Monthly Archives: June 2011

Kevin Drum’s Guest Bloggers Upholding The [ahem] Fine Standards He Has Created There

Kevin Drum is on vacation this week. While I thought that might leave me without boneheaded material to criticize, I’m afraid he’s found guest bloggers as credible and clueless as himself. Today we have Andy Kroll, who wants to delve into meta-debates about rights and entitlements with Wisconsin Gov. Scott Walker:

But the statement that really jumped out from Walker’s interview is his own perception of the bargaining fight:

“They defined it as a rights issue. It’s not a rights issue. It’s an expensive entitlement.”

What’s his first step to show how wrong Walker is? Well, he skips right to the United Nations, a body whose Declaration of Human Rights clearly states that you can use your rights as long as you don’t do so in a way “contrary to the purposes and principles of the United Nations” (Art. 29, Sec 3). He starts there and follows on with a lot of other legally-created privileges that he calls rights:

Hmm. I’m pretty sure the Universal Declaration of Human Rights, passed by the UN after World War II (and drafted and adopted by the US), says that collective bargaining is in fact a human right. Oh, yes, there it is, in Article 23 of the Universal Declaration:

4. Everyone has the right to form and to join trade unions for the protection of his interests.

Then there’s the National Labor Relations Act (NLRA) here in the US, which “explicitly grants employees the right to collectively bargain and join trade unions,” according to the scholars at Cornell University Law School. Or as the National Labor Relations Board’s website puts it, the NLRA “protects employees’ rights to act together, with or without a union, to improve working terms and conditions, including wages and benefits.”

All of this analysis has one critical flaw: it doesn’t properly recognize that there are multiple kinds of rights, and that a right which the government shall not deny is, well, slightly different than one that it grants. I left the below in a comment to that Kroll’s post at the original site:

Are you even familiar with the distinction between “negative rights” and “positive rights”?

Negative rights are rights that you have unless someone else infringes upon them. You have a right to life, but not to force others to produce the food and shelter you need to live. You have the right to freedom of speech, but not the right to force anyone to listen (or, in the case of blogging, to force a blog to print your comments to a post). A right to healthcare or education — if you define it as me not being stopped by government or highway robbers from freely purchasing health or education services on an open market from a willing seller — is a negative right.

Positive rights are rights that require someone else to procure them to you. A right to healthcare — if you assume that those who can’t afford care should be covered by “society” — is a positive right. A right to an education — if you assume it should be paid for by government taxes — is a positive right. A right to food — if you define it as foodstamps for the indigent — is a positive right. *ALL* positive rights can be described as “entitlements”, as they’re what we as a society might define all people are entitled to be provided to them if they cannot do it themselves.

A “right” to organizing a union is a positive right (inasmuch as it restricts and employer’s ability to fire people for trying to exercise it). If we so choose, in our democratic society, that people should be allowed to unionize to counterbalance what may be perceived as in unfair labor advantage to the employer, we can call it a “right” all we want, but it’s a positive right, not a negative right. As such, calling it an “expensive entitlement” doesn’t seem all that out of the ordinary. I don’t see any real disconnect in what Walker said.

Now, I was a bit unclear in that final paragraph. What I intended to say was this: The right to form a union is a negative right. It is inherent in the right to freedom of association. The right to collective bargaining is a negative right. It is inherent in the right to freedom of speech. As you point out (and as I intended to), it becomes a positive right when we write laws or regulations forcing businesses to the other side of the table. Forcing an employer to actually deal with them on those collective terms is the “entitlement” of that positive right.

Andy Kroll waded into deep water here, and it’s clear he didn’t want to recognize that. It’s also potentially true that Gov. Walker did the same — the original linked article doesn’t make clear whether Walker’s statement about entitlement had deeper context. Kroll is trying to use one line from an already snipped interview to make Gov. Walker sound like a simpleton who doesn’t understand the nature of rights. In doing so, Kroll only proves that to be the case about himself.

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Will Individualized Medicine Increase Health Inequality?

Ezra Klein has a rather thought-provoking post today about human genome sequencing and its ability to allow doctors to better-tailor treatment to the specific needs of an individual patient. It presents a phenomenal opportunity to both make medicine more effective, and IMHO to make it cheaper by spending less time and energy on substandard treatments. Ezra raised a different point, though, and I think makes a logical error that warrants further discussion:

If that’s the path that medical advances ultimately take, one byproduct will be an immense explosion in health inequality. Right now, health inequality, though significant, is moderated by the fact that the marginal treatments that someone with unlimited resources can access simply don’t work that much better than the treatments someone with more modest means can access. In some cases, they’re significantly worse. In most cases, they’re pretty similar, and often literally the same.

But as those treatments begin to work better, and as we develop the ability to tailor treatments to individuals, we should expect that someone who can pay for the best treatments for their particular DNA sequences to achieve far better health-care outcomes than someone who can’t afford the best treatments and has to settle for general therapies rather than individualized medicine.

I believe Ezra makes assumes the premise that the “best” treatments are also the most expensive treatments. I believe this to be unsupported by evidence.

Suppose 10 different people all happen to have the same malady. To use a common one, let’s say that the malady is hypertension. Multiple drugs today exist for the treatment of hypertension. Some of them may be specific variants (branded or generic) of medications all within a specific class, but often multiple classes of drugs may be used to treat hypertension. Those multiple classes will affect different people in different ways, but my guess is that a typical doctor will offer a “standard” treatment regimen for hypertension and only deviate from that standard if something doesn’t appear to be effective. What’s further important to note is that different doctors may have different “standard” regimen, based on their own experience rather than exact current medical literature.

What the idea of genome sequencing may bring to the table is that medical research can form stronger predictions of a particular person’s response to certain medicines based upon their specific genes, and it is easier to tailor the treatment to the patient. This doesn’t mean that the rich person’s treatment will be more expensive than a poor person’s, but it does mean that someone who has genome sequencing will likely have more effective treatment than someone who does not. What it also means is that someone who has genome sequencing may actually have less expensive medical treatment than someone without, as less effort and dollars can be used adding treatments that are statistically likely to be ineffective.

And herein lies the rub. Will a rich person have better access to genome sequencing than a poor person? Not if we have Ezra’s wet dream: government socialized health care. Once effectiveness at reducing costs is shown, government in its awesome authoritarian-ness will undoubtedly use the desire for cost-cutting in medical treatment to demand genome sequencing of anyone participating in Obamacare. Sure, we civil libertarians will soundly object to government getting access to everyone’s DNA, but I’m sure they’ll tell us, much like they do with the TSA pornoscanners and told us with our social security numbers, that there’s NO CHANCE the genome information will ever be used for anything other than our medical care, and will be completely confidential. And since nobody listens to us civil libertarians today, they’ll get it done.

If Ezra looks at the potential from this angle, I think he’d change his tune. If he sees genome sequencing as a potential cost-cutting measure, rather than an inequality-increasing measure, I’m sure he’d actually push for wider adoption of it. And like any government authoritarian impulse, if something is good [and if we’re paying for it with tax dollars], we might as well make it mandatory, right?

Wrangling Long-Term Costs

Ezra Klein, on education & health care costs:

I’m not going to end this post with some wan paragraph explaining how to transform these two industries into something closer to their potential. My ideas on health-care reform are available elsewhere on the blog and I don’t know enough about education to say anything worthwhile. But if you asked me to paint an optimistic picture of the American economy over the next three or four decades, the story I’d tell you would mainly be about how we finally figured out how to drag health care and education into the 21st century. And if you asked me to paint you a pessimistic story of the next three or four decades, it’d be about how we failed to do that, and the two sectors continued eating up more and more of our money while delivering less and less value.

Well, good news, Ezra! Those two sectors are increasingly coming under bureaucratic government control, so I’m just sure we’ll figure out the answers to these hard problems! It’s not like Washington has any history of eating up more and more of our money while delivering less and less value

Quote Of The Day

Who joined whom?

Gay marriage has always been an ideal niche for liberaltarians. After all, it’s the states, not the feds, that are the ones deciding whether it should be legal, a question that feeds into libertarians’ federalist affinities. And when you strip away the cultural and identity politics, gay marriage is really just a fight about whether the government should be allowed to regulate personal liberty. On that, again, libertarians side with liberals.

(emphasis added)

Yeah, because liberals are so consistent on those questions of government regulating personal liberty!

Liberty Rock: “No Knock Raid” by Lindy

It had to happen sooner or later – a song about no knock raids. Be warned, this music video contains disturbing footage from actual no knock raids. But you know what? This is an issue that we should be disturbed about.

What disturbs me the most is the double standard concerning shootings in these raids. The police routinely kill innocent individuals in the course of a raid while unsuspecting home owners who kill who they believe to be criminal intruders who turn out to be cops do time. Recent examples: An Albuquerque, New Mexico man shot a cop in the groin; he will do three years. In the neighboring State of Arizona, 5 SWAT officers have been cleared of any wrong doing when they shot honorably discharged Iraq war veteran who served two tours as a Marine Jose Guerena, 22 times and didn’t allow paramedics access to him for more than an hour which resulted in his death.

Some of the footage from the Guerena raid appears near the very end of the video.

Repost: Anyone Who Believes America is Winning the Drug War Must Be High

Last Friday, June 17, 2011 marked the 40th anniversary of Richard Nixon’s “War on Drugs.” As Jacob Sullum points out here, the drug war didn’t actually begin with Nixon and it’s not likely to end on Obama’s watch (even though the Obama administration admits that current drug policy over this period has been a failure). In marking this dubious anniversary, I thought it would be apropos to repost one of my very first blog posts: Anyone Who Believes America is Winning the Drug War Must Be High.

Those of you who are familiar with my writing here and elsewhere might notice the style is a little different than my normal, more conversational second person style (i.e. I refer to “you” the reader frequently). This is because this essay was originally a writing assignment (note the APA format) for a college writing class I was taking at the time even before I got into blogging (I’ll leave it to you to guess what my grade was). This also means that some of the sources I used are older than what is available now. I have since learned a great deal more about how and why the war on (some) drugs is a failure. The following essay is by no means comprehensive but I still stand by these arguments as well as others we have offered here at The Liberty Papers.

Even in the face of reasonable arguments, proponents of prohibition say legalization would cause “moral destruction of the human soul” (Hannity around the 18 minute mark on this video) or say that those of us who would support anything from decriminalization to harm reduction strategies to outright legalization should spend some time with individuals or families whose lives have been destroyed because of drugs. I would counter that emotional argument with another and suggest that drug war proponents spend some time with Kathryn Johnston’s family or the many other “isolated incidents” whose victims have been (in some cases, innocently) traumatized, maimed, or killed as a result of a no knock raid gone wrong. I wonder if these actions resulting from the current drug policy cause any moral destruction of the human soul?

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    Anyone Who Believes America is Winning the Drug War Must Be High

Could legalizing drugs be the answer to reducing drug use in America? Most people would probably call that idea crazy. Why would the government want to encourage drug use? This is a misconception most people have when the taboo topic of legalizing drugs is brought up. Many people believe that because something is legal, the government is somehow saying it is right. Tobacco is a legal product yet it is constantly under attack. When was the last time the surgeon general told the public that tobacco is safe and healthy? Could this reasoning apply to other drugs that are currently illegal, yet kill far fewer people than tobacco? In fact, tobacco kills more people every year than all illicit drugs combined (McWilliams, 1996). What would happen if tobacco was suddenly illegal? Would people who want to smoke try to find and buy cigarettes despite it being a banned substance? What would the consequences be of this prohibition? The result of course would be a complete failure, just as the prohibition of drugs has been a failure. There are three main reasons why the prohibition of illegal drugs should end: it is ineffective, it causes unnecessary strain on the criminal justice system, and above all, it is dangerous.

Prohibition is Ineffective
America spends roughly $30 million (Federal and State) a day to fight the war on drugs (Stossel, 2004). The White House is requesting for congress to appropriate an additional $556.3 million for the 2005 fiscal year above the 2004 figure of $12.1 billion (The White House Office of National Drug Control Policy, 2004). If money was the solution to the drug problem, it would have been solved by now. Unfortunately, money and the programs the money supports has done very little to solve the problem.

While politicians fight this war from the comfort of their air conditioned offices, law enforcement officers see things from another perspective. An organization of police officers who oppose the drug war known as Law Enforcement Against Prohibition (LEAP), conducted a national survey among police officers. The survey found that 95% believe America is losing the drug war. Over 90% believe that treatment and prevention is more effective than incarceration. When asked what would happen if drugs were discriminations or legalized, 30% of the police officers believed there would be no effect or that usage would go down (McNamara, 1995). Based on these statistics, one could imagine the frustration these police officers are dealing with and the morale for fighting on cannot be very high. Retired narcotics officer and LEAP board member, Jack Cole put it this way:

After three decades of fueling the [drug] war with over half a trillion tax dollars and increasingly punitive policies, illicit drugs are easier to get,cheaper,and more potent than they were 30 years ago. While our court system is choked with ever-increasing drug prosecutions our quadrupled prison population has made building prisons this nationÂ’s fastest growing industry, with two million incarcerated-more per capita than any industrialized country in the world. Meanwhile drug barons continue to grow richer than ever before (2002).

One might conclude that with this number of people serving time for drug offences, this would be an effective deterrent. While some people may decide not to take drugs because of the sentences associated with them, most rightly conclude that the odds of getting caught are very slim. The people who are most likely to get caught are the poorest Americans. Police concentrate their efforts to fight drugs on the poor neighborhoods. The rich are less likely to get caught because police do not typically patrol rich neighborhoods unless there is a reason to suspect the illegal activity (McWilliams, 1996). Even innocent people who happen to be poor are not exempt from punishment. Strict drug laws for public housing tenants go beyond the offenders themselves. The law states that tenants are responsible for anyone who enters the property, who participates in illegal drugs in any way, on or off the premises. This means that parents who are doing the best they can to be productive citizens could be evicted from their home if their teenager brings drugs into the home. The Supreme Court ruled that the law does, in fact apply to the tenant regardless of whether the tenant has knowledge of the criminal activity or not (Pilon, 2002). Is it right for the government to remove innocent people from their homes in the name of fighting the war on drugs?

Prohibition Puts Unnecessary Strain on the Criminal Justice System
Mandatory minimum sentencing laws for drug offenders is a major cause for prison over crowding. Violent offenders, who have no mandatory minimum sentence requirements for their crimes, are released early to make room for non-violent “criminals” who do (Cole, 2002). Federal sentencing guidelines require a five year prison sentence for possessing a single gram of cocaine. One gram is equivalent to a single packet of sugar (FAMM, 2002). Approximately 4,000 people are arrested daily for selling or using drugs. Roughly a half million non-violent drug offenders are in prison right now, who committed no other crimes (Stossel, 2004). A drug felon is more likely to spend more time in prison than someone who steals, rapes, molests children or even kills (McWilliams, 1996). Is society better off locking up someone for drugs than any of these other more serious offences?

Making room for a half million non-violent drug offenders means allowing a half million violent felons to roam free. Peter McWilliams, author and expert on consensual crimes, made this observation and stated:

Here’s how over worked law enforcement is in the United States: Only 21% of the people who commit murder and negligent manslaughter, forcible rape, robbery, aggravated assault, burglary, theft, motor vehicle theft, or arson are ever arrested; 79% of them – almost four out of five get off scot-free (1996, p200)

In an effort to alleviate the problem of overcrowding prisons, some jurisdictions have turned to “drug courts” as a solution. Recognizing the ineffectiveness of incarceration, Florida policy makers created drug courts as an alternative for first time non-violent drug offenders. Through the drug courts, drug offenders are given a chance to seek treatment instead of serving prison time. Florida’s drug courts have served as a model for the rest of the country (Facts.com, 2002). In fact, the White House is recommending an increase of an additional $32 million for fiscal year 2005; nearly twice the amount appropriated in 2004 for these drug court programs (The White House Office of National Drug Control Policy, 2004). While forced treatment is a better alternative than prison, treatment is only effective for those who truly want to get help. Even if drug users kick the habit, the criminal record that goes with it still has its consequences.

Drug Prohibition is Dangerous and Breeds Crime
Drug prohibition, as well intentioned as it may be, has at least one more consequence: it breeds crime and is dangerous. Why is it that people who, after being released from prison, return to a life of crime? Do they like being criminals? To answer these questions one must consider this: convicted felons cannot apply for federal student loans, have a difficult time finding jobs, have a difficult time buying or renting homes and are prohibited from voting (unless their civil rights are restored). There are no distinctions made between violent and non-violent offenders; a felon is a felon (McWilliams, 1996). The criminal record leaves ex-convicts with very few choices. The only market these most of these people qualify for is the black market. The experience of being locked up with violent criminals teaches inmates how to commit more crimes better.

Only 15% of people who try illicit drugs become addicts (Cole, 2002). For this unfortunate 15%, they find themselves desperate for more. Because prohibition artificially inflates the price of drugs, addicts resort to crime that does harm other people. Unless the addict happens to be very wealthy, stealing, selling drugs and prostitution are a few options for those whose daily drug habit can cost between $200 and $400 (McWilliams, 1996). Participating in the drug trade is very profitable but dangerous. When one dealer encroaches on another dealerÂ’s territory, very bad things happen. Things like drive-by-shootings, which oftentimes endangers the lives of innocent people (Cole). If drugs were legalized, the price would drop dramatically and the drugs could be obtained safely. Even chronically addicted people would spend no more than $5 a day. Supporting a $5 habit would be a great deal easier than supporting a $400 habit. All that would be required would be a part-time job (McWilliams, 1996). In fact 80% of all crime is related to drugs one way or another. It is then reasonable to believe that legalizing drugs would reduce crime by 80% (Cole). Law enforcement could then use its limited resources on the other 20%.

Prohibition is also responsible for much of the health risks commonly associated with banned drugs. Risks include: selling drugs to minors, dirty needles and paraphernalia, uncertain dosages, and contamination (McWilliams, 1996). If drugs were legalized, the government could regulate and set quality control standards for all drugs; much like alcohol and tobacco. To keep children from purchasing drugs, the seller would have to be licensed and could only sell to adults. Currently, drug dealers sell to anyone who will buy them, including children. Quality control standards would result in a lower occurrence of overdoses. The users would know how potent the product is by its labeling. Dirty needles and paraphernalia would no longer be an issue (Cole, 2002). The drugs could also be taxed to fund treatment programs to help those who want to get off drugs as well as drug education programs for schools.

Conclusion
The very idea of legalizing drugs is a scary prospect to most people. Upon further examination however, one thing is very clear: the current strategy is not working. Though the risks would be dramatically reduced, a number of people would still overdose. Regrettably, though drugs would be less accessible to children, some would still get their hands on them. Minors drink alcohol and smoke cigarettes despite both products being illegal, legalizing drugs would have similar effects. As terrible as that may sound, the drug problem could at least be contained through legalization. Granting amnesty to those who have been convicted of non-violent drug offences along with legalization, regulation, treatment and education would go a long way to reducing drug use and crime in general. It is unrealistic to believe that America will ever be 100% drug free. A certain number of people will use drugs no matter what the laws are. Prohibition continues to do more harm to society than drugs ever will. Ending prohibition, though not a perfect solution, would do much less damage. This effective solution would relieve much of the burden on the criminal justice system and would make America a safer place to live. Until America as a whole believes this and plans to do something about it, our society will remain “high” on its arrogance.

References
Cole, J. A. (2002). End prohibition now!. Retrieved April 22, 2004, from http://www.leap.cc/publications/endprohnow.htm

FAMM (2002). Crack vs. powder cocaine sentencing. Retrieved April 7, 2004, from http://famm.org/si_crack_powder_sentencing.htm

Facts.com (2002, February 15). Drug courts. Retrieved April 8, 2004, from http://80-www.2facts.com.ezproxy.apollolibrary.com/ICOF/Search/i0700280_1

McNamara, J. D. (1995, April 9). Cops view of the ‘drug war’. San Francisco Examiner,. Retrieved April 7, 2004, from http://www.leap.cc/publications/copsview.htm

McWilliams, P. (1996). Ain’t nobody’s business if you do: The absurdity of consensual crimes in our free country. Los Angeles, CA: Prelude Press.

Pilon, R. (2002, September 9). Tenants, students, and drugs: A comment on the war on the rule of law. Retrieved April 7, 2004, from http://www.cato.org/pubs/scr2002/pilon.pdf

Stossel, J. (2004). Give me a break: How I exposed hucksters, cheats, scam artists and became the scourge of the liberal media…. New York: HarperCollins.

The White House Office of National Drug Control Policy (2004, March 1). National drug control strategy FY 2005 budget summary. Retrieved April 10, 2004, from http://www.whitehousedrugpolicy.gov/publications/policy/budgetsum04/index.html

Illegal Immigration And The Way Forward

With the latest revelation that a Pulitzer Prize winning journalist, Jose Antonio Vargas, has come out as an illegal alien and John McCain’s latest stupidity, the issue of illegal immigration has popped back up. More and more states are joining the lead of Arizona and Alabama and are trying to take the immigration issue into their own hands in violation of the Constitution. The immigration issue is not one that is going to go away on its own and fair minded people on all sides need to sit down and come up with a solution.

First of all, most people who are clamoring for new immigration restrictions and harsh measures to deal with illegal immigrants are not racists. Most of them are motivated by genuine concerns about the rule of law and by misinformed concerns about the economy and national security. Demonizing immigration restrictionists will not advance the issue, but instead we should be trying to persuade them (and many can be persuaded once you actually talk to them).

Having said that, while I generally am for as open of a border as possible, I do believe that we do need to have some common sense immigration restrictions. We do need some border controls to keep out criminals, terrorists, and those with infectious diseases. We also need to do deal with the millions of illegal immigrants and their children that are already here. Finally, we need to have a path for those who want to come to America to work to do so legally.

Here’s my modest proposal, most of which has already been proposed.

To help people come here easier:

1) Create a new work visa program that can allow temporary, unskilled workers to come to the US to work on farms and other jobs “Americans won’t do”. Require the employers to pay for the visas and require everyone that chooses to take advantage of the visa opportunity to submit to background checks and health screenings before entering the US. Let them come for a limited time and let them leave if they choose to do so. If they stay, they can be allowed to convert their temporary visa into a green card, if they choose to do so. However, if they overstay their visa, harsh penalties should result.

2) Increase the quotas for legal immigration tenfold. Part of the problem with our immigration system is the long wait times for legal immigration. With wait times as long as 10 years in some categories, no wonder why people immigrate to the US illegally.

Enforcement:

1) I’m opposed to E-verify which is a stealth national ID. I’m also opposed to checking immigration status during traffic stops, however I don’t have a problem with it once someone has been arrested. I’m generally opposed to workplace enforcement and employer crackdowns.

2) Border fences and walls, both physical and electronic, won’t work. The only thing that will stop illegal border crossings are more border patrol agents. I’m not opposed to using the National Guard until the border patrol can be built up.

3) The focus of internal enforcement needs to be those who overstay their visas, like the 9/11 hijackers who overstayed tourism and student visas; not the guys picking onions and working at meat packing plants.

Those who are already here:

1) I have no interest in deporting or even punishing people like Jose Vargas who came here illegally as children. They had no choice in the matter. I’m also opposed to repealing birthright citizenship. Americans do not punish children for the misdeeds of their parents. This group of illegal immigrants need a path to citizenship.

2) Those who have crossed the border illegally as adults and are working and contributing to society and following the law should have a path to legalization. They should have the opportunity to come out in the open for a limited time, pay a fine, and have a limited, temporary visa to work and live in the US. Once that visa has expired, they must leave the US and apply for a new guest worker visa in their home country. I have no problem with this group eventually becoming permanent residents and citizens, but it must be done in an orderly fashion. Also, I’m not opposed with waiving fines and the requirement of leaving country if the illegal immigrant decides to service in the US armed forces with the reward being a green card once they leave the service.

3) Those who violated non-immigration related laws and overstayed visas should be deported immediately once their prison sentences have been served.

4) Obviously, illegal immigrants should be denied all welfare services except for education and emergency medical care. Nor should be eligible for perks such as in state tuition for college.

States who try to enact their own immigration restrictions:

1) Once an immigration reform law has been enacted, the Federal government should deny all law enforcement, homeland security, and transportation funding to states and cities who try to enact their own restrictions or prevent the enforcement of immigration laws. The Constitution gives the Federal government the sole power to enact immigration law, not the states.

This is my modest attempt at getting a conversation going on illegal immigration without the demagogic screaming that usually accompanies this issue on both sides. This is an attempt to solve this issue in a humane way that respects the rule of law.

I welcome your comments and suggestions below.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at IJ Review.com and Rare. You can also find me over at the R Street Institute.

Quote Of The Day

Coyote, on Paul Krugman’s claim that the Isaac Asimov Foundation series was an inspiration for him to go into economics:

I find it absolutely unsurprising that Paul Krugman was enthralled by the vision of a science that can be used by a few people to control the actions and futures of all humanity. He said “I want to be one of those guys!” I was captivated by the vision in the book as well, but my thought was always “how do we avoid these guys?” The second two books were about how government planners used mind control to deal with humanity whenever individuals had the gall to circumvent their plans. Lovely.

It somewhat reminds me why many dystopian novels started out as utopian novels. People like Krugman actually believe they can design out humanity’s desires in favor of their own preferences.

Montana Firearms Freedom Act: Tilting At Windmills

While I laud any state trying to expand the freedom of its residents while simultaneously thumbing it’s nose at Washington, I can’t see this ending well:

On October 1, 2009, Montana passed the Montana Firearms Freedom Act, the purpose of which was to regulate guns manufactured and kept within Montana state lines under a less restrictive regulatory regime than federal law provides. That same day, to ensure that Montanans could enjoy the benefits of this less restrictive state regulation, the Montana Shooting Sports Association filed a declaratory judgment claim in federal court.

The lawsuit’s importance is not limited to Montana, as seven other states have passed laws similar to the MFFA and 20 states have introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

The district court granted the government’s motion to dismiss, however, and MSSA appealed to the Ninth Circuit. Now on appeal, Cato has joined the Goldwater Institute to file an amicus brief supporting the MSSA and arguing that federal power does not preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which MSSA argues is a state-specific market distinct from any related national one.

The general question here is whether modern Commerce Clause jurisprudence should be upended for this case. I believe it should, but I believe it won’t. The manufacture/sale/possession of firearms, while declared to be purely intrastate matters, would seem to “substantially affect” interstate commerce in the same way as the Court found in Wickard & Raich. On the question of whether the activity affects interstate commerce, I don’t think there can be any debate should current Commerce Clause jurisprudence hold. Under such jurisprudence, the Feds can reasonably claim that their more stringent requirements for firearms is Necessary to effectively regulate firearms in an interstate manner.

The actual brief (linked above) submitted by Goldwater & Cato draws more narrow inferences than the quoted text above, however. They recognize the current precedent of Wickard & Raich, but push a state sovereignty angle which seems much more substantial. The argument seems to be that in areas traditionally regulated at the state level, rather than the federal level, and where the state action is protecting individual liberty rather than restricting it (i.e. no 14th amendment privileges & immunities issues here), the level of scrutiny required by the Feds to override State law should be significantly higher. However, I suspect that such efforts will still either fall short, or require Supreme Court gymnastics to carve out a VERY narrow exception here (i.e. emanations & penumbra gymnastics).

It’s telling that one of the cases used as justification here is a case [Massachusetts v. Sebelius] where Massachusetts argued against the DOMA, on the grounds that Massachusetts more libertarian law upholding same-sex unions was infringed upon by DOMA. Effectively DOMA made it impossible for certain federally-funded programs which would traditionally go to “married” couples (or survivors thereof) could not be extended to same-sex couples. Because the regulation of marriage was traditionally within the purview of the States, not the Feds, and because DOMA violated the State’s liberty-protecting equal protection clause within the Massachusetts Constitution, for the Congress to intervene here was shown to be a violation of Massachusetts sovereignty.

However, I don’t think the Massachusetts case will be applicable here. While it is traditionally the purview of the States to regulate marriage, I don’t think it can be shown here that Massachusetts recognition of same-sex marriage substantially affects interstate commerce. The portion of DOMA that would have protected states from being forced to recognize same-sex marriages from other states was also not at issue. While it might be within the general police powers of the States to regulate some aspects of firearms manufacture/sale/ownership, I believe the Court would find the Commerce Clause precedent more binding than a finding of state sovereignty.

Another aspect of the state sovereignty argument appears in section I-A of the brief [p7-11]. Several points are raised:

  • That the Federal government cannot force a State legislature to legislate as directed by the Feds. In this case, I don’t believe the point applies, as the Feds are not demanding the States implement this regulation for them, but rather declaring such regulation to be a Federal matter to be decided by Congress rather than the States.
  • That the Federal government cannot commandeer State resources for the execution of federal regulation. Again, they are not forcing State police to enforce a more strict version of firearms regulation, and various drug decriminalization (and State medical marijuana initiatives) have created a situation where, while a State may [unconstitutionally] declare certain activities legal that the Federal government deems illegal, the States are within their rights to limit the use of State resources for investigation and prosecution of Federal crimes that they deem unwieldy. California can simultaneously hold the position that while medical marijuana is Federally illegal, the State does not consider it criminal, and thus the Feds themselves must enforce it if they so choose.
  • That the Federal government may not regulate/criminalize wholly intrastate activities with no economic impact. I think Commerce Clause jurisprudence would suggest that manufacture/sale/possession of weapons cannot be shown to be wholly intrastate, and it certainly includes economic impact.
  • Finally, that the Federal government may not subject State government employees to the dictates or working regulations of the Federal government — I think this one is so far removed from the case at hand to not warrant discussion.

To argue that this is a matter of state sovereignty is to argue that regulations of firearms has been a long-standing matter of the states themselves, and that for the Federal government to step in and demand more stringent regulation under Commerce Clause grounds requires such heightened scrutiny that cannot be supported here. However, Federal firearms laws have been in force since 1934, and while this is not proof that the regulation of firearm manufacture/sale/ownership should be a Federal matter, it certainly cuts some strength from the argument that this is purely a matter of state sovereignty.

It seems to me that this lawsuit is a bit of a hail mary. For it to succeed, we would need to see a sea-change in Commerce Clause jurisprudence (almost impossibly unlikely), or for the Brady Bill and/or National Firearms Act to be struck down as Unconstitutional (because both would infringe on state sovereignty). A greater likelihood, based on current conservative makeup of the court, would be a VERY narrowly worded decision involving some legal gymnastics. However, given the deference to Federal power I’ve seen from Roberts & Alito, and given that they would need such a narrow crafting to ensure that they wouldn’t open up whole hosts of other State sovereignty challenges to Federal law, I don’t see much likelihood there. Fundamentally the plaintiffs are pushing for a general large change in Federal/State interaction, one which I doubt the Supreme Court is ready to uphold.

Of course, that’s all assuming it ever makes it to the Supreme Court, itself an unlikely prospect.

While I have great sympathy for the plaintiffs here, I can’t say I’d be laying strong odds on their success.
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Gary Johnson Makes his Case for President for Libertarians and Libertarian Leaning Republicans on Stossel

In case you missed it, John Stossel dedicated the whole hour of his show last Thursday to answer the question: Who is Gary Johnson? When Stossel took Johnson’s picture around the streets on NYC, only one person knew who he was. I think this could be one reason why his poll numbers are so anemic at this point.

The studio audience, mostly libertarian leaning (which is normal for Stossel), seemed to like most of what Gov. Veto had to say as he was routinely interrupted by applause.

It wasn’t a complete love fest, however. Stossel brought on guests to challenge the governor from both the Left and the Right to ask him some of the same asinine questions he would have likely been asked had he been invited to the N.H. debate. Johnson also got to debate a Barack Obama impersonator (which was kind of cheesy if you ask me).

I won’t go into anymore of my impressions from the program but I look forward to reading the comments section to see what some of your impressions are.

John Hospers, first Libertarian presidential nominee, dies at 93

Press release from the Libertarian Party on the passing of their first candidate for president:

John Hospers, first Libertarian presidential nominee, dies at 93

WASHINGTON – John Hospers, the Libertarian Party’s first presidential nominee in 1972, died on June 12, 2011 in Los Angeles, California at the age of 93.

Hospers became the Libertarian Party’s first nominee for U.S. President at its first national convention in Colorado on June 18, 1972. Hospers and his running mate, Tonie Nathan, each received one electoral vote in the 1972 election from Roger MacBride, a renegade elector in Virginia.

Hospers was a professor of philosophy at several universities, including the University of Southern California.

A brief biography is available at his website.

In 1971, he wrote the book Libertarianism – A Political Philosophy for Tomorrow, which described the libertarian political and economic philosophy.

Libertarian Party Chair Mark Hinkle said, “I’ve been involved with the Libertarian Party since voting for John Hospers for president in 1972. Dr. Hospers was very influential in the formative days of our party, and we will miss him.”

Quote Of The Day

Coyote, on the limits of government and the Amendment process:

While I am sympathetic to issues folks have with taxation, from a legal and Constitutional perspective the income tax actually comes from a better, almost more quaint time. Why? Because instead of dealing with the Constitutional problems with the income tax by having a series of judges stare at the Constitution with their eyes crossed until the problem disappears, they actually wrote and passed a freaking Constitutional amendment.

In fact, the 18th Amendment (prohibition) and the 21st Amendment (its repeal) were the last times the Constitution has been amended to give or take away Federal powers (everything since has been related to voting and elections). Ever since 1933, we have effectively added non-enumerated powers by essentially ignoring the Constitution, such amendment process being seen as too much of a hassle to stand in the way of critical regulations on seat belts or marijuana.

Everyone knows it took a Constitutional Amendment to get alcohol prohibition, but think about this in today’s world. Would we even bother? No way! Congress has taken on the power to regulate or prohibit just about anything it wants by stretching the commerce clause form its original meaning of preventing states from setting up barriers to interstate trade to an all-encompassing power of fiat to do anything Congress freaking wants.

In those “quaint” times, one might suggest that a Constitutional amendment would be required to begin a War on (some) Drugs. It was done without one, and now it’s threatening to take the 4th Amendment down with it.

Auto Bailout; Can’t Prove A Counterfactual, But You Can Infer

So the big debate is whether the gov’t should sell their post-IPO shares in GM. At current prices, they’d [unsurprisingly] be losing money on the sale, compared to the amount put up in the bailout.

So we have to ask — was it worth it? To determine that, we can’t base our entire calculation on the return of the bailout. A bailout is offered with the expectation that you might not get *any* return — you bail to prevent the craft from sinking; anything else is gravy. So to determine the worth of the bailout, we have to ask what would have happened in the absence of a bailout. Thankfully, the Center for Automotive Research released their prediction back in 2008:

Researchers at the Center for Automotive Research (CAR) in Ann Arbor, Michigan, estimate the impact on the U.S. economy would be substantial were all—or even half—of the three Detroit-based automotive manufacturers’ U.S. facilities to cease operations. The immediate shock to the economy would be felt well beyond the Detroit Three companies, negatively impacting the U.S. operations of international manufacturers and suppliers as well. Nearly 3 million jobs would be lost in the first year if there is a 100 percent reduction in Detroit Three U.S. operations.

“Our model estimates that a complete shutdown of Detroit Three U.S. production would have a major impact on the U.S. economy in terms of lost wages, reductions in social security receipts, personal income taxes paid, and an increase in transfer payments,” said Sean McAlinden, CAR chief economist and the study’s leader. “The government stands to lose on the level of $60 billion in the first year alone, and the three year total is well over $156 billion.”

Yikes! Sounds bad!

But would the automakers “cease operations”? Would they disappear into an economic black hole, never to be seen again, with only confused and unemployed UAW workers left behind like the un-Raptured masses?

Or would they, as Warren of Coyote Blog suggested way back when, be freed from working for an unproductive corporate environment and re-deployed in ways that their contributions will actually generate value?

So what if GM dies? Letting the GM’s of the world die is one of the best possible things we can do for our economy and the wealth of our nation. Assuming GM’s DNA has a less than one multiplier, then releasing GM’s assets from GM’s control actually increases value. Talented engineers, after some admittedly painful personal dislocation, find jobs designing things people want and value. Their output has more value, which in the long run helps everyone, including themselves.

I can’t find the specific post, but he has another where he suggests that if GM were even to face liquidation, it would not entail the loss of GM’s assets, much of its workforce, or its supply chain. The failure of GM [or Chrysler] would be painful, but fundamentally going through a serious bankruptcy [and/or liquidation] would free GM from its worst corporate problems, possibly returning them to a point where they actually generated value from their operations rather than losses.

Liquidation, of course, is the worst-case scenario. And there were plenty of folks suggesting that liquidation was impossible in the 2008-2010 era, because credit markets had seized and there was NO way anyone in the world would have the capital to buy up assets. But is it true?

Nope. Not at all. You need look no farther than Nortel. Nortel was a MAJOR telecommunications company, existing in one form or another since the late 1800’s, back in the days of the first telephone. It was built into an absolutely enormous conglomerate during the technology boom of the 1990’s, but like many companies in that sector, fell on hard times after the tech crash. They fought through bailouts in 2003 and 2009, but ultimately they declared bankruptcy right in the heart of the credit crunch, hoped to escape intact, but eventually had to go through liquidation. Between then and today, Nortel has basically ceased to exist. A look at the Wikipedia page for the liquidation results suggests that seized credit markets didn’t exactly stop them from finding buyers for their assets.

As an engineer who has dealt with what used to be Nortel and is now a collection of disparate companies that have purchased their assets, I can attest that Nortel has not “ceased operations”. That’s not to say that the changes over the last few years have been pain-free. There has been dislocation, there have been layoffs, and from my discussions with former Nortel employees as well as being a supplier, many things have changed. Fundamentally, though, Nortel’s business units are still in operations under different names. Many Nortel engineers are still employed within the same organization, only with a different letterhead on their business card. And as a supplier, I can say that the disruptions at Nortel have not put all of their suppliers out of business. Being a supplier has become more difficult in many ways — largely because the companies that bought Nortel units are run more efficiently than Nortel was, and this means that supplier competition is tougher — but that is fundamentally a good thing.

Would the experience of Nortel be the same as a potential GM or Chrysler bankruptcy? Obviously, it’s impossible to prove a counterfactual. But that also doesn’t mean that we should accept the claim that bailouts “saved the US auto industry” at face value. Had GM or Chrysler gone bankrupt, it’s likely that their various brands would have been picked up on the open market at various discount rates. Some might have been purchased for their own brand value, others might be purchased to use their factories and design engineers to produce vehicles under different nameplates.

One thinks, then, that the fear was not that the American auto industry would evaporate. The fear, instead, was that the psychological pride of having the “Big Three” would disappear. They didn’t care about jobs, they cared that Americans might be employed working for Toyota rather than for GM. It was nationalism, not economics, that drove decisions. As a result, the US taxpayer is going to prop up a manufacturer with a history of failure and little incentive to change (since one bailout can easily become two or three) solely in order to be able to say that GM still exists. You didn’t save an industry, America. You saved your ego.
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How To Deal With A Stalled Economy

I’ve been spending an inordinate amount of time reading 74 pages of forum posts on an pilot’s message board discussing the crash of Air France flight 447 several years ago. Fascinating stuff. It’s the tale of pilots faced with a situation of mechanical failure, but even worse, a situation which they misdiagnosed and thus took the exact wrong course of action. The basics:

It was at this point, after autopilot turned off and they worked to change their course, that a stall warning sounded, meaning that the airplane wasn’t generating enough lift. The report notes the co-pilot grabbed the controls and lifted the plane, which, according to aviation experts is contrary to normal procedure during a stall, when the nose should in fact be lowered. During the lift, the speed sensors plunged then spiked in an apparent malfunction, the report shows. “So, we’ve lost the speeds,” the co-pilot noted.

For nearly a minute, as the speed sensors jumped, the pilot was not present in the cockpit. By the time the pilot returned, the plane had started to fall at 10,000 feet per minute while violently rolling from side to side. But the BEA notes the crew acted in accordance with all procedures, frantically attempting to command the plane as it pitched and rolled in the sky. The plane’s speed sensors never regained normal functionality as the plane began its three-and-a-half minute freefall.

The report shows the flight remained stalled throughout the drop, with its nose pointed up 15 degrees in response to the pilots’ attempt to generate lift. The flight plunged into the Atlantic nose-up, killing all 228 on board.

Granted, those 74 pages of pilot posts suggest that there are likely some very reasonable explanations for why the situation was misdiagnosed. But key is that it doesn’t appear [from what has been released to date] that the pilots understood — at the point it became critical — that the aircraft was stalled and thus did the exact wrong thing. What they did seems (to non-pilots) to be an intuitive response; if you’re quickly losing altitude, you should try to climb. But this is exactly the wrong approach to a stall. In a stall, your airplane is behaving like an expensive rock, not an airplane. Despite losing altitude you must point nose down until you get enough airspeed over your wings for the airplane to become an airplane again. I’m not a pilot, and I understand enough about aviation to know that.

So why am I posting about such things on a political blog? Simple. Our economy isn’t behaving like an economy, it’s behaving like a rock. We’re stalled. Yet our politicians are trying to do the same thing the pilots of AF447 did to get us out of it: pull back on the yoke [subsidies & intervention] and goose the throttle [monetary and fiscal stimulus]. We’ve got inexperienced pilots at the controls, who know more about flying a plane in Keynesian theory than in Austrian reality.

What happened? Well, previous rounds of throttle [low interest rates / shoddy lending standards of Fed & banks during Bush administration] and pitch [national housing bubble] put our economy up in the realm of “coffin corner”, where seemingly minor changes in AoA or airspeed cause an aircraft to exceed its flight envelope in rapid fashion. I can’t claim that the Obama administration was handed a very easy situation. But that doesn’t begin to excuse them for adopting the exact wrong strategies to dealing with it.

America’s economy is stalled and not responding to your stimulus. It’s rapidly heading groundward and yet everyone in charge can’t seem to explain why pulling the nose up with fancy rhetoric isn’t fixing the problem. The answer is not for the government to try to fix the problem. It’s for the government to stop worsening the stall, get the hell out of the way, and let the economy start behaving like an economy again.

Cognitive Dissonance

Sometimes you hear a guy like Kevin Drum say this:

But of course, that’s the real slippery slope. If the state is allowed to prohibit me from killing myself, what else is the state allowed to do? Can it force me to accept medical treatment that will save my life? Can it force me to accept medical treatment that might save my life? If not, why?

I’m a liberal, but I’d just as soon keep the state out of decisions like that. I’d especially like to keep the state out if there’s no compelling secular reason for them to get involved. In this case, there sure doesn’t appear to be.

And yet you wonder how he can be so tone-deaf to any similar argument coming from the mouth of a libertarian. Or, in even sharper relief, the argument that comparative effectiveness review panels might not follow a slippery slope towards “death panels”, where the folks with the pursestrings (gov’t) decides some people just aren’t worth throwing the money in to keep alive any more.

My question for Drum is simple: with all the personal decisions that he thinks government SHOULD be involved in, why is this one suddenly verboten?

Eternal Sunshine Of The Lazy Mind

Seen over at Megan McArdle’s place today (original source unlinked):

Dear Dr. Boli: How can I progress from ordinary sleep into slumbering dogmatically? –Sincerely, “cs.”

Dear Sir or Madam: Dogmatic slumber, that easy and comfortable state of resting on one’s unexamined assump­tions, has been shown in multiple studies to be greatly desirable for promoting health of mind and body. Fortunately most people have little trouble achieving this state, and indeed many are seldom roused from it. If, however, you are one of those miserable unfortunates who suffer from dogmatic insomnia, or a perpetual restless examination of what most people take for granted, only a change in habits is likely to bring relief.

The works of David Hume are frequently blamed in cases of dogmatic insomnia, but unjustly so. The problem is not in the works themselves, but in our employment of them. In particular Hume’s Essay Concerning Human Under­standing, a weighty tome in every sense, is often misused. The mistake most sufferers have made is to open the book and read it, exposing themselves to the disturbing ideas in the text. If, however, when you retire for the evening, you instruct one of the servants to smack you forcefully on the head with the book, you will be virtually assured of a good eight hours of dogmatic slumber.

I’m not sure whether “ignorance is bliss”, but I’ll be damned if I haven’t seen a correlation.

Quote of the Day: Jon Huntsman on Foreign Policy/Interventionism

As reported in Politico:

“I can’t think of too many tribal countries with which we’ve been involved — Afghanistan is another one — where it’s easy to extricate yourself once you get involved,” Huntsman told reporters here after finishing a cruise with Republicans on northern New Hampshire’s Lake Winnipesaukee. “So it might sound like it’s a tangential supportive role at the beginning even if it’s just a no-fly zone. But you’re making a commitment … and sometimes those things become very hard to unwind.”

[…]

“We’re deployed in some quarters in this world where we don’t need to be. It’s time we take a look at the map and we start to clean it up,” he said, arguing that both national security interests as well as financial costs should affect the decision.

And in addition, “we need to do a better job of identifying who our friends and allies are around the world,” Huntsman said.

Gary Johnson Excluded from New Hampshire Debate

Of 13 candidates and potential candidates for the G.O.P nomination who were invited to participate in the June 13th debate in New Hampshire, 7 have decided to participate. As of now, the 7 participants in the debate will be Michele Bachmann, Herman Cain, Newt Gingrich, Ron Paul, Tim Pawlenty, Mitt Romney, and Rick Santorum. Notable no-shows are Sarah Palin, Mitch Daniels, Rudy Giuliani, and Jon Huntsman (Donald Trump and Mike Huckabee were also invited but both have since decided not to run).

Not invited to participate: 2 term New Mexico Governor Gary Johnson. Johnson did not meet the “objective criteria” as determined by CNN, WMUR, and the New Hampshire Union Leader. To put it bluntly, Johnson’s poll numbers are too low for him to qualify.

The Johnson campaign is understandably very disappointed that their candidate was not invited to debate in a very key early primary state. Ron Nielson, a blogger for Johnson’s official campaign website writes:

In the latest Gallup poll, released one week ago, Governor Johnson’s level of support registered at 3% nationally. This is competitive with candidates like Tim Pawlenty and Rick Santorum, both of whom have been invited to participate. In fact, I’m not aware of a poll in which Mr. Santorum has out-polled Governor Johnson nationally.

[…]

Why are CNN, WMUR, and the Union Leader excluding the one Republican candidate with executive experience and a record of fighting for true fiscal conservatism and limited government? Why are they denying Americans the opportunity to hear from the Republican presidential candidate whose popularity is growing by the day? If only Governor Johnson had supported a statewide health insurance mandate, like other candidates.

From there, Nielson encourages Johnson’s supporters to contact CNN, WMUR, and the Union Leader and urge them to change their minds. Nielson also points out that 2 of the debate participants, Michelle Bachmann and Rick Santorum haven’t even officially announced (seems to me that if the debate organizers wanted to exclude individuals, limiting the participants to those who have announced would be a more fair criteria).

In a statement Gov. Johnson released yesterday, he said he respects the decision of the debate sponsors but said its “unfortunate” that there will be a “missing voice” in the debate:

What will be missing is the voice of those who hold an undiluted view of individual liberty – those who believe that individual rights extend to women who face choices about abortion, Americans who happen to be gay, and those who don’t place other asterisks on freedom.

Likewise, there will be no voice for the growing number of Americans who see the hypocrisy and failure of drug laws that condone alcohol at White House Dinners while incarcerating millions of Americans, including our kids, who choose to smoke pot.

[…]

I look forward to participating in the July 10 debate in Las Vegas, sponsored by Americans for Tax Reform and the Daily Caller.

I’ve already made my case why candidates should not be excluded from the debates at this early stage, so I’m not going to repeat those arguments here. There is one point I intended to make in that post that I forgot to bring up though: the point in the campaign when candidates should be excluded from debates.

Is there a point in which candidates should be excluded? Of course! The point at which candidates should be excluded from the debates should be when it is mathematically impossible for the candidate to win enough delegates for the nomination. Last time I checked there haven’t been any primary votes and not a single delegate awarded to any candidate. Gov. Johnson has exactly the same number of delegates as Gov. Romney: 0.

Less than a month ago, Hugh Hewitt dismissed Ron Paul, Herman Cain, and Gary Johnson as “1%ers” who should be “exiled” from the debates because they have “no prayer of winning.” As of right now according to the RCP Average, Rep. Ron Paul is running in 4th place with 8.3% and Herman Cain is in 5th with 7.2%. Gov. Johnson doesn’t register on the RCP Average but is polling between 1-3% in the polls individually. In the most recent CNN/Opinion Research Poll (May 24 -26) “HORSE RACE WITHOUT RUDY GIULIANI OR SARAH PALIN” Ron Paul comes in 2nd with 15%, Herman Cain 3rd with 13% and Gary Johnson 9th with 2%.

While these poll numbers do not bode well for Johnson at this point, the other two individuals who were “1%ers” who had no business being included in the debates less than a month ago are polling better than some of the establishment favorites. Less than a month ago Herman Cain lacked name recognition and has gained substantial ground once he had the opportunity to introduce himself to primary voters. The same can happen for Gov. Johnson once more people learn about his record as governor and where he stands on the issues.

Controversial Organization Admonishes Soldiers and Peace Officers to Defend the Constitution

Every soldier and every police officer swears an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic,” but as a practical matter, what does this mean? What happens if the CO issues an order that violates the Constitution; is soldier or peace officer still required to carry the order out? What if the order in question comes from the President of the United States?

Stewart Rhodes, the founder of an organization established in 2009 called Oath Keepers, says that not only do soldiers and peace officers have a right to refuse to carry out an order that violates the U.S. Constitution but a sworn duty to disobey the order. Rhodes, graduate of Yale Law School, veteran, former firearms instructor, and former staffer for Congressman Ron Paul’s D.C. office, started Oath Keepers in response to what he perceived as an erosion of civil liberties that has escalated since 9/11.

Oath Keepers’ critics (particularly on the Left) believe the organization to be a Right wing “extremist” organization full of Birthers, Truthers, militia members, hate groups, and various other conspiracy theorists. In this article in Reason, Rhodes clears the air. Also, found in the organization’s bylaws:

Section 8.02
(a) No person who advocates, or has been or is a member, or associated with, any organization, formal or informal, that advocates the overthrow of the government of the United States or the violation of the Constitution thereof, shall be entitled to be a member or associate member.

(b) No person who advocates, or has been or is a member, or associated with, any organization, formal or informal, that advocates discrimination, violence, or hatred toward any person based upon their race, nationality, creed, or color, shall be entitled to be a member or associate member.

So what specifically makes Oath Keepers so controversial? My guess would be their list of 10 “Orders We Will Not Obey”:

1. We will NOT obey orders to disarm the American people.

2. We will NOT obey orders to conduct warrantless searches of the American people

3. We will NOT obey orders to detain American citizens as “unlawful enemy combatants” or to subject them to military tribunal.

4. We will NOT obey orders to impose martial law or a “state of emergency” on a state.

5. We will NOT obey orders to invade and subjugate any state that asserts its sovereignty.

6. We will NOT obey any order to blockade American cities, thus turning them into giant concentration camps.

7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext.

8. We will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control.”

9. We will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies.

10.We will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.

Imagine how much freer our country would become if everyone in law enforcement and in the military adopted this creed and took their oaths seriously?