Category Archives: Individual Rights

Libertarians Debate on Stossel (Part 2 of 2)

Watch-Part-One-Of-The-Libertarian-Party-Debate-On-Stossel-702x336This isn’t by any means an exhaustive analysis of the second part of the Stossel LP presidential debate but I wanted to share the video now before too much time passes and this becomes irrelevant.

In this second part, Fox News hosts Bill O’Reilly and Geraldo Rivera each posed a video question regarding drugs. O’Reilly said he had a question for “the libertarian geniuses” which it seemed that he thought he really had a question that would stump them. As it turned out, O’Reilly’s question made him look like a fool. What he thought was a fast ball was actually a hanging curveball that any libertarian worth his or her salt would have hit out of the park (It’s clear that either he doesn’t watch Stossel’s show because he crushes these kinds of questions on a regular basis). All three candidates indeed did hit it out of the park (bonus points for Petersen for calling O’Reilly a pin head).

Geraldo’s question was a bit more nuanced: Should government have programs to help drug addicts? Among the three candidates, I thought McAfee had the best answer. Treatment cannot be forced on those who don’t want it.

From there, Stossel addressed more of the issues in which libertarians are outside the mainstream.

Combining the two parts of the debate together, my opinion hasn’t changed much. I feel like Austin Petersen “won,” I liked much of what John McAfee had to say (he has a great voice too; he should get into broadcasting), and if anyone “lost” it was Gary Johnson.

All of that being said, any one of these individuals is lightyears better than what the blue and red teams are offering.

Libertarians Debate on Stossel (Part 1 of 2)

Watch-Part-One-Of-The-Libertarian-Party-Debate-On-Stossel-702x336In case you missed it, the first half of the Libertarian Party Presidential Debate aired on Stossel on April 1st (the second half will air on Friday, April 8, 2016). The three participants were 2012 Libertarian Party presidential nominee and former New Mexico Governor Gary Johnson, software developer John McAfee, and the founder of the blog The Libertarian Republic Austin Petersen.

After watching some of the GOP debates and the first Democrat debate, watching the Libertarians debate was refreshing. No name calling or commenting on the appearance of the other candidates. No scolding the debate moderator for asking questions the candidates didn’t like. To the extent that one candidate challenged or disagreed with another they were on the substance of the issue at hand (more on that in a moment). There seemed to be more areas of agreement than disagreement (and even a kiss on the cheek) among them. This debate was more about presenting to a national cable audience the case for Libertartian policy alternatives to those of the Republicrats.

Did any candidate “win” Part 1 of the debate or help/hurt his chances with the LP faithful or viewers who are open to supporting a third party candidate?

I can only answer for myself. I enthusiastically supported Gary Johnson in 2012 all the way back from when he was running for the GOP nomination to election day as the LP’s nominee. Of the three, he’s the only one I was all that familiar with. I took the Isidewith.com survey on the issues (mentioned in the debate) several weeks ago and found that I sided with Austin Petersen 97%, Gary Johnson 92%, and Ted Cruz 77%. I’m not sure why John McAfee wasn’t among those I sided with because I found myself in agreement with much of what he said in the debate. Due to these results, though Gov. Johnson is sort of my default favorite I watched with an open mind.

To my surprise, indeed I did find myself agreeing more with the thirty-five year old Austin Petersen than the other two. For libertarians looking for “purity” of libertarian principles, Petersen is your guy it seems (based solely on one half of one debate). When asked about whether a cake decorator should be forced to make a cake for someone based on personal or religious reasons, Johnson (to my profound disappointment) said they should while Petersen said the market should decide making the freedom of association argument (an argument every good libertarian should have down pat).

The second strike against Johnson and for Petersen was the question of the so-called gender pay gap. Johnson sounded like a progressive echoing the “equal pay for equal” work line but said he would be hesitant to sign any equal pay legislation because “the devil is in the details.” Petersen on the other hand skillfully explained why the gender pay gap is a progressive myth. McAfee, for his part argued that if a person doesn’t like how much they are being paid they are free to look elsewhere.

There’s certainly more in the debate that I didn’t get into here. My conclusion as far as my opinion goes: Petersen helped himself, Johnson hurt himself, and McAfee is intriguing. In a world where Hillary Clinton and Donald Trump are looking to be their party’s nominee any of the three would be hands down a better choice.

A Lesser of Evils: Why Ted Cruz Cannot Be My Anti-Trump

Senator Ted Cruz

I’ve never been a lesser-of-evils sort of voter. It’s too cynical and depressing an approach to life. Anyway I rarely think one of the major party candidates is “better” in some meaningful sense than the other.

This election is different. I cannot shake a nagging unease that one candidate must be avoided, perhaps with a vote for any marginally lesser evil capable of stopping him, however distasteful.

That candidate is Ted Cruz.

I’m not joking. There’s no punch line coming. I don’t think Ted Cruz believes in fundamental, unenumerated rights, constitutionally protected from political majorities at the state and local levels.

Probably many or even most of the other candidates share this shortcoming. What sets Cruz apart is his more sophisticated ability to appoint Supreme Court justices who share his views, as he has vowed to do.

Under that specter, liberty-leaning voters should ask for clarity and reassurance from the Cruz campaign on the following issues before casting a vote in his support.

Does Ted Cruz Want to Limit the Power of Judicial Review? In 1803, the Supreme Court decided Marbury v. Madison. Since that time, the Court has exercised three powers:

  1. It can refuse to enforce acts of the other branches if five or more of its nine justices believe such act was in excess of constitutional powers.
  2. It can enforce acts of the other branches of government, if five or more of the justices believe such act was constitutional.
  3. It can require otherwise constitutional acts of the other branches to be exercised in accordance with the Equal Protection Clause.

That’s it. Under the first, the Court delineates areas of individual liberty into which no political majority may intrude. Under the second and third, it enforces the acts of other branches of government. Under none of the three does the Court “make law.”

Liberty voters should therefore ask what Ted Cruz is gunning for when he says things like:

I don’t think we should entrust governing our society to 5 unelected lawyers in Washington. Why would ya possibly hand over the rights of 320 million Americans to 5 lawyers in Washington to say, “We’re gonna decide the rules that govern ya?” If ya wanna win an issue, go to the ballot box and win at the ballot box. That’s the way the Constitution was designed.

I think we can rule out number two; he’s not complaining about acts of the political branches. His rhetoric, to the contrary, suggests that he wants political majorities unfettered by such inconveniences as meddling Supreme Court justices.

He could be taking aim at number three, in which case it is not the laws he dislikes, but the doctrine of Equal Protection. Either way, the Court is not responsible for having enacted the laws that are subject to that doctrine. The political branches are.

It sure sounds like it is the first option Cruz is targeting. He does not like the Court delineating areas of individual liberty beyond the reach of political majorities.

That is a deeply authoritarian approach to government. Unless and until Cruz repudiates it convincingly, he cannot be my “not-Trump.”

Does Ted Cruz Believe in Unenumerated Rights and Substantive Due Process? Under the view of many libertarians, the Constitution enumerates the powers of government, but not the rights of individuals. The former are few, narrow and circumscribed. The latter are many, broad and transcendent.

This is the view held by Rand Paul and other libertarian constitutionalists from organizations like Reason Magazine, the Cato Institute, the Foundation for Economic Education, and the Institute for Justice.

It is also my view.

One textual source for this approach is the Fourteenth Amendment to the Constitution, which prohibits political majorities at the state and local levels from depriving individuals of the privileges and immunities of citizenship, of equal protection of laws, or of liberty without due process.

The “liberty” thusly protected has been interpreted to include economic endeavors as well as other peaceful activities integral to enjoyment of life and the pursuit of happiness. The concept that such freedoms are Constitutionally protected, even though not expressly mentioned, is sometimes referred to as the doctrine of “substantive due process.”

There are competing schools of thought. One is that only individual rights expressly enumerated in the Constitution are beyond the reach of political majorities. Under this view, the Fourteenth Amendment was adopted to prohibit racial discrimination, not to proscribe state infringement of unenumerated rights.

That is the view expressed by Ted Cruz at a hearing he conducted before the Senate Judiciary Committee exploring ways to “rein in” the Supreme Court. Cruz’s comments at the hearing suggest, on deeply personal issues from marriage to economic rights, he prefers “the Supreme Court defer to state legislative decisions rather than uphold individual rights.”

This is as unlibertarian a position as a candidate could hold. Saving the GOP from a Trump loss to Hillary Clinton is not a reason to support a nominee committed to undermining individual liberty in favor of majority rule.

Is Cruz Committed to Individual Rights? Or States Rights? Ted Cruz’s passion is not the fundamental liberty of individuals, arguably enshrined in the Fourteenth Amendment. It is, rather, the power of state legislatures found in the Tenth.

He’s “a Tenth Amendment guy,” according to his wife. Indeed he once headed the Texas Public Policy Foundation’s Center for Tenth Amendment Studies. When Ted Cruz talks about limited government, he is talking about limiting federal government. His concern is federal versus state, not individual versus collective.

Then too, even on that more beloved Constitutional provision, Cruz is willing to stray if it means more power for the right kind of majorities. He was in favor of the federal government defining marriage before he was against it. He likes states’ rights when they ban same-sex marriage, but not as much when they decriminalize marijuana.

He might be a federalist, for those who don’t mind states’ rights served squishy. But he’s no libertarian.

How Far Will Ted Cruz Go to Bend the Judiciary to His Interpretation of the Constitution? Despite the “sour fruit” of John Roberts’ decisions in NFIB v. Sebelius and King v. Burwell, conservatives continue their misguided pursuit of a “deferential” judiciary. In their statist hearts, they would rather accept the big government of Obamacare than lose the power to regulate social order.

If NFIB v. Sebelius is the price of winning the next Obergefell v. Hodges, it is one they will pay.

This is not a trade-off liberty lovers should make.

Yet Ted Cruz wants to subject the Supreme Court to term limits and retention elections. As the Institute for Justice’s Evan Bernick wrote in the wake of Cruz’s SCOTUS hearing:

…[I]t is Cruz who strayed from the text and history of the Constitution, both in his histrionic criticism of Obergefell and his suggestion that the cure for America’s constitutional ills is an even more inert judiciary.

Cruz’s most fundamental error lay in the premise of the hearing itself: The most pressing threat to constitutionally limited government today is not “judicial activism” but reflexive judicial deference to the political branches.

We can have a judiciary that reflexively defers to the political branches or we can have constitutionally limited government — but we cannot have both.

Liberty voters must consider whether they want Supreme Court appointees to facilitate the powers of political majorities or to protect individual rights from the overreach of such exercise. Ted Cruz appears to be on the wrong side of that choice.

Until he convinces me otherwise, that puts him on the wrong side of mine.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Weakening Encryption: The China Problem

By now, you’ve heard that the FBI has asked Apple to help break into the iPhone belonging to one of the San Bernardino terrorists. USA Today describes the specific request:

Right now, iPhone users have the option to set a security feature that only allows a certain number of tries to guess the correct passcode to unlock the phone before all the data on the iPhone is deleted. It’s a security measure Apple put in place to keep important data out of the wrong hands.

Federal prosecutors looking for more information behind the San Bernardino shootings don’t know the phone’s passcode. If they guess incorrectly too many times, the data they hope to find will be deleted.

That’s why the FBI wants Apple to disable the security feature. Once the security is crippled, agents would be able to guess as many combinations as possible.

Suppose Apple can do this. Suppose that the courts, up to and including the Supreme Court find that they must.

At that point, every device maker who wants to sell a device in the US would have to build this weakening capability into their products.

Putting aside the obvious fact that this capability will be reverse engineered by the wrong people, the impact of this decision on the rest of the world (and Americans abroad) has not received the attention it should.

Nothing stops other countries from presenting similar demands under their own laws. In the case of liberal democracies, the harm to the innocent would be limited. Repressive regimes, though, would quickly utilize this new capability.

Imagine a case in which China got hold of the iPhone of a US citizen at the border about whom it was suspicious. It could present the phone to Apple to decrypt under Chinese law.

Why pick China for this example? While a company might be able to tell of Iran, Venezuela, or even Russia, China is an integral part of the global technology supply chain. They are uniquely positioned to exert leverage in the technology sector where other repressive regimes are not.

The only thing preventing China from using its leverage today is the mathematical impossibility of cracking the encryption. Take that out of the picture, and things get interesting for device makers.

Why pick a US citizen? This one is more interesting. The US government (and states and localities) have multiple ways to digitally spy on their citizens. They can capture traffic on American internet connections. They can subpoena information from cell phone carries and ISPs under the third party doctrine.

Foreign governments don’t have access to any of these. While the US does share intelligence with friendly government, repressive regimes such as China are left out in the cold. Capturing the device of an American is one of the few possible ways for a repressive regime to get at the info.

By demanding that Apple weaken security around its encryption, the FBI will be handing China an entirely new ability to compromise the security of American citizens while only marginally increasing its own reach. Considering that China has been expanding its hunt for dissidents to other countries, the last thing that the US government should consider doing is making Americans with smartphones more attractive targets.

A Simple Question

mexico-drugs-sfSpanSo… hardcore drug warriors out there… I have a very simple question for you…

Why?

You can’t stop people from getting high. It’s NOT POSSIBLE.

It literally does not matter how far you go, you cannot stop it.

We can’t stop heroin from getting into supermax prisons, where there are no visitors allowed, and everyone is body searched in and out.

I just had a dedicated drug warrior fully sincerely advocate that we completely seal the border, and that every vehicle, container, and person should be fully cavity searched.

When I pointed out that cavity searches didn’t stop heroin from getting in to supermax prisons, he said that we need to have full walls on all the borders, and boats to patrol the coastlines to stop smugglers.

You can’t stop people from getting high. This is not an issue of sealing the borders.

Even if you actually sealed the borders successfully, then they would just grow it here.

How exactly would you stop that?

It would require constantly patrolling millions of acres of property, both public and private; searching all greenhouses, and all forests, and all fields of any kind, at least once every 90 days… in the entire country.

Doing so… aside from the massive violations of peoples rights, would require millions of law enforcement officers dedicated to it.

That would cost more than the entire budget of the United State by the way.

Even if you manage to completely eradicate all opium poppies, and all coca plants on the planet, they will just synthesize it in labs… and by labs, I mean, any quiet room with an electrical outlet, or anywhere you can run a generator, or a blow torch.

If you completely ban all substances that people could get high with, you ban thousands of legal products with legitimate and critical uses, including a huge number of critical medications.

You also have to ban all lab equipment, or closely license and track its sale. And all chemicals of all kind… and many kinds of foods. And most kinds of flowers.

And all machine tools, and glass blowing equipment… and blow torches, and pipes and tubes and sand…

And you’ll have to dig out and burn out millions and millions of acres of plants.

We have 7,500 miles of border. We have 13,000 miles of coastline.

You can make it a death penalty offense to posses, sell, or use drugs, or get high. Many countries do in fact… and people still get high.

This dedicated drug warrior said that it didn’t matter what it took, it didn’t matter what it cost… It didn’t matter if it wouldn’t work at all… That we had to do it anyway.

When I asked why, he said:

“Because to do otherwise would be to surrender”

Then I asked “Surrender what? To who?”

He said “Surrender to the junkies and the dealers”

I asked “Surrender what?”

He refused to answer.

And again I asked “Why”

He refused to answer.

I said “You’re advocating a police state, in order to stop people from getting high. Why?”

He refused to answer.

So… I have a very simple question for you…

You cannot possibly stop people who want to get high, from getting high.

You can’t make it illegal enough. You can’t ban or control enough. It’s not possible… you have to know that it isn’t possible..

Prohibition PROVED beyond all possibility of doubt that it’s impossible.

The last 45 years of the “War on Drugs” have proved beyond all possibility of doubt that it’s impossible.

Maximum security prisons prove beyond all possibility of doubt that it’s impossible.

But you still think we have to do it… No matter what it takes… No matter the harm it causes… No matter what rights get violated…No matter how much power it gives the state. No matter how much it costs…

Why?

It’s a really simple question…

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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