Category Archives: Individual Rights

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

Quote of the Day: MLK Day Edition

MLK
(Re-post)

Martin Luther King Jr.’s “I Have a Dream” speech is unquestionably one of the most famous speeches in American history. In listening to the speech today, I found the following passages that aren’t as often quoted to be some of the most powerful lines in the speech.

In a sense we have come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check — a check that will give us upon demand the riches of freedom and the security of justice.

America has come a long way since King delivered this speech. Racial and ethnic minorities have made great strides thanks to courageous individuals like King who made a stand for liberty and justice (and in King’s case, paid with his life) and we are all better off for it.

Here is the rest of the speech. Listen and be inspired.

The Growing Cult of the Imperial Presidency

His Highness the President

Yesterday, President Obama used executive orders to further burden the fundamental right of self-defense. On the same day, in an effort to defend his Senate absenteeism, GOP candidate Marco Rubio gave his implicit endorsement to the concept of the imperial presidency.

Let us consider Obama’s action on gun control first. His executive orders grow the size of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), commit taxpayers to additional spending on programs he likes, and purport to expand the scope of existing background check requirements.

This did not constitute circumventing Congress, according to Senior White House advisor Valerie Jarett, because Congress “made it very clear they are not going to act.”

It is unclear what practical effect will be achieved by the expanded background checks. The existence of a loophole seems to have been exaggerated in the first place. Any change likely would not have made a difference in the high profile shootings supposedly motivating the President. As Jacob Sullum at Reason’s Hit & Run noted:

[The President] recited a litany of horrific, headline-grabbing mass shootings while proposing policies that would have done nothing to prevent them. Anticipating that his non sequitur would draw criticism, he boldly proclaimed that good intentions matter more than actual results…

The Obama faction of the cult-of-the-president does not care. They conceive of rights as things we get from parent-like leaders. Like well-behaved children, we ought to be grateful for the privileges we are permitted—not whining over the prerogatives of adults.

But if they are upheld (by the very courts GOP candidates like Ted Cruz, Jeb Bush and Mike Huckabee insist should defer to the political branches) Obama’s orders will have at least one meaningful impact, even if it is not on the homicide rate. The impact will be on the structure and scope of government power—and its increasing centralization in a single individual: an imperial president with the power and mandate to act where the people’s elected representatives have refrained from doing so.

As Bonnie Kristian, a communications consultant for Young Americans for Liberty, writes at Rare:

In most matters, contrary George W. Bush’s infamous assertion, the president is constitutionally not “the decider.”

He’s the doer.

Congress is supposed to be the decider—even (or sometimes especially) when it doesn’t do what the president wants.

Even this misses the target.

We are the deciders.

Rights are not things we are given, not privileges handed out to children by benevolent parent-kings. Rights are ours for the having unless and until we yield them. The only way to do that is via elected representatives. Even then our ability to give away rights is limited by the Constitutional framework our founders had the foresight to put in place.

It is not meant to be easy to give rights away.

Jarett and Obama are therefore wrong to lay blame on Congress’s “failure to act.” It is not that Congress has failed to act. It is that we, the people, have not in sufficient numbers directed our elected representatives to infringe further upon our fundamental rights of self-defense.

Use of executive orders to circumvent the collective will of the people’s representatives fundamentally alters our constitutional structure. The left might embrace this trend now, while their man is at the helm, and his target is guns. But how will they feel when it is a Ted Cruz or a Donald Trump circumventing Congress? When the executive power is used again to send troops to fight undeclared wars?

Incidentally, last year, Obama was the biggest seller of arms in the world, servicing buyers like Saudi Arabia and Syrian rebels (even though Congress has not declared war).

I wonder if he does background checks…

It is disappointing that on the same day Obama issued his executive orders, Marco Rubio gave his implicit endorsement to the idea that Congress is of secondary import to the will of the President.

His comments came in the context of his chronic Senate absenteeism, including for the end-of-year spending and tax bill vote, which has provoked criticism from other GOP candidates, including Rand Paul.

Well, you know, the difference between Marco Rubio and I is, I show up for work. And we had the biggest vote of the whole year, voting on a trillion dollars worth of spending, and he didn’t show up. So, yes, I think he ought to resign or give his pay back to the taxpayer.

When asked yet another question on the issue, Rubio’s attempt to defend himself was a big, depressing fail implicitly endorsing the growing cult of the imperial presidency.

I have missed votes this year. You know why? Because … only a president can set the agenda. We’re not going to fix America with senators and congressmen.

Perhaps Rubio could point us to where in the Constitution the power to “set the agenda” is granted exclusively to the President.

I checked Article II and didn’t see it.

You know how everyone has that thing? The thing drives them crazy? Like the sound of nails on a chalkboard? Maybe it is baristas misspelling names. Or your when it should be you’re. People who use literally to mean figuratively.

That song from Frozen.

For me, it is people talking about “our leaders.”

U.S. citizens don’t have leaders. We have representatives. They don’t tell us what to do—we tell them how to voteSee Article I, The Constitution.

We also have a chief executive. His job is to execute the laws passed by Congress, deal with foreign countries, and provide information to Congress. He also serves as Commander-in-Chief of the military.

But not of us.

To the contrary, we pay him for his “Services.” See Article II, The Constitution.

No one commands us. No one leads us. And no one rules us. That is what it means to be free.

The number of people who react with hostility and defensiveness to this notion is bizarre to me. It is as if they want to be led, like when I first left home and missed having my parents tell me what I should do. Being leaderless means being responsible.

So maybe deep down, those who would rather not shoulder such burdens harbor an unconscious longing for the days of monarchs. When the best-born among us led the way atop magnificent horses, swords and armor flashing in the sunlight, obliterating responsibility by demanding complete allegiance—leaving we lesser souls to imagine ourselves as scullery-maid-turned-princess from the safe distance of our own servitude.

Easier to daydream of being transported to the prince’s ball in an enchanted pumpkin wearing a gown made of magic than to actually climb up on a horse of one’s own.

But the willing subjects are as dangerous as the would-be kings.

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