Archive for the ‘legislation and liberty’ Category

Put your trust in Barack Obama and Erich Schmidt?

June 11, 2013

President Obama and Google CEO, Erich Schmidt, potentially can access almost every email message transmitted across the United States and well beyond. Barack Obama is a left-leaning Democrat. Erich Schmidt, in 2012, maxed out his political contributions in support of Barack Obama. So he also must be presumed to be a left-leaning Democrat (or a wealth-seeking hypocrite, take your pick).

So do you trust Obama/Schmidt to refrain from utilizing this available information for left-wing political purposes? Do you think that they might do so, if such data were likely to swing votes in favor of the Democratic Party? Do bears defecate in the woods?

We know for sure that President Obama did not come clean with respect to the data mining that his administration has established, under the guise of monitoring terrorism. In itself, this demonstrates utter contempt for the people, who have hired him as their lackey to represent their interests. We know that Erich Schmidt did not voluntarily disclose the extent of Google’s monitoring of internet activity, even though Google supposedly is in a contractual relationship with its clients.So basically, they already have reputations somewhat inferior to second-hand car salesmen.

How comfortable are you when dealing with a second-hand salesman at some backstreet big city garage? Would you leave your wallet or your handbag on the table when visiting the washroom in such an establishment?

Bravo, Edward Snowden for whistle-blowing on Obama! Bravo, Putin’s Russia, for offering Edward Snowden political asylum as he runs for his life, hotly pursued by vengeance-seeking U.S. snoops.

Remember Jason Bourne, anyone?

Impose rule of law on ‘too-big-to-fail’ U.S. banks

March 11, 2013

A dozen U.S. mega-banks – 0.2 per cent in terms of numbers of all banks – currently control 70 per cent of all assets in the U.S. banking industry. These mega-banks – deemed to be too-big-to-fail, are treated entirely differently from the rest of the industry. They are exempt from the normal processes of bankruptcy and fear of failure. This dirty dozen and all its counter-parties are free to take excessive risks rightly denied to their competitors.

In the absence of the rule of law, the playing field is uneven within the banking industry, and Main Street remains fundamentally vulnerable to the whims of Wall Street. Dodds-Frank, funded by big bank campaign contributions, corruptly locked in the privileges of the few and deliberately exposed the U.S. economy to a repeat of the 2008 fiasco.

Three reforms would restore the rule of law to the banking industry, and would go far to restoring Main Street confidence in the financial system. They are not easy to introduce because the mega-banks will lobby vigorously against them. But a political opportunity exists because many voters remain outraged by the recent excesses of the dirty dozen. Sometimes, even in U.S. politics, informed votes remain immune to campaign finance.

First, roll back the federal safety net- deposit insurance and the Federal Reserve’s discount window – to apply only to traditional commercial banks. Exclude all non-bank affiliates of bank holding companies, and the parent companies themselves from the safety net.

Second, require all customers, creditors and counter-parties of all non bank affiliates to sign a legally-binding document accepting that there will be no government guarantee, ever, protecting their investments. A similar disclosure would also apply to bank deposits outside the FDIC insurance limit.

Third, restructure the largest financial holding companies so that every one of their corporate entities is subject to a speedy bankruptcy process and, in the case of banking entities themselves, that they must always be of a size that is too small to save. The aim must be, for every bank across the United States, that should it fail, it will be liquidated with finality – closed on Friday and reopened the following Monday under new ownership and new management.

Hat Tip: Richard W. Fisher and Harvey Rosemblum, ‘Hot to Shrink the ‘Too-Big-to-Fail’ Banks’, The Wall Street Journal, March 11, 2013

Nudge or shove? both infringe individual liberty

March 2, 2013

The great Anglo-Saxon historical battle to replace government coercion with individual liberty began with Magna Carta in 1215, continued through England’s Glorious Revolution of 1688, through the various British Electoral Reform Acts between the 1830’s and the 1920’s, the American Revolution in 1776, the US Constitution of 1787, followed by America’s Thirteenth, Fourteenth and Nineteenth amendments to that Constitution. Individual liberty was fortified immeasurably by the evolution of the rule of law both in Britain and America.

Those who fought so hard and so long to achieve individual liberty surely did not do so in order to remain under the light thumb or the heavy boot of those who are elected to represent them in the market-place of politics. We, the People, assumed control over our own destinies, to make what we will or can of the opportunities so provided, and to take full responsibility for errors of our own making.

Unfortunately, the battle for individual liberty can never be won outright. Public choice informs us that individuals attracted by power and money are especially prone to enter into politics and to seek for its highest offices. In a reversal of the principal-agent relationship, such politicians seek to coax, if they cannot openly coerce, those who elected them as their agents. Would-be Machiavelli’s emerge to advise such ‘princes’ how most effectively to achieve their desires to coax, when they cannot easily coerce.

Current players on this stage are Prime Minister David Cameron and his economist -adviser, Richard Thaler in the United Kingdom, and President Barack Obama and his adviser,lawyer Cass Sunstein in the United States. The book from which all such parties draw is not entitled, The Prince – that would be politically incorrect in the post-revolutionary environment of Britain and the US – but rather, more opaquely, Nudge, the 2008 book co-authored by Thaler and Sunstein that is now the Great Book for residents of No. 10, Downing Street and 1600, Pennsylvania Avenue.

This wretched book – this indirect attack on individual liberty – suggest ways for unscrupulous governments to coax individuals into doing what is ‘best’ for them. For example, by displaying bananas and skimmed milk prominently in school cafeterias, while hiding cookies and delicious sodas, children will be induced to eat and drink according to current dietary fads. Children, fortunately, for the most part, are not suckered by such sophistry. They endure hunger strikes rather than partaking of the ‘garbage’ put before them. School bureaucrats across America have recently had to beat a humiliating retreat into French fries, hot dogs, and peanut-butter sandwiches, despite the coaxing and nudging of America’s First Lady.

Many adults, unfortunately, do not share their offspring’s love of liberty. When shifts are made from allowing them to opt in to allowing them to opt out of company savings schemes, many of then take the easy route, and pay up. When the next Enron scandal erupts, just watch how quickly President Obama or Prime
Minister Cameron dip into their own pockets to reimburse those who were nudged into such financial sink-holes.

In general, individuals do tend to be biased towards the status quo. But this bias is justified. It is a great safeguard against being ripped off by slick talkers such as Cameron and Obama. Yes, individuals may tend to be excessively optimistic about the future. But such excessive optimism is the spark for entrepreneurial activity that can lift the wealth of an entire nation.

Nudging may be more humane than shoving. But for that reason, it is also more dangerous. Both Britain and America would be better served by shoving would-be nudgers, and their advisers, into the sink-hole of history. For those who are nudged into decisions that conflict with their own preferences are no longer truly free. Nor will they flourish as human beings to the degree that bearing full responsibility for free choices assuredly encourages.

Hat Tip: Christropher Caldwell, ‘Coaxers and coercers discover common ground’, Financial Times, March 2, 2013

The controversial jurisprudence of Ronald Dworkin

February 16, 2013

Ronald Dworkin is revered by many legal scholars and denigrated by many others, primarily because of his left-of-center political philosophy. Two examples from prominent critics identify the nature of this divide:

“Judge Richard A. Posner, who sits on the federal appeals court in Chicago, wrote in a 2001 study of public intellectuals that Professor Dworkin’s popular writings were slippery, partisan and predictable. ‘Dworkin’s dominant bent as a public intellectual is to polemicize in favor of of a standard menu of left-liberal policies.'” Adam Liptek, ‘Ronald Dworkin, Scholar of the Law, Is Dead at 81, New York Times, February 14, 2013

“His critics said that Professor Dworkin’s approach was a smoke screen. Dworkin writes with great complexity but, in the end, always discovers that the moral philosophy appropriate to the Constitution produces the results that a liberal moral relativist prefers.” Robert H. Bork, the onetime Supreme Court nominee wrote in 1997 in ‘The Tempting of America’. ibid.,

No doubt such sophistry was inevitable, given Ronald Dworkin’s education at Harvard and Oxford, two of the most left-leaning repositories of Anglo-Saxon jurisprudence in the Western world. However, the polemics must not be allowed to detract from the high quality of Ronald Dworkin’s scholarship.

Within the lefr-leaning establishment, especially that located at Harvard and Yale, Ronald Dworkin repeatedly took the better side, arguing for the importance of individual rights, free speech and the integrity of the law, against Marxist-led proponents of critical legal studies – such as Harvard’s Duncan Kennedy – who attepted to tear down the common law as a class-based instrument of false consciousness.

Dworkin’s arguments on First Amendment values played an influential role in preventing the anti-speech feminism of Catharine McKinnon from dominating the American progressive movement. Dworkin warned appropriately against the temptation – bpth from the left and from the right – to abdicate questions of jurisprudence to crude majoritarianism (a temptation that Barack Obama curently seeks to exploit). Dworkin consistently stressed that the law is not simply an extension of politics by another means. Hence the title of his book, ‘Law’s Empire’.

Whewre Dworkin comes something of a cropper, in my judgment, is in his treatment of the complex interconnection between liberty and rights. In this area, Dworkin never completely understood – or less charitably chose publicly not to acknowledge – the clear distinction between negative and positive freedom outlined by his brilliant Oxford colleague, Sir Isaiah Berlin.

In a nutshell, Berlin promoted the concwpt of negative freedom – whereby any individual should be protected against coercion by any other individual or organization of individuals – over the concewpt of positive freedom – freedom from poverty, freedom from disease, etc. – arguing that pursuit of such latter freedoms invariably ends up in coercing some individuals by others.

In essence, negative freedom protects the inalienable right of any individual to his life and to his liberty and the imprescriptible right of any individual to his property, be it human or physical in nature.

Drorkin would have none of that. Most particularly, he had no time for economic freedoms, arguing instead that a just society would not allow individuals to benefit from the arbitrary luck of such natural talents as intelligence and talent, or the advantage of some chance acquisition. Such endowments are morally arbitrary and ought not to affect the distribution of resources in society.

Dworkin’s theory of inequality, in this sense, can be defined as luck-egalitarianism. In my judgment, anyone crazy enough to enforce such a jurisprudence would impose economic retardation and extensive coercion upon the people. Fortunately for those of us who, by good fortune, inherited Anglo-Saxon jurisprudence, Ronald Dworkin did not seriously attempt to force this view upon his fellow-men.

Indeed, Ronald Dworkin did not even impose this jurisprudence upon himself. He took full advantage of his privileged education at Harvard and Oxford further to hone God-given talents, and to live justifiably well on the good fortune showered upon him by a beneficient nature. And by so doing, he delighted us all with his erudition and high-quality scholarship.

Ronald Dworkin (1931-2013) R.I.P.

February 15, 2013

Ronald Dworkin was one of the great legal philosophers and constitutional lawyers of the twentieth century, a brilliant debater, unsurpassed in rhetoric, and an influential left-wing ideologue, who disguised his ideology behind superb penmanship. Fundamentally, I disagree with his underlying messages. But I understand that they must be refuted with extreme care and diligence. He will be greatly missed, both by his supporters, and by his detractors.

Ronald Dworkin was born in Providence, Rhode Island. After graduating from Harvard, he attended Magdalen College, Oxford as a Rhodes Scholar. He obtained an LL.B from Oxford and then returned to Harvard for his J.D. Thereafter, he resided both in England and in the United States, keeping one foot on each country’s legal system.

I met Ronald Dworkin only once, in 1974, when he attended one of my Social Science Research Council seminars designed to open up the emerging law and economics discipline to British economists and legal scholars. The conference was held at University College, Oxford, where Dworkin had succeeded H.L.A. Hart as Professor of Jurisprudence. I had invited Richard Posner and Willam Landes, the world’s two leading law and economics scholars from the Chicago Law School to educate the Old World in this new discipline. Ronald Dworkin attended just one session, to take on Richard Posner head-to-head on the normative proposition that the common law should seek to maximize wealth in its court judgments.

This was a battle between giants. Although Ronald Dworkin clearly won on points against the young Richard Posner, he surely lost on points to Bill Landes who utilized his superb mastery of economics to counter the rhetorical genius of his opponent. But it was a tough sled even for one of the sharpest and most subtle minds on the Chicago campus. All conference attendees were surely winners from this dazzling interchange.

Following the session, the debate raged on late into the night, in the University College bar. Just as well that Oxford University takes ultimate pride in keeping its cellars well-stocked. I can confirm from first experience the words of Thomas Nagel to the effect that ‘Dworkin is probably the least ascetic person I know, and one of the most worldly.’ Late at night in that bar, he was not served well by that predilection. The truly ascetic Richard Posner coolly demolished his opponent with an intellect unclouded by the fog of alcohol! However, as Ronald Dworkin may well have thought: ‘Tonight I am drunk, and you are sober. But tomorrow I shall be sober and tonight’s loss will be quickly reversed.As it would be in subsequent contests between these two great legal scholars.

I shall write critically on Ronald Dworkin’s key contributions in tomorrow’s column.

Barack Obama is no Thomas Jefferson and no James Madison

January 24, 2013

In January 2013, three interconnected domestic problems dominate the United States. They are (1) the national debt; (2) the rate of economic growth; and (3) the level of unemployment. These issues must be addressed without impacting adversely on the rate of price inflation. Any president able to nudge the economy in good directions on each of these issues would deserve high ranking in the presidential hall of fame.

Unfortunately, these are not the issues on which President Obama has chosen to focus during his second term, at least from the perspective of his inauguration address.The evidence is as follows:

President Obama’s address was 2,108 words in length. Of these he expended 45 words in three sentences on the economy, 19 words in one sentence on the deficit, and 155 words in six sentences indicating that entitlements would not be cut.

In contrast, Obama expended 160 words in six sentences on climate change, and 358 words in ten sentences on equal pay for women, access to gay marriage, the repeal of laws requiring photo-identification to vote, immigration reform, and gun control.

The remainder of his address demonstrated a fundamental lack of understanding of the 1776 Declaration of Independence. Had he read Thomas Jefferson’s masterpiece with the faintest level of comprehension, he would have understood that the principal concern of the revolutionaries was to protect individual colonists from oppressive government, not to use the coercive power of government to force programs favored by some transient majority upon the people at large. Similarly the Bill of Rights is almost exclusively directed to the same goal, protecting the individual from the state. The only interventionist item in that Bill is to guarantee the individual the right to trial by jury – and that again is a right designed to protect individuals against the state.

So when Obama talks about the need for collective action, as a reinterpretation of the Founders’ vision, in fact he pits himself directly against those Founders’ predilections and great wisdom.

By now all of us have the measure of Barack Obama. And I think that I can fairly state that Barack Obama is no Thomas Jefferson and no James Madison. Thoughtful Americans should compare the words of the Declaration of Independence and the Bill of Rights against those of Obama’s second Inaugural. I have no doubt which they will find the more convincing.

The cause of current disharmony in the United States

December 24, 2012

“The man of system…seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chessboard.  He does not consider that the pieces upon the chessboard have no other principle of motion besides that which the hand impresses upon them; but that, in the great chessboard of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might choose to impress upon it.  If those two principles coincide and act in the same direction, the game of human society will go on easily and harmoniously, and is very likely to be happy and successful. If they are opposite or different, the game will go on miserably and the society must be at all times in the highest degree of disorder.” Adam Smith, The Theory of Moral Sentiments, 1759

A.V. Dicey on Lord Leveson’s proposed repression of freedom of expression

December 10, 2012

“The present position of the English press is marked by two features.

First, ‘the liberty of the press’, says Lord Mansfield, ‘consists in printing without any previous license, subject to the consequences of law.’ Lord Ellensborough says:

‘The law of England is a law of liberty, and consistently with this liberty we have not what is called an imprimateur; there is no such preliminary license necessary; but if a man publish a paper, he is exposed to the penal consequences, as he is in every other act, if it is illegal.’

These dicta show us at once that the so-called liberty of the press is a mere application of the general principle, that no man is punishable except for a distinct  breach of the law.  This principle is radically inconsistent with any scheme of license or censorship by which a man is hindered from writing or printing anything which he thinks fit, and is hard to reconcile even with the right on the part of the Courts to restrain the circulation of a libel, until at any rate the publisher has been convicted of publishing it…Neither the government nor the Courts have…any greater power to prevent or oversee the publication of a newspaper than the writing and sending of a letter.  Indeed, the simplest way of setting forth broadly the position of writers in the press is to say that they stand in substantially the same position as letterwriters…. secondly, press offences, in so far as the term can be used with reference to English law, are tried and punished only byu the ordinary Courts of the country, that is, by a judge and jury.’

A.V. Dicey,  The Law of the Constitution. (1885/1982) pp. 153-155.

The Heritage Foundation

December 7, 2012

The Heritage Foundation is the premier conservative think tank in the United States. Founded by Dr. Edwin Feulner some 40 years ago,  pretty much from ground zero, Heritage has grown and developed under extremely talented leadership.  Its high-quality publications, conferences and influential media presence have been a powerful force for good for all Americans who believe in free enterprise, limited government and the rule of law, while also recognizing the importance of a strong military presence in an unstable world. Its approach may be viewed as a bit too muscular by some libertarians, but it surely supplies an admirable counter-balance to the also formidable, if less muscularly-inclined  Cato Institute.

Ed  Feulner has been a remarkably successful President of the Heritage Foundation precisely because he has always known just where to tread along that delicate border between the world of ideas and the world of politics. Ed Feulner knows full well that good ideas last forever, whereas even the very best of politics is transient. Ronald Reagan is much revered in conservative circles and rightly so. But Reagan was able to influence policy only for a short span of time. He would not recognize the America of Barack Obama. By contrast, the ideas of Adam Smith,  Edmund Burke, Milton Friedman and Friedrich von Hayek live on forever.

So all those of us who love individual liberty,  free markets, limited government, private property rights and the rule of law – whether of the Heritage Foundation or the Cato Institute brand – will watch anxiously, as Jim DeMint assumes the mantle of leadership at the Heritage Foundation.  Let us pray that the new President secures his feet on that delicate borderline as firmly as those huge shoes of Ed Feulner. For, if he fails so to do, and surely if he tips the balance towards politics rather than ideas, conservative political economy will take a huge long-term hit and the progressive movement will sadly benefit.

My personal thanks to Edwin Feulner – a conservative thinker and leader for all seasons.  BRAVO!

Two political manipulators paved the way for the Thirteenth Amendment

November 27, 2012

The Thirteenth Amendment to the United States Constitution (outlawing slavery and involuntary servitude except as punishment for a crime) was adopted on December 18, 1865 when Georgia’s ratification brought the total of number of states so ratifying to 27 of the then 36 states, satisfying the three-quarter requirement of  the Constitution. Eventually, all 36 states would ratify the Amendment, with Mississippi eventually ratifying on March 16, 1995, having earlier rejected the Amendment on December 5, 1865.

In order for the Amendment proposal to be submitted to the states for ratification, the proposal first had to secure either  a two-third majority both in the Senate and in the House of Representatives or a two-third majority of all the states.  The Constitution provides no formal role for the President in the amendment process, whether the proposal process proceeds first through the Congress or through  the states.

With the Union in disarray during the Civil War, there could be no reliance on an initiative through the states. President Lincoln, in a cynical political maneuver designed to gain the moral high ground for the War  of Northern Aggression, had exercised presidential war powers to make the 1863 Emancipation Proclamation that declared the freedom of slaves in ten Confederate states then in rebellion. The Proclamation did not free slaves in states that remained within the Union;  nor did it make slavery itself illegal.

In any event, once the war ended, the Proclamation would have no standing in law. A presidential proclamation could have no impact on the Constitution of the United States. If the slaves were to be freed, it was crucial to move an amendment through Congress prior to the end of the war, when it would surely be blocked by politicians representing the defeated southern states.

The amendment process would be difficult, even with the southern states out of the picture.  For the northern border states had their own slave-owning interests embedded in the Congress.  Moreover, prior to the Thirteenth Amendment, no new amendment had been adopted in more than 60 years.

The process began in the Senate on January 11, 1864, when a War Democrat, Senator John B. Henderson first submitted an amendment proposal to abolish slavery.  An adjusted amendment proposal passed the Senate on April 8, 1864, by a vote of 38 to 6.  The House of Representatives, however, declined to pass the proposal at that time.

The proposal was resuscitated  by the Republican Representative James M. Ashley of Ohio, the House floor manager, who persuaded a number of  House Democrats to support it. The two-third majority, however, still looked to be well out of reach.

At this point two Republican politicians joined forces in a seriously disreputable process of  bribery,  corruption, and lies,  in order to achieve the two-third House vote in favor of the Amendment.   They proved to be equally important in achieving their joint objective.

President Abraham Lincoln, although formally excluded from the Amendment process, proved to be the arch-angel  of bribery and corruption, paying off reluctant politicians both with offers of  patronage and, more crudely, with envelopes stuffed with cash, in order to persuade them to sell their own constituents down the Potomac River. Thaddeus Stevens, a radical abolitionist who was secretly bedding a black woman, violated his own strong moral belief in the social equality between blacks and whites, speaking  out forcefully against any such presumed equality  on the floor of the House in order to persuade wavering colleagues to vote for the Amendment.

So working together, through heavy arm-twisting,  bribery, corruption and a tissue of lies, Abraham Lincoln and Thaddeus Stevens carried the day.  On January 31, 1865, by a vote of 119 to 56, the House squeaked its way to a two-third majority.

And that, folks, is politics. Never expect clean pairs of  hands from those who practice that dirty business. Even this most moral of outcomes was achieved immorally by two cynical  practitioners (and many willing accomplices)  of the black arts.

Hat Tip:  Steven Spielberg’s superb  Lincoln (in a movie theater near to you)