First, there’s the shoutout to Oliver Wendell Holmes, Jr.:
There is no freedom to shout “fire” in a crowded theater.
Back in 2012 I wrote at length about the context for that Holmes quote. First of all, Professor Rosenbaum — like most Holmes fans — truncates the quote to render it vague. What Holmes actually said was “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
But more importantly, Professor Rosenbaum — like most who misquote Holmes — ignores the context. To summarize rather than make you read my lengthy post: (1) Holmes made the analogy in deciding a shockingly brutal and censorious series of cases that are no longer good law, in which the Supreme Court gave the government free reign to jail people who criticized or agitated against American participation in World War I; (2) Holmes later repented of that position, undermined that line of cases through decisions he wrote or joined, and articulated a far more speech-protective line of authority that remains the law today, and (3) if you are fond of Holmes’ rhetorical flourishes, you ought to know he was the sort of statist asshole who said things like “three generations of imbeciles are enough” whilst upholding the right of the government forcibly to sterilize people deemed undesirable.
In other words, when you throw around the “shout fire in a crowded theater” quote, you’re echoing the rhetoric of a tyranny-cheerleader whose logic was later abandoned by everyone, including himself.
September 2, 2014
September 1, 2014
In Forbes, Nick Sibilla explains how the city of Philadelphia uses the civil forfeiture laws to enrich city coffers and oppress the residents:
Chris Sourovelis has never had any trouble with the law or been accused of any crime. But that hasn’t stopped the City of Philadelphia from trying to take his home.
The Sourouvelis family, along with thousands of others in Philadelphia, is living a Kafkaesque nightmare: Their property is considered guilty; they must prove their innocence and the very prosecutors they’re fighting can profit from their misery. Now the Institute for Justice has filed a major class-action lawsuit to end these abuses of power.
Back in March, Chris’s son was caught selling $40 worth of drugs outside of the home. With no previous arrests or a prior record, a court ordered him to attend rehab. But the very day Sourovelis was driving his son to begin treatment, he got a frantic call from his wife. Without any prior notice, police evicted the Sourovelises and seized the house, using a little-known law known as “civil forfeiture.”
Law enforcement barred the family from living in their own home for over a week. The family could only return home if they banned their son from visiting and relinquished some of their constitutional rights. Adding to the cruel irony, their son has already completed rehab, ending his punishment by the city. “If this can happen to me and my family, it can happen to anybody,” Sourovelis said.
Under civil forfeiture, property owners do not have to be convicted of a crime, or even charged with one, to permanently lose their property. Instead, the government can forfeit a property if it’s found to “facilitate” a crime, no matter how tenuous the connection. So rather than sue the owner, in civil forfeiture proceedings, the government sues the property itself, leading to surreal case names like Commonwealth of Pennsylvania v. The Real Property and Improvements Known as 2544 N. Colorado St.
In other words, thanks to civil forfeiture, the government punishes innocent people for the crimes other people might have committed.
Update: As Eve Harris reminded me, civil forfeiture is not a US-only issue, and the police in British Columbia have been feeding cases to the province’s Civil Forfeiture Office (CFO) for further action even when no criminal charges are filed (and sometimes even when the police have violated Charter rights in the process). BC’s CFO was established in 2006 and since then has generated about $41 million in proceeds from civil forfeiture actions. Six other provinces also have civil forfeiture laws, but BC is leading the pack in the scale and scope of their activities. Eve also sent a link to a National Post article (which I can’t quote from without paying a licensing fee, which is why I rarely if ever link to that newspaper).
August 29, 2014
One of the biggest problems facing the Right these days is an inability to answer the question, “How should we live?” One reason for this is that we don’t want the government imposing an answer. Another reason is that we rightly don’t want to tell other people how to live. A third is that the conservatives who do try to tell everyone how to live are simply buzzkills and pariahs in the mainstream culture. A fourth reason is that we simply assume that the institutions of civil society that we draw meaning from are adequate for others to draw meaning from as well. And maybe they are — but something is stopping a lot of people from drawing sustenance from the Burkean little platoons of civil society. And, as a result, many are also having trouble making the most of what capitalism has to offer.
This was my point about how the Constitution is powerless against Satan. A healthy society should not have to resort to constitutional arguments to explain why building a shrine to devil-worshippers on public land next to the Ten Commandments is incredibly stupid. Indeed, if all you have left are constitutional arguments, you’ve lost.
“Today, the New Left is rushing in to fill the spiritual vacuum at the center of our free and capitalist society,” Irving Kristol wrote over three decades ago in Two Cheers for Capitalism. Indeed, because they are liberated from the need to pay tribute to the idols of the old order, the Left has always had an easier time telling people how they should live. Conservatives — who wish to conserve what is good or even eternal about the old order — are always at a disadvantage in this regard. (Our advantage is that our ideas may be boring but they have been proven to work. “What is conservatism?” Abraham Lincoln asked. “Is it not adherence to the old and tried, against the new and untried?”)
Thanks to the mostly healthy influence of libertarianism, conservatives have lost interest in making arguments about right and wrong, good and evil, honorable and dishonorable, preferring instead to fall back on the principles of the Constitution, federalism, and individual liberty. We’ve largely gotten out of the business of telling people how to live. And that’s probably a good thing, at least in most circumstances.
The problem is that the Left hasn’t gotten out of that business — at all. It is selling people an answer to “How should we live?” It’s fine for us to point out the deficiencies of their offer. But it would be nice if conservatives had a counter-offer that people wanted to hear.
Jonah Goldberg, “It’s Still Only Two Cheers for Capitalism”, The Goldberg File, 2014-01-31
August 28, 2014
Jonathan Adler on the odd blind spot among many conservatives who support states making local decisions (the 50 laboratories of democracy model), except when it comes to things like marijuana:
In 2014, voters in Colorado and Washington state voted to legalize marijuana possession within their states. This November, voters in Oregon, Alaska and the District of Columbia will get the chance to follow suit. Voters in Florida will also decide whether to join the approximately 20 states which allow marijuana possession and use for medicinal purposes. Whatever these states decide, however, marijuana will remain illegal under federal law.
Conservative Republicans often talk about the need to constrain the power of the federal government. On everything from environmental regulation to education policy, Republican officeholders argue that individual states should be able to adopt their own policy priorities, free from federal interference. Yet many of these same people are silent when the question turns to marijuana.
Earlier this year, the House of Representatives voted to cut off Drug Enforcement Administration funding for raids on medical marijuana dispensaries in states where medical marijuana is legal. The measure passed with the support of 49 Republicans. This is a significant increase over the last time such a limitation on the DEA had been proposed, when only 28 Republicans supported respecting state choices on medical marijuana, but it still represents less than one-quarter of the GOP caucus. So many Republicans who believe it’s federal overreach when federal law regulates health insurance or power plant emissions think its just fine when the federal government prohibits the possession of a plant, even where authorized under state law.
August 27, 2014
Published on 26 Aug 2014
“Just this whole process of going through the baby boom’s history, I began to realize what a nicer society — kinder, more decent society — that we live in today than the society when I was a kid,” says P.J. O’Rourke, best-selling author of Holidays in Hell, Parliament of Whores, and many other titles.
O’Rourke sat down with Reason‘s Nick Gillespie at Freedom Fest 2014 in Las Vegas to discuss his new book, The Baby Boom: How it Got That Way and It Wasn’t My Fault and I’ll Never Do it Again. As the father of three kids born between 1997 and 2004, he also lays down some thoughts about millennials, noting that they live in a much nicer, more tolerant world than the one in which he grew up. “I don’t think my 10-year old boy has ever been in a fist fight,” says O’Rourke, who was born in 1947. “I mean there might be a little scuffling but I don’t think he’s has ever had that kind of violent confrontation that was simply part of the package when I was a kid.”
He also feels that the internet “fragments information” in a way that destroys the sweep of history, at least at first. “You end up with mosaic information,” he says. “Now, I think over time the kids put these mosaics together but I don’t think the internet itself lends itself to the sweep of history.”
The interview also includes a tour of O’Rourke’s long and varied career in journalism, from his humble beginnings writing for an underground alt-weekly to his time as editor of National Lampoon and his incredible work as a foreign correspondent for Rolling Stone to his current position as columnist at the Daily Beast.
A prominent libertarian, O’Rourke also discusses the difficulties in selling a political philosophy devoted to taking power away from politicians.
“If libertarianism were easy to explain and if it weren’t so easy to exaggerate the effects of libertarianism — people walking around with ‘Legalize Heroin!’ buttons and so on — I think it would’ve been done already,” says O’Rourke. “But the problem is, of course, is that libertarianism isn’t political. It’s anti-political, really. It wants to take things out of the political arena.”
‘It’s now very common to hear people say, “I’m rather offended by that”, as if that gives them certain rights. It’s no more than a whine. It has no meaning, it has no purpose, it has no reason to be respected as a phrase. “I’m offended by that.” Well, so fucking what?’
Stephen Fry, quoted by David Smith in “I saw hate in a graveyard – Stephen Fry”, Guardian, 2005-06-05.
August 25, 2014
There is a price to be paid for divorcing actions and concepts from the words that describe them. Government, and the law that undergirds it, is made up of words. Devalue the words, strip them of meaning, and you do the same thing to the concepts those words describe. Action follows Thought, and for Thought to exist there must be the Word.
This was George Orwell’s central insight when he invented Newspeak for his novel 1984. Language doesn’t just describe what we think about, and allow us to communicate with each other; in a major way, it actually determines what we think about, and how we think. We conceptualize the way we do, even in the abstract, using constructs of language — even mathematics and computer code is a kind of language. Orwell understood that the Word could actually be turned into a weapon, an invisible knife to cut away a man’s ability to think (and thus, to act). All you have to do is convince a man that the Word he’s hearing means something other than what he thought it meant … or can mean anything, really. Or nothing at all. Science, history, literature, even music — they evaporate like a puddle in the hot sun because the Words used to build them stop conveying meaning.
Words have meaning. They must have meaning, for if we are to communicate at all we must transmit meaning from one person to another. This is perhaps the most unforgivable part of the postmodernist assault on the language itself: it has weakened our ability to even describe the loss of meaning.
Monty, “In the beginning was the Word”, Ace of Spades HQ, 2014-01-27.
August 20, 2014
Vice is not a venue that normally has nice things to say about any Republican, but they go out of their way to do so for Rand Paul in this profile by Grace Wyler:
For the past two years, from the moment Ron Paul called off the Revolution and headed back to Texas, the political establishment has been eagerly waiting for his son, Kentucky Senator Rand Paul, to run for president. They’ve watched with amusement as Paul popped up around the country — in Iowa and New Hampshire, at Evangelical powwows, Howard University, the ACLU — and at the top of early 2016 polls. Unlike his father, it’s hard to deny that he Paul is a “serious” candidate. But the idea that he could actually be elected President of the United States? That’s never been taken very seriously.
But with half of the GOP’s 2016 bench trying to avoid prison time and Democrats spinning their wheels in Obama’s second-term rut, the idea of a President Rand Paul is starting to sound less and less crazy. On issues like criminal justice reform, mass surveillance, and drug policy, Paul is casting himself as Another Option, carving out new space as the candidate who can make room for both small-government libertarians and other voters — young people and minorities, mostly — who don’t see either party as particularly effective or relevant. And some of what he’s saying makes a lot of sense.
Take Paul’s comments about the events in Ferguson, Missouri. In an op-ed published by Time on Thursday, the Kentucky Senator laid out a remarkably blunt, even angry, assessment of the racial tensions at the center of this week’s riots, linking policing issues to his broader critique of the federal government.
On other issues, too, Paul has been able to find unexpected common ground with voters outside of the aging, white GOP base. His views on issues like medical marijuana, federal sentencing laws, government spying, drones, and military intervention are much more closely aligned with public opinion — particularly among young voters — than those of any of his potential 2016 Republican rivals, and also of Hillary Clinton, the presumptive Democratic nominee. This is probably not, as last week’s New York Times Magazine suggested, the harbinger of some national libertarian moment. But it does give Paul the space to expand his appeal with the younger generation of voters — something the Republican Party admits it needs to do if it ever wants to win another presidential election.
August 19, 2014
I’ve posted items like this before, showing that President Obama is the least merciful president of modern times (and the only presidents less clement were Washington, Harrison, and Garfield). Now the New York Times editorial board joins the chorus:
On Jan. 20, 2009, in his last moments as president, George W. Bush gave Barack Obama a hard-earned bit of wisdom: whatever you do, he said, pick a pardon policy and stick with it.
It was sage advice, yet, more than five years later, President Obama has not heeded it. As a result, as one former pardon attorney has said, the clemency power is “the least respected and most misunderstood” power a president has. Yet it is granted explicitly by the Constitution as a crucial backstop to undo an unjust conviction or to temper unreasonably harsh punishments approved by lawmakers. It also can restore basic rights, like the right to vote, that many people lose upon being convicted.
In the past, presidents made good use of it, but as tough-on-crime policies became more popular, the number of grants fell dramatically. Judging by the numbers, Mr. Obama, who has, so far, granted just 62 clemency petitions, is the least merciful president in modern history.
Mr. Obama’s failure to wield the pardon power more forcefully is all the more frustrating when considered against the backdrop of endless accusations that he is exercising too much executive authority, sometimes — his critics say — arbitrarily if not illegally. In this case, he should take advantage of a crucial power that the Constitution unreservedly grants him.
As Jacob Sullum said, “Obama deserves credit for this amazing accomplishment: He has made Richard Nixon look like a softie.”
When this principle of “power corrupts” is the driving force behind a conservative’s approach to the legislative, executive, and judicial branches of government, why are so many conservatives unwilling to apply it to those who enforce many of the government’s laws? In the days since Michael Brown’s death, we’ve seen video footage of police firing teargas onto people’s private property (language warning). We’ve heard reports of police arresting journalists who were not engaging in any illegal activity. If power seems to be corrupting those charged with keeping the peace during the recent unrest in Ferguson, why do some conservatives refuse to consider the mere possibility that a police officer may have been corrupted by power in the event that sparked the unrest?
The answer is, I think, quite simple. For many conservatives, especially those of us living in nice, comfy suburbs, it’s hard to apply the “power corrupts” doctrine to law enforcement because we’ve never seen corrupted enforcers of the law. We’ve never been wrongly arrested. We’ve never witnessed our children put in jail based on the false reports of police officers. We’ve never seen our neighbors beaten or tazed without cause. And in the extremely unlikely scenario that a police officer drove into our neighborhood and murdered our unarmed friend in cold blood, we cannot possibly fathom a scenario where the justice system wouldn’t be on our side and where that police officer wouldn’t spend the rest of his life in jail. Therefore Brown must have been a violent, gang-sign flashing thug, foolish enough to think he could swipe a cop’s weapon because, in our minds, there’s no conceivable way that a police officer would gun down an innocent man.
But just because we don’t see the corruption of law enforcement in our own lives doesn’t mean that it doesn’t exist. Police brutality is not the Bogeyman. It’s not an urban legend witnessed by none but told by many. It’s not a myth created by a primitive tribe that is too simple to understand the true source of the brokenness in its communities. Black people believe in police brutality for the same reason they believe in rain — because they’ve felt it.
Hans Fiene, “Michael Brown And The Conservative Inconsistency”, The Federalist, 2014-08-15.
August 18, 2014
Two decades ago violent crime really was out of control, and it seemed reasonable to a lot of people that police needed to respond in a much more forceful way. We can argue forever about whether militarizing our police forces was an appropriate response to higher crime rates, but at least it was an understandable motivation. Later, police militarization got a further boost from 9/11, and again, that was at least an understandable response.
But at the same time the trend toward militarization started in the early 90s, the crime wave of the 70s and 80s finally crested and then began to ebb. Likewise, Al Qaeda terrorism never evolved into a serious local problem. We’ve spent the past two decades militarizing our police forces to respond to problems that never materialized, and now we’re stuck with them. We don’t need commando teams and SWAT units in every town in America to deal with either terrorism or an epidemic of crime, so they get used for other things instead. And that’s how we end up with debacles like Ferguson.
Police militarization was a mistake. You can argue that perhaps we didn’t know that at the time. No one knew in 1990 that crime was about to begin a dramatic long-term decline, and no one knew in 2001 that domestic terrorism would never become a serious threat. But we know now. There’s no longer even a thin excuse for arming our police forces this way.
Kevin Drum, “We Created a Policing Monster By Mistake”, Mother Jones, 2014-08-16.
August 17, 2014
Mark Steyn looks at the situation in Ferguson, Missouri and the larger problem of police militarization generally:
It’s important, when something goes wrong, to be clear about what it is that’s at issue. Talking up Michael Brown as this season’s Trayvonesque angel of peace and scholarship was foolish, and looting stores in his saintly memory even worse. But this week’s pictures from Ferguson [...] ought to be profoundly disquieting to those Americans of a non-looting bent.
The most basic problem is that we will never know for certain what happened. Why? Because the Ferguson cruiser did not have a camera recording the incident. That’s simply not credible. “Law” “enforcement” in Ferguson apparently has at its disposal tear gas, riot gear, armored vehicles and machine guns … but not a dashcam. That’s ridiculous. I remember a few years ago when my one-man police department in New Hampshire purchased a camera for its cruiser. It’s about as cheap and basic a police expense as there is.
Last year, my meek mild-mannered mumsy office manager was pulled over by an angry small-town cop in breach of her Fourth Amendment rights. The state lost in court because the officer’s artful narrative and the usual faked-up-after-the-fact incident report did not match the dashcam footage. Three years ago, I was pulled over by an unmarked vehicle in Vermont and (to put it mildly) erroneously ticketed. In court, I was withering about the department’s policy of no dashcams for unmarked cars, and traffic cops driving around pretending to be James Bond but without the super-secret spy camera. The judge loathed me (as judges tend to), but I won that case. In 2014, when a police cruiser doesn’t have a camera, it’s a conscious choice. And it should be regarded as such.
And, if we have to have federal subsidy programs for municipal police departments, we should scrap the one that gives them the second-hand military hardware from Tikrit and Kandahar and replace it with one that ensures every patrol car has a camera.
[...] when the police are dressed like combat troops, it’s not a fashion faux pas, it’s a fundamental misunderstanding of who they are. Forget the armored vehicles with the gun turrets, forget the faceless, helmeted, anonymous Robocops, and just listen to how these “policemen” talk. Look at the video as they’re arresting the New York Times and Huffington Post reporters. Watch the St Louis County deputy ordering everyone to leave, and then adding: “This is not up for discussion.”
Really? You’re a constable. You may be carrying on like the military commander of an occupying army faced with a rabble of revolting natives, but in the end you’re a constable. And the fact that you and your colleagues in that McDonald’s are comfortable speaking to your fellow citizens like this is part of the problem. The most important of the “nine principles of good policing” (formulated by the first two commissioners of the Metropolitan Police in 1829 and thereafter issued to every officer joining the force) is a very simple one: The police are the public and the public are the police. Not in Ferguson. Long before the teargassing begins and the bullets start flying, the way these guys talk is the first indication of how the remorseless militarization has corroded the soul of American policing.
August 16, 2014
Eric S. Raymond is with most other libertarians about the problems with having your police become more like an occupying army:
I join my voice to those of Rand Paul and other prominent libertarians who are reacting to the violence in Ferguson, Mo. by calling for the demilitarization of the U.S.’s police. Beyond question, the local civil police in the U.S. are too heavily armed and in many places have developed an adversarial attitude towards the civilians they serve, one that makes police overreactions and civil violence almost inevitable.
But I publish this blog in part because I think it is my duty to speak taboo and unspeakable truths. And there’s another injustice being done here: the specific assumption, common among civil libertarians, that police overreactions are being driven by institutional racism. I believe this is dangerously untrue and actually impedes effective thinking about how to prevent future outrages.
There are some unwelcome statistics which at least partly explain why young black men are more likely to be stopped by the police:
… the percentage of black males 15-24 in the general population is about 1%. If you add “mixed”, which is reasonable in order to correspond to a policeman’s category of “nonwhite”, it goes to about 2%.
That 2% is responsible for almost all of 52% of U.S. homicides. Or, to put it differently, by these figures a young black or “mixed” male is roughly 26 times more likely to be a homicidal threat than a random person outside that category – older or younger blacks, whites, hispanics, females, whatever. If the young male is unambiguously black that figure goes up, about doubling.
26 times more likely. That’s a lot. It means that even given very forgiving assumptions about differential rates of conviction and other factors we probably still have a difference in propensity to homicide (and other violent crimes for which its rates are an index, including rape, armed robbery, and hot burglary) of around 20:1. That’s being very generous, assuming that cumulative errors have thrown my calculations are off by up to a factor of 6 in the direction unfavorable to my argument.
Yeah, by all means let’s demilitarize the police. But let’s also stop screaming “racism” when, by the numbers, the bad shit that goes down with black male youths reflects a cop’s rational fear of that particular demographic – and not racism against blacks in general. Often the cops in these incidents are themselves black, a fact that media accounts tend to suppress.
What we can actually do about the implied problem is a larger question. (Decriminalizing drugs would be a good start.) But it’s one we can’t even begin to address rationally without seeing past the accusation of racism.
August 15, 2014
David Harsanyi responds to some thoughts by David Frum:
Can you imagine what Ferguson would look like if all these demonstrators were armed?
It’s a question that’s popped up in my Twitter feed in various forms over the past few days. And as my colleague Mollie Hemingway has already done a fine job of pointing out, many in the media revealed they have only a muddled understanding of gun rights.
But let’s go with David Frum’s hypothetical proposition, because it brings to mind a few broader points.
In this situation, it was the state that behaved as if it had been deployed for war, not the majority of protestors. Most civilians don’t use guns recklessly in these situations (or any, for that matter) for reasons of self-preservation and more vitally – and this may surprise some people – because most people have absolutely no desire to shoot at the police. Even protesting civilians. Even angry protesting civilians.
So a more appropriate observation might be: Isn’t it amazing that in a country with over 250 million guns in circulation, violent political protests are almost nonexistent?
I nearly pulled the end of this article as a QotD entry on its own:
In my understanding, owning guns for self-defense or sport are only secondary reasons to support the Second Amendment. Though gun advocates often shy away from making the case, the best and most vital purpose of an armed citizenry is to be a buttress against tyrannical government. Now, I’ve never owned a gun, and I have no reason to believe that the time for aiming muskets at government troops is close or inevitable. And if it needs to be pointed out, those who do are nuts. As tragic as events of Ferguson have been, the situation certainly doesn’t call for any armed rebellion.
And yet. When the police block Main Street with tanks and aim their high-powered rifles at unarmed protestors, I don’t think to myself: “Hey, thank goodness those citizens have no way to defend themselves.” Apparently some people do.
August 14, 2014
Most of the mainstream media is failing to do their job — investigating and reporting the news — so the most useful tidbits of information seem to be coming from sources like Twitter. Note that this isn’t verified, cross-referenced, and fact-checked … but neither is much of the mainstream news these days.
Militarized police are literally marching through #Ferguson, Missouri and ordering people into their homes.
— Anonymous (@YourAnonNews) August 13, 2014
— Wesley Lowery (@WesleyLowery) August 14, 2014
Also Ryan Reilly of Huff Po. Assaulted and arrested
— Wesley Lowery (@WesleyLowery) August 14, 2014
Released without any charges, no paperwork whatsoever
— Wesley Lowery (@WesleyLowery) August 14, 2014
Refusing to give us any names of the officers
— Wesley Lowery (@WesleyLowery) August 14, 2014
A cop in SWAT gear braying YOUR RIGHT TO ASSEMBLE IS NOT BEING VIOLATED from atop a tank is ludicrous in a way Terry Gilliam couldn't touch.
— Bo Bolander (@BBolander) August 14, 2014