Liberty

Expression at the polls

Ethan Blevins Law, Liberty, Politics , ,

Last election, Jillian Ostrewich drove to a polling place at a Houston rec center, expecting to vote. But she made the mistake of wearing a “Houston Fire Fighters” t-shirt. An election worker confronted Jillian, insisting that she couldn’t vote unless she turned the offending shirt inside out. The rationale: a measure on the ballot was related to firefighter pay, and the shirt was related to firefighters.

Tony Ortiz suffered a similar fate in Dallas. Tony’s crime was wearing a MAGA hat while he stood in the voting line outside his local library. An election worker said he couldn’t wear the hat to the polls because the MAGA slogan constituted “electioneering.” Tony responded that the hat had nothing to do with any issue or candidate on the ballot. The election worker threatened to call the police.

These election workers were relying on a Texas law that forbids electioneering or wearing “a badge, insignia, emblem, or other similar communicative device relating to a candidate, measure, or political party appearing on the ballot” in or near a polling place. The law even prohibits someone from wearing an ID if the name is the same as someone appearing on the ballot. A violation is a criminal misdemeanor. Today, my colleagues and I at Pacific Legal Foundation filed a lawsuit on behalf of Jillian and Tony challenging the Texas ban.

As it happens, the Supreme Court issued a decision just last year striking down a similar law in another case brought by Pacific Legal Foundation called Minnesota Voters Alliance v. Mansky. The Minnesota law in MVA prohibited wearing a “political badge, political button, or other political insignia” in the polling place. The Court said states can limit some electioneering at the polling place to prevent voter intimidation and excessive disruption. But the government has to have some clear and logical basis for sifting “what may come in from what must stay out.”

The word “political” was not a clear boundary. As the Court noted, almost anything could be considered political, and the fuzzy language offered too much wiggle room for abuse and discrimination. The attorney arguing for Minnesota drove this point home during an onslaught of blistering questions in oral argument: how about a rainbow flag shirt? Permitted, maybe. How about a “Parkland Strong” shirt? Permitted, probably. How about an NRA shirt? Definite no. How about a shirt with the text of the Second Amendment? Definite no. At about that point, most everyone knew the outcome of the case–the attorney had just proven the inherently arbitrary standard he was trying to defend.

The Texas case filed today is a bit different. For one, the ban extends to 100 feet outside the polling place, which clearly encompasses sidewalks and other public areas where speech rights enjoy their widest berth. But the ban is not quite as amorphous as the word “political.” Instead, the ban extends to messages that relate to a candidate, measure, or party on the ballot.

This slightly narrower language probably doesn’t save the Texas law. After all, almost anything can be considered related to a candidate if the candidate has taken any kind of position on it. If a candidate has criticized Trump (have any not?), then is Tony’s MAGA hat “related” to the candidate? If Ben & Jerry’s takes a position on a ballot measure, does a Ben & Jerry’s shirt relate to that ballot measure? Maybe, but it depends on the election worker–and therein lies the problem. As the Supreme Court said in MVA, “A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions over every candidate and party on the ballot is not reasonable.” Not only would such an index be impossible, but the contents and application of that index would be dictated by an election worker’s own biases and background.

The integrity of the electoral process is vital. But surely Jillian’s firefighter shirt or even the much-reviled MAGA emblem do not imperil the right to vote. Wed don’t shed the right to express ourselves in peaceable ways when we step into a polling line.

Musk in contempt?

Ethan Blevins Law, Liberty , ,

The SEC wants to slam Elon Musk with contempt over a thirteen word tweet. Musk has taken to Twitter to both vaunt his company and castigate the SEC. He’s under an existing SEC settlement that requires company oversight of his communications. Musk’s brief tweet on Feb. 19 that stoked the ire of the SEC said: “Tesla made 0 cars in 2011, but will make around 500k in 2019.” The SEC swooped in, charging that Musk hadn’t received preapproval for the tweet and convinced Musk had misled the public.

The SEC’s overzealous attempt to wield the contempt power is disturbing. Especially given Musk’s vocal and mocking disdain for the SEC, the regulator’s attempted coup over the content of his tweets raises serious First Amendment concerns. Here, it seems the 500K estimate was not precise, but Musk went on to clarify on his Twitter feed, and he didn’t conjure the number from the ether. At worst, it was incomplete information. Welcome to Twitter. I just can’t quite stomach the fact that a regulator is out there lurking, ready to pounce on any linguistic imprecision in a forum where brevity is the name of the game. Obviously, Musk’s statements have an impact on the market, but investors are sophisticated actors who should be expected to do their homework. The SEC’s paternalistic and aggressive monitoring of Twitter feeds should raise our hackles.

Libertarianism and Neoliberalism – A difference that matters?

Alexander Albrecht Current Events, Liberty , , , , , , ,

I recently saw a thoroughgoing Twitter conversation between a Caleb Brown, which most of you presumably know from the Cato Daily Podcast, and the Neoliberal Project, an American project founded to promote the ideas of neoliberalism, regarding the differences between libertarianism and neoliberalism. For those who follow the debate, it is nothing new that the core of this contention goes way beyond an etymological dimension – it is concerned with one of the most crucial topics in the liberal scholarship: the relationship between government and free markets.

Arbitrary categories?

I can understand the aim to further structure the liberal movement into subcategories which represent different types of liberalism. Furthermore, I often use these different subcategories myself to distance my political ideology from liberal schools I do not associate with, such as paleo-libertarianism or anarcho-capitalism. However, I do not see such a distinct line between neoliberalism and libertarianism in practice.

As describes by Caleb Brown (and agreed on by the Neoliberal Project), neoliberalism wants to aim the wealth generated by markets at specific social goals using some government mechanism, whilst libertarianism focuses on letting the wealth created by free markets flow where it pleases, so to say. In my opinion, the “difference” between these schools is rather a spectrum of trust in government measures with libertarianism on one side and neoliberalism on the other.

I’ve often reached a certain point in the same discussion with fellow liberals:

Neoliberal: I agree that free markets are the most efficient tool to create wealth. They are just not very good at distributing it. By implementing policy X, we could help to correct market failure Y.

Libertarian: Yeah, I agree with you. Markets do not distribute wealth efficiently. However, the government has also done a poor job trying to alleviate the effects of market failures, especially when we look at case Z… (Of course, libertarians bring forth other arguments than public choice, but it is a suitable example.)

After reaching this point, advocating for governmental measures to fix market failures often becomes a moral and personal objective. My favourite example is emission trading. I am deeply intrigued by the theoretical foundation of the Coase-Theorem and how market participants still can find a Pareto-efficient equilibrium by just negotiating. Based on this theoretical framework, I would love to see a global market for carbon emission trading.

However, various mistakes were made during the implementation of emission allowances. First, there were way too many emission allowances on the market which engendered the price to drop dangerously low. Additionally, important markets such as air and ship transportation were initially left out. All in all, a policy buttressed by a solid theory had a more than rough start due to bad implementation.

At this point, neoliberals and libertarians diverge in their responses. A libertarian sees another failure of the government to implement a well-intended policy, whereas a neoliberal sees a generally good policy which just needs a bit further improvement. In such cases, the line between neoliberals and libertarians becomes very thin. And from my point of view, we make further decisions based on our trust in the government and on our subjective-moral relation to the topic as well.

I saw government too often fail (e.g. engaging in industry politics), which should be left nearly entirely to free markets. However, I also saw the same government struggling to find an adequate response to climate change. Contrary, I believe that officials should carry on with their endeavours to counteract climate change whereas they should stay out of industry politics.

Furthermore, in the recent past, there has been a tremendous amount of libertarian policy proposals put forth which remodeled the role of government in a free society: A libertarian case for mandatory vaccination? Alright. A libertarian case for UBI? Not bad. A libertarian case for a border wall? I am not so sure about that one.

Although these examples may define libertarianism in their own context, the general message remains clear to me: libertarians are prone to support governmental measures if they rank the value of a specific end higher than the risk of a failed policy. Since such an article is not the right framework to gather a robust amount of data to prove my point empirically, I rely on the conjecture, that the core question of where the government must interfere is heavily driven by subjective moral judgements.

Summary

Neoliberals and Libertarians diverge on the issue of government involvement in the economy. That’s fine.

Governmental policies often do not fully reach their intended goals. That’s also fine.

The distinction between neoliberals and libertarians is merely a threshold of how much trust one puts in the government’s ability to cope with problems. Both schools should not value this distinction too much since it is an incredibly subjective issue.

Originalism and defamation

Ethan Blevins Law, Liberty ,

Today, Justice Clarence Thomas issued a solo opinion urging the Supreme Court to reconsider a hallmark case in First Amendment law–New York Times v. Sullivan. That case held that defamation claims brought by public figures had to meet a heightened standard of proof by showing “actual malice” by the alleged defamer. The basic premise is that muscular use of private defamation suits discourages criticism of public figures and thus clashes with First Amendment interests.

Justice Thomas’s primary complaint with this standard is that judges created it with a wave of the wand rather than a serious analysis of the original understanding of the First Amendment. He points out that the ratifiers of the Constitution gave no indication that they intended to abrogate the long-standing common law of libel that had existed in the colonies and England for centuries. For those who believe that the Constitution’s meaning should reflect what the ratifiers thought the language meant at the time, I think Justice Thomas makes a convincing case.

The Gandalf Test

Ethan Blevins Books, Culture, Liberty, Politics , , , ,

The two dominant American political parties have one defining trait in common, and it’s the trait that makes them both undeserving to hold the power they seek to wield. Both parties fail the Gandalf test.

I derive the Gandalf test from one of my favorite conversations in the Lord of the Rings. Gandalf pays a visit to Frodo Baggins after concluding that Bilbo’s old ring is in fact the One Ring–the single most dangerous and powerful object in Middle-earth. Once the full enormity of the ring dawns on Frodo, he tries to thrust it upon Gandalf. Gandalf flatly refuses. “With that power I should have power too great and terrible.” He recognized that he cannot embrace so much power even though he would want to do good with it. “Yet the way of the Ring to my heart is by pity, pity for weakness and the desire of strength to do good. Do not tempt me!”

The Gandalf test is simple: a righteous cause and a genuine desire to save the world do not qualify anyone for the exercise of extensive unilateral power. The Republican and Democratic Parties both have recently failed this test, and not for the first time. On one side, President Trump has turned to emergency powers to barge through constitutional barriers, so convinced he is that his cause is just. On the other side, the Green New Deal proposes to remake the United States economy. We tend to too often squabble over the merits of these policies instead of stepping back to apply the Gandalf test. Even if the policies themselves are good ones, even urgent ones, we must ask whether any person or cadre should wield the extraordinary power to put them into action. The “desire of strength to do good” is not enough.

A clear message of Gandalf’s and the Lord of the Rings generally is that progress toward the good and worthy comes through the everyday courage and goodness of ordinary people, not a few great souls on gilded thrones. Elsewhere, Gandalf points out: “Saruman believes it is only great power that can hold evil in check, but that is not what I have found. It is the small everyday deeds of ordinary folk that keeps the darkness at bay.” And in the Return of the King: “It is not our part to master all the tides of the world, but to do what is in us for the succour of those years wherein we are set, uprooting the evil in the fields that we know, so that those who live after may have clean earth to till. What weather they shall have is not ours to rule.” What a wonderfully apt response to the Green New Deal’s attempt to rule with an iron fist today in order to literally rule the weather that others might have tomorrow. That kind of hubris is poison to a republic.

We need to subject our leaders to the Gandalf test. We need to know if they are the type to vainly “master all the tides of the world,” or whether they will lead in humility by quietly empowering the everyday deeds of everyday people. If they can’t pass the test, I couldn’t care less whether they’re proposing a wall, a tax hike, or a clean energy revolution.

Automated law enforcement and rational basis

Ethan Blevins Liberty , , ,

Does law enforcement need a human touch? The Supreme Court of Iowa says no. The Court recently decided that automated traffic enforcement (ATE) does not violate the Iowa Constitution. The Court, however, did take some time to address an important topic in constitutional jurisprudence: the nature of rational basis review.

Rational basis is a test applied to a variety of constitutional challenges. In the ATE case, the plaintiffs had brought due process and equal protection claims, both of which relied on the rational basis test. Rational basis is the weakest test in the hierarchy of judicial scrutiny. If a law is rationally related to a legitimate government interest, then a court won’t strike it down. As you might expect, plaintiffs very rarely succeed on this flimsy rational basis standard.

And so it was here. The Plaintiffs had argued that the ATE system in Cedar Rapids was not rationally related to an interest in public safety because, among many other things, the system punished a vehicle’s owner for speeding even if the owner was not the driver at the time. The Court had misgivings, but it ultimately deferred to the City and let the law slide.

The Court did, however, give a little boost to rational basis. The Court correctly noted that many state constitutions offer a stronger rational basis test than the federal test. That’s an important reminder to constitutional litigators–sometimes state constitutions may have analogous provisions to the federal constitution, but the protections they offer might be more robust.

The Court also made an important point about evidence in a rational basis claim. In many rational basis cases, plaintiffs don’t even get a chance to present evidence as to whether a law is rationally related to a legitimate government interest. If the government just asserts–without evidence–that a law furthers a legitimate interest like public safety, then the game is over. But the Iowa Supreme Court correctly noted that while a law is entitled to a presumption of constitutionality under rational basis, plaintiffs have a right to present evidence to rebut that presumption. Hence, “the mere incantation of the abracadabra of public safety does not end the analysis.” This evidentiary point is vital for strengthening the constitution’s protections against expansive government power.

Obscenity law liberalised

Nick Cowen Law, Liberty , , , , , , , ,
2014 Protest outside parliament for sexual expression. Photo by BeeMarsh BeePhoto
December 2014 Protest outside parliament against sex censorship. Photo by BeeMarsh BeePhoto

This is a cross-post from my contribution to the Adam Smith Institute blog.

Last week the Crown Prosecution Service published updated guidance for prosecutions under the Obscene Publications Act (1959). Legal campaigning has brought about a big change: the liberal tests of harm, consent and legality of real acts are now key parts of their working definition of obscenity. The CPS explain:

… conduct will not likely fall to be prosecuted under the Act provided that:

  • It is consensual (focusing on full and freely exercised consent, and also where the provision of consent is made clear where such consent may not be easily determined from the material itself); and
  • No serious harm is caused
  • It is not otherwise inextricably linked with other criminality (so as to encourage emulation or fuelling interest or normalisation of criminality); and
  • The likely audience is not under 18 (having particular regard to where measures have been taken to ensure that the audience is not under 18) or otherwise vulnerable (as a result of their physical or mental health, the circumstances in which they may come to view the material, the circumstances which may cause the subject matter to have a particular impact or resonance or any other relevant circumstance).

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Bad guys and bad thinking

Ethan Blevins Law, Liberty, Politics , , , , ,

AOC made waves with her recent “lightning round” during a hearing on a new campaign finance behemoth lumbering through the House, HR 1. Her basic point was that under our current campaign finance regime, it’s “super legal” to be a “pretty bad guy.”

I wrote recently that much campaign finance rhetoric resembles a religious canon. If so, then AOC is vying for the position of high priestess. I can’t review all the many flaws in her five-minute fable, but I’ll briefly canvas her commitment to orthodoxy.

First, she asks the hearing panel whether there is anything stopping a “bad guy” from being entirely funded by corporate PACs. The panel answered that no law prevents that. But surely common sense does. Running on a campaign solely funded by corporate PACs would be a titanically stupid campaign strategy. First off, thanks to disclosure laws and the realities of a media-rich society, all constituents would know that the candidate was running solely off corporate PACs. Why any candidate would intentionally sell themselves as a corporate lackey is beyond me.

Not only would this look bad, but it would also come at a huge financial cost. Congressional campaigns are mostly funded by individual contributions, not corporate PAC money, so basically a candidate would be refusing a huge amount of loot in order to broadcast themselves as the Peter Pettigrew of electoral candidates. I’m not convinced this is a looming threat to our democracy. Why should we regulate a non-existent problem?

Of course, she also trotted out important theological terms such as “dark money.” She seems to think campaigns are directly funded by dark money. Not so–any contribution over $200 faces extensive disclosure requirements. Dark money usually refers to independent political expenditures, which still face a variety of disclosure requirements and make up a surprisingly small amount of total political expenditures. Again, she is swiping at phantasms.

A larger issue is that even if her claims are true, HR 1 and most other campaign finance laws are hugely overbroad. The overwhelming majority of political spending occurs with no eye toward extracting favors from a candidate. Yet HR 1 would impose huge burdens on all groups speaking in the political arena. The better route to catch “bad guys” is to enforce criminal laws that prohibit bribery. Will you catch every instance of quid pro quo corruption? Almost certainly not. But since when was this a controversial price to pay for a free society? We’ve long ago decided that it’s best to have less than perfect enforcement in order to preserve individual liberty.

The collateral damage that HR 1 would impose on legitimate, non-corrupt speech is tremendous. I’m not confident AOC is fretting over the real “bad guy.”

Liberty and pro-choice arguments

Bill Rein Culture, Liberty , , , ,

Abortion never struck me as a liberty issue. Fundamental ideas that inform libertarian thinking don’t pick a “side” for or against abortion, late-term or otherwise. Abortion is a random issue. But my pro-choice credentials face greater and greater scrutiny as I pal around right-libertarians and conservatives, and I’ve had to re-investigate my own decision-making process here.

I find each political side — abortion jurisprudence — wholly unconvincing. When a sperm and egg becomes “life” is so outside thousands of colloquial years of the word, there’s nothing analytic in the definition to illuminate policy choices; I don’t think medical science is going to answer the philosophical question of the concept of “life” either (“clinical death” violates what should be commonsense notions of death); etcetera. And then, of course, the pro-choice camp (which emphasizes parental choice) rarely cares about parental choice afterward, like in education, and the pro-life camp is an absurdly broad name for their legitimate concerns. The philosophy of abortion is probably interesting — the politics is a waste of time.

Here is what, I think, enforces my libertarian advocacy of choice. I am probably more radically pro-choice than most people I know, but this provides a basic defense.

If the question of whether or not life is “worth it” is a sensible question in the first place, then it is not one that can be answered a priori. Life is an inherently qualitative experience. This is clear enough by the fact that some people would rather choose to have died at age 60 after having lived to age 80, if we take their judgment as the best authority on their own life’s worth (and I do, and I think we should). Therefore, in advance, its not knowable if a person’s life will be worth it. People generally do enjoy living (more than they would otherwise?); this might not be the case if, for instance, the Nazis won and we all were born in camps. This is an accidental property of the current world. We live in a generally worthwhile time period, suggesting life is generally going to be determined to be worth it by each individual.

Since the worth of life is not a priori, the best guess in advance is that from local knowledge. Parents have the most local knowledge about the future of their child’s immediate life, before it gets unpredictable and the knowledge gets divided by millions of individuals who will impact their life and also understand ongoing trends. Therefore, parents are the best option to make a judgment call about whether or not their child’s life will be worth it — if they can care for it, if they will have a genetic problem, etc. Not politicians. Not voters. Not interest groups concerned with in utero life in the abstract.

Thus, parental choice.

It’s been said this is an “anti-human” argument. Lots of us came from lower income or impoverished households, myself included. Our lives are still found worthwhile. Why strawman, as if we’re in countries with terrible childhood obesity, malnutrition, drug addiction, gang violence?

It’s true that in general life is found to be worthwhile. But there’s no Leibniz-like principle that it must be. Nor does the aggregate data that people do, often, qualify life as worth living, mean that random individuals overcome parental ownership of the best localized knowledge.

This, I think, is a libertarian argument for choice. It depends on the point that abortion is a unique sort of event — we’re not talking about an old man’s caretaker, who must have the best local knowledge about whether or not we should pull the plug. The question need not arise about who makes important choices once someone is cognizant and autonomous. The argument rides on the point that there’s a vacuum in decision-making autonomy for fetuses by their very intrinsic nature, and we have to make proxy choices in advance.

We give parents plenty of other choices by law. When we are debating potential- or possible-beings still in the womb, before our language game definitively identifies them as “alive,” choice should default to the parents, and I should have no right to the woman’s body to make choices for her about a possible-being I will never see, feed, care for or otherwise worry about except to force the woman to take care of it for nearly two decades.

Bad Religion

Bruno Gonçalves Rosi Culture, Current Events, Liberty, Philosophy, Religion , , , ,

The Heidelberg Catechism is one of my all-time favorite Christian documents. Written in 1563, mostly by Zacharias Ursinus, the Heidelberg (as it is sometimes called) is composed by 129 questions and answers (the classical format of a catechism), supposed to be studied in 52 Sundays (that is, one year). I believe it is very telling that, being a catechism, the Heidelberg was written thinking mostly about younger people, even children. Ursinus himself was only about 29 years old when he wrote it. Maybe it is a sign of the times we live in that the Heidelberg sounds extremely deep for most readers today.

Throughout its questions and answers, the Heidelberg covers mostly three Christian documents: The Ten Commandments, the Lord’s Prayer (“Our Father who art in Heaven…”) and the Apostle’s Creed. The catechism is also divided into three main parts: Our sin and misery (questions 3-11), our redemption and freedom (questions 12-85), our gratitude and obedience (86-129). Probably an easier way to remember this is to say that the Heidelberg is divided into Guilt, Grace, and Gratitude. That is also, according to many interpreters, the basic division of the Apostle Paul’s Letter to the Romans, historically one of the most important books in the Bible.

I mention all these characteristics about the Heidelberg Catechism because I think they are worth commenting on. As I learned from a friend, that is the Gospel: Guilt, Grace, and Gratitude. As C.S. Lewis observed in Mere Christianity, Christians are divided on how exactly this works, but all agree that our relationship with God is strained. That is the guilt. However, in Jesus Christ, we can restart a peaceful relationship with God. That is the grace. This should be followed by a life of gratitude. That is the way the Gospel is good news. If you don’t emphasize these three points you are not really presenting the Biblical gospel. To talk about grace without talking about guilt is nonsense. To talk about guilt and not grace is not good news at all. To talk about guilt and grace but not of gratitude is antinomianism. To talk about gratitude (or obedience) without talking about guilt and especially grace is legalism. But also, notice how unbalanced the three main parts are: Ursinus dedicated way more space for grace and gratitude that he did for guilt.

That’s not accidental. Also, it is very interesting that he talks about the Ten Commandments when he is dealing with gratitude. It didn’t have to be this way. Ursinus could have included the Law when talking about guilt. He could use the law to show how miserable we are for not fulfilling it. But instead, he wanted to show that obeying God is a sign of gratitude. You are free already. Obeying will not make you any more saved. But it is certainly the behavior of a truly restored person.

If you read so far, I should first thank you for your attention, but also say that I am completely unapologetic for speaking so openly on Christian themes. At some point in history, Christians decided to adapt to the modern culture. That was the birth of Christian Liberalism. Modern man, some of them assumed, could no longer believe in stories of gods and miracles. Modern science was able to explain things that societies in the past thought to be supernatural occurrences. The Bible was at worst pure nonsense or at beast a praiseful reflection of the piety of people in the past, but certainly not a supernatural revelation from God. But if you take away the supernatural elements of the Bible, what do you have left? Good morals, some thought. I believe they were wrong.

The social gospel is one consequence of Christian liberalism. The central miracle in the Bible is that Jesus, a mortal man, was dead for three days and resurrected. That is indeed a miracle. Make no mistake: people in the first century knew as well as we do that people don’t come back to life after three days. Maybe they knew it better than we do, for in the 21st century, for many of us, death is not a part of everyday life. For them, it certainly was. Christians have believed through almost two thousand years that Jesus’ death and resurrection have something to do with us being reconciled to God. But if Jesus didn’t resurrect, and no one really heard from God that he is angry, what do we have left? The answer, according to Christian liberals, is social justice. Reform society. I believe that for this, they own society at large an apology, and I will explain why.

I heard from too many people that the reason they don’t go to church is that Christians are hypocrites. “Do as I say, but not as I do”. Maybe they are right. The balance between guilt, grace, and gratitude if fundamental for Christianism to work. Salvation (reestablishing a rightful relationship with God) is by grace, not by works. Say that salvation is by works and you set the board in a way that you are sure to lose. As I already mentioned, I think it is just wonderful that the Heidelberg Catechism talks about the Law of God (The Ten Commandments) when it is discussing gratitude, not guilt, and I believe this is a great lesson for us today.

I say all this today because I believe that political correctness is (at least to a great degree) the bastard son (or daughter) of the social gospel. See the recent Gillette commercial that caused so much controversy, for example. Are they really saying anything wrong? Don’t men behave sometimes in ways that are less than commendable? I believe we do. Especially coming from a Latino culture as I do, I am more than willing to say that men all too often are disrespectful towards women and also towards other men. However, how the people at Gillette know this? If there is no God, or if he didn’t speak, how can you tell what is ethically commendable behavior and what is not?

I am no specialist, but as far as I know, more than enough atheist philosophers are willing to admit that in a sole materialist worldview there are no universal grounds for morality. As the poet said, “if there is no God, then all things are permissible”. It is always important in a conversation like this to explain that I am not saying that atheists cannot be ethical people. That is absolutely not what I am saying. Some of the best people I ever met were atheists. Some of the worst were Christians who were at church every single Sunday. With that explained, what I am saying is that there is no universal guide for human behavior if there is no God and everything just happened by chance. There are particular guides, but not a universal one, and to adhere to them is really a matter of choice.

The way that I see it, people at Gillette want men to feel bad and to change their behavior. They want men to feel guilty and to have gratitude. But where is the grace? I believe that is why this commercial irritated so many people. It makes people at Gillette look self-righteous or legalistic. Or both! But it definitely doesn’t help men to change their ways, supposing that there is something to change. I believe there is. There is a lot to change! But political correctness is not the way to do it.

Blame it on Rio

Bruno Gonçalves Rosi Current Events, Liberty, Politics , , , , , , , , , , ,

I grew up in Rio de Janeiro in a very middle-class neighborhood. Not the fanciest one, but also not the poorest. Very much in the middle. This neighborhood also had the characteristic of being surrounded by hills. Many if not most hills in Rio de Janeiro have favelas. Favelas are poor neighborhoods that are formed by poor people who mostly want to live close to where the jobs are. Because I grew up in a middle-class neighborhood, studied in middle-class schools and had a middle-class family I was in danger of only knowing middle-class people. The thing that prevented me from that the most was going to church. In church, I lived with people from all kind of social backgrounds – including people who lived in favelas.

The history of Rio de Janeiro is mostly a history of expansion from the area we today call downtown. On several occasions, poor people (including my grandfather and his mother) were relocated (or frankly expelled) from their houses by the government that wanted to make some urban reform. People faced two options: to be relocated to far removed areas, far away from their jobs, or to occupy some undeveloped area in the vicinities of where they previously lived and form a favela.

Because Rio de Janeiro is the historic capital of Brazil, it received a lot of investment by governments over the decades. Many governments wanted to make it a vitrine of Brazil’s development. Also, Brazil has a strong history of developmentalism. Especially since Getúlio Vargas, who rule the country from 1930 to 1945 and again from 1951 to 1954, Brazilian presidents tend to believe that it is their job to bring economic development to the country. The higher the GDP growth, the best. I mean, who am I to say that GDP growth is a bad thing?! But we have a lot of stories worldwide of countries that grew too fast in too little time leading among other things to major population dislocations and new pockets of poverty around great cities. Lagos, in Nigeria, is a textbook example. So is Caracas, in Venezuela. So is Rio de Janeiro. This kind of development is pretty much like using steroids: the results are fast, but the side effects are terrible. Fernando Henrique Cardoso tried to “flip the page” from Vargas in the 1990s, but Lula da Silva and Dilma Rousseff returned to developmentalist policies in the 2000s. Even Jair Bolsonaro often talks as a developmentalist, apparently a tic from his military years. Anyways, developmentalism led to the fast growth of Rio de Janeiro over the decades – and the formation of new favelas.

One of the best stories of developmentalism in Rio de Janeiro is the neighborhood of Barra da Tijuca. Until the 1960s this part of the city, caught between the hills and the ocean, was basically desert. That’s when the government commissioned the architect and urbanist Lucio Costa to develop the area. Mr. Costa was also responsible for designing the city of Brasília, and it shows: Brasília and Barra da Tijuca are fairly similar. Not my kind of city or neighborhood. It’s very hard or even impossible to explore Barra da Tijuca on foot. Its area is roughly the size of Manhattan, but it has no subway lines. The bus lines are not very dependable. The city blocks are very large. Everything is very distant.

In my evaluation, Mr. Costa thought that he was God. Brasília and Barra and very interesting if looked from above, from the sky. But if you are on the ground level and don’t have a car, they are just not friendly. But that’s how modernists (including socialists) are: they swear they love humanity but hate human beings.

The news that the government was developing the Barra da Tijuca area spread fast. Many families came to the region looking for jobs in construction. Many of them settled in the vicinity of Rio das Pedras. Rio das Pedras became one of the main favelas of the region. In the absence of government, people started to organize themselves in neighborhood associations. Even with most of the construction projects done, the families never left. Barra da Tijuca became an affluent neighborhood with many jobs. Alongside came drug trafficking.

The “pre-history” of drug trafficking in Rio de Janeiro is almost idyllic. You just have to watch the movie City of God (2002). Of course, one could not sell drugs in fancy neighborhoods like Ipanema or Copacabana, where the government is strongly present.

So, most drug trafficking happened in the favelas, including Rio das Pedras. The first generation of drug dealers was mostly respectful towards residents of the favelas and other poor neighborhoods. Some even became legendary for pacifying the neighborhoods from other forms of crime: because they didn’t want to have trouble with the police, drug dealers would punish criminals themselves. However, this changed very fast. The dispute for territory led drug dealers to become more and more violent.

In response to drug dealers and the slackness of the government, people organized in militias. What once were neighborhood associations became paramilitary organizations. Just like happened with the drug dealers, the vigilantes were initially friendly towards the people living in the neighborhoods. However, this changed very fast. The dispute for territory led militias to become more and more violent. Eventually, drug dealers and militias became mostly indistinguishable. Some militia leaders entered politics.

Marcelo Freixo, a Rio de Janeiro politician of the PSOL (Socialism and Liberty Party – as I said before, a contradiction in terms) rose to fame in the 2000s for presiding over a parliamentary inquiry on the militias. Mr. Freixo had a character inspired on him in the movie Elite Squad 2 (2010). The first Elite Squad (2007) was a very good movie. The sequel, not so much. Elite Squad is somewhat based on real events and tells the story of (what else?) BOPE, an elite squad in the Rio de Janeiro military police (somewhat analogous to the SWAT), especially during the visit of Pope John Paul II to the city in the late 1990s. The movie has some similarities to Black Hawk Down (2001). If you haven’t watched it and want to be spoil free, you might want to skip to the next paragraph.

Pope John Paul II decided to stay in a dangerous neighborhood, surrounded by favelas. The BOPE was responsible for his security. Although disagreeing with the strategic intelligence of allowing the Pope to stay in a dangerous region of the city, the squad did its job. In very military fashion, “orders are orders”. The movie shows the police officers as very dubious figures: they are extremely violent and often disrespectful towards citizens. But they are also very honest and dutybound. Captain Nascimento, the main character, is a tragic figure. He became a police officer to protect innocent citizens. He discovers that by obeying orders he is often just putting his life in risk for very little or no results. Worse, he is misunderstood by all those around him, including his family.

Even his son ends up calling him a fascist. Elite Squad also portrays the drug dealers in a nuanced way. They are violent and vengeful, but Captain Nascimento himself understands that no one grows up dreaming about becoming a drug dealer. Drug dealers and BOPE members fight a private war and ironically might be the only ones to truly understand one another. The real villains of the movie are the upper-middle class youngsters who use drugs, financing the drug dealers who the BOPE fights. It is against them that the police officers direct most of their rage.

So, I believe that Elite Squad is a very good movie, that pictures quite well how life in Rio de Janeiro is for many people. Most of the time it is hard to precisely identify villains or heroes. However, no wonder, despite being very popular, the movie was trashed by leftist intellectuals who called it fascist. The sequel gains in quality in almost everything but the characters, and this makes it worse than the original. The villains are completely villainous and the heroes, heroic. It lacks the nuances of the original. The character inspired by Marcelo Freixo is morally perfect. The vigilantes whom he fights are cartoonish evil.

Brazilian and international media gave much attention last year to the assassination of Marielle Franco, a Rio de Janeiro politician who, just like Mr. Freixo, was a member of the PSOL. Ms. Franco’s assassination, like any other, is a tragedy. The police investigation is still ongoing, and no one really knows who killed her, but it seems very likely that she was murdered by members of a militia. Despite what international media might lead one to believe, Ms. Franco was far from being the first Rio de Janeiro politician to be murdered in the last few years. Mr. Freixo himself is under police protection for many years now. Other politicians from several political parties were not so lucky and didn’t receive the same attention from the media. The left’s last blow against president Jair Bolsonaro is to say that one of his sons, Flávio Bolsonaro, is somehow connected to Ms. Franco assassination. In their narrative, Flávio would be connected to militias who in turn killed Ms. Franco. All things are possible. Not all are plausible. Definitely, not all are proven. To be honest, there are people in the right saying that Jean Wyllys, also from the PSOL, is connected to Jair Bolsonaro’s assassination attempt last September. Maybe they should all go have a drink together. They have much in common.

Making a generalization (but I hope not an overgeneralization), politicians and intellectuals from the left tend to romanticize drug dealers. They are pictured as social victims or social bandits, almost Robin Hoods. On the other hand, they vilify the militias in a cartoonish way. Just like Elite Squad 2. I began this text mentioning that going to church prevented me from entirely growing in a middle-class bubble. Because of that, I heard people saying that old drug dealers had at least some sense of justice. Younger ones (sometimes as young as 16 years old) are almost animals, psychopaths without any sense of empathy. If you watched The Godfather trilogy you know what I mean. I also heard people frustrated with the government, that offered no protection against criminals. The same people were (at least initially) supportive of militias.

Politicians in the right, in turn, consider unimaginable to legalize any drug. But on the other hand, they were very slow to understand the danger of the militias, and citizens making justice with their own hands in general.

So, this is a story about Rio de Janeiro, one of Brazil’s most important cities. For decades politicians believed it was their job to bring economic development to the country – and to the city. This led to fast economic growth, which in turn led to the development of favelas. Favelas are areas where the official government is generally not present.

Therefore, its residents form neighborhood associations. Favelas are also places where, because of the lack of government, drug dealers can work in relative peace. However, over time drug dealers become more and more violent in their dispute for territory. The neighborhood associations, in turn, become militias. And the militias quite often become mafias. Some politicians rise to fame fighting these mafias, but the policies they defend are the same that begin this story in the first place. Politicians on the right are accused of dangerous liaisons. And no one seems to be willing to limit government to its primary function of protecting life and private property.

Government shutdown – private vs. public responses

Alexander Albrecht Current Events, Liberty, Philosophy , , , , ,

The recent shutdown of the government in America has caused a midsize crisis for state employees leaving them unpaid for 35 days straight. Although the shutdown ended on the 25th of January, one can still draw a conclusion about the crisis handling from a public and a private perspective.

A failure of government

When you take a closer look at the history of governmental crisis management, you mostly look at a huge collection of mismanagement. In the last few years there has been a tremendous amount of intriguing works dealing with the failures of public crisis responses, especially the case of hurricane Katrina (Wikipedia here lists more than 100 references), which has been one the of most investigated disasters in recent history.

Crisis can provoke the good as well as the bad inside humans. One might think of the countless volunteers after nature catastrophes doing their very best to help. On the other hand, there have also been stories of grieving and plundering mobs on the streets, after hurricane Katrina for example. So, what we can say for sure is that crises push human behaviour to the extremes. Keeping this in mind it sounds reasonable to leave it to the government to set up an agenda of rules to coordinate humanitarian efforts. However, the government fails most of the time to deliver effective responses to crises, whether they are man-made or exogenous.

Not being able to find an agreement over the federal budget indicates that the government also has very limited options to offer to their employees. And indeed, Lara Trump gave some very handy advice to unpaid workers: “Listen, it’s not fair to you, and we all get that, but this is so much bigger than any one person. It is a little bit of pain but it’s going to be for the future of our country. […] Their children and their grandchildren will thank them for their sacrifice right now.” Yes, please explain to your children how you nearly starved to death because of a dispute over a wall. Sounds reasonable.

Whereas Donald Trump’s kind of clumsy attempt to clarify Ross Wilbur’s statement that government workers should take out loans (Maybe a small loan of a million dollars, huh?) was not too stupid at all. He emphasizes that worker should “work along” with local grocery shop owners they know. He was very clear that employees could not expect help from the government, but instead, they should look out for support on a local level. I do not think that this is a good method of communicating this issue, but it is for sure a very honest one.

Mac & Cheese

A 35-day shutdown, so to speak nearly a missed monthly wage, might not sound unbearable for a central European. But keeping in mind the saving habits of many Americans, a huge amount of government workers are facing existential problems. A recent FED survey found out that about 40% of the American population is not able to cover a 400$ emergency expense without selling or borrowing something.

Witnessing the inability of the government to provide payments for their workers, private enterprises reacted in a remarkable way. The huge food company Kraft rented space for pop-up stores in Washington in which they gave away food entirely for free. One of the most demanded products was Mac & Cheese. The celebrity Chef José Andrés provided free groceries for affected government worker through his NGO “World Central Kitchen.” When the government stopped caring, people started to do so.

Learnings

The overwhelming care for the unpaid government workers by the private sector further strengthened the role and importance of individual responsibility. In situations of crises, people tend to be less submissive to authority and focus on voluntary cooperation of human beings. I feel like it is important to mention here that I do not want to praise crises as a suitable method of bringing people together. But when we take a closer look at the history of humanity it becomes evident that instead of governmental decisions, voluntary human cooperation made our modern life possible. And in times of crises, people become clear about the relevance of these values and processes, which normally guide human progress subconsciously and unnoticed. Private responses to crises are a sign to me that humans are capable to display kindness, cooperation, and humanity beyond the borders of government.

Time to emerge from the campaign finance mythology

Ethan Blevins Law, Liberty, Politics , , , ,

Campaign finance laws long ago ascended to the Mount Olympus of political mythos. The mantra that we must exorcize money from politics has become an article of faith. But the basic premises undergirding this creed rest on a sandy foundation made up of unsound logic and unsupported claims. Not to mention a total disregard for First Amendment rights. The Supreme Court, however, will soon have a chance to reconsider campaign finance laws’ often dubious rationales and uncomfortable relationship with the First Amendment.

Campaign finance laws kicked off in the late nineteenth and early twentieth centuries with some early laws that banned corporation contributions, but they mostly gathered dust. Then, ironically, Republicans in 1947 used campaign finance laws to try and stifle union contributions, which led unions to create the much-hated PAC to dodge the restrictions. Then first serious attempt at comprehensive campaign finance regulation swept through in 1971 with the Federal Election Campaign Act. FECA laid down strict contribution and expenditures limits. Six years later, FECA led to the Supreme Court’s major canonical work in campaign finance lore, Buckley v. Valeo.

Buckley was a mixed bag. On the one hand, it struck down limits on independent expenditures by people who spend their own money on political communication during a campaign. On the other, it upheld limits on direct campaign contributions. Hence, both sides of the campaign-finance divide gripe about Buckley—First Amendment advocates want campaign contributions to be just as uninhibited as independent expenditures, and campaign-finance believers think government should be able to curtail independent expenditures to the same degree as campaign contributions.

As a speech advocate, I fall into the camp that feels Buckley did not do enough to protect First Amendment interests. Buckley relied on flawed notions about the nature of campaign contributions and the alleged need for limiting them. For example, the Buckley Court claimed that contributions don’t deserve as much First Amendment protection as expenditures because the speech facilitated by the contribution is someone beside the contributor. The trouble is that the same is true of expenditures—typically a political spender’s message is conveyed through a go-between, like an ad agency or a TV station. Courts have never held that reliance on someone else to convey your message robs you of the right to promote that message. Except for Buckley.

Another rationale for distinguishing contributions and expenditures is the “general” nature of a contribution. An expenditure allows the speaker to tailor his precise message. I.e.: I support Daenaerys Targaryen because she fries Lannisters with dragon fire. But if you just give a contribution to the Targaryen campaign, then no one knows why you support her. Anti-slavery? Dragons? Small Hands? You could be contributing for any reason, and the lack of specificity translates to a weaker First Amendment right. This is another lame excuse. After all, does the guy holding a “Warren 2020” deserve less First Amendment protection than someone holding a “Harris for better healthcare” sign? No case has ever said so or will ever say so. Except for Buckley.

The third rationale for contribution limits is that the quantity of the contribution does not strengthen or weaken the speech being regulated. That is, Buckley says if you give $5 or $500 to the Palpatine campaign, your message is the same. But surely the number is a clear metric for degree or intensity of support. If you gave $1 to Albus Dumbledore and $100 to Lord Voldemort, that says something about your viewpoint. If a cap is placed on contributions, the government is essentially saying that you can only support your candidate up to X amount—that’s more than a minor burden on someone’s right to political expression and participation. Plus, the contribution is not just about the symbolic act of giving—it’s also about the speech facilitated by that contribution, which is obviously affected by the quantity of the donation.

Buckley allowed contribution limits for the sake of combating corruption or the appearance of corruption. Here, too, Buckley falters. Study after study has failed to demonstrate that campaign contributions purchase special favors on anything approaching a widespread basis. Yet contribution limits take a widespread approach. Certainly, anecdotal evidence of quid pro quo exchange of contributions for favors exists. But that can hardly support a widespread cap where the overwhelming majority of contributions are motivated by ideological commitment, not a desire to obtain special political favors post-election.

Bereft of actual evidence, campaign finance zealots resort to bumper sticker slogans like “money buys elections.” Certainly, candidates who receive a lot of money tend to also receive a lot of votes. But this is just correlation. People will tend to donate to strong candidates, and people will also tend to vote for strong candidates. The likely variable here is a candidate’s popularity, not campaign contributions.

And what in the world is the “appearance” of corruption? No other First Amendment right that I know of lives or dies by the grace of the subjective feelings of the public. Rights are supposed to exist despite any prevailing hostility from the public. Yet that’s the Buckley standard. Indeed, courts have looked to public opinion polls and other tenuous evidence to uphold severe contribution limits in cities and states across the country.

While contribution limits likely don’t do any good, they do plenty of harm. Even beyond the injury done to the First Amendment interests of contributors, campaign finance laws tend to only help one group of people: incumbents. Campaign finance laws erect such arcane labyrinths that only the savvy, experienced politicians who can afford pinstriped election-law attorneys and have lots of name recognition will come out ahead. Contribution limits also do huge favors for wealthy, self-funded candidates.

Often, what political amateurs with no name recognition need is a concentrated boost of support from a small group of supporters to kickstart a competitive campaign. Contribution limits make this nigh impossible. But instead of loosening campaign finance laws that fortify incumbency, politicians peddle terrible ideas like term limits. If they truly wanted competitive politics (which they don’t), then they’d liberalize campaign finance.

Since we can hardly rely on the incumbents to break down incumbency protections, the time has come for the Supreme Court to return to Buckley. The Court will have the chance to do just that with a petition from a case called Illinois Liberty PAC v. Madigan. We could do for some fresh air in politics—the way to do that is to strip away an orthodoxy that only serves to protect the powerful.

John Rawls had good reason to be a reticent socialist and political liberal

Nick Cowen Books, Liberty, Philosophy , , , , ,

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John Rawls: Reticent Socialist by William A. Edmundson has provoked a renewed attempt, written up in Jacobin and Catalyst, to link the totemic American liberal political philosopher with an explicitly socialist program to fix the problems of 21st century capitalism, and especially the domination of the political process by the super-rich. I found the book a powerful and enlightening read. But I think it ultimately shows that Rawls was right not to weigh his philosophy down with an explicit political program, and that socialists have yet to respond effectively to James Buchanan’s exploration of the challenges of non-market decision-making – challenges that bite more when states take on more explicit economic tasks. The large-scale public ownership of industry at the core of Edmundson’s democratic socialism is plausibly compatible with a stable, liberal political community in some circumstances but it is unclear how such a regime is supposed to reduce the scope of social domination compared with a private-property market economy in similar circumstances once we look at public institutions with the same skeptical attention normally reserved for private enterprise. A draft review is below.

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Spaghetti Monsters and Free Exercise

Ethan Blevins Law, Liberty, Religion , ,

Should Flying Spaghetti Monster worshipers be allowed to wear colanders on their heads in drivers’ license photos? Maybe so. Today, four conservative justices hinted that someone might want to bring them a good Free Exercise case soon so they can unseat a long-standing and long-criticized case called Employment Division v. Smith. That case, penned by Justice Scalia, had in turn uprooted several decades-worth of precedent that had built up a robust bulwark of religious rights under the First Amendment’s Free Exercise Clause.

It’s a funny twist. Liberal justices like Justice William Brennan had built up strong protections under the Free Exercise Clause, such as allowing Amish to pull their children from high school early because of their faith, or allowing Saturday Sabbath worshipers to enjoy certain exceptions to work requirements for unemployment benefits. Then the penultimate conservative justice, Antonin Scalia, dealt a severe blow to those precedents in Smith. Scalia said that religious practices did not merit exemption from generally applicable laws.

Now, the conservative justices want to rethink Smith, while the liberal justices may hang back. Perhaps the shift in the culture wars has caused this parallel shift in jurisprudential alliances. In any case, I think we should welcome reconsideration of Smith.

Scalia’s opinion in Smith raised some legitimate concerns. He argued that if we allowed judges to have a heavy hand in deciding which religious practices deserved special exemptions from the law and which did not, then judges would inevitably engage in subjective judgment calls and descend into the very parochialism that the First Amendment is designed to thwart. He also worried that allowing exemptions from generally applicable law would court anarchy—we would have a legal code peppered with holes for a thousand individualized religious beliefs and practices. Both are legitimate concerns.

Smith did prompt a strong legislative response. Congress and quite a few states thereafter passed Religious Freedom Restoration Acts (RFRAs) that basically revived the pre-Smith law. But legislatures can and do exempt some laws from RFRAs, and many states do not have them.

My primary issue with Justice Scalia’s Smith opinion is that his worry about subjective judgment calls seems to prove too much. Judges are called upon to make these kinds of sensitive and controversial decisions all the time. We rely on things like tenure and salary protection to shelter their independence and impartiality as much as we can, but these kinds of difficult decisions arise in innumerable other contexts. I would prefer a robust and imperfectly enforced Free Exercise Clause to one that does almost nothing at all.

Likewise, the concern about courting anarchy may be overblown. Laws and religious practices usually do not clash in a fundamental way, and under the pre-Smith “compelling interest” test, legislators can still forbid child sacrifice while allowing Muslim police officers to keep their beards. Plus, freedom of speech and many other rights already require exceptions to the scope of otherwise legitimate laws—they just can’t be applied in certain circumstances. The Free Exercise Clause is not unique in that way.

If the Court does confront Smith, it may also have to deal with the Flying Spaghetti Monster problem. That is—the Court may have to address a question which it has mostly avoided: what is a “religion” under the First Amendment. Does the Church of the Flying Spaghetti Monster count? Should Pastafarians be allowed to wear colanders on their heads in drivers’ license photos while everyone else has to go bareheaded? What about the Church of Diego Maradona, a real church dedicated to the Argentine soccer legend? Clearly, asking a court to define a “religion” raises the same concerns of parochial judgment calls that drove the decision in Smith. But maybe the answer is to let them all in, with perhaps just a low-threshold sincerity requirement. Beyond the occasional colander-clad guy in the DMV line, we haven’t seen a huge number of people adopting faux beliefs just so they can get a religious exemption for smoking dope. But then, there is an International Church of Cannabis that would surely see a surge in conversions if Smith is overturned.