Last week, Cato adjunct scholar, Richard Epstein, took Justice Antonin Scalia to task on the legal doctrine of “taxpayer standing” in the pages of the Wall Street Journal. The gentlemen have been debating the role of judiciary for more than 20 years. Cato published an exchange between the two following their debate at a 1984 Cato conference. Good stuff.
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Let a Hundred Flowers Bloom
The most fascinating story in the world is China today, as the world’s most populous country struggles toward modernity.
The Chinese rulers seem to be trying to emulate Singapore’s success in creating a dynamic modern economy while maintaining authoritarian rule. But can a nation of a billion people be managed as successfully as a city-state? Since 1979 China has liberated its economy, creating de facto and even de jure property rights, allowing the creation of businesses, and freeing up labor markets. The result has been rapid economic growth. China has brought more people out of back-breaking poverty faster than any country in history.
And, as scholars such as F. A. Hayek have predicted, the development of property rights, civil society, and middle-class people has created a demand for political rights as well. Every week there are reports of actual elections for local posts, lawyers suing the government, dissidents standing up and often being jailed, labor agitation, and political demonstrations. It’s reminiscent of the long English struggle for liberty and constitutional government.
And it would be great if it turns out that modern technology can make that struggle shorter than it was in England. A hopeful example was reported this week. According to the Washington Post, hundreds of thousands of “text messages ricocheted around cellphones in Xiamen,” rallying people to oppose the construction of a giant chemical factory. The messages led to “an explosion of public anger,” large demonstrations, and a halt in construction.
Leave aside the question of whether the activists were right to oppose the factory. The more significant element of the story is that, as the Post reported, “The delay marked a rare instance of public opinion in China rising from the streets and compelling a change of policy by Communist Party bureaucrats.”
Cellphones and bloggers fighting against the Communist Party and its Propaganda Department and Public Security Bureau — and the “army of Davids” won. Reporters and editors afraid to cover the story followed it on blogs, even as the censors tried to block one site after another. This isn’t your father’s Red China.
Citizen blogger and eyewitness Wen Yunchao
said he and his friends have since concluded that if protesters had been armed with cellphones and computers in 1989, there would have been a different outcome to the notorious Tiananmen Square protest, which ended with intervention by the People’s Liberation Army and the killings of hundreds, perhaps thousands, in the streets of Beijing.
The cause of freedom is not looking so good in Russia these days. But in China a hundred flowers are blooming, a hundred schools of thought contending.
Compulsion: The Only Tool for the Job?
Thursday’s Supreme Court ruling on race-based student assignment programs is pretty clear: public school districts cannot simply use racial balance targets to determine where children will go to school.
A key point in the ruling is that districts must exhaust racially neutral means of achieving their diversity and minority achievement goals before race-based student assignment can even be contemplated. In both cases before the court, the districts failed to do that.
This central point of the ruling apparently escaped CNN judicial analyst Jeffrey Toobin, who made the following statement in a live interview: “the school districts were told they couldn’t integrate their schools.”
Live TV is an unforgiving medium, especially when covering breaking news, so it’s not entirely clear that this is what Toobin meant to say. What is clear is that it is 100% nonsense.
Integration is a goal. There are many possible ways of achieving it besides government compulsion. As I pointed out in a blog post on Thursday afternoon, it can in fact be much better achieved through voluntary school choice programs that make both public and private schools financially viable options for all families. Summaries of some of the relevant studies, along with links to the full text in several cases, can be found here.
Liberals, Conservatives, and Free Speech
Libertarians sometimes say that they are “liberal on free speech but conservative on economic freedom,” or that “liberals believe in free speech and personal freedom, while conservatives believe in economic freedom.” That proposition got another test in the Supreme Court yesterday. Conservatives and liberals split sharply on two free-speech cases.
And let’s see … in two 5–4 decisions, the Court’s conservative majority struck down some of the McCain-Feingold law’s restrictions on campaign speech and upheld a high-school principal’s right to suspend a student for displaying a “Bong Hits 4 Jesus” banner. Liberals disagreed in both cases.
So the liberals strongly defend a student’s right to engage in nonsensical speech that might be perceived as pro-drug, but they approve a ban on speech criticizing political candidates in the 60 days before an election.
Now I’m for free speech in both these cases. But if you had to choose, which is more important–the right of a high-school student to display silly signs at school-sponsored events, or the right of citizen groups to criticize politicians at the time voters are paying attention? Political speech is at the core of the First Amendment, and conservatives are more inclined to protect it than are liberals. That’s a sad reflection on today’s liberals.
The liberal attitude toward speech is also on display on the front pages of our leading liberal newspapers. A banner headline in the Washington Post reads “5–4 Supreme Court Weakens Curbs on Pre-Election TV Ads/Ruling on McCain-Feingold Law Opens Door for Interest Groups in ‘o8.” This long headline mentions “TV Ads” and “Interest Groups” but never uses the words “speech” or “First Amendment.” But the sidebar on the high-school case is headed “Restrictions on Student Speech Upheld.” For that issue, a straightforward understanding that speech is involved. And the New York Times website leads with “Justices Loosen Ad Restrictions in Campaign Finance Law,” while the sidebar on the school case reads, “Vote against Banner Shows Divide on Speech in Schools.” Though I should note that the old-fashioned, tree-destroying version of the Times does have a subhead reading “Political Speech Rights.”
Maybe libertarians should try to describe their philosophy by saying “libertarians believe in the free speech that liberals used to believe in, and the economic freedom that conservatives used to believe in.”
The Great Writ of Habeas Corpus
A few weeks ago, when I introduced ACLU executive director Anthony Romero at a Cato Book Forum, I began by asking
which right the American Founders considered most basic, that is, indispensable to securing all the others. Is it the right to property, which Arthur Lee described as “the guardian of every other right,” because without it we are all at the mercy of whoever controls all the resources? Is it the right to keep and bear arms, without which resistance to the state is rendered toothless? Is it, as Thomas Jefferson said, the right to trial by jury that protects citizens from the arbitrary power of the state? Is it the case that, as Winston Churchill said – not an American Founder, of course, but always good for a quote – “A free press is the unsleeping guardian of every other right that free men prize”? Or could it be the writ of habeas corpus, known as the Great Writ, which in 1969 the Supreme Court called “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action”?
Afterward, my smarter colleague said, “It’s habeas.”
So that’s why it’s good that the ACLU has declared today a “Day of Action to Restore Law and Justice.” ACLU members and others are rallying on Capitol Hill and visiting congressional offices asking Congress to restore the right of habeas corpus.
One of the most frightening elements of the powers asserted by the Bush administration in the war on terror is the power it claims to arrest American citizens and hold them without access to a lawyer or a judge. The conservatives of the American Freedom Agenda have joined the ACLU in calling for repeal of the Military Commissions Act and restoration of the right of habeas corpus. Cato adjunct scholar Richard Epstein petitioned Congress not to curtail habeas corpus as it considered the Military Commissions Act last fall, to no avail. This issue will provide a good test of the proposition that divided government is a good thing. Will the Democratic Congress do the right thing and restore our constitutional rights?
Enough is Enough
Three years ago the U.S. Supreme Court handed down McConnell v. FEC, a decision that upheld McCain-Feingold’s restrictions on political speech. The future seemed bleak for any limits on government regulation of speech and association.
But things are looking up. Today the Supreme Court handed down its decision in Federal Election Commission v. Wisconsin Right to Life.
McCain-Feingold made it a federal crime for any corporation to broadcast, 30 to 60 days before an election, any communication that mentions a federal candidate for elected office and is aimed relevant voters. Wisconsin Right to Life (WRTL) is an ideological corporation that accepted funding from other corporations. Its members wanted to run ads in 2004 urging citizens of their state to contact its two senators and urge them to oppose a filibuster of judicial nominees. Sen. Russ Feingold, one of the senators and a co-author of the law in question, was running for re-election. Wisconsin Right to Life’s advertising plans thus constituted a federal crime. At least, they were a crime if the relevant part of McCain-Feingold was constitutional as applied to WRTL. In fact, McCain-Feingold was constitutionally invalid in this case and probably many others.
To understand why requires a quick summary of campaign finance law. Congress long ago prohibited contributions to candidates from the general treasuries of corporations and labor unions. But corporations could fund ads commenting on the issues of the day. However, if those ads directly advocated the election or defeat of a candidate, they became an attempt to circumvent the ban on corporate contributions and thus a federal crime. In Buckley v. Valeo, the Court said such “express advocacy” contained words like “elect” and “defeat.” If an ad did not use the words, it was not express advocacy and hence, not subject to campaign finance regulation.
Free Speech, Loophole, or Partisan Politics?
One of the things I find striking about today’s Supreme Court rulings is the extent to which the free-speech angle is downplayed in media coverage of the Wisconsin Right to Life decision. Consider the LA Times write-up of today’s decisions:
The Supreme Court gave President Bush and Republican leaders two important victories today by clearing the way for corporate-funded broadcast ads before next year’s election and by shielding the White House’s “faith-based initiative” from challenge in the courts.
The term “speech” only appears twice in the coverage of the decision, and in both cases they’re in quotes of the majority decision. The reporter never describes the case as a free-speech case himself. And let’s be clear here: “corporate funded” doesn’t mean ads funded by Exxon-Mobil or Microsoft. In this particular case, it was a pro-life organization—a grassroots non-profit—that was being prevented from promoting its views on television. The NRA, the ACLU, the Sierra Club, and dozens of other genuine issue advocacy organizations had their free speech rights curtailed by BCRA. Now check out the coverage of the “Bong Hits 4 Jesus” case later in the same story:
In a third ruling, the court gave school principals the authority to discipline students who advocate the use of illegal drugs at schools. Roberts said the court was not rejecting the notion that high school students had free-speech rights, but rather making clear that these rights were limited, especially when students advocated in favor of illegal drugs.
The decision reversed a free-speech ruling in favor of a high school student from Juneau, Alaska, who had been suspended for holding up a banner that read “Bong hits for Jesus.”
So the right to unfurl a “Bong Hits 4 Jesus” banner is a free-speech issue, but the right to air television ads critical of elected officials is just partisan politics.
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