Category Archives: Liberty

Mandatory Ebola Quarantines: Constitutional or Fear-Mongering?

Last Friday, a federal judge ruled that the state of Maine could not force a mandatory ebola quarantine on nurse, Kaci Hickox, who recently returned to the U.S. from Sierra Leone. According to CNN:

District Court Chief Judge Charles LaVerdiere ordered nurse Kaci Hickox, who recently returned to the United States after treating Ebola patients in Sierra Leone, to submit to “direct active monitoring,” coordinate travel with public health officials and immediately notify health authorities should symptoms appear. Another hearing is scheduled for Tuesday.

Hickox was held under quarantine in New Jersey after she returned to the U.S. because she had broken a fever. Since then, Maine, New York, Florida, Illinois, California, Georgia, Connecticut, Maryland, and Virginia have enacted some form of mandatory quarantine of some level or another. I’ve heard a lot of people, even within libertarian circles, arguing in favor of the mandatory quarantines. I think that these views are largely based on fear and misinformation. First, are these mandatory quarantines even constitutional? Let’s do a brief constitutional analysis.

By forcing a mandatory quarantine on someone, the state is taking away their liberty. Under the Fifth and Fourteenth Amendments, the state may not deprive one of “life, liberty, or property without due process of law.” Therefore, quarantines are a matter of substantive due process. (For a brief tutorial on substantive due process, click here). The courts will have to apply a strict scrutiny test because one’s liberty is a fundamental right. There are three prongs to a strict scrutiny analysis:

  • (1)  The government must have a compelling interest in the law which would restrict one’s liberty;
  • (2)  The government must narrowly tailor the law to meet that interest; and
  • (3)  The government must use the least restrictive means possible to meet that interest.

Does the government have a compelling interest in enforcing mandatory quarantine laws for people who exhibit symptoms of ebola? Absolutely! The government certainly has an interest in protecting its citizens from a deadly disease. There really isn’t much of a question here. The government can easily prove this prong of the strict scrutiny test. No problems yet.

Are mandatory quarantine laws narrowly tailored to meet the government’s interest of protecting citizens from deadly diseases? Maybe. This is where it becomes a bit tricky. Some states enacted laws which would require anyone who has had any contact with an ebola patient or anyone who recently visited areas of Africa known to have the ebola virus to be quarantined for at least 21 days, despite not showing any symptoms of the virus. This is clearly not narrowly tailored to protect the public from this deadly disease. Other states require the quarantine only if there has been a known exposure to ebola such as splashing bodily fluids or a needle stick. This is much more narrowly tailored to meet the government’s compelling interest. In the case of Ms. Hickox, her quarantine was not narrowly tailored to meet the government’s compelling interest because she was showing no actual symptoms of ebola. Therefore, I do not believe that her quarantine was constitutional. However, I could see cases where a quarantine would be constitutional, such as the case of Thomas Eric Duncan, the first person to die from this disease, and the staff who treated him. In those cases, where the patients showed symptoms of ebola, a 21-day quarantine would be justified.

Are the mandatory quarantine laws the least restrictive means possible to meet the government’s compelling interest? No! Not in these cases. In the case of Ms. Hickox, she was originally quarantined in a New Jersey hospital for 21 days. This is certainly too restrictive because she showed no real signs of the ebola virus other than having a fever. When she returned to Maine, officials wanted her to stay in her home for 21 days. While this is less restrictive than the hospital, it is still unconstitutional because of the restrictive nature of the order:

Late Thursday, the judge had ordered stricter limits on Hickox, requiring that she “not to be present in public places,” such as shopping centers or movie theaters, except to receive necessary health care. The temporary order permitted her to engage in “non-congregate public activities,” such as walking or jogging, but said she had to maintain a 3-foot distance from people. And it forbade her from leaving the municipality of Fort Kent without consulting local health authorities.

I think that Judge LaVerdiere got it right when he lifted the restrictions that she not be present in public. I do agree that she should submit to regular checkups and screenings, but only because I think that it is the responsible thing to do and Ms. Hickox seems to agree:

Standing with her boyfriend Ted Wilbur, outside their home in Maine, Hickox told reporters the decision was a “good compromise” and that she would continue to comply with direct active monitoring.

“I know that Ebola is a scary disease,” she said. “I have seen it face-to-face. I know we are nowhere near winning this battle. We’ll only win this battle as we continue this discussion, as we gain a better collective understanding about Ebola and public health, as we overcome the fear and, most importantly, as we end the outbreak that is still ongoing in West Africa today.”

Therefore, mandatory quarantines are likely to be unconstitutional if the patient tests negative for the virus or shows no symptoms of having the virus. However, mandatory quarantines are more likely to be constitutional for patients who have shown symptoms of the virus or tested positive.

This is where we need to separate a legitimate concern from fear-mongering. I’m no doctor, so I’ll let the experts from the Mayo clinic explain what ebola is, its symptoms, causes, and risk factors. According to the experts, ebola is spread through blood, bodily fluids, mostly in Africa, and not through the air. Should we be concerned? Absolutely. Should we be fearful of every person who comes in from Africa and institute travel bans for anyone seeking to come into the country from those areas? Absolutely not! in fact, the chances of you getting ebola are about 1 in 13.3 million, which is less than being killed in a plane crash (1 in 11 million), being killed by a lightning strike (1 in 9 million), or being killed in a car accident (1 in 9100). So if you decide to be fearful of ebola, I would recommend that you don’t fly anywhere, stop driving, and don’t go outside while it’s raining. You’re more likely to die from those than from ebola. For the rest of us, we will just continue to live our lives.

Albert holds a J.D. from Barry University School of Law as well as an MBA and BA in Political Science from The University of Central Florida. He is a conservative libertarian and his interests include judicial politics, criminal procedure, and elections. He has one son, named Albert, and a black lab puppy, named Lincoln. In his spare time, he plays and coaches soccer.

Why Legislating Morality Is A Good Thing

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One of the phrases that irritates me about politics is when the phrase “we shouldn’t legislate morality” is uttered. Usually, that person does mean well (ie. supporting a separation of church and state), but it doesn’t diminish the fact that the phrase itself is ignorant. I would argue that a free liberal society must legislate morality if it is remain both a liberal society and a free society. All laws are is the morality of a society that is written down, therefore you cannot make laws if you’re not legislating morality.

I’m a classical liberal, which means I believe that the only moral purpose of government is to defend life, liberty, and property. I also believe in things such as pluralism, tolerance, the advancement of science and technology, realism, and reason. I want the morality of society to recognize these things in the laws that are made by the government that is supposed to represent us all. In fact, I would go even further to argue that moral relativism and liberty cannot coexist.

What I don’t advocate

When many people read this title and the first paragraph they’re probably thinking, “Kevin is about to argue for some sort of a theocracy.” Well, once you’ve read the second paragraph you probably realize that I’m no theocrat. Yes, I am a Christian, but I don’t need to law of Ceasar to guide my walk with Jesus Christ. While it is unreasonable to ask people check their religious and cultural beliefs at the door when discussing politics, in a pluralistic society such as the United States there is no place for legislating based on religion. 

The morality of a free, liberal society

The government must legislate based upon the morality of a liberal society. Since we classical liberals believe that the only moral purpose of government is to defend life, liberty, and property; we must keep government restrained except for those core functions. We know that as government grows, freedom contracts.

To promote a pluralistic society, we adopt an approach of “live and let live.” As long as your actions do not harm others lives, cause physical injury, or threaten their property; the government should not ban it. However, those who violate the life, physically harm others, and threaten property are punished severly. Government should stay out of bedrooms, computers, wallets, and everything else that is private.

Nor should government force people to love one another. All that a person has the right to ask from the government is to protect their life, liberty, and property; not to protect their feelings from being hurt. Trying to eliminate prejudice and bigotry through social engineering is a fool’s errand. Tolerance on the other hand must be practiced by the state and the state must treat all equally regardless of gender, race, religion, or sexual orientation. Equal justice under the law is a hallmark of a liberal society.

This does not mean we have to agree on everything

As a classical liberal, I do not require you to agree with me on everything in order to believe in and promote liberty. For example, I can see pro-liberty arguments for opposition to legalized abortion, assisted suicide, and euthanasia. I can also see both sides of the issue on the death penalty. I can also see an argument for some sort of social safety net in order to protect property rights from looters. There are also many other issues where good, liberty minded people can hold both sides.

As for the culture, persuasion not force

As my friend and fellow Louisiana blogger Scott McKay always likes to say, “politics flows downstream from the culture.” What he means is that politics and laws are a reflection upon the culture. We as classical liberals need to start paying attention to changing the culture. 

We need to build a culture that respects life, believes in individual freedom and responsibility (ie. liberty), believes in pluralism and “live and let live”, believes in the advancement of science and technology and rejects quacks like Food Babe, looks at the world as it is and not the way we want to see it, and strives for knowledge and make ourselves better than what we are. We need a culture that is truly diverse, not just in appearance but also in thought as well.

We do this by promoting these values in our writings and activism. We do this by promoting these values in how we live our lives, contribute to our communities, and educate our children. Finally, we do this buy how we spend our money and our resources.

Ultimately, all laws are simply the reflection of the values and morality of a society. The sooner we’re honest with ourselves on that, the sooner we can focus on the things that really matter.

 

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

Take A Stand! Don’t Vote At All!

Today, my illustrious co-contributors have been making the case to you to vote. Sarah wants you to vote Libertarian, Matthew wants you to vote Republican, and Kevin doesn’t want you to vote Democrat, but drew the short straw and we made him argue it anyway.

Now I’m going to tell you why none of their arguments should make you vote for their parties.
Don't Vote!
First and foremost, the Democrats. Some might argue that if you vote Republican, you get big government AND social conservatism, but if you vote Democrat, you get big government and social liberalism. Frankly, it’s a lie. Democrats talk a good game about civil liberties, about ending the drug war, about being pro-choice, reining in the military-industrial complex, and ending foreign adventurism. Yet they change their tune as soon as they’re in power. Remember all those Bush-era domestic spying programs that Obama put a stop to? No, me neither. Remember when Obama closed Gitmo? No, me neither. Remember when Obama forced Congress to give him a declaration of War before bombing people? No, me neither. And it’s been his fellow Democrats defending his [in-]actions. Voting Democrat will never be beneficial to liberty.

As for the Republicans, one can make a very similar argument. Because if you vote Republican, you really do get big government and social conservatism. They talk a good game about small government and fiscal responsibility, but remember who was in office when TARP happened? Hint — it wasn’t Obama. Medicare Part D? No Child Left Behind? Yeah, not small government. Some might say the Republicans are the lesser of two evils, and that libertarians are more naturally allied with Republicans with Democrats, so you might as well pick them as your poison. There’s just one problem with allies when it comes to government: the alliance is forgotten the day after the election. Fusionism between libertarians and Republicans just isn’t going to work.

No, the reason not to vote Democrat or Republican is it truly has gotten very difficult to determine which of them is the lesser evil. And in our system of direct representation, does it really make sense to vote for someone who doesn’t represent you?

That leaves the argument that we should vote our conscience, and vote Libertarian. I’ll admit, of all three arguments, this is the one I’m most sympathetic to. After all, I would actually want to see Libertarians elected. I would trust a Libertarian candidate to represent my beliefs in Washington. And there’s one more argument for voting Libertarian, which Sarah overlooked: Since Libertarians never win, we don’t have to worry about being hypocrites when they then go to Washington and violate their campaign promises!

So why should you stay home? Why not “vote your conscience” and pull the lever for the Libertarian?

Because any vote, even one for the Libertarian, is an affirmation of the system.

But let’s face it. The system doesn’t work. And the reason it doesn’t work is that the system is rigged. The direct representation system with first-past-the-post voting is only stable with two parties. The two parties then exist to move as close to the center as possible and ensure that they don’t alienate voters. Parties don’t exist to cater to minority views.

But we’re libertarians. We’re not centrists. We are a minority view. Some suggest that we’re 15% of the electorate. But the other side of that 15% is 85%. We can NEVER expect the mainstream parties to represent our interests, no matter who we vote for, because the money is in the center, not at the edges.

The alternative is a parliamentary-style proportional representation system. If we truly are 15% of the electorate, we would be able to gain a sizable chunk of the legislative body and we would force the Republicans and Democrats to work with us to govern. In today’s system, they only work with us until the campaign ends.

No, you shouldn’t vote. Validating the system of direct representation with your vote is a losing strategy. That doesn’t mean you shouldn’t be active. I’m not saying you can’t make an impact. If I believed that, I wouldn’t be blogging. What I’m saying is that if you want to make a difference, focus everywhere except the ballot box. You actually have some likelihood of doing good that way.

Vote Libertarian, Because Not All Politicians Are Smart, But All Politicians Can Count

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Thus proclaims Arvin Vohra, Vice Chair of the Libertarian National Committee and a candidate for Maryland’s fourth congressional district. Vohra and I are in agreement that the only effective way to tell politicians they must shrink the size and scope of government is to vote for libertarian candidates (“small l” intended).

Not voting at all accomplishes nothing more than making one’s opinions irrelevant to the people who hold political power. Voting for the “less bad” of the two contenders is guaranteed to continue the policies of the last two administrations.

In contrast, consistently voting only for libertarian candidates pulls the two major parties toward more libertarian positions. That, standing alone, is reason to vote libertarian.

We know the strategy works because it is working! Twenty-five years ago, mainstream journalists rarely mentioned libertarians. Now, not a day goes by that the word is not featured in the headlines of big-name publications or crossing the lips of mainstream commentators.

Google the words “libertarian moment,” and witness how shrilly both the left and the right deny that one is occurring.

Their foot-stamping to the contrary, Republicans are fundraising for openly gay candidates. Donors are pressing the party to stay out of marriage altogether. Republican candidates are campaigning to make birth control available over the counter. The first U.S. Senator has come out in favor of marijuana legalization.

Thanks for these shifts goes in some degree to the people who consistently prove their motivation to visit the polls, while simultaneously refusing to cast votes for statist candidates in either party. More people today identify as independents than either Republicans or Democrats. Fifty-nine percent of voters self-identify as “fiscally conservative and socially liberal.” Even under conservative estimates, 15% of voters can be treated as consistently “libertarian” in their positions.

Libertarians (“small l”) have become a swing-voting block as powerful as the religious right.

The best use of that power is to end the conspiracy of false choice and emotional partisanship that operates to keep the two-party oligarchy in power.

The Republocrats have given us federalized schools; a morass of unfunded entitlements and dependency; wild inflation in the cost of education and healthcare; the Drug War, the highest incarceration rate in the world, militarized police, and asset forfeitures; welfare and cronyism for corporations, agribusiness and green energy; a national debt in the trillions; the surveillance state and the erosion of the fourth amendment; expensive, immoral, ineffective and deadly interventions overseas; and restrictions on political speech.

If the foregoing is not convincing enough, consider the following. When Republicans are in power, Democrats support balanced budgets, oppose unfunded spending and resist increases to the debt ceiling. As then-senator Barack Obama said in 2006:

This rising debt is a hidden domestic enemy, robbing our cities and States of critical investments in infrastructure like bridges, ports, and levees; robbing our families and our chil- dren of critical investments in edu- cation and health care reform; robbing our seniors of the retirement and health security they have counted on.

*     *     *

Increasing America’s debt weakens us domestically and internationally. Leadership means that ‘‘the buck stops here.’’ Instead, Washington is shifting the burden of bad choices today onto the backs of our children and grandchildren. America has a debt problem and a failure of leadership. Americans deserve better.

When the Republicans are in power, they simply trade positions. Republicans complain about spending and Democrats oppose balanced budgets.

Or consider this example from Robert Sarvis, Virginia’s libertarian candidate for U.S. Senate:

In 2008, when Republicans were the ones supporting the Export-Import Bank, candidate Barack Obama called it little more than corporate cronyism, but in 2014, it was Democrats lining up to support it. Virginia’s Democratic Senators Mark Warner and Tim Kaine introduced the reauthorization bill, and President Obama signed it.

Republicans are keeping the bank going until 2015 when they can figure out who is is in power, so they know which position to take.

How anyone keeps falling for this shtick is beyond me.

Spoilerism is a feature of third party voting, not a glitch. It communicates to mainstream politicians that we’re here, we vote, and if they want to beat their opponent, they need us to do it. The libertarian moment is nigh. Stay the course.

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

How Not To Engage Non-Libertarians In A Political Discussion

There’s a video being shared by some libertarians that shows a libertarian activist, who identifies an affiliation with Students for Liberty, asking a progressive activist about his policies and ideology. After about a minute or so, the libertarian brings up that the progressive ideology requires a state and violence to implement it. The progressive then got angry and eventually walked away from the cameraman and the SFL guy.

Here’s the video:

The guy who made the video and the libertarian echo chamber that is pushing it are identifying as a progressive who got angry when he realized that violence was needed to promote his ideology. Meanwhile, I believe that the progressive got angry because he knew he was being ambushed as has become common.

Make no mistake, this video is defeat for the libertarians and a missed opportunity to promote libertarianism. Furthermore, it reinforces the negative stereotype that libertarians only care about eccentric things and not about practical solutions to real problems.

Here’s what I would’ve done in the same scenario.

  • The first 50 seconds or so were on the money. I would’ve let the progressive talk about himself.
  • When the progressive brought up his motivations: equality, justice for all, equal opportunity; I would’ve taken the opportunity to develop some common ground.
  • The common ground with this type of progressive is easy, start with cronyism and crony capitalism.
  • Once there was agreement established that crony capitalism is bad, start to bring up that it is because of government laws and regulations, which are well intended and be sure to emphasize that, that make it easy for corporations to rig the system. Then make an argument for free markets and less government.
  • The progressive is going to do one of three things: be persuaded, challenge your argument (which is just as good), or throw a fit and walk away. If they walk away in this instance, you clearly win because it shows they cannot handle a dissenting argument and there was no ambush, just a debate.

Notice what is never brought up, “violence” or “coercion”. The reason why those terms are never brought up is because no one cares about them outside of hardcore libertarians, voluntarists, and anarcho-capitalists. When reaching out to someone, you reach out to them by using their way of thinking, not yours.

Here’s the thing about progressives, they’re going to be very difficult for any libertarian to persuade to join team libertarian. This is because progressives have a different mindset than conservatives and libertarians in that they believe in the collective instead of the individual and in fact, they see individuality as the threat. This is why when liberaltarians urge outreach to progressives, they water down libertarianism.

To put it in linguistic terms, it’s easier for libertarians and conservatives to converse because libertarians speak French whereas conservatives speak Spanish. Both languages are in the same linguistic family (Romance) therefore there are major similiarities between the two. Both political ideologies, in the Anglosphere, stem from the same classical liberal tree. Progressives on the hand speak Chinese, which has no similiarities. Some on the left already realize that progressives and libertarians will never be on the same side. The two have different interests and that’s why, especially among the rank and file, most libertarians come from conservative ranks.

All in all, libertarians need to do better reaching out to non-libertarians and they way to do that is to get on the other person’s wavelength. When a person storms off and won’t engage you, you’ve already lost and that’s not a good thing if the goal is to win converts.

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