Food For Thought

Interesting quote from this piece in yesterdays New York Times, Passing Down the Legacy of Conservatism.

Every political movement has its texts. But James W. Ceaser, a professor of politics at the University of Virginia, argues that the conservative focus on core thinkers has no exact parallel among liberals.

“It doesn’t mean they’re not interested in ideas,” Professor Ceaser said. “It means their approach to politics doesn’t rest on theory in the same way.”

Liberalism’s main tenets formed earlier, he said, in the Progressives’ expansion of government, and are conveyed as assumptions rather than matters requiring theoretical debate.

That sounds more like Rush Limbaugh than anyone who would usually be quoted in the Times.

What Would Israel Do?

The lonely libertarian has avoided weighing in on the conflict between Israel and Hezbollah, mainly because I don't have much to say, other than war is hell. Everyone is always so quick to take sides in these conflicts, and I hesitate to do so, but I have trouble not being sympathetic with Israel.

I'm no expert in recent Middle Eastern history, but from what I remember, I think Israel has only gone to war as a result of aggressive action taken against it in the first place. If I'm mistaken, I'd be happy to have that pointed out to me, but as far as I know, Israel has never been the initial aggressor.

Just place yourself in Israel's position- bombings and kidnappings inside your borders, surrounded by foreign leaders who continually question your right to exist- And what would you do?

Plenty of people are critical of Israel, many of them overtly so- just visit here or here on Democratic Underground to see the reactions to liberal commenters who dare to defend Israel.

But to those highly critical of this engagement, and other Israeli military actions I would ask the following question: What would you have Israel do? If a terrorist group from a neighboring country kidnapped your soldiers and shot rockets in to your country causing the death of your friends and family members, wouldn't you want some sort of military retaliation?

For over 40 years war has not solved anything in the Middle East- But the real problem is, for over 40 years, peace hasn't solved anything either.

Internet Gambling

Interesting Town Hall article from economist extrordinaire Walter Williams on the truly disgusting Federal bill banning internet gambling.

This was another one of those, *sigh* not again moments - I hadn't really taken the time to consider the full impact of such a bill. I'll ignore Professor Williams Tenth Amendment argument for the moment, as the Tenth Amendment is questionable as an actual limitation on federal power. However, the real interesting question is the commerce clause one. With the blurring of the line between actual commerce and mere economic activity in current commerce clause jurisprudence, internet gambling probably falls under the commerce clause.

What gets a bit stickier is the question of internet regulation in general. And why is gambling somehow different via the internet as opposed to over the phone, or actually travelling to a state which allows gambling?

The truly frightening part of the act are the restrictions on internet service providers. Ridiculous laws are bad enough, and it doesn't help when the government puts private companies in the business of enforcing these laws.

But I Want It Now

From Neal McClusky at the Cato blog, this is just much too good not to link to.

McClusky takes this Washington Post article- Put Grad School In My Grasp- and tears it apart, piece by piece.

I'll just file this away in the whiney American file. I'm probably as guilty of this as anyone else, but we of the younger generation tend to want things just handed to us. We have no real idea what hard work is, or the fact that not everything in life is easy. But at least the lonely libertarian has the good sense not argue for my greediness and selfishness as public policy.

A Convenient Truth

Reuters reports global warming puts 12 U.S. national parks at risk.

Only 12?

Even more fun are the posters on Democratic Underground. A sampling-

From someone named bennywhale:


There'll be more than parks shutting down across the rest of the world now the effects are starting to kick in. Millions dead, millions of refugees, flooding, famine, cultures and civilisations uprooted, eco-systems wiped out.

What a world we are leaving.

When i look back on previous generations and ancestors it often with respect, admiration and affection for thwe way they were and what they achieved. I wonder how our descendants will look back on us???

And from someone named Lorien:

We won't have descendants. I believe that if you are under 50, your generation is among the last. The horrors you describe will be here in 10-15 years; eco-systems are already being wiped out at a sickening rate.

Oh if only we had done something! If we had just impoverished ourselves, and not created cars, and air conditioning, and electricity ... then maybe we'd be able to really appreciate our national parks.

My Science Is Better Than Your Science

A follow up to this lonely libertarian post from this past February: On Global Warming: Who's Censoring Now?

The same NASA climate scientist who complained that he was being censored by the Bush administration because of his views on global warming is now protesting the fact that global warming skeptics from the scientific community were invited to a hearing before Congress.

Relax George Michael

2 reasons to link to this article: Think your cosuin's cute? Relax.

1- John Stossel always gets slammed for being a corporate stooge. He's not, he's a libertarian. No one else would ever write something like this.

2- George Michael (not the singer-songwriter) deserves redemption. Maybe tonight indeed.

Maybe I'm Not Voting For Ned Lamont

Ned Lamont's latest campaign advertisement.


Joe Lieberman is potentially hazardous to anyone who drinks water or breathes air. For details, consult the Bush-Cheney Energy Bill. Avoid Joe Lieberman if you are elderly or run a risk of future elderliness. He voted to raise the Medicare age to 67 and to enact co-pays and income requirements. Joe Lieberman may lead to privatizing Social Security.

It Wasn't Me

Via Ann Althouse, this piece on the 32 worst song lyrics of all time.

All I have to say is, "It wasn't me."

I'm Not A Bush Apologist, But ...

Via Proffesor Long's Comment Board, IRS to cut tax auditors.

If it seems like I'm an apologist, it's only because I take the time to point out some of the over the top assertions made by Bush-bashers. Here we have IRS auditors and attorneys making accusations, but accusations are not facts. Before I accused the Bush administration of subverting Constitutional checks and balances in an attempt to skirt the law, I'd want to know,

1) How much authority does the executive branch have in creating and eliminating jobs in the federal agencies.

2) What roll, if any, does the administration play in making these sorts of decisions? (In other words, to what degree is this political, and to what degree is this bureaucratic?)

3) And finally, how have other administrations conducted themselves in this regard?

But maybe that just makes me an apologist.

Why the lonely libertarian is lonely

This Hit and Run post is a good summation of the blogesphere discussion over the past few days about the merits of the Iraq War and libertarian foreign policy in general.

This piece by Robert Higgs is just the sort of point of view that led to this blog in the first place. Higgs sums up his argument,

In sum, the issue of war and peace does serve as a litmus test for libertarians. Warmongering libertarians are ipso facto not libertarians. Real libertarians do not expect pigs to fly: they do not believe the government's lies about the multitude of foreign fiends poised to pounce on us; they do not credit the government's promise to protect us from any real monsters that may exist beyond our borders; they do not even take seriously the government's declaration that its primary objective is to secure our rights against foreign invasion or other harm originating abroad.

During wartime, governments invariably trample on the people's just rights, propagandizing the abused citizens to believe that they are trading liberty for security. Yet, time and again, after the dust has settled, the U.S. government's wars have yielded the net result that Americans enjoyed fewer liberties in the post-bellum era than they had enjoyed in the ante-bellum era. This ratchet effect must be expected to accompany every major military undertaking the U.S. government conducts. In every war with a decisive outcome, the people on both sides lose, the government on the losing side loses, and the government on the winning side wins. What sort of libertarian wants to swallow that kind of poisoned Kool-Aid?

And the lonely libertarian can't help but cringe. Obviously war sucks. And yeah, inter armas silent leges rings true. (I believe, in times of war, the law falls silent.) But this is true of every single war, ever, and I find it hard to believe that anyone, libertarian or otherwise, would tell us that every single war we have ever fought is a bad idea because of this thesis. World War II was a time of tremendous intrusions on individual freedoms, both during the war, and in the years following the war. But that doesn't mean America was in the wrong, and that certainly doesn't mean we'd have been better off not fighting the war and leaving Europe, Asia, and Africa to the machinations of Germany and Japan.

You can't wish away a debate on the issues of the war in Iraq with a theory that ignores the factual specifics weighed in determining whether or not an individual war is worth fighting. It's easy to weigh the merits of wars after the fact- World War II, good, Vietnam, bad. It's much harder to weigh these issues before we know the outcome. Everyone always tends to forget, there were peace activists in the 1930's too.

And finally, the lonely libertarian questions whether political ideology actually does coincide with specific foreign policy positions. After all, one can make both liberal and conservative cases for war, and liberal and conservative cases against war. Political ideology certainly can play a role in the foreign policy position one ends up taking, but as Pat Buchanan and Joe Lieberman have demonstrated, ideology is by no means determinative.

Government Knows Best: Mad Cow Edition

From today's New York Times: U.S. Reduces Testing for Mad Cow Disease, Citing Few Infections.

The mad cow thing is one of those great situations where "consumer groups" are left in the dust by government and would actually benifit from a free market. As the article points out, private companies are actually prohibited from conducting their own testing for mad cow disease. The government makes the point that if some private groups tested every single cattle to go on the market, then the public might think that such extensive testing is neccessary, and assume that other cattle are not safe.

This is the scary side of the nanny state. Industries and individuals who would like a higher safety threshold are rebuffed by government experts. There may be any number of ideas in the cattle industry as to how to best protect the public from mad cow disease, but with the current system, we are left with only the one government plan. We're constantly told that we need government regulation to protect us from the market, but do we really need the market to protect us from the government.

SWAT Redux

Radley Balco has e-mail responses to his SWAT paper. The lonely libertarian actually took the time to read the report this week, and just had a few more thoughts.

As Balco has mentioned, much of the criticism of the report has attempted to point out that the botched raids mentioned in the report are actually a small percentage of the overall number of SWAT team raids conducted around the country. But as Balco points out, the report is not meant to be a complete chronicle of every single botched drug raid.

But really, any sort of statistical analysis is beyond the point. The real issue is whether the war on drugs is worth the cost that Balco has chronicled. Is fighting the war on drugs worth the cost of innocent lives? Drug use can be a dangerous choice, but it is just that, a choice. Drug use is not an inherently violent activity- Drug prohibition, and the war on drugs create situations in which violence is allowed to flourish and escalate, first through black market competition, and then through law enforcement response to the black market violence. To the lonely libertarian it seems very simple that protecting ourselves from bad choices is not worth the cost of the innocent lives lost in the war on drugs.

You See, The World Doesn't Quite Work This Way

Program lets forests grow longer to combat global warming.

Of course this comes from California, where people want to have their cake and eat it too. It's like, yeah man, I couldn't stop driving my car to stop global warming, so I decided to plant a tree.

SWAT

The culmination of everything I've been stealing from the Agitator for the past year: Radley Balco's paper for the Cato Institute, Overkill: The rise of paramilitary police raids in America.

For those who don't want to read the paper, you can have some fun with this interactive map, which chronicles botched paramilitary raids state-by-state. Many of these raids result in the death of police, and the death of innocent civilians. In some cases, no charges are ever filed following the raids. The lonely libertarian fins the whole report to be an indictment of the war on drugs.

Is it really worth all this death, and all this chaos, to protect us from our own bad choices?

Of Course The War On Drugs Is Working

Via the Agitator, this story about The Drug War's Dirty Little Secret.

The cars and money seized in circumstances which no charges were ever filed are most disturbing. And all of this because the government wants to protect us from ourselves.

What You Need Is A President Like ...

Don't you just hate those vague quizzes about political figures- you know, the types of quizzes that always lead you to choose Adolph Hitler as the best potential political leader. Well, in the same vein, the lonely libertarian has one of his own:

With all the complaints about the Bush administration, don't you long for the days of a president who,

1) Would end American involvement in an unpopular foreign war,

2) Would do something- anything- to control skyrocketing gasoline prices,

3) Would improve American relations with other world powers,

and 4) Would do more to protect the environment than any previous president.

Click here to see the sort of president you might be interested in.

That's right, it was during the administration of the president mentioned above that the EPA (Environmental Protection Agency) was created, the Cold War cooled as negotiations were conducted with China and the U.S.S.R., the first gasoline price controls were instituted, and American involvement in the war in Vietnam was ended.

Make Love, Not War (On MySpace)

Very good article from Wired on Rupert Murdoch's MySpace aquisition, and the marketing potential of the ever growing social networking site. The best part is, 75 year old Rupert Murdoch gets it.

To find something comparable, you have to go back 500 years to the printing press, the birth of mass media – which, incidentally, is what really destroyed the old world of kings and aristocracies. Technology is shifting power away from the editors, the publishers, the establishment, the media elite. Now it’s the people who are taking control.

My thoughts exactly.

"Why don't they just pick up the phone?"

This is from a few months back, but it's still pretty damn funny: Via YouTube, Bill O'Reilly interviewing cultural anthropologist Danah Boyd on the MySpace phenomenon.

I'll give Bill O'Reilly credit for one thing- he really does care about the welfare of children. His problem is that he has no clue what he's talking about, and as the lonely libertarian has been pointing out for almost a year now, that is the real problem with all these internet scare stories. It'd be funnier, if there weren't politicians out there, just as clueless as Bill O'Reilly, wielding the force of the government behind them.

Conspiracy Theories Part II

Some back and forth from my response the other day about election fraud in Mexico on Professor Long's Comment Board.

The response to my original comment:

"Old buddy." "sinister manner". So, now that we know what side you are on, let's have a discussion. I think your problem with the article is the fact that it could be true. Also, since an article like this would NEVER be published in an American newspaper, you treat it as babble and a consipracy.

Isn't it possible that your US media has failed you (all of them, not just on one side or another), and foreign papers may be accurate? Isn't it possible that there is actual investigative journalism in our world but none in the US?

Tens of thousands are marching throughout Mexico today in protest of the election. There is video of people stuffing ballot boxes. The would-be president-elect has already stated that he will not support a recount. And the same company in charge of votes in Florida in 2000 just-so-happened to be the company used in Mexico in 2006. But that has to be a consipracy, because the US media never picked it up and you never heard of it before Palast's article.

I am not saying I believe the article; rather, my belief is that you, a conservative party-liner, shouldn't be so quick to dismiss it. After all, that is the purpose of the message board: discussion.

Followed by my final word:


Just a few brief responses-

One I'm not a conservative party-liner at all, I’m a libertarian who toes no party line, and who tends to be a skeptic. you're probably right, I do tend to dismiss these sorts of stories, mainly for the reasons I outlined above. I’d be equally likely to be dismissive if this election had gone the other way and conservatives were claiming election fraud. I just wonder whether Mr. Palast would be equally probing of a razor thin liberal victory, or as likely to believe stories of fraud if it were conservatives who were protesting.

In my mind, investigative journalism should involve actual evidence. Examination of ballot lists, under votes, and the involvement of US companies is not actually evidence of any wrong doing. As a lawyer, think of this in a legal context- from the Palast article I see no evidence to prove any wrong doing by a preponderance of the evidence, let alone beyond a reasonable doubt. Maybe what Palast reports is enough to warrant further investigation, but the insinuations of electoral theft and Bush administration involvement are unsubstantiated. All close elections lead to outraged protests, and I’ve just seen no actual evidence of any widespread fraud here.

Perception vs. Reality

Yesterday's USA Today print edition had an online survey on what industries the survey participants felt needed to be more strictly regulated by the government. The results were not surprising. Topping the list was the oil industry, followed by the pharmaceutical industry, HMO's and other healthcare providers.

Hmmmmm .... Very odd that the industries most in need of regulation are the ones in which consumers are the most upset about the prices they are paying.

This segways nicely into the recent news of disaster at the Big Dig in Boston.

For some reason the construction industry wasn't on the USA Today list. Not that the construction industry has a terrible record overall when it comes to safety, but isn't the lack of concern for safety in the construction of a tunnel far more disconcerting than any of the supposed abuses of the pharmaceutical industry, the oil industry, or anyone else mentioned in the USA Today poll. Not that I mean to bash the construction industry, but the lonely libertarian can think of any number of construction projects that went over budget, took longer than expected, and wasted a hell of a lot of money. Construction at my high school and my college comes to mind. The problem with construction is that the public at large doesn't really feel the brunt of construction costs. Unlike the other industries mentioned above, construction costs are paid out primarily through government entities and corporations- the public only experiences these costs indirectly.

My point, as always, is that public perception of big business is not always reality- in fact, public perception is usually based on the most superficial of observations.

Choice Is Good

Radley Balco has a really, really, really good take on the how the internet has allowed culture (and political discussion) to blossom.

In a way I think this is just another take on blogging God Glenn Reynolds's concept of an Army Of Davids.

Long live the internet.

More Conspiracy Theories

Via Professor Long's Comment Board, this piece from Greg Palast, who finds the Bush administration somehow involved in an ever growing global conspiracy of election fixing.

The lonely libertarian's comments, reprinted here:

Is that my old buddy, Greg Palast, cooking up more conspiracy theories?

I don't see any evidence, just a number of facts and supositions connected in a sinister manner.

Maybe voter fraud is widespread, in Mexico, and here in the United States, but doesn't it seem likely that both sides would engage in it, not just the evil conservatives? I seem to recall from the Florida recount in 2000 that both the Bush and Gore campaigns were pretty sketchy about what votes should and shouldn't have been counted.

In virtually every election, from president to town dog catcher, there is probably some sort of shady activity going on in regards to voter eligability and vote counting. Go back in U.S. history, and look at all the close presidential elections. You'd have trouble finding one where there weren't complaints about fraud and stolen elections. That's just the nature of politics, which is a messy business.

My point? This is just way, way down on my list of things that should really concern people. Imagine, politicians behaving like ... politicians. Every election has its share of this "win at all costs" mentality, but we only here about abuses when the elections are close enough for anyone to care.

Come on.

How Do You Like This McTigue?

Here, specially for the lonely libertarian's nanny state loving conservative buddy: The Agitator's Nanny State Roundup

Actually, the scariest part is my realization of the most frightening aspect of modern day nanny-statism: conservatives and liberals teaming up in the name of protecting us from ourselves.

Living With High Gas Prices

The lonely libertarian had an epiphany a few months back about gas prices. A Connecticut State Senator had proposed a temporary gas tax reduction as a means of lowering prices at the pump. Like any good libertarian, my first reaction was enthusiastic. After all, cutting taxes is always a good idea, right? But then it occurred to me why we have gas taxes in the first place- to pay for and maintain our road and highway systems. And as libertarian as I am, it's still hard to work myself into a tizzy about paying for roads. Even for the hardcore, get rid of all government service-libertarians, you have to admit, as far as eliminating government services piece-by-piece, roads would have to be near the bottom of the to-do list. The very bottom.

And as far as gas taxes go, they're about as fair as taxes can be- they're supposed to pay for the roads, and you only pay for as much gas as you actually use. Those who drive more pay more in taxes than those who drive less. I'm well aware it doesn't quite work out this way, but in theory it's almost a pay as you go sort of system. It's actually quite a good model for how taxation should work.

Now, after I heard this Connecticut State Senator's proposal, these ideas were rushing through my brain. Given that Connecticut- like all states and unlike the federal government- must actually work within a budget each fiscal year, a gas tax freeze is actually deceiving. That money would just have to be made up from somewhere else, later on. In other words, the money is still coming out of our pockets, and the gas tax freeze was just a clever political ploy.

Now why do I bring this up today? Because gas prices remain a sore subject, and the public at large still wants "solutions." But for all the complaints, what do high gas prices actually mean- Well, at the pumps, a dollar per gallon increase on a driver that might use two tanks per week amounts to around 24-32 dollars more per week. Or 96 to 128 dollars more per month. Yeah, a lot of money, but how many of us pay more for phone, cable, and internet services? And how many of us pay a similar price for our electricity every month? (Or perhaps a lot more for those of us who like to waste electricity.) In fact, most of us pay a lot more in taxes every month than we do for gasoline.

I don't mean to downplay the effects of high gas prices. My point just is that the benefits of modern civilization have their costs. I have no numbers on it, but I challenge anyone to find me a time in human history where a society spent a greater percentage of their income on entertainment related expenses. We make a lot of money, and we give a lot of money away to pay for our extravagant (when compared to most people throughout history) lifestyles. 15 years ago, none of us had cell phones or the internet, and now most of us do. We've been okay with those additional expenses, and we'll be okay with higher gas prices too.

Just remember- higher gas prices are a hell of a lot better than gas lines, and sales every other day.

Climate Change Happens, Part III

John Stossel's response to Al Gore's "An Inconvenient Truth" : A Convenient Lie

The Lonely Libertarian for ... Lamont?

Via Andrew Sullivan: Lieberman v. Lamont

LAMONT: Look, you want to boast about how many earmarks you bring to the state of Connecticut? Alaska gets 10 times what we do. We're not doing very well on that front. But more importantly, I think we should outlaw these earmarks.

LAMONT: Look, you want to boast about how many earmarks you bring to the state of Connecticut? Alaska gets 10 times what we do. We're not doing very well on that front. But more importantly, I think we should outlaw these earmarks.

(CROSSTALK)

LAMONT: Hear me out, sir. I think we should outlaw these earmarks. I think they corrupt the political process. I think they are written by lobbyists and they're wrong.

LIEBERMAN: Try to explain that to the (inaudible).

LAMONT: I think these things should go through the congressional process. Sir, you have been there for 18 years. You support the earmarks, you work with the lobbyists, and that's what needs to be changed.

LIEBERMAN: The earmarks are great for Connecticut.(CROSSTALK)

LAMONT: Hear me out, sir. I think we should outlaw these earmarks. I think they corrupt the political process. I think they are written by lobbyists and they're wrong.

LIEBERMAN: Try to explain that to the (inaudible).

LAMONT: I think these things should go through the congressional process. Sir, you have been there for 18 years. You support the earmarks, you work with the lobbyists, and that's what needs to be changed.

LIEBERMAN: The earmarks are great for Connecticut.

So Ned Lamont is against earmarks, and might be the bigger anti-pork senator? Nominally, the lonely libertarian has been supportive of Joe Lieberman, mainly because of his support of the war on terror and the war in Iraq in the face of stiff opposition. Lamont seemed like the inevitable and unattractive blue state anti-war response, whose campaign adds loved to point out the fact that unlike Senator Lieberman, Ned Lamont didn't need to take money from corporate interests groups. Probably because Lamont is already a billionaire.

A promise to restore integrity to the system is quite tempting. Not to say Joe Lieberman is dishonest- it's a whole self-perpetuating system of earmarks and campaign contributions. But the real question is whether Ned Lamont really means any of this, or whether it's more campaign rhetoric. We shall see, but for now, it provides for a fascinating debate.

More Commerce Clause Ramblings

The lonely libertarian has been hard at work, preparing his upcoming paper " A Commerce Clause challenge to the Safe Drinking Water Act" for publishing. In the process I've been re-reading a great deal of academic analysis of the post-Raich state of the commerce clause. As I've mentioned previously, I believe that most of the criticism from conservative and libertarian circles is unfounded- or at least, it stems from a political point of view about the balance of state and national power rather than any sort of Constitutional perspective. But really, Raich wasn't about states rights or federalism- it was about the commerce clause. The real question, the one that modern Constitutional scholars have yet to adequately answer, is just what the commerce clause means today.

While the issue in Raich seemed to be whether or not states could legislate their own piece-by-piece exceptions to federal regulatory programs (in the form of a state-by-state medicinal marijuana exception to the Controlled Substance Act), the real commerce clause issue of Raich actually was the CSA itself. After all, the purpose of the CSA is to control the market of specifically identified drugs, and to effectuate that control in certain circumstances with bans on both the sale and possession of those drugs. And no one, not the dissenters in Raich, nor the critics, actually questioned the Constitutionality of the CSA as a whole.

As mentioned before, the petitioners in Raich were arguing for the rights of states to craft medicinal marijuana exceptions to the CSA- but if these exceptions were found to be Constitutionality permissible, there's no reason why other exceptions wouldn't be equally Constitutionally permissible. There's no reason a state couldn't permit possession of other homegrown drugs for recreational purposes. In fact, there's no reason why a state couldn't allow an intrastate market in drugs produced and sold solely within state boundaries. The point is, if state's could craft their own exceptions, then the federal government would only have jurisdiction over drugs actually crossing state lines.

And this is why the Court relied on what's been called the larger regulatory scheme doctrine in upholding these local applications of the CSA in Raich. If a purely local activity (such as possession of homegrown medicinal marijuana) is an essential part of a larger regulatory scheme of economic activity, then the federal regulation of that local activity is permissible under the commerce clause.

So just what does the commerce clause mean today? Many scholars have urged that an originalist approach to the commerce clause is uninformative because the commerce clause was crafted at a time when both commerce, and the regulation of commerce had completely different meanings. While that is true, it's also important to remember that the commerce clause was included in the Constitution in order to eliminate the barriers to trade that the states had erected under the Articles of Confederation. The original crafters of the commerce clause may not have contemplated wage legislation, product safety laws, or even comprehensive drug bans on the federal level, but they wouldn't have thought about these sorts of laws on the state level either. Even when the Constitution was written, it certainly seems that the point was that Congress had the right to legislate in the economic realm, and the point of any commerce clause inquiry should be into the economic nature of the regulation.

This economic sort of inquiry is not completely alien to the Supreme Court's previous commerce clause jurisprudence. After all, any regulation of an activity which is substantially related commerce is certainly going to be economic in nature. And just as the majority argued in Raich, local non-activities can be captured in a larger economic regulation, if those local activities are essential to the larger regulation. After Raich, what still remains outside of Congressional power under the commerce clause are regulations of non-economic activities. Or at least, given the Constitution, and given Supreme Court precedent, non-economic regulations should remain outside of Congressional power under the commerce clause.

This is an answer that may not please the conservative and libertarian critics of Raich, but it is really the only logical way of reconciling the modern regulatory state with the commerce clause. Not only that, but it provides a workable framework for actually discussing these controversial commerce clause issues.

Climate Change Happens, Part II

This from the natural Resource Defense Council's page on the Consequences of Global Warming.

The NRDC lists the various consequences- midway down the list is "drought and wildfire" .... followed by "more intense rainstorms." So according to the NRDC, the threat of global warming is going to bring us ... droughts and floods? That sounds more biblical then scientific.

There is scientific evidence that the earth is getting warmer (as far as I understand, there is also some evidence to suggest that it's not). But regardless, ado all these supposed consequences of global warming, which reads more like a list of plagues from God than a scientific report, have any truth behind them? I doubt it- if you can prove to me otherwise I'd be glad to listen, but most of what the lonely libertarian hears about global warming are big on scares and small on science.

"How The West's Health Fads Kill The Poor" - Am I Just Not Getting Through To People?

Always the sort of story that needs more attention: How the West's health fads kill the poor.

The lonely libertarian had a little back-and-forth here, on Professor Long's Comment Board. Read through the whole thing- the original posting is my own, as is the response by QU3L.

My question is- am I just not getting through to people? Does anyone else reading the responses of the anonymous poster get the feeling that we're not talking about the same thing?

I didn't want a debate about which poverty related problems are more serious- And I didn't want a debate about the allocation of resources to various poverty related problems. My point, my only point- as was the point of the article- was the way in which supposedly progressive health and environmental policies hurt the poor in throughout the third world.

Any time a conservative group promotes abstinence as a means of AIDS prevention, people jump all over them and say "that's just stupid." So why don't we tell groups like GreenPeace, whose support of bans on GMO's (genetically modified organisms) are hurting the world's poor, that their policies are just as stupid as the anti-condom conservatives.

"Mr. President, when your administration came up with this "First Amendment," did it not foresee a problem like this might happen?"

With all the hubub over the New York Times national security stories,
(see here) the lonely libertarian was drawn back to the Cartoon Wars episode of South Park from a few months ago- This was the one where the cartoon Family Guy planned to show a cartoon depiction of the Muslim prophet Mohammed. In this scene, the clueless Washington press corp confronts George Bush about just what he's going to do about Family Guy.

[The White House, day. President Bush is addressing the White House press corps in the press room]
President Bush: I want to assure the American people that as President, I have exhausted every possible solution. Unfortunately, Mohammed will appear uncensored on Family Guy tonight at seven.
Reporters: [clamoring] Mr. President!
Reporter 1: [rises] Mr. President, can't the writers of the show be reasoned with? Don't they know they're putting the country in danger? [sits]
President Bush: I have come to... understand something about the Family Guy writing staff. Suffice it to say that they will not be persuaded by the possibility of violence.
Reporters: [clamoring] Mr. President!
Reporter 1: [same one as before] What exactly did you learn about the Family Guy writing staff, Mr. President?
President Bush: [thinks a moment, then leans into the mic and says in a low voice] I'm afraid that information is classified.
Reporters: [in unison] AWWW!!! [then clamoring] Mr. President!
TCO Reporter: [rises] Mr. President, can't you force the Family Guy writing staff not to write anything about Mohammed? [sits]
LSX Reporter: [rises] Couldn't you throw them in prison? [sits]
President Bush: Look! The fact of the matter is the Family Guy writing staff is protected by something called the First Amendment!
Reporter 2: And what exactly is this First Amendment, Mr. President?
President Bush: [beat] Uh you know, the right to free speech.
Reporters: [in unison] AWWW!!! [they begin to fight furiously and clamor amongst themselves]
Reporter 3: [rises] Mr. President, when your administration came up with this "First Amendment," did it not foresee a problem like this might happen? [sits]
President Bush: [beat] Well... We didn't come up with the First Amendment. It was already in place.
TCO Reporter: [rises] What do you intend to do about this "First Amendment," Mr. President? [sits]
Reporter 4: [rises] Forgive me, Mr. President, but this "First Amendment" sounds like a lot of bureaucratic jibbery-joob? [sits]
Reporters: Yeah!
Reporter 5: That's right!

I hope the irony is apparent- U.S. newspapers would not publish the Mohammed cartoons, but they will publish what the government has told them is important to national security.

Now the lonely libertarian is not one to say that the Times should not have published any of these national security stories- I'm not sure where I fall on that, and the truth is I don't have enough information to know how secret these programs actually were and how important it was to maintain their secrecy. But one thing is certain- the New York Times and the rest of the mainstream media are just as sketchy and just as politically minded as the Bush administration.

Radley Balco (And Most Libertarians) Are Wrong On Hudson

I just now had the chance to read through the Supreme Court's recent decision in Hudson v. Michigan, a decision which has faced numerous criticisms throughout the libertarian blogosphere. Most notably, the lonely libertarian's favorite blog, The Agitator, has been exceptionally harsh. You can read what Radley Balco had to say, here, here,
here, and
here.

The issue in Hudson was simple- does a violation of the knock and announce rule implicate the 4th Amendment's exclusionary rule. And the Court, in an opinion by Justice Scalia, said no. Delving in to search and seizure law, there are multitudes of occasions in which the exclusionary rule does not apply- for instance, an improper warrant executed by the police in good faith, the hot pursuit exception, and on and on. The real issue then, is whether or not the failure of police to announce themselves before executing a warrant amounts to an unreasonable search and seizure.

Common sense tells us no, such a failure is not unreasonable, especially given the difficulty of determining how long police must wait after they announce themselves. In Hudson, the officers found the exact evidence for which the warrant was granted. A proper application of the knock and announce rule may have allowed Hudson to conceal that evidence from police in the first place. And regardless of that fact, it makes little sense to exclude evidence obtained from a properly granted warrant because the police failed to wait 15 more seconds. That's not really what the 4th Amendment is all about.

Now policy wise, I think no-knock searches are a terrible idea, particularly when it comes to these drug raids. Radley Balco has done a tremendous job of cataloging the mistakes and abuses which have resulted from what he's called the "militarization of Mayberry."

But as common sense (and the Supreme Court) has told us, there are some unique circumstances where no-knock raids may be a necessity. The issue is not one of Constitutional law, but of police policy. No-knock raids may generally be a stupid idea, but we can't well have the Supreme Court legislate as to the specifics as when a situation does and does not require a no-knock raid.

The real issue here is that of police policy, an issue that has a potential democratic solution- we could pass laws to determine the rare circumstances no-knock raids are permissible. The other issue is that of the remedy when innocent people are killed or injured, or when innocent people have their property damaged during mistaken SWAT-team raids. In such circumstances, the exclusionary rule isn't relevant, and these are the sorts of people who invoke my sympathy. Those like Hudson, who want to escape a prison term because the police didn't wait 15 more seconds don't invoke my sympathy in the same way.

As I think Balco mentioned at some point in his blogging, Hudson was a not a good set of circumstances to make the case against no-knock raids. The problem is that the problems stemming from these raids are really not related to evidence, and the exclusionary rule, though it may be a remedy, is really just an evidentiary rule. The real issues of the over SWAT-ification of America are the war on drugs, and the human costs the war has placed on ordinary American citizens, and these are not the sorts of problems we can look for the Supreme Court to solve.

Just What Does Rapanos Mean - Not All That Much

Just what does Rapanos mean? (For the background, see the previous posting)

The real issue here is how far the federal government can stick its long arm into an area which has traditionally belonged to the states- that is land planning and land use management.

Scalia makes two important observations in the plurality opinion that everyone else seems to ignore. 1st, the Army Corp’s current definitions of wetland cover up to 300 million acres nationally, including half of the state of Alaska. This is a lot of land, and just who is to have authority over this land is a very important question.
2nd, Scalia points out that one of the reasons that a number of States have sided with the federal government in this case is because siding with the federal government is a politically attractive solution. Any blame for any controversial decisions are shifted away to the states and on to a federal agency whose authority is much unreachable for those aggrieved by unfair decisions. Perhaps unwillingly, Scalia has brought up perhaps the most disturbing aspect of federal environmental regulation- When the impacts of regulation are purely local, those subject to regulation are


Kennedy’s opinion has been criticized, but in some ways he has provided a reasonable solution. To the Army Corp he is saying- justify your jurisdiction. Or in other words, prove it. Rejecting Scalia’s requirement of a hydrological connection may open the door for an even broader assertion of federal jurisdiction, however, as Kennedy indicated, his point was not just that there may be a nexus between a wetland and a water of the United States even when there is no hydrological connection, but that in some cases there may be no such nexus even when there is a minor hydrological connection present.

My real problem with the dissent- as Scalia also notes- is its lack of reliance on the Clean Water Act statute itself. The dissent’s notion of ecological connections is nowhere to be found in the statute. The dissent relies primarily on Congress’s statement of the Clean Water Act’s purpose- restoring and maintaining the integrity of the nation’s water. The problem is, the statute goes on to specify how this is to be done, and no where does it even mention ecological connections or wetlands. The dissent’s approach would provide no stopping ground for what can and can’t be regulated by the federal government.

Between Kennedy and the plurality, its unclear what direction future enforcement of the Clean Water Act will take. The questions that many of us hoped would be answered- the future of environmental law and the future of Commerce Clause jurisprudence- still remain unanswered by the fractured opinion in Rapanos. Obviously, it is clear where the liberal wing of the Court lies- unfettered Federal authority to regulate the environment under the Commerce Clause.

What remains less clear- especially after last years medical marijuana decision in Raich v. Gonzalez- is how far the other five members of the Court are willing to go to actually enforce the limits of the Commerce Clause when it comes to environmental laws.

Thoughts On Rapanos (Clean Water Act Case)

The lonely libertarian has finally had the chance to read through Rapanos v. United States, the recently decided Supreme Court decision on the extent of federal jurisdiction under the Clean Water Act.

First the background, which is available in more detail here and here. At issue is the development of parcels of land that the U.S. Army Corp of Engineers has labeled “wetlands.” Federal jurisdiction was asserted because these wetlands were adjacent to waters which flowed in to navigable waterways of the sort which have always been subject to federal jurisdiction. In 1985 in Riverside Bayview, the Supreme Court gave the Army Corp the okay to regulate wetlands which were adjacent to traditional navigable waterways. In 2001, the Supreme Court decided in Solid Waste Agency of Northern Cook County (SWANCC), that the Army Corps jurisdiction under the Clean Water Act did not extend to isolated waters whose only connection to larger waters was through the flight of migratory birds. The consolidated cases at issue in Rapanos fell between SWANCC and Riverside Bayview, as the wetlands in question were not isolated, but only tenuously connected to traditional navigable waterways. In certain circumstances, the wetlands lay directly adjacent to small brook or streams which flowed directly into larger navigable waterways. In other circumstances, the wetlands were only connected through seasonal flows or drainage ditches.

Several points should be made, particularly for the readers of the lonely libertarian who are laymen to Constitutional law.

1) This is not a question of the desirability of environmental policy. As the federal government is one of limited powers, and the question here is how far those powers extend when it comes to regulation of the environment

2) The real question here was whether or not the U.S. Army Corp of Engineers asserted jurisdiction too broadly in the regulation of these wetlands. This is a question of statutory interpretation of the Clean Water Act.

The early returns seem to be as the MSNBC article suggests- a muddy mess. The Court produced no majority opinion, meaning that in the future, “the law” will be the narrowest view in the majority- this would be Justice Kennedy’s solo opinion, which urges proceeding on a case-by-case basis to determine whether or not the Army Corp has wetlands jurisdiction in any given scenario. Here’s the low down on what all the justices had to say:

Scalia seems to be the only one who actually relies solely on the statute to interpret the statute. The dissent criticizes Scalia’s requirement of a continuous hydrological connection, but as Scalia points out, the “adjacent” language that the dissent relies on is not statutory, but the Court’s own language from Riverside Bayview.
Roberts's concurrence is really just a “cant we all just get along” lament, as he continues to struggle to bring unanimity to the Court.

Kennedy’s concurrence rejects Scalia’s surface hydrological connection requirement, and instead imposes a case-by-case inquiry to ensure that wetlands being regulated do in fact have a significant nexus to non-navigable tributaries.

The dissent seems to focus on 1- the overarching purpose of the Clean Water Act, which is to restore and maintain the integrity of the nation’s waters, and 2- a broad interpretation of the Court’s use of the term adjacent in Riverside Bayview.

All in all, the decision- or lack thereof- is not all that surprising. It’s not surprising to see Stevens, Souter, Ginsburg, and Breyer maintain their tradition of absolute deference to the legislative and administrative authority of the federal government. Nor does the plurality’s decision raise any eyebrows. If anything, it’s surprising that Scalia didn’t go further. And even Kennedy was not very surprising in filling the middle role of Sandra Day O’Connor. He not only took the middle position, he even took the O’Connor approach of providing a narrow and specific answer, rather than a broad sweeping solution. Given the makeup of the Court, any hopes for a clear, broad sweeping solution were probably pipe dreams at best.

Lieberman Plans On Running ... No Matter What

This from yesterdays local news here in Connecticut: Lieberman plans on winning election.

And the lonely libertarian predicts Lieberman will win in November- Just as he maintains his prediction that Hillary Clinton will be elected the first female president in 2008.

Whole Foods = Liberal Brain Implosion

As regular readers know, the lonely libertarian enjoys spending sleepless hours trolling through the ultra liberal Democratic Underground. This post caught my attention, seeing as I've been shopping at Whole Foods lately: Do you shop at Whole Foods? Maybe You Shouldn't! From all the postings and links, several facts seem to come out- Whole Foods CEO John Mackey is a libertarian and is strongly anti-union. At the same time, Whole Foods seems to pay it's workers well, provide good benefits, and support the use of green technology.

Here was the best posting, from someone named Vadem:

OK! What do we do? Is Mackay a union buster or a green person, using wind power to power his stores? What is it to be? I will not support a union buster, but I will support a wind power advocate!

It's just like, ahhhhh! What am I supposed to do! .... Brain ... Just ... Can't ... Handle .... Wind power good ... Unions good ... The lonely libertarian has a mental image in his head of Captain Kirk talking a computer to death.

I suppose I should mention this one other post, from someone named Odin 2005:

Righ-Wing Libertarians are the scum of the earth. They are a bunch of greedy assholes who couldn't give a shit about their duties to society. A large part of the US's problems stem from the fact that it's one of the most libertarian-infested countries on earth.

Just remember kids, Whole Foods is an evil libertarian conspiracy. The lonely libertarian will be shopping there as much as possible.

Independence Day Thoughts

Just a few random thoughts on why the 4th of July really matters-

I've never bought the "dead white men argument." That is, I've never bought the argument that the founding fathers are somehow less relevant because they owned slaves and didn't support women's rights. The revolutionary period here in the United States was perhaps the most politically creative and politically bold period in human history. It wasn't just the idealism of the Declaration of Independence- it was that idealism as it was put into practice over the next twenty years.

The French Revolution was greatly influenced by the American Revolution over a decade later. Yet in France, the idealism of equality turned into the brutal reality of Robespierre and eventually Napoleon. Most revolutions around the world follow a similar pattern- high minded ideals are transformed into brutal dictatorships.

Only in America did we really succeed- Only in America did the founding generation- George Washington, John Adams- willingly give up power. Only in America did the founding generation not just speak the language of liberty, but also transformed those ideals into a concrete structure of government.

criticizing the founding fathers for owning slaves just misses the point. If you read any of the writing of the founding fathers, many of them had real problems with the institution of slavery. They recognized the contradictions between slavery and all men supposedly being created equal. Contrast this with today, where most people don't recognize the contradictions between their beliefs and reality. (For example, think of those who love to criticize big corporations, yet reap the benefits of living in the world's wealthiest consumer nation everyday.)

The founding fathers implemented a political ideology of freedom and equality that has persisted for well over 200 years now, hardly a feet to scoff at or gloss over. And that's why we celebrate every year at this time. Not to celebrate ideals but to celebrate the fact that these ideals were implemented and persist to this day. We celebrate to remember truly great men, who put the perpetuation of these ideals above their own desire for power.

Happy Independence Day from the lonely libertarian.

Does This Mean We Can Marry Our Cousins?

This is just cool: We Are All Related

I Want My GMO's

A good read for hippies: Scary Food. The gist is how baseless concerns over GMO's (genitically modified organisims) and obessions with "organic" methods of production actually lead to more problems with the food supply. Duhhhh.