Liberty & Power: Group Blog
Perhaps in a way history is repeating itself, as new polls show an increased support for the legalization of marijuana. An essay in The Christian Science Monitor reports that a poll conducted last week by Zogby International shows a nationwide majority support for legal pot, 52%, for the first time ever. This is up from an ABC News/Washington Post survey conducted last month which revealed 46% in favor of marijuana decriminalization. In addition, a recent poll of California voters had 56% of the respondents favoring taxation and regulation of legal cannabis. The article asserts that NORML deputy director Paul Armentano ”traces the changing stance to three developments: the economic downturn, which is forcing people to consider new sources of revenue; the violent Mexican drug war, which he says many Americans see as the result of prohibition of the drug trade and not directly linked to personal usage; and lastly, more experience with the drug.”
Cross posted on The Trebach Report
Jeffrey Rogers Hummel
President Obama’s “empathy” standard for choosing judges is not altogether new. In 1902, facing his first Supreme Court vacancy, President Theodore Roosevelt expressed a similar standard when he appointed Oliver Wendell Holmes. He told Senator Henry Cabot Lodge, “The ablest lawyers and greatest judges are men whose past has naturally brought them into close relationship with the wealthiest and most powerful clients, and I am glad when I can find a judge who has been able to preserve his aloofness of mind so as to keep his broad humanity of feeling and his sympathy for the class from which he has not drawn his clients. I think it eminently desirable that our Supreme Court should show in unmistakable fashion their entire sympathy with all proper effort to secure the most favorable possible consideration for the men who most need that consideration.”
Roosevelt particularly liked Holmes’ opinions in labor cases, for he expressed more sympathy for labor unions than most judges of his day. But TR was mostly interested in Holmes’ views on the emerging American empire. Shortly after the Spanish-American War, President Theodore Roosevelt was concerned that the Supreme Court might insist that all constitutional guarantees extended to our newly-acquired empire—in popular parlance, that “the Constitution follows the flag.” In 1902, TR sought and obtained a pledge from Holmes that he would not apply this standard. Holmes then lied to the press about his secret meeting with the President. He dutifully voted with the majority in the so-called Insular Cases, which held, for example that the right to a jury trial did not extend to Filipinos or Hawaiians.
Holmes became a hero to progressives and liberals first for his 1880 book, The Common Law. His approach to the law here stressed its evolutionary, developmental adaptability. Later theories of the “living constitution” often derive from Holmes. His most celebrated opinion came in 1905, when he dissented in Lochner v. New York. Here the Supreme Court overturned a state law that limited the hours that bakers could work, long regarded as the apex of “laissez-faire jurisprudence.” “This case is decided upon an economic theory which a large part of the country does not entertain,” Holmes quipped. “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” referring to a prominent Social Darwinist of the day. But even more amusing was the fact that Holmes himself was the only real Darwinist on the Court.
Al Alschuler, in his superb biography, Law Without Values, concluded, “The real Holmes was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak.” “Holmes had a brutal worldview and was indifferent to the welfare of others.” He “sneered at all political and moral causes except eugenics, which he supported in an especially chilling form by advocating the execution of ‘everyone below standard.’”
In 1927, Holmes wrote the opinion in Buck v. Bell, which upheld the compulsory sterilization laws of the states, which ultimately resulted in the sterilization of about sixty thousand Americans. “We have seen more than once that the public welfare may call upon the best citizens for their lives,” wrote the thrice-wounded Civil War veteran. “It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” In another pithy aphorism, he concluded, “Three generations of imbeciles are enough.” As cruel as this opinion was, it was toned down from an even harsher version at the behest of Chief Justice Taft.
For most of his career, Holmes really didn’t believe that there were any constitutional limits at all to government power. He advocated the complete separation of law and morality, writing, “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether,” he wrote, “and other words adopted which should convey legal ideas uncolored by anything outside the law.” He continued, “Manifestly… nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law.” Essentially, he thought that the majority had the power to impose its will on the minority, for good or ill. In 1873 he wrote that “It is no sufficient condemnation of legislation that it favors one class at the expense of another, for much or all legislation does that…. Legislation is necessarily a means by which a body, having the power, puts burdens which are disagreeable to them on the shoulders of somebody else.” Holmes himself confessed in 1919 that he had come “devilish near to believing that ‘might makes right.’” After the Second World War had shown the danger of such theories of unlimited governmental power, one law professor entitled an article “Hobbes, Holmes, and Hitler.”
Self-righteous progressives also abused many good judges whom they incorrectly believed did not meet their “empathy” standard. In 1930 Judge John J. Parker was effectively “borked” by New York Senator Robert F. Wagner. When Hoover nominated Parker, a North Carolina appellate court justice, labor and civil rights organizations lined up against him. The American Federation of Labor (AFL) opposed him because he had upheld lower-court injunctions that prevented the United Mine Workers from trying to organize workers who had signed “yellow-dog contracts”—agreements not to join a union—in the 1927 Red Jacket case. The National Association for the Advancement of Colored People (NAACP) attacked Parker because he had endorsed black disfranchisement in a 1920 gubernatorial campaign.
Wagner said, “I see a deep and fundamental consistency between Judge Parker’s views of labor relations and his reported attitude toward the colored people of the United States. They both spring from a single trait of character. Judged by the available record, he is obviously incapable of viewing with sympathy the aspirations of those who are aiming for a higher and better place in the world. His sympathies naturally flow out to those who are already on top, and he has used the authority of his office and the influence of his opinion to keep them on top and to restrain the strivings of the others, whether they be an exploited economic group or a minority racial group.”
As a cheap personal and psychological smear, this outdoes even Ted Kennedy on Robert Bork. Parker’s genuine working-class background and disdain for artificial privilege made it especially perverse. Moreover, the politics behind it were altogether fanciful. The AFL and NAACP did not work together to defeat Parker. Organized labor and blacks were extremely hostile to one another in the 1920s. AFL president William Green went out of his way to avoid being associated with NAACP president Walter White when they testified against Parker. And black organizations did not support the AFL’s campaign against labor injunctions. W. E. B. Du Bois, among the black leaders most sympathetic to organized labor, wrote, “this power of injunction has been used, not simply to protect capitalists and employers, it has been used to protect minority groups of employees against whom union labor discriminates. This is true especially of Negroes.”
Wagner was not alone in borking Judge Parker. Senate Judiciary Committee chairman George W. Norris added, “I want to see men put on the Supreme Court who have modern ideas and who are not so encrusted with ancient theories which existed in barbarous times that they are going to inflict human slavery on us now.” When Parker’s Senate supporters asked that the judge be permitted to appear before the committee to respond to his detractors, Norris refused.
The sharp-tongued Nebraska demagogue had also opposed Calvin Coolidge’s appointment of Harlan F. Stone in 1925, calling him a tool of Wall Street. He apologized for this after Stone “grew” into a reliable liberal. Norris voted to confirm when FDR elevated Stone to the chief justiceship.
To their credit, though, Parker’s opponents let the nomination go to the full Senate, even after the Judiciary Committee recommended his rejection. He was defeated on the floor by one vote. The Parker defeat seemed to have tremendous consequences. His seat was taken by Owen Roberts, who was the crucial swing vote that upheld New Deal legislation, including the Wagner Act.
But Parker might have grown to the left as well. In his 1946 eulogy to Stone, Parker called the idea that judges should be bound by the text of the Constitution, or adhere to the original intent of its framers and ratifiers, “delusions.”
Parker compiled a progressive record in his twenty-eight remaining years on the circuit court. He upheld New Deal legislation, and was temporarily reversed by a more conservative Supreme Court, including Roberts. He boldly (and uncharacteristically) ignored Supreme Court precedent in overturning Pennsylvania’s compulsory flag-salute law during World War II; the high court subsequently reversed itself and endorsed Parker’s civil-libertarian view. He rendered several decisions to uphold black voting rights, foiling South Carolina’s effort to limit primary voting to whites. After attempting to equalize spending on segregated schools, he accepted the Supreme Court’s Brown ruling. Parker also interpreted Brown as a requirement of desegregation, not integration—a dictum that held until the late 1960s.
Some borkers had consciences in the 1930s. Several senators, and FDR himself, later admitted that Parker had been treated unfairly. Some wanted an opportunity to right the wrong, but Parker was passed over for subsequent vacancies. Nobody knows how Parker might have developed as a Supreme Court Justice but, like Clement Haynesworrth and Robert Bork, he certainly didn’t deserve the malign treatment that he got.
TR’s cousin, FDR, also purported to adopt an “empathy” standard when appointing judges. He wrote to an adviser in 1936, “Dig me up fifteen or twenty youthful Lincolns from Manhattan and the Bronx. Thy must be liberal from belief and not by lip service… They must know what life in a tenement means.”
FDR’s first appointee to the Court was Hugo Black, who had a life membership in the Ku Klux Klan. His third choice was William O. Douglas. As Justice Richard Posner describes Bruce Allen Murphy’s excellent biography, Wild Bill, “Douglas turned out to be a liar to rival Baron Munchausen, and a great deal o0f patient digging was required to reconstruct his true life story. One of his typical lies, not only repeated in a judicial opinion but inscribed on his tombstone in Arlington National Cemetery, was that he had been a soldier in World War I. Douglas was never in the Armed Forces. The lie metastasized: a book about Arlington National Cemetery, published in 1986, reports: ‘Refusing to allow his polio to keep him from fighting for his nation during World War I, Douglas enlisted in the United States Army and fought in Europe.’ He never had polio, either.
“Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended. Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless--at once a big spender, a tightwad, and a sponge--who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.
“For at least a decade before he was felled in 1974 by the massive stroke that forced his retirement from the Court a year later, Douglas (perhaps as a consequence of his heavy drinking) had been deteriorating morally and psychologically from an already low level. The deterioration manifested itself in paranoid delusions, senile rages and sulks, sadistic treatment of his staff to the point where his law clerks--whom he described as ‘the lowest form of human life’--took to calling him ‘shithead’ behind his back, and increasingly bizarre behavior toward women, which included an assault in his office on an airline stewardess who had unsuspectingly accepted an invitation from this kindly seeming old man to visit him there.”
We can hope that President Obama has better luck choosing justices by the standard of “empathy.” But it would be better still if he found some other standard.
Jane S. Shaw
Well, my head is spinning. It could be the wine at dinner, but, rather, I suspect it is trying to read the emotional and combative reactions in the" comments" section.
The topic is provocative and worthy of reaction. But as David Beito encouraged us to do, next time could we bring such comments into the"open"? It would be better to engage in conversation that all can conveniently read. When one's response to controversial statements is encased in a section that is specialized and difficult to reach (well, lengthy scrolling may not be difficult but surely it reduces readership), the commentators are likely to be less thoughtful, more antagonistic, and even less logical.
So I encourage commentators to be generous -- share your views with all. Simply respond in a new post.
During the present recession, however, there is little doubt that labor-market conditions have deteriorated substantially - that many jobs have been “lost,” as people say. The most recent report from the Bureau of Labor Statistics (BLS) puts the unemployment rate for May 2009 at 9.4 percent, a rate greater than any reported since the recession of the early 1980s. During the recent economic expansion, the unemployment rate fell to a cyclical low in late 2006 and early 2007 of 4.4 percent. Since it last touched that low point, in March 2007, it has increased by 114 percent. Putting the matter in this way makes the economic bust appear to be already quite bad.
Some observers, hankering to make it look even worse, have called attention to a more encompassing concept of “unemployment” (though the BLS does not describe it in this way), which is produced by adding to the officially unemployed persons (1) those persons working part-time who say they would prefer to work full-time (9.1 million in May 2009) and (2) those persons who have left the labor force because, they say, they believe they could not find a job even if they tried (hence, “discouraged workers,” amounting to 0.8 million in May 2009). By my calculation, this bulked-up, unofficial measure of unemployment stood at 15.6 percent of the civilian labor force (including discouraged workers in the denominator, for consistency) in May 2009.
It is tempting to think of employment and unemployment as mirror images of the same phenomenon, but doing so may easily mislead us. The official rate of unemployment purports to measure the number of civilians not employed but actively seeking employment in the survey period as a percentage of the number of civilians who are either currently employed or actively seeking employment (that is, all those “in the civilian labor force”). When people leave employment, however, they may either become officially unemployed (if they continue to seek employment actively) or not (if they leave the labor force). Similarly, when people enter the civilian labor force, they may do so by becoming employed or by becoming unemployed (by actively seeking but not yet finding acceptable employment). Therefore, the ebb and flow of the labor force acts as a sort of buffer between official employment and official unemployment. Careful labor economists routinely monitor all of these variables, including the number of involuntarily part-time workers and the number of discouraged workers.
To some extent, these complications can be circumvented by paying attention not to unemployment, but to employment during the ups and downs of the economy’s aggregate fluctuations. Recently, for example, the number of civilians employed reached a peak in November 2007, when 146.665 million persons were reported as employed. By May 2009, the number of employed persons had fallen to 140.570 million, or by 4.2 percent.
So, depending on whether you wish to make the recession appear to be bad or not so bad, using official BLS data in both cases, you may say that the rate of civilian unemployment last month had risen 114 percent from its previous cyclical trough, or you may say that the number of civilians employed last month stood at 95.8 percent of its previous cyclical peak. That the public, the media, and the politicians tend to focus more on the former sort of statement than on the latter tells us something about the public’s fears, the media’s desire to gain the attention of readers and viewers by frightening them, and the politicians’ desire to validate a crisis in order to justify their actions as ostensible rescuers delivering life-saving “stimulus packages” and all the rest of their pseudo-salvation.
David T. Beito
‘While historians have properly acknowledged the contributions of clergymen and grassroots activists” to the civil-rights movement, write David T. Beito and Linda Royster Beito, “they have too often neglected those made by entrepreneurs and black professionals.” The Beitos’ new book — Black Maverick: T. R. M. Howard’s Fight for Civil Rights and Economic Power — begins to set the record straight.For the rest, see here .
Barack Obama and many others want the government to get into the health-insurance business. Very good. Is the government in any other kind of insurance? As a matter of fact, it is: flood insurance. It essentially has a monopoly. Here's a Reuters story about the House last month extending the"troubled [i.e., broke] program" for six months while postponing a comprehensive overhaul. Why does it need an overhaul?
The program has been deep in debt ever since the costly hurricane seasons of 2004 and 2005. Repeated rescue efforts have failed....
[T]he administration said it favors forgiving the 40-year-old program's $19 billion debt.
This would not be the first time the program was bailed out by Congress or had its huge debt forgiven. This trouble did not begin with Katrina. See this article I wrote 16 years ago. (Scroll down.)
About the postponement of comprehensive reform, Reuters reports that Financial Services Chairman Barney Frank"said discussion on repairing the program needed to be put off due to other pressing matters, including healthcare and financial regulation reforms."
Translation: Government can't fix what it's already screwed up right now because it's too busy screwing up some other things.
Jeffrey Rogers Hummel
Rogoff shows his political bias by leaving off the elimination of government programs as one of the theoretical options, although he may think of that as default. But he still has the dilemma right. He also appreciates the fundamental problem in the financial system:
"The right lesson from Lehman should be that the global financial system needs major changes in regulation and governance. The current safety net approach may work in the short term but will ultimately lead to ballooning and unsustainable government debts, particularly in the US and Europe."
Read the article here.
Hat Tip: Arnold Kling
David T. Beito
At the risk of sounding cruel, the politicians took over a brothel in Nevada and…you guessed it…ran it into the ground. The same organization is suddenly going to “save money” running hospitals. America, you deserve this.
Rogers agreed to do so. Whereas Calvin Coolidge had responded to requests that he run again by saying “I do not choose to run,” Rogers made his slogan “He chews to run.”
In his acceptance speech, he said:
Life’s offer has left me dazed—if I can stay dazed, I ought to make a perfect candidate. Now, let us be honest. We want the wet vote and we want the dry vote. Our plank hereby endorses wine for the rich, beer for the poor, and moonshine liquor for the prohibitionist.
Many famous persons, including Amelia Earhart, Babe Ruth, and Henry Ford, endorsed Rogers’s candidacy. In August, Rogers challenged Herbert Hoover to a joint debate, “in any joint you name,” but Hoover, who preferred a good cigar to a joint, did not meet the challenge (a fitting warm-up, no doubt, for a series of other challenges he would fail to meet from 1929 to 1933).
Although a number of voters wrote in Rogers’s name on their ballots in the November election, the political system was not ready for anyone running under the No Bunk banner, and, sad to say, Hoover was ultimately declared the winner. Said Rogers: “We went into this campaign to drive the Bunk out of politics. But our experiment, while noble in motive was a failure.” He concluded: “the thing that stopped our party is that we are a hundred years ahead of times.”
Who can deny that ever since 1928, without a doubt, political discourse in this country has consisted almost entirely of bunk? Where are the cowboy philosophers when we need them? Barack Obama, I understand, can’t even do a rope trick—but a growing number of Americans do seem to be concluding that he tricked them into voting for him last November by promising them “change.” If Rogers had been running in 2008, he might have promised the voters that he would change their flat tires.
Roderick T. Long
The Molinari Society will be holding its sixth annual Symposium in conjunction with the Eastern Division of the American Philosophical Association in New York City, December 27-30, 2009. Heres the latest schedule info:
GVIII-5. Tuesday, 29 December 2009, 11:15 a.m.1:15 p.m.As part of the APAs continuing policy to prevent free riders, theyre not telling us the name of the room until we get to the registration desk. As part of our policy of combating evil we will of course broadcast the name of the room far and wide as soon as we learn it.
Molinari Society Symposium: Intellectual Property: Is it Legitimate?
New York Marriott Marquis, 1535 Broadway, Room TBA
Bob Schaefer (independent scholar):Response to Kinsella: A Praxeological Look at Intellectual Property Rights
G. Nazan Bedirhanoğlu (SUNY Binghamton): History of the Reification of the Intellect
Charles Johnson (Molinari Institute)
Roderick T. Long (Auburn University)
Jennifer McKitrick (University of Nebraska-Lincoln)
Happily, we have once again avoided any schedule conflict with the Ayn Rand Society (Dec. 28th, 11:15-1:45), and we expect to avoid conflict with the American Association for the Philosophic Study of Society also.
Roderick T. Long
Im organising a panel on the topic of Free-Market Anti-Capitalism? (I put in the question mark to make it less scary for the faint of heart) at APEEs next conference (11-13 April, 2010, in Las Vegas); Ive got Sheldon Richman, Charles Johnson, and Shawn Wilbur lined up as presenters, and Steve Horwitz as discussant. (I plan just to moderate rather than present, unless someone drops out.)
Technically this is a proposed panel rather than a definite one, but when I first inquired about how to propose a panel, the response I received read, in part, Im very glad to know that you will be organizing a session for APEE 2010. Thanks for your interest and your efforts. I look forward to seeing you in Vegas, followed by info about uploading the panel details to the APEE website, so Im guessing approval is fairly pro forma.
Jane S. Shaw
As a former president of APEE, I can tell you that there is always a bit of a scramble to get panels together, so an early proposal is a bonanza. But just as assuredly, your reputation for an interest in liberty precedes you and commends you. And you are a philosopher, to boot! (APEE attendees tend to be economists.)
Jane S. Shaw
Herman convincingly argues that the Scottish Enlightenment thinkers such as Adam Smith, David Hume, and Adam Ferguson discovered the principles and concepts that ushered in the Industrial Revolution, forever changing the face of the world.
But how did that happen in that tiny, chilly, and rather poor country? Herman offers some hints but doesn’t quite pull it together. At the top of his list is “the Kirk.” At the end of the 17th century, the Scottish Presbyterian Church was narrow, rigid, and cruel, and Herman begins his story with the vicious execution of Thomas Aikenhead, a boy who foolishly said something blasphemous and died as a result.
But Herman also gives the Kirk, and especially John Knox, the fiery 16th-century preacher who brought Protestantism to Scotland, priority of place. Knox and his church initiated a long process of freeing men’s minds from obeisance to authority and moving toward freedom of conscience. The Kirk didn’t carry out the ideals of freedom but it seems to have embodied some habit of mind—something—that laid a foundation. It also played a role in achieving the high level of literacy that Scotland acquired.
Another contributing factor was the 1707 treaty of union, “a merger that fully absorbed Scotland into the kingdom of England,” in Herman’s words. Scotland’s submission was “drastic,” says Herman, and was expected to lead to disaster. Oddly enough, it “launched an economic boom” (probably because it opened up Britain’s overseas markets to Scottish trade). The new wealth must have made possible the leisurely contemplation that intellectuals engaged in (in Edinburgh and Glasgow, aided by large quantities of claret).
Stern Protestantism, widespread literacy, lack of political power (and thus finagling), economic growth—could these explain the Scottish Enlightenment? Maybe, if we add (as Herman does) the fact that Glasgow and Edinburgh were just a half a day apart by post coach, so that Adam Smith and his friends could share ideas, whichever city they lived in.
David T. Beito
Howard drove Cadillacs and Buicks, wore fancy clothes, and loved guns and big-game hunting. He praised free enterprise with a Booker T. Washington fervor, believing entrepreneurs to be better agents of change than activists. He once sighed for “one bomb that could be fashioned that would blow every Communist in America right back to Russia where they belong.” A flamboyant Second Amendment, anti-communist capitalist doesn’t please journalists and historians searching for civil-rights martyrs.
“Black Maverick,” though, makes room for exactly such a figure, and rightly so. That Howard made an important contribution is unquestionable.
Amy H. Sturgis
Jeffrey Rogers Hummel