Jacob Huebert – The Libertarian Standard http://libertarianstandard.com Property - Prosperity - Peace Wed, 27 Apr 2016 06:16:21 +0000 en-US hourly 1 https://wordpress.org/?v=4.5.3 A new website and group blog of radical Austro-libertarians, shining the light of reason on truth and justice. Jacob Huebert – The Libertarian Standard clean Jacob Huebert – The Libertarian Standard thelibertarianstandard@gmail.com thelibertarianstandard@gmail.com (Jacob Huebert – The Libertarian Standard) CC-BY Property - Prosperity - Peace Jacob Huebert – The Libertarian Standard http://libertarianstandard.com/wp-content/plugins/powerpress/rss_default.jpg http://libertarianstandard.com TV-G Walter Block Says Legalize Blackmail http://libertarianstandard.com/2014/01/22/walter-block-says-legalize-blackmail/ http://libertarianstandard.com/2014/01/22/walter-block-says-legalize-blackmail/#comments Thu, 23 Jan 2014 03:34:38 +0000 http://libertarianstandard.com/?p=12842 blackmailI was fortunate enough to get a PDF preview of Walter Block’s new book, Legalize Blackmail, before it was published, and today I was delighted to receive my hardcover copy in the mail.

The book is a collection of  Block’s essays on the subject of blackmail — specifically, why he believes it should be legal as a matter of libertarian principle — including rebuttals of many other scholars’ opinions. It’s the most thorough libertarian treatment of this subject that has ever been published or, I am  confident, ever will be. And because it’s from Block, it’s a great read besides.

As I say in a blurb on the book’s back cover: “If you want to understand the libertarian position on blackmail, read this book. If you’ve taken it for granted that we need laws against blackmail, Walter Block will challenge your assumptions with provocative arguments you’ll find difficult to refute.”

Order it here.

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Dallas Buyers Club http://libertarianstandard.com/2014/01/11/dallas-buyers-club/ http://libertarianstandard.com/2014/01/11/dallas-buyers-club/#comments Sun, 12 Jan 2014 04:06:30 +0000 http://libertarianstandard.com/?p=12808 dallas-buyers-club-poster-570x844A recent post by Jeffrey Tucker identifies a common theme in many of today’s movies: “powerful people are not our friends but our enemies – so if we want to have a free and flourishing life, we are going to have to get busy and figure out how to make it happen.”

One movie in theaters now that reflects this message as much as any is Dallas Buyers Club, which is based on the true story of Ron Woodruff, an electrician and rodeo enthusiast diagnosed with AIDS and given 30 days to live in 1985.

Soon after his diagnosis, Woodruff (Matthew McConaughey) learns that there’s a drug for treating AIDS, AZT, but it’s still in FDA trials. He can participate in a trial, but he won’t know whether he’s getting the real drug or a placebo. Understandably, he doesn’t find this satisfactory.

Woodruff’s efforts to get a reliable source of AZT lead him to a clinic in Mexico, where he’s told that AZT is actually harmful — in fact, it did seem to be making his condition worse — and that there are other AIDS drugs that aren’t available in the U.S., thanks once again to the FDA. The clinic gives him DDC and the protein Peptide T instead. Soon he’s getting them not only for himself but also for many other AIDS patients, distributing them through a “buyers club” he starts with a transgender woman (Jared Leto). When the supplies in Mexico run short, he starts traveling to other countries, such as Japan and Israel, to get more, convincing customs officials that it’s all for his personal use.

Eventually FDA agents raid the club and take all the DDC. Woodruff sues to at least be allowed to distribute the non-toxic Peptide T but loses.

Through all of this, the FDA is portrayed as a nothing but a villain for stopping terminally ill people from getting treatments they believe will help them. Woodruff, on the other hand, is portrayed as a hero for defying the feds — even as he makes lots of money doing so. What a change from movies of past decades, where the businessman was always the villain and government agents always saved the day!

A title card at the end informs that AZT later proved to be an effective treatment in lower doses, but I doubt anyone will walk away thinking this vindicates the FDA. The movie’s message is that people should be free to make their own health decisions.

Artistically, the film is watchable if not especially ambitious. The story is told straightforwardly and is compelling without indulging in melodrama. McConaughey gives a great performance as a once-bigoted cowboy who improves as he befriends and serves his fellow patients, and Leto is quite good, too. Although the movie takes place in the 1980s, the filmmakers don’t give consistent attention to period details — look closely and you’ll see present-day stuff sitting around. And it is somewhat annoying to learn from the internet that many things in the film — though not the stuff about the drug smuggling and the FDA — are fictional, including Woodruff’s bull riding, Leto’s character, and Jennifer Garner’s sympathetic doctor character.

Still, Dallas Buyers Club is much better than most movies and about as libertarian as they come, so I highly recommend it.

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America’s First Legal Marijuana Purchase Happened a Long Time Ago http://libertarianstandard.com/2014/01/02/americas-first-legal-marijuana-purchase-happened-a-long-time-ago/ http://libertarianstandard.com/2014/01/02/americas-first-legal-marijuana-purchase-happened-a-long-time-ago/#comments Fri, 03 Jan 2014 01:31:45 +0000 http://libertarianstandard.com/?p=12770 TMZ calls 32-year-old Coloradan Sean Azzariti “the first man to make a legal weed purchase in the United States…  ever.”

But of course that’s wrong — and not just because people have been buying it legally for years in California, where getting a “prescription” couldn’t be much easier and marijuana shops abound in strip malls.

People somehow forget — or don’t know — that marijuana was legal in most of the country for most of U.S. history and everything was just fine.

So for those who aren’t familiar with this history, here’s a brief overview from my book, Libertarianism Today:

Cocaine and narcotics prohibition came about for dubious reasons — pleasing China, the pharmaceutical industry’s desire to eliminate competition, bigotry, World War I, and fanatical temperance activists — but the decision to prohibit marijuana was even less justifiable.

In 1930, the government established the Federal Bureau of Narcotics, led by Commissioner Harry Anslinger. In his position, Anslinger essentially decided who could legally manufacture narcotics for medical purposes in the United States, and he granted that privilege to just a handful of companies. In exchange for favorable treatment, these companies would otherwise do Anslinger’s bidding; specifically, they would provide Congressional testimony as needed, including, when Anslinger wanted it, testimony as to the great potential harm of marijuana.

It is odd that anyone would have pursued marijuana prohibition in the 1930s, if only because so few people used it, but Anslinger targeted it anyway. No one is sure why, but one suggested reason is because, like any bureaucracy, the Federal Bureau of Narcotics had to justify its budget, particularly during the Great Depression. Plus, some suggest, Anslinger and the bureau wanted publicity.

During the 1930s, Anslinger and the Federal Bureau of Narcotics launched a propaganda campaign against pot. In speeches, Anslinger declared: “Take all the good in Dr. Jekyll and the worst in Mr. Hyde — the result is opium. Marihuana may be considered more harmful. . . . It is Mr. Hyde alone.” The bureau was eager to provide “information” on the putative dangers of marijuana to journalists; marijuana horror stories began to appear in newspapers and periodicals, virtually all of them acknowledging Anslinger’s bureau or its publications for their “facts.” A 1934 St. Louis Post-Dispatch article described the effects of marijuana:

[T]he physical attack of marijuana upon the body is rapid and devastating. In the initial stages, the skin turns a peculiar yellow color, the lips become discolored, dried and cracked. Soon the mouth is affected, the gums are inflamed and softened. Then the teeth are loosened and eventually, if the habit is persisted in, they fall out. . . . [People in traveling jazz bands] take a few puffs off a marijuana cigarette if they are tired. . . . It gives them a lift and they can go on playing even though they may be virtually paralyzed from the waist down, which is one of the effects marijuana can have.

Anslinger himself published an article in American Magazine called “Marijuana: Assassin of Youth,” in which he told of a young “marijuana addict” who, while “pitifully crazed,” slaughtered his family of five with an ax.

Another likely factor leading to prohibition was, once again, bigotry, this time mostly against Mexicans. Mexicans brought marijuana smoking to the United States when about one million of them migrated here after their country’s 1910 revolution. Some people resented Mexicans anyway, in part for their willingness to work for low wages during the Depression, and marijuana provided another excuse to attack them. Anslinger also testified before Congress that marijuana “causes white women to seek sexual relations with Negroes.”

Powerful interests lined up in support of marijuana prohibition. Big pharmaceutical companies did so because they were beholden to Anslinger and because they did not want competition from marijuana, which they could not profit from themselves because it was a common plant. Chemical company DuPont supported the legislation because it would treat hemp (a form of cannabis that cannot be used to get high, but which serves numerous industrial purposes very well) just like other marijuana, which would eliminate competition for DuPont’s synthetic products.

Still, despite the propaganda and prejudice, there was not much public demand for marijuana prohibition when Congress nonetheless passed the Marihuana Tax Act of 1937. There was not much evidence or debate, either. As legal scholars Charles H. Whitebread II and Richard J. Bonnie put it, the hearings “are near comic examples of dereliction of legislative responsibility.”

Anslinger was the primary witness at the Congressional hearings, and he presented stories of the boy with the ax, another man who decapitated his best friend while under the influence, a 15-year-old who “went insane,” and other anecdotes derived from newspaper clippings.

The American Medical Association provided a witness, a Dr. William C. Woodward, who pointed out that Anslinger had little more than hearsay evidence from newspapers to back up his claims. Although marijuana use in prisons and by children were supposed justifications for the law, Woodward pointed out that there was no evidence as to how many prisoners actually used marijuana, or how many children used it. For refusing to endorse the legislation, Congressmen accused Woodward of “obstruction.”

When the bill made it to the House floor, it received less than two minutes of debate. A Republican Congressman asked whether the American Medical Association supported the bill, and a committee member, Fred M. Vinson — who had been present and asked questions at length during the committee hearings, and who would later become Chief Justice of the U.S. Supreme Court — responded with a bald-faced lie: “Their Doctor Wentworth (sic) came down here. They support this bill 100 percent.” It was late at night, so they passed the bill without further substantive discussion, and soon the president signed it.

For more history of the war on drugs, and background on a wide range of other topics, you can buy Libertarianism Today in paperback for just $3.95 or download the audiobook for free from Laissez-Faire Books. It’s also available in hardcover, for Kindle, and in the Google Play store

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The Wolf of Wall Street http://libertarianstandard.com/2013/12/29/the-wolf-of-wall-street/ Mon, 30 Dec 2013 00:28:16 +0000 http://libertarianstandard.com/?p=12738 wolf-of-wall-street-poster2-610x903Murray Rothbard, the great libertarian theorist and economist, hated Goodfellas. He especially hated the depiction of gangsters as “psychotic punks” whose violence was “random, gratuitous, pointless.”

He preferred the Godfather films, where the gangsters never engaged in violence “for the Hell of it, or for random kicks,” but only used it to enforce contracts the government police and courts wouldn’t uphold.

For Rothbard, Goodfellas’ unflattering portrait of gangsters was practically a smear on libertarianism itself. According to him, “[o]rganized crime is essentially anarcho-capitalist, a productive industry struggling to govern itself,” which provides consumers with products — such as gambling, drugs, prostitution, imports — that the government has arbitrarily and unjustly made illegal. So he was offended by Goodfellas, where the “organized” criminals are little different from “street” criminals and are defeated by the cops in the end.

Some libertarians may dislike Goodfellas director Martin Scorsese’s latest, The Wolf of Wall Street, for similar reasons.

This film tells the story of a stockbroker, Jordan Belfort (Leonard DiCaprio), who cares about nothing but money and gratifying himself. His startup Long Island brokerage takes off when he and his cohorts start pushing penny stocks on working-class investors by cold-calling them and convincing them they can get rich quick by investing in purportedly great companies that are actually terrible. Belfort makes even more money by using third parties to invest in some of the companies whose stock he pushes and stashes the profits in a Swiss bank account.

Meanwhile, Belfort and his colleagues’ lust for money leads quickly to Caligula-style decadence, with non-stop sex-and-drug parties in and out of the office, which the movie dwells on at length.

Just as Goodfellas never acknowledged the valuable services Rothbard believed the Mafia historically performed, The Wolf of Wall Street never acknowledges the essential service that stockbrokers provide in a market economy. A character played by Matthew McConaughey — who, like Alec Baldwin in Glengarry Glen Ross, appears just once early on to deliver a memorable greed-stoking speech — claims that stockbrokers don’t “create” anything but just pointlessly move money around while taking a cut for themselves.

At that point, some libertarians may be tempted to walk out, assuming that the rest of the movie will be an attack on capitalism. But walking out for that reason would be a mistake, and criticizing the movie for that character’s statements would be misguided, just as Rothbard’s criticism of Goodfellas was misguided.

Rothbard failed to mention that Goodfellas, unlike The Godfather, was a true story. Those characters did those things, more or less. In fact, the Mafia does not just engage in Defending the Undefendable-style heroism by providing black-market goods and services; it also engages in theft, insurance fraud, protection rackets, vending machine rackets, and other thuggery. And who carries out these activities? Thugs, of course: mediocrities who see gangsterism as their chance to become a “big shot,” like Ray Liotta’s Henry Hill, and psychos who see an outlet for their violent inclinations, like Joe Pesci’s Tommy DeVito. (Come to think of it, if we want to use the movie to make a libertarian point, we might observe that government attracts similar lowlifes for the same reasons.)

Whether you want to see a movie showing the real-life violence those people carry out is up to you. Randians, I assume, would argue that art shouldn’t depict anything so ugly and but should instead show us man at his best — so they wouldn’t want to see it. But I find it interesting to get a glimpse of how such people think and live — and Scorsese could not have done a better job telling their story. So I have no complaints about Goodfellas.

The Wolf of Wall Street is not a masterpiece like Goodfellas, but I approve of it for similar reasons. It too is based on a more-or-less true story. We can’t know whether Belfort fabricated or exaggerated details in the memoirs on which it’s based — if the office orgies shown actually happened, one would think hostile-work-environment lawsuits would have shut the place down long before the SEC or FBI noticed it — but the parts about Belfort’s stock trading are basically correct, as far as I know.

And I don’t doubt that some stockbrokers are jerks whose views aren’t much different than those of the McConaughey character. After all, most of them aren’t economists, so why would they understand the important role they play or how the economy works beyond what’s necessary for them to do their sales jobs? And there have, in fact, been “boiler rooms” where salesmen push bad stocks on ignorant people. Libertarians are not obliged to approve of such things or pretend they don’t exist, though we can point out that they are the exception and not likely to last long in a true market economy.

So what’s wrong with making a movie about those people? Nothing, as long as it holds the viewer’s interest and doesn’t try to make a broader point about all stock trading being evil.

The Wolf of Wall Street passes that test. There are vague allusions to “the one percent” and Wall Street’s role in our recent economic troubles, but there is no “message” apart from the obvious one that greed can lead people to be short-sighted and nasty. So I don’t think the film is especially objectionable from a libertarian perspective.

From an artistic perspective, there’s room for debate. You get the sense that the movie aspires to be Goodfellas set in the financial world, but it falls short. Like Goodfellas, it opens with a preview of an especially over-the-top scene from later in the film. It also uses a freeze-frame effect familiar to anyone who has seen Goodfellas, and it has similar narration by the main character. You can tell Scorsese is trying to recreate that movie’s visceral effect, but he doesn’t quite succeed.

And although the broad strokes of the story may be true, many details feel false. The characters go from ordinary to outrageous too quickly, and the office parties seem implausible in the 80s and  90s, after the rise of sexual-harassment lawsuits and political correctness. And while Goodfellas showed an Italian-American subculture that Scorsese had observed first-hand, Wolf creates a world whose look and feel he can only guess at — and you can tell.

Also, he reportedly kept editing this movie — to three hours, down from four — until the last minute, and it feels like he still didn’t get it quite right. You get the sense there is a tighter, better movie that could have been made of it.

Still, if you’re not offended by films that dwell on vice, crime, and the people who engage in them, it’s worth seeing. DiCaprio is great as always, and Jonah Hill is pretty good as his sleazy partner. Despite the excesses, I appreciated the depiction of how people can behave — against their own long-run interests — when they believe they’ve discovered a way to wealth and happiness that does not require them to think about how they can actually benefit their fellow man.

Audio: The Laissez-Faire Books panel at FreedomFest http://libertarianstandard.com/2012/09/11/audio-the-laissez-faire-books-panel-at-freedomfest/ http://libertarianstandard.com/2012/09/11/audio-the-laissez-faire-books-panel-at-freedomfest/#comments Tue, 11 Sep 2012 06:51:29 +0000 http://libertarianstandard.com/?p=11680 This summer I had the honor of speaking on the Laissez-Faire Books panel at FreedomFest, the annual libertarian mega-event put on by Mark Skousen in Las Vegas. Now the audio of the panel — the theme of which was “Live Better, Live Liberty: The Quest to Get Government Out of Our Lives” — is online:

The lineup for the panel includes:

  • Robert Murphy, speaking on alternative educational institutions
  • Wendy McElroy, speaking about her new book, The Art of Being Free
  • Jeffrey Tucker, on “defying the plan through your own digital civilization”
  • Jacob Huebert, on private forms of security and dispute-management,
  • Stefan Molyneux, on “redefining communities of peace and learning,” and
  • Douglas French, as emcee

If you only have time for part of this two-hour event, then at least be sure to listen to Jeffrey Tucker’s talk. I have already heard from people who have said they found this presentation life-changing, and I understand why. Tucker talks about how we can defeat the state by creating better products through the market, rather than by just following the old think-tank model. He’s putting these ideas to work through LFB, but, as he explains, there is so much more to be done by people who aren’t just selling books or ideas.

The other talks were very well-received, too. First, Robert Murphy talks about one of my favorite topics, the importance of education in the advancement of liberty.

Next, Wendy McElroy offers a taste of her latest book, The Art of Being Free, which is available in paperback and as a free e-book for members of the Laissez-Faire Club. (The talk is great, but you may just want to skip directly to the book and start reading, since that’s what you’ll end up doing anyway.)

For my part, I talk about ways that the market already provides security and dispute-resolution through products such as credit cards, smartphones, and Yelp. When people think about how the market would provide these goods in the absence of government, they tend to look back to ancient examples (e.g. Iceland, Ireland) or speculate about insurance companies funding police and armies — but perhaps the most relevant examples already exist today, right in front of our faces (or in our wallets).

Finally, the inimitable Stefan Molyneux offers his usual clarity and enthusiasm in arguing that we must make the moral case for liberty. I don’t agree with his suggestion that we must only make moral arguments — I think consequentialist arguments may often be a good place to start, as I argue in my foreword to LFB’s new edition of Gary Chartier’s Conscience of an Anarchist. Still, Molyneux is compelling and enjoyable, and if you like his approach, there is of course much more at his site, Freedomain Radio, and in his books, two of which are also available from LFB.

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Book Review: Liberty of Contract http://libertarianstandard.com/2012/06/28/book-review-liberty-of-contract/ Fri, 29 Jun 2012 02:29:13 +0000 http://libertarianstandard.com/?p=11302 Last year saw the release of two books on the U.S. courts’ history of (not) protecting the liberty of contract: David Bernstein’s Rehabilitating Lochner and David N. Mayer’s Liberty of Contract: Rediscovering a Lost Constitutional Right.

My review of Bernstein’s book appeared in the Winter 2012 Independent Review; my review of Mayer’s book has just been published in The Freeman.

Which book is better? I couldn’t say. Both cover a lot of the same ground, and both are well-done. (Oddly, both were published at about the same time, and both appear to have been sponsored by the Cato Institute, though Bernstein’s book was published by the University of Chicago Press.) I recommend either or — if you really want to be an expert on all facets of New York v. Lochner and the courts’ inconsistent protection of economic liberty — both.

Here’s an excerpt from my Liberty of Contract review:

The U.S. Supreme Court has no coherent ideas about—or real respect for—individual rights. It generally allows governments to do whatever they want, with limited exceptions for a handful of rights it has deemed “fundamental,” such as the right to free speech (in some areas) and the right to sexual privacy (in some respects). Other rights, such as the right to economic liberty, receive almost no protection at all.

Why so much protection for some rights and so little for others? Because the Court has arbitrarily said so.

Libertarians, of course, think differently about rights. Libertarians think that our rights exist independently of government, and that if government has any legitimate purpose at all, it is to protect those preexisting rights.

Libertarians also think that all our rights are really property rights. We each own ourselves, and from that follows a right to own private property that we acquire through voluntary exchanges with others. Other rights, such as the right to free speech, derive from our right to use our own property as we see fit. And the right to economic liberty—that is, to trade your property and your labor freely with others—is just as “fundamental” as any other right.

In Liberty of Contract: Rediscovering a Lost Constitutional Right, law professor and historian David N. Mayer shows how Americans went from embracing the libertarian conception of rights reflected (imperfectly) in the Declaration of Independence to the statist conception of rights reflected in modern Supreme Court decisions.

Read the rest.

Book Review: Rehabilitating Lochner http://libertarianstandard.com/2011/12/19/book-review-rehabilitating-lochner/ Tue, 20 Dec 2011 00:01:43 +0000 http://libertarianstandard.com/?p=10136 In the Winter 2012 Independent Review, I review David Bernstein’s Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform. Here’s how it starts:

Few Supreme Court cases receive more scorn in U.S. law schools than Lochner v. New York (198 U.S. 45), the 1905 decision that struck down a New York law limiting the number of hours that bakers could work as a violation of the Fourteenth Amendment’s Due Process Clause. It’s safe to say that most legal academics and judges today believe that the Lochner Court engaged in extraordinarily outrageous “judicial activism” motivated by a devotion to extreme libertarian ideology, big business, or both.

In Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, George Mason University law professor David Bernstein makes the case that the conventional view is wrong. He provides persuasive evidence that Lochner does not deserve to be singled out as an especially activist or offensive case and that Lochner‘s Progressive critics were the real activists with a much more disturbing agenda.

Read the rest.

Free Book Chapter: Libertarianism Is Antiwar http://libertarianstandard.com/2011/12/08/free-book-chapter-libertarianism-is-antiwar/ Thu, 08 Dec 2011 14:29:27 +0000 http://libertarianstandard.com/?p=10024 Another full chapter of Libertarianism Today is now online for free — this one on why libertarianism is antiwar. This is my favorite chapter of the book, so I’m especially glad I could make it available through Antiwar.com.

Other parts of the book you can read for free online:

And if you want to read the whole thing, it’s on sale at a special low price for a limited time.

Thoughts on Tabarrok’s Launching the Innovation Revolution http://libertarianstandard.com/2011/12/06/thoughts-on-tabarroks-launching-the-innovation-revolution/ Tue, 06 Dec 2011 05:29:56 +0000 http://libertarianstandard.com/?p=9957 After reviews by Bryan Caplan and our own Stephan Kinsella got my attention, I read Alexander Tabarrok’s new “TED” e-book, Launching the Innovation Revolution.

I went in with an open mind, ready to applaud practical suggestions for incrementally increasing freedom in the area of intellectual property, even if Tabarrok didn’t endorse abolishing the entire patent system as I do. But I was still disappointed.

To Tabarrok’s credit, he does start by showing why patents aren’t necessary to have innovation (at least, he says, in most fields), and he does argue for shorter patent terms (for some things) and less patent protection (for some things). That’s all fine, as far as it goes.

Unfortunately, too much of the book is devoted to promoting new central-planning schemes that Tabarrok thinks would work better than current government programs. Kinsella discusses some of them in an update to his original review; I’ll discuss a couple more.

Perhaps my least favorite was a suggestion that the federal government subsidize higher education only in areas where there will supposedly be “spillovers” of benefits to the economy as a whole, such as engineering and biochemistry. Education in less economically valuable fields, such as sociology, would not be subsidized. The problem is, Tabarrok doesn’t mention what I’m sure he knows: we’ll get all the innovative engineers and scientists we need if we stop subsidizing higher education entirely and let the market decide what areas of study are valuable. On the other hand, if government planners enter the business of deciding which subjects are economically important, as Tabarrok wishes, what reason is there to think that they’ll choose the “right” subjects and that the subjects won’t be determined (and altered over time) according to political considerations? Apparently Tabarrok thinks you just need to have the right planners in charge — but anyone familiar with libertarian thought or public choice, as Tabarrok is, should know that any scheme that depends on the wisdom or benevolence of government planners is bound to fail.

Elsewhere, Tabarrok endorses the idea of governments buying mass quantities of vaccines from pharmaceutical companies, and he says it’s “shameful” that the U.S. has not done this in some instances where other countries’ governments have done so. Here again, it’s just assumed that the government will choose well — and that the program won’t turn into a corporate welfare scam that ultimately will have little to do with what’s actually good for Americans’ health. And this is to say nothing of the impropriety of forcing people to pay for things they wouldn’t voluntarily pay for.

Tabarrok says that many federal regulations are “good,” it’s just that taken together, they make the cost of doing business too high and stifle innovation. Which he considers to be good and why is never clear.

At least Tabarrok does get in a dig at the warfare state — not because it slaughters thousands of innocent people but because it diverts resources away from domestic innovation. (He’s not against all military spending, though. For example, he laments that we give “only” $3 billion a year to DARPA for R&D — never mind that the money it gets now is spent on some very disturbing projects.)

Maybe this book will help some people recognize that patents aren’t as essential to innovation as some claim, or get some people to favor increased immigration (another area in which it is good). I’m concerned, however, that it’s the statist ideas, if any, that we’ll see implemented.

Reconsidering “Judicial Engagement” http://libertarianstandard.com/2011/11/28/reconsidering-judicial-engagement/ http://libertarianstandard.com/2011/11/28/reconsidering-judicial-engagement/#comments Mon, 28 Nov 2011 05:59:06 +0000 http://libertarianstandard.com/?p=9724 Several years ago, I wrote a review of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Cato Institute chairman Robert A. Levy and Institute for Justice co-founder William Mellor. As its subtitle suggests, the book criticizes twelve U.S. Supreme Court decisions that are especially offensive from a libertarian perspective, such as Wickard v. Filburn, Korematsu v. U.S., and Kelo v. City of New London.

Because I’m a libertarian myself, I agreed with most of their criticisms of the twelve decisions.

I had reservations, though, about their proposed remedy: “judicial engagement” on liberty’s behalf — that is, getting judges on board with (for example) the idea that Congress’s powers under the Commerce Clause are much narrower than the Supreme Court has said they are since the New Deal era. This struck me as naive. Judges, after all, are part of the federal government, and the President and Congress both try to ensure that the people they put on the bench believe in maximum executive and legislative power. Judges haven’t increased government power because libertarian lawyers didn’t put the right arguments in front of them; they’ve increased government power because that’s what they were put on the bench to do.

In a response to my review, Levy and Mellor claimed that I was “far too cynical” — which only cemented my view that, for self-described libertarians, these two gentlemen weren’t nearly cynical enough about the federal courts. In fact, they seemed to have a faith in “good government” that is antithetical to libertarianism.

Lately, however, I’ve come to think that, whatever Levy and Mellor’s personal attitudes may be (it’s possible that I misread them), favoring “judicial engagement” for liberty does not require one to be naive about government and therefore is not contrary to the spirit of libertarianism.

My view on this has been influenced by Clark Neily, director of the Institute for Justice’s new Center for Judicial Engagement, who has lately been elaborating on the concept of judicial engagement in appearances at Federalist Society events (I attended one) and in a series of posts at the Volokh Conspiracy.

As Neily describes it, “judicial engagement” is about prodding judges to do their putative job of interpreting and applying the Constitution — which, for Neily, means striking down laws that don’t comport with the Constitution rather than just rubber-stamping legislatures’ decisions in every case under the useless “rational basis” standard of review as courts do most of the time. It is essentially about “calling judges out” when they allow constitutional rights to be violated.

Described that way, judicial engagement appears to be consistent with a libertarian attitude toward government. In the libertarian view, government officials are never to be trusted to do the right thing; instead, the people must be ever vigilant to ensure that government does as little damage to liberty as possible. In the judicial context, this means that we must constantly remind judges of their supposed job and accuse them of abdicating their responsibility when they fail to give legislation the scrutiny it deserves.

The belief in a need to promote judicial engagement is duly cynical inasmuch as it’s premised on the idea that judges can’t be expected to protect liberty in the absence of persistent, intense pressure. The IJ lawyers’ strategy of promoting their pro-liberty legal positions in the court of public opinion, which they believe influences judges, also reflects a “legal realist” attitude appropriate for libertarians, not a deluded vision of judges as unbiased, neutral arbiters.

Judicial engagement is not a panacea, of course. I still doubt that federal courts will meaningfully narrow their expansive reading of the Commerce Clause anytime soon; no 2012 presidential candidate strikes me the sort of person who would appoint judges who would limit federal power. Indeed, there’s every reason to think they would do the opposite. (Ron Paul and Gary Johnson are exceptions, but they are unlikely to win.)

As I have emphasized elsewhere, libertarians’ primary job is education — first of themselves, and then of others. This is essential to building a solid, long-term foundation for liberty. But just as it would be wrong for libertarians to neglect that duty, it would also be wrong to reject a means by which liberty can be increased — and people’s lives can be improved — in the short run. Going to court to fight for people’s liberty accomplishes this, at least sometimes, as one can see from libertarian legal activists’ victories in the Heller and MacDonald gun cases and in the Institute for Justice’s many victories. It also serves an educational purpose, even when the court battle is lost, by calling the public’s attention to the underlying issues; Kelo, for example, educated the public on the evils of the eminent domain power.

I can’t see how a libertarian could disapprove of this kind of judicial engagement — and to the extent that I have done so in the past, I’ve changed my mind.

Cross-posted at The Cockle Bur.

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