This Should Be Fun

Blog Discussions, Technology, Theory and Ideas

Not long ago, CATO unveiled their blog: CATO Unbound. The premise is that they will have a primary essay every month, responses from other prominent bloggers and provide trackbacks and links so that the rest of the blogosphere can respond too. Because December was so insane, I didn’t get a chance to play with the CATO concept as they debuted with The Living Constitution. Which is really too bad, since they hit on one of my favorite political topics: The 17th Amendment.

Anyhow, this month’s topic promises to be another one of deep interest to me and hopefully one I can participate in. The topic is Internet Liberation: Alive or Dead?. The lead essay, defining the position to be argued will be written by Jaron Lanier. The other contributors will include Glenn Reynolds and Eric Raymond, or “esr”, as he is known in hacker circles. There aren’t many other folks who would be such obvious, and good, choices for this topic. The topic itself will deal with:

An all-star lineup of techno-visionaries will discuss what, if anything, is left of all those mid-nineties prophesies of radical internet liberation.

I have to say that I will be interested to see what the CATO contributors have to say and even more interested to compare and contrast it with my own vision related to Technology and Liberty. In fact, considering that recent article on my part, my joining the ranks of the mobile technology users and my general vision of technology and its relationship to people and to liberty, this should be interesting and fun. Here’s hoping that The Liberty Papers and Life, Liberty and Property have a lot of good contribution to the discussion.

Rights of the Government to Impose Air Security Measures

Constitution, Individual Rights, Privacy

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

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

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

…

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

…

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

…

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

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

…

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

…

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

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

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

…

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

…

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

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

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

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

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

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

…

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

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

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

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

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

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

(cross-posted at The Unrepentant Individual)

Price Controls: Guaranteed Disaster

Economics

Thomas DiLorenzo wrote an excellent article back in November on the consequences of government price controls. There’s an interesting underlying theme here. DiLorenzo catalogs more than 2500 years of government price controls and the disasters they brought about, all the way up to modern times and the energy crisis of California. And the thing that jumped out at me was that we never seem to learn from history. And it isn’t just the things that we think of with history, war, crime, totalitarianism. Those are the issues most people mean when they say that humans don’t learn from history. But, arguably, government controlled economic systems have caused more misery, for more people, throughout history, than anything else humans have done to ourselves.

Listen to this (summarized from DiLorenzo’s article):

  • In the 3rd century B.C. the Egyptian economy and political stability collapsed due to agricultural price fixing. Farmers left their land because of the strangulation caused by price inspection armies, enforcing prices set by fiat.
  • In Babylon, four thousand years ago, the Code of Hammurabi contained a maze of price controls, setting the rate that workmen were to be paid, how much a boat could be hired for, and so forth. This “smothered economic progress in the empire for many centuries”.
  • In the American Revolution, after the Pennsylvania Legislature introduced price controls to support the war effort, Washington’s Continental Army nearly starved to death because of shortages of the very items under price controls. The actual language from the legislation was “those commodities needed for use by the army”.
  • American planners in charge of Germany at the end of WWII instituted incredible central planning and price controls, on par with those found under the Soviets. None other than Hermann Goehring told them “I tried and it failed. Nor can any country do it all the way either. I tried that too and it failed. You are no better planners than we.”

And on and on the list goes. Considering the incredible misery that economic regulation by government has brought about, including the deaths of many millions in Europe, Asia and Africa in the 20th century, you would think we would have learned our lesson by now. But we seem, somehow, to be blithely convinced that we can do it better than those other bums. Never mind that we ended up with brown outs and black outs in California because of price controls on electricity, that we had gasoline shortages in the 70’s because a “conservative” President instituted draconian price fixing on oil. Just ignore the entire black market that existed throughout the country to deal with the price controls and rationing of WWII. Forget about the fact that the Southern slave owners were huge proponents of socialist economics (bet you didn’t know that). It doesn’t matter that Canadians now wait longer to get worse health care than they did before they gave themselves 100% socialized medicine.

Oh, wait, history really does show that government regulation of economic activity fails miserably every time? Oooops. Ignore all that evidence. This time we’ll do it right. And, even if we don’t, you’ll be so busy trying to find some staple that you absolutely have to have that you will not pay attention to the horrible situation government economics have put you in. The USSR banked on that. It worked well for them too.

H/T: Don Lloyd of Catallarchy

A Three Party System ?

General

James Joyner at Outside The Beltway points to this post by Scott Elliott where he predicts the emergence of the Libertarian Party as a true third party within twenty years:

Here’s the reason why: Many Americans are libertarian at heart – they just don’t recognize it…yet. These folks believe in less restrictions on behaviors (a liberal or Democratic view) and less involvement by the government in economic issues (a conservative or Republican view). Right now, many closet Libertarians are counted among the two major political parties. As Democrats continue to espouse increasingly liberal economic policies – such as universal healthcare – it is becoming more and more difficult for libertarians in their ranks to remain. Likewise, philosophical libertarians in the GOP are getting increasingly uncomfortable with the growing influence of the values-based politics – such as pro-life policies and the Defense of Marriage Act – in their party. These forces in both major parties that run contrary to their more libertarian brethren are showing no signs of backing off. As a result, I predict a slow steady bleed of philosophical libertarians from both the Democrats and Republicans. This migration will produce, sometime in the next two or three decades, a political system with three major partisan players.

Elliott is right that there is a subset of the American electorate that is, in some sense, libertarian at heart. It doesn’t necessarily follow, however, that this means success for the Libertarian Party, for several reasons.

First, the structure of the political system, especially at the national level, is biased heavily in favor of a two party system and the Democratic and Republican parties exist, in some sense, to preserve that system. Just as the Democrats co-opted the ideas of the Socialist Party in the early part of the 20th Century when its popularity was on the rise, one can expect to see one of the two major parties adopting a more libertarian-oriented platform if doing so would guarantee them votes. Since both of the major parties have far more resources at their disposal than the Libertarian Party can ever hope to have, this means that any insurgent libertarian movement in the near future would translate into a more libertarian tone from one of the two major parties rather than the emergence of a third party.

The second reason I think this is unlikely to happen is because the Libertarian Party is simply just too weird to succeed. They are, by and large, out of the mainstream when it comes to issues such as the War on Terror and have been dominated in the past by ideologues rather than the professional politicians that are needed to actually win elections. Absent a mass defection from one of the two major parties to the LP, an event I find unlikely to occur, it seems unlikely that the LP will ever be able to acquire the resources and talent that it takes to win elections at the national level.

Elliott is correct that there are forces that are causing the old coalitions that make up the Republican and Democratic parties to drift apart. Rather than the emergence of a new party, however, the more likely result of this divergence is the same kind of realignment we’ve seen at other times in American history.

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