Tag Archives: The American Conservative

“My Job In Psy-ops Is To Play With People’s Heads, To Get The Enemy To Behave The Way We Want Them To Behave.”

Michael Hastings at Rolling Stone:

The U.S. Army illegally ordered a team of soldiers specializing in “psychological operations” to manipulate visiting American senators into providing more troops and funding for the war, Rolling Stone has learned – and when an officer tried to stop the operation, he was railroaded by military investigators.

The orders came from the command of Lt. Gen. William Caldwell, a three-star general in charge of training Afghan troops – the linchpin of U.S. strategy in the war. Over a four-month period last year, a military cell devoted to what is known as “information operations” at Camp Eggers in Kabul was repeatedly pressured to target visiting senators and other VIPs who met with Caldwell. When the unit resisted the order, arguing that it violated U.S. laws prohibiting the use of propaganda against American citizens, it was subjected to a campaign of retaliation.

“My job in psy-ops is to play with people’s heads, to get the enemy to behave the way we want them to behave,” says Lt. Colonel Michael Holmes, the leader of the IO unit, who received an official reprimand after bucking orders. “I’m prohibited from doing that to our own people. When you ask me to try to use these skills on senators and congressman, you’re crossing a line.”

The list of targeted visitors was long, according to interviews with members of the IO team and internal documents obtained by Rolling Stone. Those singled out in the campaign included senators John McCain, Joe Lieberman, Jack Reed, Al Franken and Carl Levin; Rep. Steve Israel of the House Appropriations Committee; Adm. Mike Mullen of the Joint Chiefs of Staff; the Czech ambassador to Afghanistan; the German interior minister, and a host of influential think-tank analysts.

Garance Franke-Ruta at The Atlantic

Mark Joyella at Mediaite:

In a story breaking overnight that’s sure to explode on cable news through the day, a report in Rolling Stone suggests the U.S. Army deployed a a specialized “psychological operations” team to target Senators in the hopes of boosting funding for the war in Afghanistan. The effort also aimed to increase troop levels, according to the magazine.The magazine reports the operation was ordered by three-star general Lt. Gen. William Caldwell, who’s in charge of training forces for duty in Afghanistan. An officer who objected to the program tells Rolling Stone he was “harshly reprimanded” for resisting:

“My job in psyops is to play with people’s heads, to get the enemy to behave the way we want them to behave,” the officer, Lt. Colonel Michael Holmes, told Rolling Stone.

“I’m prohibited from doing that to our own people. When you ask me to try to use these skills on senators and congressman, you’re crossing a line,” he added.

Among those targeted were senators John McCain, Joe Lieberman, Jack Reed, Al Franken and Carl Levin, as well as Representative Steve Israel of the House Appropriations Committee, the magazine said.

Elspeth Reeve at The Atlantic:

Of course, there were no actual mind-control chips involved: the things Holmes and his team were ordered to do actually seem quite dull: researching senators’ voting records, finding their “hot-button issues,” silently sitting in on meetings, and tailoring presentations to the lawmakers’ interests. In other words, the stuff public affairs officers do all day. So what’s the difference between psy-ops and PR?

First of all, it’s illegal to use propaganda on Americans, thanks to a law passed in 1948 that was meant to prevent Soviet-style manipulation of citizens. Second, using soldiers trained in propaganda on elected representatives would seem to undermine the principle of civilian control of the military. Think about it: Is it ok to use company resources to investigate your boss? Third, according to documents provided by Holmes, his superiors reordered priorities so that working congressmen took “priority over all other duties”–presumably including trying to make the Taliban and Afghan civilians like us.

And Caldwell wanted more than the typical PR stuff: He wanted Holmes’ team to give him “deeper analysis of pressure points we could use to leverage the delegation for more funds.” Again, the general wanted to know what to “plant inside their heads.” As the military lawyer told Holmes, “[Public affairs] works on the hearts and minds of our own citizens and [information operations] works on the hearts and minds of the citizens of other nations. While the twain do occasionally intersect, such intersections, like violent contact during a soccer game, should be unintentional.”

Kelley Vlahos at The American Conservative:

To someone who has been writing about the military’s Massive Message Machine for a few years now, or as the military more politely puts it, Strategic Communications, a whopping $4.9 billion of our taxpayer money for winning hearts and minds here and abroad in 2009 alone, Michael Hastings’ latest piece, “Another Runaway General: Army Deploys Psy-Ops on U.S. Senators,” is no real surprise.

It could be almost funny, imagining our senators, delivered up to the Men in Fatigues upon landing in their CH-47 Chinook helicopters, like the hapless victims in The Cabinet of Dr. Caligari (1920) or the hilariously MST3k-lampooned Devil Doll (1964). I prefer The Stepford Wives analogy when writing about the lawmakers and think tankers who get all goofy-eyed after spending five minutes “in the field” on the generals’ turf. They come back home spouting things like, “timelines are dangerous,” “long hard slog,” and “political will to continue,” and start green lighting budgets and blocking measures to hasten the end of the war.

It might be funny if it weren’t so true. Hastings, the Rolling Stone writer who brought Gen. Stanley McChrystal down, writes that Gen. William Caldwell, who is in charge of training Afghan troops, demanded in 2009 that U.S military psy-ops be turned on visiting Senators and other “distinguished visitors” during routine CODELs (congressional delegations) to the warzone. Seems that the truth wasn’t good enough to convince the military’s paymasters that they deserved more money and time to fight it. Sadly, Democratic Sens. Carl Levin and Al Franken were among the “targets” for this mission, which, as the Army whistleblower who helped Hastings break the story concluded, clearly violated the law against propagandizing our own citizens. Consequently,  as I wrote about last year, both Levin and Franken fell down on the job when it came to resisting the push for the Afghan surge. In fact, it was immediately after one of these CODELs that the two senators softened their tone against the war policy.

Dave Schuler:

I don’t have a problem with military officers zealously advocating courses of action—that’s part of their job. That doesn’t extend to violations of Smith-Mundt, the U. S. law that defines the terms under which the U. S. government may engage in propaganda. If the allegations are true, it would certainly seem to me there may be a case here.

There appear to be quite a number of open questions. Does Smith-Mundt pertain to the military? Does it pertain to actions taken overseas? I believe there should be an investigation into this matter and, if it is found that the actions alleged in the article violate Smith-Mundt or other federal laws, the perpetrators should be prosecuted to the full extent of the law.

However, I find the story concerning for other reasons as well. I’ll defer to James on this but to my untutored eye the conduct that’s alleged in the article would seem to be an assault on civilian control of the military. Let me ask a question. Would it be appropriate for military officers to use the resources of an information operations unit against their higher-ups in the chain of command? That sounds like insubordination to me.

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Great Nation Or Greatest Nation? Or, This Blog Post Brought To You By The Letter “F.”

Rich Lowry at NRO (entire column):

When the likes of Marco Rubio, the new Republican senator from Florida, say this is the greatest country ever, sophisticated opinion-makers cluck and roll their eyes. What a noxious tea-party nostrum. How chauvinistic. What hubris.

Yet, what other countries deserve this designation? For the sake of convenience, start at 1648, when the Peace of Westphalia ratified the modern system of nation-states. And grade on power, prosperity and goodness.

Is Spain the greatest ever? It had a nice run a couple of hundred years ago based on plundering the New World of its gold and silver. By 1800, it was one of the poorest countries in Europe. Today, it teeters on bankruptcy.

Is France? Its model of centralizing monarchy in the 17th century was extremely influential, and admirable — if you like elaborate court ritual, religious persecution and expansionistic wars. It gave the world the template for modern ideological madness in the French Revolution and for the modern tyrant in Napoleon. After the debacle of World War II, it recovered to a power of middling rank. If there’s no doubting the greatness of the French, their history comes with the implicit admonition: “Do not try this at home.”

Germany? In the 18th and 19th centuries, it was a cultural jewel. And one of the most talented statesmen ever, Bismarck, forged a nation that became an industrial behemoth. It also had an illiberal heart. Germany today is an anchor of democratic Europe, but with a hellish black mark against it that will last for all time.

Russia? By the beginning of the 20th century, a decrepit autocracy sat atop a mass of misery. Then, things went south. The communists murdered and enslaved many millions across seven decades. Russia remains an important, if vastly diminished, power, governed by a prickly, grasping kleptocracy.

Britain? Getting warmer. It invented the rights that are the bedrock of liberal democracy. More than most European powers, it lived by Adam Smith’s formula for prosperity: “peace, easy taxes, and a tolerable administration of justice.” From a tiny island, it came to govern an enormous extent of the globe in a relatively benign colonialism. It was a bulwark against the dictatorships of the Continent, from Napoleon, to the Kaiser, to Hitler. And it spawned the countries that have made the English-speaking world a synonym for good governance and liberty: Canada, Australia, New Zealand, and America.

Which brings us to the U.S. We had the advantage of jumping off from the achievement of the British. We founded our nation upon self-evident truths about the rights of man, even if our conduct hasn’t always matched them. We pushed aside Spain and Mexico in muscling across the continent, but brought order and liberty in our wake. Our treatment of the Indians was appalling, but par for the course in the context of the time. It took centuries of mistreatment of blacks before we finally heeded our own ideals.

The positive side of the ledger, though, is immense: We got constitutional government to work on a scale no one had thought possible; made ourselves a haven of liberty for the world’s peoples; and created a fluid, open society. We amassed unbelievable wealth, and spread it widely. Internationally, we wielded our overwhelming military and industrial power as a benevolent hegemon. We led the coalitions against the ideological empires of the 20th century and protected the global commons. We remain the world’s sole superpower, looked to by most of the world as a leader distinctly better than any of the alternatives.

Our greatness is simply a fact. Only the churlish or malevolent can deny it, or even get irked at its assertion. When a Marco Rubio talks of the greatness of America, it’s not bumptious self-congratulation. Our greatness comes with the responsibility to preserve our traditional dynamism and status as a robust middle-class society. To paraphrase the Benjamin Franklin of lore, we have the greatest country ever — if we can keep it.

Bill Kristol at The Weekly Standard:

Over at NRO, you can read Rich Lowry’s engaging year-end column about America, “Yes, the Greatest Country Ever.”

The day after Rich’s column appeared, on January 1, President Obama asserted in his weekly address that “we’ve had the good fortune to grow up in the greatest nation on Earth.” Then, in case anyone missed it, Obama repeated eight sentences later that he’s confident we can “do what it takes to make sure America remains in the 21st century what it was the 20th: the greatest country in the world.”

And sources now tell us that Lowry’s been called to the White House this week for a secret meeting.

Meanwhile, we look forward to denunciations from the usual enlightened quarters of this vulgar expression of American chauvinism and boastful claim of American exceptionalism by an American president.

Greg Sargent:

The last thing you need is more proof of the mindlessness and vapidity of the right’s attack on Obama for allegedly not believing in “American exceptionalism.” But Bill Kristol’s latest rendition is really worth savoring, because it unwittingly shows what nonsense it all is.

Kristol has a post up making the case that Obama has finally caved to the right’s attacks and has grudgingly conceded America’s greatness. The evidence? Kristol notes that in his weekly address on Saturday, the President hailed America as “the greatest nation on earth,” and “the greatest country in the world.”

This, Kristol says, showcases the “new, revised Obama.”

It’s unclear whether Kristol is joking, but given the idiocy we keep hearing along these lines, it’s perfectly reasonable to assume he isn’t. So allow me to point out that Obama has been using these phrases for literally years now.

In his breakout speech at the 2004 Dem convention, Obama hailed the “greatness of our nation” and the “true genius of America.” And he’s repeatedly stated as president that we live in the greatest country evah. Way back in August 2009, Obama described America as “the greatest nation on Earth.” In October of 2009, Obama declared that “we live in the greatest country on Earth.”

In January of 2010, Obama described America as “the greatest nation in the world.” He called America the “greatest country on Earth” on September 25, again on September 29th, and still again on October 21st. And so on.

Jennifer Rubin:

Bill needs no defense from me, but let me explain the joke to Greg. It is not Obama who is the target of Bill’s humor, but the left and its disinclination to project American power and values. Bill, like many conservatives, has supported the president’s policy in Iraq and Afghanistan. He’s been quite generous in his praise of a number of Obama speeches. The point of the barb is to make clear that not even the liberal icon Obama adopts the left’s disdain for American exceptionalism, nor its desire to retreat from the war on Islamic terror. Conservatives, me included, are prone to marvel at the left’s propensity to sneer at George Bush’s formulation of American exceptionalism while remaining mute as their liberal hero does the same.

The point, you see, is not to discredit the president, but to discredit those that would pull him ever leftward on matters of national security. To the degree Obama sounds much like his predecessor and conducts a robust foreign policy (e.g. use of drones in Afghanistan, a continued presence in Iraq) conservatives will applaud and, candidly, take some glee in recognizing that a president cannot adopt a leftist world view and hope to successfully defend U.S. interests.

Paul Gottfried at The American Conservative:

Unfortunately, I can’t resist pointing out minicon stupidities, and the latest example of this problem came to my attention in a recent syndicated column by Rich Lowry. In what is intended to be a discourse on American exceptionalism, Lowry goes through the anti-democratic evils of continental countries and then gets to England, which is awarded a clean bill of health. England previewed our “liberal democracy,” practiced “benign colonialism,” and was in many ways a “jumping off” point to our “exceptional nation.” “It was a bulwark against the dictatorships of the Continent, from Napoleon, to the Kaiser, to Hitler.”

Let me point out some of what is wrong with such hyperbole. The English bear many of the same “black marks” that Lowry ascribes to continental countries, and as the descendant of Irish peasants, Lowry might recall at least some of England’s many misdeeds. English rule abroad was not always “benign colonialism,” and in the Boer War, which the Salisbury government launched against the Afrikaners to grab their land, the English practiced naked aggression and engaged in atrocities against their fellow Northern European Protestants, as opposed to such customary English victims as Highland Scots, Irish Catholics, and the inhabitants of Chinese coastal cities.

It is also ridiculous to see all English entanglement in wars against continental powers as driven by a democratic struggle against dictatorship. As an insular empire protected by a large navy, the English had an interest in keeping hegemonic powers from emerging on the continent and pursued this interest with whatever allies they could find. What the English typically practiced was Realpolitik, which meant siding with some undemocratic, feudal regimes against other more powerful states. During the Napoleonic wars the English allied themselves with a reactionary Russia against a much more progressive France, which abolished serfdom and proclaimed religious liberty wherever its armies went. English Tories feared the rise of Germany from the time of its unification not because they viewed it as a “dictatorship” but because it was becoming a continental powerhouse. Later, in order to defeat its rival, England pulled the U.S. into the First World War, thereby setting the stage for playing second fiddle to England’s American cousins.

Doug J:

There was a lot of chest-thumping, or weasel-whacking or monkey-strangling or what have you, about the awesomeness of the United States among the wingerati over the past few days. Rich Lowry declared that the United States is the best because we are the best, no one rocks as hard as we do, bitch.

Our greatness is simply a fact. Only the churlish or malevolent can deny it, or even get irked at its assertion.

Bill Kristol then gave Lowry some kind ironic boo-yah about the fact that Obama talked about how great the US is right after Lowry wrote his column.

The exchange was fairly typical of what passes for high-brow conservatism these days. And yet there are those who why conservatism has such little appeal for intellectually-inclined voters.

Andrew Sullivan:

Somehow Lowry fails to grasp why this kind of assertion is so, well, fatuous and irritating. Imagine that once a month or so, Michael Jordan called a press conference, confidently listed his achievements as a basketball player, and insisted, “My greatness is simply a fact.” He’d be correct: he was a spectacular basketball player, arguably the best in history. Same with Tiger Woods. Or Stephen Hawking. On the other hand, we’re put off when people announce their own greatness – experience has taught that they’re usually doing so because they’re a braggart, or a narcissist, or a bully. (In Rich Lowry’s case, it’s intellectual bullying – wielding the collective club of nationalism against genuine worries about America’s fiscal bankruptcy, academic decline, and economic stagnation).

So it goes when conservatives invoke the greatness of America. The rhetoric that follows is inevitably political. When Marco Rubio lauds the USA, we roll our eyes because we have not had our skepticism of politicians sugically removed: we understand that politicians pin on flag lapels and talk about the greatness of America because they’re calculating pols, not because they think more highly of the United States than the rest of us. Our eyes tend to roll when politicians kiss babies too. That isn’t because we object to the notion that babies are lovable – merely because most politicians aren’t. Especially when uttering fatuous platitudes.

Doug Mataconis:

Or, as DougJ at Balloon Juice put it, America Fuck Yeah.

I’ve really got to wonder what the purpose of stuff like this is. The GOP has been obsessed in recent years with the idea of national “greatness” and conservatives are quick to condemn and political leader who doesn’t make the appropriate statement about how the United States of America is the greatest country ever. It all strikes me as rather silly schoolyard boosterism. It doesn’t inform policy decisions, and it tends to lead to the rather dangerous idea of “My country, right or wrong.”

This is what passes for political insight from the right these days, apparently.

Rich Lowry and Glenn Loury at Bloggingheads

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Number 14… Number 14… Number 14

Heather Horn at The Atlantic with the round-up:

On Monday, Senate Minority Leader Mitch McConnell became the latest Republican to call for a reexamination of the Fourteenth Amendment and the issue of “birthright citizenship.” Senators Lindsey Graham and Jon Kyl have also recently spoken out against the policy of granting automatic citizenship to all born in the U.S., even if they are the children of illegal immigrants. The birthright citizenship issue, though, doesn’t split quite along party lines. In the ensuing debate, several conservatives have come out opposing the proposed revision. Some maintain, though, that the Republican senators have a point.

Alex Altman at Swampland at Time:

The relevant facet of the 14th Amendment, which ensures due process and equal protection, states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” While proponents of repeal say the language–specifically the phrase, “subject to the jurisdiction thereof”–is ambiguous, judicial precedent is stacked against them. That’s one reason why the notion of revisiting the citizenship clause may be more of a political gambit than a realistic proposal. Bills challenging the citizenship provision have been proposed multiple times in recent years without success–former Rep. Nathan Deal, who’s running for governor of Georgia, submitted such an idea last year, and Rep. Ron Paul did so in 2007 without success. “Anchor babies,” as critics of birthright citizenship have dubbed children born to illegal immigrants, have long been a subject of scorn for conservatives. But a constitutional amendment requires the backing of two-thirds of both chambers of Congress and ratification by 38 states–which is highly unlikely, to say the least.

It’s unclear how far the party is willing to push the issue, or whether conference members are on the same page. A GOP aide told the Washington Post’s Greg Sargent that “nobody is talking about an all out repeal of the 14th Amendment,” and that McConnell merely supported holding hearings to revisit the concept of birthright citizenship. But the topic has sparked a pitched battle in the Senate, as The Hill reports, and Senators like Graham and James Inhofe seem to have their minds made up.

A majority of Americans support Arizona’s new law, and in the short term a hard-line stance on illegal immigration may give Republicans a boost. As a long-term political strategy, however, attacking birthright citizenship is an easy way to alienate the nation’s largest and fastest-growing minority group. In one recent poll, 49% of respondents supported birthright citizenship, while 46% said the law should be tweaked. But that poll found nearly 80% of Latinos are in favor of the provision–a figure that’s surprising only because it wasn’t greater. Many conservatives have argued the GOP risks kneecapping itself with the Hispanic electorate. “If the Republican Party embraces ending birthright citizenship, then it will be assured losing Latino and ethnic voters — and presidential elections for the foreseeable future,” wrote Cesar Conda, former domestic policy adviser to Vice President Dick Cheney.

Mark Krikorian at The Corner:

Would it be cynical of me to think that McCain’s “little jerk” is just trying to burnish his tough-on-immigration bona fides?:

Sen. Lindsey Graham (R-S.C.) announced Wednesday night that he is considering introducing a constitutional amendment that would change existing law to no longer grant citizenship to the children of immigrants born in the United States.

Yeah, right. So the guy doesn’t want to do what’s necessary to actually stop illegal immigration, but he wants to make sure that the children born to all the illegals he helps bring here become U.S.-born illegal aliens? I’m afraid, though, that his rationale, whether he actually believes it or not, is in fact one shared by a lot of immigration hawks:

“People come here to have babies,” he said. “They come here to drop a child. It’s called ‘drop and leave.’ To have a child in America, they cross the border, they go to the emergency room, have a child, and that child’s automatically an American citizen. That shouldn’t be the case. That attracts people here for all the wrong reasons.”

I don’t like illegals having U.S.-citizen kids any more than anyone else, but there’s no evidence suggesting that this “drop and leave” stuff is true — anything’s possible, I suppose, but it’s just an assertion at this point. My own sense is that most illegal alien women who have kids here (accounting for nearly 10 percent of all children born in the U.S. each year) didn’t come for that purpose; they came for jobs or to join relatives, and one thing led to another, birds-and-bees style, and they had kids. There are no doubt some people who dash across the border illegally to have kids, but they just can’t amount to a large share of the problem. Nor does the problem of “birth tourism” require a change in the Constitution — we just need to permit (and require) our consular officers to reject visa applications from pregnant women, inviting them to re-apply once they’ve given birth in their own countries.

The phenomenon of citizen-children of illegal aliens is a symptom of too much illegal immigration, not a cause. Comprehensive immigration enforcement — abroad, at the borders, and in the interior — plus deep, permanent cuts in future legal immigration (which is the catalyst for illegal immigration) are the solution, because when we have less illegal immigration, we’ll have fewer kids born to illegals and the problem goes away. I’m afraid that if the citizenship issue makes progress, the libertarians will co-opt us, backing the citizenship change as a way of diverting attention from real immigration control.

Krikorian responds to e-mails

Daniel Foster at The Corner:

When I first read this anonymous Huffington Post story suggesting that Sen. Jon Kyl (R., Ariz.) had signed on to the wholesale repeal of the 14th Amendment, I thought it was a gross mis-characterization, sloppy at best, a bold-faced lie at worst:

On Sunday, Sen. John Kyl (R-Ariz.) became the highest-ranking Republican to call for the repeal of the 14th Amendment to the U.S. Constitution. Appearing on CBS’ Face the Nation, Kyl said that he opposes allowing children of undocumented immigrants to be granted U.S. citizenship and wants Congress to hold hearings on the matter.

But it turns out the blogger was just aping CBS News’s write-up of Kyl’s appearance on Face the Nation. That post contains the same non-sense about Kyl wanting to repeal the 14th Amendment:

Sen. John Kyl, R-Ariz., said today that Congress should hold hearings to look into denying citizenship to illegal aliens’ children born in the United States, as the fight over immigration widens into the explosive “birthright” issue.

Kyl told CBS’ “Face the Nation” that he supports a call by fellow Sen. Lindsey Graham, R-S.C., to introduce a new amendment to repeal the 14th Amendment of the Constitution.

This is absurd. Here’s the text of the 14th Amendment, in full:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

[…]

What Kyl, Graham and others have tentatively embraced is an amendment that would clarify the first sentence of section 1 — and indeed, there is a credible argument that “subject to the jurisdiction thereof” already excludes individuals who are here illegally, meaning that one might be able to end birthright citizenship for the children of illegal aliens by statutory as opposed to constitutional action.

Neither Kyl nor Graham,  nor any other elected Republican I know of, has talked about repealing the Due Process or Equal Protection clauses — which are prime constitutional underwriters of so much legislation favored by progressives. Nor, of course, has anybody talked about reestablishing the 3/5 Compromise or limiting suffrage for African-Americans.

Michael Brendan Dougherty at The American Conservative:

Of course, Graham was one of the most enthusiastic supporters of Comprehensive Immigration Reform in 2007. Back then dropped babies weren’t his concerns, rather he wanted to “tell the bigots to shut-up.”

There is no good reason for immigration restrictionists to soften up to Graham now. Overturning birthright citizenship doesn’t bring order or justice to America’s decades long problem of illegal immigration. There may be good reasons to think that overturning it would do little reverse illegal immigration, and much to prevent assimilation.

In any case, Graham’s re-framing of the immigration issue in one of the silliest and most counter-productive possible and his chosen method signals that he is not serious. Constitutional amendments are almost impossible to pass, especially in this age of gridlock and ideological sorting of parties. In other words, this is a stunt, just as his former denunciation of “bigots” was a stunt.

John Sides:

Everyone knows this controversy by now. Here is the bill. Here is Mitch McConnell yesterday. It’s highly unlikely that this push to end birthright citizenship will go anywhere, but it’s worth probing public opinion on this question and on an underlying question: what should be the boundaries of the American national community?

Some quick searching did not turn up many polls on birthright citizenship per se. Rasmussen recently asked whether children of illegal immigrants should be citizens. In their sample, 58% of respondents said no, and 33% said yes. It would be interesting to know whether this is an objection to birthright citizenship per se or essentially an objection to illegal immigration.

Now to the broader question. In 2004, the General Social Survey asked a battery of questions on potential qualifications for being American. This was the preamble:

Some people say the following things are important for being truly American. Others say they are not important. How important do you think each of the following is…

Here is the average importance that respondents accorded to each qualification.

americanqualifications.png

On average, respondents saw all of these qualifications are more important than unimportant. However, they also saw some qualifications as more important than others. In general, the more important qualifications reflect things that an immigrant can achieve: speaking English, becoming naturalized, respecting American institutions and laws. More exclusive criteria, and ones that immigrants cannot change (or change easily), are less important: being born in America, being Christian, or having American ancestry.

How might we interpret these results in light of the debate over birthright citizenship? Here are two possibilities.

First, Lindsey Graham and other opponents of birthright citizenship could take heart. Look, they might say, the public doesn’t even think being born in America is as important as other things. Given the importance accorded to American citizenship, we could make native-born children of immigrants go through the naturalization process and Americans would still see them as American. No harm done.

Second, some might object to that interpretation as a violation of the “spirit” underlying American public opinion. Americans’ sense of their national community is more inclusive than exclusive. Shifting American law in a more exclusive direction is not in this spirit. Why not recognize that more important than birthplace is speaking English, loyalty to the United States, and respect for its laws? And why not take heart that immigrants do learn English and are no less patriotic than native-born Americans?

Jill Lawrence at Politics Daily:

Senate Republican Leader Mitch McConnell is playing down his party’s new scrutiny of the 14th Amendment, which among other things confers U.S. citizenship on anyone born in the United States. McConnell on Thursday portrayed calls for hearings on the amendment as simply an attempt to examine what he calls the “unseemly” business of foreigners showing up just in time to have their babies, then going back home.

“I’m not aware of anybody who’s come out for altering the 14th Amendment,” McConnell said at a breakfast sponsored by the Christian Science Monitor. He said the push for hearings stems from a Washington Post story about foreign businesses that supply visas to expectant mothers. “This is the kind of thing that irritates Americans quite a lot,” he said. “I don’t think having hearings on an obvious unseemly business is a threat to the 14th Amendment. What’s wrong with looking into this? The Post did.”

McConnell added that “the remedy for it is not yet clear. But I am not advocating revisiting the 14th Amendment and I don’t think any others have. I think the view is, why don’t we take a look at this?”

UPDATE: Doug Mataconis

UPDATE #2: Via Andrew Sullivan,

Will Wilkinson

Tim Lee

More Wilkinson

John J. Miller at The Corner

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“You Know, If I’d Wanted Dick Cheney As President I Would Have Just Voted For Him.”

Ellen Nakashima at WaPo:

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau’s authority. “It’ll be faster and easier to get the data,” said Baker, who practices national security and surveillance law. “And for some Internet providers, it’ll mean giving a lot more information to the FBI in response to an NSL.”

Julian Sanchez at The American Prospect:

At issue is the scope of the Federal Bureau of Investigation’s power to obtain information from “electronic communications service providers” using National Security Letters (NLS), which compel private companies to allow government access to communication records without a court order. The administration wants to add four words — “electronic communication transactional records” — to Section 2709 of the Electronic Communications Privacy Act, which spells out the types of communications data that can be obtained with an NSL. Yet those four little words would make a huge difference, potentially allowing investigators to draw detailed road maps of the online activity of citizens not even suspected of any connection to terrorism.

In their original form, NSLs were extremely narrow tools designed to allow federal investigators to obtain very basic telephone records (name, address, length of service, calls placed and received) that could be linked by “specific and articulable facts” to persons suspected of being terrorists or foreign spies. In 1993, Congress amended the statute to clarify that NSLs could be issued to electronic information service providers as well as traditional phone companies. But wary of the potential for misuse of what the House Judiciary Committee called this “extraordinary device” in a world of rapidly changing technology, Congress placed tight limits on the types of records that could be obtained, making clear that “new applications” of NSLs would be “disfavored.”

The administration is presenting this change as a mere clarification meant to resolve legal ambiguity — as though Congress had simply misplaced a semicolon. Yet the Bush-era Office of Legal Counsel already rejected that argument in a 2008 opinion, concluding that the FBI had for years misread the “straightforward” language of the statute. And clarity is certainly needed, as it is hard to know just what falls under “categories of information parallel to subscriber information and toll billing records.” The standard reference for lawyers in this sphere, David Kris’ National Security Investigations and Prosecutions, simply notes that the scope of NSLs as applied to online activity is unclear. Even the Justice Department seems uncertain. In a 2001 response to congressional inquiries about the effect of the newly enacted PATRIOT Act, DOJ told Congress that “reasonable minds may differ” as to where the line should be drawn between addressing information equivalent to toll billing records and “content” requiring a search warrant.

Congress would be wise to specify in greater detail just what are the online equivalents of “toll billing records.” But a blanket power to demand “transactional information” without a court order would plainly expose a vast range of far more detailed and sensitive information than those old toll records ever provided.

Consider that the definition of “electronic communications service providers” doesn’t just include ISPs and phone companies like Verizon or Comcast. It covers a huge range of online services, from search engines and Webmail hosts like Google, to social-networking and dating sites like Facebook and Match.com to news and activism sites like RedState and Daily Kos to online vendors like Amazon and Ebay, and possibly even cafes like Starbucks that provide WiFi access to customers. And “transactional records” potentially covers a far broader range of data than logs of e-mail addresses or websites visited, arguably extending to highly granular records of the data packets sent and received by individual users.

As the Electronic Frontier Foundation has argued, such broad authority would not only raise enormous privacy concerns but have profound implications for First Amendment speech and association interests. Consider, for instance, the implications of a request for logs revealing every visitor to a political site such as Indymedia. The constitutionally protected right to anonymous speech would be gutted for all but the most technically savvy users if chat-forum participants and blog authors could be identified at the discretion of the FBI, without the involvement of a judge.

Marc Ambinder:

Now, there’s a good faith case to be made that the FBI ought to have this authority. After all, the bad guys don’t use telephones to talk to each other any more. But the FBI has abused the NSL authority, essentially fabricating pretexts for sending NSLs to thousands of people. Since the NSL authority was expanded by the PATRIOT Act, three separate OIG investigations have found abuses that rise above the level of incidental misuse of power. The FBI has excuses: it’s the databases. It’s the urgency of terrorism investigations. It’s the lack of clarity in the language.

The urgency factor is a good excuse for the FBI to have the authority, but not to misuse it. NSLs are issued without prior approval from a judge. They’re now part of the standard anti-terrorism investigatory toolkit. They’re needed.

Democrats on the Judiciary and Intelligence committees are skeptical of the request to change the statute for precisely these reasons, and one senior aide noted that the language was met with some skepticism by Congressional staff who’ve grown wary of FBI excuses for overreach.  Then again, it is always hard for members of Congress to say no to something that the FBI claims is vital for its counterterrorism efforts.

There is a compromise here: the FBI can subject its NSL issuances to post-facto review from judges, who can decide whether the FBI’s pretexts are sufficient. The FBI doesn’t need to get a judge’s permission to issue an NSL and the internet provider can’t wait until the judicial review kicks in. This way, the FBI can get what it needs and there’s a check on that power.

But this compromise won’t work. The FBI issues tens of thousands of NSL requests per year, most of them for telephone records and other information, like credit reports. There’s no way a judge can individually approve, even in retrospect, tens of thousands of requests without significantly adding to already overflowing caseloads.

So, in the end, as with almost every issue about national security information, the question is one of trust. Can the American people, through Congress, trust the FBI to use this authority properly?  Maybe the administration and the FBI should answer this question: given past abuses, what steps will you take to ensure that this authority isn’t abused?

Kelley Vlahos at The American Conservative:

It seems so perverse and creepy, considering that WaPo reported only last week in its “Top Security America” series that the federal government’s behemoth intelligence/security apparatus has way more data than it can possibly analyze effectively. It’s  disheartening that the administration admits it’s targeting those hold-out Internet service providers that have been heretofore unwilling to play ball with the feds. In other words, private companies that have, so far, resisted the government’s push for greater authority and control over the Net.

Senior administration officials said the proposal was prompted by a desire to overcome concerns and resistance from Internet and other companies that the existing statute did not allow them to provide such data without a court-approved order…

To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is “incredibly bold, given the amount of electronic data the government is already getting,” said Michelle Richardson, American Civil Liberties Union legislative counsel.

I guess it’s safe to say now that civil libertarians have been thoroughly hosed (in other words, hoodwinked, flimflammed, bamboozled, duped, chiseled and burned) by Barack “the constitutional law professor” Obama. The question remains, how far will he go?

James Joyner:

The 4th Amendment’s requirement that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seize” is really a nuisance, the Obama administration argues.

[…]

I understand any administration’s or agency’s desire to accumulate more power — after all, they’re decent folk who just want what’s best for the country.  But I don’t get how this passes judicial scrutiny.

While I’ve got a strong libertarian streak and am staunchly protective of our rights under the Constitution, I’m not an absolutist.   Even our most fundamental liberties, such as freedom of speech and assembly, have to be balanced against the rights of others and the need for public safety.

During the Bush administration, I defended the idea that the government ought to be able to conduct data mining operations on mass communications with persons of interest overseas.   My rationale was that this wasn’t a “search” in any meaningful sense because it was just computer algorithms sifting through impersonal information, that there would be no way to show probable cause ahead of time, the targets were overseas operatives, and that the purpose was intelligence gathering rather than prosecution.   So, the harm to individual liberty was small and mostly theoretical while the potential harm to society from not gathering the information was substantial.

But this is something quite different:  Specific searches of activities carried on by specific American citizens domestically.   Further, it’s not like the records are going anywhere, making seeking out a magistrate and getting a proper warrant a minor burden.   So there’s no reason that a warrant can’t be obtained and no additional risk to society by going through the process required by the Constitution outside the ones intended by the Framers.

Matthew Yglesias:

Of course, checking out someone’s browser history could be very useful in a terrorism investigation. But if I had some kind of cause—probable cause, let’s say—to suspect someone of involvement in terrorism, I could just get a warrant. If I want to see whether my wife has a secret Match.com account, by contrast, I’m going to need some kind of authority to compel private companies to divulge this information without me needing to explain myself to a judge.

FBI personnel are, I’m sure, overwhelmingly decent and honorable people whose subjective understanding is that they want to use these enhanced powers for legitimate purposes. But who among us, when being honest, has never misused work resources a bit for personal purposes? Everyone slacks off on the job. Everyone has moments of prurient interest in the lives of other people. Taking the gloves off, surveillance-wise, is much more likely to lead to abusive behavior than to super-awesome counterterrorism operations.

Emptywheel at Firedoglake:

Make no mistake. This is one of the most important pieces of civil liberties news in a long time. The Obama Administration is asking Congress to sanction the collection of internet records without a warrant–the kind of shit they used to do without a warrant, until people expressed their opposition.

But then Democrats took over and now they want legal sanction and now–Voila, a request that presumably provides cover.

Kevin Drum:

I forget. How many NSLs do the FBI and other federal agencies already send out every year? 30,000? 50,000? What’s it up to now? Whatever it is, I guess it’s still not enough. That business of getting approval from a judge is just so annoying, after all.

You know, if I’d wanted Dick Cheney as president I would have just voted for him.

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Filed under GWOT, Political Figures, Surveillance, Technology

You Already Know The Words To That Old Janis Joplin Song

David Boaz at Reason:

For many libertarians, “the road to serfdom” is not just the title of a great book but also the window through which they see the world. We’re losing our freedom, year after year, they think. They (we) quote Thomas Jefferson: “The natural progress of things is for liberty to yield and government to gain ground.” We read books with titles like Freedom in Chains, Lost Rights, The Rise of Federal Control over the Lives of Ordinary Americans, and yes, The Road to Serfdom.

The Cato Institute’s boilerplate description of itself used to include the line, “Since [the American] revolution, civil and economic liberties have been eroded.” Until Clarence Thomas, then chairman of the Equal Employment Opportunity Commission, gave a speech at Cato and pointed out to us that it didn’t seem quite that way to black people.

And he was right. American public policy has changed in many ways since the American Revolution, sometimes in a libertarian direction, sometimes not.

[…]

Has there ever been a golden age of liberty? No, and there never will be. There will always be people who want to live their lives in peace, and there will always be people who want to exploit them or impose their own ideas on others. If we look at the long term—from a past that includes despotism, feudalism, absolutism, fascism, and communism—we’re clearly better off. When we look at our own country’s history—contrasting 2010 with 1776 or 1910 or 1950 or whatever—the story is less clear. We suffer under a lot of regulations and restrictions that our ancestors didn’t face.

But in 1776 black Americans were held in chattel slavery, and married women had no legal existence except as agents of their husbands. In 1910 and even 1950, blacks still suffered under the legal bonds of Jim Crow—and we all faced confiscatory tax rates throughout the postwar period.

I am particularly struck by libertarians and conservatives who celebrate the freedom of early America, and deplore our decline from those halcyon days, without bothering to mention the existence of slavery. Take R. Emmett Tyrrell, Jr., longtime editor of the American Spectator. In Policy Review (Summer 1987, not online), he wrote:

Let us flee to a favored utopia. For me that would be the late 18th Century but with air conditioning….With both feet firmly planted on the soil of my American domain, and young American flag fluttering above, tobacco in the field, I would relish the freedom.

I take it Mr. Tyrrell dreams of being a slave-owner. Because as he certainly knows, most of the people in those tobacco fields were slaves.

Take a more recent example, from a libertarian. Jacob Hornberger of the Future of Freedom Foundation writes about the decline of freedom in America:

First of all, let’s talk about the economic system that existed in the United States from the inception of the nation to the latter part of the 19th century. The principles are simple to enumerate: No income taxation (except during the Civil War), Social Security, Medicare, Medicaid, welfare, economic regulations, licensure laws, drug laws, immigration controls, or coercive transfer programs, such as farm subsidies and education grants.

There was no federal department of labor, agriculture, commerce, education, energy, health and human services, or homeland security.

Then he writes:

Why did early Americans consider themselves free? The answer is rooted in the principles enunciated in the Declaration of Independence. As Thomas Jefferson observed in that document, people have been endowed by their Creator with certain fundamental and inherent rights. These include, but are certainly not limited to, the rights to life, liberty, and the pursuit of happiness.

But wait. Did “early Americans consider themselves free”? White Americans probably did. But what about black Americans, and especially the 90 percent of black Americans who were slaves? Slaves made up about 19 percent of the American population from 1790 to 1810, dropping to 14 percent by 1860. (In that period the number of slaves grew from 700,000 to about 4 million, but the rest of the population was growing even more rapidly.) Did Mr. Hornberger really forget that 4 million Americans were held in bondage when he waxed eloquent about how free America was until the late 19th century? I know he isn’t indifferent to the crime of slavery. But too many of us who extol the Founders and deplore the growth of the American state forget that that state held millions of people in chains. (I note that I’m not concerned here with self-proclaimed libertarians who join neo-Confederate organizations or claim that southerners established a new country and fought a devastating war for some reason other than the slavery on which their social and economic system rested; I just want to address libertarians who hate slavery but seem to overlook its magnitude in their historical analysis.)

Will Wilkinson:

What Boaz calls “thoughtless and ahistorical exhortations of our glorious libertarian past” is a central element of the fusionist conception of traditional American identity. But it’s just wrong. I call the syndrome of questionable conservative cultural assumptions and habits of thought that continue to pervade the libertarian movement the “fusionist hangover.” I say it’s time to sober up.

Eugene Volokh

Doug Mataconis at Below The Beltway:

Does that mean that the infringements of liberty and encroachment of the state that we see today is acceptable ? Of course not, but it does mean that we need to recognize that the idyllic American past never really existed and that the fight for liberty is a fight for the future, not the dead past.

Roy Edroso:

at Reason David Boaz suggests (albeit gently) that maybe America wasn’t more free, in the way libertarians like to think about it, back when it was full of slaves. The Perfesser reads Boaz’ piece, and is much more concerned with the tragic loss of American liberties under Jimmy Carter.

Also funny: the Hit & Run commenters to the story. I especially liked the guy who says the Donner Party was “perfectly libertarian” because “they were free to make a bad decision, made it, and suffered the consequences.” I couldn’t have put it better myself!

Mori Dinauer at Tapped:

Boaz points out the obvious omissions to this false nostalgia, women and slaves, and wisely asks of his fellow libertarians to have a little historical perspective: “Libertarians have not opposed those appeals for freedom, but too often we (or our forebears) paid too little attention to them. And one of the ways we do that is by saying ‘Americans used to be free, but now we’re not’ — which is a historical argument that doesn’t ring true to an awful lot of Jewish, black, female, and gay Americans.” It’s all well and good to have a conversation about whether taxation and the federal bureaucracy are infringing on freedom. But compared to the struggle to simply gain equal recognition as human beings — there’s simply no contest.

Jacob Hornberger at Reason:

Boaz raises another point that needs addressing: He attempts to diminish the significance of what our American forebears achieved.

It is true that the principles of liberty on which our ancestors founded the U.S. government were not applied to everyone, especially slaves; and there were, of course, other exceptions and infringements on freedom, such as tariffs and denying women the right to vote.

But should those exceptions and infringements prevent us from appreciating and honoring the fact that our ancestors brought into existence the freest, most prosperous, and most charitable society in history?

I don’t think so. I believe that it is impossible to overstate the significance of what our American ancestors accomplished in terms of a free society.

Let’s consider, say, the year 1880. Here was a society in which people were free to keep everything they earned, because there was no income tax. They were also free to decide what to do with their own money—spend it, save it, invest it, donate it, or whatever. People were generally free to engage in occupations and professions without a license or permit. There were few federal economic regulations and regulatory agencies. No Social Security, Medicare, Medicaid, welfare, bailouts, or so-called stimulus plans. No IRS. No Departments of Education, Energy, Agriculture, Commerce, and Labor. No EPA and OSHA. No Federal Reserve. No drug laws. Few systems of public schooling. No immigration controls. No federal minimum-wage laws or price controls. A monetary system based on gold and silver coins rather than paper money. No slavery. No CIA. No FBI. No torture or cruel or unusual punishments. No renditions. No overseas military empire. No military-industrial complex.

As a libertarian, as far as I’m concerned, that’s a society that is pretty darned golden.

Will Wilkinson responds:

Nope. Sorry.

How about the female half of the population? By 1880 coverture laws, which basically denied married women any meaningful property rights, were still in place in many states. (Coverture laws persisted in some states until the 1920s.) And there were  plenty of further paternalistic regulations on the sort of work women were allowed to undertake. Of course, women in 1880 had almost no meaningful rights to political participation, ensuring that they were unable to demand recognition and protection of their basic liberty rights through the political system.

Slavery was gone in 1880, but systematic state-enforced racial apartheid was going strong. The economic and political rights of blacks were severely curtailed under the various antebellum state Black Codes and then under the Jim Crow laws. What formal rights Southern blacks did have were often denied in fact by extralegal enforcement of racist norms by lynch mobs and other campaigns of terror.

By 1880, most of the the U.S.’s imperialist efforts to secure North American territory against the claims of competing European imperial powers were complete. But the government’s campaign of murder, theft, and segregation against native populations continued.

One could go on and on in this vein in gruesome detail. But this is enough to establish the point: 1880’s America was a society in which well more than half the population was systematically and often brutally denied basic liberty rights. If that’s golden, I’d hate to see bronze.

It’s just plain wrongheaded to cast the libertarian project as the project of restoring lost liberties. Most people never had the liberties backward-looking libertarians would like to restore. I know the rhetoric of restoration can be very seductive, especially in a country unusually full (for a wealthy liberal democracy) of patriotic traditionalists. But restoration is a conservative project and liberty is a fundamentally progressive cause.

Boaz responds at Cato:

I am a great admirer of the Founders, as I write on many occasions. When I talk about the progress we’ve made in expanding freedom for blacks, women, gays, and other once-excluded groups of people, I often say that we have “extended the promises of the Declaration of Independence — life, liberty, and the pursuit of happiness — to more and more people.” I love and respect those promises, I appreciate the extent to which the Founders made good on them immediately, and I am glad that they have indeed been extended.

I share Hornberger’s commitment to a world with no income tax, no alphabet soup agencies, no central banking, no drug laws, and so on. I’m just not sure that the world of 1880 — much less the world of 1850 — is actually more free, on balance, for Americans as a whole, than today’s world. But that’s a reasonable argument, and I am happy to engage Hornberger and others in it.

Of course, the world is full of unreasonable arguments, too. In case anyone’s been reading some of them in the Reason comments or elsewhere on the Web, let me make just a few comments: I did not “attack” or “malign” Jacob Hornberger; I criticized an article he wrote. In fact, I took pains to call him one of the “libertarians who hate slavery” in distinction to some self-styled libertarians who sound like neo-Confederates. I did not say that “we have to accept” the Civil War, anti-discrimination laws, the income tax, or anything else as the price of abolishing slavery; I just said that we shouldn’t overlook the crime of slavery when we write paeans to 19th-century freedom, and that on the whole we may very well be freer today than in antebellum America. I did not say that “it was necessary to reduce everyone’s freedom drastically before we can morally allow anyone to have more freedom than another.” Here’s a tip: If you’re shocked by what someone says my article said, please read the article.

OK, that’s all for this topic. I have a D.C. power-elite meeting to go to, and then a Georgetown cocktail party.

Arnold Kling:

I would rather live with the group-status configurations that we have today than with those that prevailed in 1880. For that matter, I would rather live with the plumbing and dentistry that we have today than that which prevailed in 1880. But it’s a swindle to suggest that if we had a libertarian polity we would be back in the days of Jim Crow or women’s subservience. Just as it is a swindle to suggest that if we had a libertarian polity we would be back to using outhouses and having our teeth pulled without anesthetic.

If what you really, really care about are group-status issues, and you really, really think that those battles should be fought politically rather than culturally, and if you are really, really scared of where you think some older Americans stand on those group-status issues, then you can end up where Will Wilkinson is–deeply frightened of the Tea Party movement in spite of its libertarian focus. In that case, your plan is to slip something into the ruling intellectuals’ drink to make them amenable to your free-market seductions.

Wilkinson responds to Kling:

What I really, really care about is liberty. If the culture and the law denies liberty to some groups, then I think we ought to fight culturally and politically to win equal freedom for the members of those groups. If people have been denied liberty on the basis of group membership, caring about liberty then entails caring about the “group status issues” standing behind historical oppression.

I am not scared of the fact that older Americans are more racist, sexist, and homophobic that younger Americans. I regard this as a hopeful sign that historic inequalities in status and freedom are on their way out. And I’m not frightened of the Tea Party movement (which is not especially old.) In fact, I hope it helps deliver divided government by helping Republicans win a bunch of seats. I just don’t think it’s very substantively libertarian. It is a populist movement centered on a certain conservative conception of traditional American identity. Libertarian rhetoric is definitely part of that, but rhetoric is rhetoric.

By contrasting the Tea Party with “ruling intellectuals,” Arnold seems to recognize that it is as a populist movement, and he seems to prefer it for that reason. But, contrary to what Arnold implies, a distaste for conservative identity politics and a disinclination to see much real libertarian potential in the Tea Party does not leave the libertarian with no alternative but to “slip something into the ruling intellectuals’ drink to make them amenable to your free-market seductions.” One thing a libertarian might do is to publicly set forth persuasive arguments that over time shifts the balance of both elite and popular opinion. Why Arnold thinks that straightforward persuasion is possible only through some kind of subterfuge or seduction eludes me.

It is true, though, that you’re more likely to be taken seriously by “ruling intellectuals,” and lots of other people besides, if you acknowledge that the rights and liberties of women and historically persecuted minorities really do count. And rightly so. But I have the sense that Arnold thinks that this is not rightly so, and that a libertarian would only acknowledge this sort of “group status issue” strategically, as a way of sucking up to elites so that they will be more likely to listen to your free-market ideas. Please tell me I’m wrong Arnold.

John Holbo:

Obviously Kling and Hornberger could not have done a better job of proving Boaz’ original point. It’s tempting to accuse them of just not caring about liberty for anyone except white men. How else could they miss this stuff? But I doubt that’s it. (Anyway, aren’t they Jewish? It’s hard for me to imagine men named Kling and Hornberger seriously believe they, personally, would be made more free by being transported back to the late 19th Century.) It seems to me the most probable explanation of this truly bizarre blind spot – it really is bizarre and there’s no other word for it – is a sort of strange entrapment in the conservative ‘restoration’ narrative, but perhaps induced by Hayekian rather than conservative rhetoric. If the 20th Century was the Road To Serfdom, it can hardly have been a long march to increased freedom. If progressives and liberals are the authoritarian enemy, it can hardly be that their victories have, on the whole, made us more free. Since the 20th Century was when the bad stuff really got going, how can it NOT be appropriate to be thoroughly nostalgic for the 1880’s as a Lost Golden Age?

I guess I’ll leave it at that. Libertarians really ought to know better than to try to argue against the utterly obvious points Boaz made in that post. That’s just basic intellectual hygiene, surely.

Orestes Brownson at FrumForm:

Fair enough; one can easily see that ending slavery certainly ought to have been a libertarian end.  However, it was accomplished with stunningly anti-libertarian means (not that I’m complaining; I’m not a libertarian), and by a political coalition — the Republican coalition — that held no other libertarian ends.

Look, the Republican party was anti-free trade, for “corporate welfare” to railroads, for a national bank, for expansive executive powers, and wanted to use the federal government’s powers to ban marriages not between one man and one woman during the polygamy controversy.  Once the Civil War was over, they pretty much got what they wanted.

So, some liberties and alleged liberties went by the wayside, to create a greater liberty.  ”A new birth of freedom,” even.  But what I don’t see among a lot of libertarians today is the same willingness to make tactical compromises to accomplish their greater ends.

Mark Kleiman:

The main occupation of the U.S. Army between the end of the Civil War and the beginning of the Spanish-American war was “Indian fighting,” or, as we call it today, “ethnic cleansing.” Of course Wilkinson blames it all on “the government,” as if much of the work hadn’t been done by free individuals exercising their right to keep and bear arms in defense of the private property they were engaged in stealing.

But even if we look only at heterosexual males of European descent, and even if we agree to treasure such rights as the right to grow up without schooling and to be free of employment discrimination against eight-year-olds, the right to consume adulterated food and drugs, and the right to starve to death if incapacitated from earning a living by misfortune, disease, or old age, in one respect the 1880s were much less free than, say, the 1950s. In 1880 any attempt to form a labor union was treated by the courts as a criminal conspiracy. It was also likely to be met with extra-legal violence by the Pinkertons (and sometimes the national guard). Today, however, the right of workers to organize is an internationally-recognized human right (except in El Salvador and Libertarianland).

In practice, the right to unionize has been under siege from union-busing consultants, aided by capital mobility and a complaisant NLRB. But even post-Reagan, American workers remain free, in principle, to try to bargain collectively with their employers. This is not, of course, a right that libertarians cherish; Brink Lindsey lists the collapse of private-sector unions as a gain for liberty. But the utter helplessness of a railway worker, textile operator, or coal miner of the 1880s (who enjoyed, thanks the the “fellow sevant” doctrine, the right to be injured at work without receiving compensation) in the face of the tyranny of the boss and the foreman is not a condition to which all of us aspire to return.

Daniel McCarthy at The American Conservative:

Which model provides a better starting point? Should a libertarian prefer a decentralized republic along broadly Jeffersonian lines, but without slavery and government discrimination (though this may mean tolerating private discrimination) or a large and centralized rights-enforcing government akin to the New Deal state but with an emphasis on personal liberties instead of redistribution? And of these two models, is one more inclined than the other to decay into its illiberal form? That is, would slavery or segregation re-emerge in a restored Jeffersonian republic more readily than redistribution and other evils would arise in a purified New Deal state?

It seems to me that the tutelary ambit of the modern progressive state logically inclines toward providing for the basic material necessities of its wards as well as for the protection of their rights, and to ensure provision of needs and protection of rights a great educational apparatus may be desirable. The freedom of the tutelary state is the freedom of a free-range dairy cow: in exchange for care and protection, you pay your taxes and may frolic in the fields as much as you please. It’s a timid sort of freedom, but it is freedom of a kind.

An alternative based on the older American tradition, by contrast, need not logically lead to a slave-state; indeed, most of the Founders recognized that slavery was inconsistent with the principles of their system. That system, even in its most benign form, would not be purely libertarian, of course: there too state schools would be desired to inculcate proper values into republican citizens. Private discrimination would be permissible, and if states or localities adopted unfair or unjust laws, one would have little recourse to federal remedies. But you could move to a different jurisdiction more in keeping with your ideas of liberty. It’s an uneven but robust freedom.

This is what libertarians who laud the old America have in mind. Why slander them as being ignorant of slavery, when liberaltarians do not want to be slandered as social democrats? If the socio-political order that libertarians like Hornberger desire really does naturally incline toward the sorts of injustices Boaz names, then make that case and argue against the model on those grounds. But I don’t think Boaz even believes that, let alone that he can present a convincing argument for it. On the other hand, those who believe that the modern state naturally tilts toward social democracy or worse have frequently and cogently made their case –not least in that “great book” Boaz mentions in his first paragraph, The Road to Serfdom.

Jason Kuznicki at The League:

We can only think to ask such a question if we radically discount the experiences of nearly all other people in society. And this violates one of the fundamental formulations of libertarian political thought, the law of equal freedom:

Every man has freedom to do all that he wills, provided he infringes not the equal freedom of any other man.

Language issues aside, under a standard like this, it’s impossible to justify, for example, the fact that marital rape was never a crime in the nineteenth century. Or that women surrendered all of their property, present and future, to their husbands at marriage. Or that women at marriage couldn’t have a legal place of residence separate from their husbands. Or that children were presumed in law to belong solely to the husband, and never to the wife. Or that (contra Bryan Caplan) contracts between husband and wife were typically invalid under law, so one couldn’t escape the shackles by contracting around them with a well-intentioned husband. Or that cohabitation without marriage — another attempt to escape the bind — was plain illegal. Or that divorce was exceptionally hard to obtain.

To put it bluntly, the white men of 1880 were for the most part brutes and tyrants. Even if they didn’t want to be, the law forced them. They either claimed, or had foisted upon them, all kinds of “freedoms” that intrinsically infringed on other people. And I’m not even talking about what they did to blacks in the South or Asians in the West, though I easily could.

I certainly wouldn’t want everyone today to be in the same position that white men had in 1880. Putting them there would require that we find some rather large population for them to personally oppress, to rape, to steal property from, and to hold in permanent thrall.

Neither slave nor master has any place at all in utopia.

Bryan Caplan:

I largely agree with David Boaz’s recent attack on libertarian nostaglia.  While many Americans were freer in the Gilded Age than they are today, plenty were not.  But precisely who belongs on the list of people who have more libertarian freedom in 2010 than they did in 1880?

Boaz mentions “Jews, blacks, women, and gay people.”  For blacks, his case is obvious and overwhelming: Slavery was finally over, but blacks still suffered from both Jim Crow and private racist brutality.  The case for gays is similarly strong: If you were openly gay in 1880, you probably would have been prosecuted under the sodomy laws – and lived in fear of private violence even if the law left you alone.  However, it’s hard to see why Jews belong on the “freer than they used to be” side of the ledger; 19th-century America not only had legal religious toleration, but as far as I’m aware, pogroms and other private anti-Semitic violence were virtually absent.

It’s when we get to women, though, that things get interesting.  Women are more than half the population.  If they’re freer today than they were in the Gilded Age, we can truly say that most people in America are freer today than they were before the rise of the welfare state.  On reflection, though, this is a very big if.

Without a doubt, women lived much harder lives in 1880 than they do today.  So did men.  In those days, almost everyone endured long hours of back-breaking toil.  But of course the standard libertarian take on this is that while freedom causes prosperity in the long-run, prosperity and freedom aren’t the same.

In what ways, then, were American women in 1880 less free than men?  Most non-libertarians will naturally answer that women couldn’t vote.  But from a libertarian point of view, voting is at most instrumentally valuable.  Will Wilkinson seems aware of this when he writes:

[W]omen in 1880 had almost no meaningful rights to political participation, ensuring that they were unable to demand recognition and protection of their basic liberty rights through the political system.
Yet the fact that women were unable to vote in defense of their “basic liberty rights” doesn’t show that American political system denied them these rights.  Did it?

Caplan responds to critics. More Caplan and more Caplan. And even more Caplan

Will Wilkinson:

Kerry Howley sensibly suggests that we approach the question of how much “libertarian freedom” women enjoyed in the late 19th century by looking to see what a libertarian woman of that era had to say about it.

Kerry suggests this passage from Voltairine de Cleyre’s Sex Slavery (1890):

He beheld every married woman what she is, a bonded slave, who takes her master’s name, her master’s bread, her master’s commands, and serves her master’s passion; who passes through the ordeal of pregnancy and the throes of travail at his dictation, not at her desire; who can control no property, not even her own body, without his consent, and from whose straining arms the children she bears may be torn at his pleasure, or willed away while they are yet unborn.

I would not characterize this as an illustration of one form “libertarian freedom” might take. But Bryan Caplan might persist in arguing that women were in some sense free to opt out of this sort tyrannical arrangement. If de Cleyre could opt out, other women could as well, right? I don’t think it’s that easy. Bryan is unjustifiably ignoring the developmental prerequisites for autonomous or robustly voluntary choice. One way to deny an individual the ability to choose really freely is to raise her in a way that constantly cultivates and reinforces a set of preferences and expectations that fit comfortably within a social and legal order of paternalistic control and systematic inequality of status and rights.

One time-honored criticism of paternalism is that it infantilizes adults and leaves them unprepared to make wise choices on their own behalf, thereby reinforcing paternalistic laws and norms by making them seem necessary. I wonder if Bryan thinks this is an ineffective criticism of paternalism? I take it that he would be unwilling to endorse slavery even if slaves could be conditioned from childhood to consent to their chains?

John Holbo on Caplan:

Having made one non-libertarian-related post, I can now say, with a good conscience, that Bryan Caplan has responded to his critics. It is a wonder to behold.

I will make two notes. (No doubt you yourself will come to have your own favorite moments.) First, a lot of the trouble here obviously rotates around the issue of systematic social oppression. Caplan barrels straight through like so: “there’s a fundamental human right to non-violently pressure and refuse to associate with others.” That hardly speaks to real concerns about violence. But beyond that Caplan doesn’t notice that, even if he’s right about this fundamental human right, he’s no longer even defending the proposition that women were more free in the 1880’s, never mind successfully defending it. He’s defending the proposition that there is a fundamental right, which can be exercised, systematically, to make women much less free, that was better protected in the 1880’s. So if women value this libertarian right more than freedom, they might rationally prefer that sort of society. But even so, they should hardly regard themselves as more free, for enjoying this right. Rather, they should regard themselves as (rationally) sacrificing liberty, a lesser value, for love of libertarianism, a higher value and separate jar of pickles altogether

DJW at Lawyers, Guns and Money

Matt Steinglass at DiA at The Economist

Tyler Cowen:

Bryan Caplan set off a debate which has spread to many corners of the blogosphere.  I have no interest in recapping and evaluating the whole thing but I’d like to make a simple but neglected point: negative liberty and positive liberty are not separable.

Here is one simple scenario.  Let’s say the government tells me I have to buy and place a five-foot ceramic grizzly bear statue on my front lawn.  How bad an act of coercion is that?  If I have an upper-middle class income, it’s an inconvenience and an aesthetic blight but no great tragedy.  If I have a Haitian per capita income, it is a very bad act of coercion and it will impinge on my life prospects severely.  I either give up some food or they send me to jail.

In other words, even theories of negative liberty — purely libertarian theories where only negative liberty seems to matter — require standards for degrees of coercion.  Those standards will very often depend on how much wealth the victims of the coercion have and they will depend on a more general concept of positive liberty.  Negative liberty standards can’t help but seep into a concern with consequences.

Fast forward to said debate.  When people are poor, apparently small interventions can be quite crushing and quite coercive.  To cite the “smaller” interventions of 1880 doesn’t much convince me.  The real impact of the depredations against women was very, very large, even from some “small interventions” (and I don’t think they were all small).

(Also, I would not in this case take the *legal* oppressions to be a stand-alone or exogenous variable, separable from more general societal attitudes.  There were various male desires to oppress women, which took a mix of legal and non-legal forms.  Asking how bad the “government-only” restrictions were is an odd division of the problem, since the governmental and non-governmental restrictions were an integrated package which worked together in non-linear fashion.)

Every negative liberty theorist is a positive liberty theorist in disguise and this comes out once they start citing degress of outrage, degrees of harm, degrees of coercion, and the like.

UPDATE: More Holbo

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Go Patent Yourself!

The Economist:

Since the decoding of the human genome, biotechnology companies have claimed that by matching a person’s genetic make-up with specialised treatments, they can tailor drugs to maximise benefits and minimise side effects. Alas, researchers have discovered that the link between a given person’s genetic make-up and specific diseases is much more complex than they had hoped. The tantalising vision remains out of reach.

A rare exception has been the success that Myriad Genetics, an American firm, has had with two genes called BRCA1 and BRCA2. Certain versions of these genes, it has been shown, are associated with a high risk of breast and ovarian cancer. The University of Utah has patented the genes and licenses them to Myriad. The firm uses that exclusivity to create expensive genetic tests for cancer risk which only it offers for sale (the patents and licensing conditions are different outside the United States).

The BRCA patents have long frustrated medical researchers, cancer lobbyists and legal activists. They claim that the firm’s grip on the two genes unlawfully stifles both innovation and basic science. Given the history of patent rulings in America, that has been a fringe argument—until now.

On March 29th the New York District Court made a ruling that, taken at face value, turns America’s approach to the patent protection of genes on its head. A coalition led by the American Civil Liberties Union (ACLU) had challenged the very basis of Myriad’s patents. The nub of the case was this question: “Are isolated human genes and the comparison of their sequences patentable things?”

Until now, the answer had been “Yes”. But Robert Sweet, the presiding judge, disagreed, at least as far as the BRCA genes are concerned. After weighing up Myriad’s arguments, he ruled: “It is concluded that DNA’s existence in an ‘isolated’ form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issues directed to ‘isolated DNA’ containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable subject matter.” Mr Sweet reasoned that DNA represents the physical embodiment of biological information, and that such biological information is a natural phenomenon.

Genome Web:

The ACLU’s and PUBPAT’s lawsuit against Myriad Genetics and the University of Utah Research Foundation, which hold the patents on the BRCA genes, as well the U.S. Patent and Trademark Office (USPTO), charged that the challenged patents are illegal and restrict both scientific research and patients’ access to medical care, and that patents on human genes violate the First Amendment and patent law because genes are “products of nature.”

The specific patents that the ACLU had challenged are on the BRCA1 and BRCA2 genes. Mutations along the BRCA1 and 2 genes are responsible for most cases of hereditary breast and ovarian cancers. The patents granted to Myriad give the company the exclusive right to perform diagnostic tests on the BRCA1 and BRCA2 genes.

William L. Warren, partner at Sutherland Asbill & Brennan, believes this is a “poor decision that may have negative short-term implications for financing in the biotechnology sector, and hence the development of new diagnostics and therapeutics, until it is overturned by the U.S. Court of Appeals for the Federal Circuit in the next one to two years. Certainly, the sequencing of genes and disease-associated mutations for use in developing diagnostic probes and assays provides useful nonnaturally occurring subject matter that should qualify for patentability under the statute.

“While native genes in the body are originally products of nature, isolating portions of the DNA in order to perform a diagnosis transforms the DNA structurally and functionally into patentable subject matter,” he continues. “The isolated DNA has been markedly changed to become a useful product, even though it carries some of the same information as the native gene.

“Whether through the progress of scientific knowledge and techniques the isolation of such DNA fragments becomes routine or obvious is a separate question, which was not at issue in this case.”

Megan Carpentier at The Washington Independent

Ronald Bailey at Reason:

GenomeWeb quotes ACLU attorney Chris Hansen as saying:

“Today’s ruling is a victory for the free flow of ideas in scientific research. The human genome, like the structure of blood, air or water, was discovered, not created. There is an endless amount of information on genes that begs for further discovery, and gene patents put up unacceptable barriers to the free exchange of ideas.”

Hansen is making the argument that gene patents have created an anti-commons that is impeding important research. But is that so? I looked into the issue three years ago and could find little empirical support for the …

… concern that the over-proliferation of patents, instead of encouraging innovation, is stifling it. This argument achieved prominence in an influential 1998 article published in Science by two University of Michigan law professors, Michael A. Heller and Rebecca S. Eisenberg. Heller and Eisenberg worried that the privatization of biomedical research “promises to spur private investment but risks creating a tragedy of the anticommons through a proliferation of fragmented and overlapping intellectual property rights.”

By “anticommons,” they meant a situation in which the existence of a large number of intellectual property rights applicable to a single good or service unduly retards or even prevents its provision. The blockage to innovation would occur because of high transaction costs, the conflicting goals of various intellectual property owners, and cognitive biases in which owners overvalue their own patents, undervalue others’ patents, and reject reasonable offers.

As evidence for a biomedical anticommons, analysts regularly cite the high profile case of “probably the most hated diagnostics company,” Myriad Genetics.

As evidence against the existence of a research anti-commons, I cited a number of studies by the National Academy of Sciences and I further noted that …

… in 2006, Nature Biotechnology published a review (free registration required) of the academic literature on the existence of a research anticommons. The review concluded that “among academic biomedical researchers in the United States, only one percent report having had to delay a project and none having abandoned a project as a result of others’ patents, suggesting that neither anticommons nor restrictions on access were seriously limiting academic research.” Worryingly, the review noted there was evidence that secrecy was growing among academic researchers. However, patent issues do not seem to be fueling this secrecy. One study suggested that increased academic research secrecy arises chiefly from concerns about securing scientific priority (scientific competition) and the high cost and effort involved in sharing scientific materials and data.

In 2007, the American Association for the Advancement of Science (AAAS) released a report, International Intellectual Property Experiences: A Report of Four Countries, which surveyed thousands of scientists in the U.S., Germany, the U.K. and Japan to assess their experiences in acquiring, using, or creating intellectual property. The AAAS study found “very little evidence of an ‘anticommons problem.'” As Stephen Hansen, the director of the AAAS study, noted in a press release, “All four studies suggest that intellectual property rights had little negative impact on the practice of science.”

Perhaps there is newer and better evidence for a research anti-commons. I will look into it again and report back.

Daniel McCarthy at The American Conservative:

Biotech businesses and their scientists say the decision will stifle research, destroy incentives for product development, and grow government by leaving federally supported universities as the only institutions willing to undertake further genetic studies. None of this rings true. No doubt holding legal monopoly over a part of a human being is more lucrative for any firm than having to compete with other companies in developing biotechnology, but it is not necessarily best for patients. Other industries do just fine in terms of innovation, and much better in terms of cost control, without being able to patent their consumers.

I think this paragraph from the New York Times‘ story gets at the nub of the matter:

[The company] sells a test costing more than $3,000 that looks for mutations in the two genes to determine if a woman is at a high risk of getting breast cancer and ovarian cancer. Plaintiffs in the case had said Myriad’s monopoly on the test, conferred by the gene patents, kept prices high and prevented women from getting a confirmatory test from another laboratory.

Considering the amounts of money at stake in the principle, we’ll be hearing much more about this in months to come.

Josh Rosenau at Science Blogs:

This does not invalidate patents on organisms with modified genes or genomes, nor does it invalidate the act of modifying a gene in order to insert it into an organism. This does not, by my reading, set up Monsanto’s genetically modified Roundup Ready crops to lose patent protection, though it may free up competitors to develop similar genes, and may give farmers an easier way to protect themselves against a claim when Monsanto asserts patent violations because of crosspollination.

The court was asked to consider the chilling effect on research produced by patents for naturally occurring genes. Fortunately, the decision seems to have avoided that line of argument, as it opens a massive can of worms. In general, I’m inclined to oppose patents and copyright laws that restrict research, artistic development, medical care, or other humanitarian services. On the other hand, I don’t think that’s a call judges ought to be making. I’d rather see the laws themselves fixed when such chilling effects are seen. This judge’s ruling fired a shot across the bow of lawmakers about the abuses of genetic patents, and one hopes lawmakers will listen.

Given the sweeping victory on a summary judgment motion, the ACLU is understandably elated. “We are extremely gratified by this groundbreaking decision,” said Sandra Park, staff attorney with the ACLU Women’s Rights Project. “This is the beginning of the end to patents that restrict women’s access to their own genetic information and interfere with their medical care.” We can hope so. The appeals are inevitable, and are headed toward a notably pro-corporate and anti-woman Supreme Court, so there’s no guarantee that this ruling will hold up, but it’s a good first step.

As John Ball, executive vice president of the American Society for Clinical Pathology put it: “It’s good for patients and patient care, it’s good for science and scientists. It really opens up things.”

Katherine Harmon at Scientific American

Ashby Jones at WSJ Law Blog:

Peter Meldrum, Myriad’s chief executive, said the company will appeal. “I don’t believe that the final outcome of this litigation will have a material impact on Myriad’s operations,” he said. “We have 23 patents relating to BRCA genes, and this litigation only involves seven of those 23 patents.

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Absolut Regressive Tax

Mark Kleiman at The American Interest:

Not all drugs are equally risky or abusable. But since different drugs are abused in different ways and have different harm profiles, there is no single measure of “harmfulness” or “addictiveness” by which drugs can be ranked. Moreover, the overall damage caused by a drug does not depend on its neurochemistry alone; the composition of the user base and the social context and customs around its use also matter. Alcohol, for example, constitutes a major violence-and-disorder problem in Britain, but not in Italy.

And alcohol is a drug, one that ranks high along most dimensions of risk. Among intoxicants (that is, excluding caffeine and nicotine), alcohol abuse accounts for more than three-quarters of total substance abuse in the United States, and for more death, illness, crime, violence and arrests than all illicit drugs combined. A drug abuse control policy that ignores alcohol is as defective as a naval policy that ignores the Pacific.

Some pairs of drugs are substitutes for one another, so that making one more available will reduce consumption of the other. (Brands of beer compete; beer competes with wine; heroin competes with morphine.) On the other hand, some pairs of drugs are complements, so that making one more available will increase consumption of the other (any depressant is likely complementary with any stimulant, as illustrated both by rum-and-Coke and by the heroin-and-cocaine combination known as a “speedball”). We know much less about these relationships than we should; it isn’t even clear whether making beer more expensive and less available to adolescents would reduce their cannabis use or increase it (and vice versa).

[…]

The average excise tax (Federal plus state) on a can of beer is about a dime. The average damage done by that can of beer to people other than its drinker is closer to a dollar. Those costs consist mostly of crimes, accidents and the health care costs redistributed through insurance—and the one-dollar figure doesn’t count the costs to the families and friends of drinkers.

Of course, not all drinks are created equal; a dollar per can would be too high a tax on the great majority of drinkers whose drinking does no harm, and too low on the dangerous minority. But in the words of an old Chivas Regal advertisement, “If the extra money matters to you, you’re drinking too much.” (Note that the optimal tax level would fall if we denied alcohol to bad drunks.)

Matthew Yglesias:

Kleiman says that this would be a particularly effective way of controlling over-indulgence by teenagers (who, after all, barely have any money) and would allow us to get rid of the not-really-enforced minimum drinking age and eliminate the culture of fake IDs and casual law-breaking that it encourages.

In distributive terms, data from the Consumer Expenditure Survey indicates that an alcohol tax is pretty progressive for a consumption tax, and certainly far less regressive than taxes on tobacco (which, to be clear, I also favor):

boozetax

The poor consume a much larger share of their income than the rich. Indeed, total expenditures from the bottom quintile exceed the income of the bottom quintile. So all consumption taxes are regressive with respect to income. But you can also look at different categories of goods as a share of expenditure, and you see that the richer you get the larger the share of your consumption going to alcoholic beverages becomes.

Daniel McCarthy at The American Conservative:

Matthew Yglesias seconds a very bad idea mooted by Mark A.R. Kleiman in an old article on booze ‘n’ drugs: Raise the tax on alcohol, especially beer. “The average excise tax (Federal plus state) on a can of beer is about a dime,” Kleiman claims, while “The average damage done by that can of beer to people other than its drinker is closer to a dollar,” and what’s more “Raising taxes is also among the best ways to reduce heavy drinking by teenagers, for whom price is often a major consideration.”

Just about every word of this is wrong. Does anyone buy the assertion (unfootnoted in the original) that that a can of beer does, on some “average,” a dollar’s worth of damage to “people other than its drinker”? Every bar and restaurant would turn its neighborhood into downtown Beirut circa 1980 if that were true. Kleiman produces this risible estimate by averaging out all the harm done by louts, drunk drivers, and dipsomaniacs with failing livers, but raising the price of beer isn’t going to stop any of that — in fact, it will make matters much worse, for teenagers as well as adults. Kleiman’s article reflects some understanding of the monstrosity of the drug war, but one of the fundamental lessons of that war, and of earlier efforts at alcohol Prohibition, is that raising barriers to the procurement of weak intoxicants incentivizes the production of stronger ones. That was the case during Prohibition, when bootleggers brewed the strongest stuff they could (the better to get drunk on less, and the more profit per pint), and it’s been the case with the War on Drugs, leading to more potent marijuana, crack being developed out of cocaine, and crystal meth becoming an epidemic. Raising taxes on beer make hard liquor relatively more attractive; it does not much dampen underlying demand. (Least of all among teenagers, who contrary to Kleiman are willing to pay a good deal more than other people for their beer because that’s often the only way they can get it.)

Josh Barro at Reihan Salam’s place:

Matt’s analysis does not account for the fact that wealthy people tend to buy more expensive alcoholic beverages than poorer people.  Since alcoholic beverage taxes are generally specific excise taxes (levied by the ounce, not as a percentage of price) the effective tax rate is highest on cheaper products.  And from a perspective of trying to offset the social costs of alcohol consumption, that makes sense: an ounce of Grey Goose isn’t more socially problematic than an ounce of Popov.

Back in 2004, the Tax Foundation released a paper that estimates the distributional effects of major taxes levied by state and federal governments.  They found (see page 42) that the average household in the top income quintile spends 0.09% of its income on state and federal alcohol taxes, while a bottom-quintile household spends 0.16%.  Essentially, people in the bottom income quintile spend a 78% larger share of their income on alcohol taxes than people in the top quintile.

This makes alcohol taxes less regressive than cigarette taxes (where the difference between effective rates in the top and bottom quintiles is a whopping 583%).  They are also not as regressive as public utility taxes or insurance taxes.  But they are still more regressive than general sales taxes (which have a gap of just 32%), as well as gasoline taxes, diesel fuel taxes, air transport taxes, severance taxes, import duties, “other excise taxes” and “other selective sales taxes.”

So, while they are not an outlier like tobacco taxes are, I don’t think it’s true to say that alcohol taxes are “pretty progressive for a consumption tax.”  It looks to me like they are much more regressive than broad-based consumption taxes and also more regressive than most taxes aimed at specific kinds of consumption.

E.D. Kain at The League:

Second, beer – unlike soft drinks – is a social drink. High taxes on beer in the UK have led to many pubs shutting down and more and more people staying home to drink. This may be good for drunk driving (I don’t know if that’s true or not) but it certainly isn’t good for fostering more community. We have to be wary of taxing ‘sin’ when so much of what we consider sin is actually a great way to bring people together as a community. Indeed, much of what busy-bodies consider sin is a great economic benefit to many communities. The sin of destroying jobs because some people might get drunk seems much greater than the sin of drink itself.

Third, the very logic behind sin taxes is flawed. We tax what we believe is unhealthy to society in an effort to punish bad or socially destructive behavior, but if our devious plan works and people stop buying and consuming these unhealthy things, then our revenue stream dries up. Then what? The problem with revenue streams drying up is that new revenue streams must be found, so new reasons to levy taxes must be conjured. Sin taxes, therefore, are simply unsustainable taxes and serve a prohibitionist purpose more than a reasonable alternative revenue source. It is social engineering plain and simple and will – as McCarthy notes above – lead to grave unintended consequences. Namely, people turn to untaxed, unregulated substances that are cheaper but often result in a much more destructive social cost.

A much more sensible approach would be to quit raising taxes on already-regulated substances and instead break up the black markets on at least one of the drugs we now criminalize: marijuana.

Mark Thompson at The League:

I’m actually less opposed to sin taxes than one would expect me to be, at least under the right circumstances.  In the context that Mark Kleiman is proposing the liquor tax, for instance, I think a liquor tax makes a decent amount of sense as a legitimate Pigou tax that need not be dependent on an “increased-cost-to-social-programs” rationale.  In other words, the negative externalities would exist independent of any social programs.  In the context that Matt Yglesias proposes such a tax, however, I firmly disagree with the rationale for the reasons stated above.

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Filed under Economics, Food, War On Drugs