Sunday, July 24, 2005

The New York Times is smarter than us

Why is it that the aims of corporately funded interest groups are always viewed with suspicion, while the aims of interest groups without such strong corporate ties are always seen as undoubtedly pure? This piece was in this Sunday’s New York Time’s editorial page, questioning just what the true aims of the The Center For Consumer Freedom. God forbid they’re funded by the food and beverage industry.

"It [The Center For Consumer Freedom] assumes that your interests - as a free consumer - are synonymous with the interests of corporations that are being closely watched, and often openly opposed, by organizations like the highly respectable Center for Science in the Public Interest, a lead advocate in the fight against obesity."

This is supposed to be a jab at the Center for Consumer Freedom’s credibility. Yet is it beyond the pale of reasonable belief that the interests of corporations and the interest of individuals are not polar opposites? And why is it that the Center For Science in the Public Interest is highly respectable, while the Center For Consumer Freedom is viewed with such suspicion? The article goes on to accuse to the Center For Consumer Freedom of engaging in Orwellian doubletalk:

"It would hardly work for C.C.F. simply to tell the truth - to say to consumers, on behalf of the food and beverage industries, "Activists and watchdog groups are trying to stop us from selling you anything we want to sell you." Much better to say, "These groups are trying to prevent you from buying anything you want to buy." Then it becomes a matter of sustaining freedom, protecting individual rights and keeping the prairie of consumer choices unfenced."

After all, it can’t really be about freedom and individual rights, can it? Corporations don’t care about freedom, do they? The lonely libertarian must be too stupid to realize that the ability to purchase a wide variety of food and beverage products at low prices is actually a bad thing. At least we have the New York Time’s editorial staff to show us the error of our ways.

"Protecting "the full range of choices that American consumers currently enjoy" can only be the mission of someone who believes that those choices come without cost and that the only ethic that matters is the bottom line. But every consumer choice carries a cost, and the purpose of a real consumer advocate should be to make those costs - both moral and financial, to oneself and to others - perfectly clear. That, of course, is something that industries profiting from the untrammeled appetites of Americans cannot afford."

How silly of us. All this time we’ve been doing our shopping without considering the larger social issues that go far beyond just price and quality.

Of course, there seems to be a bit of a dispute about what a “consumer advocate” actually is. Personally, I’d prefer a consumer advocate to spend time fighting for my right as a consumer to make choices for myself, and not spend their time telling me what’s good and bad for me, urging the government to enforce their views of good and bad through law.

Verlyn Klinkenborg accuses the Center For Consumer Freedom of hypocrisy, but she seems to be the one engaging in Orwellian doublespeak. Her point seems to be that limiting the choices of individuals will protect consumer rights, but she doesn’t really want to come out and say it that way. And the hypocrisy she accuses the Center For Consumer Freedom of? They make statements such as, "These [activist and watchdog] groups are trying to prevent you from buying anything you want to buy," when they really should be saying “activists and watchdog groups are trying to stop us from selling you anything we want to sell you.” Of course, that’s not hypocrisy, nor is it anything remotely Orwellian. You see, in order to conduct a transaction, you need a buyer, and a seller, both of whom must be willing to engage in the transaction in the first place. Of course, maybe such simple logic is beyond the grasp of the complex minds at the New York Times. As usual, the only simplicity can be found in the axioms, regulation good, business bad, and consumers stupid (but shhhhh, don't say that last one too loudly.)

Thursday, July 21, 2005

Also on MSNBC: Americans want Robert's position on abortion

This just in. Apparently the majority of Americans care about John Robert’s position on abortion. In related news, the majority of Americans also care about John Robert’s position on the Atkins diet, and the majority of Americans really want to know Roberts’s all-time top five desert island albums, should he ever be stranded with John Cusack.

Robert’s position on abortion doesn’t matter and shouldn’t matter to his being confirmed to the Supreme Court. Of course, questions about his judicial philosophy as a whole are entirely relevant, but Roberts would never have been approved to be on the Circuit Court in the first place if his judicial views were found to be unacceptable by the legal community.

Roberts’s nomination has already drawn cries that he should not be confirmed if his views are “outside the mainstream.” Not to sound elitist, but most Americans don’t have any real understanding of Constitutional law to begin with. The views of most lawyers, judges and legal scholars on Constitutional Law are probably outside the mainstream of a public that has little understanding of the complexity of legal issues. Of course, this is not to say the public in general has no role in the debate over legal issues. But judging a legal professional’s views based on an uninformed conception of law is a bit like judging a doctor without any expertise in medicine. Obviously, we’re all capable of pointing out the quacks, but clearly, John Roberts is no quack.

Case in point, Roe v. Wade. Roe v. Wade is a contentious legal issue, and the reason for that contention has nothing to do with the fact that abortion is contentious issue itself. The American public as a whole can tell you their views on abortion, but most people would have trouble articulating a legitimate legal rational as to why Roe v. Wade should either stand or be overturned.

The point is, as the lonely libertarian has noted time and time again, is that judges should be judged on their legal views and techniques, not on the results that they reach. And a pretextual look at Roberts's Constitutional methods should not be utilized as a means of determining his position on abortion.

Planes, Trains, and Automobiles

The lonely libertarian just heard that New York plans to begin using police to conduct random searches of users of public transportation on MSNBC, which just so happens to be on in the background. I have not read any other blogger reactions, nor heard any reactions on MSNBC. I've only read what was mentioned in this MSN piece, that the New York Civil Liberties Union believed such searches would "violate basic rights."

"The NYPD can and should investigate any suspicious activity, but the Fourth Amendment prohibits police from conducting searches where there is no suspicion of criminal activity," executive director Donna Lieberman said.

Well, not exactly. The Forth Amendment actually says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Forth Amendment applies not just to police, but to all searches made by the government. Which would of course include searches conducted by federally employed airline screeners, wouldn't it? But no, wait, I haven't heard any protests about searches of airline passengers. Sure there are complaints, but no one is suggesting that metal detectors and other search tools employed by airline screeners are unconstitutional. I wonder if any of the passengers on the shoe bombers plane complained when he was searched and detained?

The point being is that we don't have an absolute right to public transportation. Public transportation is a privilege, and in order to make use of that privilege, you have to be willing to comply with the regulations that are deemed to be neccessary. It's not a matter of giving up rights, it's a matter of chosing whether or not you want to put up with a search. If you don't want to put up with a search, you don't have to ride the subway. If however, you want to ride the subway, you can allow yourself to be searched. And if you want to fly on an airplane, you agree not to conduct protests in the aisles, or take part in other activities that would be protected by the Bill of Rights in other situations. The idea that the Bill of Rights applies in exactly the same manner, regardless of whether you're in your home, or flying on an airplane is just plain silly.

Or, as the lonely libertarians Constitutional Law teacher, Profesor Margulies would pose the question,"Planes, Trains, and Automobiles," what doesn't fit? The answer of course is automobiles, which are owned by private individuals and in which a certain degree of privacy is expected. Planes and Trains of course, are either owned by the government, or operated with government assistance under the purview of strict government regulations.

Of course, this is by no means an endorsement of random searches as a practical matter. The lonely libertarian is unsure of how effective such procedures actually are- the point is, taking precautionary measures does make logical sense, and searches of users of public transportation, like searches of airline flyers, should be perfectly constitutional.

Tuesday, July 12, 2005

The Spurlock Watch

The lonely libertarian finished reading Morgan Spurlock’s “Don’t Eat This Book: The Supersizing of America,” a few weeks ago, but it looks like Randy Balco (of the Agitator) beat me to the proverbial punch, at least as far as blogs go. His blog, Morgan Spurlock Watch, undergoes the massive task of debunking the book.

I’ll leave the individual instances of nitpicking to Balco’s very excellent blog. I’d rather focus on the book (and Spurlock’s famous film which inspired the book, Supersize Me) in the larger sense, as an example of some of the problems of modern liberal arguments.

1) Arguments about personal choice are countered with irrelevant attacks against the non-profit groups who argued for personal choice in the first place. Back when Supersize Me first was released, the Center For Consumer Freedom ran numerous pieces and numerous attacks against the film, precisely because they thought it was a threat to those who believe in the right of individuals to make their own dietary choices. Rather than respond to the substance of these attacks, Spurlock resorts to name calling. He tells us that The Center for Consumer Freedom is partially funded by the food and beverage industry. Well obviously the food and business industry have a stake in these issues, but that has nothing to do with the validity of the claims, which Spurlock cleverly avoids addressing.

2) An elitist and smarter than thou mentality. “Why are you eating this food!?” Spurlock practically screams at his audience. “Don’t you know you’re eating the nutritional equivalent of toxic waste!?” Millions of people choose to eat McDonald’s everyday, but the story that Spurlock tells leads the reader to believe that all of these millions must be ignorant to the consequences of their actions. After all, who would knowingly eat toxic waste?

3)The book is a polemic without offering any solutions whatsoever. Do we need Spurlock to tell us that McDonalds isn’t healthy? No, we all know that. Do we need Spurlock to tell us that too much McDonalds might kill us? No, we already know that too. Spurlock doesn’t want to come right out and argue for government regulation and lawsuits against the food industry, but what else can we expect from a man who practically accuses the fast food industry of deliberately poisoning the American people.

Lost in the story: Minister to sue Democrats over slavery

Buried in this Washington Times piece about the NAACP's never ending quest for slavery reparations are these two paragraphs seemingly unrelated to the rest of the piece.

The Rev. Wayne Perryman of Mount Calvary Christian Center Church of God in Christ agreed that pursuing the federal government is not a fruitful option. The Seattle minister has filed two reparations lawsuits against the Democratic Party, saying its role in defending slavery and opposing civil rights bills during the Jim Crow era deserves an apology.

"One of the problems in courts is that ... you have to show ... the government official who participated in it," Mr. Perryman said. "With the federal government the real problem is that it has never had a totally pro-slavery position, the Democrats did and supported it, while the abolitionists and Republicans did not."

The rest of the piece is all about the NCAAP guilting large corporations into apologies and reparations for their roles in slavery. (Which at the very least is a much better tactic than extorting money from the American taxpayer.) And while the thrust of the article is about thissearchh for other sources for slavery reparations, suing the Democratic Party doesn't seem fit the prototypical reparations profile. Biting the hand that feeds is usually not a tactic of the NAACP.

The lonely libertarian also wonders if author Brian DeBose really did his homework. Check out Rev. Perryman's website here. It's hard to tell from the website whether this lawsuit is merely a political ploy, or whether it actually represents a radically different approach to race issues and reparations. Either of those possibilities seem to be a lot more interesting than the NAACP attacking corporate America, yet this lawsuit is only a minor footnote in a larger article.

Monday, July 11, 2005

Shout out to Professor Meyer

My criminal law professor from last fall, Linda Meyer had an interesting piece on Justice O'Connor in last Sunday's Washington Post. She's right on when she says that O'Connor will be missed most greatly for her mode of judicial decision making, and not her role as a so-called "moderating influence" on the court. Most of the mainstream media have missed this point in their effort to portray the court as a battleground for political ideology. But really, O'Connor's penchant for very fact specific jurisprudence, and limited as opposed to sweeping decisions, is what will be most sorely missed by the court.

Another thought popped into my head as well while reading Professor Meyer's piece. For all the claims of liberal bias in academia, such bias has been noticeably absent in all of my courses so far at Quinnipiac. Not only is such bias absent, but the staff at Quinnipiac goes out of there way to present multiple sides of issues, and to make sure students understand different modes of judicial decision making. Professor Meyer is no different. The lonely libertarian remembers a moment early last fall while reading Lawrence v. Texas in class, when the liberal leaning Professor Meyer told the class that regardless of what we though of his views personally, we really should learn to appreciate the writing of Justice Scalia.

Saturday, July 09, 2005

Supreme Court Editorial Mad Libs

Does it really matter just who is nominated to the Supreme Court? Won't the reaction from the media be something like this, regardless of the nominee’s actual judicial record? (Courtesy of Orin Kerr over at the Volokh Conspiracy)

Friday, July 08, 2005

Bloggers, the Media, and the London Bombings

It seems almost irresponsible for a blogger not to blog about the terrorist attacks in London yesterday (Full Coverage in the London Times), yet I’ve struggled to come up with anything substantive to blog about. At this point, with many of the specifics about the attack still uncertain, any analysis is mostly half-founded speculation. Many bloggers have attempted to weigh in, but looking around the blogosphere, bloggers from Andrew Sullivan to Daily Kos have just used the London attacks to reinforce their allready strongly held political views.

The truth is, the mainstream media does an excellent job of covering the facts of these sorts of events as they happen. When I heard news of the attacks on the radio Monday morning, I turned immediately to cable news, not to my computer. Not that the blogosphere has nothing to add: The first hand accounts of bloggers in London during the attacks provide a far greater depth of coverage that could have ever been imagined in the pre-blog days.

Just keep in mind that the individual blogger is much like the individual reporter. And no blog has access to the sheer number of reporters that the cable networks and other mainstream media sources have access too. The rise of the blogosphere, and rise of other sources of alternative media have little or nothing to do with the mainstream media’s coverage of very fact specific events like the terrorist attacks. Rather, the rise of alternative media has everything to do with the analysis of such fact specific news. In the immediate aftermath of the attacks, what the blogosphere has to offer is limited in comparison to the mainstream media. Once all the facts become clearer, look for the blogosphere to weigh in with everything from sound insightful analysis to unfounded conspiracy theories.

Bloggers may love to criticize the mainstream media, but it’s important to give credit where credit is due. It’s also important to recognize expertise where expertise deserves to be recognized. The journalist reporting from a war zone deserves all the credit for, well, reporting from a war zone. But a journalist reporting from a war zone may be no more qualified to analyze his observations, or analyze the war itself than an armchair blogger would be. In certain instances, a blogger with military expertise may be far better qualified to analyze the journalist’s observations than the journalist himself would be. Once these distinctions between information gathering and analysis are apparent, it becomes clear how very different they are.

The difference between information based news and analysis based news can be summed up in brief. Fact based news can tell us at least 50 dead in the London attacks. That can be spun in various ways. “50 Infidels Killed by Freedom Fighters.” Or, “Woman and children among the 50 dead in unprovoked terrorist attacks.” Either way, whatever your political ideology, you know the 50 people were killed in the attacks on London. Analysis based news has no such common nucleus of fact. “Britain unprepared for latest attacks by Muslim fanatics,” and “London incident a direct result of Western intervention in Iraq,” both attempt to explain why the attacks occurred. But clearly they are two very different conclusions.

News gathering agencies and reporters do in fact have a monopoly on information gathering. Bloggers in the United States would have very little to blog about in regards to London if there was not a constant flow of information from traditional news sources coming out of London. What bloggers can provide is expertise and insight, perhaps to a greater extent than any of the information gatherers.

Look for bloggers to continue in this role, along with their role in checking the factual assumptions of the mainstream media. (See Friday's Best of the Web, questioning the New York Time's use of the phrase "so-called war on terror.")

Monday, July 04, 2005

Attack of the Anti-Bloggers

The lonely libertarian just had to link to this Sunday's Doonesbury Strip, courtesy of Nick Stewart. (via Instapundit.)

The rest of blogosphere is probably covering the strip in great detail, and unlike Nick Stewart, the lonely libertarian doesn't see this as much of a cause for anger. The reaction of the "old guard" to the rapid rise of the blogosphere is more humorous than anything else. This reaction is characterized by two symptoms:

1) Fear: This is covered by Nick Stewart. Fear of losing influence, and fear of the unknown

2) Misunderstanding: The best part of the blogosphere is the massive number of people who are blogging. Sure, 99% of the blogs out there are of no interest to anyone outside of the bloggers friends and families. But that doesn't mean there aren't any blogs out there that are worth reading, or that the medium itself is unworthy of competition with traditional information outlets. That would be like ignoring television news completely because television is the same medium that gave us The Simple Life. When the blog critics place the lonely libertarian in the same category as say Instapundit, it's the equivalent of placing the New York Times in the same category as an underground high school newspaper.

But maybe everyone in the blogosphere just doesn't know what they're talking about. After all, it makes sense to the lonely libertarian that Gary Trudeau would be more qualified to write about legal issues than all of the law professors at his favorite blog, The Volokh Conspiracy.

The Religion Decisions

The lonely libertarian wanted to reserve comments on the religion decisions, McCreary v. ACLU and Van Orden v. Perry, until after he had the chance to read them. Far too often when it comes to issues of Constitutional law, the media is inundated with the voices of those who haven't even read the opinions of the cases they are weighing in on.

But now that I've had the chance to read both of the opinions, I'd like to add my two cents. In a legal sense, the distinction between McCreary and Van Orden is a joke. Basically, the guidelines states and municipalities have to go on is that Ten Commandment monuments are okay if they were erected in the days before the ACLU cared about such matters. But count on very strict judicial scrutiny of your motives if you plan on putting up any new religiously themed monuments. The lonely libertarian isn't quite sure where in the Constitution it says any of this, but maybe it's one of those oft ignored amendments or articles he's never read all that thoroughly. Certainly it's not in the 1st Amendment.

As far as practical applicability goes, at least Justice Breyer makes up for his lack of legal sense with a bit of common sense. It's thanks to his one vote, and his appeal to rationality, that all the monuments around the country of the sort found in Van Orten don't all have to be demolished as Establishment Clause violations.

The lonely libertarian finds Justice O'Connor's concurrence in McCreary particularly disturbing:

When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual's decision about whether and how to worship. In the marketplace of ideas, the government has vast resources and special status. Government religious expression therefore risks crowding out private observance and distorting the natural interplay between competing beliefs.

Justice Thomas addresses the polar opposite of this viewpoint in his Van Orden concurrence:

In no sense does Texas compel petitioner Van Orden to do anything. The only injury to him is that he takes offense at seeing the monument as he passes it on his way to the Texas Supreme Court Library. He need not stop to read it or even to look at it, let alone to express support for it or adopt the Commandments as guides for his life. The mere presence of the monument along his path involves no coercion and thus does not violate the Establishment Clause.

By no means am I an expert on the Establishment Clause, but the disconnect between these two positions is staggering. On one hand, O'Connor would have the courts worry about every instance where religion could be associated with the government. And on the other hand, Thomas would limit judicial concern only to those situations involving legal compulsion. Justice Thomas's point is well taken. Is the issue in these Ten Commandment cases really an issue in which the individuals rights over when and how to worship are being infringed upon, or is the issue one of the individual being coerced by the government?

Keep in mind, the purpose of the Bill of Rights was to set limits on government action in order to better preserve the rights of individuals. Obviously, in any Establishment Clause case we're dealing with government action, but the question must arise as to what just what individual rights are being violated. Are any rights actually being violated, or are these Ten Commandment cases merely incidents of individuals taking offense to certain government actions? And is it possible for a religiously based to display to even violate an individual's rights? As Justice Thomas noted, there is a major difference between a monument on one hand, and the coercive nature of forced bible studies for example, or even the mandatory posting of the commandments in public schools on the other hand.

The lonely libertarian just finds O'Connor's position difficult to put any faith in. Why is it so troublesome when the government associates a particular set of religious beliefs with government, but not troubling at all when the government associates a particular set of political beliefs with the government, say for instance drug laws. Personally, I find the government's anti-drug propaganda to be much more manipulative than a display of the Ten Commandments.

The whole concept of endorsement becomes increasingly silly when one thinks of the vast multitude of non-religious viewpoints the government can endorse. Somehow it's okay for the government to proselytize about drugs, but it's wrong for the government to recognize the Ten Commandments? It just doesn't make a lot of logical sense.

The most damning evidence against the Establishment Clause jurisprudence as it exists today, is the numerous exceptions made for state sanctioned legislative prayers and uses of the word God. Regardless of motive, a government sanctioned prayer to God certainly seems to entangle religion and government in ways that a religious monument never could.

The lonely libertarian supposes that all in all, these decisions could have been much more far reaching and much more drastic. If not for Justice Breyer's very practical Van Orten concurrence, the states and municipalities may have had quite a construction bill to foot.

Sunday, July 03, 2005

Brief Thoughts on Justice O'Connor's Retirement

After 24 years on the Court, Justice Sandra Day O'Connor is retiring. The most fun to come in the upcoming nomination battles will be watching various liberal and conservative groups work themselves into a tizzy over just who this nominee will be. The key issue, of course, is abortion.At times, it will probably seem like the only issue in this debate.

Professor Randy Barnett has a great post about how we should look to Constitutional methods, not results in judging potential nominees.

Not that such logical considerations will ring true for the vast majority of the anti-choice and pro-death crowds. The silly part is, perhaps the best thing that could happen for abortion supporters would be the overturning of Roe v. Wade. Abortion would immediately become a political issue rather than a legal one, an issue that those on both sides could feel as though they have a voice once again. In addition, the millions of dollars spent by groups like NOW on fighting for abortion rights, could be refocused on helping woman in states that may outlaw abortions obtain legal abortions in other states. Unlike in 1973, when the vast majority of states actually had outlawed abortion, the vast majority of states in the 21st century would not criminalize abortion.

Additionally, to the benefit of the of the pro-death crowd, abortion would no longer be the political rallying point it has become for conservative Republicans. It could actually help Democrats. And to the paranoids out there, Congress has no authority to ban abortion outright. That would require a Constitutional Amendment.

Loyal, lonely libertarian readers stay tuned, as the lonely libertarian has been a bit busy with his torn ACL. There still are a number of Supreme Court decisions to be weighed in on, however, along with thoughts on this anniversary of our independence.