Endless war. A $28 trillion national debt. Intrusive regulation. Criminal injustice. Presidents who don’t think the Constitution limits their powers. The rise of illiberalism on both left and right. It’s easy to point to troubling aspects of modern America, and I spend a lot of time doing that. But when a journalist asked me what freedoms we take for granted in America, I found it a good opportunity to step back and consider how America is different from much of world history — and why immigrants still flock here.


If we ask how life in the United States is different from life in most of the history of the world — and still different from much of the world — a few key elements come to mind.



Rule of law. Perhaps the greatest achievement in history is the subordination of power to law. That is, in modern America we have created structures that limit and control the arbitrary power of government. No longer can one man — a king, a priest, a communist party boss — take another person’s life or property at the ruler’s whim. Citizens can go about their business, generally confident that they won’t be dragged off the streets to disappear forever, and confident that their hard‐​earned property won’t be confiscated without warning. We may take the rule of law for granted, but immigrants from China, Haiti, Syria, Afghanistan, and other parts of the world know how rare it is.



Equality. For most of history people were firmly assigned to a particular status — clergy, nobility, and peasants. Kings and lords and serfs. Brahmins, other castes, and untouchables in India. If your father was a noble or a peasant, so would you be. The American Revolution swept away such distinctions. In America all men were created equal — or at least that was our promise and our aspiration. Thomas Jefferson declared “that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God.” In America some people may be smarter, richer, stronger, or more beautiful than others, but “I’m as good as you” is our national creed. We are all citizens, equal before the law, free to rise as far as our talents will take us.



Equality for women. Throughout much of history women were the property of their fathers or their husbands. They were often barred from owning property, testifying in court, signing contracts, or participating in government. Equality for women took longer than equality for men, but today in America and other civilized parts of the world women have the same legal rights as men.



Self‐​government. The Declaration of Independence proclaims that “governments are instituted” to secure the rights of “life, liberty, and the pursuit of happiness,” and that those governments “derive their just powers from the consent of the governed.” Early governments were often formed in the conquest of one people by another, and the right of the rulers to rule was attributed to God’s will and passed along from father to son. In a few places — Athens, Rome, medieval Germany — there were fitful attempts to create a democratic government. Now, after America’s example, we take it for granted in civilized countries that governments stand or fall on popular consent.



Freedom of speech. In a world of Fox and MSNBC, Facebook and Twitter, it’s hard to imagine just how new and how rare free speech is. Lots of people died for the right to say what they believed. In China, Russia, Africa, and the Arab world, they still do. Fortunately, we’ve realized that while free speech may irritate each of us at some point, we’re all better off for it.



Freedom of religion. Church and state have been bound together since time immemorial. The state claimed divine sanction, the church got money and power, the combination left little room for freedom. As late as the 17th century, Europe was wracked by religious wars. England, Sweden, and other countries still have an established church, though their citizens are free to worship elsewhere. Many people used to think that a country could only survive if everyone worshipped the one true God in the one true way. The American Founders established religious freedom.



Property and contract. We owe our unprecedented standard of living to the capitalist freedoms of private property and free markets. When people are able to own property and make contracts, they create wealth. Free markets and the legal institutions to enforce contracts make possible vast economic undertakings — from the design and construction of airplanes to Bitcoin and Venmo. But to appreciate the benefits of free markets, we don’t have to marvel at skyscrapers while listening to music on our iPhones. We can just give thanks for enough food to live on, and central heating, and the medical care that has lowered the infant mortality rate from about 20 percent to less than 1 percent.


A Kenyan boy who managed to get to the United States told a reporter for Woman’s World magazine that America is “heaven.” Compared to countries that lack the rule of law, equality, property rights, free markets, and freedom of speech and worship, it certainly is. A good point to keep in mind this Thanksgiving Day.



A version of this article was published in 2004 and was included in my book The Politics of Freedom.

Surprising almost no one, the jury in the Kyle Rittenhouse prosecution returned a verdict of not guilty on all charges, including intentional and reckless homicide. The verdict may be unsurprising given how the trial unfolded, with a singularly unimpressive prosecution team making one blunder after another and a trial judge who some perceived to be unduly favorable to the defense, but it will nevertheless strike many people as inappropriate and even unjust in light of all the circumstances. 

But as I argue in a piece published in the Washington Examiner hours before the verdict came down, the most important—and unusual—thing about the Rittenhouse case was the fact that it went to trial at all. That’s unusual because more than 95 percent of criminal convictions in our system are the product not of constitutionally prescribed jury trials, but instead of an ad hoc, extra-constitutional, and often jaw-droppingly coercive process that we refer to euphemistically as “plea bargaining.” As explained in the Examiner piece, plea bargaining has been an absolute train wreck of a policy that regularly produces false convictions and puts the government in the historically squalid and abuse-prone role of inducing people to condemn themselves.

Given the sheer amount of attention they devoted to trial by jury (among other things, it’s the only right mentioned both in the body of the Constitution and the Bill of Rights), the Framers’ intent to put citizen participation at the very heart of the administration of criminal justice is unmistakable. It was also incredibly wise because allowing government actors (including particularly judges and prosecutors) to dictate the results of criminal prosecutions represents a short and slippery slope to tyranny. Indeed, in a piece for Cato’s Policy Report, I compared the effect that the near-total elimination of jury trials has had on the criminal justice system to the effect that the extinction of a keystone species like honeybees would have on the ecosystem: complete and utter disaster.

In sum, reasonable people can and will disagree about whether Kyle Rittenhouse was guilty or innocent. But at least that disagreement will be an informed one based on the evidence presented in a public jury trial, just as the Founders intended. We are deprived of that opportunity for civic engagement every time a case is resolved through a guilty plea instead of the public jury trial that the Constitution wisely provides. The time is long overdue for us to take a fresh look at our decision to pursue efficiency in the adjudication of criminal charges through coercive plea bargaining to the exclusion of every other constitutional value.

For more than 50 years, a Supreme Court doctrine called the “reasonable expectation of privacy” test has guided courts’ administration of hard Fourth Amendment cases. When a defendant claims to have been unconstitutionally searched, courts will analyze whether there was an actual (subjective) expectation of privacy and whether that expectation is one that society is prepared to recognize as reasonable.

That test is rife with problems. To name a few: Courts almost never actually perform the first part of the test. The test turns the Fourth Amendment back on the people it is supposed to protect, examining the reasonableness of privacy preferences rather than the reasonableness of government searches. The test is circular: courts’ rulings set expectations for the public as much or more than they rely on people’s privacy sensibilities. And almost no court actually investigates what privacy people expect. The “reasonable expectation of privacy” test makes amateur sociologists of people whose strength is applying the law to facts. And when technology is involved, there may be no “true” expectations to rely on anyway.

In a new brief, Cato and the Rutherford Institute ask the Supreme Court to take up the case of Travis Tuggle, a man convicted of drug crimes after government agents video-recorded him and all activity around his house non-stop for 18 months. Tuggle argued that video capture of his every entry and exit, every visitor, and the things he and others carried amounted to a warrantless search. He lost in the lower courts, but the U.S. Court of Appeals for the Seventh Circuit openly doubted the result dictated by the “reasonable expectation of privacy” test.

The test operated on Tuggle as follows: People are routinely seen outside their houses, so a person cannot expect privacy in their comings and goings. If one cannot expect privacy in any given minute, multiplying that zero privacy expectation by 18 months still reaches zero privacy expectations.

Our brief asks the Court to examine more straightforwardly whether and when government action amounts to searching. To better position courts to administer “high-tech” cases, the Court should eschew doctrine and hew more closely to the language and meaning of the Fourth Amendment. Consistent with that text, courts should ask: Was there a search? A seizure? Was any search or seizure of their persons, houses, papers, or effects? Was any such search or seizure reasonable?

That word “search” has a common usage, as it did at the time of the framing. As the Supreme Court put it in a 2001 case, searching is activity that has the “purpose of finding something.” In a more recent case dealing with whether the government can search a cell phone properly seized from a suspect, the searches and seizures that gave the government access to the phone were disposed of handily using precedents that didn’t rely on “reasonable expectations.”

So the Court need not retreat to doctrine when the claim is that some form of technology has been searched or used for searching. It should merely dig deeper into whether the essence of searching is found in the behavior of government agents. In Tuggle, law enforcement video-recorded his every coming and going day and night for 18 months. This highly directed and persistent observation provided new facts about Mr. Tuggle’s activities and associations, and it permitted inferences about him and his activities inside the home.

In other words, the government looked over Mr. Tuggle and his house with a purpose of finding evidence. That’s a search.

Last week, Senate Democrats removed from their appropriations bill a provision, known as the Harris rider, that effectively prevents D.C. from legalizing marijuana sales and distribution. Confusingly, this proposal, presented before the Senate Appropriations Committee, is different from President Biden’s own budget bill, which still features the Harris rider.

In 2014, D.C. voters approved a ballot initiative legalizing cannabis sales, possession, and consumption for recreational purposes. Congress responded with the Harris rider, which bars the District government from enacting the law. The legal details are messy, but, as a result, the sale, purchase, and public consumption of marijuana remain illegal in D.C., even though possession, cultivation, and personal use are currently legal under District law.

Removing the so-called Harris rider would be a welcome and long overdue measure. Federal marijuana prohibition has never made sense, and outright legalization at the federal level would be the first-best policy. Short of this, however, removing the Harris rider is a good step forward.

As we have noted before, ample data on state-level legalizations show no clear departure from pre-legalization trends when looking at outcomes such as cannabis consumption and prices. Effects on crime, suicides, and traffic accidents are either small or unclear.

So legalizing recreational marijuana sales in D.C. would probably have minor effects. But it would bolster tax revenues and increase product quality, making marijuana safer for consumers. Not to mention expanding personal freedom.

Earlier this week, the Supreme Court issued two unsigned opinions in Rivas-Villegas v. Cortesluna and City of Tahlequah v. Bond, both of which summarily reversed lower-court opinions that had denied qualified immunity to police officers. The reasoning in the two opinions was nearly identical – in both cases, the Court held that the officers were entitled to immunity because there were no prior judicial decisions with sufficiently similar facts as these cases. These decisions aren’t especially noteworthy on their own terms, but they do provide further evidence that the Court is unwilling to reconsider any fundamental aspect of qualified immunity. To the contrary, the ordinariness of these opinions itself suggests that the Court wants the core of the doctrine to remain unchanged from how it’s been applied for decades.

To understand the significance of these otherwise mundane decisions, it’s important to start with last term’s decision in Taylor v. Riojas. This per curiam opinion summarily reversed the Fifth Circuit’s grant of immunity to corrections officers who had kept a man in inhumane prison conditions, and it marked the first time in sixteen years that the Court held that official conduct violated “clearly established law.” As I discussed in detail here, this was a noteworthy development, as it reaffirmed the basic principle from Hope v. Pelzer — long thought to be effectively inoperative as binding precedent — that at least some sufficiently obvious constitutional violations do not require cases exactly on point to hold that the law was clearly established.

But, as I cautioned here, the Taylor decision — while perhaps indicating that the Justices want to cut back on the most egregious applications of the doctrine — also suggested that the Justices are not interested in reconsidering qualified immunity entirely. After all, the Taylor petition presented exactly that fundamental question, and the Court declined to hear it on the merits, just as it did with many similar petitions in June 2020.

Monday’s twin decisions provide further evidence that the Justices are not prepared to make major alterations to qualified immunity. Both cases involved claims against police officers alleged to have used excessive force, and the Court’s per curiam opinions were very similar:

• Rivas-Villegas involved a group of police officers who responded to a 911 call from a family claiming that the mother’s boyfriend, Ramon Cortesluna, was in their house with a chainsaw and might hurt them. The officers arrived, knocked on the door, and ordered Cortesluna to come out and drop his “weapon” (a metal tool). He did so, but the officers saw also that he had a knife in his pocket and shot him twice with a beanbag round when he didn’t comply with their instructions. As they went to handcuff him, one of the officers, Daniel Rivas-Villegas, briefly put his knee on Cortesluna’s back. The Ninth Circuit denied immunity to Rivas-Villegas, holding that circuit precedent also involving “suspects who were lying face-down on the ground and were not resisting either physically or verbally, on whose back the defendant officer leaned with a knee” put him on notice that his actions could constitute excessive force. But the Supreme Court reversed, holding that this prior case law was “materially distinguishable” because the facts of this case involved a more volatile situation.

• In City of Tahlequah, officers responded to a 911 call from a woman who said that her ex-husband, Dominic Rollice, was intoxicated and in her garage. When the officers arrived and started talking to Rollice, he went into the garage and grabbed a hammer from the back wall. The officers ordered him to drop it, but he took a few steps and raised it high above his head, at which point the officers shot and killed him. The Tenth Circuit denied immunity to the officers, holding that circuit precedent allowed claims for excessive force, even if a shooting is itself reasonable, when the officer’s own reckless or deliberate conduct created the need for deadly force. The Supreme Court reversed on the grounds that the lower court had failed to identify any precedent “finding a Fourth Amendment violation under similar circumstances.”

Taken on their own terms, neither case is especially noteworthy. Indeed, in my judgment, neither even involves a clear example of police misconduct in the first place! Both concerned officers responding to volatile situations with armed suspects, and while it’s perhaps debatable whether the respective uses of force were absolutely necessary, neither seems obviously unreasonable. In Rivas-Villegas, an officer put his knee on the back of an armed (albeit unresisting) suspect he was subduing for no more than 8 seconds. In City of Tahlequah, the force itself was deadly, but it was in response to a suspect who had picked up a weapon, refused to drop it, and seemed to be preparing to attack the officers with it. Perhaps there were still certain factual disputes that needed to be addressed by a jury, but putting qualified immunity to the side entirely, I suspect that both sets of defendants could have successfully argued that their conduct was not “objectively unreasonable” in the first place.

What is noteworthy, however, is that the Supreme Court made a point to emphasize in both opinions that “clearly established law” cannot be defined at a high level of generality, and that overcoming qualified immunity will usually require plaintiffs to identify prior cases with very similar facts as their own. Though this has long been black-letter law, it is also exactly the aspect of qualified immunity that so many were hoping the Court would reconsider, because it routinely does lead to absurd and unjust results. For example:

• In Baxter v. Bracey, the Sixth Circuit granted qualified immunity to two police officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. A prior case had already held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent factual similarity, the Baxter court found this prior case insufficient to overcome qualified immunity because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put [the defendant] on notice that a canine apprehension was unlawful in these circumstances.” In other words, prior case law holding unlawful the use of police dogs against non-threatening suspects who surrendered by laying on the ground did not “clearly establish” that it was unlawful to deploy police dogs against non-threatening suspects who surrendered by sitting on the ground with their hands up.

• In Latits v. Phillips, the Sixth Circuit granted immunity to a police officer who rammed his vehicle into the car of a fleeing suspect, drove the suspect off the road, then jumped out of his vehicle, ran up to the suspect’s window, and shot him three times in the chest, killing him. The court acknowledged that several prior cases had clearly established that “‘shooting a driver while positioned to the side of his fleeing car violates the Fourth Amendment, absent some indication suggesting that the driver poses more than a fleeting threat.’” Even though that statement would seem to govern this case exactly, the majority held that these prior cases were “distinguishable” because they “involved officers confronting a car in a parking lot and shooting the non-violent driver as he attempted to initiate flight,” whereas here “Phillips shot Latits after Latits led three police officers on a car chase for several minutes.” The lone dissenting judge in this case noted that “the degree of factual similarity that the majority’s approach requires is probably impossible for any plaintiff to meet.”

Thus, the Court seems to be using these two (relatively) innocuous cases to clarify more broadly that, despite Taylor v. Riojas, the degree of factual similarity necessary to overcome qualified immunity remains incredibly demanding, and the bar for demonstrating “obvious” constitutional violations remains incredibly high. While Taylor may help curb the very worst excesses of the doctrine (or perhaps more cynically, curb the applications of the doctrine so extreme that they embarrass the courts), qualified immunity doctrine will remain unchanged in run-of-the-mill cases.

However, to be ever-so-slightly optimistic about these developments, there is one aspect of Monday’s decisions that has alarmed people more than I think is warranted. In Rivas-Villegas, the per curiam opinion included the following passage (emphasis added):

Even assuming that controlling Circuit precedent clearly establishes law for purposes of §1983, LaLonde did not give fair notice to Rivas-Villegas. He is thus entitled to qualified immunity.

Steve Vladeck described this line as the Court “dropp[ing] a strong hint that *circuit* precedent may no longer be sufficient to provide ‘clearly established’ law,” which “would be a *huge* barrier to damages suits against government officers.” Ian Millhiser likewise wrote in his Vox article on this very question that “the Supreme Court is floating a change in course — one that would expand qualified immunity considerably.”

Far be it from me to be less than maximally cynical about the Supreme Court’s willingness to abet constitutional violations, but I think these fears are overstated. The Court’s acknowledgment of uncertainty on this doctrinal question is not, as Millhiser seems to suggest, a new idea, but a boilerplate line that has been part of Supreme Court decisions for years. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (“’[E]ven if a controlling circuit precedent could constitute clearly established law in these circumstances, it does not do so here.’ ” (quoting City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 614 (2015))); Taylor v. Barkes, 575 U.S. 822, 826 (2015); Carroll v. Carman, 574 U.S. 13, 17 (2014) (same); Reichle v. Howards, 566 U.S. 658, 665–66 (2012) (same). Thus, I don’t see anything especially noteworthy about the Court repeating that boilerplate yet again.

Vladeck and Millhiser are certainly correct that if the Court did hold that only Supreme Court precedent could “clearly establish” constitutional rights, it would make overcoming qualified immunity virtually impossible, given how few cases the Court actually decides. But for precisely that reason, I think it’s unlikely the Court would take this step. Qualified immunity is one of the most legally dubious and heavily criticized doctrines in the history of the Republic, and as much as the Justices seem unwilling to reconsider it, neither do they seem interested in expanding it. After all, the key takeaway from Rivas-Villegas and City of Tahlequah seems to be that the Court doesn’t want to fundamentally change how qualified immunity is applied in the lower courts.

In summation, this week’s decisions are a discouraging but unsurprising indication that, as far as the Justices are concerned, qualified immunity is here to stay. Thus, until and unless Congress abolishes qualified immunity by legislation, public officials will continue to evade responsibility for violating people’s constitutional rights.

Apparently, the U.S. Department of Justice thinks the answer to the above question is “yes.” The Justice Department’s Drug Enforcement Administration sets annual quotas for manufacturing and distributing all prescription opioids—oral and parenteral—for all 330 million Americans.

The agency presumes to know just how much pain medication, and what type and dose, each and every inhabitant of the country will require each year. It doesn’t determine the quotas without help. It acts after consulting the Food and Drug Administration, the Centers for Disease Control and Prevention, and the Centers for Medicare and Medicaid Services—federal agencies that also presume to divine the future pain management needs of the population. Each of the past five years the DEA has ratcheted down the quotas, seeking to prevent diversion of prescription opioids into the black market for non-medical users. The DEA announced this week a proposal to ratchet down further, for the sixth consecutive year.

In late 2019, when it proposed its fourth consecutive cutback, the DEA claimed (Federal Register page 48172):

As a result of considering the extent of diversion, DEA notes that the quantity of FDA-approved drug products that correlate to controlled substances in 2018 represents less than one percent of the total quantity of controlled substances distributed to retail purchasers.(emphasis added)

Already by 2018, a negligible amount of the drugs distributed and sold through pharmacies were getting diverted to the black market.

Opioids were implicated in over 49.000 overdose deaths in 2019, nearly three quarters of which involved illicit fentanyl. Yet the agency further reduced opioid production quotas for 2020. Of the 93,000 overdose deaths that occurred in 2020, roughly 70,000 were opioid-related, 83 percent of which involved illicit fentanyl.

Production quotas for oxycodone and hydrocodone have dropped by 69 percent and 63 percent respectively since 2013. Now the DEA seems to think reducing the supply of prescription oxycodone another 5.4 percent, hydrocodone another 3.9 percent, morphine another 19 percent, and prescription fentanyl another 5.4 percent will stem the tide of overdose deaths that are almost exclusively from drugs made and obtained on the black market. And the DEA presumes to know that these quotas, the smallest in nearly two decades, are sufficient to meet the medical needs of a population that has grown by more than 50 million over that time.

Even before this latest proposal, pain patients became the real victims of this misguided policy, with documented increases in mental anguish and suicide from untreated or under-treated pain. Suicides among veterans are skyrocketing as opioid treatments have been curtailed in the VHA system.

If your doctor continues to double down on a therapeutic regimen that is not working as intended while causing unintended harm, you should fire the doctor and get another one. Fortunately, doctors take an oath to “first do no harm,” and are unlikely to continue administering the wrong treatment in the face of such obvious harmful side effects.

Alas, the police don’t take such an oath. And that is just one reason why law enforcement should not be treating a medical problem.

Every two years, Cato presents its Milton Friedman Award for Advancing Liberty to a person or group who has made a significant contribution to the cause of human freedom. Past winners include Las Damas de Blanco, who support freedom for political prisoners in Cuba; Danish journalist and author Flemming Rose; and Chinese economist Mao Yushi. On September 30, we were honored to present the Friedman award to the Innocence Project. Our award-ceremony interview with the founders and executive director of the Innocence Project is here.

From its creation 1992, the Innocence Project has fought to exonerate the wrongfully convicted and implement reforms designed to reduce the number of wrongful convictions and impose accountability on a system that regularly produces them. Since then, the Innocence Project has freed 232 people who were falsely convicted and collectively spent 3,555 years behind bars for crimes that they did not commit. And their work goes well beyond litigating individual cases. The Innocence Project also engages in strategic litigation, legislative advocacy, and various efforts to directly support its clients upon release. As an example, working with the Cato Institute, the Innocence Project recently helped secure passage of a Missouri law allowing prosecutors to seek dismissal of charges against a convicted person, which prosecutors had previously been restricted from doing even in cases of clear exoneration. The Innocence Project also advocates for laws to compensate innocent victims of wrongful convictions.

Besides the horrific injustice they inflict on individuals and their families, wrongful convictions allow the real perpetrators to victimize others, undermine public confidence in the criminal justice system, and attack the principles of a free society. The exercise of arbitrary power over individuals is inherently unjust, and none can be more arbitrary and unjust than destroying innocent lives on the basis of false convictions, whether obtained through negligence, malice, or coercive plea bargaining.

As the scholars in Cato’s Project on Criminal Justice have explained through their scholarship and advocacy, among the chief pathologies of our system are unconstitutional overcriminalization, plea-driven mass adjudication that has almost entirely displaced jury trials, and a policy of near-zero accountability for police and other government officials whose cornerstone is the judicially confected doctrine of qualified immunity. As I have previously explained on this blog, it is no exaggeration to say that America’s criminal justice system is rotten to the core. And perhaps nowhere is that more glaringly—and tragically—evident than the system’s near-total indifference to the very real problem of false convictions, of which nearly three thousand have been documented by the National Registry of Exonerations.

Cato is proud to support the work of people and organizations who advance the cause of freedom, and it is with great respect and appreciation that we named the Innocence Project as our 2021 winner of the Milton Friedman Prize for Advancing Liberty.

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The Innocence Project was the recipient of the 2021 Milton Friedman Prize for Advancing Liberty, a $250,000 biennial award presented to a group or individual who has made a significant contribution to advancing human freedom. The Milton Friedman Prize Dinner was held on Thursday, September 30, 2021. Please join us in honoring Milton Friedman’s legacy and recognizing our Milton Friedman Prize for Advancing Liberty recipient.

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