Category Archives: General

NYC Cop Rebellion Highlights Complicated Interplay Between Freedom and the Rule of Law


Some laws are so egregious they ought morally be resisted, however destabilizing such resistance might be. Only the most mindlessly authoritarian would disagree.

The hard part is knowing where to draw the lines.

New York City cops are in rebellion, taking a de facto hiatus from policing victimless “crimes.” Whether this is an “important step” toward improved safety and constitutional policing, or a dire threat to the rule of law, seems all a matter of perspective. Cops being as diverse as humans generally, their motivations presumably range from “[a]cting like a bunch of high-school jocks protesting a ban on keg parties” all the way to heartfelt questions about the legitimacy of a system that leaves a man dead for the “crime” of selling loose cigarettes.

Either way, the reduced issuance of petty crime summonses and parking violations will starve the city of revenue, while endangering no one. This strategy, of hurting the mayor’s budget without turning a blind eye to real crime, exposes an unpleasant truth about modern policing: that cops are sent out armed with guns to risk their lives ginning up revenues needed to cover budget shortfalls.

Let that sink in.

I understand the importance of the rule of law. But morality dictates consideration of a system that encourages forceful interaction over such trivialities as selling loose cigarettes, and for the purpose of insulating politicians from the consequences of overspending.

The rule of law is but a means to an end, not an end in itself.

A provocative law review article entitled “The Myth of the Rule of Law” asks the reader to consider the following:

“Congress shall make no law . . . abridging the freedom of speech, or of the press; . . . .”

On the basis of your personal understanding of this sentence’s meaning (not your knowledge of constitutional law), please indicate whether you believe the following sentences to be true or false.

_____ 1) In time of war, a federal statute may be passed prohibiting citizens from revealing military secrets to the enemy.

_____ 2) The President may issue an executive order prohibiting public criticism of his administration.

_____ 3) Congress may pass a law prohibiting museums from exhibiting photographs and paintings depicting homosexual activity.

_____ 4) A federal statute may be passed prohibiting a citizen from falsely shouting “fire” in a crowded theater.

_____ 5) Congress may pass a law prohibiting dancing to rock and roll music.

_____ 6) The Internal Revenue Service may issue a regulation prohibiting the publication of a book explaining how to cheat on your taxes and get away with it.

_____ 7) Congress may pass a statute prohibiting flag burning.

After exploring ways in which seemingly clear rules of law are malleable to reach different ends, based on the perspective of those with the power to apply them, the piece returns to those initial questions:

If your response to question one was “True,” you chose to interpret the word “no” as used in the First Amendment to mean “some.”

If your response to question two was “False,” you chose to interpret the word “Congress” to refer to the President of the United States and the word “law” to refer to an executive order.

If your response to question three was “False,” you chose to interpret the words “speech” and “press” to refer to the exhibition of photographs and paintings.

If your response to question four was “True,” you have underscored your belief that the word “no” really means “some.”

If your response to question five was “False,” you chose to interpret the words “speech” and “press” to refer to dancing to rock and roll music.

If your response to question six was “False,” you chose to interpret the word “Congress” to refer to the Internal Revenue Service and the word “law” to refer to an IRS regulation.

If your response to question seven was “False,” you chose to interpret the words “speech” and “press” to refer to the act of burning a flag.

Why did you do this? Were your responses based on the “plain meaning” of the words or on certain normative beliefs you hold about the extent to which the federal government should be allowed to interfere with citizens’ expressive activities?

My own answer would have been that the First Amendment neither permits nor prohibits anything. The First Amendment is nothing more than words on paper, incapable of doing anything. It is only our collective willingness to enforce, expand or modify it that has any function; that sufficient numbers of us agree, consciously or not, to permit the exercise of collective force to do one or the other; and that sufficient numbers more passively do not resist.

We are unavoidably a nation of both laws and men, and needed change comes in many forms. Sometimes it comes because democratically elected representatives vote for it. Sometimes it comes because one person stops allowing her complicity to lend legitimacy to a bad law.

It bears remembering that enforcing the rule of law was what five New York City officers were doing when they placed Eric Garner in a grapple hold for the “crime” of selling loose cigarettes. As Professor Stephen L. Carter eloquently wrote:

It’s unlikely that the New York legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they’re so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants.

*    *     *

Of course, activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate.

That’s too bad. Every new law requires enforcement; every act of enforcement includes the possibility of violence. There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is… : Don’t ever fight to make something illegal unless you’re willing to risk the lives of your fellow citizens to get your way.

Some of the loudest complaints about police misconduct are from the same people who demand a leviathan government exercising control over vast areas of our lives. Such control must of necessity be exercised in the form of laws, laws that must be enforced at the point of a gun.

We all draw lines somewhere, between the laws we think ought be enforced, however misguided they might be, for the sake of preserving the legitimacy of the system; laws so egregious and vile in nature, that they must morally be resisted; and those that fall somewhere between, the close calls and grey area where good faith disagreement can be tolerated. The criteria we use, the lines we draw, are inherently subjective.

We should not ask cops to enforce laws that we are unwilling to have them kill to enforce. We should not risk lives enforcing prohibitions against victimless crimes.

If a rebellion by New York City cops is how this change comes—I can live with that.

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

Gawker Fingers a Democrat as Lena Dunham’s Alleged Rapist

Lena Dunham

Gawker reporter J.K. Trotter has revealed the real name of a real human being who Trotter hypothesizes might really have raped Lena Dunham, as she described in Not That Kind of Girl. I think he was wrong to do so and will not repeat it here, or link to the article.

Suffice to say that Gawker previously obtained a copy of the book proposal Dunham submitted to her publisher. The identifying details set forth in the proposal were different than the details included in the published book. Using a combination of both, Trotter was able to identify a former Oberlin student who could be the person described.

That person, however, is not a Republican or a conservative, but a registered Democrat. I confess to finding this discrepancy interesting. Dunham called her alleged rapist “a mustachioed campus Republican” and “the campus’s resident conservative.” I interpreted her repetition of that detail, as it was reported in the media, as intending her audience to make some connection between the young man’s party affiliation and his alleged conduct—and to generalize that conduct toward others who share the affiliation.

Perhaps I was mistaken to assume that Dunham or her supporters harbored such an intent. Perhaps changing this detail might simply have been an effective and innocuous way to obscure the man’s identity. I cannot know. Regardless, of whatever interest it may be, it does not justify naming an actual person who may be guilty of nothing more than serving as source material for a composite character.

Have we learned nothing from the UVA rape story?

Dunham and her publisher have already had to apologize—weeks after he had been identified—to an identifiable campus conservative named Barry (the name Dunham used in her book). Why drag yet another person, presumed innocent in the absence of a conviction, into this?

By Trotter’s own admission, the motivation is to push back against “right-wing” questions about Dunham’s story:

Following the clues in the published text, Dunham’s antagonists have declared that the rape story is a hoax, one that falsely implicates a fellow student. The investigation has led Dunham’s publisher to announce a revision to future editions of the book—confirmation, to her foes, that she is lying, and that her alleged rapist doesn’t exist.

Most mainstream outlets have covered the details of the case with trepidation, if they cover them at all, allowing the central claims of the right-wing account to stand unchallenged. But the investigators aren’t just distasteful. They’re wrong.

In other words, Trotter has an agenda. He wants to exonerate Dunham from suggestions that she fabricated her story, even if that means convicting someone else of rape.

What qualifies Trotter to make this determination? Is he a judge? A lawyer? A sworn juror, having viewed the credibility of the witnesses on the stand and been instructed with the governing law? Was the accused given a defense, an opportunity to cross-examine the witnesses against him, and access to exculpatory evidence?

If Rolling Stone’s infamous UVA rape story has taught us anything, it is that people sometimes lie. They lie about unpredictable things and for unpredictable reasons. Their reasons for doing so are as many and myriad as they are. To insist that women never lie about rape—or at least not often enough to matter—is to reject the range and variability of the experience of being female.

This is not to say that Lena Dunham is lying.

Unlike the person named in Trotter’s article, she laid her story out for public scrutiny and made a lot of money in the process. She injected politics into it—wittingly or not—by focusing attention on the man’s party affiliation. She took her time clearing the name of the identifiable campus conservative whose name matched the one used in her book.

Nevertheless, she deserves the same presumption of innocence as the person named in Trotter’s article. Dunham made a clear effort—based on Trotter’s own reporting—to protect the identity of the person she alleges raped her. She made an unequivocal (albeit slow coming) statement clearing the name of the man others had previously identified. She is entitled to write a memoir that is based on true events or that uses composite characters.

I am in no more position to judge her false than Trotter is in position to name someone a rapist as part of a quest to exonerate Dunham against “right-wing” challenges. His doing so, for that stated reason, is not journalism. It is trauma advocacy and cultural arbitration, at the price of a fellow human being.

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

The Mirror in Ferguson

protecting shop

Ferguson residents guard local businesses from looters.

I had mixed feelings about sharing these two videos by Johnathan Gentry and Fredrick Wilson respectively. On the one hand, I disagree with some of the collectivist assumptions reflected. I do not think, for example, that law-abiding people have some peculiar responsibility for crimes committed by others, merely because their skin tones are similar. I reject the very concept of race—biological essentialism being obsolete at least as applied to racial categorizations—and would prefer a world in which people’s group identities were defined by their values and interests rather than the shades of their skin.

Nevertheless, there is a message of strength and empowerment in these videos so rare in this day and age that the words deserve to be heard—not just by their intended audience of people who look a certain way on the outside, but by everyone who sometimes fails to look hard enough inside themselves. I could not get the videos to appear as previews, so please click on the links above and watch both, because these men’s words are more powerful and thought-provoking than anything I could write.

Increasingly, we blame rich people, corporations, white people, the patriarchy, the government, politicians, our parents, our bosses, our teachers—everyone but ourselves—for the circumstances of our lives. Sometimes it is painful to look in the mirror and acknowledge that we are where we are, not because the world is unfair, but because of our own choices and actions—even harder to consider that we could get somewhere else, starting now, if we would but expend the effort.

Ferguson is the ultimate mirror, forcing that hard look.

Natalie Dubose's bakery was destroyed in the Ferguson rioting. A GoFundMe campaign has been set up to help her rebuild.

Natalie Dubose’s bakery was destroyed in the Ferguson rioting. A GoFundMe campaign has been set up to help her rebuild.

When we remember to see ourselves and each other as individuals in categories of one, instead of archetypes of the groups to which we belong—white cop, black man, Asian student, working poor, the 1%, Christian, Muslim, woman, mother, Jew—it becomes possible to consider that Officer Wilson may have been justified in using deadly force—and still acknowledge the increasing militarization of the police and that some police departments have race relation problems. To accept that Wilson likely would have been acquitted after trial—and still ask questions about the strange way the grand jury proceeding was conducted. To contemplate that the grand jury made the right decision and simultaneously acknowledge that people see more phantom guns when they are looking at someone of another race. To ask questions about how police interact with members of some communities and not lose sight of the fact that unarmed white men are killed by cops too.

Because pumpkins.

Because pumpkins.

It becomes possible to recognize that people with darker shades of skin are no more responsible for rioting in the wake of a grand jury proceeding than people with lighter skin are responsible for rioting at pumpkin festivals or in the wake of a sporting event. The vast majority of people of all the arbitrary groupings we call “races” are law-abiding. Finding differences at the extremes and then generalizing them to everyone in the group is falling for the fallacy of the tails.

Yet there is something inherently inconsistent about objecting to being stereotyped based on your race or gender or religion or nationality or class—while simultaneously embracing that group identity.

If your identity is tied to a shared history of oppression, a struggle against obstacles and unfairness so overwhelming that other members of your group have snapped in anger or folded under the pressure, you cannot simultaneously ask others to ignore this aspect of your identity when they interact with you.

Shirt Storm

Matt Taylor, space scientist, shirt wearer.

It is the same fundamental mistake made by the women of #ShirtGate. You cannot proclaim yourself so disempowered that pictures of scantily clad fictional women on a shirt impact your comfort in the STEM fields (science, technology, engineering and mathematics) and simultaneously demand to be treated as equal in these fields. As Glenn Reynolds so aptly stated:

It seems to me that if you care about women in STEM, maybe you shouldn’t want to communicate the notion that they’re so delicate that they can’t handle pictures of comic-book women. Will we stock our Mars spacecraft with fainting couches?

You cannot have it both ways.

You have to choose.

Are you an individual who overcomes what the world throws your way? Or have you embraced a group identity defined by oppression that mutes your abilities and exempts you from personal responsibility for your actions and your outcomes?

The choice is yours.

Accept that you will be judged and treated accordingly.

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

Community Conservatism – Reviving the Middle Class Economy


Governing for a Healthy Middle Class Economy

Conservatives do not believe that the government can “create” jobs directly. This canard of the left does nothing but destroy market-driven, sustainable jobs at the expense of increasing the national debt and attaching an anchor to GDP growth in exchange for short term government employment and expanded private sector government influence. That doesn’t mean that a conservative Congress can’t stand for job creation. The way we get there is by providing the modern infrastructure, economic freedom, and competitive tax code that attract, rather than repel the world’s wealth. We want to decrease the cost of doing business here at home and focus government resources on business-supportive roles, rather than coercive ‘partnerships’. It begins with a smarter tax code.

A) Pass Corporate Tax Reform (dare Obama to veto)

I don’t recommend settling for half-measures here and I recommend putting this near the top of the agenda for 2015. Obama has, on multiple occasions, put Corporate tax reform in his state of the union address in his 6 years in office (five addresses, 4 mentions). Corporate tax reform that accomplishes the closing of certain loopholes, the ending of certain forms of corporate welfare, and the reduction of rates to something that competes with the rest of the developed world has broad, bipartisan support among the voting middle class. In Washington, such measures have met with stiff resistance from corporate lobbies who do not want to see the corporate tax base broadened to include them, specifically (through the removal of loopholes). Let the GOP stand for the voters, not for special interests, and pass comprehensive corporate tax reform that does the following:

• Cuts the corporate tax rate to 25% at most
• Creates a two-tiered capital gains tax bracket, where all capital gains are taxed at a much lower rate below $250,000 each year
• Excises many of the tax-sheltering loopholes used by the biggest corporations to avoid paying; in particular, the shelters to profits earned overseas by American companies
• Gives corporations a ‘tax holiday’ to repatriate foreign capital until January of 2021
• Creates a lower corporate tax rate for wealth generated by manufacturing concerns – 15%, perhaps

There are, I’m certain, other great ideas that could be included in a sweeping change like this, and we’re all ears. This is just a start. The goal is to create an environment that encourages businesses to take risks and expand their workforce here at home without taking the punitive approach championed by Obama (penalize companies that keep their money overseas, rather than improve the economic climate at home).

B) Pass the REINS Act (obtain Obama’s veto)

REINS is a relatively simple piece of legislation passed in the GOP-controlled house and left to gather dust in Harry Reid’s file cabinet. It requires congress to approve all regulations in excess of $100M as scored by the Congressional Budget Office each year. If said regulations cannot be approved, they are immediately stricken. This is good policy on so many levels, not the least of which is that it maintains the separation of the non-political government agencies from the political process in the drafting of public policy regulations but forces Congress to exercise some oversight on those regulations that are particularly costly. We recognize that regulatory science should not be trapped by the political process, but we also believe that unelected agencies should not have carte blanche to pass regulatory rules without oversight that serve as a huge burden to economic growth. It will give the voters some ability to hold their representatives responsible for the regulatory state and encourage those who draft said regulations to minimize their costs or garner broad public support for their necessity. It will also make public the CBO scoring of the cost of every major regulation, helping the public to get a sense for the true costs and benefits of each.

C) Return the Full-Time Workweek to 40 Hours

We’ll talk more about the Affordable Care Act when we get to healthcare, but one of the most pernicious things the ACA accomplished was to effectively reduce the American workweek to 30 hours in the eyes of the law. Democrats supported this concept to avoid the tendency of corporations to get 39 hours of work per week out of employees to avoid having them counted as full time and thus be forced to offer benefits. The problem, of course, is that reducing the workweek to 30 hours meant a lot of people just got cut down to 29 hours. If you’re a struggling poor or working class American, this tends to drive you to take two part time jobs and you end up working more and still not getting benefits, or working drastically less and not making enough money to survive. If all else fails, regarding the ACA, increasing the workweek back to 40 hours at least offers some relief for people in this situation (and the CBO projects a big surge in part time labor under the ACA as it currently stands).

D) Expand the Earned-Income Tax Credit

Right now, if you earn less than $11,000 for an individual or $88,000 for a family filing jointly, and are legally eligible for that work, you can claim an earned-income tax credit (variable by family size and earnings). The EITC is good policy for the poor and working classes and should be expanded with increased credit sizes (perhaps another 30-40% proportionally) and availability (up to incomes of less than $125,000 for a family filing jointly). Make this revenue neutral by creating a “super-wealthy” tax bracket (>$1,000,000) that is taxed at a slightly higher rate and by eliminating eligibility for certain tax credits for people in this new upper tax bracket. Normally, the GOP is not associated with eve the smallest of tax increases for the wealthy, but if we reduce corporate taxes as previously outlined, this sort of minor compromise will come out in the wash while selling as good, fair tax policy to middle class voters.

E) Exempt Small and Moderate-sized Businesses from Burdensome Regulation

Small business start-ups are responsible for the majority of new jobs that pay above the media household income. They’re also in sharp decline here in the US. One of the major reasons for this is that, when Congress enacts legislation to regulate business, it does so with larger businesses in mind. We recognize that it is indeed necessary to regulate larger corporations, because they can have disproportional impacts on the environment, the free market, and the welfare of the people. We also recognize that big business can absorb the cost of our most aggressive regulations, but small business cannot. We also believe it is unreasonable for small businesses, frequently run by citizens without the resources to educate themselves on the full extent of the regulatory state cannot be expected to comply to the same degree as larger corporations, and that their likely impact on people, the market or the economy is greatly reduced. We, therefore, must pass a law stating that regulations determined to be of great impact by the CBO as in the REINS act, should be applied only to corporations with greater than 250 employees or more than a negotiable amount of total assets.

F) Repeal Sarbanes-Oxley and Replace with Common Sense Reporting

Again on the subject of over-regulation, this panic-move following Enron’s collapse is among the worst offenders for needless corporate regulatory burden, annually costing billions in the private sector for compliance and producing no change in accounting transparency. It reminds us of the mindless and often pointless busywork we used to get in school, and compliance requires companies to hire a fleet of folks who are specifically experts in the labyrinthine letter of this law. It must go and be replaced by much simpler-to-follow guidelines for financial reporting.

G) Greenlight Keystone XL and Other Energy Infrastructure Projects on Federal Lands

The latest estimate by industry sources is that Keystone XL pipeline would create in excess of 20,000 good paying jobs immediately and have extensive multiply impacts on the job market, not to mention making it cheaper to move oil to high-demand parts of the country where oil prices are currently far too high. Our best environmental impact studies conclude that the XL pipeline would be a net positive for the environment if you assume that the alternative is transport by rail, rather than non-use. This is a no-brainer.

H) Abolish the Nuclear Regulatory Commission and Allow Nuclear Energy Expansion – Complete Yucca Mountain Facility for Waste Management

As the science improves to reduce waste products from nuclear fission power, and as the EU and Japan continue to move ahead of us on safe, clean nuclear energy, our ability to innovate and, perhaps, solve the problem of excessive fossil fuel emission is stymied by the anti-science left’s crusade against Nuclear Energy. It’s time to stop being parochial and superstitious in the face of overwhelming evidence that nuclear energy is, by far, our best source of affordable, clean energy.

I) Abolish the Export/Import Bank

It may not be immediately apparent how ending this brand of corporate welfare can help create jobs, but it becomes clearer when you realize that many of the businesses that benefit from Ex/Im assistance are the non-dynamic, struggling corporations not likely to hire a large labor force, and it always seems to come at the expense of healthy competition. Again, the key to job creation is a competitive, free market that rewards well-run companies, not the ones out begging for federal dollars to stay afloat and squash upstarts.

Privacy Is Dead, Long Live Privacy

Nothing beyond our reach“Americans Say They Want Privacy, but Act as if They Don’t.” Thus proclaims the headline from Claire Cain Miller, writing at the New York Times. Miller is talking about the results of a new survey from the Pew Research Center, finding that Americans do not feel secure entrusting their personal information to digital communication channels. Their distrust is directed at both private businesses and the government.

But, as Miller notes, they keep sharing anyway.

Perhaps the paradox is tied to our evolution, from the time when early man lived in caves, with few walls separating members of a clan; when to the extent anyone had privacy, it existed only because others voluntarily averted their eyes. Perhaps a buried part of us longs for the days when family members slept in the same room, children shared beds and people lived entire lives in the town where they were born.

When we were anchored in communities that bore witness to the minutiae of our lives.

Miller’s headline reminded me of a piece from earlier this year called Why You Should Embrace Surveillance, Not Fight It, by Kevin Kelly at Wired. Kelly reminds us that:

[T]ransparency is truly ancient. For eons humans have lived in tribes and clans where every act was open and visible and there were no secrets. We evolved with constant co-monitoring. Contrary to our modern suspicions, there wouldn’t be a backlash against a circular world where we constantly spy on each other because we lived like this for a million years, and — if truly equitable and symmetrical — it can feel comfortable.

Families and communities knew each other’s business. Privacy was nothing more than an extension of courtesy, the voluntary willingness of others to avert their eyes.

The Industrial Revolution changed that. We moved away from our families and towns of origin. Our houses got bigger, the walls and doors more plentiful, until even the baby had her own room.

Now technology—the same force that once drove us away from our circles of watchers– has delivered new circles and new watchers.

What the Industrial Revolution took away, the Internet gives back. We are no longer six degrees from Kevin Bacon, but three degrees from everyone.

Privacy as we have briefly known it is on its way back out. As Kelly writes:

Most likely, 50 years from now ubiquitous monitoring and surveillance will be the norm. The internet is a tracking machine. It is engineered to track. We will ceaselessly self-track and be tracked by the greater network, corporations, and governments. Everything that can be measured is already tracked, and all that was previously unmeasureable is becoming quantified, digitized, and trackable.

Why is Kelly so sure? Because governments are abusive and out of control? No. He is sure about us, about the choices we will make:

[I]f today’s social media has taught us anything about ourselves as a species it is that the human impulse to share trumps the human impulse for privacy. So far, at every juncture that offers a technological choice between privacy or sharing, we’ve tilted, on average, towards more sharing, more disclosure.

*     *     *

The self forged by previous centuries will no longer suffice. We are now remaking the self with technology. We’ve broadened our circle of empathy, from clan to race, race to species, and soon beyond that. We’ve extended our bodies and minds with tools and hardware. We are now expanding our self by inhabiting virtual spaces, linking up to billions of other minds, and trillions of other mechanical intelligences. We are wider than we were, and as we offload our memories to infinite machines, deeper in some ways.

In other words, we want all of the things by which we will destroy our own privacy. We want the ease and convenience of cashless transactions and online purchasing. We want the masturbatory self-stroking of publishing our every whim and thought onto the perpetual web. We want limitless hotspots where we can be permanently plugged into the extended selves our devices allow us to be. We want the security of seeing through clothing and walls and across distances and time.

We don’t just want it. We demand it.

The Pew Research results suggest the future of privacy may be the same as its past. The voluntary willingness of others to turn theirs heads.

To pretend they do not see.

Parts of this post previously appeared on my website The image is via

Sarah Baker is a writer, libertarian and attorney, living in Bozeman, Montana, with her daughter and a houseful of pets. She can be found on Facebook or Twitter.

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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