And the Reviews Are In ...

Powerline Blog has an interesting reaction to the injunction issued against the Arizona immigration law.

In the weighing of interests required before a preliminary injunction is issued, it would seem that Arizona's interest in coping with half a million or so illegal immigrants, and the havoc this influx is causing, outweighs the small burden the law may impose on a relatively small number of lawfully present, arrested aliens. In any event, I don't believe the contrary view has been established in advance of seeing how the law actually works.

They color the "small burden" as impacting a "small number of lawfully present, arrested aliens" but that's not what the law says. Forget about numbers for a moment, because we don't know how many non-illegal immigrants will wind up being impacted by the law and focus on the group being burdened. It's not just lawfully present, arrested aliens who are burdened, but anyone law enforcement suspects may be in the country illegally during any legal stop.

It just strikes me as odd that all of the Arizona law's supporters can't be bothered to address the concern that the law they support will result in the illegal detention of American citizens.

The Judge Agrees With Me

The United States District Court in Arizona has issued a preliminary injunction against enforcement of Arizona SB1070, the new controversial immigration law. From the decision of District Court Judge Susan Bolton (footnotes omitted, the Id refers to Hines v. Davidowitz 312 U.S. 52 (1941)):

First, the United States argues that this provision “necessarily places lawfully present aliens (and even U.S. citizens) in continual jeopardy of having to demonstrate their lawful status to non-federal officials.” (Id. at 26.) The United States further asserts that there are numerous categories of lawfully-present aliens “who will not have readily available documentation to demonstrate that fact,” including foreign visitors from Visa Waiver Program countries,8 individuals who have applied for asylum but not yet received an adjudication, people with temporary protected status, U and T non-immigrant visa applicants, or people who have self-petitioned for relief under the Violence Against Women Act. (Id. at 26-27.)
Also, the United States points out that United States citizens are not required to carry identification, and some citizens might not have easy access to a form of identification that would satisfy the requirement of Section 2(B)

The United States contends that the impact on lawfully-present aliens of the requirement that law enforcement officials, where practicable, check the immigration status of a person lawfully stopped, detained, or arrested where there is reasonable suspicion that the person is an alien and is unlawfully present will be exacerbated by several factors. (Id. at 28-29.) First, the United States suggests that the impact on lawfully-present aliens is enhanced because this requirement applies to stops for even very minor, non-criminal violations of state law, including jaywalking, failing to have a dog on a leash, or riding a bicycle on the sidewalk. (Id. at 28.) Also, the United States argues that the impact will be increased because other provisions in S.B. 1070 put pressure on law enforcement agencies and officials to enforce the immigration laws vigorously. (Id. at 29.)

Hines cautions against imposing burdens on lawfully-present aliens such as those described above. See 312 U.S. at 73-74. Legal residents will certainly be swept up by this requirement, particularly when the impacts of the provisions pressuring law enforcement agencies to enforce immigration laws are considered.

Don't You Trust the Police?

Regular readers will remember I love Red Eye, which airs weekly on Fox News at 3:00 AM, so it's been with extreme disappointment that I've had to watch the Arizona immigration law become a recurring topic for the usually humorous and insightful show. Red Eye's host, Greg Gutfeld could probably best be described as libertarian on economic and social issues, but he tends to come down more traditionally conservative when it comes to foreign policy, the military, and law enforcement. Hey, not everyone can be Penn and Teller. But as I mentioned before, immigration is a topic that just tweaks me the wrong way and the thrust of the discussion on Red Eye has been so dismissive of the concerns with the new Arizona law that I can't help but feel a bit shut out. Even the guests have been remarkably uniform in their lock-step support of Arizona, although interestingly enough, Fox News judicial analyst Andrew Napolitono, who has been highly critical of the law, has not been a guest recently (even though he's been on many times in the past).

On one point, the supporters of the Arizona law have been absolutely right: The bill itself forbids racial profiling. And taken strictly for what's written on the page, there's nothing all that concerning about a law that only purports to enforce existing federal law. But the problem with the Arizona law, as I've mentioned time and time again, is not what the law actually says, but how it is to be implemented, something the text of the law is remarkably short on. In questioning those of us who would criticize the law, Greg posed the question, "don't you trust the police?" which again, is exactly the wrong sort of question you need to be asking. This goes right back to the questions regarding the use of SWAT-teams and military-style tactics in serving warrants. It's not about questioning the judgments of individual police officers but about questioning a particular policy and in this case, the effects of that policy.

It's easy to say the Arizona law is perfectly acceptable given what little the law actually says. What's more difficult is to determine how the law will actually work, which, to my knowledge, no supporter has bothered to do.

Nowhere

That is the answer that Reason's Brian Doherty comes up to the question of where libertarians belong. Via George Mason economist Bryan Caplan, Doherty gives some raw numbers which point in the disappointing direction we've been dancing around for awhile now. While Americans may lean libertarian on a very general level, they are actually less libertarian the more specific you require them to be:

As Bryan Caplan, the George Mason University economist (who wrote in Reason back in 2007 about the many prevalent biases about economics that lead voters to prefer anti-free-market policies), has found in his studies of public opinion research vis à vis libertarian policy conclusions, “the sad truth is that the status quo is quite popular, and even moderate libertarian reforms like abolishing the minimum wage are persistently abhorrent to the overwhelming majority of the population.”

At Caplan’s advice, I spent some time trolling through the highly respected “General Social Survey” (GSS) to check out what Americans thought about more stringent applications of libertarian principles regarding when and where it is appropriate to bring state power to bear. While the more abstractly phrased questions tended to produce some modestly libertarian results—for example, 75 percent of Americans favor or strongly favor government spending cuts in the abstract—when asked about any specific spending area, the public tended to want more spending.

Still, some encouraging signs do appear amongst the GSS data, especially in changes that have occurred over the past 10 years. For example, from 1996 to 2006, the number of those who believed in definitely allowing public meetings advocating revolution went up nearly 20 percentage points, while those who believed in definitely not allowing them went down 9 percentage points.

But around 50 percent of Americans apparently have no objection to government control of wages; only 28 percent believe racists should definitely be allowed to publish books; only 27 percent think it should definitely not be the government’s role to provide jobs for all; and over 60 percent think government should prevent imports to protect the domestic economy.

These sort of findings don't tell us people's relative level of knowledge, but they do tell us that there's a disconnect between the rhetoric people believe and the specific policy proposals they would support. Or in other words, people like low taxes and "small government" that provides lots of services.

I'd argue that this disconnect between people's perceptions and reality cuts across the aisle. It's precisely why we saw so much overheated rhetoric about George Bush and why we're now seeing just as much if not more about Barack Obama. For far too many people, politics is sport, with the other side a perpetual enemy. And if you think those who cover politics from an unbiased, unidealogical standpoint are improving on the discourse, think again. The traditional unbiased media can be the worst of the bunch, focusing on the horse races and the idealogical squabbles more than actual policy. Policy matters, it matters a great deal and policy always flows from some sort of idealogical position about the role of government. The problem is that the vast majority of the American people (including the majority who would claim an interest in politics) aren't all that interested in policy and they're certainly not interested where it comes from.

I believe I said it before (if not in the blog than in the comments) that libertarians are smarter and I mean it - I don't mean self-styled, reactionary libertarians of the Glenn Beck vein, but libertarians of the John Stossel variety who use libertarian principles as a tool for reaching their own conclusions. That's not to say there aren't smart conservatives and smart liberals out there, but to come back to Julian Sanchez's epistemic closure argument, liberals and conservatives, even the smart ones, don't spend all their time defending the policies that stem from their principled idealogical positions the way that libertarians are often forced too. It's why the best debates tend to involve libertarians debating conservatives and libertarians debating liberals, even though some conservatives would rather sweep more radical libertarian ideas like drug legalization and open borders under the table and some liberals are shocked to believe that there are people who have a principled and not a reactionary belief in limited government.

Brian Doherty says libertarians don't belong anywhere and maybe that's true, but that doesn't mean we don't have an important role to play and perhaps that role is to provide an alternative to the racial flame throwing that's become increasingly common on the right and left. Agree with us or disagree, maybe our job is to make people smarter or at least, work harder to defend their positions.

The Immigration Debate Heats Up

John Stossel, who in the past has steered clear of these sorts of issues, tackles immigration this week. (For Stossel fans who haven't yet caught on, his weekly columns mirrors the subject matter of his weekly show on Fox Business.) Stossel comes down in favor of a more streamlined process to allow more people to come to the United States to live in work. It's not quite open borders, but it's close. As to be expected on a conservative site, the reaction to Stossel's piece in the comments has been overwhelmingly negative.

There are the usual accusations that illegals commit more crimes (rebutted in the article itself), the usual claims that this generation of immigrants is different from the last and won't assimilate, and the accusation that are illegals are felons (which is most definitely not true, as being in the country illegally is not a felony and perhaps more importantly, is only a crime because we say it's a crime, not because it's an inherently bad act.) What always strikes me about the immigration debate is not the number of ignorant complaints, but the number of reasonable ones which have seemingly natural libertarian solutions.

If your complaint about illegal immigration is about border security and our ability to track who comes into the country, the simplest solution is to let more people in legally. If your concern is illegals trespassing on private property to enter the country, the simplest solution is to allow more people in legally. If your concern is the rule of law, both in regards to employers and employees, the simplest solution is to allow more people in legally. Even if your concern is about the sheer number of Mexicans coming across the borders, a more open borders policy would make it easier for Mexicans to come to the United States to work and then to return home. With the borders so tight, many Mexicans who'd rather not come to the United States permanently, wind up staying here because it's so hard to cross the border to return home or come back to the United States.

That immigration opponents oppose these more free and open measures indicates to me that "border security" does have a racial, if not a distinctively "America first" connotation.

Also interesting is this remark, made by someone named Ray in the comments:

I usually agree with Stossel on most things but he's a little off on this one. We have always regulated the number, rate and type of person who has been allowed to legally immigrate to America. In some cases it was a very loose regulation because we needed people to do things like build railroads, highways, skyscrapers etc. With today's terrorist, drug cartels, kidnappers and other criminal elements the need to regulate is even more important. The need to know who is here and why is critical to our personal, economic and national security.

It's a nice point except for the fact that it's not true. Historically, the United States has not had restrictions on immigration. In fact, for the first hundred years or so of the nation's existence there were virtually no restrictions on who could come to the United States, despite several different periods of strong anti-immigrant fervor. The Page Act of 1875 restricted the entry of convicts and the Chinese Exclusion Act of 1882 was a racist restriction on the Chinese, but other than that there were no quotas or serious barriers to entry until 1921.

What's interesting is that the same conservatives who invoke fidelity to the founders and our nation's traditions tend to ignore the founders and those traditions when it comes to immigration. And of course, many of those same conservatives who will also pay lip service to big government never seem to be in favor of downsizing if not outright scrapping the immigration bureaucracy. Why national health care regulation is bad, but a byzantine system of regulation for immigration is good is beyond me.

I've mentioned it before, but the immigration issue is one that always lights a fire in me, in part because I'm a student of history and in part because the immigration backlash seems so downright reactionary. It's again one of those issues where ideas seem to take a backseat to overheated rhetoric. You don't need to be an open borders advocate to realize that a thoroughly militarized 1,000 mile border is a tremendously insane waste of money.

Is This What Public Debate Is Supposed To Look Like?

If you follow the 24-hour news cycle, you've undoubtedly heard about Shirely Sherrod, the official at the Department of Agriculture who was forced out earlier this week in the wake of a scandal earlier this week, only to be rehired yesterday when it was determined the scandal was all a misunderstanding caused by a selectively edited video. Needless to say, it's been an odd couple of days. The selectively edited video was originally posted by Andrew Breitbart on the Big Government page of his conservative news empire, showing Sherrod (who is black) making seemingly racist statements about refusing to help white farmers. The media machine swung into action following the posting of the clips and in no less than 24 hours, Sherrod was condemned by the NAACP and her resignation was demanded by Department of Agriculture Agriculture secretary Tom Vilsack. Only problem was, the clips were part of a longer, anti-racist speech and the particular incident which was designed to sound racist through the selective editing was actually a turning point in Ms. Sherrod's life. She actually did help the white farmers who she had at first thought disparagingly of, and those same white farmers are still grateful to her today.

The weirdest part of this story was not the selectively edited clips would be taken out of context, nor that the government migth chose to react so quickly without knowing all the facts, but that the NAACP was so quick to condemn Sherrod, given that the speech in question had occurred at an NAACP event only a few months ago and that the they had the full video before any of the news broke.

There are all sorts of angles to take in regards to this bizarre story, but I think Glenn Greenwald is on the right track in condemning everyone involved. We're talking about powerful media figures, powerful organizations, and the all-powerful federal government, none of whom did the slightest bit of investigation before condemning a woman who is very arguably not any sort of public figure.

The other weird part of the story is Andrew Breitbart's continued defense of the decision to post the edited version of the speech (which, according to him, he did not know at the time). According to Breitbart, posting the clips was, in part, a response to the NAACP's call to the Tea Party to condemn the racist elements in it's mix. Clearly Andrew Breitbart does not want to be taken seriously as a journalist or anything closely resembling a journalist, or there'd be no reason to post an un-investigated story for the purpose of one-upping one's political enemies. But that doesn't bother me so much as the fact that Breitbart or those who rush to his defense are essentially saying that this is how political debate should work.

Obviously, a government official abusing his or her power is a noteworthy story, but it's also the sort of accusation that should be thoroughly investigated and not be made based solely on a video clip. But that wasn't the point in posting the video, the point was to counter the ridiculous accusations of Tea Party racism with more clips of blacks saying racist things about whites. It's the same reason those who watch Fox News have been inundated with clips of the New Black Panthers saying and doing ridiculous things. And what's mind-blowing is far as I'm concerned is this seemingly prevalent view that this is an appropriate form of public discourse.

Switch back to our discussions on the blog about liberaltarians and the future of libertarianism and remember that the whole debate is about ideas and the future of ideas. It's mud-slinging nonsense like this that has me convinced that libertarians really are smarter than everyone else out there. This whole sordid saga is not necessarily indicative of intellectual shallowness, but it is quite clearly a case of misplaced priorities. Rather than fighting Obamacare or any of the big government Democrat agenda through the power of ideas, Andrew Breitbart has instead chosen to play the "I'm not racist, you are" card. And so be it, if that's what he wants to do, but I don't see why thinking people should take him seriously.

More On Where Libertarians Belong

The Volokh Conspiracy's Ilya Somin has an interesting back and forth with Tim Lee that's worth the read. (Somin's first post is here, followed by Lee's response and Somin's rejoinder.) If you don't get a chance to read it all through, Somin is a reluctant supporter of the traditional conservative-libertarian alliance, while Lee is more of the new breed. Here's Somin, rejecting much of the framework for liberal-libertarian cooperation:

The range of issues where libertarians and liberals genuinely agree is narrower than Lee assumes. Most liberals do not in fact agree with libertarians on civil liberties, the war on drugs, and gay rights. Certainly, both groups decry many conservative policies on these issues. But they don’t really agree on the alternatives to them. On civil liberties, for example, many liberals favor hate speech laws, restrictions on political speech by corporations, wide-ranging sexual harrassment laws that infringe on freedom of speech, and so forth. On gay rights, libertarians favor laissez-faire, while liberals tend to favor antidiscrimination laws that restrict the freedom of private organizations. On the War on Drugs, only a minority of liberals favor anything close to the full-blown legalization advocated by libertarians. Foreign policy, of course, is an issue that divides both liberals and libertarians among themselves.

The conservative-libertarian free market think tanks Lee points to succeed because the conservatives and libertarians there agree not only on rejecting liberal economic policies but also on an affirmative agenda of severely restricting government’s role in the economy. It would be much more difficult to run an economic policy think tank that brought together libertarians with “compassionate conservatives” who want to replace liberal economic interventions with conservative ones.

Lee responds:

As Somin acknowledges, there are lots of right-wingers, “compassionate conservatives” included, that aren’t interested in any part of the libertarian policy agenda. I can’t remember the last time the Family Research Council published something I agreed with, even on “economic issues.” I think Pat Buchanan’s views on “economic issues” are appalling.

Fusionist organizations deal with these elements of the conservative movement by mostly ignoring them. They don’t write about their work. They don’t hire their employees or publish their scholars’ work. And instead, they work with people in the more free-market-friendly corners of the conservative world. On the margin, this raises the prominence of the free-market parts of the conservative agenda relative to the non-free-market parts. And over time, conservatives have increasingly come to see the libertarian vision of economic policy as the conservative economic policy agenda.

The distribution of opinions on the liberal side is similar. Common Cause doesn’t see eye-to-eye with libertarians on First Amendment issues. The ACLU largely does. And so a liberaltarian organization would hire ACLU-style liberals rather than Common-Cause-style liberals to work on First Amendment issues. And on the margin, this would raise the prominence of ACLU-style First Amendment advocacy relative to Common-Cause-style First Amendment advocacy within the liberal movement. You can tell a similar story on gay rights, the drug war, immigration, and other issues. The liberal movement is not monolithic; on each of these issues you’ll find some parts of the liberal movement like what libertarians have to say and others where they don’t. A liberaltarian organization would build relationships with the libertarian-friendly parts of the liberal movement on each of these issues, thereby nudging the liberal movement in a more libertarian direction on these issues.

The only reason this seems more awkward on the left is that the project is much further along on the right. People who are “in the trenches” together tend to see their views converge over time. People who are used to glaring at each other across the barricades tend to have their views diverge over time. So after a half-century of fusionism, conservatives and libertarians are used to taking each others’ arguments seriously especially on “economic issues. In contrast, a half-century of thinking of each other as being on opposite ends of the political spectrum has accustomed liberals and libertarians to dismissing each others arguments out of hand, even on “social issues.” But that asymmetry is largely a result of the fusionist alliance, it’s not a deep fact about political philosophy. And although path-dependency is a powerful force, there’s no reason it needs to be a permanent feature of the American political landscape.

And again Somin:

There are two problems with this parallel. Libertarian-leaning liberals are a small minority on the left on most issues. As you can see from the liberal reaction to the Citizens United decision, the Common Cause view of the First Amendment has many more liberal adherents than the ACLU version. And even the ACLU has retreated from strong advocacy of free speech when it seems to clash with antidiscrimination law, as co-blogger David Bernstein documented in his book You Can’t Say That. By contrast, the FRC’s and Pat Buchanan’s views on economic issues are relatively marginal among conservatives; they are in fact a big part of the reason why most mainstream conservatives have broken with Buchanan and his followers. Support for free markets remains the dominant economic view among conservative intellectuals and activists, though some conservative politicians (notably George W. Bush) choose the big government approach when in power.

The other problem is perhaps more serious. Even those liberals who do take the libertarian view on one or two social issues rarely do so across the board. The ACLU is fairly libertarian when it comes to free speech, but not on a wide range of other social issues. Thus, it would be hard to find many liberals who are willing to ally with libertarians across a broad range of social policies, as opposed to single issues. That’s no problem if limited single-issue cooperation is all you seek. But it is a big obstacle if you want to establish a broader “liberaltarian movement,” as Lee does.

I think, once again, we have libertarians talking in circles. Whether we're talking about a "liberaltarian project" or "libertarian centrism" what we're really talking about is radically altering how we think about politics and how libertarian ideas are filtered into the mainstream. Everything Somin says is undoubtedly true, but that's precisely because he's talking about the status quo. That the prospects for shifting libertarian alliances are difficult given the current political framework is a given, but the odds of altering that framework are a bit more difficult to determine.

Tim Lee responds with one more post, making the point that conservatives and libertarians share a common way of talking about freedom, but don't share the same commitments to freedom.

Conservatives and Republicans like to invoke the Founding Fathers, talk about free markets and limited government, quote Hayek, and so forth. But political rhetoric is a lagging indicator of ideological commitments. A lot of fusionist slogans have become so shopworn that they’re what Orwell called dead metaphors. The fact that they’re often combined with calls to “keep your government hands off my Medicare”, promote “energy independence”, and build a police state along our Southern border suggests that these slogans are little more than empty rhetoric. When the typical Republican politiician says he cares about limited government, his purpose isn’t so much to express support for a specific policy agenda (most of the Republican policy agenda involves expanding government) so much as to signal membership in the fusionist political coalition.

Because libertarians and conservatives share a political vocabulary we find it relatively easy to communicate with each other. Liberals and libertarians obviously “agree on some basic philosophical principles”—that’s why many libertarians still call themselves classical liberals. But many libertarians talk about liberty in a right-wing way that most liberals find off-putting. And liberals, for their part, talk about liberty in a way that’s alien to most libertarians. This “language barrier” exaggerates the degree of disagreement between us. Without a shared vocabulary, it’s challenging for liberals and libertarians to recognize and build on areas of shared agreement.

I think Lee and I are mostly on the same page, but what's interesting is the reference to Republican politicians and Republican political agendas. Politicians always have an interest in government and an interest in their own power, so the disparity in what 90 something percent of Republicans say and do isn't all that interesting to me from an intellectual perspective. What's more interesting to consider is the extent of self-identified conservatives commitments to freedom, which delves into the nitty gritty of how people perceive the political world in the first place. Libertarians are a particularly astute political group, who've generally spent a great deal of time reaching their political positions, but we forget that far too many people who consider themselves liberals or conservatives are more interested in taking sides and cheerleading than in reaching meaningful intellectual conclusions. I'm purposely not throwing out any numbers because I don't no, nor would I have any idea of how to calculate these abstract ideas. Maybe it's 20%, maybe it's 80%, but there's some percentage of people to whom politics is more about the fight than it is about ideas.

The tea party movement, confuses the issue, because it is not an idealogical movement no matter how much it appears to be. That doesn't mean the tea party isn't real or useful, but it is limited in it's ability to be a lasting political movement. What the tea party has done is provide an outlet for those sick and tired of excessive government spending. What it has not done is provide a concrete road map as to where our political system should go from here. This is not to put down people who march in the street, but there's a major difference between the masses who take to the street and a think tank. There's a possibility that the tea party could be an effective engine at helping to politically alter the political landscape in a more libertarian direction, but I'm just not sure how many tea partiers would truly be in favor of following a Cato Institute roadmap.

This ties back to the liberaltarian debate in that I really don't know how many individual liberals would be equally willing to follow a libertarian roadmap if the terms of the discussion could be altered so that libertarians and liberals were actually able to communicate. The problem is exactly what I've danced around a few times now: That it's not just the two party system that's institutionalized, but the public perception of political ideology itself. Libertarianism is a losing cause as long as it remains solely associated with conservatives. The idea of pushing ino liberal circles, of pushing into the center, is to change the nature of the debate itself, to make it so that libertarianism (and individual rights over state power) is the normative position and the statist impulses of the left and right become political outliers.

More on Arizona

The right is upset now that Attorney General Eric Holder- who famously had not read the new Arizona immigration law before he criticized it back in May- is now ready to sue Arizona for that very same law.

It's been a bit upsetting that critics of the law's critics (or I suppose we'd call them supporters) have been so dismissive. So that there's no confusion, what the law says is that law enforcement must make a reasonable attempt to assess a person's immigration status when reasonable suspicion exists that an individual subject to a legal stop is in the country illegally. That the text of the law claims it only seeks to enforce federal law, is really besides the point. What matters is how the law works in practice and how it alters existing law enforcement practices.

I'm working under the assumption that there's something in this law that gives law enforcement greater powers than what they had the past- otherwise, why pass the law in the first place if the practices specified were already legal? Under previously existing law, law enforcement was permitted to conduct immigration checks on anyone who had been placed under arrest or was being held in police custody. What the new law does is allow law enforcement to conduct immigration checks during lawful stops. The typical example is a traffic stop, but such lawful stops would also include stop and frisks on the street.

The law does not require individuals to prove their citizenship- such a law would b a flagrant violation of the Constitution and the right to due process. My problem is specifically with what the law doesn't say and what it implies. I can't imagine it's an easy process to determine the immigration status of an individual who has no ID. So in the real world, what are police supposed to do with individuals they suspect are in the country illegally. The text of the law doesn't say, but my concern is that this means the police can detain such individuals about whom they have suspicions in order to conduct and immigration check. Without the power to detain, the law is toothless and what have little or no real world effect.

It's that ability to detain- based on nothing more than an officer's suspicion that an individual is in the country illegally- that troubles me. I haven't delved too much into the racial implications of the law, but thy should be obvious. Supporters of the law says it doesn't allow for racial profiling, but I can't understand how it wouldn't in the real world. Aren't there going to be far greater numbers of Hispanics who have their immigration status checked by police then there will be black or white people? The law requires the reasonable suspicion of a police officer, but how could it possibly be reasonable to implement this law in a colorblind manner that doesn't take race and language into consideration? The only way that would be possible would be if police automatically conducted immigration checks on every individual stopped who didn't have valid identification. And the problem with that is it's a surreptitious I.D. requirement, exactly the sort of "papers please" policy that the laws supporters say the law isn't.

To return to the issue of racial profiling, the problem here is that this is profiling of the worst sort, involving the potential detention of American citizens for not carrying identification. This is not the airport, where people chose to abide by strict security measures, nor (as some supporters of the law claim) does the Arizona law apply solely to traffic stops and drivers. And the idea that no American citizens would ever be detained by this policy is preposterous. Unless the police have magic intuition which can flawlessly distinguish illegal immigrants from legal immigrants and citizens, how would some American citizens not be subject to detention for failing to carry their papers?

If someone can explain to me the ways in which this law isn't A) a severe example of racial profiling or B) a requirement that individuals carry ID at all times, I would love to hear it.

Where Do Libertarians Belong?

Reason has launched an interesting debate over the question of where do libertarians belong, politically speaking. Brink Lindsey of the Cato Institute (who's previously been a proponent of a libertarian-liberal movement) argues now for a libertarian-centerism that can play off the limited government leanings of both the right and the left. Jonah Goldberg of National Review (a conservative) and Matt Kibbe of Freedomworks (a more libertarian-leaning conservative) both argue against Lindsey in favor of the more traditional libertarian alliance with the right. Reason has a roundup of some of the reactions around the interwebs here.

What's fascinating about Lindsey's position is that he explicitly rejects the Tea Parties as too reactionary. Meanwhile, some libertarians- Fox News analyst Judge Andrew Napolitano comes to mind- have been enthusiastic in their embrace of the tea party. (And check out the footage of Napolitano here, arguing on CSPAN's Book TV that George Bush and Dick Cheney should have been indicted for torturing, spying, and warrantless arrests.) I bring up Napolitano because intellectually speaking, he and Lindsey seem to share virtually all of the same values. Where they differ is who they chose to associate with- Lindsey would rather have nothing to do with Glenn Beck and Sarah Palin, while Napolitano has filled in for Beck and had Palin as a guest on his own show- which is precisely what the Reason debate is all about.

Reason presents this in the context of political maneuvering, that is, which political alliances are best suited to reigning in government and promoting individual freedom. But there's a subtext here that's just as much about high school squabbles as it is pure politics. And I don't mean high school in a purely pejorative sense. Except for perhaps the most staunch individualist (of the sort who wouldn't be interested in politics in the first place), we all care about the people we associate with and with whom we share ideas. Many commentators would prefer to divide these associations along the traditional left/right divide, in part because it gives them the largest possible audience and in part because it makes for the simplest, most compelling narrative. Libertarians may be the biggest showcase where that dividing line just doesn't work, but it's a problem for those within movements as well.

Cato's Julian Sanchez sparked a debate several months ago when he brought up the term epistemic closure in regards to the conservative movement's tendency to become far too inwardly focussed and disengaged from real intellectual debate with the other side. My post on "the coming intellectual crisis" was a variation on the same theme, the idea being the vast swath of ideas that adherents to a particular ideology are expected to hold and how those ideas are never given self-scrutiny over time. This happens on both the right and left, but in terms of the left, one only need to look and see the way that the left was honest in their attempt to sell health care reform as fiscally responsible to see how the left has put their ideas to the fire over the last several decades. Where the left fails to self-examine is where it prays to the Goddess of regulation. Liberals who question the need of the regulatory state tend to suffer the same fate as conservatives who would question the size of our military and the scope of it's mission.

To return to this idea of "people we chose to associate with," the point isn't that conservatives or liberals should abandon the more heterodox elements of their ideology, but that this heterodoxy is only a problem in the context of our two-sided debate. That this heterodoxy is imposed by either side is both anti-intellectual and anti-productive in terms of providing ideas for the political arena. Take for instance drug prohibition, a topic of which there is much dissent from the pro-prohibition position on both the right and the left. You won't be cast out by either side for questioning prohibition, but it's a non-starter in terms of the effecting of any changes. Perhaps there's a majority or a strong vocal minority of Americans opposed to the war on drugs, but that group, however big it might be, has no real voice or outlet in our current system.

And this is precisely where we come back to Brink Lindsey's idea for a libertarian centerism. It's not entirely unrealistic to think that small government could claim the political center, although I have no idea how one goes about combating the institutionalized ideology that already exists.

Personally, I still like the term "liberaltarian" because it highlights the work that libertarians still need to do with the left. The right (and the tea parties) tend to use the same buzz words- small government, individual rights, ect.- but there's still a great deal of hostility toward the idea of limited government on the left. Heterodox conservatives dismiss libertarians as well-intentioned folks going a bit too far, but the heterodox left can, at times, treat libertarians as potentially more evil than conservatives. Selling libertarianism to the left is at least a few steps behind it's sale to the right. But whether it's through a push to the center or through a fragmented group of coalitions for individual issues, I've got to agree with Lindsey that the future of libertarianism lies with neither the left or right. The left is utterly dismissive of any notion of economic freedom, while the divisions with the right over issues like national security and immigration seem too big to overcome.

Is John Stossel worse than Glenn Beck and more thoughts about all of those evil racists

I've has a post on the subject kicking around since May, but it was this Alternet piece on John Stossel from a week ago that really got me going. The title of the piece is "Is John Stossel More Dangerous Than Glenn Beck?" an interesting question which implies that the utterly ridiculous Beck is somehow dangerous. The piece only touches on Stossel's repudiation of the public accommodations portion of the 1964 Civil Rights Act, a comment Stossel had made in response to comments made by Kentucky Senate Republican candidate Rand Paul. Paul later repudiated the comments, but Stossel has stuck by what he said. It's a traditional sort of libertarian position, where the freedom of association trumps any government interest in forcing private entities not to discriminate.

Stossel defended his position, arguing that he wouldn't frequent a segregated establishment and he'd use his influence to engineer boycotts and the like. But it didn't matter much as he's been branded a racist many times over these past couple of months.

There was some interesting reaction in libertarian circles in the immediate aftermath of Rand Paul's statement, notably the criticism from some younger libertarians that didn't take that line in the sand, "government can't tell business what to do" position. The argument there is that measures were needed from the federal government to counter the influence of 100 years of Jim Crow. For instance, if motels and hotels throughout the south refused to cater to blacks in the 50's and 60's, how would blacks be able to travel? In a vacuum, we may not want the government to tell private businesses who they can and can't do business with, but government imposed institutionalized racism was a fact of life with a real impact on culture, society, and the market.

I'm inclined to agree that we needed these aspects of Civil Rights law in 1964 (in actuality we could have used them right after the Civil War), but the more interesting question, the one I'd like to think Rand Paul and John Stossel were getting at is whether we still need such laws today. Folks on the left would argue that of course we do, but their arguments are unpersuasive because they tend to focus on the "public" nature of businesses. That is, most folks are not arguing for a thought police that would tell people who they can and must associate with in their private lives. But business is supposed to be different, particularly when you're talking about a store or restaurant or something along those lines.

One of the problems is that we get so focused on race, we tend to ignore the fact that civil rights laws have been extended (some nationally, some locally) to include other protected classes. Some states protect the rights of gays and lesbians the same way they protect the rights of racial minorities, while others specifically do not. Sexual orientation is an interesting case study because although you don't have the same sort of history you have with racial discrimination, there is a history of discrimination and there's a case to be made that government policy has treated gay couples differently from straight couples. But the inverse of that point is a "businesses must accept all-comers policy" potentially blocks gay-friendly businesses. Can there be a gay bar or a gay club with a discriminating admissions policy? This highlights what I would say is the superiority of markets over government action. Government mandates one-size-fits-all solutions through the force of law. Markets allow individuals to pick and chose, to boycott and shame the businesses whose practice are found objectionable.

Ultimately, discrimination law should be about reversing the effects of state-sponsored discrimination and not about cultural engineering. It's far too easy to go in the direction we're headed and expand the outer boundaries of discrimination law until it's unrecognizable from it's original purpose. Each and everyone likes the fact that business are permitted to discriminate in one form or another. Can you imagine a world where the shirtless and shoeless have the right to waltz into fancy restaurants and "no shirt, no shoes, no service" signs were the legal equivalent of "No Irish Need Apply"?

Discrimination law should be about countering the policies of a discriminatory government, not about adjusting the passions and beliefs of some segment of the public.

Misreading Hayek and More on Health Care

Writing in Ezra Klein's blog, Dylan Matthews has a maddening post which twists Hayek to imply support for Obamacare. The post is in part a response to this New York Times essay on Hayek which highlights some of the contradictions between the writings of the famed Austrian economist and those who might invoke his name today. The point- which I've made before- is that Hayek was not universally opposed to all forms of social welfare spending, particularly in wealthy countries. Matthews goes further than the Times piece to point out that Hayek had also wrote in support of government health care:

There is no reason why, in a society which has reached the general level of wealth ours has, the first kind of security should not be guaranteed to all without endangering general freedom; that is: some minimum of food, shelter and clothing, sufficient to preserve health. Nor is there any reason why the state should not help to organize a comprehensive system of social insurance in providing for those common hazards of life against which few can make adequate provision.

Matthews ends on this note:

Now, Hayek obviously isn't an idol of liberal economic policy folks for a whole batch of reasons, not least the central premise of Road to Serfdom that the sorts of social democratic policies being pursued in the United Kingdom and elsewhere in Europe during and after World War II would open the door to totalitarianism. But it's more than a little jarring to hear him invoked in opposition to a health care bill that's, if anything, less ambitious than the sort of thing he's talking about here.

I'm no Hayek scholar by any means, but you don't need to be to understand that Hayek would be horrified by the centrally-planned, market-manipulating monstrosity that is Obamacare. There's a difference in the state guaranteeing basic quality of life measures (as Milton Friedman did in addition to Hayek, with his support of a negative income tax) and the state manipulating and controlling massive sectors of the economy. That such subtleties are lost is not surprising, given the nature of debate in this country. But it does the left little good to debate Hayekian straw men that exist in the mind of Glenn Beck. Our system of health care in America was already administered through incredibly skewed market mechanisms before the passage of Obamacare. Regulation distorts the functioning of markets and comprehensive regulation which impacts every aspect of an industry is even worse.

This plays right back into the "liberaltarian" arguments I've been making for months now. Support of the free market and opposition to the welfare state are not synonymous. Limited government and free market supporters do themselves no favors by attacking Obamacare as an expansion of the welfare state. Social welfare spending is a definable, controllable expense, but monkeying around with the market can have both disastrous and hard to measure consequences.

Updated 7/12/10 @ 8:00 PM : Will Wilkinson links to the same post, commenting, So Hayek basically had Ezra Klein's views on health care, right?

Different Objectives

Reason's Peter Suderman has a great little post from the other day on why Obama care might not succeed in controlling costs. The problem, as many critics have pointed out, is that the law focuses first and foremost on expanding coverage. More Suderman, comparing federal law to Massachusetts, where health insurance premiums have skyrocketed under their smaller scale version of the national plan:

Yet payment-system reform of any kind still faces tremendous hurdles—the main reason being that while just about everyone pays lip service to the idea that we need to cut medical spending, no one wants their services or payments to be cut. Doctors, naturally, want to keep getting paid every time they do something, and patients, who typically don’t shell out directly for the bulk of their medical costs, want doctors to have the fee-for-service system's incentive to do more rather than less. At the same time, politicians don’t want to be seen as shorting doctors, or as passing payment plans that might reduce consumer choice.

That leaves insurers stuck in the middle. The increased costs of care and the increased costs of regulation lead insurers to increase premiums. But steadily increasing premiums, as well as a reputation for stinginess with reimbursements, tends to increase public antipathy toward the entire health insurance industry. That makes insurers political targets, which leads to moves like Gov. Deval Patrick's arbitrary rate caps. Along the way, the whole system begins to break down—and all the while, costs are still going up, and no one has figured out a way to hold them down. When it comes to rising costs, RomneyCare has certainly forced the issue—but only by making it worse. Expect the federal overhaul to do the same.