So with the Bill of Rights. As adopted by the Fathers of the Republic, it was gross, crude, inelastic, a bit fanciful and transcendental. It specified the rights of a citizen, but it said nothing whatever about his duties. Since then, by the orderly processes of legislative science and by the even more subtle and beautiful devices of juridic art, it has been kneaded and mellowed into a far greater pliability and reasonableness. On the one hand, the citizen still retains the great privilege of membership in the most superb free nation ever witnessed on this earth. On the other hand, as a result of countless shrewd enactments and sagacious decisions, his natural lusts and appetites are held in laudable check, and he is thus kept in order and decorum. No artificial impediment stands in the way of his highest aspiration. He may become anything, including even a policeman. But once a policeman, he is protected by the legislative and judicial arms in the peculiar rights and prerogatives that go with his high office, including especially the right to jug the laity at his will, to sweat and mug them, to subject them to the third degree, and to subdue their resistance by beating out their brains. Those who are unaware of this are simply ignorant of the basic principles of American jurisprudence, as they have been exposed times without number by the courts of first instance and ratified in lofty terms by the Supreme Court of the United States. The one aim of the controlling decisions, magnificently attained, is to safeguard public order and the public security, and to substitute a judicial process for the inchoate and dangerous interaction of discordant egos.
Thus the law, statute, common and case, protects the free American against injustice. It is ignorance of that subtle and perfect process and not any special love of liberty per se that causes radicals of anti-American kidney to rage every time an officer of the gendarmerie, in the simple execution of his duty, knocks a citizen in the head. The gendarme plainly has an inherent and inalienable right to knock him in the head: it is an essential part of his general prerogative as a sworn officer of the public peace and a representative of the sovereign power of the state. He may, true enough, exercise that prerogative in a manner liable to challenge on the ground that it is imprudent and lacking in sound judgment. On such questions reasonable men may differ. But it must be obvious that the sane and decorous way to settle differences of opinion of that sort is not by public outcry and florid appeals to sentimentality, not by ill-disguised playing to class consciousness and anti-social prejudice, but by an orderly resort to the checks and remedies superimposed upon the Bill of Rights by the calm deliberation and austere logic of the courts of equity.
The law protects the citizen. But to get its protection he must show due respect for its wise and delicate processes.
H.L. Mencken, “The Nature of Liberty”, Prejudices, Third Series, 1922.
August 8, 2014
July 16, 2014
Virginia Postrel on the (insane) view that colleges and universities need to create special free speech zones — and to actively censor students and teachers outside those boundaries:
The vague bans on “offensive” language and other “politically correct” measures that most people think of when they imagine college speech codes are increasingly being joined by quarantine policies that restrict all student speech, regardless of its content.
Speech-zone rules require students to ask permission to do such things as hand out leaflets, collect petition signatures, or give speeches; demand that students apply days or weeks in advance; and corral their activities in tiny areas of the campus, often away from the main pathways and quads. The rules aren’t about noise or crowds. They aren’t about disrupting classes. They’re about what you can do in public outdoor areas, and they apply even to just one or two people engaged in unobtrusive activities. They significantly infringe on students’ constitutionally protected speech.
But judging from some of the public response to the Citrus College case, a lot of people think that’s just fine. Debating national security issues, they seem to think, has no place at state colleges.
“The creation of the free-speech zones, and the enforcement of sound-level ordinances, was not to prevent free speech, but give religious or political speech a time, place, and manner that would allow speakers to address their messages to audiences on campuses without disrupting the other fundamental functions of the institutions,” wrote a retired physics professor commenting on a Chronicle of Higher Education report.
“Isn’t an institution of higher education’s primary function … the education/learning and safety of its students? Anything that is considered distracting or obstructive of the primary goals has to be managed. If some students disagree, they are welcome to attend a different college,” wrote a commenter on a public-radio discussion of the case. Another declared: “I welcome the free speech zones. On some campuses in California, you cannot walk from a classroom to the library without being bombarded by propaganda.”
A campus, in this view, should be like a shopping mall. If you’re going about your business, you shouldn’t be bothered by pamphleteers and petitioners. You should be protected against sermons and political rants. Confining controversial speech to a small area is no different from telling the guy selling sunglasses that he’s got to rent a kiosk.
July 9, 2014
Mollie Hemingway says that media ignorance has become a serious problem:
The real problem is the arrogance that goes with the ignorance. Take Kate Zernike’s 2010 attempt at an expose of the ideas that motivate tea party activists that ran in the New York Times. She wrote:
But when it comes to ideology, it has reached back to dusty bookshelves for long-dormant ideas. It has resurrected once-obscure texts by dead writers — in some cases elevating them to best-seller status — to form a kind of Tea Party canon.
Who are these obscure authors of long-dormant ideas? She points to Friedrich Hayek, for one. Yes, the same Hayek who won the Nobel Memorial Prize in Economic Sciences in 1974 and died way, way back in … 1992. Whose Road To Serfdom was so obscure that it has never been out of print and was excerpted in Reader’s Digest, that obscure publication with only 17 million readers. The article doesn’t get around to actually providing any insight into these activists’ philosophy and it’s probably a good thing considering that this is what she has to say about “the rule of law”:
Ron Johnson, who entered politics through a Tea Party meeting and is now the Republican nominee for Senate in Wisconsin, asserted that the $20 billion escrow fund that the Obama administration forced BP to set up to pay damages from the Gulf of Mexico oil spill circumvented “the rule of law,” Hayek’s term for the unwritten code that prohibits the government from interfering with the pursuit of “personal ends and desires.”
Oh dear. Where to begin? How about with the fact that “rule of law” is not Hayek’s term. The concept goes back to, well, the beginning of Western Civilization and the term was popularized by a 19th century British jurist and constitutional theorist named A.V. Dicey. It’s not an unwritten code, by definition. The idea that this would be an obscure concept to someone says everything about Zernike and the team at the New York Times and precisely nothing about Ron Johnson or Hayek or that sector of citizens of the United States who retain support for the rule of law.
A few weeks ago, David Brat beat House Majority Leader Eric Cantor in a stunning upset. The media didn’t handle it well. You might say they freaked out. Among other things, reporters sounded the alarm about a phrase Brat used in his writings that, they said, suggested he was a dangerous extremist: “The government holds a monopoly on violence. Any law that we vote for is ultimately backed by the full force of our government and military.” As National Review‘s Charles C.W. Cooke noted:
“Unusual” and “eye-opening” was the New York Daily News’s petty verdict. In the Wall Street Journal, Reid Epstein insinuated darkly that the claim cast Brat as a modern-day fascist. And, for his part, Politico‘s Ben White suggested that the candidate’s remarks “on Neitzsche and the government monopoly on violence don’t make a whole lot of sense.”
Unusual, eye-opening, and non-sensical, perhaps, to people who had never studied what government is. But that group shouldn’t include political reporters, who could reasonably be expected to have passing familiarity with German sociologist Max Weber’s claim that “the modern state is a compulsory association which organizes domination. It has been successful in seeking to monopolize the legitimate use of physical force as a means of domination within a territory.”
Or take the Los Angeles Times‘ David Savage, who argued just last week that the Supreme Court’s decisions under Chief Justice John Roberts “rely on well-established rights, such as freedom of speech and free exercise of religion, but extend those rights for the first time to corporations, wealthy donors and conservatives.” Perhaps it’s just poorly written. Surely a man who has been responsible for informing Californians about the Supreme Court since 1986 doesn’t actually believe that conservatives, corporations or wealthy donors were not covered by the Bill of Rights until John Roberts came along. As James Taranto of the Wall Street Journal notes, “that is as ignorant as it is tendentious.”
July 5, 2014
Shikha Dalmia says that the relatively mild pro-liberty decisions from the US Supreme Court in this session have driven progressives wild. It’s hard to justify going to DEFCON-5 over Hobby Lobby or Harris … isn’t it?
This week, the United States Supreme Court handed down two rulings that are a victory for the liberties of religion, speech, and association enshrined in the First Amendment. That ought to be cause for a double celebration on July 4. But instead, the rulings, issued on the narrowest possible grounds, constitute a victory so modest — and have elicited a response from the left so hysterical — that anyone serious about liberty can’t help but be a little depressed right now.
The case that has attracted disproportionate attention is informally known as Hobby Lobby, and it challenged ObamaCare’s contraceptive mandate. This mandate requires all for-profit companies to provide all 20 forms of birth control approved by the FDA, including pills and “abortifacients,” even though they violate the Christian (Assembly of God, to be precise) convictions of the owners of Hobby Lobby, an arts and crafts chain in Texas, who were willing to cover “only” 16.
None of this, however, prevented the left from throwing a collective hissy-fit. Social media erupted into tiresome taunts of fascism. Ann Friedman called the ruling a “blow to reproductive rights” that made her want to issue “an outraged scream, sort of a combination groan-wail…while beating my fists against the desk on either side of my laptop.” (Hey Ann, be careful: A new laptop will cost you several years’ of contraceptive pills. Generic versions sell at Costco for $25 a month.)
Such moral huffing and puffing was also on display in response to the Supreme Court’s ruling in Harris vs. Quinn. That case involved the right of family members of disabled loved ones to offer care without having their state aid garnished by public unions. Harris, a mom who was providing home care to her 25-year-old disabled son, had sued the state of Illinois for forcing her to pay dues to a government union.
But what in the name of Jimmy Hoffa does looking after her son have to do with the union?
Apparently, because she receives state subsidies for caring for her son, Illinois, along with a dozen other states, considers her a “home health care worker.” This means she must submit to the exclusive representation of a government union in collective bargaining negotiations — even though she supports neither the union nor its goals.
June 29, 2014
Mark Steyn explains why it’s not a trivial thing to allow the Internal Revenue Service to operate as the financial wing of a political party:
… we’ve had a steady stream of emails from readers explaining that this is all well and good but it’s taxable income and what I really need to do is set up a 501(c)3 or 501(c)4 or 501(c)87 or some such as a vehicle for this campaign.
To which the answer is: well, we certainly considered the possibility, and a few years ago I might have entertained the notion. But not anymore. The National Organization for Marriage, which was founded to protect the pre-revisionist definition of marriage, is, in its various arms, both a 501(c)3 and a 501(c)4. As such, its tax returns are publicly available, but not its donor lists. Nevertheless, it is obliged to report its donors on Schedule B to the Internal Revenue Service. Someone at the IRS leaked the donor lists to a man called Matthew Meisel, a gay activist in Boston. Meisel in turn passed it on to the gay group Human Rights Campaign (whose president was a national co-chair of the Obama re-election campaign), and HRC in turn published the list of donors, which was subsequently re-published by The Huffington Post.
There’s no secret about why they’d do such a thing. As we know, if you disagree with progressive orthodoxy, you have no right to host a cable-TV home-decor show or give a commencement address at an American university or be a beauty-queen contestant. But that’s not enough for these groups. If you’re not a public figure, if you’re just a Californian who puts up a yard sign or a bumper sticker on Proposition Eight, your car will be keyed and your house defaced. And likewise, if you slip a check in the mail for a modest sum, it is necessary that you also be made an example of. Brandon Eich, Richard Raddon and Scott Eckern all lost prominent positions as chief executives because of their donations. But Marjorie Christoffersen, a 67-year-old Mormon who works in the El Coyote restaurant in Los Angeles, was forced to quit because she wrote a $100 check in support of Proposition Eight.
So, when it comes to the leaking of donor lists, we’re not dealing with anything “theoretically” or “potentially” “troubling”. These guys act on this information, and act hard, and they are willing to destroy your life for a hundred bucks.
This is nothing to do with whether you support or oppose same-sex marriage. This is about whether you support free speech, public advocacy, private advocacy and ultimately — one day soon — the sanctity of the ballot box, and whether you oppose a culture of partisan thuggery.
So how did leaking the National Organization for Marriage donor lists work out for the IRS? Well, after a two-year legal battle, the Government of the United States admitted wrongdoing and agreed to settle. For $50,000.
After two years in the toilet of American “justice”, I can tell you that 50 grand barely covers your tips to the courthouse washroom attendant. It’s nothing. The IRS budget is over $11 billion, so you figure out how many organizations’ donor lists they can leak for 50K a pop while still keeping it under “Miscellaneous” in the annual breakdown. $50,000 isn’t even a slap on the wrist — and this notwithstanding that the IRS, as it has in the Lois Lerner case, obstructed and lied, almost laughably: For example, they claimed that the leak was an inadvertent error by a low-level clerk called Wendy Peters in March 2011. But in February 2011 Mr Meisel, the gay activist, was already letting it be known that he had a source who could get him the info.
As in the Lerner case, the inconsistencies and obfuscations were irrelevant. Like Ms Lerner, Mr Meisel took the Fifth. The NOM asked the Department of Justice to grant Meisel immunity so that he could be persuaded to disclose what really happened. But Eric Holder’s corrupt Justice Department had already decided it wasn’t going to investigate the matter so it had no reason to grant Meisel immunity. The Fifth Amendment, a constitutional safeguard to protect the citizen against the state in potentially criminal matters, is being creatively transformed to protect the state against the citizens in matters for which a corrupt and selective Justice Department will never bring criminal prosecution.
So, when it comes to leaking confidential taxpayer information for partisan advantage, the IRS got away with it.
June 15, 2014
“Privilege” is a term that’s overused and misused in modern political discourse. Too often it’s used like a crass “shut up, I win” button in an argument. But “privilege” is sometimes an apt descriptive term of a human phenomenon: a person’s evaluation of a situation (like interaction with law enforcement) is colored by his or her own experiences, and those experiences are usually circumscribed by that person’s cultural identity and wealth. Any criminal defense attorney who has served affluent clients is familiar with this: such clients often conclude that they are a victim of a conspiracy, or of a “rogue cop” or “loose cannon prosecutor,” because their life experiences lead them to assume that the system can’t possibly treat all people the way they are being treated. By contrast, clients who have lived in poverty (or clients who are African-American or Latino) tend to recognize outrageous conduct in their case as the system working the way the system typically works — business as usual. In my post about the prosecution and death of Aaron Swartz, I argued that Swartz’ community showed such privilege in its reaction to his prosecution, seeing some sort of singular conspiracy where others saw the banal grinding of the system’s unfeeling wheels.
My advice to shut up is colored, in part, by privilege. I was reminded of this yesterday when Los Angeles County Sheriff’s Deputies searched Justin Bieber’s house. I praised Bieber for shutting up and declining to talk to the cops, and joked that criminal defense attorneys could shame clients into better practices by asking why they aren’t smarter than Justin Bieber.
But Justin Bieber and I — and many of my clients — share a crucial quality: we’re affluent and fortunate. This privilege makes us better able to endure the potential downside risks of shutting up. If we get arrested on a petty or bogus charge by a pissed-off cop, we can make bail. We won’t spend weeks or months in custody on that bogus charge because we can’t scrape together a few thousand dollars. Maybe we’ll spend the weekend in jail, because cops love to arrest you Friday afternoon, but we’ll get out in a few days at most, and in the meantime we won’t lose our jobs. Because we have families and support systems, if we do get thrown in jail on a bogus job by an angry cop, the Department of Child and Family Services won’t take away our children, plunging us into another broken system we have neither the money nor the knowledge to navigate. If the cops tow or impound our car, we can afford to pay the few hundred to few thousand dollars to get it out, and we won’t lose our jobs for lack of transportation. Even if we do lose our jobs because of a bogus and retaliatory arrest, we have savings, and families with savings, and we won’t swiftly lose our homes. If the police choose to retaliate against our silence with petty tickets and infractions and fines rather than arrest, we can fight them or absorb them.
That’s a privilege. Poor people don’t have it. Poor people live on the razor’s edge, and a bogus retaliatory arrest can destroy them. Retaliatory and capricious enforcement of petty crimes and infractions can destroy them financially. Police wield disproportionate power over them, and the criminal justice system and its agendas (like the War on Drugs) disproportionately impacts them. Police are more likely to use force against poor people and for the most part can do so without any significant risk of discipline.
When you and I weigh the downside risks of shutting up against the downside risks of talking, our downside risks are milder, and can be endured. People without our resources face a must starker choice: talk, and incriminate themselves, or shut up, and face an array of consequences they may not be equipped to survive.
Ken White, “The Privilege To Shut Up”, Popehat, 2014-01-15
June 13, 2014
Some great news on the privacy front, this time a decision handed down by the Supreme Court of Canada, as reported by Michael Geist:
This morning another voice entered the discussion and completely changed the debate. The Supreme Court of Canada issued its long-awaited R. v. Spencer decision, which examined the legality of voluntary warrantless disclosure of basic subscriber information to law enforcement. In a unanimous decision written by (Harper appointee) Justice Thomas Cromwell, the court issued a strong endorsement of Internet privacy, emphasizing the privacy importance of subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information except in exigent circumstances or under a reasonable law.
I discuss the implications below, but first some of the key findings. First, the Court recognizes that there is a privacy interest in subscriber information. While the government has consistently sought to downplay that interest, the court finds that the information is much more than a simple name and address, particular in the context of the Internet. As the court states:
the Internet has exponentially increased both the quality and quantity of information that is stored about Internet users. Browsing logs, for example, may provide detailed information about users’ interests. Search engines may gather records of users’ search terms. Advertisers may track their users across networks of websites, gathering an overview of their interests and concerns. “Cookies” may be used to track consumer habits and may provide information about the options selected within a website, which web pages were visited before and after the visit to the host website and any other personal information provided. The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous – by guarding the link between the information and the identity of the person to whom it relates – the user can in large measure be assured that the activity remains private.
Given all of this information, the privacy interest is about much more than just name and address.
Second, the court expands our understanding of informational privacy, concluding that there three conceptually distinct issues: privacy as secrecy, privacy as control, and privacy as anonymity. It is anonymity that is particularly notable as the court recognizes its importance within the context of Internet usage. Given the importance of the information and the ability to link anonymous Internet activities with an identifiable person, a high level of informational privacy is at stake.
in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.
Fourth, having concluded that obtaining subscriber information was a search with a reasonable expectation of privacy, the information was unconstitutionally obtained therefore led to an unlawful search. Addressing the impact of the PIPEDA voluntary disclosure clause, the court notes:
Since in the circumstances of this case the police do not have the power to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law, I do not see how they could gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information.
Update, 7 July: A few weeks later, the US Supreme Court also made a strong pro-privacy ruling, this one mandating a warrant for police to search the contents of a cellphone.
— Julia Angwin (@JuliaAngwin) June 25, 2014
Politico‘s Josh Gerstein has more on the ruling in in Riley v. California:
The Supreme Court’s blunt and unequivocal decision Wednesday giving Americans strong protection against arrest-related searches of their cell phones could also give a boost to lawsuits challenging the National Security Agency’s vast collection of phone call data.
Chief Justice John Roberts’s 28-page paean to digital privacy was like music to the ears of critics of the NSA’s metadata program, which sweeps up details on billions of calls and searches them for possible links to terrorist plots.
“This is a remarkably strong affirmation of privacy rights in a digital age,” said Marc Rotenberg of the Electronic Privacy Information Center. “The court found that digital data is different and that has constitutional significance, particularly in the realm of [the] Fourth Amendment…I think it also signals the end of the NSA program.”
Roberts’s opinion is replete with rhetoric warning about the privacy implications of access to data in individuals’ smart phones, including call logs, Web search records and location information. Many of the arguments parallel, or are virtually identical to, the ones privacy advocates have made about the dangers inherent in the NSA’s call metadata program.
May 5, 2014
A recent decision by a federal appeal court expands the already very broad opportunities for police and border agents to stop and search travellers near the US border:
A federal appeals court just ruled that the police have a legal right to stop, search and arrest you for innocent behavior including driving with your hands at the ten-and-two position on the steering wheel at 7:45 p.m., taking a scenic route and having acne.
To the Tenth U.S. Circuit Court of Appeals, these factors added up to fit the profile of a person smuggling undocumented immigrants and drugs. The court said, “Although the factors, in isolation, may be consistent with innocent travel … taken together they may amount to reasonable suspicion.”
In other words, the police can now stop you for no reason at all. Law enforcement just needs to add a sinister context to your behavior, and off you go to jail. The court endorsed this expansion of aggressive police behavior in USA v. Cindy Lee Westhoven, No. 13-2065.
Incredibly the court found that this scenario created a reasonable suspicion for an “investigative stop.” By inserting a context that would make every driver guilty, the court upheld this belligerent law enforcement:
The officer said he spotted the car because “her arms were ‘straight and locked out’ at a ‘ten-and-two position on the steering wheel,’ — as everyone is taught in driver’s ed in high school. He was also suspicious because the road was used primarily by locals in New Mexico, and Westhoven had Arizona plates. She had acne scarring, “indicating to him she might be a methamphetamine user.” He also thought the shopping was better in Tucson than Douglas, so this was also “suspicious.”
“The dark tinted windows on Ms. Westhoven’s truck raised Agent Semmerling’s suspicion that she might be concealing something or someone in the back of her truck,” the court added.
The time happened to be between a 6-to-8 p.m. border patrol shift change, and the cop inferred that Westhoven was a smuggler trying to exploit that two-hour window. Westhoven was nervous, taking long pauses and shaking — which apparently signaled criminality.
The final nail for Westhoven was that she had two cell phones visible in the car. The cop said this was a common practice for drug smugglers. It is also common for people who have a business phone and a personal phone.
April 17, 2014
I haven’t been following the situation in Nevada between the armed forces of the Bureau of Land Management and the armed citizenry in support of rancher Cliven Bundy, but while my sympathies normally go toward the individual rather than the state, this case doesn’t appear to be clear-cut (and Bundy is clearly in violation of the law to some degree). Kevin Williamson seems to be in the same general state of mind:
Deserts always feel like my natural habitat, and I am very fond of them. That being said, I have, for my sins, spent a fair amount of time in Clark County, Nev., and it is not the loveliest stretch of desert in these United States, or even in the top twelve. Protecting the pristine beauty of the sun-baked and dust-caked outskirts of Las Vegas and its charismatic fauna from grazing cattle — which the Bureau of Land Management seems to regard as an Old Testament plague — seems to me to be something less than a critical national priority. At the same time, the federal government’s fundamental responsibility, which is defending the physical security of the country, is handled with remarkable nonchalance: Millions upon millions upon millions of people have crossed our borders illegally and continue to reside within them. Cliven Bundy’s cattle are treated as trespassers, and federal agents have been dispatched to rectify that trespass; at the same time, millions of illegal aliens present within our borders are treated as an inevitability that must be accommodated. In practice, our national borders are a joke, but the borders of that arid haven upon which ambles the merry Mojave desert tortoise are sacrosanct.
The relevant facts are these: 1) Very powerful political interests in Washington insist upon the scrupulous enforcement of environmental laws, and if that diminishes the interests of private property owners, so much the better, in their view. 2) Very powerful political interests in Washington do not wish to see the scrupulous enforcement of immigration laws, and if that undercuts the bottom end of the labor market or boosts Democrats’ long-term chances in Texas, so much the better, in their view.
This isn’t the rule of law. This is the rule of narrow, parochial, self-interested political factions masquerading as the rule of law.
If we are to have the rule of law, then, by all means, let’s have the rule of law: Shut down those federal subsidies and IRS penalties in states that did not create their own exchanges under the Affordable Care Act — the law plainly does not empower the federal government to treat federal exchanges identically to state exchanges. And let’s enforce the ACA’s deadlines with the same scrupulosity with which the IRS enforces its deadlines. Let’s see Lois Lerner and a few hundred IRS employees thrown in the hole for their misappropriation of federal resources, lying to Congress, etc. — and let’s at least look into prosecuting some elected Democrats for suborning those actions. And if you want to get to the real problem with illegal immigration, let’s frog-march a few CEOs, restaurateurs, and small-time contractors off to prison for violating our immigration laws — and they can carry a GM product-safety manager and a National Highway Traffic Safety Administration executive under each arm. Let’s talk about enumerated powers.
H/T to Jon, my former virtual landlord, for the link.
March 4, 2014
An editorial from last weekend’s Independent:
What the All Party Parliamentary Group on Prostitution broadly proposes is Nordic-style reform, which is what the European Parliament also backed last week. This would shift the burden of prosecution from mostly women sellers to mostly male buyers and pimps. MPs are right to say that one of the root problems with Britain’s laws on the sex trade is that they send conflicting messages about who is in the wrong. If trafficked women, especially, are to be helped, they must be assured that the law is on their side. It is why the MPs want the mass of current legislation consolidated into a single Act, which makes it clear that only those who purchase sex will feel the rigours of the law.
Change along these lines will bitterly disappoint libertarians who want to see the sex trade fully legalised on Dutch or German lines. There is also an argument that it is illogical – another mixed message – to penalise the purchase of sex but not the sale. But, a counter-argument, which the authorities in Sweden, Norway and Iceland deploy with some justification, is that “redistributing guilt” over the sale of sex undoubtedly benefits women who have felt trapped into prostitution and makes life much harder for pimps and traffickers.
The underlying idea is that because many people (especially politicians) dislike the idea that women sell their bodies, it should be made illegal. The troubling reality that a lot of prostitutes are voluntarily in the business requires the would-be banners to come up with a justification that somehow invalidates the individual decisions of those women. The ongoing moral panic over human trafficking is the current choice of vehicle for that. Tim Worstall:
The only possible claim that can be made in favour of the banning of prostitution, or even of the declaration that it is something wrong that we would like to minimise, is that it represents some form of slavery in which people are forced to do things they do not agree to doing voluntarily.
And that is indeed the claim that is being made, see that reference to “trafficking” in the Independent. However, the one thing that we do in fact know about the “slavery” in prostitution is that it doesn’t, in this country at least, actually exist. For we had a plan whereby every single police force in the country went out looking for people who were indeed sex slaves. People who were being forced, against their will, into prostitution (ie, repeatedly raped, a vile crime). And when they had a look through all of the brothels, working flats, saunas and street walkers they could find not one single police force was able to come up with sufficient evidence to charge anyone at all with the crime of holding someone in such sex slavery. Operation Pentameter it was called and it’s the biggest refutation of the hysterical case about trafficking that could possibly have been devised.
The vision some have of people being forced onto the game is simply untrue. What we do in fact have is consenting adults deciding to offer such services as they wish to offer for the cash being proferred to them. And this isn’t something that requires customers to be made into criminals: nor is it something that requires suppliers to be made into criminals either. It’s just not something that requires anyone at all to be made into a criminal. It’s consenting adults deciding what to do with their own bodies.
Update: The Canadian government is conducting a survey on what to do in the wake of the Supreme Court decision that struck down key parts of Canada’s prostitution laws last year. You can participate in the survey here. The public consultation period lasts until March 17.
On December 20, 2013, in the case of Bedford v. Attorney General of Canada 1, the Supreme Court of Canada found three Criminal Code prostitution offences to be unconstitutional and of no force or effect. This decision gives Parliament one year to respond before the judgment takes effect. Input received through this consultation will inform the Government’s response to the Bedford decision.
You will find some specific questions on this issue at the end of this document. To put them in context, here is a brief overview of the current criminal laws addressing prostitution, the Bedford decision, and existing international approaches to prostitution.
H/T to Maggie McNeil for the link.
February 11, 2014
February 4, 2014
Jonah Goldberg makes a case (that might not sit well with many SoCons) that social conservatism is actually more fundamentally libertarian than modern liberalism:
I guess where I’d disagree with Siegel’s formulation (and Vin’s) is the idea that liberalism is necessarily “radically civil-libertarian” about much of anything. Of course, individual liberals may be civil-libertarians. I can certainly think of plenty who are. But as an intellectual, cultural and political project, I think liberalism is better understood as a competing value system. Think of it this way. Social conservatism is very libertarian about all sorts of things, and not libertarian about other things. Constitutional considerations aside, where it believes the State shouldn’t interfere it is because non-interference advances a cultural agenda of traditional conservatism.
The same goes for liberalism. It celebrates certain lifestyles or cultural choices because it likes the content or fruits of those choices. It is a mistake, it seems to me, to say liberals are libertarian about much of anything. They are outraged about alleged intrusions into our privacy when it comes to the NSA, but utterly dismissive of potentially far greater intrusions into our private lives via things like Obamacare.
Consider gun rights. Yes, conservatives believe in second amendment rights because they are in the Constitution. But they also value a culture of self-sufficiency, self-defense and a traditional understanding of individual sovereignty. (Relatedly, I think it’s fair to say that hunting culture is inherently conservative and, very broadly speaking, anathema to much of liberal culture). Liberals dislike gun rights, because they detest gun culture (their Constitutional arguments in this regard have always struck me as nearest-weapon-to-hand debating points and rationalizations given their general disdain for Constitutional literalism in nearly every other regard) and see gun violence as a kind of public health issue, which means the State should have an unlimited license to deal with it. The right of armed self-defense also offends the State’s monopoly on violence, and liberalism is a jealous guardian of State power. Liberals talk a great game about being libertarian when it comes to sexual politics, but have no problem politicizing other, equally personal, choices: like what you can eat, or what you can say (I’m thinking of things like campus speech codes). Moreover, the recent push to socialize the provision of birth control (and abortion) is hardly a libertarian enterprise.
Oh, a quick addendum, lest I be greeted with the usual scoffing at the suggestion that social conservatism is more libertarian than liberalism.
I would argue — and have argued for years — that mainstream conservatism is vastly more libertarian than liberalism for a number of reasons. I’ll list four. Law, Metaphysics, Economics and the Family.
1) Mainstream conservatism actually takes the Constitution seriously, which means that written into conservatism is a very real limit on what the State can do to advance a cultural agenda.
2) Metaphysically, conservatism draws heavily on Judeo-Christian values, and therefore has a constrained vision about the limits of social and individual perfectibility and the power of the State to achieve such things. Liberalism, as Bill Voegeli, Thomas Sowell and others have argued, has no such limiting principles because at its core it is an unconstrained vision.
3) Economically, conservatism and libertarianism while not entirely identical overlap considerably. This means we actually believe that there’s a very limited positive role for the State to second guess the allocation of resources in the market place or to spend money better than the people who earn it.
4) Conservatism, unlike liberalism, considers the family a near-sacrosanct institution that should be an oasis from government meddling (barring instances of abuse and the like). The family, for liberals is the last nut to crack. Which is why people like Melissa Harris Perry can talk about “public ownership” of children or in the words of Hillary Clinton talk about how we need to move away from the idea there is any such thing as somebody else’s child.
I could go on, but I think those four should do for now.
January 21, 2014
It’s been many years since I watched an episode of Coronation Street, so I was a bit surprised to find that the show’s writers are “political”, at least on some issues:
Many a soap-opera storyline has created a news story in itself. So it was in the case of Hayley Cropper, a character on a British soap, Coronation Street. News of what happens to Hayley, in an episode to be shown tonight, created a furore when the press release for the story went out last Tuesday. The dilemma for the writers was how to kill off a character who had been a mainstay of the programme since 1998, when she was introduced as the first transsexual character. The answer, provided by producer Stuart Blackburn, was to have the character dying of pancreatic cancer, but finishing herself off with a cocktail of drugs in an on-screen suicide.
Julie Hesmondhalgh, the actor who plays Hayley, called for a discussion on legalising assisted suicide. She was backed by Sara Wootton, chief executive of Dignity in Dying, who praised the show’s ‘sensible and sensitive handling of assisted dying’. Lord Falconer, whose Assisted Dying Bill will be introduced in the House of Lords in the coming months, penned an article in the Sun. The Sun’s editorial called for a change in the law and the newspaper published the results of a poll indicating that 69 per cent of Britons support the legalisation of assisted suicide for the terminally ill.
It is difficult not to suspect – despite the even-handedness of the treatment of the issue (the character’s on-screen husband, Roy Cropper, opposes Hayley’s decision) – that the programme is part of the well-funded campaign to legalise assisted suicide. Stuart Blackburn had previously explored the same issue while at a rival soap, Emmerdale. (He perhaps risks becoming the Jack Kevorkian of the soap world.) Hesmondhalgh was forthright about her support for a change in the law in several interviews, and many journalists seem poised to call again for the legalisation of assisted suicide.
But it is entirely appropriate that a fictional plotline is used to promote legalising assisted suicide. The reason that so many people wish to have the ‘right to die’ is based on the morbid imagination of the ‘worried well’, traded on so effectively by right-to-die campaigners. ‘What if it happened to YOU…?’ is the plotline of Dignity in Dying and other organisations that campaign for legalised assisted suicide.
There are arguments on both sides of this issue (personally, I’m in favour of making it legal), but there are concerns that less-than-scrupulous family members might attempt to “hurry” an elderly or infirm parent or relative to a decision that wouldn’t really be voluntary.
It’s also an issue that came up this weekend, as one of my online acquaintances (we’d never met in person, but we both belonged to a special interest mailing list and had had several email discussions) committed suicide with his wife last week. Maarten and Irma apparently faced an unpleasant future in their declining years and mutually decided that their time had come. While euthanasia is legal in the Netherlands, it does not seem that Maarten and Irma followed the letter of the law in their case:
Euthanasia in the Netherlands is regulated by the “Termination of Life on Request and Assisted Suicide (Review Procedures) Act” from 2002. It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with criteria of due care. These criteria concern the patient’s request, the patient’s suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. To demonstrate their compliance, the Act requires physicians to report euthanasia to a review committee.
The family is, understandably, not providing a lot of detail but said that they were found in bed, hand in hand and “together, peaceful and loving” but did not specify how they had died.
Becoming dependent on whomever or whatever, or seeing your partner slowly fading away, are situations we do not ever want to contemplate, therefore we have, in good health, clear of mind, together 150 years old, in our own bed, hand in hand, ended our lives.
At risk of sounding trite, I’m saddened that they chose to do this, but I respect their right to make that decision. It cannot have been an easy one. Rest in peace.
December 3, 2013
In the latest Libertarian Enterprise, L. Neil Smith provides a thumbnail sketch of the reasons for the first amendments to the US constitution:
While some of this nation’s Founding Fathers — Thomas Jefferson, Patrick Henry, George Mason — were intent, first and foremost, to create a new country in which individual liberty and free enterprise would be the order of the day, there were others, like Alexander Hamilton, who regarded the fledgling America as his personal piggy bank.
You will have been taught that the Articles of Confederation, our first “operating system” were deeply flawed, The truth is that they provided for an extremely decentralized governance that stood as an obstacle to the vast fortunes Hamilton and his cronies had hoped to amass.
The Articles had to go, and it is revealing that among Hamilton’s first acts as Treasury Secretary under the Constitution that replaced them was a national excise tax on whiskey that, as readers of my novel The Probability Broach know, very nearly sparked a second American Revolution.
Corn farmers of western Pennsylvania long accustomed to turning their crop into a less perishable, more transportable product, were among the first victims of democracy American-style, the kind where three coyotes and a lamb sit down to debate on what’s going to be for dinner.
Nevertheless, that’s why a few stiff-necked libertarian-types, like Jefferson, held out for a Bill of Rights to be added to the new Constitution, and it was written, more or less to Jefferson’s order, by his close friend, James Madison, one of the few Federalists who was genuinely interested in assuaging the Anti-Federalists about the new document.
The Bill of Rights was, unfortunately misnamed. It was not a list of things Americans were allowed too do, under the Constitution. It was and remains a list of things government is absolutely forbidden to do — like set up a state religion, or steal your house — under any circumstances.
The Bill of Rights was the make-or-break condition that allowed the Constitution to be ratified. No Bill of Rights, no Constitution. And since all political authority in America “trickles down” from the Constitution, no Constitution no government. And, since the Bill of Rights was passed as a unit, a single breach, in any one of the ten articles, breaches them all and with them, the entire Constitution. Every last bit of the authority that derives from it becomes null and void.
November 30, 2013
The Electronic Frontier Foundation explains why you should worry about omnipresent government surveillance:
There are a few ways to respond to this, depending on what you think will work best for the person raising the question.
- Point out how mass surveillance leaves you at the mercy of not only the NSA, but also to the DEA, the FBI and even the IRS. We know that the government claims that any evidence of a “crime” can be sent to the appropriate law enforcement agencies.
- Tell them that, even if you don’t think you have something to hide, it’s possible the government thinks you do, or can create some concern about you (or your friends or loved ones). There are so many laws and regulations on the books, Rep. Jim Sensenbrenner said the Congressional Research Service did not have the resources to count them all. One legal expert has argued that the average person likely commits three felonies a day without ever realizing. So, you may be technically breaking a law you have no idea about.
- We all benefit from a system that allows privacy. For example, when journalists can speak to sources without the specter of surveillance, helping fuel investigative journalism and the free flow of information. And this is not just a hypothetical — the Department of Justice subpoenaed the phone records of Associated Press journalists in an effort to track down government whistleblowers. And it’s not just journalists. Activists, political organizers, lawyers, individuals conducting sensitive research, businesses that want to keep their strategies confidential, and many others rely on secure, private, surveillance-free communication.