The National Law Journal has published my article about the upcoming Supreme Court case of Stop the Beach Renourishment v. Florida. Excerpt:
When the U.S. Constitution was written, there was broad consensus in America that private property was a fundamental human right and that government existed to protect it, not to manipulate it to serve purposes politicians deemed more important. But today, the nation's intellectual elite — and particularly judges — have rejected the traditional principles underlying property rights. They see property as simply a privilege the government can alter or rearrange at will. America's founders believed that a person's right to own, buy, sell and use property was a timeless moral principle, not a temporary expedient that changes based on who wins elections. Hence the clash between today's lawmakers — who want maximum power to manipulate property — and permanent constitutional principles designed to protect each individual's right to pursue happiness.
In today’s panel discussion about the Drug War, former U.S. Attorney McGregor Scott got pretty angry at me when I mentioned that there were racial disparities in the enforcement of drug laws. So angry, in fact, that he angrily called me “intellectually dishonest.” I responded that I considered it intellectually dishonest for him to deny what everyone in the room knows to be true—that members of racial minorities are vastly more likely to be arrested, more likely to be convicted, and more likely to be sentenced to longer terms, than are their white countrymen. I stand by what I said. Mr. Scott cannot be ignorant of the statistics, and although he sophomorically demanded that I “prove it”—presumably by looking up statistics on my iPhone in the middle of my presentation—he knows well enough that members of minorities, and particularly young black men, suffer disproportionately from the morally indefensible effects of this pointless and stupid War on Drugs.
Since he wanted me to “prove it,” I recommend starting with some interesting studies from Human Rights Watch, including their 2000 study, “Punishment And Prejudice: Racial Disparities in The War on Drugs,” which found that black men are sent to state prison on drug charges 13.4 times as often as are whites, and constitute 80 to 90 percent of all drug offenders sent to state prison. There’s also the more recent report, “Decades of Disparity: Drug Arrests And Race in The United States,” which found that blacks were arrested on drug charges at rates that were up to 5.5 times more often than were whites. One third of the 25 million drug arrests in the years 1980-2007 were black. HRW also produced the report “Targeting Blacks: Drug Law Enforcement And Race in The United states,” which found that blacks are 10.1 times more likely than whites to enter prison for drug offenses, that a black man is 11.8 times more likely than a white man to enter prison for drug offenses; that a black woman is 4.8 times more likely than a white woman to enter prison for drug offenses; and that among blacks entering prison, almost two out of five (38.2 percent) were convicted of drug offenses, compared to one in four whites (25.4 percent).
Don’t trust Human Rights Watch? Well, the Kennedy School of Government produced a study in 2001 that found a significant difference in the treatment of blacks and whites in drug cases. There was the report of the Sentencing Guidelines Commission in 2000 that found such a disparity. There’s this report from NORML, which found significantly higher arrests for marijuana possession among blacks than among whites. Statistics like this have led the ACLU to observe that
Even though whites outnumber blacks five to one and both groups use and sell drugs at similar rates, African-Americans comprise: • 35% of those arrested for drug possession; • 55% of those convicted for drug possession; and • 74% of those imprisoned for drug possession.
Now, perhaps Mr. Scott misunderstood my point, and thought I was accusing the law enforcement community of purposely targeting blacks in the Drug War. I have no doubt that many law enforcement officers do, in fact, do this, but that’s irrelevant to my point. My point was that the Drug War has a radically disproportionate impact on racial minorities in this country. That is a fact, no matter how much Mr. Scott might not want to admit it.
Now, maybe you think that’s okay. Maybe you think drugs are so bad that it’s okay to send a massive proportion of the black male population of America to prison. Maybe you’re so eager to tell other people what they can do with their bodies that you don’t care what sort of havoc the Drug War has wreaked on American communities. Who am I to judge? But don’t deny that these are the facts, and don’t get offended when someone points them out.
I was curious what you think of this statement from my Administrative Law casebook:
"For most of the 19th Century . . . the country functioned in a deregulated state. By the end of the 19th Century, many of the major industries were dominated by cartels or monopolies. Steel, oil, lumber and many food products were controlled by market forces unlikely to produce healthy competition much less optimal efficiency and public good. The unregulated 19th Century saw the rise of heavy industry - and the creation of deadly, nightmarish workplaces. It was apparent that some additional level of governance was required."
Especially the part about market forces being "unlikely to produce healthy competition." Do you think that's true? Or is this historical revisionism?
It's not "revisionism," accurately speaking, because that is the prevailing interpretation. But I believe it is wrong, politically biased, and reflects economic and historical ignorance. The monopolies and cartels of the 19th century existed because of, not in spite of, government intervention into the marketplace. Tariffs and subsidies propped up the trusts and prevented competition. The government was even actively supporting its political favorites trough military adventurism, seizing Hawai'i, for example, and Panama, in the service of powerful business interests. Government regulation was actively sought then as now by businesses that saw regulation as an effective way to stifle competition.
Second, what is "optimal efficiency"? Who decides what sort if economic outcomes are "optimal"? Evidently the answer is, people who write administrative law textbooks. In a free market, by contrast, optimal outcomes are chosen by the market participants who are free to make the transactions they consider worthwhile whether or not certain law professors approve of them. Mr. Professor may think it suboptimal for Joe Lochner and Aman Schmitter to agree to long working hours in their contract, but in a free market, they make that decision for themselves without Mr. Professor's "mere meddlesome interference." (To quote the Lochner case.) There is no "optimal" economic outcome hovering in the sky like a Platonic form waiting to be imposed by government regulation and ultra-smart law professors. There are only the economic decisions of producers and consumers as to what they want among the available options.
Third, the idea that nightmarish workplaces were an advent of the nineteenth century is about as ignorant an idea as the human mind is capable of forming. It certainly ignores at least 19 centuries of human civilization. Much more than that, actually. The 19th century workplace was extremely unpleasant and dangerous by today's standards. But compared to what preceded it, it was almost a utopia. It was safer and more sanitary than the Roman bakeries, the Greek silver mines, the medieval farm, the English colonies in north America, the cotton plantations of the old south... The Triangle Shirtwaist Factory was heaven compared to the Tredegar Iron Works or the working conditions of the chimney sweep boys about whom William Blake wrote. In fact, it was the technological innovation made possible by free market capitalism that created the safer and more efficient machinery that in turn made working condition reforms feasible for the first time in history.
Moreover, it must always be recognized that progressive era reforms of working conditions carried significant costs for the poor and unemployed. The children put out of work by laws against child labor were not compensated for the loss of their income. It does not matter how repugnant you consider child labor--you don't make poor people richer by making their jobs illegal.
Finally, "it was apparent" to whom? The Progressive version of history implies that all good people believed that government control over the economy wad essential, and the only people who could oppose it were evil greedy capitalists. This is childish, good-guy/bad-guy mythology, not history. The debates over things like maximum hours laws, child labor laws, minimum wages, &c., were and remain complicated, with both good and bad guys on both sides and good and bad arguments on both sides. Yes, many who supported maximum hours laws like in Lochner were good people with pure motives. But those laws were also supported by bakery companies that were automated and could therefore operate 24 hours a day without human labor. Maximum hours laws eliminated their competition. Unions liked these laws too, because double-shift bakeries could thereby eliminate competition from small independent bakeries that were non unionized. Henry Weismann, the most vocal proponent of the maximum hours law in Lochner later bought a bakery and found how hard it was to keep the thing going under the maximum hours law. Then he went to law school and became the attorney who argued against that same law's constitutionality in the Supreme Court! Why? Because he was evil? That's a childish way of viewing history. It "became apparent" only to some that government control over the economy was a good idea. To others it was not apparent. It is not apparent to me.
Update: Reader Josh Thompson adds,
"Healthy competition" ...
At their peaks Carnegie Steel controlled 60% of the open hearth steel market, and Standard Oil controlled 90% of the oil refinery market (the two most often used examples of monopolies in the late-19th century). Both were decreasing considerably by the time Teddy came in and imposed his trust-buster policies.
More to the point, from the 1870s-90s, when these businesses were promoting "unhealthy competition," "forcing out" competitors that couldn't compete with their prices, and engaging in "collusion" with other industries that wanted to use their products, is there any evidence than their practices actually hurt consumers? Steel and oil prices in America were lower than any where else in the world, and the US experienced unprecedented industrial growth. The "bad" that is most often cited to is the "outrageous profits" and "destruction" of smaller competition. But that is just question begging. The progressives define what is bad, and then set out to prove how the monopolies perpetuated the "bad." If you define bad as stagnant economic growth and higher prices for consumers, I contend that the trust-buster policies produced more bad than the trusts.
I will be speaking about drug policy along with law professor Alex Kreit and former U.S. Attorney McGregor Scott on Tuesday at 11:30 here in Sacramento. The event, cosponsored by the Federalist Society and the American Constitution Society, is being held at the California Secretary of State's office at 1500 11th Street, and the public is welcome. More info here.
You'll recall that the Institute for Creation Research---the creationist outfit that purports to award advanced degrees in the sciences---has filed a lawsuit against the Texas Higher Education Coordinating Board, objecting against its decision not to authorize the ICR's granting of degrees. As I observed earlier, the original complaint in the case was 67 single-spaced pages long, and included 86 footnotes, including one that took up an entire page. It was a masterpiece of how not to write a complaint.
Well, the federal court didn't take lightly to that, and ordered the ICR to file an amended complaint that complies with the Federal Rules of Civil Procedure, and the ICR has now done so. The new complaint is 20 double-spaced pages...but it is 20 pages of non-stop, thigh-slapping hilarity. It contains language that appears to be randomly cobbled together through some sort of Lawyer Phrase Generator, and which I defy any member of the bar to explain in sensible terms: "There are still 2 state statutes that are potentially dispositive (in a manner favorable to the [ICR]) as to issues of 'first impression', so this Court needs to make some Erie v. Thompkins guesses thereon." What the hell does that even mean?
The word "herein" is sprinkled randomly throughout, rather like the way Miss Teen South Carolina sprinkles "such as." It occurs four times on page 2 alone--including "venue herein," whatever the heck that means. There are italics,boldface, ALLCAPS, and all sorts of different combinations herein, of course. There are delightful spelling errors ("advertizes"), rhetorical flourishes ("as if with a 'scarlet letter'"), and neologisms (I can't decide if "favoritistically" or "applicational bounds" is my favorite). Of course it quotes the Bible. It even has rhetorical questions! In a complaint!
Now, judges get crap like this complaint all the time, and sadly for them, the liberal pleading rules generally require judges to allow the case to proceed if they can find somewhere in the complaint anything that would entitle the plaintiff to relief. That sometimes means doing the work of the plaintiff's lawyers. If the court does anything like that here, it'll face heavy work. But here is really the core of the ICR's complaint: "[ICR] seeks declaratory relief that it may, as a matter of academic freedom...institutionally opine (as a matter of institutional academic speech),--that a given graduate student is worthy to be recognized as having earned [ICR]'s 'Master of Science' in 'Science Education' degree...."
As I blogged before, I think there actually is something to this objection: the relationship of the state to educational institutions (however bogus) is not a simple one: an organization has a First Amendment right to grant titles to whomever it pleases--to declare John Smith to be a "deacon" or a "scholar" or what have you. And for the state to confiscate the use of certain terms (like "degree") does implicate the constitutional rights of those organizations and the individuals who comprise them. The Texas Supreme Court held as much in HEB Ministries, Inc. v. Texas Higher Education Board, 235 S.W.3d 627 (Tex. 2007).
That's a straightforward constitutional argument, and one worthy of being addressed by a court. But something tells me it won't be addressed in this case, in which the ICR's counsel alleges all sorts of virtually random causes of action. It seems to allege that the Texas Higher Education Coordinating Board violates the monopolies clause of the state Constitution, the Fourth Amendment's searches and seizures clause, the due process clause, the equal protection clause, the freedom of speech clause, the freedom of the press clause, the freedom of association, the Texas Government Code, laws against defamation, the public emoluments clause, the Texas Religious Freedom Restoration Act, anti-discrimination laws, the Texas Education Code, and even the "no titles of nobility" clause of the U.S. Constitution! The complaint even argues that for the state of Texas to regulate higher education "interferes with interstate commerce" (emphasis original, natch).
Writing a complaint is not a hard task for a lawyer. The rules are clear. There are plenty of examples to copy. It doesn't require rhetorical skill or eloquence--indeed, you are supposed to avoid these things. You don't have to write footnotes (in fact, you shouldn't). It's something that any competent attorney can do. But the ICR's complaint is just wackiness through and through. Creationists appear to be no better at law than they are at science.
(By the way, here's an interesting civil procedure tidbit: the complaint seeks to allege causes of action under the Texas Constitution, but the defendants are being sued pursuant to Ex Parte Young. Under Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1980), a federal court has no supplemental jurisdiction to hear state constitutional claims in such an action.)
I was saddened to hear of the death of Rose Friedman today. I had the pleasure, though only very briefly, of meeting this wonderful woman. She and her husband were a great partnership for liberty. But after Milton's death a few years ago, she missed him terribly. It's nice to imagine that they might now be reunited.