The Volokh Conspiracy

Longtime readers may recall that I was initially positive about Sarah Palin because her record was much more libertarian than that of most other major national politicians. Later, I had to reassess my view of Palin, as her ignorance of many important policy issues became apparent. But I also emphasized that ignorance is not the same thing as stupidity, and that in my view Palin suffers from the former, not the latter — a conclusion also reached by liberal Washington Post columnist Eugene Robinson. I do a lot of research on political ignorance, and the distinction between ignorance and stupidity is one that I have often urged people to keep in mind. For reasons that I discuss here and here, even professional politicians often find it rational to devote their time to activities other than learning about major national issues.

Still, an ignorant but intelligent person is capable of remedying her ignorance to a greater extent than one who is both ignorant and stupid. In reading Palin’s recent memoir, Going Rogue, I wanted to see if there was any evidence that she has taken steps to address what many people see as her biggest weakness — myself included. Unfortunately, it’s difficult to say either way. As a sympathetic WSJ reviewer points out, the book devotes little attention to national policy issues. Palin does come across as knowledgeable about Alaska state issues, but her facility in that area was never seriously in question. 

The book argues at length that the various gaffes that revealed Palin’s ignorance during the 2008 campaign were mostly the fault of McCain’s consultants and a biased media. I remain unpersuaded. Yes, many people in the media were biased against Palin, and perhaps the consultants made mistakes (it’s hard for me to assess that claim without knowing more about the consultants’ side of the story). Even so, there is no excuse for Palin’s inability to give competent answers to relatively simple questions about such things as which newspapers and magazines she read, which Supreme Court decisions she disagrees with, or describing the basics of her position on US policy towards Russia. If Katie Couric really was out to get Palin, as the book suggests, she could surely have asked tougher questions than these. In any event, a candidate facing a biased media should be all the more careful to avoid obvious mistakes. 

More proof is needed before we can conclude that Palin has achieved the level of proficiency with national policy issues that can reasonably be expected from a president of the United States. To say this is not to suggest that Palin is stupid or contemptible. To the contrary, I think that she is a charismatic and capable politician, and no less intelligent than most other political leaders. Her meteoric rise from obscurity to governor of a state is certainly impressive. I just don’t believe that Palin has proven herself to be qualified for the job of president of the United States, or for being within a heartbeat away from that position. More importantly, the Republican Party should be able to do better than nominate a person lacking in basic relevant knowledge. I don’t think it’s too much to expect the party to find a presidential candidate who is simultaneously charismatic, committed to free markets and limited government, and knowledgeable enough to understand the basics of major national policy issues. If the Republicans really can’t find a single viable candidate who meets all three of these requirements, then they have a serious problem that goes far beyond the shortcomings of one Sarah Palin.

In a recent post, Orin expresses doubts about whether the “traditional” form of the Socratic method is still used in many law schools. If by “traditional form” he means something like what is portrayed in The Paper Chase, I agree that not many use it. Very few lawprofs are as obnoxious as the mythical Professor Kingsfield. But, in my experience of teaching at three different US law schools over the last six years, a large number of professors do still use the Socratic Method in the sense of spending the bulk of their class time cold-calling on students and asking them questions about legal doctrine. A recent report on The Faculty Lounge blog states that most entry-level candidates on the lawprof job market say that they intend to use “soft Socratic” method as their primary teaching tool, by which they mean that they “like to create a welcoming atmosphere in the classroom where students feel free to participate, but also be sufficiently rigorous in calling on students to ensure that everyone is prepared.” To the extent that it still involves large amounts of cold-calling (as in most cases it does), “soft” Socratic method has many of the same shortcomings as the “hard” version. I discuss some of those problems here and here.

I don’t claim that all law professors should completely abjure all aspects of SM; I use some elements of it myself. For example, I have students sign up to be “on call” a couple times during the semester, when I assign myself the right to call on them involuntarily. But I only devote a minority of the class time to this activity, and don’t use SM at all in classes with fewer than 30 or 35 people. The optimal level of SM probably varies from class to class and teacher to teacher. However, I do think that the method is still overused by many professors and that, overall, we would do well move to closer to the teaching methods used by social science and humanities professors in the US and law professors abroad. 

One of the standard defenses of the Socratic method, which I criticized in my last post and here, is adherence to tradition. If American lawprofs have been using the method for decades, there must be something to it. Who are we to question the approach that worked so well for Professor Kingsfield?

I am generally skeptical of the “Burkean conservative” case for traditionalism. But I do recognize that voluntarily adopted (as opposed to coercively imposed) traditions have some value and may be entitled to a measure of deference. Perhaps the Socratic method is an example of this kind of tradition. No one forced lawprofs to use it, and law students could potentially have chosen to attend schools that don’t use it — a preference they might have imposed on lawprofs through market pressure. On other hand, the AALS [update: should have said ABA] certification cartel diminishes competition in the market for legal education and makes it much harder for new schools to enter the field and gain a competitive edge by emphasizing novel teaching methods.

In any event, the tradition-based argument for the Socratic method fails even on its own terms. It ignores the fact that virtually every academic discipline other than law has a long tradition of not using the Socratic method. That includes professors who teach courses on legal issues in political science, economics, history, and philosophy departments. Similarly, the Socratic method isn’t generally used by law professors in other countries, including other Anglophone common law jurisdictions such as Britain, Canada, and Australia. There is no reason to believe that either non-law classes in the US or legal education abroad suffers because they don’t inflict SM on their students. Nor is there any significant movement to adopt the Socratic method in any of these other academic departments and foreign law faculties. Relative to the traditions of most of the academic world, the widespread use of the Socratic method in American legal academia is an outlier. That doesn’t by itself prove that the Socratic method is wrong. But it does suggest that it can’t be justified merely on the basis of tradition.

By nature, I am a highly verbal, nonvisual person. I learn best by reading books or listening to lectures. I rarely benefit from looking at tables, charts, pictures, and the like. I’m the kind of guy who can’t drive to an unfamiliar destination without a detailed mapquest itinerary telling me exactly which turns to take; otherwise, I’m sure to get lost. This learning style is hardly unusual for a law professor, or indeed for most humanities and social science academics (with the exception of those who regularly use quantitative methods in their work). Unfortunately, when teaching, we lawprofs often assume that all the students have the same learning style as we do. Most of the time, we operate either in pure lecture mode or use the Socratic method. Yet at least some of the students are not like us. They may be visual learners, or otherwise diverge from the pure oral learning style. For visual learners, it helps to have handouts, tables, graphs and other tools that go beyond oral lecturing. Yet, in my experience, many law professors either don’t use these at all, or only do so very rarely. 

The traditional law school reliance on the the Socratic method, which I criticized on other grounds in this series of posts, is part of the problem. Many professors and students assume that it is the only correct way of teaching law classes, especially large intro courses, and therefore don’t bother with anything else. Not only is SM a purely oral method of teaching, it is a particularly difficult one for non-oral learners to follow. Even for the orally gifted, it is often hard to pick out the really important information from the morass of indeterminate questions posed by the instructor and often flawed answers given by the student in the hot seat. 

Fortunately, there are many possible solutions to this problem, not all of which involve giving up the Socratic method entirely. For example, professors can use SM during only part of the class, and use handouts, tables, power point or other visual displays during other parts. I find that the simple practice of summarizing the key points about a case or article at the end of the class discussion of it also helps students who might otherwise be lost catch up. I also use handouts with tables and draw on the board more than most law professors do, though probably not as much as I should. There are many different ways to skin this particular cat, and mine aren’t the best for every professor. But the beginning of wisdom is to at least recognize that there is a problem. Fortunately, many lawprofs have begun to move away from SM in recent years, and some have also begun to make greater use of visual materials.

Of course all of this proceeds on the perhaps naive assumption that the goal of class is to convey the subject matter to the students, and get them to understand it as well as possible. I know that SM and other purely oral teaching methods are sometimes defended on the very different ground that they teach students to “think like a lawyer.” I addressed these arguments here and here. In brief, I don’t believe that legal reasoning is fundamentally different from other types of logical reasoning; I don’t think that SM is a particularly good way to teach legal reasoning, relative; and I believe that the primary objective of law school subject matter classes should be to teach the specific subject at hand rather than general legal skills such as trial advocacy, which are better conveyed in specialized courses taught by experts or in extracurricular activities such as clinics.

At bottom, I don’t want to teach my students to “think like a lawyer.” I’m not even convinced that any such thing exists. Instead, I want them to be able to think in an informed, rigorous way about the subject I’m teaching. That is the best contribution a subject matter expert like me can make to their legal education. Achieving that goal requires paying attention to different learning styles in order to ensure that as many people as possible come away from my classes with a genuine understanding of the material we covered. 

In this January post, I noted some of the uncanny parallels between George W. Bush and Herbert Hoover: Both were president during a time of economic crisis; both presided over vast expansions of government that helped cause the crisis or at least make it worse than it might have been otherwise; finally both were (inaccurately) portrayed by their political opponents as dogmatic free market advocates, when in fact both were highly statist. After leaving the presidency, Bush is unconsciously imitating Hoover in yet another way — by rhetorically supporting free markets and criticizing the even more interventionist policies of his Democratic successor (which in both cases built on the expansions of government initiated by the Republicans who preceded them):

Former President George W. Bush, outlining plans for a new public policy institute, on Thursday said America must fight the temptation to allow the federal government to take control of the private sector, declaring that too much government intervention will squelch economic recovery and expansion....

“As the world recovers, we will face a temptation to replace the risk-and-reward model of the private sector with the blunt instruments of government spending and control. History shows that the greater threat to prosperity is not too little government involvement, but too much,” said Mr. Bush... 

Bush’s belated support for free markets follows in Hoover’s footsteps. After leaving office in 1933, Hoover wrote books and articles defending free markets and criticizing the Democrats’ New Deal. Some of his criticisms of FDR were well-taken. Many New Deal policies actually worsened and prolonged the Great Depression by organizing cartels and increasing unemployment. But by coming out as a free market advocate, the post-presidential Hoover actually bolstered the cause of interventionism because he helped cement the incorrect impression that he had pursued free market policies while in office, thereby causing the Depression. Bush’s post-presidential conversion creates a similar risk: it could solidify the already widespread impression that he, like the Hoover of myth, pursued laissez-faire policies which then caused an economic crisis. 

What should Bush now do if he genuinely wants to help the free market cause? The best thing would be to take up economist David Henderson’s half-joking suggestion that he “express his regret at nationalizing airport safety, carrying out illegal surveillance of U.S. citizens, raiding medical marijuana clinics, bailing out General Motors, AIG and other companies, and socializing prescription drugs for the elderly [the biggest new government program from the 1960s until the present financial crisis].” Bush could also point out that he advocated an ideology of “compassionate conservatism” that included vastly expanded government, and an “ownership society” that (in his own words) involved “us[ing] the mighty muscle of the federal government” to incentivize dubious mortgages of the kind that helped cause the financial collapse of 2008. The greatest contribution Bush can now make to free market policies is to dispel the impression that he pursued them while in office.

It is probably unrealistic to expect any politician to admit major mistakes or point out that he is now advocating policies vastly different from those he pursued while in office. So the second-best way for post-presidential Bush to support free markets is to say as little about the subject as possible. The more the cause is associated with him, the worse off it will be. 

Journalist Jeff Benedict is the author of an excellent book on the Kelo condemnations, that I reviewed here. In this Hartford Courant op ed, he discusses the Pfizer Corporation’s recent decision to close down its headquarters in the New London, Connecticut neighborhood where it had previously played a key role in instigating the notorious condemnations that led to the Kelo litigation:

I’m often asked if I’d consider writing a novel. My answer is always no, truth is better than fiction ... and often harder to swallow.

Consider the bitter pill that Pfizer Inc. slipped New London this week. Barely a decade after constructing a $300 million research and development headquarters in the city, the pharmaceutical giant announced it was shutting down the facility. Just like that, New London will lose 1,400 jobs and become home to a gigantic, vacant office park that sprawls over a 24-acre campus.

Never mind that an entire residential neighborhood was bulldozed by New London to change the look of a 90-acre landscape around the Pfizer campus. And never mind that along the way the city used eminent domain to drive out homeowners and then fought a costly eight-year legal battle against holdouts Susette Kelo and her neighbors that went all the way to the U.S. Supreme Court....

After all the shouting, the developer ran out of money and the city has zero prospective replacements. Barren weed fields are all that exist where homes once stood.

Now that all of New London’s best-laid plans have been laid to rest, Pfizer is leaving, too. It’s tempting to suspect a connection. After all, let’s not forget that Pfizer never wanted to make its corporate home on the edge of New London’s urban Fort Trumbull neighborhood. “Pfizer wants a nice place to operate,” one well-connected Pfizer employee famously told a reporter shortly after New London officials courted the drug company. “We don’t want to be surrounded by tenements.”

What Pfizer wanted next door is what drove New London’s plan to raze buildings and replace them with a five-star hotel, a health club and spa, office space and upscale housing. At one point, Pfizer even talked about guaranteeing 50 percent occupancy at the hotel. The state did its part to sweeten the deal by kicking in close to $100 million in public money to the project, some of which was used to acquire and demolish private homes.

In the end, the Pfizer facility is the only thing that went up, although many would argue that a lot of taxpayer money went up, too — in smoke, that is. At least Pfizer employees haven’t had to look at tenements for the past 10 years. But how are those brownfields looking about now? 

I have previously written about Pfizer’s withdrawal from New London and its role in the Kelo takings in this series of posts, and in a recent New York Times forum.

The New York Times Room for Debate blog has a forum on the implications of Pfizer’s decision to abandon its New London headquarters. Pfizer and its New London facility had previously played a key role in instigating the condemnations that led to the Supreme Court’s decision to uphold the use of eminent domain for “economic development” in Kelo v. City of New London. My contribution argues that Pfizer’s role in the Kelo takings and their failure to produce any actual development bolsters the case for strengthening protection for property rights. Here’s an excerpt:

Far from producing the promised “development,” the condemnation of private property in New London under Kelo damaged the local economy by destroying homes and businesses and wasting taxpayer money.

This result should not have been surprising. Government planners who undertake “economic development” condemnations have strong incentives to approve takings that benefit well-connected interest groups, even if they end up destroying more development than they create. Usually, as in Kelo, those targeted for condemnation are poor or politically weak. 

I previously wrote about Pfizer’s role in the Kelo case and its recent withdrawal from New London here, here and here.

My former student and current federal district court law clerk Josh Blackman has managed to get himself appointed to the exalted newly created position of official liveblogger of the Federalist Society National Lawyers Convention, which is taking place this Thursday through Sunday. Interested VC readers who can’t come in person may want to check out the liveblogging at Josh’s blog here. Among other things, Josh will probably liveblog the panel on federalism at which I will be speaking tommorrow, and a later panel that includes co-conspirator Randy Barnett.

This issue is well outside my areas of expertise. But commenters who know more about it than I do are welcome to debate the question of whether livebloggers should be considered members of the media, and if so whether they have the same legal rights as MSM reporters do.

In one of my recent Constitutional Law classes, I had occasion to quote a much-neglected legal authority: He-Man. Like many presidents, especially in wartime, He-Man claims that he has “fabulous secret powers” and even summarizes his legal position with the immortal words “I have the power.” It’s the best short summary of the late Bush Administration’s theory of executive power that I have seen so far.

Over at the Land Use Prof Blog, property scholar Matt Festa has a good discussion of the implications of Pfizer’s decision to close down its New London headquarters for the ongoing debate over the use of eminent domain to promote economic development. As I explained in this post, the construction of this Pfizer facility was at the center of the firm’s successful efforts to lobby for the condemnations that eventually resulted in the Supreme Court’s controversial decision upholding “economic development” takings in Kelo v. City of New London.

Festa suggests that this experience, as well as other cases such as the notorious 1981 Poletown condemnations where some 4000 Detroit residents were forced out of their homes so that General Motors could build a new factory, may lead local governments to be more skeptical of economic development condemnations that depend on a single big firm for their viability:

Politicians and planners might be more cautious about hitching their redevelopment wagons to one big private entity. I’m as enticed as anyone by the idea of revitalizing a downtown/waterfront/etc. with a grand scheme that involves jobs, tax revenues, public-private partnerships, mixed-use development, walkable urbanism, transit, and the creation or enhancement of public space. But if the plan is based around promises from Pfizer, or GM, the incoming sports team, or any other single private entity or group, then the whole plan risks failure if the private actors decide to go elsewhere . . . When these plans fail to deliver, both the eminent domain power and the public fiscal resources are wasted.

I hope he is right. But I fear that this analysis may be too optimistic. The Kelo and Poletown takings occurred in large part because politically influential corporations (GM and Pfizer) lobbied for them in the first place. One of the designers of the Kelo development plan described Pfizer as the “10,000 pound gorilla” behind the taking (quoted in this article, pg 266). If the true purpose was to benefit these firms rather than promote development that benefits the general public, future “politicians and planners” might not be deterred from undertaking similar actions in the future merely because the promised long-term development could fail to materialize. To be sure, voters may eventually punish them at the polls. But, as I argued here and here, years are likely to pass before the project’s failure becomes clear. By that time, public attention is likely to have moved on to other issues, and the politicians who originally approved the taking may no longer even be in office.

It hasn’t gotten much media attention, but last week, Texas voters overwhelmingly approved Amendment 11, an eminent domain reform measure that purports to ban “economic development” takings of the kind the Supreme Court upheld in Kelo v. City of New London. Texas badly needs stronger protection for property rights, since it has a long history of eminent domain abuse, including recent examples documented by the Institute for Justice (the libertarian public interest firm that represented the property owners in Kelo) in this report.

Unfortunately, the new Texas law is one of a long series of eminent domain reforms that fall short of actually forbidding the kinds of abuses they supposedly target. The amendment does forbid the taking of property for “the primary purpose of economic development or enhancement of tax revenues.” , But it continues to permit condemnations in areas with “urban blight.” And, as I document in this article (pg. 2124), Texas is one of many states where the definition of “blight” is so broad as to include virtually any property that the government might want to condemn. Indeed, Texas’ definition counts as “blighted” any area that, due to a wide range of possible causes, creates an “economic or social liability to the municipality” where it is located. This includes any area that creates an “economic . . . liability” because of insufficient development. Furthermore, the new Amendment still allows the power of eminent domain to be wielded by private organizations if they are “granted the power of eminent domain under [state] law.” 

Amendment 11 is a small improvement over Texas’ previous almost completely toothless post-Kelo reform law (which I discussed in this article, pp. 2124, 2135–37). The main positive change is that “blight” now has to be shown on a property by property basis. Previously, local governments could simply declare an entire area blighted and then condemn any property within it, even if there was nothing wrong with that particular tract. However, the impact of this improvement is likely to be minor, at best, given the ease of proving the existence of proving “blight” under Texas’ definition of the term. Amendment 11 also closes the previous law’s loophole allowing takings for “community development.” However, the broad blight exemption undercuts this improvement as well. “Community development” takings can easily be couched as “blight” takings. 

Why did Amendment 11 turn out to be so ineffective? One possible explanation is that, under the Texas Constitution, a proposed amendment has to get the approval of two thirds of the state legislature before being submitted to a popular referendum. In my recent article on post–Kelo reform, I found that eminent domain laws that go through the state legislature are far less likely to impose meaningful constraints on condemnation than those that are enacted by an initiative process in which citizen groups can place propositions on the ballot directly. State legislators have strong incentives to water down eminent domain reforms so that takings that benefit influential interest groups can continue. And widespread political ignorance makes it difficult for voters to tell the difference between laws that actually ban economic development takings and those that merely pretend to do so, while allowing them to continue under a different name. 

Interested readers may want to check out the Federalist Society National Lawyers Convention, which will be held in Washington DC this week, Thursday to Saturday. At least two Conspirators will be speaking on various panels (Randy Barnett and yours truly). The full schedule is available here. There is still time to register. 

It’s only fitting that a Federalist Society convention should have a panel on federalism. So I will be speaking on the panel on “Federalism and the Economic Crisis” on Thursday, 3:45 to 5:15, along with fellow lawprofs Rick Hills (NYU), Malcolm Feeley (Berkeley, coauthor of an important recent book on federalism that I discussed here), and Dean John Eastman of Chapman Law School. 

By design, Fed Soc panels usually have liberal participants as well as conservative and libertarian ones, so you will see a wide range of perspectives represented, if you come. For example, Feeley (who believes that federalism is mostly useless in the modern United States) and Hills have very different views on federalism from mine. So, come one, come all.

CONFLICT OF INTEREST WATCH: I am a member of the Fed Soc Federalism and Separation of Powers Practice Group Executive Committee. This exalted position doesn’t carry any salary, nor is the Society paying me for speaking at the Convention or for writing this post — though I’m happy to accept contributions in this age of diminishing blogger advertising revenue.

The Pfizer Corporation has announced that it will close down its headquarters in New London, Connecticut. [HT: my former student Josh Blackman, and other VC readers]. As our regular readers may recall, Pfizer played a key role in instigating the notorious condemnations that led to the Supreme Court’s decision upholding the taking of private property for “economic development” in Kelo v. City of New London. Pfizer lobbied state and local governments to undertake the condemnation so that the land could be transferred to developers who would build facilities that were expected be useful to the firm and its employees. The head of the New London Development Corporation — the quasi-governmental agency that ordered the takings — had close ties to Pfizer and was married to a Pfizer executive.

The Kelo condemnations inflicted great harm on the people who lost their homes and businesses and led to the expenditure of some $80 million in public funds. To date, however, nothing has been built on the site, and there is no prospect that anything will be in the foreseeable future. Pfizer’s decision to leave New London makes it even less likely that anything productive will be done with the condemned land anytime soon. So far, the main beneficiaries of the Kelo takings seem to be the feral cats who have settled in the area. Far from producing the “economic development,” the Kelo condemnations have actually damaged the local economy by destroying taxpaying homes and businesses and expending large amounts of public money for no return.

For reasons I discuss in much greater detail in this article, this outcome should not be surprising. State and local governments that undertake “economic development” condemnations have strong incentives to approve takings that are expected to benefit well-connected interest groups even if they destroy more development than they create.

Today is the 20th anniversary of the Fall of the Berlin Wall. In several ways, the Wall and its collapse are fitting symbols of communism. They demonstrate several truths about that system that we would be wise not to lose sight of.

First and foremost, Cold War-era Berlin was the most visible demonstration of the superiority of capitalism and democracy over communism and dictatorship. Despite the fact that East Germany had one of the highest standards of living in the Soviet bloc, it had to build a wall to keep its people from fleeing to the capitalist West. By contrast, West Germans and other westerners were free to move to the communist world anytime they wanted. Yet only a tiny handful ever did so. Decisions to “vote with your feet” are often even better indicators of peoples’ true preferences than ballot box voting, since foot voters have better incentives to become well-informed about the alternatives before them. Even more powerful evidence is the reality that many East Germans and others fled from communism even when doing so meant risking their lives. 

Second, the Berlin Wall was an important symbol of the way in which communist governments violated the human right to freedom of movement, one of the most important attributes of a free society. If people are forcibly trapped under the rule of the government in whose territory they happen to be born, they are not truly free; rather, they are hostages of their rulers. 

Finally, the sudden collapse of the Berlin Wall in 1989 vividly demonstrated the extent to which communist totalitarianism relied on coercion to maintain its rule. Some Western scholars and leftists contended that most Russians and Eastern Europeans actually supported communism or at least preferred it to the available alternatives. The events of 1989 gave the lie to this notion, though a few writers still defend it today. Once the Soviet government and its puppet states in Eastern Europe signalled that they would no longer suppress opposition by force, the Berlin Wall was quickly torn down, and communist governments throughout Eastern Europe collapsed within months under a tidal wave of popular hostility. Both the communist rulers themselves and many Western observers had been misled by previous widespread expressions of support for communism. They failed to take full account of the fact that those expressions of support were in large part the result of fear. Once the fear dissipated, so too did most of the support. Unfortunately, many scholars and journalists still haven’t learned this crucial lesson. In analyzing places like Cuba and Iran, they too often take public expressions of support for repressive rulers at face value. This is not to say that communist governments had no popular support at all or that decades of communist indoctrination were completely ineffective; far from it. However, the true level of support for such regimes is likely to be much lower than it seems.

Despite all of the above, I am somewhat conflicted about the status of the Berlin Wall as the symbol of communist oppression in the popular imagination. My reservations have to do with the underappreciated fact that the Wall was actually one of communism’s smaller crimes. Between 1961 and 1989, about 100 East Germans were killed trying to escape to the West through Wall. The Wall also trapped several million more Germans in a repressive totalitarian society. These are grave atrocities. But they pale in comparison to the millions slaughtered in gulags, deliberately created famines in the USSR, China, and Ethiopia, and mass executions of kulaks and “class enemies.” The Berlin Wall wasn’t even the worst communist atrocity in East Germany. As historian Norman Naimark has documented, Soviet occupation troops in East Germany raped some 2 million German women, executed thousands of political prisoners (only a minority of whom were Nazis or guilty of war crimes), and imposed extensive forced labor on much of the population. It is true, of course, that German troops committed comparable, and sometimes even greater, atrocities in the USSR. But the one set of wrongs in no way justifies the other. Forced labor and concentration camps continued on a substantial scale even after the Soviets established an “independent” East German state in 1949. 

Terrible as the Berlin Wall was, focusing on it as the main example of communist injustice may actually lead people to underestimate how awful that system truly was. It is a bit like portraying Kristallnacht or the Night of the Long Knives (both atrocities had death tolls comparable that of the Berlin Wall) as the main example of Nazi oppression, rather than the Holocaust.

It is important to remember the Berlin Wall and the lessons it teaches. But doing so is only one small part of the task of rectifying the longstanding neglect of communist crimes.

In my last post, I discussed the neglect of communist atrocities. Although communist governments murdered and repressed even more people than the Nazis, their crimes have gotten only a tiny fraction of the public awareness and recognition extend to the latter. But does that neglect matter? After all, the major communist regimes have either collapsed (the USSR and its Eastern European satellites) or evolved into much less oppressive forms (China and Vietnam). But there are several reasons why increasing recognition of communist crimes should be an important priority: providing justice for victims and perpetrators; alleviating the oppression of the unreformed communist governments that still exist today; and ensuring that comparable atrocities are never repeated. The twentieth anniversary of the fall of communism in Eastern Europe is as good a time as any to reflect on these points.

I. Justice for Victims and Perpetrators.

Millions of victims of communism are still alive today. They include former Gulag inmates, forced laborers, dissidents subjected to political repression, ethnic minorities such as the Crimean Tatars who were forcibly deported, and many others. With a few exceptions (principally in Eastern Europe), little has been done to recognize the suffering of these victims or to compensate them for the wrongs they suffered. Obviously, the scale of communist crimes was so vast that complete compensation is impossible. However, the impossibility of perfect compensation is no excuse for doing nothing. After all, the same can be said for the Holocaust and other Nazi crimes. Yet extensive efforts have been made to compensate Holocaust survivors and return property confiscated from Jewish and other Nazi victims. The German government has paid reparations to Holocaust survivors and former forced laborers, among others. These efforts at reparations for Nazi crimes surely have many shortcomings. But they far outstrip anything that has been done for the even more numerous victims of communism.

The same can be said for the issue of justice for the perpetrators. The Nuremberg trials punished some of the most important perpetrators of Nazi atrocities. Even after sixty years, US and European officials continue to hunt down Nazi criminals. Yet very little has been done to bring to justice the perpetrators of communist atrocities. This, despite the fact that many of the communist atrocities are much more recent than the Nazi ones, and more relatively high-ranking perpetrators are still alive. As in the Nazi case, it is impossible to capture and punish all of the guilty. And there is the additional problem that some of the worst communist criminals are protected by governments in nations where the communist party is still in power (China and North Korea, among others). Still, the best should not be the enemy of the good. The international community should at least try to punish those communist perpetrators who can be found, while putting pressure on recalcitrant governments to try or extradite the others. 

We must do more to give justice to the victims and perpetrators of communist crimes. It isn’t yet too late. But it might well be in a few years, as more members of both groups die of old age.

II. Focusing Attention on Oppression in the Remaining Unreformed Communist Governments.

Most of the world’s communist regimes have either collapsed or reformed. However, at least two unreformed communist governments still remain: Cuba and North Korea. North Korea, in particular, is probably the world’s most oppressive regime, having starved to death at least 1 million of its own people as recently as the 1990s. It also maintains a system of Gulags and secret police that is, if anything, even more draconian than that of the USSR under Stalin. Despite the good press it enjoys among some Western leftists, Castro’s Cuba is only modestly better. Since coming to power in 1959, Castro’s government has executed some 1.5% of Cuba’s population for “political” dissent, while incarcerating another 5.6% in concentration camps. These figures would be even higher if not for the proximity of the United States, which enabled a large part of Cuba’s population to flee. Nonlethal political repression in Cuba is less severe than in North Korea, but still worse than in all but a tiny handful of other governments. 

Despite these atrocities, Cuba and North Korea receive only a tiny fraction of the attention that human rights groups and the international community pay to much lesser offenses committed by democratic governments or non-leftist dictatorships. Imagine if, after the fall of Hitler, an unreconstructed Nazi-like regime had remained in place in some small European country, and continued to run concentration camps, a Gestapo-like secret police, and so on. Would not that regime be an international pariah constantly targeted by human rights groups and subjected to severe sanctions by all self-respecting democratic states? 

It’s difficult to say whether pressure by human rights groups and Western governments could force Cuba and North Korea to reduce their oppression. However, both regimes have weak economies and both seek to create a positive image in the West. A comprehensive system of sanctions imposed by all democratic states and a massive campaign of shaming might have at least a chance of success. 

III. Never Again.

The extensive attention paid to the Nazi crimes has helped sensitize people to the dangers of racism, anti-Semitism, and extreme nationalism. These evils have not disappeared. But at least the need to oppose them is widely accepted throughout the democratic world. A similar focus on communist crimes might increase recognition of the dangers created by ideologies based on class warfare and socialism (by which I mean full-blown state domination of the economy, not merely government regulation of private industry or a welfare state). 

It is unlikely that communism will reappear in the exact form practiced by Lenin, Stalin, or Mao. However, the core ideas of socialism and class warfare are still advocated by various political movements and governments, especially in the Third World; for example, by rulers such as Hugo Chavez in Venezuela and Robert Mugabe in Zimbabwe, both of whom have cited the communists as models for their own policies. Sometimes, socialism and class conflict are coupled with extreme nationalism and oppression of minority groups, a combination pioneered by the Nazis. The debate over socialism is far from over. Moreover, future political and technological developments could make a resurgence of socialist totalitarianism more likely.

Of course, the combination of class warfare and socialism doesn’t inevitably lead to mass murder on the scale committed in the USSR, China, and Cambodia. However, they do greatly increase its likelihood. Almost every fully socialist government (by which, again, I mean a government that manage to take control over the vast bulk of the economy) that held on to power for more than a few years ended up murdering a substantial fraction of its population (usually at least 1–2%). Even the relatively moderate government of Yugoslavia –generally considered the least oppressive communist regime — killed some 1 million of its people, according to calculations by political scientist Rudolph Rummel. Indeed, the risk of mass murder associated with full-blown socialism may actually be even greater than that caused by racism or anti-Semitism. Many racist or anti-Semitic regimes have existed for long periods of time without committing mass murder — including the majority of such governments. Nazi Germany was an unusual extreme case — one where mass murder was itself partly facilitated by state control of the economy almost as extensive as that in communist states.

Of course, racism, anti-Semitism, and extreme nationalism are great evils that should be combatted even when they don’t lead to mass murder. Yet the same can be said for socialism and extreme class warfare. Even when socialist governments stop short of mass murder, they still suppress political and economic freedom in a variety of other ways — to say nothing of reducing the standard of living of the people. 

In sum, there are many good reasons to increase awareness of communist crimes. Achieving that objective in the face of widespread indifference and occasional hostility will be a difficult task. But those who take the idea of “never again” seriously must not flinch from the challenge.

CONFLICT OF INTEREST WATCH: I suppose I should mention that many of my own relatives are among the victims of communist crimes and potentially could receive compensation for them, if serious compensation programs were established. At least one of my relatives (my late grandmother) also received compensation for Nazi war crimes from the German government. 

UPDATE: I suppose I shoulld briefly rebut the silly but inevitable charge that my emphasis on the importance of recognizing communist atrocities is somehow a cover for attempts to discredit domestic liberals. This ploy is akin to saying that criticism of racists, anti-Semites, or Nazis is really just a ploy for discrediting US conservatives. In further response, I will say only that I have always carefully avoided labeling domestic liberals as socialists (to say nothing of communists), have criticized such labeling by others, and have not used that charge myself in my various VC posts and other writings criticizing liberal domestic policies. As people like Harry Truman, JFK, and Henry Jackson recognized, there is no necessary contradiction between being a liberal on domestic policy and a strong opponent of communism. 

This fall is the 20th anniversary of the fall of the Berlin Wall and other events associated with the collapse of communism. Paul Hollander, a sociologist who has written numerous works on communism and Western attitudes towards it, has an op ed in the Washington Post, noting some of the lessons of the communist experience, and the failure of most Westerners to fully appreciate them:

The Berlin Wall that came down 20 years ago this month was an apt symbol of communism. It represented a historically unprecedented effort to prevent people from “voting with their feet” and leaving a society they rejected. The wall was only the most visible segment of a vast system of obstacles and fortifications: the Iron Curtain, which stretched for thousands of miles along the border of the “Socialist Commonwealth....”

While greatly concerned with communism in the late 1940s and early 1950s, Americans — hostile or sympathetic — actually knew little about communism, and little is said here today about the unraveling of the Soviet empire. The media’s fleeting attention to the momentous events of the late 1980s and early 1990s matched their earlier indifference to communist systems. There is little public awareness of the large-scale atrocities, killings and human rights violations that occurred in communist states, especially compared with awareness of the Holocaust and Nazism (which led to to far fewer deaths). The number of documentaries, feature films or television programs about communist societies is minuscule compared with those on Nazi Germany and/or the Holocaust, and few universities offer courses on the remaining or former communist states....

The different moral responses to Nazism and communism in the West can be interpreted as a result of the perception of communist atrocities as byproducts of noble intentions that were hard to realize without resorting to harsh measures. The Nazi outrages, by contrast, are perceived as unmitigated evil lacking in any lofty justification and unsupported by an attractive ideology....

In the aftermath of the fall of Soviet communism, many Western intellectuals remain convinced that capitalism is the root of all evil. There has been a long tradition of such animosity among Western intellectuals who gave the benefit of doubt or outright sympathy to political systems that denounced the profit motive and proclaimed their commitment to create a more humane and egalitarian society, and unselfish human beings. The failure of communist systems to improve human nature doesn’t mean that all such attempts are doomed, but improvements will be modest and are unlikely to be attained by coercion. 

Hollander expands on his analysis in this longer article.

As he points out, communist atrocities have not received their full due in the West, despite the fact that the victims of communism (including some 100 million dead) far outnumber even those of the Nazis. Part of the reason is that the communists, unlike the Nazis, were perceived as having noble motives. However, this is a poor distinction. After all, Hitler and his supporters also believed they were doing the right thing, every bit as strongly as Lenin or Stalin did. 

The second distinction often drawn between the two is that the Nazis killed people because of immutable characteristics such as race and ethnicity, while the communists did not. This argument also fails, for two reasons that I discussed in greater detail in this series of posts. First, Communist regimes often did kill people based on immutable characteristics. For instance, they often murdered people because of their class origins; no one could help being born a “Kulak” or a “bourgeois.” Also, Pol Pot, Joseph Stalin, and several other communist rulers targeted various ethnic minorities for deportation and extermination. Second, it is not clear that the distinction between killing innocent people for immutable characteristics and killing them because of mutable ones carries any moral weight. In my view, the case for distinguishing them falls apart on close inspection (see here and here).

Yet even if one ultimately concludes that the Nazis were somewhat worse than the communists, that still does not justify the massive size of the disparity between the enormous attention paid to the crimes of the former and the relative neglect of the latter. 

UPDATE: One of the few Western organizations specifically devoted to promoting public awareness of communist crimes is the Victims of Communism Memorial Foundation, which has a website with lots of helpful information. I will probably mark the occasion of the fall of the Berlin Wall by making a contribution. Political scientist Rudolph Rummel, a leading academic expert on mass murder, has this website with lots of quantitative data on the extent of communist crimes (as well as those of other dictatorships).

Advocates of the “new paternalism” (sometimes also called “libertarian paternalism”) argue that carefully calibrated government interventions can help consumers avoid mistakes caused by their own cognitive biases. In this interesting new article, economist Mario Rizzo and legal scholar Glen Whitman argue that new paternalist policies are vulnerable to slippery slopes that will extend them far beyond the areas where they might be genuinely need to correct consumer errors. Here is the abstract:

The “new paternalism” claims that careful policy interventions can help people make better decisions in terms of their own welfare, with only mild or nonexistent infringement of personal autonomy and choice. This claim to moderation is not sustainable. Applying the insights of the modern literature on slippery slopes to new paternalist policies suggests that such policies are particularly vulnerable to expansion. This is true even if policymakers are fully rational. More importantly, the slippery-slope potential is especially great if policymakers are not fully rational, but instead share the behavioral and cognitive biases attributed to the people their policies are supposed to help. Accepting the new paternalist approach creates a risk of accepting, in the long run, greater restrictions on individual autonomy than have been heretofore acknowledged.

I have myself previously criticized the new paternalism here, here, here, and here. Rizzo and Whitman argue that the danger of slippery slope effects is greater if policymakers themselves suffer from cognitive biases. In this post, I pointed out that the voters who elect the policymakers also suffer from ignorance and cognitive bias, often to a greater extent than the consumers whose biases new paternalist policies are intended to correct. Giving more power to cognitively biased government officials elected by rationally ignorant and cognitively biased voters is likely to exacerbate the effects of cognitive error more than correct it.

Finally, I can’t write a post about slippery slope effects without mentioning Senior Conspirator Eugene Volokh’s excellent “Mechanisms of the Slippery Slope,” which is extensively cited by Rizzo and Whitman. This is my personal favorite among Eugene’s many articles.

Two of Leon Trotsky’s best-known quotes are his statement that “Where the sole employer is the State, opposition means death by slow starvation” (made famous, especially among libertarians, in part because it was quoted by Hayek in The Road to Serfdom), and the very next sentence in the same paragraph: “The old principle: who does not work shall not eat, has been replaced with a new one: who does not obey shall not eat.” My GMU colleague Bryan Caplan helpfully provides the context of these quotes, from Trotsky’s 1936 book, The Revolution Betrayed:

During these years [since Stalin took power in the USSR] hundreds of Oppositionists, both Russian and foreign, have been shot, or have died of hunger strikes, or have resorted to suicide. Within the last twelve years, the authorities have scores of times announced to the world the final rooting out of the opposition. But during the “purgations” in the last month of 1935 and the first half of 1936, hundreds of thousands of members of the [Communist] party were again expelled, among them several tens of thousands of “Trotskyists.” The most active were immediately arrested and thrown into prisons and concentration camps. As to the rest, Stalin, through Pravda, openly advised the local organs not to give them work. In a country where the sole employer is the state, this means death by slow starvation. The old principle: who does not work shall not eat, has been replaced with a new one: who does not obey shall not eat. 

Bryan points out that this context doesn’t reflect well on a man who is still admired by many leftists and even a few ex-leftist conservatives:

Worth noticing: While Trotsky meant what libertarians think he meant, the man’s sheer evil still shines through. He doesn’t mind if the socialist state starves human beings. He was delighted to wield this power when ran the Red Army. No, Trotsky is outraged because the Soviet Union is turning its totalitarian might upon fellow Communists. Was there ever a better time to snark that “Those who live by the sword shall die by the sword”? 

As I explained in this series of posts, Trotsky was a brutal mass murderer who objected to political repression only when it targeted his fellow communists. He also opposed Stalin in part because he thought Stalin wasn’t repressive enough. Any residual admiration for Trotsky is sorely misplaced. 

Nonetheless, the translation of The Revolution Betrayed quoted by Bryan seems to be less damning than the wording quoted by Hayek. In Hayek’s version, Trotsky is quoted as writing that “Where the sole employer is the State, opposition means death by slow starvation” (emphasis added). Since Trotsky of course favored an economic system where the state is the sole employer, this version of the quote implies that he also favored the inevitable “slow starvation” of oppositionists. By contrast, the translation linked by Bryan states that “Where the sole employer is the State, this [referring to Stalin’s policy of denying employment to oppositionists] means death by slow starvation.” The translation quoted by Bryan doesn’t seem to say that opposition means death by starvation in any society where the state is the sole employer, but only if that state is governed by Stalin’s policy of denying work to “oppositionists.” And, as we can see later in the same chapter, Trotsky did not propose to abolish the government’s monopoly over employment, but merely to replace the Stalinist “bureaucratic” class with a different set of economic central planners. The latter might potentially have a more liberal policy on employing oppositionists. Which version is correct? The only way to tell is to check the original Russian text of The Revolution Betrayed. If anyone can find it online, please let me know and I would be happy to do the checking myself. 

Even the more charitable version of this passage still doesn’t paint Trotsky in a flattering light. After all, as Bryan notes, the only “oppositionists” whose right to dissent Trotsky wanted to protect were communists who disagreed with Stalin’s party line. Towards the end of the same chapter of The Revolution Betrayed, Trotsky calls for “a revival of freedom of Soviet parties, beginning with the party of Bolsheviks.” Non-Soviet (i.e. — non-communist) parties need not apply. He had no objection to the “slow starvation” (or even outright execution) of non-communist oppositionists, including even non-communist socialists. Indeed, when he was still in power, Trotsky often ordered such starvation and execution of political opponents himself.

UPDATE: I have found the Russian text of The Revolution Betrayed online here. In my judgment as a native speaker of the language, the Russian version is closer to the translation cited by Bryan than the one used by Hayek. Here is the original Russian text of the relevant sentence:

В стране, где единственным работодателем является государство, эта мера означает медленную голодную
смерть. Старый принцип: кто не работает, тот не ест, заменен новым: кто не повинуется, тот не ест. 

Here’s my own translation: 

In a country where the state is the sole employer, this policy [referring to Stalin’s policy] means a slow death by starvation [for oppositionists]. The old principle: who does not work shall not eat, has been replaced with a new one: who does not obey shall not eat. 

The key Russian phrase “эта мера” literally means “this measure.”

UPDATE #2: Some commenters on this and previous posts about Trotsky ask whether anyone really admires Trotsky anymore. In reality, quite a few modern leftists still do. Christopher Hitchens (see here and here) is one example. As Clive James points out, Trotksy “lived on for decades as the unassailable hero of aesthetically minded progressives who wished to persuade themselves that there could be a vegetarian version of communism.” 

Emory law professor Robert Schapiro has an op ed arguing that the federal mandate requiring individuals to purchase health insurance included in the current health care bill is both constitutional and consistent with federalism [HT: Alison Schmauch]. I agree that the mandate would probably be upheld under current Supreme Court precedent. However, like many other defenders of the constitutionality of the individual mandate, Schapiro doesn’t even consider the possibility that that precedent is wrong. For reasons I describe here, the mandate is inconsistent with the text and original meaning of the Constitution. Even if the Supreme Court decides that the mandate is constitutional, members of Congress and the president have an independent duty to assess the constitutionality of the legislation they vote on and sign. They all have taken oaths to uphold the Constitution, not merely what the Supreme Court says the Constitution means. If the courts rule that a particular congressional or executive action is unconstitutional, the other branches of government should obey. Otherwise, the courts would be unable to serve as an effective check on legislative and executive power. But no constitutional principle prevents Congress and the president from interpreting their authority more narrowly than the Supreme Court does.

In fairness to the congressional Democrats who support the health insurance mandate, it must be pointed out that the Republicans didn’t exercise constitutional self-restraint back when they controlled Congress. Republican bills such as the ban on partial birth abortion, the No Child Left Behind Act, and others, also pushed federal power well beyond the limits established by the text of the Constitution. And the Republicans made little or no effort to seriously consider constitutional limits on their power beyond those set by court decisions. For the Democrats to live within constitutional constraints that the Republicans ignored might be seen as a kind of unilateral disarmament. I hope that the two parties would agree on mutual disarmament, but I’m not holding my breath that any such thing is likely to happen. 

Schapiro also argues that the health care mandate is consistent with federalism in ways that go beyond merely respecting constitutional constraints:

Even if current law does permit a mandate, though, one might ask whether it should....

What the critics’ narrow arguments miss is the power of federalism illustrated by the health care reform efforts. Federalism promotes liberty and innovation by fostering a dialogue among local and national bodies, rather than by inviting courts to draw lines between them.

Massachusetts served as a laboratory with its own attempt to offer comprehensive health care, including an individual mandate. The federal government has learned from that experience. Moreover, the states will play an important role in implementing any national health care system.

What then should we make of state constitutional amendments purporting to bar a federal individual mandate? Such amendments show the value of federalism. State legislatures provide vital platforms for dissenting voices. Such amendments cannot block federal law. But the main point of federalism is to inform public debate, not to invite a court to terminate democratic dialogue.

The health care controversy demonstrates the continuing significance of federalism. Contrary to those impugning the constitutionality of mandates, though, it is a federalism of the people, by the people and for the people, not a federalism of the courts.

“Federalism” can mean many different things to different people. In my view, however, there are important beneficial aspects of federalism that go beyond merely “inform[ing] public debate.” Among these are policy diversity and competition between state governments, which enable people to “vote with their feet” for the policies they prefer. Preserving these benefits of diversity and competition requires enforcement of limits on the power of the central government. Otherwise, both will often be stifled through the imposition of one size fits all centralized solutions. If we want “a federalism of the people, by the people and for the people,” we need constitutional limits on the power of the central government.

If, as Schapiro assumes, the only important purposes of federalism are to facilitate “public debate” and promote experimentation, it’s not clear why we need federalism at all. Public debate can and does occur at the national level too. Indeed, the public and the media usually pay much more attention to proposed federal legislation than to state policies. And a unitary central government can still engage in policy experiments, including ones whose geographic scope is limited. For example, it could establish an experimental health care policy that is limited to one part of the country and then impose it on the rest of the nation if the results prove that the experiment “worked.”

UPDATE: I have eliminated a typo and some minor infelicities that were in the original version of this post.

The recent UN Human Rights Council Resolution endorsed by the Obama Administration exemplifies a key weakness of international human rights law that John McGinnis and I have focused on in our academic work (e.g. here and here): the heavy influence of repressive authoritarian governments over its content. In this case, the resolution was initially promoted primarily by authoritarian Islamic governments who hoped that it would legitimize efforts to suppress “anti-Muslim” speech. The Obama Administration supported the resolution, I would guess, primarily in order to improve the US image with those governments and their traditionalistic Muslim and Islamist sympathizers. 

For reasons indicated by co-blogger Eugene Volokh (here , here, and here), Jonathan Turley, and others, the resolution does indeed justify gross infringements on freedom of speech. As they point out, it threatens free speech not only in the authoritarian states that initially proposed it, but also (though to a much lesser degree) in those Western nations that tend to incorporate international human rights law into their domestic law. While the Resolution probably doesn’t count as international law in and of itself, it is the sort of document that many experts claim can be emobided in “customary international law” over time (see the discussion in this article, and also Eugene’s take here).

It is unlikely that the US and other Western nations would have agreed to this resolution if not for the influence of authoritarian Muslim states that they sought to appease. Thus, the influence of repressive regimes helped promote the enactment of “human rights” law that legitimate their abuses and could potentially weaken protection for freedom of speech and other important liberties in the West.

This danger is not unique to this particular resolution. Rather, as John McGinnis and I discuss in this article, it infects the entire body of modern international human rights law. For example, the Universal Declaration of Human Rights — generally considered the most important international human rights treaty — includes repressive elements introduced at the behest of the Stalinist USSR and its allies. Even when a particular human rights proposal has been endorsed by liberal democracies, it often reflects dubious compromises with repressive states, and thus promotes principles that undermine freedom more than democratic governments would if left to decide for themselves, free of authoritarian influence. The HRC resolution is a good example of this phenomenon, as is the Universal Declaration.

Given the great influence of repressive regimes over its content, it is likely that international human rights law, as currently developed, does more to legitimize repression than to protect freedom. This is especially likely in light of the fact that repressive regimes can usually disobey those aspects of such law that might genuinely weaken their grip on power. By contrast, liberal democratic states are likely to take the rule of law more seriously and therefore to actually obey repressive elements of human rights treaties that they ratify and commit to incorporating into their domestic law.

None of this proves that every aspect of international human rights law is harmful. Even the worst governments might sometimes support relatively beneficial legal rules. It does, suggest, however, that we should view the current body of law in this area with great suspicion, and be very reluctant to allow it to override or influence the domestic law of liberal democracies.

UPDATE: I have changed the title of this post to make it clearer.

UPDATE #2: I previously blogged about the influence of repressive regimes over international law in this series of posts.

A few weeks ago, I warned that one of the problems with the Administration’s proposed Consumer Financial Protection Agency is that it could easily be captured by interest groups who would use its powers to exploit the general public for their own benefit:

[Voter] political ignorance opens the door to interest group “capture” of the CFPA or other agencies that will implement paternalistic regulations. Such regulations will necessarily be complex and difficult to understand. Rationally ignorant voters are unlikely to follow them closely enough to be able to tell the difference between effective regulations and harmful ones. As a result, it will be easy for interest groups and government officials to enact regulations that benefit politically influential businesses as the expense of the public under the guise of consumer protection. We have seen this pattern time and again with other regulatory agencies, such as those engaged in railroad, airline, public utility, and trucking regulation.There is no reason to believe that the new paternalistic regulatory agencies will be any different. Indeed, agencies implement paternalistic financial regulations are likely to be even more vulnerable to capture because of the complexity of the financial system (which makes political monitoring by ignorant voters even more difficult), and the presence of numerous powerful interest groups who have an incentive to do the capturing. Banks, credit card companies, real estate developers, and many others will no doubt lobby hard to capture the CFPA once it gets established.

Recently, Democratic Representative Maxine Waters added an amendment to the bill establishing the CFPA that would add five seats to its powerful Oversight Board for “experts in the fields of consumer protection, fair lending and civil rights, representatives of depository institutions that primarily serve underserved communities, or representatives of communities that have been significantly impacted by higher-priced mortgage loans.” All sorts of interest group representatives could easily get on the board under this amendment. For example, pretty much any bank or credit card company official could claim to have expertise in the “fields” of “consumer protection” or “fair lending.” Similarly, many banks can easily claim to “primarily serve underserved communities.” Finally, interest group representatives could pose as “representatives of communities that have been significantly impacted by higher-priced mortgage loans.” For example, lenders and real estate developers located in such areas would surely qualify; after all, they live in the community too. The majority of the board will still be made up of various federal government officials. But these officials are far from immune from interest group pressure themselves, and of course such lobbying will be facilitated by the fact that several interest group representatives will likely be sitting on the board itself. 

Conservative columnist Byron York, author of the linked article, focuses mostly on the fact that Waters’ amendment cleverly forestalled a Republican effort to keep ACORN from getting representatives on the board. ACORN, however, is just one of many groups that could potentially get seats on the Oversight Board. Indeed, ACORN’s notoriety makes it less dangerous than many of the other groups that could potentially capture the CFPA. Any effort to put ACORN representatives on the board would likely result in lots of negative publicity; for that reason, I doubt that the administration would let it happen. On the other hand, rationally ignorant voters are likely to overlook the presence of representatives from other, equally pernicious but less well-known groups.

I am currently in the process of drafting an amicus brief in the Supreme Court case of United States v. Comstock, on behalf of the Cato Institute and co-blogger Randy Barnett. As longtime VC readers can probably guess, we will be arguing that Article I of the Constitution does not give Congress power to retain custody of “sexually dangerous” persons held in federal prisons after their term of imprisonment ends. 

I was extremely surprised to learn that, in her Supreme Court Petitioner’s brief for the federal government, Solicitor General Elena Kagan, is not arguing that Congress has the power to enact this law under its power to regulate interstate commerce. Instead, she is arguing only that Congress has the power to hold the “sexually dangerous” former convicts under its power to operate a federal prison system and the Necessary and Proper Clause This, despite the fact that existing Supreme Court precedent lends considerable support to a Commerce Clause argument. And of course the Fourth Circuit considered the Commerce Clause issue when it ruled against the government in the decision that led the Supremes to take the case.

Why would the Solicitor General choose to forego a potentially winning argument? One possibility is that she simply doesn’t think that it is likely to win. But even if she is uncertain about the prospects, why not at least try? After all, nothing prevents the United States from making both the Commerce Clause and Necessary and Proper Clause arguments. Another possibility is that either Kagan or one of her superiors in the Obama Administration secretly disagrees with the Supreme Court’s most expansive Commerce Clause precedents, such as Gonzales v. Raich, and does not want to see them extended. I hope this is true, but it seems unlikely for any number of reasons. I highly doubt that either Kagan or other high-ranking members of the Obama Justice Department disagree with the near-universal consensus among liberal jurists and legal scholars in favor of virtually unlimited congressional Commerce Clause authority. 

The last possibility that occurs to me is that the administration not only expects the Commerce Clause argument to lose but fears that if that happens, it will create an unfavorable precedent for the federal government in future cases; even if the feds manage to win Comstock itself on the narrower penal system argument, that theory would not apply to other matters that the feds might seek to regulate under the Commerce Clause. As a result, the SG be willing to forego a (small) chance of winning the case on the Commerce Clause in exchange for increasing the likelihood that the Court might avoid the Commerce Clause issue entirely in making its ruling. If this conjecture is correct, it suggests that Kagan and the administration believe that the justices are more willing to cut back on Raich than I fear might be the case. If that really is the reason for the government’s posture in Comstock, I would be very happy. Kagan and her staff surely have a lot more inside information about the justices’ views than I do.

Of course, it’s always possible that they have some other reason entirely for omitting the Commerce Clause. There are a lot of outstanding appellate lawyers in the solicitor general’s office, and one of them could have come up with some clever tactical reason for taking this approach that I simply haven’t thought of. 

NOTE: I should emphasize that the above speculations are solely my own conjectures and do not necessarily represent the views of the Cato Institute or Randy Barnett, or the other lawyers who are helping draft the brief. 

The Wall Street Journal has an editorial urging the Supreme Court to rule in favor of the property owners in Alvarez v. Smith, an important property rights case that I have been trying to draw attention to for a long time (see my recent Findlaw column on it and previous posts on the subject here and here):

With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.

This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture...

Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor’s office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern....

We’re all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to restore the balance of justice to citizens. 

The points emphasized in the WSJ editorial are similar to those I and others have made previously. However, the WSJ piece is still noteworthy because it shows that at least some of the national media have finally begun to give the case the attention it warrants. It’s also telling that even the generally pro-law enforcement WSJ editorial page isn’t willing to endorse the government’s position in this case.

Megan McArdle and Tony Woodlief give their answers to an interesting question: What three books would you recommend to a thoughtful person who disagrees with you politically, in the hopes that reading them will change their mind? 

My recommendations would depend a lot on whether the person in question disagrees with me from the right or from the left, and also on the extent of their previous knowledge of social science. Let’s assume, however, that the person is well to the left of me, and that they are an intelligent layperson rather than a scholar or public policy professional. In that case, I would probably pick Thomas Sowell’s Knowledge and Decisions - an excellent summary of the reasons why private sector institutions generally process information and make decisions better than government; William Mitchell and Randy Simmons’ Beyond Politics: Markets, Welfare, and the Failure of Bureaucracy — a good, accessible exposition of the economic shortcomings of government relative to markets; and Richard Epstein’s Simple Rules for a Complex World, which explains how simple, libertarian legal systems are likely to work better than complex ones with more statism and regulation. The biggest area of disagreement between libertarians and liberals is over the role of government in controlling the economy. These three books focus on that issue. I have also picked books that try to persuade by analysis and evidence rather than emotional appeals — even though I have to admit that the latter are often more effective.

There is much less in the way of libertarian literature specifically directed at persuading conservatives. However, F.A. Hayek’s classic essay “Why I am Not a Conservative” is surely relevant for reasons I elaborated here.

Kerry Howley has responded to my post criticizing her essay on libertarianism and culture. I don’t think her response actually answers most of my main points, however. Kerry criticizes me for asking for a “bright line rule” about what cultural values libertarians should care about:

The lack of libertarian tolerance for ambiguity is an unfortunate thing. “Be more precise,” Ilya says. He says this of a jeremiad against bright-line-ism. There are no bright lines, even within the domains Ilya thinks most clearly delineated. When is coercion justified with regard to property? Libertarians disagree. What constitutes property rightfully obtained? Libertarians disagree. 

There is a great deal of room between an absolute bright line rule and the degree of imprecision present in Kerry’s original essay. On one interpretation of her argument, almost all cultural norms are threats to freedom because all constrain our choices to at least some degree. On another, only a very narrow range are (perhaps those that leave people with little or no exit option from highly constricted lifestyles). As to what “libertarian” means, I agree that there is disagreement about it. However, to my mind, the term as commonly used delineates people who advocate either strictly limited government or none at all. Thus, libertarianism is primarily a political philosophy about the appropriate role of government in society, not a comprehensive ethical system that covers all the important issues in human life.

Kerry next claims that a concern about culture is essential not to all libertarians, but merely those who are libertarian primarily because they care about liberty:

A political philosophy of limited government is a means to an end. For a great many though by no means all libertarians, the end is individual liberty, understood as the ability to pursue one’s singular aims. For some, support of limited government is, as Tim Lee puts it, “one facet of a broader liberal worldview.” It would be beyond pointless to construct an argument about what supporters of small government “ought” to care about. My Reason piece argues merely that supporters of small government who care about liberty ought to care also about culture, in part because culture and individualism are very often at odds.

I appreciate the clarification. But even with respect to those libertarians who “care about liberty,” Kerry’s argument isn’t entirely successful. Liberty and individualism are not synonymous. For many of us, the liberty we care about includes the liberty to choose to live in cultural communities that aren’t necessarily individualistic. As I suggested in my original post, most of those who live in conservative subcultures in the modern West are not trapped there. They are exercising their liberty no less than Kerry and I are by choosing a different life. To use Kerry’s terminology, people who exercise “individual liberty . . . understood as the ability to pursue one’s singular aims” need not always value “individualism.” Moreover, I am one of those people who is a libertarian because I care about happiness as well as liberty. In a world of diverse people with very different preferences, some will find their greatest happiness by exercising the liberty to live in a socially conservative, nonindividualistic culture.

Kerry somewhat misunderstands me when she says that “Ilya says we cannot know what cultural norms are conducive to liberty broadly construed.” Rather, I argued that different cultural norms may be optimal for different people and groups, and that a libertarian society should therefore accept cultural diversity, at least within very broad limits. I also suggested that such cultural diversity actually increase our freedom by giving us a wider range of lifestyle choices — including conservative ones.

Finally, Kerry states that her essay was aimed at a very narrow target: “[T]he minority of libertarians, like [Todd] Seavey, for whom government is a leviathan so totalizing that thought beyond its influence is rendered impossible.”

She now says that she accuses only this small group of believing that ““social pathologies such as patriarchy and nationalism are not the proper concerns of the individualist.” I appreciate the clarification, and I am sorry for misinterpreting her position (which, in my view, wasn’t stated nearly as clearly in her original essay). However, it now seems as if she is aiming at virtually a null set. After all, even those libertarians most focused on combating state power (e.g. — Murray Rothbard) admitted that nondefensive private violence and theft should also be opposed. And I would be surprised if Seavey himself thought that libertarians can afford to be completely indifferent to nationalism or patriarchy, given that both have historically promoted large-scale state-sponsored oppression. 

In sum, I fear that further clarification is necessary. If all Kerry is saying is that libertarians who care about liberty shouldn’t completely ignore cultural values or private actions that might threaten freedom, I don’t disagree with her, and neither would any other libertarian commentator I know of. For example in my original post, I noted that some cultural values are problematic from a libertarian standpoint because they promote statism or aggressive private violence. This is perfectly compatible with believing that in the modern world government power is the single greatest threat to liberty, and that libertarians should therefore devote the bulk of their time and effort to combating that threat (areas like Somalia, where no meaningful state exists, are exceptions to this generalization). If, however, Kerry wants to argue that there is a wide range of cultural values that libertarians should be against because they imperil freedom even when no violence is used or threatened, then the criticisms I made in my original post still apply.

UPDATE: Will Wilkinson has joined the debate, replying to this post and my previous one. Will, like Kerry, is a thoughtful commentator. But I fear that his post suffers from some of the same problems as Kerry’s reply. Like Kerry, Will argues that all he’s saying is that people are affected by cultural values and that some of these cultural values may be threats to freedom:

As I see it, Kerry’s claim is that many libertarians fail to adequately acknowledge the fact (and it is a fact) that people are embedded in and shaped by culture, and that, as a consequence, many libertarians fail to grasp the extent to which cultural norms and social structure can limit individual liberty or work to deny some individuals the opportunity to develop the capacities needed to meaningfully exercise their liberty rights.

As noted above, no serious libertarian thinker denies these points, at least not at this level of generality. The more contentious question is whether and to what extent cultural norms pose a threat to liberty even when they aren’t backed by either state power or private violence. 

Will also emphasizes that libertarian ideology is in part the product of its social environment and that it can and should evolve over time. I don’t deny this, and I doubt many other libertarians would either. The more difficult question is what direction the ideology should evolve in. In my view, libertarians are right to believe that government power is by far the greatest threat to liberty and happiness in the modern world, and that cultural norms unconnected to either state or private violence are, in most places (especially the developed world), a relatively minor problem by comparison. Moreover, as argued in my previous posts, I think the availability of socially conservative cultures of a kind Will and Kerry might decry actually increases both freedom and happiness so long as people have reasonable exit options from them.

Will further argues that even if I am right to conclude that in the United States today, people can freely choose to leave restrictive cultures, that was not true of the United States in earlier eras or other countries around the world today. These are much bigger issue than can be addressed in an update to a blog post. In general, my view on these questions that 1) the exit options in the US of decades ago or other countries today would have been much better if the restrictive norms in question were not backed by state power, and and 2) to the extent that they would have remained a problem, it is in large part because of low levels of economic development, which constricted people’s mobility and access to information. As I see it, the best way to combat these problems is to promote limits on government power economic growth — a package very similar to the traditional libertarian agenda.

Finally, Will suggests at one point that, in the modern US, libertarians should oppose even those social norms that constrict liberty in ways that fall short of “radical” restrictions: “I’d submit that one or two steps shy of radically constricted freedom isn’t free enough.” In my view, once we get to that point, I think it is best to rely on people choosing for themselves in the private sector. What looks to Will like “constricted freedom” may well be people exercising their freedom to choose a nonindividualistic or socially conservative lifestyle. 

Reason has a debate about whether libertarians should “care about cultural values.” Kerry Howley argues that libertarians should place far more emphasis on combating cultures that supposedly undermine freedom, while her critics (Todd Seavey and Daniel McCarthy), are skeptical.

To my mind, there is no question that libertarians should care about some cultural values. However, Kerry’s argument could benefit from greater precision on several key issues. First, some cultural issues might well be an appropriate object of concern for libertarians as thinking individuals, but not a proper focus for libertarianism - which is, after all, a political ideology, not a comprehensive guide to the good life. Second, it is not clear what is meant by cultural values that restrict freedom. Finally, Kerry may underrate the extent to which there is no single set of cultural norms that is optimal for all people. There are both normative and tactical reasons for libertarians to avoid taking definitive positions on more than a limited number of cultural issues.

I. Individual Libertarians May have Good Reason to Care about Issues that are not a Proper Focus of Libertarianism.

One of the most important values issues that libertarians — and everyone else — should properly care about is the question of whether God exists and, if so, what he commands us to do. However, as a political ideology, libertarianism need not take any position on the issue of God’s existence and the meaning of his commands (if any). Not only is this good political strategy, it also shows proper respect for the limits of what a political ideology can accomplish. Rather, the political ideology of libertarianism should focus on the ways in which strictly limiting the power of government can make adherents of many different faiths better off by allowing each to live by their own values without fear of repression by the others. 

The same point applies to many nonreligious cultural disputes. For example, people often face tradeoffs between work and commitments to their family, friends, and communities. Individual libertarians quite properly have strong opinions on this issue. But libertarianism as a political ideology need not go beyond the argument that such conflicts are likely to be better addressed by private sector institutions and civil society than by government.

II. Which Cultural Values Restrict Freedom?

Kerry argues that libertarians should oppose cultural values that undermine freedom. It is hard to disagree with that in the abstract. The difficult part is determining which values those are.

Kerry claims that most libertarians assume that “social pathologies such as patriarchy and nationalism are not the proper concerns of the individualist.” In reality, numerous libertarians such as Adam Smith, Richard Cobden, and F.A. Hayek have harshly criticized nationalism for at least the last 200 years — largely because they recognized the close connection between nationalism, statism, and war. The same could be said with respect to patriarchy, which libertarians such as William Lloyd Garrison and Herbert Spencer, criticized back in the 19th century long before it became common to do so, on the grounds that it causes indefensible state-sponsored restrictions on the freedom of women. Today, few libertarians would deny that some cultural values are a proper object of libertarian criticism because they tend to promote government-sponsored restrictions on liberty. Libertarians would also condemn cultural values that justify aggressive uses of private force, such as, for example, sexism that promotes violence against women.

However, Kerry wants libertarians to go beyond this and focus on cultural values that supposedly undermine freedom even without any connection to state power or private violence. As she puts it, “Not every threat to liberty is backed by a government gun. Convention creates boundaries as thick as any border wall and ubiquitous as any surveillance state.” 

This claim proves too much. Almost any cultural norm restricts people’s options to some extent in the sense that violators might face social pressure to conform, or that people might internalize the norm to such an extent that they don’t even consider the possibility of going against it. On the other hand, social conventions also increase personal freedom by enabling to people to cooperate in ways that might otherwise be difficult or impossible and to form communities that reflect their values. 

Nonetheless, Kerry is probably right to suggest that some extremely restrictive social norms can radically reduce people’s choices and greatly diminish their freedom. However, I think that this problem is unlikely to be a serious one in a modern liberal society that has many different cultures and social institutions. People who feel dissatisfied or restricted by the social norms of their communities can seek out alternative social groups. In the modern United States, any large metropolitan area has an enormous range of subcultures to choose from. Even if you live in a relatively isolated rural area, you can still “vote with your feet” and move elsewhere, as most of the rural population has actually done over the last century. So long as people have exit rights in a liberal society, they are unlikely to be trapped in a set of restrictive social norms that radically constrict their freedom — unless of course they prefer it.

At some points, Kerry implies that people who follow highly traditionalistic lifestyles — especially women in patriarchal subcultures — might nonetheless be trapped without any meaningful possibility of exit. This is a genuine problem in backward societies with little education and mobility. But I’m skeptical that it is true to any great extent in the US or other advanced industrialized nations. Most American cultural traditionalists are well aware of the existence of alternative, more progressive cultures. Indeed, most live near people who adhere to them. If they nonetheless stick to their traditional values, it is unlikely to be because they have no choice. Indeed, the existence of a variety of different subcultures actually increases individual freedom, by giving people more lifestyle options to choose from. 

For these reasons, libertarians have good reason to fear state-imposed cultural norms more than privately developed ones. The state can use its monopoly of force to compel all of society to adhere to a single set of norms, including dissenters who prefer a different vision. It is far more difficult for private institutions to do so. 

III. Libertarianism and the Case for Cultural Diversity.

Ultimately, the difference between Kerry and her critics may come down to differences over the extent to which libertarians should support cultural diversity. In my view, there is no one set of cultural norms that is best for everyone. I would not want to live under highly traditionalistic norms like those of Mormons or Orthodox Jews. However, it is quite possible that adherence to those norms might provide a happy life for people whose preferences are very different from mine. I have met a number of highly educated people from both of these groups who seem to be very happy with their lives, and are fully aware of the available alternatives. It’s hard to conclude that their lifestyle choices are necessarily more misguided than Kerry’s or mine. Traditionalistic subcultures have much to offer people who are highly risk-averse, those who greatly value a strong sense of community, and those who prize stability, among others.

Kerry writes that she favors “A culture of liberty [that] would . . . beget [a] raucous, plenitudinous hodgepodge” of different subcultures. To that extent, we agree. However, she also argues that we must combat “authoritarian cultures” that restrict freedom, by which she seems to mean primarily socially conservative ones. This suspicion of traditionalistic cultures is understandable. For much of human history, state power forcibly imposed various traditional values on women, religious dissenters, and others. As discussed above, libertarians should fight against those elements of traditional culture that still seek to use coercion to impose conservative norms on the unwilling. I have often criticized these aspects of social conservatism myself (e.g. — here and here). The same goes for the statist authoritarian elements of left-wing political correctness. But it is a mistake to conclude that just because socially conservative cultural norms shouldn’t be imposed on everyone, that means that they shouldn’t be voluntarily followed by anyone. In addition to giving individuals a wider range of options at any given point in time, the existence of both liberal and socially conservative also fosters competition between norms that promotes the emergence of better norms over time. 

These points are distinct from Todd Seavey’s tactical argument in his critique of Kerry, where he points out that identification with one set of cultural values is likely to drive away potential allies for libertarianism. If libertarians are seen as aligned with cultural liberalism, it is likely to alienate cultural conservatives, and vice versa. Linking libertarianism to a narrow cultural agenda would be a mistake similar to Ayn Rand’s insistence that libertarianism entails atheism — a stance that did much to alienate potential supporters who were religious. At the same time, cultural “wedge issues” sometimes do make for good political strategy. 

Be that as it may, I am not merely arguing that libertarians should support cultural diversity for tactical reasons. Rather, they should do it because it is genuinely the right thing to do. We cannot endorse all cultures completely. Libertarianism is still at odds with cultural values that promote statism or the aggressive use of private violence. And individual libertarians can certainly work to advance their particular religious and moral values. But as a political ideology, libertarianism should celebrate diversity. 

UPDATE: I suppose I should mention that I refer to Kerry Howley by her first name because she and I are friends in the real world outside cyberspace (and hopefully still will be after she reads this post:)), whereas I am not similarly acquainted with the other writers in the Reason debate and therefore I refer to them more formally. Blogosphere norms about the use of first names vs. last names are constantly evolving, so it is not always easy to determine what is appropriate and what isn’t. This is, perhaps, one of those areas where decentralized cultural evolution can generate better social norms over time.

Many critics of the War on Drugs, myself included, were happy to see the Obama adminstration’s new memo urging federal prosecutors not to pursue cases against medical marijuana users in states where such use is legal under state law. The administration’s policy could potentially offset some of the negative effects of the Supreme Court’s 2005 decision in Gonzales v. Raich, which held that Congress’ power to regulate interstate commerce gave it the authority to forbid the possession of medical marijuana even in cases where the marijuana in question had never been sold in any market or left the state where it was grown (I criticized Raich in this article).

However, as Jacob Sullum points out, the policy may not make much difference in practice, especially in California (the state with by far the biggest concentration of medical marijuana cases). The key sticking point is that the memo only applies to uses of medical marijuana that are in “clear and unambiguous compliance with state law”:

During his presidential campaign, Barack Obama repeatedly promised to stop federal interference with state laws that allow the medical use of marijuana. On Monday the Justice Department seemed to deliver on that promise with a memo telling U.S. attorneys to avoid prosecuting people who use or provide medical marijuana in compliance with state law. 

The new policy sounds a lot better than the Bush administration’s refusal to tolerate any deviation from federal law in this area. But because of disagreements about what compliance with state law requires, it may not make much difference in practice. 

This week’s memo . . . tells federal prosecutors in the 14 states that recognize cannabis as a medicine they “should not focus federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” 

In California especially, that phrasing leaves a lot of wiggle room for federal meddling. Last fall the California Supreme Court rejected the idea that medical marijuana suppliers are legal as long as their customers designate them as “primary caregivers.” Patients who are not up to growing marijuana on their own can still organize as “collectives” or “cooperatives,” but local officials disagree with state officials and each other about what that means. Los Angeles County District Attorney Steve Cooley, for example, maintains that state law does not permit over-the-counter sales, which would make virtually all of the 800 or so medical marijuana dispensaries in L.A. illegal. 

Given these disagreements at the state and local level, it will usually be difficult to prove that any given medical marijuana user is in “clear and unambiguous compliance state law,” as opposed to merely arguable or probable compliance with it. 

It’s also worth noting that the memo doesn’t actually tell prosecutors to forego pursuing cases against even those distributors and users who are in “clear and unambiguous compliance.” It merely says that “as a general matter,” such prosecutions are “unlikely to be an efficient use of limited federal resources.” A prosecutor who thinks that a given case is an exception to this generalization or believes that his office has some excess or underutilized “resources” might still pursue such cases. The memo also outlines numerous situations where prosecution of medical marijuana distributors and users is still encouraged:

Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:

• unlawful possession or unlawful use of firearms;
• violence;
• sales to minors;
• financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
• amounts of marijuana inconsistent with purported compliance with state or local law;
• illegal possession or sale of other controlled substances; or
• ties to other criminal enterprises.

Several of these — especially that dealing with “financial and marketing activites inconsistent with the terms, conditions, or purposes of state law” are extremely broad. Almost any paid transaction between a medical marijuana user or a dealer might be described as one involving “financial gains” or “excessive amounts of cash” inconsistent with “purported compliance with state or local law.” The memo gives no guidelines for determining how much money is “excessive,” nor does it specify how to tell the difference between permissible marketing activites and forbidden ones. Given that compliance with state law much be “clear and unambiguous,” it would not be hard for a prosecutor to go after virtually any medical marijuana distributor.

The memo is still a step forward from the Bush Administration’s aggressive pursuit of medical marijuana cases; for example, it might at least give cover to US attorneys who are already inclined not to pursue these cases, but were afraid to follow their inclinations previously. But it falls a long way short of actually ending federal prosecution of medical marijuana cases, even in states where medical marijuana use is permitted by state law.

I was very interested to read historian Jennifer Burns’ important new biography of Ayn Rand in part because Rand and I have a great deal in common. We are both Russian Jews from St. Petersburg, both atheists, and — most important — both of us became libertarians in large part because of our experience with communism. Burns interestingly describes how Rand’s opposition to communism was influenced by the repression suffered by her parents after the Bolsheviks came to power in 1917 (for example, her father’s home and business were confiscated, and the family was discriminated against because of their “bourgeois” background). My great-grandfather (who was much poorer than Rand’s father), also had his small business confiscated in 1918, and this was one of a series of incidents that influenced my paternal grandfather’s own lifelong opposition to communism. He and Rand were almost exact contemporaries, born one year apart.

Despite all of the above, I was never much influenced by Rand or impressed by her writings. I became a libertarian in high school primarily as a result of reading Friedman, Hayek, Nozick, and Thomas Sowell — and because being a refugee from communism prevented me from becoming a left-liberal, as would otherwise have been likely. I also read some of Rand’s books at that time. But I wasn’t impressed with her effort to defend free markets based on her theory of the “virtue of selfishness,” or her “Objectivist” philosophy. Many of her ideas seemed poorly developed or superficial. I was also turned off by her intolerance for disagreement and her lack of serious effort to engage with opposing points of view. 

I still think these criticisms of Rand are largely accurate. There was, however, one important point that I underrated: Ayn Rand was the greatest popularizer of libertarian ideas of the last 100 years. Many more people have read Rand’s books than have read all the works of Friedman, Hayek, Mises, Nozick, and all the other modern libertarian thinkers combined. In becoming a libertarian without any influence from Rand, I was actually unusual. Over the last 15 years, I have met a large number of libertarian intellectuals and activists of the last two generations, including some of the most famous. More often than not, reading Rand influenced their conversion to libertarianism, even though very few fully endorse her theories or consider themselves Objectivists. Burns quotes Milton Friedman’s perceptive assessment of Rand as “an utterly intolerant and dogmatic person who did a great deal of good.” I think he was probably right.

Being remembered primarily as a great popularizer would have angered Rand. As Burns’ biography makes clear, Rand saw herself as a pathbreaking original thinker who had discovered important philosophical and political truths that had previous been ignored or at least underemphasized. Rand believed that her theory of Objectivism was the only possible moral grounding for a free society. Burns documents her contempt for scholars like Hayek, Friedman, and Murray Rothbard, who tried to defend libertarian ideas on other grounds. For example, she called Hayek’s work “pure poison” and considered him “an example of our most pernicious enemy.” Indeed, the very word “libertarian” was anathema to her, and she viewed most non-Objectivist libertarians as ideological enemies. Rand also believed that one could not be a true supporter of free markets and limited government without also endorsing Objectivist views on a wide variety of non-political subjects, such as her atheism, her “Romantic” views on art and literature, and what she considered to be her rationalistic theories of love and romance. Over the years, she cut herself off from nearly all of her friends and admirers, often because they had expressed disagreement with some relatively minor part of her views. 

Burns also extensively documents Rand’s many conflicts with social conservatives, especially William F. Buckley and other writers at National Review. The National Review conservatives particularly objected to her atheism. Rand was just as obnoxious to her conservative critics as she was to rival libertarian thinkers. And the conservatives often gave as good as they got. For example, Whittaker Chambers’ 1957 review of Rand’s Atlas Shrugged in the National Review ridiculously compared Rand to the Nazis and communists, claiming that the true message of the book was “To a gas chamber — go!” Rand’s claim that atheism and support for freedom are inseparable was likely wrong. On the other hand, she was more insightful than the National Review conservatives on a great many other issues; for example, her opposition to Jim Crow, and her 1963 denunciation of racism as “the lowest, most crudely primitive form of collectivism” hold up better than this notorious 1957 National Review editorial arguing that the “white community” of the southern states were justified in denying the vote to blacks “because, for the time being, it is the advanced race.”