as it saw fit.

The liberalism of the previous century was likewise treated with an arrogant and imperious contempt. Quaint notions of individual liberty and inviolable natural rights gave way to the irresistible march of modernity and “scientific” progress, shepherded by their natural steward, the state.

Rational basis tests invert legitimate due process. The burden of proof should be on the government to prove that a law or regulation serves the general welfare. The government should have to factually demonstrate the connection between the law and public health and safety, not merely assert that one mightexist.

But, instead, judges have decided that person challenging a law must confront and rebut every possible argument and hypothetical that the government (or judge) might conjure up in support of its law.

The rational basis test demands that a victim of government overreach prove the impossible, refuting an infinite universe of possible scenarios and rationales that could justify the law. Forget the actual empirical facts — rational basis has no time for such distractions.

On the contrary, the test requires judges to help the government by inventing counterfactual stories that could have justified the law. Even if the law has nothing to do with community health or safety, even if it is openly protectionist, it must be upheld if any flight of fancy could justify it.

Thus, the rational basis “test” is no test at all. It is a hollow, perfunctory gesture as the court abandons its duty of judicial review and leaves the hapless individual at the mercy of capricious government officials and special interests.

The right to choose your occupation is as fundamental a liberty as the right to speak, an indispensable aspect of self-ownership and self-determination. The freedom to make important, personal decisions about your career and your property is the bedrock of peaceful cooperation and civil society. In any society even moderately committed to freedom and legitimate due process, the rational basis test would be inconceivable. The presumption of liberty, like the presumption of innocence, would be the individual’s default position under the law.

Sadly, judges have abandoned their posts, doing the bidding of arbitrary governments and politically powerful economic interests who use the law to prevent competition. To fulfill the Constitution’s guarantee of due process, and to restore our lost liberties, we must scrap the rational basis excuse.

David S. D’Amato

David S. D’Amato is an attorney and independent scholar whose writing has appeared at the Institute of Economic Affairs, the Future of Freedom Foundation, the Centre for Policy Studies, and the Institute for Ethics and Emerging Technologies.

‘We the People’ or the Political Elite

August 21, 2015/in Commentary, Policy, Politics/by Ron Edwards

“We the People,” those symbolic words mean that for the first time in world history, a government was set up to not only recognize the God given rights of you and I, but also operate according to that most worthy premise “We the People.” Unfortunately, the progressive political elitists have reversed the role and mission of the federal government. So now, it is a rogue anti unalienable rights regime that only looks out for illegal immigrants, American born thugs, and anyone who is on a mission to destroy our exceptional nation way of life.

The federal government is most certainly rouge and is now a clear and present danger to the very continuation of our republic turned mob ruled democracy. Not only is the federal government, but increasingly, state and local government are working diligently to obstruct the ability of sovereign citizens to live free from tyranny and to be the best that God would have them to be.

Often through government over regulations and draconian taxes people are obstructed from freely opening and running a family business. Abusive government regulations are now so a stringent, they are literally choking the life out of what was at one time the most vibrant economy the world had ever known.

The latest round of proposed Environmental Protection Agency laws would at the very least increase household and small business energy bills 30 to 50 percent. Why? Because President Obama and others hate American greatness and power. They are working overtime to use any method they can to destroy the United States. Or at the very least, have her severely weakened and under the influence of islam by the time Obama leaves office.

The Obama administration is nothing more than a lightning rod of calculated destructive measures. Some of which have practically destroyed a decent quality of life for not only black Americans, but increasingly for more and more Americans of all backgrounds. The sad truth is, that some Americans are now too dumb to even understand just how screwed over they really are.

After five decades of indoctrination rom their liberal masters and a steady decrease in their standard of living, many psyched out black Americans are more enamored with running around carrying black lives matter signs, than building a good quality of life with their families and fellow Americans.

They are foolishly self-centered in their so-called progressive struggle, that they have the nerve to be upset because a presidential candidate and fellow progressive socialist stated that “all lives matter.” To add insult to their stupid injury, the black socialist progressives even consider the “all lives matter” statement to be hate speech or a violent statement. One has to wonder, what society can continue to remain great and economically prominent when millions of it’s brainwashed citizens are so bitter? Then add in their low quality of cognitive functioning and increasing their numbers through breeding, what is occurring is a massive negative drain on our nation making us vulnerable to external enemies and economic collapse.

Unfortunately, far too many Americans have devolved into what the Bible refers to as those who would prefer to believe lies over the truth. That is a direct result of at least five decades of unrelenting indoctrination of generations of American students against all that is good and morally correct.

There was a time if an individual chose to believe that he or she was entitled to someone else’s property and chose to rob them, I the were shot or beaten, that was considered just and no big deal. But now, certain people are so off kilter morally, that brute force against an aggressive burglar is considered more horrendous than aborting innocent babies.

By the way, the black lives matter folks, President Obama and thugs can celebrate because local police forces have been prevented from going hard after thugs who choose to commit crimes against their fellow citizens. So now, crime has dramatically increased in every city where there are substantial black populations.

In Chicago, over the past year murder of blacks by blacks is up 10 percent and rape has increased seven percent. In Las Angeles, violent crime is up 20 percent year after year. In Cleveland, the city is going through a tremendous revival downtown and in many neighborhoods that are not populated by mostly black Americans. But in the city’s notorious east side, (with the exception of University Circle and Little Italy) is a black dominated war zone where they are seemingly bumping each other off for the sport of it.

Such developments or devolutions are the direct result of a wholesale rejection of morality and the Biblical principles that were the foundational building blocks of all that was great about this nation. The continued dangerous practice of repudiating that which is good is literally destroying our republic.

Only through the rejection of that which is evil and learning about and accepting the good, will America have even a chance of once again becoming that shining city on a hill nation.

The choice is completely up to “We the People” not the political elites.

Democracy Can’t Really Be Democratic by Ilya Somin

August 18, 2015/in Commentary, Politics/by Foundation for Economic Education (FEE)

Recent debates over the meaning of “one person, one vote” and the lessons of ancient Greek democracy for the modern world highlight an important truth about democracy: it can’t be democratic all the way down.

Lincoln famously said that democracy is “government of the people, by the people, for the people.”

But before “the people” can govern anything, someone has to decide who counts as a member of the people, what powers they have, and what rules they will vote under. And that someone usually turns out to be a small group of elites.

Just as the world can’t be held up by “turtles all the way down,” so a political system can’t be democratic all the way down.

The Elitism at the Heart of Democracy

The ongoing litigation over the meaning of “one person, one vote” illustrates these points well.

Before the voters can decide anything at the polls, someone has to decide which voters will get how many representatives, and under what electoral rules. And that someone will turn out to be some combination of the Supreme Court and state legislators, depending on how tightly the Court chooses to restrict the discretion of the latter.

State legislators are democratically elected, of course, which means the voters will have some influence over their decisions. But in this instance, the legislators are determining the very rules under which they will stand for election in the first place, which gives them ability to constrain the electorate, as well as vice versa.

Ironically, the meaning of a principle that many people regard as a core element of American democracy is going to be decided by a relatively small elite.

Ancient Athens also exemplified the elitism underpinning democracy. While the Athenian citizen assembly had very broad powers over public policy, the right to vote in that assembly was narrowly circumscribed in ways that excluded the bulk of the population of the city.

And, at least in the first instance, the decision to exclude these people was not made democratically. Once the system was established, of course, the male citizens who had the right to vote were far from eager to extend the franchise to women, slaves, or the city’s large population of “metics” (resident non-citizens).

Committed democrats might say that such elitism can be avoided. Perhaps the rules of democracy can also be determined by a democratic process. The people themselves can decide the rules of the political game. For example, the US Constitution — which establishes the basic rules of the American political system — was ratified by conventions elected by popular vote.

But this solution simply pushes the problem one step back.

Before “the people” can decide the rules of the game, someone has to decide the rules under which that decision itself will be made (including the rules determining who qualifies as a member of the people).

In the case of the Constitution, while the people did indeed elect representatives to the ratifying conventions, it was a small elite at the Philadelphia convention that drafted the Constitution, decided that it would come into force if nine of the then-thirteen states ratified it, and chose to ignore the provision of the Articles of Confederation that required unanimous consent by all thirteen states before any amendments come into force.

Had the Philadelphia Convention followed its original mandate (which was merely to propose revisions to the Articles) or respected the unanimity rule, American political history might have turned out differently.

The point is not that the Founding Fathers were necessarily wrong to make decisions they did. It is that the decision-making process they followed was not — and could not have been — democratic all the way down.

Before a democratic process can even begin to function, some nondemocratic process has to make the rules. And those rules will have a major impact on the choices available to “the people” once they finally begin to have a say.

Why it Matters

Does it matter that democracy can’t be democratic all the way down?

The answer depends in large part on your reasons for valuing democracy in the first place. Even if its basic rules are the product of a small elite, democracy might still be superior to other political systems for a host of possible reasons.

If your support for democracy is premised on purely consequentialist grounds (e.g. — that democracy maximizes social welfare), you might not care much about how the democratic process got set up in the first place.

But the elitism at the heart of democracy does impact a number of common arguments for giving broad power to voters and elected officials.

One of the standard rationales for the idea that we have a duty to obey democratically enacted laws is that, thanks to the right to vote, we have consented to them. But we haven’t had a meaningful opportunity to consent to the rules under which the vote occurred in the first place. Many of those rules were established influential elites, in often centuries before any of today’s voters were even born.

In the 2016 election, those of us who can vote will get to decide whether the Democrats or the Republicans will control the presidency and Congress. But we won’t get to decide many of the rules under which that vote takes place, or whether the president and Congress should have so much power in the first place.

For these reasons, among others, voting does not entail any genuine consent to the policies enacted by the winners. This calls into question consent-based justifications for a duty to obey democratically enacted laws, and even consent-based justifications for the legitimacy of the entire apparatus of democratic government.

Another standard rationale for democracy is that it gives everyone (or at least all citizens eligible to vote) an equal voice. But that equality is severely limited if the most important rules of the system were actually set by a small elite, often before “the people” were even defined, much less allowed to decide anything.

Elite determination of the rules of the democratic game might also affect purely consequentialist rationales for democracy. While consequentialists may not care about the origins of the rules for their own sake, they might have good reason to worry that the elites who make the rules will skew them in their own favor.

There are many historical examples of such shenanigans. To take just one example, the elites who drafted the US Constitution included the notorious Three-Fifths Clause, which gave extra representation in Congress to slaveowners by enabling them to count slaves as part of the population base determining the number of representatives a state had (without, of course, giving the slaves any say in the selection of those representatives).

The inevitability of elite control over at least some phases of the decision-making process makes this sort of problem difficult to avoid.

Democracy’s inability to be fully democratic doesn’t do much to strengthen the case for dictatorship or oligarchy. After all, these systems are generally even more coercive and inegalitarian, as well as more prone to a range of other pathologies.

But the superiority of democracy over these rival systems should not blind us to its own significant weaknesses, or to the case for imposing tight limits on the scope of democratic government.

The elitism at the heart of democracy is far from the only factor we should take into account in evaluating political systems. But it is an important issue to keep in mind. At the very least, it should make us more skeptical of claims that some policy is wise or just because it represents the democratically enacted “will of the people.”

Ilya Somin

Ilya Somin is Professor of Law at George Mason University School of Law. He blogs at the Volokh Conspiracy.

EDITORS NOTE: This post first appeared at the Volokh Conspiracy.

Politics in One Page: Elections Are Great Illusions by Jeffrey A. Tucker

August 11, 2015/in Elections, Featured, Politics/by Foundation for Economic Education (FEE)

In every election season, a new generation comes of age and experiences the political theater for the first time. The experience is formative. It challenges you to decide what you think about the world. Which candidate best represents my values and shares my sense of how things ought to be? More fundamentally, how should things be in politics?

As time goes on and you experience successive presidential election cycles, illusions begin to fall away. You start to see the whole thing for what it is.

So this article is for those who do not yet see. It is a quick tutorial in political reality, and a way to avoid the pain and suffering that comes with gradually discovering that reality on your own.

Lesson 1: Your Vote Cannot Change the Election Outcome

It’s not that your vote doesn’t matter at all. It might matter, but the odds are incredibly thin. If you live in a swing state, you might have a 1 in 10 million chance of swinging the election. But on average, “a voter in America had a 1 in 60 million chance of being decisive in the presidential election,” concludes one statistical analysis in Economic Inquiry. As the authors indicate, you are more likely to die in an car crash on the way to the polls.

Why do so many people vote anyway? Are they deluded? Maybe, but many people treat voting as a consumption good, which is to say they enjoy it. It makes them feel patriotic. There’s nothing wrong with that, but if you are still voting in an attempt to affect the outcome — and are still spooked that your failure to vote might ruin everything — here is a solution. Find someone who will vote differently, and you can both decide to grab a drink together instead.

Lesson 2: You Are Voting for People, Not Policies

There are elections in this country in which people really do decide on issues. In state and local elections, there are referenda on bond issues, taxes, pot decriminalization, and so on. Exciting stuff! But at the federal level, no way. You are voting only on personnel. Sure, the candidates can promise this or that, but how they behave after the election is something over which you have no control — and there is no recourse if something goes wrong.

Wouldn’t it be grand if there were real national elections on issues? Let’s say that the ballots had lists of spending priorities, policy ideas, and methods of government management. How many people would vote for their smartphones to be surveilled? For ever-less choice in health care? For higher gas taxes? I don’t know the answer here, but it would be interesting, for once, to see. Direct democracy on issues is technologically feasible today. It is even possible to give people the government they actually want through subscription services. We don’t do it because the ruling class likes the system the way it is.

Lesson 3: These People Are Not Actually the Government

Last year, I calculated the number of government employees who are actually running the state and compared it to the number of people we elect. Depending on how you calculate this, we are permitted to elect between 0.02 percent and 0.0004 percent of those who are in charge of our lives. The unelected constitute the deep state that no one wants to talk about. You could ship the whole class of elected rulers to Zimbabwe for four years and it would make no difference.

But wait: Aren’t the elected rulers in charge of the rest? Not really. Most of the permanent bureaucracy can’t be fired, no matter what. In any case, delegation to professionals is what elected rulers specialize in. The first act of the president is to fill 3,000 positions with political appointees. Congressional offices are managed by DC hacks. Politicians are specialists in what they are doing now: trying to get elected. The day they take office is the day the next election begins.

Lesson 4: These Are Not the Only Options

The beginning of political wisdom comes with the realization that the mainstream candidates do not exhaust the ideological options. Candidate A says that health care policy should be this way, and candidate B says it should be that way. What neither candidate ever says is that perhaps health care should not be the responsibility of government at all. And this goes for every other issue in national life: communications, labor, energy, environment, foreign policy, and so on.

The whole conventional political debate is premised on the idea that government should be running things. What’s left out here is the greatest single idea ever discovered in the history of the social sciences: society runs itself better than any authority can run it.

This is true in economics but also in culture, security services, religion, and family life. Liberty just works better. The discovery of this truth built civilization. But that idea is absent from the options we are given. No matter: you can discover it on your own if you are brave enough to step outside the partisan paradigm.

Lesson 5: Social Change Happens Outside of Government

Every candidate will speak about his or her vision for America. They talk as if they want to be, can be, will be, in charge of pushing history forward. But look around: the progress you experience in your daily life has nothing to do with the political class. Think about the mobile applications you use to stay in touch with family, find directions in a new city, monitor your health, communicate with your network. These services were not granted by the political class. They came to us via entrepreneurs and enterprise, working themselves out in the course of social evolution.

In “Is Politics Obsolete?” Max Borders and I chronicled all the ways the world has changed over the last four years. It’s remarkable what’s happening today. It’s revolutionary. None of this was anticipated by the last election. And none of it is inspired by politicians. The change is coming from within the fabric of the social order. And that change is continuing by the day. If you want to be part of it, to make a difference in the world, the realm of enterprise and individual action is the sector for you. In many ways, the political theater is a distraction — a learning opportunity, yes, but ultimately not decisive for the kind of life we want to build.

The tendency to treat elections as personal moments in our lives might be a product of democracy. We are encouraged to believe that we are running the system. So we flatter ourselves that our opinions matter. After all, it is we the voters who are in charge of building the regime under which we live. But look deeper and you discover a truth that is both terrifying and glorious: the building of the great society can’t be outsourced. It is up to you and me.

Jeffrey A. Tucker

Jeffrey Tucker is Director of Digital Development at FEE, CLO of the startup Liberty.me, and editor at Laissez Faire Books. Author of five books, he speaks at FEE summer seminars and other events. His latest book is Bit by Bit: How P2P Is Freeing the World. Follow on Twitter and Like on Facebook.

It’s a Mad, Mad, Mad, Mad World

August 3, 2015/in Culture War, Featured, Policy, Politics, Regulation, Religion/by Martin Mawyer

Three decades after the ‘Moral Majority’ revolution, after fighting numerous battles for our culture, we can claim victory on, well … hardly anything.

The world is going mad. And it’s not just political madness. It’s madness everywhere.

Are we really selling aborted baby body parts? It’s madness.
Are we really joining two people of the same sex and calling it marriage? That’s madness, too.
Are we really extending the power to get a nuclear bomb to Iran, a nation that has chanted “Death to America” and “Death to Israel?” That’s complete madness.

Oh, there’s more madness. Much more.

Law-abiding citizens are being turned into lawbreakers for such things as refusing to sell wedding cakes to homosexual couples – while those who were once lawbreakers are now law-abiding citizens, like those who smoke pot in Colorado, Oregon, Alaska and Washington.

It’s still against federal law to smoke weed. Right? But who cares?

And how about this madness: There’s world outrage over a hunter’s killing of a lion in Zimbabwe, but hardly any public outrage over hundreds of Christians being beheaded in the Middle East and Africa by Islamists.

There’s more.

A Florida man was told by a Pinellas County air quality inspector to keep his barbecue smoke in his yard. What? This should make Linda Blair’s head spin all over again.

A New York restaurant owner was fined $5,000 because he used the word “waitress” in an employment ad. An Indian-restaurant owner also was fined $5,000 in New York for trying to hire an Indian waiter.

Maddening, I tell you.

All right, I need to stop or I’ll never get to my point.

I’ve been in the movement of defending America’s traditional, moral and biblical heritage for more than 30 years, first as the editor of Dr. Jerry Falwell’s Moral Majority Report in 1983, then as president of Christian Action Network since 1990.

The battles back in the day seem small, compared to today’s struggles.

We were fighting abortion and court decisions to kick God and prayer out of the public schools, as well as combatting the relentless chants of feminists, homosexuals and secularists to distort, pervert and destroy the laws of nature and nature’s God.

Three decades later we can claim victory on, well … hardly anything.

Every once in a while we would celebrate a win, such as passing the Defense of Marriage Act, which defined marriage as the union of a man and a woman in federal eyes, or the “Don’t Ask, Don’t Tell” policy on homosexuals openly serving in the military, or the Religious Restoration Act, which ensured that religious freedoms were protected from federal overreach.

And we did wage a successful campaign against the National Endowment for the Arts, which was funding some of the most blasphemous, sadomasochistic and sexually gruesome art imaginable.

(My “favorite” was the NEA’s funding of an art project called “Testicle Stretch with the Possibility of a Crushed Face.” It featured a man lying prone on a platform, a rope tied to his testicles that led to a pulley supporting heavy metal weights. If his testicles gave out, his face would theoretically get crushed, giving the art project its brutal and insane name.)

While a couple of these victories remain, the courts, Congress, presidents or federal administrators have gutted most of them.

Now we find ourselves fighting battles that make you wonder whether we are still living in America. It’s as if we’ve been conquered but refuse to admit it.

No army ever came. No outside soldiers ever took over the White House. The American flag still flies. And we still sing the National Anthem at baseball games.

But while the White House lights up in gay rainbow colors in celebration of legalized homosexual marriage, there are no red, white and blue lights on the White House on the fourth of July.

And in Reno, Nev., City Hall replaces the American flag with a gay rainbow flag. Oops, they admitted afterward, they meant to fly the gay flag ALONGSIDE the American flag.

The fact that the head of the DNC can’t explain the difference between a Democrat and a Socialist should tell us a lot.

The president of the United States ignores the laws. The U.S. Supreme Court ignores the Constitution. And Congress, well that’s easy: They ignore the people.

The IRS is using its agents to punish conservatives. If you support anything that America once stood for, you are a hatemonger. If you claim any of your beliefs are grounded in the Bible, you are immediately dismissed as a flat-earth-society lunatic.

Then there’s this particularly harrowing story out of Wisconsin, reported in the National Review:

(Illustration: Roman Genn)

In an article titled, “They came with a battering ram,” the publication exposed how certain Wisconsin officials raided the homes of innocent Americans simply because they publicly supported Gov. Scott Walker’s re-election bid and his “Wisconsin Budget Repair Bill.”

Here’s just a small excerpt from this rather frightening story. It’s the story of “Anne” and the police invasion of her home:

Someone was pounding at her front door. It was early in the morning – very early – and it was the kind of heavy pounding that meant someone was either fleeing from – or bringing – trouble. “It was so hard. I’d never heard anything like it. I thought someone was dying outside.”

She ran to the door, opened it, and then chaos. “People came pouring in. For a second I thought it was a home invasion. It was terrifying. They were yelling and running, into every room in the house. One of the men was in my face, yelling at me over and over and over.”

It was indeed a home invasion, but the people who were pouring in were Wisconsin law-enforcement officers. Armed, uniformed police swarmed into the house. Plainclothes investigators cornered her and her newly awakened family. Soon, state officials were seizing the family’s personal property, including each person’s computer and smartphone, filled with the most intimate family information.

When you get a chance, read this remarkable and disturbing article, written by David French. It will send shivers down your spine and make your hair stand on end.

Anne was told by police not to call her lawyer and not to tell anyone about the raid – not her mother, her father nor her closest friends.

She was left with a single question: “Is this America?”

Which brings me to this question: As Iranian citizens chant “Death to America”… are they too late?