U.S. Constitution Archives - Page 2 of 3

Tag Archive for: U.S. Constitution

VIDEO: What’s A Constitution Among Friends? by Stephen Limbaugh

August 17, 2015/in Courts & Law, Satire, Video/by Dr. Rich Swier

In the much-anticipated new installment to the “new voices” video series from D’Souza Media, Stephen Limbaugh gives a whimsical take-down of how liberals read the Constitution.You must see this musical satire on liberal jurisprudence!

Watch now:

Keep an eye out for more “new voices” videos on DineshDSouza.com in the coming months. In the meantime, watch some more of Stephen’s videos and connect with him on YouTube, Facebook, and Twitter.

Dinesh D’Souza’s latest #1 New York Times best selling book is “America,” a rebuttal of the progressive shame narrative of American history, now available in paperback for the first time!

Don’t Agree with the Mayor’s Politics? No Permits for You! by Walter Olson

July 21, 2015/in Commentary, Elections, Policy, Politics, Religion/by Foundation for Economic Education (FEE)

Boston mayor Martin Walsh gives Donald Trump the Chick-Fil-A rush* over his immigration opinions. Via the Boston Herald:

If Donald Trump ever wants to build a hotel in Boston, he’ll need to apologize for his comments about Mexican immigrants first, the Hub’s mayor said.

“I just don’t agree with him at all,” Boston Mayor Martin J. Walsh told the Herald yesterday. “I think his comments are inappropriate. And if he wanted to build a hotel here, he’d have to make some apologies to people in this country.”

More on the use of permitting, licensing, and other levers of power to punish speech and the exercise of other legal rights at Overlawyered’s all-new regulatory retaliation tag. (And no, I’m not exactly thrilled with Mayor Walsh for making me take Trump’s side in an argument.)

* In case you’d forgotten the infamous Chick-Fila-A brouhaha, here’s Overlawyered’s coverage:

The uproar continues, and quite properly so (earlier here and here), over the threats of Boston Mayor Thomas Menino and Chicago alderman Proco (“Joe”) Moreno to exclude the Chick-Fil-A fast-food chain because they disagree (as do I) with some of the views of its owner.

Among the latest commentary, the impeccably liberal Boston Globe has sided with the company in an editorial (“which part of the First Amendment does Menino not understand?…A city in which business owners must pass a political litmus test is the antithesis of what the Freedom Trail represents”), as has my libertarian colleague Tom Palmer at Cato (“Mayor Menino is no friend of human rights.”)

The spectacle of a national business being threatened with denial of local licenses because of its views on a national controversy is bad enough. But “don’t offend well-organized groups” is only Rule #2 for a business that regularly needs licenses, approvals and permissions. Rule #1 is “don’t criticize the officials in charge of granting the permissions.”

Can you imagine if Mr. Dan Cathy had been quoted in an interview as saying “Boston has a mediocre if not incompetent Mayor, and the Chicago Board of Aldermen is an ethics scandal in continuous session.” How long do you think it would take for his construction permits to get approved then?

Thus it is that relatively few businesses are willing to criticize the agencies that regulate them in any outspoken way (see, e.g.: FDA and pharmaceutical industry, the), or to side with pro-business groups that seriously antagonize many wielders of political power (see, e.g., the recent exodus of corporate members from the American Legislative Exchange Council).

A few weeks ago I noted the case of Maryland’s South Mountain Creamery, which contends through an attorney (though the U.S. Attorney for Maryland denies it) that it was offered less favorable terms in a plea deal because it had talked to the press in statements that wound up garnering bad publicity for the prosecutors. After that item, reader Robert V. wrote in as follows:

Your recent article about the [U.S. Attorney for Maryland] going after the dairy farmers reminded me a case in New York state where the Health Department closed down a nursing home in Rochester. They claim is was because of poor care, the owner claims it was because he spoke out against the DOH.

The state just lost a lawsuit where the jury found the DOH targeted the nursing home operator because he spoke out against them.

According to Democrat and Chronicle reporters Gary Craig and Steve Orr, the jury found state health officials had engaged in a “vendetta” against the nursing home owner:

Beechwood attorneys maintained that an email and document trail showed that Department of Health officials singled out Chambery for retribution because he had sparred with them in the past over regulatory issues. The lawsuit hinged on a Constitutional argument — namely that the state violated Chambery’s First Amendment rights by targeting him for his challenges to their operation.

The Second Circuit panel opinion in 2006 permitting Chambery/ Beechwood’s retaliation claim to go forward is here. It took an extremely long time for the nursing home operators to get their case to a jury; the state closed them down in 1999 and the facility was sold at public auction in 2002.

Versions of these posts first appeared at Overlawyered.com, Walter Olson’s indispensable law blog, published by the Cato Institute.

Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

Girl Sues Draft for Only Registering Males by Ilya Somin

July 16, 2015/in Courts & Law, Culture War, Must Read, Policy/by Foundation for Economic Education (FEE)

A recent lawsuit filed by a teenage girl in New Jersey (in conjunction with her mother) challenges the constitutionality of male-only draft registration, arguing that it violates the Constitution because it discriminates on the basis of sex [h/t: Elie Mystal of Above the Law]:

A New Jersey teenage girl has brought a federal class action against the Selective Service System, claiming its refusal to consider women for the draft is discriminatory.

“With both males and females available for such roles today, the two sexes are now similarly situated for draft registration purposes and there is no legitimate reason for the government to discriminate against the female class, so equal protection applies,” the complaint states. “Further, with both males and females available for such combat roles, there is no reasonable basis for infringing the associational interests of the female class by preventing them from registering.”

Noting that she will turn 18 this year, E.K.L., as she is named in the complaint, says she attempted to register for the draft on the website of the Selective Service by filling out the online form.

Once she clicked “female” during the online registration process, however, the website prevented her from registering….

E.K.L. and her mother call it undisputed that the Military Selective Service Act creates a sex-based difference.

Banning women from the pool of potential recruits is not rational given the role females currently play within the military, according to the complaint.

“If the two sexes can fight and die together, they can register together; if not, then no one should have to register,” the complaint states.

More information about the lawsuit is available in this article.

I predicted that such a case would arise back in early 2013, when the Pentagon made women eligible to serve in nearly all combat roles (though I expected it to be brought by men forced to register for select service, rather than by women excluded from doing so).

The Supreme Court previously upheld the constitutionality of male-only draft registration in the 1981 case of Rostker v. Goldberg. However, as I also pointed out in that post, that ruling was partly based on the theory that women would not be as valuable draftees as men in an era when the armed forces excluded women from most combat positions.

Obviously, that logic is no longer valid. I also noted other reasons why the Court might overrule or at least severely limit Rostker if the issue came before it today:

Lower courts applying Rostker could therefore still conclude that male-only draft registration is constitutional, though Rostker is ambiguous enough on the amount of deference due [to federal government] that the issue is not a slam dunk.

If the issue gets to the Supreme Court however, I’m far from certain that Rostker wouldn’t be overruled or severely limited. As compared with 1981, the idea of women serving in combat is far more widely accepted by both elite and public opinion. And sex discrimination in draft registration is likely to seem like an outdated relic of the days when women were barred from numerous positions in the military.

If the Pentagon sticks to its new policy on women in combat, I think it’s likely that some male plaintiff will bring a new challenge to the Selective Service registration system, and that plaintiff will have a good chance of succeeding. Like most other constitutional law scholars, I think that Rostker was a dubious decision, and would not shed many tears if it were overruled.

For reasons outlined by Steven Calabresi and Julia Rickert, there is also a good originalist case for courts taking a strong line against sex discriminatory laws.

I would add that, since 1981, the Supreme Court has taken a tougher line against sex-discriminatory laws and policies. Most notably, it invalidated the exclusion of women from the Virginia Military Institute in the 1996 case of United States v. Virginia. The exclusion of women from a military college is not exactly the same as their exclusion from draft registration. But the two situations have obvious similarities.

There is a chance that this case will end up being thrown out on procedural grounds. A court could potentially rule that women exempt from draft registration don’t have standing to sue because they don’t actually suffer any harm as a result (draft registration is usually considered a burden, not a benefit).

This is one of the reasons why I thought a case would be more likely to be brought by men subject to draft registration than by women exempt from it.

Also, a court might deny the plaintiff’s bid to certify the case as a class action on behalf other similarly situated women. But if the case does go forward, there is a real chance it will ultimately result in the invalidation of male-only draft registration.

To avoid misunderstanding, I should emphasize that I do not support either drafting women or forcing them to register for a possible future draft. But I also oppose drafting men. Conscription is both a severe infringement on individual liberty, and tends to reduce the quality of the military relative to an all volunteer armed forces.

Ultimately, the best way to avoid conscripting women is to not have conscription – or draft registration – at all. By taking that step, we could simultaneously reduce the likelihood that the draft will be reimposed in the future and eliminate one of the last bastions of open sex discrimination in government policy.

In my view, a decision striking down male-only draft registration is more likely to lead to the abolition of draft registration altogether than to its extension to women.

This post originally appeared at the Volokh Conspiracy.

Ilya Somin

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

What Should Libertarians Think about the Civil War? by Phillip Magness

July 14, 2015/in Commentary, Culture War, Politics/by Foundation for Economic Education (FEE)

The current national debate over the display and meaning of the Confederate battle flag has reopened a number of longstanding arguments about the meaning of the American Civil War, including within libertarian and classical liberal circles.

Because of its emotional subject matter, lasting political legacies of race and slavery, transformative effects upon American constitutionalism, and sheer magnitude as the most destructive military episode ever to occur on American soil, the Civil War exhibits strong tendencies toward politicization in the modern era.

Unfortunately, bad history often accompanies this politicization, and libertarians are by no means immune from this tendency.

Two common interpretations of the Civil War stand out as particularly problematic:

libertarian support for the Confederacy; and
libertarian support for the Union.

The Problem with Pro-Confederate Libertarianism

The first and perhaps best known “libertarian” approach to the Civil War attempts to find sympathy with the defeated Confederacy because of its resistance to the federal government and northern military authority or its professed cause of free trade and political self-determination.

Some aspects of this position have intuitive appeal that produces sympathy for the Confederate cause: it professes outrage against a Union that is said to have conquered by force, trampled on the rights of states and individuals, unleashed a military invasion, suspended civil liberties, denied government by consent, elevated Lincoln to a “dictator,” and effected a lasting centralization of federal power. In this view, the Union cause and victory is the foundational work for the modern state and all that is anathema to political libertarianism.

This interpretation falters in what it neglects: slavery.

This is no small irony, either, as the anti-slavery cause was arguably the preeminent political occupation of libertarianism’s classical liberal antecedents. A continuum of classical liberal thinkers from Adam Smith to John Stuart Mill and J.E. Cairnes forged the main intellectual case against the slave system.

Abolitionism was also always a preeminent political cause of liberalism, extending from 18th-century statesman Charles James Fox to the 19th century’s Richard Cobden in Great Britain and strongly influencing such figures as William Lloyd Garrison, Lysander Spooner, and Frederick Douglass in the United States.

This is no small matter for the libertarian intellectual tradition either, for in sidestepping the slave question’s intimate connection to the Confederacy, pro-Confederate libertarians also inadvertently abandon what is perhaps the single most important and beneficial contribution that classical liberalism has made to the human condition: the abolition of slavery.

This is not to suggest that libertarian defenders of the Confederacy share its historical affinity for chattel slavery or the plantation system. Rather, they are guilty of turning a tin ear to the one unequivocally beneficial outcome of the war in the permanent destruction of American slavery.

The Problem with Libertarian Unionism

A smaller set of libertarians gravitate to a second common interpretation of the Civil War, defined primarily by its consequential outcome.

Unlike the pro-Confederate position, these libertarian defenders of the North are keenly aware of both the centrality of slavery to the conflict as well as the importance of the abolitionist cause to the liberal intellectual tradition. Standing as a direct antithesis to the pro-Confederate arguments, these faute de mieux Unionists recognize the inherent and fundamental contradiction between slavery and human liberty.

Their position embraces the Union victory on a consequentialist acceptance of the resulting emancipation of the slaves, and disavows any conceivable association between libertarian thought and a brutish Southern slavocracy, born of no other motive or purpose but to entrench and expand that pernicious institution — and deserving of nothing short of a violent and warring elimination by any means or justification.

The argument is both morally appealing and marked by its clarity, but it also suffers from its Manichean simplicity and a tendency to read an inevitable “irrepressible conflict” into the hindsight of the Civil War’s destruction.

This view recognizes slavery and celebrates its abolition, but it tends to neglect or even rationalize the war’s uglier features and consequences: a dramatic weakening of the constitutional federalism laid out in 1787, a rapid acceleration of the scope and power of the federal government, a precedent-setting assault on habeas corpus and expansion of presidential war powers that persists to the present day — and the horrendous destruction itself.

Measured by deaths alone, current estimates place the war’s military toll at 750,000 soldiers. Civilian deaths are more difficult to estimate, though the most common number given is 50,000. And perhaps most telling of all, between 60,000 and 200,000 slaves likely perished as a result of disease and displacement caused by the war.

Why a New Interpretation Is Necessary

Where then does this leave the conscientious libertarian in assessing the Civil War’s legacy?

To address the faults of both the pro-Confederate and pro-Union positions, I’ll offer two propositions for libertarians to consider:

One needn’t be for the Union to be against slavery.
One needn’t be for the Confederacy to object to the North’s prosecution of the war.

Stated differently, a morally consistent libertarian view of the war should strive to dissociate itself from the political actors that waged it, while also seeking to recognize its consequences, both positive and negative.

This much may be seen in the faults of the two views described above. Libertarians who embrace the Confederacy are more often than not reasonably aware of both the evils of slavery and the distinction between the abolitionist cause and the Union.

But they neglect the second rule; because of their distaste for the Union’s wartime policies, they stake their claim to a Confederate cause that, whether they admit it or not, thoroughly attached itself to the moral abomination of slavery.

And libertarians who embrace the Union are also usually aware of the objections one might lodge against its indulgences in unrestricted warfare, suspension of civil liberties, centralization of power, or any of the other charges often made against the Union’s wartime cause or its outcome.

But they thoroughly subordinate these objections to the greater moral purpose of emancipation — a focus that obscures all but the most simplistic reading of the war’s other political and constitutional consequences.

In each argument, the problem is not its primary emphasis, but the complexities it obscures or leaves out.

In place of both views, and in recognition of their deficiencies, libertarians might develop a better appreciation for the Civil War’s complexity by turning their analysis to the nature of the ruinous agency of the conflict itself.

War, whether waged to hold human beings in bondage or subjugate a political rebellion, is a consciously coercive action of the political state in its most expansive and direct form. And armed warfare, as both the Union and Confederacy came to discover across four destructive years, is horrifically messy, unpredictable, and destructive of human life and human liberty.

Military goals and political motives also matter, as they define the objectives of the armies and prioritize their execution. Thus, a military maneuver to capture an opposing political capital will take a very different form from one that eschews political objectives and seeks to maximize the liberation of slaves or the protection of civilians.

There may also be small glimpses of just action amongst individual participants in a far more ambiguous conflict. When the abolitionist Thomas Wentworth Higginson raised the 1st South Carolina Volunteers, an all-black unit composed of escaped slaves, there is little doubt that they were fighting for emancipation, even as larger Union war goals moved far more slowly on this objective.

There is similarly little doubt about the motive of some Southerners who fought for their homes and families as hostile armies marched through their states; even a handful of Confederates — Patrick Cleburne, Duncan Kenner — pressed their government (in vain) to consider emancipation as a means of securing independence.

These graces on the periphery tell us more about the conflict’s moral complexity than anything that may be found in its political objectives. History is not a Manichean struggle between pure good and evil; we are not served by filtering its conflicts through a dualistic moral lens.

Instead of looking for a “side” to champion, we are better served by recognizing that even amid the unbridled horrors of slavery and the devastation of war, there may still be a few who are fighting for something better than their country’s cause.

Phillip Magness

Phil Magness is a policy historian and academic program director at the Institute for Humane Studies.

The Marriage Between the Church and the United States of America

July 12, 2015/in Culture War, Religion, Video/by Bill Finlay

The Christian Church and the USA have been “married” from day one. Time to get it back on track.

As William Lane Craig, noted Christian apologist wrote, “God has necessarily decreed that human beings are to be treated as ends in themselves rather merely as means to ends.” It is the individual that controls government, not the other way around.

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Slate Writer: Freedom to Remove Eyebrow Hair Will Make Texas a “Dangerous” Place by Evan Bernick

July 10, 2015/in Courts & Law, Economy, Policy, Regulation/by Foundation for Economic Education (FEE)

Texas Court rules that regulations have to make some kind of sense; chaos is imminent.

It’s a tremendous victory for individual rights and for the politically powerless. And progressives are terrified of it.

Over at Slate, Mark Joseph Stern warns that a Texas Supreme Court decision invalidating a requirement that commercial eyebrow threaders undergo 750 hours of training — 320 of which were admittedly unrelated to threading — will plunge Texas into a Dickensian nightmare, where judges will have free reign to strike down humane and necessary laws designed to protect workers.

Stern’s histrionics should not be taken seriously. The Texas Supreme Court did its job, insisting upon a rational, evidence-based explanation for restrictions on liberty that is protected by the Fourteenth Amendment as well as by the Texas Constitution.

As Justice Don Willett explains in an erudite and inspiring concurrence, “The Court’s view is simple, and simply stated: Laws that impinge your constitutionally protected right to earn an honest living must not be preposterous.”

Such judicial engagement is required to protect what liberal Justice William O. Douglas once referred to “the most precious liberty man possesses.”

Although eyebrow threading, a traditional South Asian practice, consists only in using cotton thread to remove eyebrow hair, Texas roped the threaders under the same licensing requirements that are applied to conventional cosmetologists who perform a wide variety of services such as waxing, makeup, and chemical peels.

The Texas Department of Licensing and Regulation issued $2,000 penalties to threaders across the state and ordered them to quit their jobs until they completed 750 hours of coursework (not a second of which is devoted to eyebrow threading) in private beauty schools, costing between $7,000 and $22,000, and pass two examinations (neither of which tests eyebrow threading).

In 2009, threaders Ashish Patel, Anverali Satani, Nazira Momin, Minaz Chamadia and Vijay Yogi challenged the requirements under the Due Course of Law Clause of the Texas Constitution. Like the Due Process of Law Clauses of the federal Constitution, Texas’ Due Course of Law Clause prohibits deprivations of liberty that do not serve any legitimate, public-spirited end of government.

The recent decision drew from the history of the state’s Due Course of Law Clause provision, which took its current form in 1875 — at a time when the Supreme Court was examining legislation under the Fourteenth Amendment’s Due Process of Law Clause for a “real or substantial” relationship to public health and safety. From this, the Texas Supreme Court determined that reviewing courts must “consider the whole record, including evidence offered by the parties” in evaluating laws, rather than taking the government’s professions of good intentions at face value.

It went on to evaluate the regulation at issue, emphasizing that, by the state’s own concession, “as many as 320 of the curriculum hours are not related to activities threaders actually perform.” Breaking this down, the Court explained that threaders are required to undergo “the equivalent of eight 40-hour weeks of training unrelated to health and safety as applied to threading.”

Combined with the fact that would-be threaders have to pay for the training and at the same time lose the opportunity to make money threading eyebrows, the court concluded that the regulations imposed an unconstitutionally oppressive burden.

As the court recognized, determining whether the government regulations are constitutionally legitimate, based on record evidence and their real-world effect, can never be a mechanical process. But it is essential to limited government.

Otherwise, there is nothing that would prevent the government from forcing threaders to take, say, 1,500, or 2,500 hours of training unrelated to threading, run marathons, or dig ditches before being certified. Judges would have to rubber-stamp such regulations and tell hardworking entrepreneurs to take it up with their local legislators.

Indeed, that is what happens all too often in cases in which the “rational basis test” is applied in federal courts. So deferential is this “test” in practice that, in the case that ended up before the Supreme Court in Obergefell v. Hodges, the same-sex marriage case, the Sixth Circuit Court of Appeals had held that the government may treat people differently for any plausible reason, even pure favoritism.

Remarkably, Stern seems comfortable with that outcome, and laments that the Texas Supreme Court vindicated the threaders’ rights. He advances two arguments against the decision, both of which are unconvincing; indeed, the second is so unconvincing that it is hard to believe that even Stern is convinced by it.

Stern first argues that the “liberty” protected by the Fourteenth Amendment’s Due Process of Law Clause (and Texas’ Due Course of Law Clause) is properly understood to encompass only a small handful of rights “relating to personal dignity and autonomy,” like “marriage and intimacy.”

This interpretation flies in the face of constitutional text, history, and the logic of the Supreme Court’s most recent decision on the subject.

The Due Process of Law Clause refers only to “liberty” — it does not distinguish between “personal” liberty and “economic” liberty, nor do most people neatly divide their lives between activities that are purely “personal” and those that are purely “economic.” (Which category would a dinner date fall under? Does it matter what happens later on?)

After the ratification of the Reconstruction Amendments, state courts and, later, the Supreme Court interpreted the Fourteenth Amendment to encompass a wide variety of actions that individuals can take without violating the rights of others.

Thus, in Meyer v. Nebraska (1923), the Supreme Court explained that liberty “denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience.”

The logic of the Court’s most recent “substantive due process” decision tracks this comprehensive understanding of liberty. In Obergefell v. Hodges, which Stern invokes, Justice Kennedy begins by stating that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

Few things are more central to defining and expressing our identity and, indeed, sustaining our very lives, than our work. As Professor Laurence Tribe has put it, “the determination of one’s vocation” is an “essential aspect of personhood.”

Stern next argues that even if Texas’s oppressive regulatory scheme “may be a problem” for eyebrow threaders, it is a purely “legislative problem” — not one with which the courts should be concerned. He submits that the threaders could easily solve this problem through the democratic process, “by petitioning the legislature to reduce their training hours.”

Stern is apparently unaware that most of the threaders involved in this case were non-citizen immigrants. Is Stern also unaware that American history is rife with examples of entrenched interests — that is, white males — using their political muscle to prevent newly freed blacks, women, and immigrant groups from entering into or effectively competing in the labor market?

In several key cases (including Lochner v. New York (1905), which Stern disparages), the Supreme Court struck down laws designed to keep immigrants (like the threaders in Texas) from competing against native-born whites.

Even today, although the Supreme Court has declared it is unconstitutional to require full citizenship and exclude legal permanent residents, some states still have licensing laws that restrict certain nongovernmental professions to citizens only. A growing body of Public Choice research documents the reality of special-interest lawmaking designed to benefit established firms at the expense of their competitors and the general public.

But of course, Stern knows that regulations passed in the name of public health and safety are sometimes pretextual and that those burdened by them are often in no position to persuade those responsible for them to “fix” them — indeed, he recently criticized the Fifth Circuit Court of Appeals for upholding regulations of abortion providers that are purportedly designed to protect public health and safety. So apparently some vocations are more equal than others, in Stern’s view.

Thanks to the Texas Supreme Court’s decision in the threading case, Texans are, as Justice Willett put it, “doubly blessed.” Two years ago, the Fifth Circuit Court of Appeals, which also has jurisdiction over federal courts in Texas, struck down a regulatory scheme targeting casket sales in Louisiana, rejecting the state’s “nonsensical explanations” for the scheme after finding them to be factually baseless.

Recently, a federal district court (in a case that Stern does not mention but presumably disapproves of), following the Fifth Circuit, struck down a law requiring African hairbraiders like Isis Brantley to spend thousands of hours taking useless classes and thousands of dollars on useless equipment before they would be permitted to teach hairbraiding at their own schools.

Thus, federal courts and state courts in Texas are committed to judicial engagement in economic liberty cases. In his concurrence, Justice Willett quotes Frederick Douglass, whose account of earning his first two dollars as a free man puts a human face on the right to earn a living that those who read it are unlikely to forget.

For all those whose emotions swell at Douglass’ recognition that “my hands were my own, and could earn more of the precious coin,” and value the freedom that he held so precious, this decision is nothing to be afraid of — it is a cause for celebration.

Cross-posted from HuffPo.

Evan Bernick

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

“Contempt for the Screening Process” and 91 Other Reasons TSA Thinks You’re a Terrorist by Daniel Bier

July 10, 2015/in Must Read, National Security, News/by Foundation for Economic Education (FEE)

It’s true that TSA’s physical screeners are embarrassingly bad at their jobs, failing to notice 95% of threats in tests by Homeland Security.

But always never fear! TSA also has Behavior Detection Officers. These super agents can spot terrorists just by looking at them. Now, thanks to a leaked TSA checklist (and scorecard) of suspicious behaviors, you can too!

The document shows 92 different behaviors that can flag you as suspicious — such as being too happy (or too sad); having “sweaty palms” or “rubbing hands”; “arriving late” and “body odor”; “gazing down” or “open staring eyes” — to which an arbitrary number of “points” are attached.

If you score six or more points, you win a trip to enhanced screening and an interrogation by police. But you can get points deducted for being old (minus 1 point for women over 55 or men over 65) or married and old (minus 2 for a couple over 55).

Of course, the Intercept reports, the program has

attracted controversy for the lack of science supporting it. In 2013, the Government Accountability Office found that there was no evidence to back up the idea that “behavioral indicators … can be used to identify persons who may pose a risk to aviation security.”

After analyzing hundreds of scientific studies, the GAO concluded that “the human ability to accurately identify deceptive behavior based on behavioral indicators is the same as or slightly better than chance.”

The suspicious behavior checklist also includes “having a cold penetrating stare” and “expressing contempt for the screening process.” After reading this, I’m not sure it’ll be any easier for me to get through TSA without them.

Daniel Bier

Daniel Bier is the editor of Anything Peaceful. He writes on issues relating to science, civil liberties, and economic freedom.

EDITORS NOTE: The featured image is of TSA officer Robert Howard signals an airline passenger forward at a security check-point at Seattle-Tacoma International Airport Jan. 4. (AP Photo)

The Ghosts of Spying Past by Gary McGath

July 10, 2015/in Cyberwarfare, National Security, Policy, Politics/by Foundation for Economic Education (FEE)

In the 1990s, the Clinton administration fought furiously against privacy and security in communication, and we’re still hurting from it today. Yet people in powerful positions are trying to commit the same mistakes all over again.

In the early days, the Internet was thoroughly insecure; its governmental and academic users trusted each other, and the occasional student prank couldn’t cause much damage. As it started becoming available to everyone in the early ‘90s, people saw the huge opportunities it offered for commerce.

But doing business safely requires data security: If unauthorized parties can grab credit card numbers or issue fake orders, nobody is safe. However, the Clinton administration considered communication security a threat to national security.

Attorney General Janet Reno said, “Without encryption safeguards, all Americans will be endangered.” She didn’t mean that we needed the safeguard of encryption, but that we had to be protected from encryption.

In a 1996 executive order, President Clinton stated:

I have determined that the export of encryption products described in this section could harm national security and foreign policy interests even where comparable products are or appear to be available from sources outside the United States, and that facts and questions concerning the foreign availability of such encryption products cannot be made subject to public disclosure or judicial review without revealing or implicating classified information that could harm United States national security and foreign policy interests.

The government prohibited the export of strongly secure encryption technology by calling it a “munition.” Putting code on the Internet makes it available around the world, so the restriction crippled secure communication. The Department of Justice investigated Phil Zimmerman for three years for making a free email encryption program, PGP, available.

The administration also tried to mandate government access to all strong encryption keys. In 1993 it proposed making the Clipper Chip, with a built-in “back door” for government spying, the standard for serious encryption. Any message it sent included a 128-bit field that would let government agencies (and hopefully no one else) decrypt it.

But the algorithm for the Clipper was classified, making independent assessments impossible. However strong it was, it would have offered a single point to attack, with the opportunity to intercept virtually unlimited amounts of data as an incentive to find weaknesses. Security experts pointed out the inherent risks inherent in the key recovery process.

By the end of the ‘90s, the government had apparently yielded to public pressure and common sense and lifted the worst of the restrictions. It didn’t give up, though — it just got sneakier.

Documents revealed by Edward Snowden show that the NSA embarked on a program to install back doors through secret collaboration with businesses. It sought, in its own words, to “insert vulnerabilities into commercial encryption systems, IT systems, networks, and endpoint communications devices” and “shape the worldwide cryptography marketplace to make it more tractable to advanced cryptanalytic capabilities being developed by NSA/CSS.”

The NSA isn’t just a spy agency; it’s one of the leading centers of expertise in encryption, perhaps the best in the world. Businesses and other organizations trying to maximize their data security trust its technical recommendations — or at least they used to. If it can’t get the willing collaboration of tech companies, it can deceive them with broken standards.

Old software with government-required weaknesses from the nineties is still around, along with newer software that may have NSA-inspired weaknesses. There are still restrictions on the exporting of cryptography in many cases, depending on a complicated set of criteria related to the software’s purpose. Even harmless file identification software, used mostly by librarians, may have to carry a warning that it contains decryption code and might be subject to use restrictions.

With today’s vastly more powerful computers, encryption that was strong two decades ago can be easily broken today. Some websites, especially ones outside the United States that were denied access to strong encryption, still use the methods which they were stuck with then, and so do some old browsers.

To deal with this, many browsers support the old protocols when a site offers nothing stronger, and many sites fall back to the weak protocols if a browser is limited to them. Code breakers have found ways to make browsers think only weak security is available and force even the stronger sites to fall back on it. Some sites have disabled weak encryption, only to be forced to restore it because so many users have old browsers.

You’d think that by now people would understand that secure transactions are essential, but politicians in the US and other countries still want to weaken encryption so they can spy on people’s communications.

The FBI’s assistant director of counter-terrorism claims that strong encryption gives terrorists “a free zone by which to radicalize, plot, and plan.” NSA Director Michael S. Rogers has said, “I don’t want a back door. I want a front door.” UK Prime Minister Cameron says,

In extremis, it has been possible to read someone’s letter, to listen to someone’s call, to mobile communications. The question remains: are we going to allow a means of communications where it simply is not possible to do that? My answer to that question is: no, we must not.

In 2015 over eighty civil society organizations, companies, and trade associations, including Apple, Microsoft, Google, and Adobe, sent a public letter to President Obama expressing concern about such actions. The letter states:

Strong encryption is the cornerstone of the modern information economy’s security. Encryption protects billions of people every day against countless threats — be they street criminals trying to steal our phones and laptops, computer criminals trying to defraud us, corporate spies trying to obtain our companies’ most valuable trade secrets, repressive governments trying to stifle dissent, or foreign intelligence agencies trying to compromise our and our allies’ most sensitive national security secrets.

In the United States, we have a tradition of free speech, but in many countries, even mild criticism of the authorities needs to travel in secret.

A country can pass laws to weaken its law-abiding citizens’ access to cryptography, but criminals and terrorists exchanging secret messages would have no reason to pay attention to them. They can keep using the strong encryption methods that are currently available and get new software from countries that don’t have those restrictions.

Governments would gain increased ability to spy on people who follow the law, and so would free-lance data thieves, while competent criminals would still be able to communicate in secret. To crib David Cameron, we must not let that happen — again.

Gary McGath

Gary McGath is a freelance software engineer living in Nashua, New Hampshire.

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Did Oregon Gag the Anti-Gay Marriage Bakers? by Walter Olson

July 10, 2015/in Commentary, Courts & Law, Culture War/by Foundation for Economic Education (FEE)

Readers who follow the battles over forfeiture law may recall the recent case in which a North Carolina convenience store owner from whom the government had seized $107,000 without any showing of wrongdoing decided to fight the case in the press as well as in court, backed by the Institute for Justice.

Lyndon McLellan’s decision to go public with the dispute drew a menacing letter from a federal prosecutor about the publicity the case had been getting:

“Your client needs to resolve this or litigate it,” Mr. West wrote. “But publicity about it doesn’t help. It just ratchets up feelings in the agency.” He concluded with a settlement offer in which the government would keep half the money.

That case ended happily, but the problem is much broader: many individuals and businesses fear that if they seek out favorable media coverage about their battle with the government, the government will find a way to retaliate, either informally in settlement negotiations or by finding new charges to throw against them.

That such fears might not be without foundation is illustrated by last week’s widely publicized Oregon cake ruling, in which a Gresham, Oregon couple was ordered to pay $135,000 in emotional-distress damages for having refused to bake a cake for a lesbian couple’s commitment ceremony.

Aside from the ruling’s other objectionable elements, the state labor commissioner ruled it “unlawful” for the couple to have given national media interviews in which they expressed sentiments like “we can see this becoming an issue and we have to stand firm.”

Taking advantage of an exception in free speech law in which courts have found that the First Amendment does not protect declarations of future intent to engage in unlawful discrimination, the state argued — and its commissioner agreed — that the “stand firm” remark along with several similarly general comments rallying supporters were together “unlawful.”

That ought to bother anyone who cares about free speech. I’ve got a piece up at Ricochet.com, my first there, exploring the question in more detail:

Suppose someone began a sentence with the words “I don’t think I should have to serve [group X] at my shop….”

If they follow with the words “but since it’s the law, I’ll comply,” the sentence as a whole would clearly count as protected speech under current law. If they follow with the words “and I won’t, law or no law,” it loses protection.

But suppose the speaker were to end the sentence at “…my shop.” Up to that point, the speaker has expressed only an essentially political opinion, not a forward-looking intention to defy the law.

Such speech is all the more of core First Amendment interest when it takes place not in a local, commercial context but as part of broader political discussions between citizens as to whether laws are unjust or government too heavy-handed.

Read the rest here.

Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

EDITORS NOTE: This piece cross-posted from Cato at Liberty and Overlawyered.

Religious Charities, Gay Marriage, and Adoption: A Case for Pluralism by Walter Olson

July 8, 2015/in Culture War, Featured, Religion/by Foundation for Economic Education (FEE)

At Reason, Scott Shackford has a valuable piece on where libertarians’ interests are likely to coincide with those of organized gay rights advocates and where they are likely to diverge, following the Supreme Court’s ruling on marriage.

One flashpoint of controversy is likely to be the role of conservative religious agencies in areas of adoption that are commonly assisted with public funds (as with the adoption of older kids from foster care).

It is now legal all across America for gay people to adopt children, and now with same-sex marriage, they can adopt their partner’s child as well. This fight is largely over, and was actually pretty much won even before gay marriage recognition.

But there is another side, and it ties back into the treatment of religious people. Some adoption agencies are tied to religious groups who do not want to serve same-sex couples or place children in same-sex homes. They are also typically recipients of state funding for placing children, and are therefore subject to state regulation. Should they be required to serve gay couples?

Some states, such as Illinois, attempted to force them. As a result, Catholic Charities, which helped the state find adoptive and foster home services for four decades, stopped providing their services in 2011.

At the time, a gay activist declared this a victory, saying “Finding a loving home for the thousands in the foster/adoption system should be the priority, not trying to exclude people based on religious dogma.”

Some libertarians I admire have taken the view that where any public dollars are involved, private social service agencies must be held to rigorous anti-discrimination standards.

While I respect this view, I don’t share it.

Programs that are explicitly voucherized (such as G.I. Bill college tuition benefits, which can be used for seminary study) often go to institutions that I might find discriminatory, and the same logic can apply even with some less explicitly voucherized benefits.

If a state depot is dispensing gasoline to rescuers’ boats after Katrina, and Catholic Charities’s boats spare the need for government boats to reach some rescue targets, the “subsidy” might in fact save the taxpayers money.

In Olson’s experience, the more agencies out there serving the needs of the children looking for homes, the better. …

Much as with the controversies over bakers and florists, being denied service by one agency does not actually impact a gay couple’s ability to find and adopt children at all.

But eliminating Catholic Charities from the pool reduces the number of people able to help place these children. It’s the children who are punished by the politicization of adoption, not Catholic Charities.

This is especially important when dealing with older children or children with special medical needs. … Allowing both sides (and others as well) to play their role as they see fit benefits all children in the system.

As for the concern that some adoption agencies take taxpayer money and then discriminate, Olson points out that it’s much more expensive to the taxpayers to leave children to be raised by the state, not to mention terribly cruel.

“If you don’t care about the kids or the families, at least care about the taxpayers,” Olson says. But you should probably care about the kids, too.

I’ve written about the same set of issues (in the foster care context) before. The new Reason piece is here.

Walter Olson

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.

EDITORS NOTE: This post first appeared at Cato.org.

Celebrate Independence With a Revolution Against the Surveillance State by Ryan Hagemann

July 6, 2015/in Culture War, Featured, Policy, Regulation/by Foundation for Economic Education (FEE)

In the decade before 1776, British courts began issuing “writs of assistance” for the general search and seizure of colonists’ documents. The intention was to permit British troops to inspect properties for smuggled goods, but these writs gave officials broad power to enter private homes to search for, and seize, anything and everything that might be considered contraband by the British Empire.

Such general warrants were among the many complaints the colonists levied against the crown and played no small part in the American Revolution.

This Independence Day, it would behoove us all, as Americans, to reflect on the motivations for the colonists’ revolt against Britain. In a 2013 piece at the Huffington Post, Radley Balko spoke on the core meaning of the Fourth of July:

Independence Day isn’t for celebrating the American government and whoever happens to be currently running it, but for celebrating the principles that make America unique.

And in fact, celebrating the principles that [animated] the American founding often means celebrating the figures who have defended those principles in spite of the government.

The list of modern Americans who have stood as stalwart guardians of the principles of liberty is regrettably short. More concerning, however, is what has happened in the years since 9/11, as fear and paranoia over terrorism gripped the American electorate and absconded with many of the basic liberties that the founding generation fought and died to uphold. America just isn’t what it used to be.

But the tides of unrestrained surveillance seem to be receding.

A few weeks ago, thanks to a vibrant and broad coalition of civil libertarians, grassroots organizations, and cross-aisle partners, America finally took the first step in reining in the secret surveillance state that Edward Snowden revealed to us almost two years ago to the day. The USA FREEDOM Act, for all its flaws, stands as the most significant piece of surveillance reform legislation since 1978 and signals Congress’s willingness to work on surveillance reform.

While there is much to do in preparing for upcoming battles over government surveillance, a look back at recent events can help shed light on how we as libertarians can best move forward.

Not surprisingly, the debate left some dissatisfied that the reforms did not go far enough, while others considered anything short of a full USA PATRIOT Act reauthorization to be an unacceptable compromise.

Filled with riotous rhetorical broadsides, the debate featured civil libertarians supporting reform against civil libertarians backing a complete, uncompromising end to the surveillance state, pitting Republican hawks against centrists and Democrats, and Sen. Rand Paul against pretty much everyone.

In a story of strange political bedfellows, Sen. Paul joined hawks such as Sen. John McCain and Sen. Richard Burr in voting against the USA FREEDOM Act. While Paul criticized components of the bill for not going far enough (all criticisms being perfectly fair and true), the political reality was such that this bill, however imperfect, was by far the best chance for reform in the near term.

As Cato’s Julian Sanchez noted prior to its passage: “While ‘Sunset the Patriot Act’ makes for an appealing slogan, the fact remains that the vast majority of the Patriot Act is permanent — and includes an array of overlapping authorities that will limit the effect of an expiration.”

In other words, the limitations of USA FREEDOM would actually be more effective than simply letting a two or three provisions of the USA PATRIOT Act (temporarily) expire.

The heroes of this debate were a broad coalition of civil-society groups, technology firms, and nonprofits dedicated to moving the ball forward on reform, no matter how small the gain.

However, even as some are celebrating this small but important victory, there are troubled waters ahead for privacy advocates and civil libertarians. The upcoming Senate vote on the Cybersecurity and Information Sharing Act (CISA) is the next battle in the ongoing war against the surveillance apparatus. If passed, it would be one step forward, two steps back for the small victories privacy advocates have won over the past month.

I’ve written quite a bit on the issues that many civil libertarian organizations have with CISA, which is little more than a surveillance Trojan Horse containing a host of “information-sharing” provisions that would allow intelligence agencies to acquire information from private firms and use it to prosecute Americans for garden-variety crimes unrelated to cybersecurity, due process be damned.

A broad coalition of organizations has once more come together, this time to oppose CISA, to continue the battle against expanding the surveillance state.

In public policy, the Overton window refers to the spectrum of policy prescriptions and ideas that the public views as tolerable: the political viability of any idea depends not on the personal preferences of politicians, but on whether it falls within the range of publicly acceptable options.

That is why a willingness to compromise is so vital in public-policy discussions. Marginal reforms should be seen as victories in the slow but consistent effort to rein in the excesses of our Orwellian security order.

USA FREEDOM is far from ideal, and the expiration of provisions of the PATRIOT Act, such as Section 215, will not stop government surveillance in its tracks. The government can still use National Security Letters (NSL), and Section 702 of the FISA Amendments Act can still be creatively interpreted by the intelligence community to justify continued mass surveillance, to say nothing of Executive Order 12333, which covers surveillance conducted outside of the United States.

Nonetheless, the new law is an important first step towards tearing down the most onerous provisions of the PATRIOT Act in a piecemeal fashion. This may seem a daunting and less-than-ideal approach for many libertarians, but the alternative is merely symbolic gesticulation.

So where do we go from here?

Libertarians need to start working with nontraditional allies to support, on an issue-by-issue basis, real, practical reforms to the surveillance state. If we do not, we cannot hope to be effective and valuable partners to those individuals and organizations working tirelessly in support of the same values and freedoms that we all hold dear.

We must also recognize that there are limitations to compromise, and we should never forsake our core principles in favor of political expediency. But, on the margins, we can make significant contributions to civil liberties, especially in the ongoing surveillance reform debate. Recognizing the reality of what is achievable in the current political landscape is necessary for identifying and taking advantage of the available opportunities for restoring liberty.

We have a choice in the upcoming surveillance-reform fights: We can be positive contributors to a legacy of liberty for future generations, or we can continue to fancy ourselves armchair philosophers, ignoring public-policy realities and taking comfort in the echo chamber that never challenges our worldview.

Given political realities, marginal reforms constitute the fastest path forward. The American people are owed their civil liberties; hence, we must fight to move, however incrementally, towards a freer, more civil society.

Ryan Hagemann

Ryan Hagemann is a civil liberties policy analyst at the Niskanen Center.

Independence Day: Why we fight

July 5, 2015/in Culture War, Must Read, National Security, Religion/by Jihad Watch

I have posted the substance of this year after year, and wasn’t even going to bother this year, with so many Americans so eager to throw their freedom away with both hands, but I decided to do so after all when I saw this cynical tweet from Harris Zafar, who has been unmasked more than once as an opponent of the freedom of speech, as well as a deeply dishonest dissembler about the global jihad. I will not stand by silently as the forces of deception and hatred appropriate America’s foundational principles and pretend that those principles are in accord with their sinister agenda. So here again is why we fight:

Another Independence Day is upon us, and it always bears repeating that the struggle for freedom has not changed, and will not change. It is the eternal struggle over whether human beings will live free, or willingly submit to slavery.

I see slaves seeking slavery, and slaves defending slavery, all over the world today. As those who are standing against tyranny are increasingly branded as “enemies of the people,” demonized, and marginalized, the avoidance of slavery will be harder than ever, and not coming solely from jihad. Nonetheless, the enablers of one are the enablers of the other. I see people defending oppressors and carrying water for bullies and tyrants, and thinking all the while that they’re serving the cause of freedom.

In reality, this is what it is all about. You are either fighting for one thing, or the other. It is always useful to check one’s daily efforts against this, for if you’re not working to advance the cause of one side of this comparison, you’re working to advance the other.

1. Governments deriving their just powers from the consent of the governed.

What we must defend:

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” — Declaration of Independence

What we must defend it against:

Non-Muslims have “absolutely no right to seize the reins of power in any part of God’s earth nor to direct the collective affairs of human beings according to their own misconceived doctrines.” If they do, “the believers would be under an obligation to do their utmost to dislodge them from political power and to make them live in subservience to the Islamic way of life.” — Syed Abul Ala Maududi, founder of the Pakistani political party Jamaat-e-Islami

2. Equality of rights before the law.

What we must defend:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” — Declaration of Independence

What we must defend it against:

“The indemnity for the death or injury of a woman is one-half the indemnity paid for a man. The indemnity paid for a Jew or Christian is one-third the indemnity paid for a Muslim. The indemnity paid for a Zoroastrian is one-fifteenth that of a Muslim.” —‘Umdat al-Salik, o4.9

“Thus if [a] Muslim commits adultery his punishment is 100 lashes, the shaving of his head, and one year of banishment. But if the man is not a Muslim and commits adultery with a Muslim woman his penalty is execution. … Similarly if a Muslim deliberately murders another Muslim he falls under the law of retaliation and must by law be put to death by the next of kin. But if a non-Muslim who dies at the hand of a Muslim has by lifelong habit been a non-Muslim, the penalty of death is not valid. Instead the Muslim murderer must pay a fine and be punished with the lash. … Since Islam regards non-Muslims as on a lower level of belief and conviction, if a Muslim kills a non-Muslim, then his punishment must not be the retaliatory death, since the faith and conviction he possesses is loftier than that of the man slain…Again, the penalties of a non-Muslim guilty of fornication with a Muslim woman are augmented because, in addition to the crime against morality, social duty and religion, he has committed sacrilege, in that he has disgraced a Muslim and thereby cast scorn upon the Muslims in general, and so must be executed. … Islam and its peoples must be above the infidels, and never permit non-Muslims to acquire lordship over them.” — Sultanhussein Tabandeh, A Muslim Commentary on the Universal Declaration of Human Rights

3. Freedom of speech

What we must defend:

“Congress shall make no law…abridging the freedom of speech, or of the press…” — First Amendment to the U.S. Constitution

What we must defend it against:

“In confronting the Danish cartoons and the Dutch film ‘Fitna’, we sent a clear message to the West regarding the red lines that should not be crossed. As we speak, the official West and its public opinion are all now well-aware of the sensitivities of these issues. They have also started to look seriously into the question of freedom of expression from the perspective of its inherent responsibility, which should not be overlooked.” — Ekmeleddin Ihsanoglu, secretary general of the 57-nation Organization of the Islamic Conference

“Pakistan will ask the European Union countries to amend laws regarding freedom of expression in order to prevent offensive incidents such as the printing of blasphemous caricatures of Prophet Muhammad (Peace Be Upon Him) and the production of an anti-Islam film by a Dutch legislator…” — Daily Times, June 8, 2008

4. Freedom of religion, and non-establishment of religion

What we must defend:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” — First Amendment to the U.S. Constitution

What we must defend it against:

“Islam isn’t in America to be equal to any other faith, but to become dominant. The Koran should be the highest authority in America, and Islam the only accepted religion on Earth.” — CAIR co-founder and longtime board chairman Omar Ahmad (he denies saying it, but the original reporter stands by her story)

“I wouldn’t want to create the impression that I wouldn’t like the government of the United States to be Islamic sometime in the future.” — CAIR’s Ibrahim Hooper

The Muslim Brotherhood “must understand that their work in America is a kind of grand Jihad in eliminating and destroying the Western civilization from within and ‘sabotaging’ its miserable house by their hands and the hands of the believers so that it is eliminated and Allah’s religion is made victorious over all other religions.” — Mohamed Akram, “An Explanatory Memorandum on the General Strategic Goal for the Group in North America,” May 22, 1991

Never surrender. Never submit. Never be silenced. Freedom and independence forever.

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Gays Need the Freedom to Discriminate by Jeffrey A. Tucker

July 2, 2015/in Commentary, Courts & Law, Culture War, Policy, Politics, Regulation/by Dr. Rich Swier

Gaining the right to be married is a win for liberty because it removes a barrier to free association. But how easily a movement for more freedom turns to the cause of taking away other freedoms!

Following the Supreme Court decision mandating legal same-sex marriage nationwide, the New York Times tells us that, “gay rights leaders have turned their sights to what they see as the next big battle: obtaining federal, state and local legal protections in employment, housing, commerce and other arenas.”

In other words, the state will erect new barriers to freedom of choice in place of the old ones that just came down!

To make the case against such laws, it ought to be enough to refer to the freedom to associate and the freedom to use your property as you see fit. These are fundamental principles of liberalism. A free society permits anything peaceful, and that includes the right to disassociate. Alas, such arguments seem dead on arrival today.

So let us dig a bit deeper to understand why anti-discrimination laws are not in the best interests of gay men and women, or anyone else. Preserving the ability to discriminate permits the market system to provide crucial information feedback to a community seeking to use its buying power to reward its friends and noncoercively, nonviolently punish those who do not share its values.

Ever more, consumers are making choices based on core values. Does this institution protect the environment, treat its workers fairly, support the right political causes? In order to make those choices — which is to say, in order to discriminate — consumers need information.

In the case of gay rights, consumers need to know who supports inclusion and who supports exclusion. Shutting down that information flow through anti-discrimination law robs people of crucial data to make intelligent buying decisions. Moreover, such laws remove the competitive pressure of businesses to prove (and improve) their commitment to community values, because all businesses are ostensibly bound by them.

A market that permits discrimination, even of the invidious sort, allows money and therefore success and profits to be directed toward those who think broadly, while denying money and profitability to those who do not. In this way, a free market nudges society toward ever more tolerant and inclusive attitudes. Money speaks far more persuasively than laws.

Notice that these proposed laws only pertain to the producer and not the consumer. But discrimination is a two-edged sword. The right can be exercised by those who do not like some groups, and it can be exercised by those groups against those who do not like them.

Both are necessary and serve an important social function. They represent peaceful ways of providing social and economic rewards to those who put aside biases in favor of inclusive decision making.

If I’m Catholic and want to support pro-Catholic businesses, I also need to know what businesses don’t like Catholics. If I’m Muslim and only want my dollars supporting my faith, I need to know who won’t serve Muslims (or who will put my dollars to bad use). If a law that prohibits business from refusing to serve or hire people based on religion, how am I supposed to know which businesses deserve my support?

It’s the same with many gay people. They don’t want to trade with companies that discriminate. To act out those values requires some knowledge of business behavior and, in turn, the freedom to discriminate. There is no gain for anyone by passing a universal law mandating only one way of doing business. Mandates drain the virtue out of good behavior and permit bad motivations to hide under the cover of law.

Here is an example from a recent experience. I was using AirBnB to find a place to stay for a friend. He needed a place for a full week, so $1,000 was at stake. The first potential provider I contacted hesitated and began to ask a series of questions that revolved around my friend’s country of origin, ethnicity, and religion. The rental owner was perfectly in his rights to do this. It is his home, and he faces no obligation to open it to all comers.

On the other hand, I found the questions annoying, even offensive. I decided that I didn’t want to do business with this person. I made a few more clicks, cancelled that query, and found another place within a few minutes. The new renter was overjoyed to take in my friend.

I was delighted for two reasons. First, my friend was going to stay at a home that truly wanted him there, and that’s important. Force is never a good basis for commercial relationships. Second, I was able to deny $1K to a man who was, at best, a risk averse and narrow thinker or, at worst, an outright bigot.

Declining to do business with him was my little protest, and it felt good. I wouldn’t want my friend staying with someone who didn’t really want him there, and I was happy not to see resources going toward someone whose values I distrusted.

In this transaction, I was able to provide a reward to the inclusive and broad-minded home owner. It really worked out too: the winning rental property turned out to be perfect for my friend.

This was only possible because the right to discriminate is protected in such transactions (for now). I like to think that the man who asked too many questions felt a bit of remorse after the fact (he lost a lot of money), and even perhaps is right now undergoing a reconsideration of his exclusionary attitudes. Through my own buyer decisions I was actually able to make a contribution toward improving cultural values.

What if anti-discrimination laws had pertained? The man would not have been allowed to ask about national origin, religion, and ethnicity. Presuming he kept his room on the open market, he would have been required under law to accept my bid, regardless of his own values.

As a result, my money would have gone to someone who didn’t have a high regard for my friend, my friend would have been denied crucial information about what he was getting into, and I would not be able to reward people for values I hold dear.

This is precisely why gay rights leaders should be for, not against, the right to discriminate. If you are seeking to create a more tolerant society, you need information that only a free society can provide.

You need to know who is ready to serve and hire gay men and women, so they can be rewarded for their liberality. You also need to know who is unwilling to hire and serve so that the loss part of profit-and-loss can be directed against ill-liberality. Potential employees and customers need to know how they are likely to be treated by a business. Potential new producers need to know about business opportunities in under-served niche markets.

If everyone is forced to serve and hire gays, society is denied important knowledge about who does and does not support enlightened thinking on this topic.

Consider the prototypical case of the baker who doesn’t want to make a wedding cake for a same-sex couple. He is within his rights. His loss of a potential customer base is his own loss. It is also the right of the couple to refuse to give this baker business. The money he would have otherwise made can be redirected towards a baker who is willing to do this. It is equally true that some people would rather trade with a baker who is against gay marriage, and they are within their rights as well.

Every act of discrimination, provided it is open and legal, provides a business opportunity to someone else.

How does all this work itself out in the long run? Commerce tends toward rewarding inclusion, broadness, and liberality. Tribal loyalties, ethnic and religious bigotries, and irrational prejudices are bad for business. The merchant class has been conventionally distrusted by tribalist leaders — from the ancient to the modern world — precisely because merchantcraft tends to break down barriers between groups.

We can see this in American history following the end of slavery. Blacks and whites were ever more integrated through commercial exchange, especially with the advance of transportation technology and rising incomes. This is why the racists turned increasingly toward the state to forbid it. Zoning laws, minimum wage regulation, mandatory segregation, and occupational licensing were all strategies used to keep the races separate even as the market was working toward integration.

The overwhelming tendency of markets is to bring people together, break down prejudices, and persuade people of the benefits of cooperation regardless of class, race, religion, sex/gender, or other arbitrary distinctions. The same is obviously and especially true of sexual orientation. It is the market that rewards people who put aside their biases and seek gains through trade.

This is why states devoted to racialist and hateful policies always resort to violence in control of the marketplace. Ludwig von Mises, himself Jewish and very much the victim of discrimination his entire life, explained that this was the basis for Nazi economic policy. The market was the target of the Nazis because market forces know no race, religion, or nationality.

“Many decades of intensive anti-Semitic propaganda,” Mises wrote in 1944, “did not succeed in preventing German ‘Aryans’ from buying in shops owned by Jews, from consulting Jewish doctors and lawyers, and from reading books by Jewish authors.” So the racists turned to the totalitarian state — closing and confiscating Jewish business, turning out Jewish academics, and burning Jewish books — in order to severe the social and economic ties between races in Germany.

The biggest enemy of marginal and discriminated-against populations is and has always been the state. The best hope for promoting universal rights and a culture of tolerance is the market economy. The market is the greatest weapon ever devised against bigotry — but, in order to work properly, the market needs to signaling systems rooted in individuals’ freedom of choice to act on their values.

And, to be sure, the market can also provide an outlet for people who desire to push back for a different set of values, perhaps rooted in traditional religious concerns. Hobby Lobby, Chick-Fil-A, In-and-Out Burger, among many others, openly push their religious mission alongside their business, and their customer base is drawn to them for this reason. This is also a good thing. It is far better for these struggles to take place in the market (where choice rules) rather than through politics (where force does).

Trying to game that market by taking away consumer and producer choice harms everyone. Anti-discrimination laws will provide more choices at the expense of more informed choices. Such laws force bigotry underground, shut down opportunities to provide special rewards for tolerance, and disable the social learning process that leads to an ever more inclusive society.

New laws do not fast-track fairness and justice; they take away opportunities to make the world a better place one step at a time.

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.

Shariah Law: A Major Threat to American Civilization

June 26, 2015/in Commentary, Culture War, National Security, Religion/by Ron Edwards

Since the founding of the United States of America, Liberty has been one of the great hallmarks of our beloved republic. It is one of the unalienable rights recognized in and protected be the U.S. Constitution. The blessed right to Liberty or (freedom with responsibility) entails the ability to believe, express, and practice one’s faith according to their own conscience. There liberties, however, are not absolute and must operate within the bounds of the law. So for the most part even today, when disagreements and controversies arise in the United States, they are battled in the free marketplace of ideas or resolved in a court of law governed by the laws enacted Congress and state legislatures. Those laws indiscriminately govern people of all races, religions, and social classes now living throughout America. They are required to comply with the United States Constitution.

One of the great stories of American history is how until recently, millions upon millions of legal immigrants came into this country and quickly assimilated themselves into the population. Growing up in Cleveland I saw firsthand the results of the grateful teeming masses who poured unto our shores. It is called Little Italy, where generations of a community of sovereign citizens whose ancestors came to America seeking a better life. To this very day their descendants are grateful that their grandparents and great grandparents chose to come to America.

Unfortunately, America is now being plagued with growing dedicated Muslim neighborhood bunkers that are increasingly ruled by shariah law. First of all, Shari’a law is a brutal war on women concept that is foreign to our society. The war on women shariah law way of death is not legally approved by most American authorities (although officials in Dearbornistan, MI have been rumored to look the other way while shariah law has been practiced there.) But it is still generally thought to be incompatible with the existing law of this land and, in numerous respects, contrary to natural justice.

Brutal, uncivilized, dedicated Muslim-shariah law was started approximately fourteen hundred years ago. The bitter illiterate prophet Mohamed is credited with the origins of Islam. He spread his dogma at the end of a sword. One thing that sets the Muslim-shariah concept apart from most other religions is that it not only covers one’s spiritual walk with a deity, but it is a vicious and cruel legal system. It entails a comprehensive code of law governing the total social, political, and economic lives of all Muslims that must be enforced by the state.

To this day, many Americans still stupidly believe there are moderate and so-called radical Islamic organizations. All the while, I have and still believe that a Muslim is either dedicated or non- practicing. Simply because the so-called moderate Muslims fully agree with their “radical” friends that using the freedoms we hold dear in America in order to gain control of America is the way to go. Muslim groups and communities in the U.S. the U.K., France and elsewhere have become bastions of bigoted bullies, who are by any means they deem necessary to gain more and more control of our republic.

I have no doubt that the Islamists are conspiring to overthrow our Constitutionally limited republic way of life. It is the goal of all dedicated Muslims to take over every society, including the United States of America. Every dedicated Muslim is waiting for the time to strike the unbelieving infidel, as they are instructed many times in their Qua-ran. To often, people in the media and in the judiciary do not understand or don’t desire to recognize the alarming threat the dedicated Islamists pose to our nation that has grown too soft for it’s own good.

The worldwide threat of brutal, political Islam now fully ensconced in the United States has become a major danger to our often gullible citizenry. The Islamic brutes have already begun forcing their insane ideology to force submission to Allah) not only in our America, but in numerous nations throughout the world. There are reams of documented evidence of the racist proclivities of the Islamists who as of this reading hold thousands of black slaves under the most horrid conditions imaginable. I find it ironic that the progressive American racist hunters don’t seem to be willing to target the racist Muslims for rebuke. I label them racist because dedicated muslims are instructed in their Quran to view black people as slaves and raisin heads.

In future columns I will feature more history regarding those who tell the world about the peaceful religion of Islam, while raping, beheading, drowning people for not being Muslim or for being black. In the meantime, my fellow Americans, drop political correctness like the bad habit it is and help rescue our republic from those who would kill us for sport. That is their way of spreading the message of the twisted mind of their long dead pedophile-prophet. If you are so inclined, please pray for the forgiveness of God almighty for the role any of us may have played in opening the door to the massive assault on this, still the greatest nation in the history of the world.

Blurred Lines: The Humanitarian Threat to Free Speech by Aaron Tao

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

“Think of liberalism … as a collection of ideas or principles which go to make up an attitude or ‘habit of mind.’” – Arthur A. Ekirch

In Democracy in America, Alexis de Tocqueville was keen to observe that “once the Americans have taken up an idea, whether it be well or ill founded, nothing is more difficult than to eradicate it from their minds.”

Reflecting upon my experience as a first-generation immigrant who grew up in the United States, I concur with Tocqueville; this inherent feature of the culture and character of the American people holds true even today.

In America, there are no sacred cows, no one is above criticism, and no one has the final say on any issue. It is worth emphasizing that today, the United States stands virtually alone in the international community in upholding near-absolute freedom of personal expression, largely thanks to the constitutional protections provided by the First Amendment.

But without certain internalized values and principles, the legal bulwark of the First Amendment is nothing more than a parchment barrier.

As cliché as it may sound, it is important to recognize that our cherished freedom to think, speak, write, and express ourselves should not be taken for granted. Defending the principle of free speech is a perennial conflict that has to be fought in the court of public opinion here and abroad.

Unfortunately, a number of recent developments have greatly alarmed civil libertarians and may very well carry long-term negative repercussions for the United States as a free and open society.

In his new book, Freedom from Speech, Greg Lukianoff, the president of the Foundation for Individual Rights in Education (FIRE) and tireless free speech advocate, highlights a troubling cultural phenomenon: the blurring of physical safety with psychological and ideological comfort.

It is a disturbing trend that is not limited to the United States:

People all over the globe are coming to expect emotional and intellectual comfort as though it were a right. This is precisely what you would expect when you train a generation to believe that they have a right not to be offended. Eventually, they stop demanding freedom of speech and start demanding freedom from speech.

On the other side of Atlantic, Great Britain is undergoing what one writer describes as a “slow death of free speech.” The land of Milton is now home to luminaries who wish to reinstate Crown licensing of the press (not seen since 1695!).

Meanwhile, ordinary people face jail time for callous tweeting. In British universities, student-driven campaigns have successfully shut down debates and banned pop songs, newspapers, and even philosophy clubs.

While the United States is fortunate enough to have the First Amendment [to] prevent outright government regulation of the press, cultural attitudes play a greater role in maintaining a healthy civil society.

Lukianoff reserves special criticism for American higher education for “neglecting to teach the intellectual habits that promote debate and discussion, tolerance for views we hate, epistemic humility, and genuine pluralism.”

Within academia, “trigger warnings” and “safe places” are proliferating. In a truly Bizarro twist, it has now come to the point that faculty members are defending individual rights and due process and decrying mob rule, while their students run off in the opposite direction.

We now hear on a regular basis of campus outrages involving a controversial speaker or perceived injustice, and the “offended” parties responding with a frenzied social media crusade or a real-world attempt to shame, bully, browbeat, censor, or otherwise punish the offender.

A small sampling from this season include attempts to ban screenings of American Sniper at the University of Michigan and the University of Maryland, resolutions to create a Stasi-like “microaggression” reporting system at Ithaca College, and the controversy involving AEI scholar Christina Hoff Sommers speaking at Oberlin College.

These incidents are just the tip of the iceberg.

With the endless stream of manufactured outrages, perhaps it is fitting that George Mason University law professor David Bernstein would raise the question, “Where and when did this ‘makes me feel unsafe’ thing start?”

My personal hypothesis: When postmodernism found itself a new home on Tumblr, spread across the left-wing blogosphere, became reinforced by mobs and echo-chambers, and spilled into the real world.

Luckily, not all progressives have sacrificed the basic principles of liberalism to the altar of radical identity politics and political correctness. One liberal student at NYU courageously pointed out the grave dangers posed by the ideology embraced by many of his peers:

This particular brand of millennial social justice advocacy is destructive to academia, intellectual honesty, and true critical thinking and open mindedness. We see it already having a profound impact on the way universities act and how they approach curriculum. …

The version of millennial social justice advocacy that I have spoken about — one that uses Identity Politics to balkanize groups of people, engenders hatred between groups, willingly lies to push agendas, manipulates language to provide immunity from criticism, and that publicly shames anyone who remotely speaks some sort of dissent from the overarching narrative of the orthodoxy — is not admirable.

It is deplorable. It appeals to the basest of human instincts: fear and hatred. It is not an enlightened or educated position to take. History will not look kindly on this Orwellian, authoritarian perversion of social justice that has taken social media and millennials by storm over the past few years.

I, too, am convinced that these activists, with their MO of hysterical crusades, are one of today’s biggest threats to free speech, open inquiry, and genuine tolerance, at least on college campuses. The illiberal climate fostered by these their ideologues seems to be spreading throughout academia and is continuing to dominate the headlines.

As of this writing, Northwestern professor (and self-described feminist) Laura Kipnis is undergoing a Kafkaesque Title IX inquisition for writing a column in the Chronicle of Higher Education and making comments on Twitter that offended a number of students. The aggrieved mobilized in full force to have her punished under the federal sex discrimination law.

These groups and their tactics represent what Jonathan Rauch would describe as the “humanitarian” challenge to free speech. In his must-read book, Kindly Inquisitors: The New Attacks on Free Thought, Rauch identified how these “humanitarians” sought to prevent “offense” to “oppressed and historically marginalized” peoples. In the name of “compassion,” words became conflated with physical action.

As speech codes spread and the definition of “harassment” (reading a book in public, for instance) became broader within the bureaucracy of academia, an “offendedness sweepstakes” was cultivated and turned into the norm.

Rauch’s book was published in 1993, but his diagnosis and arguments still apply today, if not more, in the age of social media when the “offendedness sweepstakes” are amplified to new levels.

Nowadays, PC grievance mongers can organize much more effectively and more often than not, get rewarded for their efforts. The future of a free society looks very bleak should these types become a dominant force on the political landscape. I can’t help but shiver at the prospect of seeing the chronically-offended eggshells of my generation becoming tomorrow’s legislators and judges. The chilling effects are already being felt.

Even as numerous challenges emerge from all corners, free speech has unparalleled potential for human liberation in the Digital Age. The eternal battle is still that of liberty versus power, and the individual versus the collective. I remain confident that truth can still prevail in the marketplace of ideas. It is for this reason we should treasure and defend the principles, practices, and institutions that make it possible.

Last month marked the birthday of the brilliant F.A. Hayek, the gentleman-scholar who made landmark contributions to fields of economics, philosophy, political science, and law, and established his name as the twentieth century’s most eminent defender of classical liberalism in the face of the collectivist zeitgeist.

For all his accomplishments, Hayek practiced and urged epistemological humility (a position that should be natural to any defender of free speech) in his Nobel lecture. Looking back on his life’s work, Hayek was highly skeptical of the nebulous concept of “social justice” and its totalitarian implications. He even went as far as to devote an entire volume of his magnum opus, Law, Legislation, and Liberty, to completely demolish The Mirage of Social Justice.

Hayek concluded:

What we have to deal with in the case of “social justice” is simply a quasireligious superstition of the kind which we should respectfully leave in peace so long as it merely makes those happy who hold it, but which we must fight when it becomes the pretext of coercing other men [emphasis added].

And the prevailing belief in “social justice” is at present probably the gravest threat to most other values of a free civilization.

Hayek did not predict that “social justice” would be first used to silence dissent before moving on to its long-term agenda, but it would not have surprised him. Weak ideas always grasp for the censor in the face of sustained criticism — and feeble ideas made strong by politics are the most dangerous of all.

Humanitarians with guillotines can be found from the French Revolution to present day. Modern day defenders of individual liberty would do well to heed Hayek’s warning and resist the Siren song of “social justice,” the rallying cry of collectivists who cannot realize their vision without coercion.

Aaron Tao

Aaron Tao is the Marketing Coordinator and Assistant Editor of The Beacon at the Independent Institute.