Author Archives: Brad Warbiany

Microsoft & the Market Monopoly

I got in a nice email debate today, and I will post below the email exchange between myself and a friend. Of all my friends, she is one of the two that I truly enjoy debating. She is a lawyer, and did her undergrad as an in economics and poli sci (I think poli sci) dual major. She was also very close to libertarianism back in her younger days, so she understands where I am arguing from. She has left our fold to become a pretty strong liberal, but her knowledge of economics and general pragmatic attitude generally make our debates quite productive.

I sent out an email today to alert friends and acquaintances of my email address change. I am changing for no other reason than deliberate efforts by Microsoft to annoy FireFox users, and as a former Hotmail user, I was feeling the brunt of those efforts. In past debates, we have often sparred about the monopoly power of Microsoft, and monopolies in general, so she used my email as a reason to start a sparring match. Not being one to back down, I took the bait, and I think the exchange was pretty strong on both sides. When I asked her approval to post the exchange, I offered her the ability to have the last word (and unlike Bill O Reilly, I will stand by that offer). So I do not plan to address her final points in my post, although if my commenters would like to have a go, I may play along.

Do not get me wrong, there is no denying that the world would be a very different place without the products and services offered by Microsoft. Take Microsoft Azure for example. In case you were not aware, Microsoft Azure, formerly known as Windows Azure, is a public cloud computing platform owned by Microsoft. Azure provides a range of cloud services, including computing, analytics, storage, and networking. Essentially, users can pick and choose from these services to develop and scale new applications, or run existing applications in the public cloud.

The Azure platform aims to help businesses to manage challenges and meet their organizational goals. Correspondingly, Azure provides tools that support all industries, including e-commerce and finance and these tools are fully compatible with open source technologies. Above all, this provides users with the flexibility to use their preferred tools and technologies. Accordingly, Azure offers 4 different forms of cloud computing: infrastructure as a service (IaaS), platform as a service (PaaS), software as a service (SaaS), and serverless.

If you would like to learn more about Microsoft Azure, there are a number of fantastic Microsoft certification exams out there for IT professionals. For instance, the az-120 exam is an exam that helps candidates to showcase their abilities for using Azure infrastructure to manage SAP (System Applications and Products in Data Processing) workloads.

Anyway, that being said, below is the exchange. I have tried to clean up some of the spelling errors and typos along the way, as this was intended as an email exchange and not proofread during the debate. If I missed anything, my apologies. My comments will be in italics, and prefaced with a “B:”. Her comments will be blockquoted, bolded, and prefaced with an “R:”. The exchange is placed below the fold, as it is quite lengthy.
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Rights of the Government to Impose Air Security Measures

In response to my piece, Common Sense Offends ACLU, addressing the ACLU’s opposition towards the behavioral screening procedures imposed by the TSA in certain airports, commenter John Newman brought up some questions. John believes that federalizing aviation security matters is Unconstitutional. He advances two particular arguments.

His first argument discusses the Constitution’s “fundamental right to travel”. It mainly consists of picking quotes from Supreme Court cases upholding the fundamental right of travel. I will first mention that the fundamental right of travel is not once mentioned in the Constitution, but may be built from penumbras emanating from some such or the like. But that’s not the crux of the argument. See the following quotes from John’s own selections of court cases (emphasis added below in italics):

require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules or regulations which unreasonably burden or restrict this movement

‘any classification which serves to penalize the exercise of that right unless shown to be necessary to promote a compelling governmental interest, is unconstitutional’

The right to travel, to go from place to place as the means of transportation permit, is a natural right subject to the rights of others and to reasonable regulation under law

fundamental personal right that can be impinged only if to do so is necessary to promote a compelling governmental interest

a ‘fundamental’ one, requiring the showing of a ‘compelling state or local interest to warrant its limitation

At the minimum, governmental restrictions upon freedom to travel are to be weighed against the necessity advanced to justify them, and a restriction that burdens the right to travel ‘too broadly and indiscriminately’ cannot be sustained

is basically the right to travel unrestricted by unreasonable government interference or regulation

Note the words used, for they are important. “Compelling government interest.” “Unreasonable burden.” These are phrases which, in Constitutional jurisprudence, have very specific meanings. Another particular phrase that must be added is “strict scrutiny”. A Congressional Research Service paper on Constitutional objections to the showing of ID on airline flights (warning: pdf) covers the defense of the “right to travel” objection quite well:

The Court has declared that the constitutional right to travel consists of three different components: first, it protects the right of a citizen of one state to enter and to leave another state; second, it protects the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second state; and third, for those travelers who elect to become permanent residents, it protects the right to be treated like other citizens of that state. In the context of transportation security, however, only the first prong of the right to travel appears to be relevant.

Consistent with its status as a fundamental right is the requirement that the government’s action satisfy the constitutional standard of review often referred to as strict scrutiny, or heightened scrutiny. Under strict scrutiny the government must provide a compelling state interest for the burden and show that the means utilized are narrowly tailored to the achievement of the goal or, phrased another way, the least restrictive means available.

Given that the airlines are seemingly authorized to refuse service to anyone who fails to present proper identification, it appears that a strong argument can be made that there is an additional burden imposed on citizens who wish to travel by airplane. Thus, the inquiry should focus on the standard of review that should be applied. It appears difficult to argue that passenger safety and transportation facility security are something other than compelling governmental interests. Thus, it seems that, regardless of which standard of review is applied, the government may be in a strong position to argue that not only are the current security restrictions justifiable, but also that their burden on the right to travel is minimal and given the present conditions entirely reasonable.

From the look of it, to claim that the requirement that one shows ID in order to engage in air travel is unconstitutional appears to be– at the least– unsupported by Constitutional precedent. According to the court cases cited, regulations can legitimately be placed upon travel if there is a compelling state interest to uphold. One would think that stopping passengers from blowing up planes or hijacking them and flying them into buildings would meet even the “strict scrutiny” test.

So we must move on to John’s second argument, which is much shorter and yet at the same time, more difficult to answer. He asks where it is enumerated that airline security is a federal matter to begin with?

If the airlines want to impose security practises and procedures, I have no problem with that. Where is it enumerated in the Constitution that it is a matter for the federal government?

There are a lot of ways to answer this question. The first answer, although some creativity can change it, is that it simply isn’t in there. Article I, Section 8 has no provisions for regulation of airline security, nor does it ever claim that police power is the realm of the federal government. But two particular provisions might at least be able to be shown to have relevance:

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

This is, of course, a stretch up there with those who might envision a “living Constitution”. But if we’re going to allow a “fundamental right to travel”, I’m asking for a little bit of leeway. As I said above, nothing in the Constitution gives the federal government police powers over the states. But here’s where you can find a bit of an AHA! moment. The bits in Article I, Section 8 regarding Piracies and Felonies on the High Seas are quite analogous to those of hijackings and bombings of commercial aircraft. Both involve non-government-owned vessels (i.e. the government did protect private merchant ships from piracy); and both involve territory separate from that of land under the jurisdiction of the several states. When it comes to international waters and spaces, laws tend to become blurred and confusing which is why legal matters under maritime law should be taken up with lawyers experienced in this field.

Second, the whole bit about “repel invasions”. We are in a war against foreign and quite possibly partly domestic enemies who will use commercial airlines to attack our nation. I don’t like using the “national security” defense in most circumstances, but there is a certain point at which one might allow that protecting our buildings and populace from terrorists who will (and have) hijack aircraft with the purpose of using them as guided missiles to attack civilian targets is a reason for which we might want to take on government-ordained security procedures.

Last, John had suggested that perhaps if the airlines wanted to enact security procedures, that might be enough for him (although I don’t understand how he does not similarly support private hiring and firing practices). And if the airlines had secure cockpits and could not be hijacked, I might agree. But once the airplane becomes a guided missile filled with fuel aimed at a building, the equation changes. Just as states and municipalities have laws regarding drunk driving or speeding, which can turn an automobile into a 3,000 lb missile, the feds have airline security regulations to keep an airplane from doing the same thing. The only thing that gives the feds jurisdiction, though, is that the particular exigencies of airline travel require it.

Simply put, there are a lot of things about federal power that highly disturb me. This is one of the few that does not. I’m not one to suggest that we should federalize the airport screeners, following in Daschle’s footsteps; because I suspect the procurement of security is better handled by the private sector, while the requirements of security are best handled by the government.

Either way, John, I thank you for the good-natured and challenging debate. As always, when debating a formidable opponent such as yourself, I only learn more and improve my own understanding in the process. And, of course, I’m sure this won’t quite be the end of it :-)

(cross-posted at The Unrepentant Individual)

The Gadsden Flag

Gadsden Info
For the Christmas party we had over the weekend, we decided to do a gift exchange. When we had to tell everyone what we wanted several weeks ago, I explained that I wanted a Gadsden Flag for my basement. That caused quite a bit of a controversy. I did end up getting the flag, but it brought on even more comments. One of our friends (the liberal lawyer, a former libertarian) said that she thought it was the kind of thing “someone in a militia would have”. Efforts to explain that I’m not a violent person, even with uses of terms like “gentle giant”, didn’t really get across why I love this flag.

For me, the Gadsden flag elicits an emotional response. To me, the American flag is a symbol of our nation, but it’s the refined, socially acceptable version. The Gadsden flag, however, seems like a symbol of our national spirit. And it is a distinctly American symbol. The rattlesnake is ours alone. “Don’t Tread On Me” could very well be an American motto. But I take the idea of “Don’t Tread On Me” and internalize it.

It is a personal issue. Eric’s essay on the Sovereign Individual explains it very succinctly. “Don’t Tread On Me” is a personal statement. It is the statement that I truly am a sovereign individual. It is the statement that I recognize myself, not the government, as the ruling authority in my life. And that recognition extends farther. My parents are not the ruling authority, although I look up to and respect them. My wife is not the ruling authority, although I usually defer authority to her most of the time. I follow my own ethical and moral code, and I believe that I’m a generally good person in doing so. But I do so for my own self-worth, not because society, or government, or the world tells me what to do. “Don’t Tread On Me” says that if you treat me like a servant or a subject, your commands carry absolutely no weight with me.

But it serves a different purpose at the same time. It is a reminder. Every person in this world makes a choice whether to be a sovereign individual. Most of them make the negative choice, and most of them do not make that choice consciously, they adopt it as a default position. They abdicate responsibility for their own lives and their own decisions, and when something like Katrina comes along to shock them into the reality that they alone are responsible for themselves, their world crashes down around them. My new Gadsden flag is a personal symbol that I have made that choice deliberately, and made it in the affirmative. It is a symbol that will hang proudly and prominently on the wall in my basement. As much as it is a reminder to me, it is a signal to all who enter that America is more than just a nation, it is an idea.

Natural Rights doctrine – the missing piece

Some of you remember the debate raging a while back about whether property rights are natural rights, and exactly what that means. There were a few things that just didn’t sit right with me, but I haven’t had the time to really collect my thoughts and provide the response I wanted to give, until now.

To sum up, Eric, Robert, and I argued that property rights were a natural right because they exist inherent to man’s nature, and that is why we should push them as a society. Alice and JimmyJ pointed out that whether they exist in a state of nature or not, a right is only as valid as the society surrounding it. And Dada took that line of thinking to the next level and decided that socialism is perfectly valid because a society can define rights as they wish.

The disconnect for me was that I heard what Alice and JimmyJ said, and they are correct. Once you reach the point where you have a society and government, your rights are truly only worth the ability to back them up. America is still pretty well off on that score, but societies throughout history have proved that life, liberty, or property rights are quite easily discarded by an overbearing government. We can call them “natural rights” all we want, but a natural right to life doesn’t stop a corrupt government from putting a bullet in your head. To clear up this disconnect, we need a valid reason for why a society should be set up to recognize and protect those rights. In our debate, neither myself, Eric, or Robert explained why that should be the case. And that’s unfinished business.
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The World’s Youngest Curmudgeon

There are many roads to becoming a classical liberal, and I would be sure that among the various contributors to this blog, we’ll have traveled a wide variety of them. Many people older than myself once held faith in the institutions of government, only to learn over time that their faith was unfounded. They were part of the system until they learned how asinine the system was. I took the opposite road.

I’m a bit of an introvert. I grew up without a lot of confidence in social situations, and accordingly, found myself a fly on the wall observing the behavior of others. You learn quite a bit about the world when you close your mouth and open your ears, and what I saw increasingly just didn’t make sense. I watched the group dynamics of my “peer group” throughout school, where more importance was placed on which clique you were a part of than what occurred between your ears. It became more important as people got older that you acted to “fit in” to a group than be yourself and let the chips fall where they may.

And it’s not gotten any better with age. I sit now and watch the bickering between the Democrats and the Republicans, knowing that neither group considers principles or ideas to be the guiding force in their actions, it is partisan politics and satisfying interest groups that’s important. It has become a clan mentality, where protecting members of your clan is a moral imperative regardless of whether or not they deserve it. Where you regularly proceed with slandering members of opposite clan, even if they’d normally be someone you’d be friends with. It is now more important to fit in with your political party, or your race, or your class, or your gender, or any number of manufactured cliques than it is to even hold beliefs and stand up for your own thoughts.

I observed all this from a vantage point on the outside, and I became disgusted. I resigned myself to make up my own mind on every issue based on the evidence and the arguments I had available to me. I named my personal blog the Unrepentant Individual, which has led some to believe that I hold myself above reproach and act without apology for things I do. This is not true. What I will not apologize for is being myself and only myself. I consider myself to be an individual, and any “membership” I hold with others of my political party, my race, my socioeconomic class, my gender, or any other manufactured clique is just ancillary. I am not a “classical liberal” because it sounds fashionable, rather because the arguments I’ve found towards classical liberalism seem much more compelling than any other political philosophy I have yet found.

Eric has asked me, as well as many other bloggers, to blog here because we tend to agree on a wide variety of issues. We look at the world in much the same way, and we have very similar goals. But I am not here to kowtow to the wishes of a group, because while this is a “group blog”, it is a coalition of like-minded individuals, not membership in a club. Most of these bloggers are people who I consider to be my closest friends in the blogosphere, and are all people I respect very highly. I can’t say that for all conservatives, all libertarians, or even all people who consider themselves to be classical liberals, and there are quite a few people on the opposite side of the debate who I highly respect, no matter how much I may disagree with them. These are individuals that I respect, not members of my clan.

To people that don’t understand the way I think, I tend to appear far more obstinate, stubborn, and curmudgeonly than anyone born in the late ’70s has a right to. But part of being an unrepentant individual makes me not care one iota about that. I am who I am, and people who don’t like that know where to go.

I write primarily for The Unrepentant Individual, and am also a contributor at The FairTax Blog.

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