Category: Liberty – Libertarianism – Rights

A Timeless Indictment

The authors of the Declaration of Independence, if they were writing it today, would be able to list “a long train of abuses and usurpations” by the federal government against the States and the people. Their list could rightly include these charges, once levelled against the British monarch:

…erected a multitude of new offices, and sent hither swarms of officers to harrass our people and eat out their substance….

…combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws….

…[took] away our [State] charters…and alter[ed] fundamentally the forms of our governments….

Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study)

Michael Ignatieff opens his essay, “Lesser Evils” (New York Times Magazine, May 2, 2004), by asking “Could we actually lose the war on terror?” But, to Ignatieff, defeat in the war on terror isn’t

the detonation of a radiological or dirty bomb, perhaps, or a low-yield nuclear device or a chemical strike in a subway. Any of these events could cause death, devastation and panic on a scale that would make 9/11 seem like a pale prelude.

In Ignatieff’s view, which seems to be au courant among civil libertarians, defeat looks like this:

A succession of large-scale attacks would pull at the already-fragile tissue of trust that binds us to our leadership and destroy the trust we have in one another. Once the zones of devastation were cordoned off and the bodies buried, we might find ourselves, in short order, living in a national-security state on continuous alert, with sealed borders, constant identity checks and permanent detention camps for dissidents and aliens. Our constitutional rights might disappear from our courts, while torture might reappear in our interrogation cells. The worst of it is that government would not have to impose tyranny on a cowed populace. We would demand it for our own protection. And if the institutions of our democracy were unable to protect us from our enemies, we might go even further, taking the law into our own hands. We have a history of lynching in this country, and by the time fear and paranoia settled deep in our bones, we might repeat the worst episodes from our past, killing our former neighbors, our onetime friends.

That is what defeat in a war on terror looks like. We would survive, but we would no longer recognize ourselves. We would endure, but we would lose our identity as free peoples.

What a nifty rhetorical trick. Ignatieff paints the darkest possible picture of official and unofficial reaction to a hypothetical succession of large-scale terrorist attacks. He then characterizes that reaction as a defeat — as if sustaining a string of major terrorist attacks weren’t a defeat.

Ignatieff shortly buttresses his rhetorical trick by invoking the evil John Ashcroft: “Other conservatives, like Attorney General John Ashcroft, simply refuse to believe that any step taken to defend the United States can be called an evil at all.” Oh, really? Did I miss Mr. Ashcroft’s call for the summary execution of all Muslims resident in the United States? Well, it’s Ignatieff, not Ashcroft, who says:

To defeat evil, we may have to traffic in evils: indefinite detention of suspects, coercive interrogations, targeted assassinations, even pre-emptive war. These are evils because each strays from national and international law and because they kill people or deprive them of freedom without due process. They can be justified only because they prevent the greater evil. The question is not whether we should be trafficking in lesser evils but whether we can keep lesser evils under the control of free institutions. If we can’t, any victories we gain in the war on terror will be Pyrrhic ones.

Okay, maybe we’re getting somewhere. Maybe Mr. Ignatieff will tell us how we might prevent the hypothetical string of terrorist attacks that will turn us into a ravening pack of jackals, led by John Ashcroft.

Sorry, false start. Back to Civil Liberties 101:

Civil liberties are not a set of pesky side constraints, pettifogging legalisms tying democracy’s hands behind its back. Ask what the American way of life is, and soon we are talking about trial by jury, a free press, habeas corpus and democratic institutions. Soon we are talking about that freedom and that confident sense of an entitlement to happiness that the Europeans find so strange in this country. Civil liberties are what America is.

Well not quite all. There is life itself. There is freedom from fear. But Ignatieff just rolls on:

Civil liberties may define us, but we have a bad record of jettisoning them when we get scared….Indeed, by comparison with the Red Scare or later shameful episodes like Roosevelt’s detention of Japanese during World War II, there have been no mass detention camps in the United States since Sept. 11 and no imprisonments for dissent. Not yet anyway.

“In spite of John Ashcroft,” he might as well have said. But let’s keep reading:

Even so, after 9/11 we were frightened, and Congress and the government weren’t always thinking straight. After the attack, it may have made sense to detain more than 700 aliens on one immigration pretext or another until we could figure out whether there were other sleeper cells at work. But it made a lot less sense to hold them for months (80 days on average) and to deny them lawyers and public due process before we tossed most of them out of the country.

How does he know how long we should have held the detainees, unless he’s privy to what we learned about and from them while they were detained? Well, it doesn’t matter, because he’s just looking for an excuse to introduce this non sequitur: “It was shameful, as a Justice Department report found, that many Arab and Muslim detainees were abused and harassed in confinement.” Yes, it was shameful, but that doesn’t negate the wisdom of detention — just as the shameful acts toward detainees in Iraq don’t negate the wisdom of our efforts there.

Might Ignatieff, finally, talk about efforts to prevent further terrorist attacks in the U.S? Well, sort of:

…Obviously it’s a good idea to keep recipes for ricin off government-financed research Web sites, and it’s not a good idea to have target detail on critical infrastructure available for download. But adversarial review, as intended by the founding fathers, can’t work if ordinary citizens are denied the information they need.

And what information is that — the names and addresses of persons under investigation, of persons being held for questioning as material witnesses? Why don’t we just post that information on the White House’s web site for the terrorists who remain at large, and cut out the middle man?

Ignatieff just goes on — and on — about the things President Bush has done wrong: designating “American citizens as ‘enemy combatants'”; imprisoning “foreign combatants at Guantanamo beyond the reach of American courts”; creating “military tribunals “to try foreign combatants” but keeping those tribunals “free from review by federal courts and free of the due process safeguards that apply in U.S. military courts-martial.”

Nor does he neglect the things President Bush might do wrong: targeted assassination (okay if there are rules for it, but it probably wouldn’t do much good); torture (okay as long there are strict rules about it and detainees can’t be held without access to counsel and judicial process).

Then there’s the ever-looming “out-of-control presidency”: “A war on terror, declared against a global enemy, with no clear end in sight, raises the prospect of an out-of-control presidency.” Well, the war on terror was declared almost three years ago and the presidency still seems under control to me.

Oh, here’s the out-of-control bit, it’s the war in Iraq:

Pre-emptive war can be justified only when the danger that must be pre-empted is imminent, when peaceful means of averting the danger have been tried and have failed and when democratic institutions ratify the decision to do so. If these are the minimum tests pre-emptive war has to meet, the Iraq war failed to meet all three.

Who says that the danger must be imminent? It’s stupid to wait until danger is imminent if you can do something about it before it becomes imminent. (Or should we have waited until Hitler had launched an amphibious invasion of New York before going to war against Nazi Germany?) Peaceful means of averting the danger were tried — but the United Nations failed, after exhaustive diplomacy on our part, to confront the danger that it had already recognized. The Congress of the United States — surely a far more democratic institution than the United Nations — ratified the war in Iraq. Tests passed.

Oh well, at last we come to the predictably fatuous peroration:

The chief ethical challenge of a war on terror is relatively simple — to discharge duties to those who have violated their duties to us. Even terrorists, unfortunately, have human rights. [Oh, really? Where is that written? Why “unfortunately” if they really have human rights?] We have to respect these because we are fighting a war whose essential prize is preserving the identity of democratic society and preventing it from becoming what terrorists believe it to be. [That’s not a problem, as I’ll explain below. The problem is preventing terrorists from killing us.] Terrorists seek to provoke us into stripping off the mask of law in order to reveal the black heart of coercion that they believe lurks behind our promises of freedom. [When was this revealed to Ignatieff, and by whom?] We have to show ourselves and the populations whose loyalties we seek that the rule of law is not a mask or an illusion. It is our true nature. [We also have to show ourselves and others that we have the will to defeat terror, which means killing or capturing terrorists before they kill us. That, too, is part of our nature, and a part that we must accept and others must respect.]

Let’s now talk seriously about waging war and why we can do bad things in wartime without permanently revoking our commitment to freedom. I’ll take a real example from a real war, namely the internment of Japanese and Japanese-Americans during World War II. Before I do, though, I feel that I must say this once more: The objective of war is to defeat the enemy, whether the enemy is a nation-state (as were the Third Reich and the Japanese Empire) or an elusive band of terrorists.

Now, here is how Wikipedia describes the internment:

[T]he exclusion and subsequent removal of approximately 112,000 to 120,000 Japanese and Japanese Americans, officially described as “persons of Japanese ancestry”, 62% of whom were United States citizens, from the west coast of the United States during World War II to hastily constructed housing facilities called War Relocation Camps in remote portions of the nation’s interior. The government of the United States officially apologized for this action in the 1980s and has paid reparations to survivors.

The last sentence summarizes how most American citizens had come to feel about the internment years after it had ended. But here’s what a 6-3 majority of the U.S. Supreme Court had to say about it in 1944, in the case of Korematsu v. United States, with Justice Black writing for the Court:

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that at that time these actions were unjustified.

Justice Frankfurter’s concurring opinion says, in part:

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is “the power to wage war successfully.”…Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless.

That we later came to regret the relocation of some 112,000 to 120,000 souls is merely evidence that the vicissitudes of wartime will not deflect us from our essential commitment to civil liberties. In the aftermath of World War II — and despite the excesses committed by our side in the quest for victory (and surely there were many excesses that have never been revealed) — our government has put an end to legal segregation (which is the most that government can do), guaranteed suffrage for blacks, and opened the door of opportunity for minority groups, women, the handicapped, and homosexuals.

Nevertheless, in wartime you have to do what you have to do, and sometimes it ain’t pretty. As Justice Frankfurter also said in Korematsu v. United States:

To recognize that military orders are “reasonably expedient military precautions” in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war.

And so those war-hardened Framers moved on to give us the Constitution and Bill of Rights. And so we will move on to the preservation and expansion of civil liberties in the United States. But, first, we must try — sometimes in unpalatable ways — to capture and kill terrorists before they kill us.

Confirmation

As if to confirm a point I made in my previous post, Timothy Sandefur of Freespace has just posted this:


The greatest increase in freedom comes through technological advancement. Sunday morning I woke up in Las Vegas, Nevada, a miserable, godforsaken desert, with practically no natural resources that are not rocks. I nevertheless awoke in calm air-conditioned comfort, ate a large buffet breakfast which included salmon, chicken, shrimp, and various other things not native to Nevada. I then got on an airplane and flew home, got in a car, came home, and blogged about my trip. On the way I listened to the music of Stevie Ray Vaughan, on a compact disk —- music created on an electric guitar. Almost nothing that I did -— almost nothing that I dealt with, from my cheap, faux leather shoes to the instantaneous news I got on the radio at the top of the hour, was available to people in 1904. My freedom is therefore infinitely greater.

But of course, today I’m subject to zoning laws, income taxes, licensing restrictions, minimum wages, medicine regulation, and a limitless number of curtailments to my freedom which did not exist in 1904.

Sandefur, like most people, mistakes the fruits of prosperity for freedom. If it weren’t for the “limitless number of curtailments to…freedom” that Sandefur acknowledges, more people would enjoy more of the fruits of prosperity. Because so many people mistake prosperity for freedom they fail to notice — or to care about — the state’s encroachments on freedom.

The Inevitability of the Communitarian State, or, What’s a Libertarian to Do?

What kind of state? Bear with me. To get there (inevitably) we have to reject some useless terminology.

It’s obvious that “left” and “right” inadequately capture the subtleties in political ideology. (Calling Stalin and Mao leftists while putting Hitler and Pinochet on the right is as descriptive as parsing shades of white.) “Liberal” and “conservative” are somewhat more meaningful labels, but libertarians always object (rightly) to being lumped with conservatives, who object (rightly) to being lumped with neo-fascists.

The left-right, liberal-conservative taxonomies of the political spectrum fail because they are linear and lacking in subtlety. My alternative is a somewhat more subtle taxonomy with these four major points arrayed on a circular continuum:

• Anarchy — “might makes right” without an effective state to referee the fight

• Libertarianism — the minimal state for the protection of life, property, and liberty

• Communitiarianism — the regulation of private institutions to produce “desirable” outcomes in such realms as income distribution, health, safety, education, and the environment

• Statism — outright state control of most institutions, reached either as an extension of communitarianism or via post-statist anarchy or near-anarchy, as in Stalin’s Russia, Hitler’s Germany, and Mao’s China.

Think of anarchy, libertarianism, communitarianism, and statism as the North, East, South, and West of a compass. The needle swings mostly from anarchy to statism to communitarianism, and occasionally from communitarianism toward libertarianism, but never very far in that direction.

The tide of communitarianism rose inexorably to engulf the federal government in the aftermath of the Great Depression and World War II. The tide continues to rise, threatening to engulf us in statism. Libertarians, like the sorcerer’s apprentice, have been trying futilely to turn the tide with a broom.

Consider the ambitious Free State Project,

a plan in which 20,000 or more liberty-oriented people will move to New Hampshire, where they may work within the political system to reduce the size and scope of government. The success of the Free State Project would likely entail reductions in burdensome taxation and regulation, reforms in state and local law, an end to federal mandates, and a restoration of constitutional federalism, demonstrating the benefits of liberty to the rest of the nation and the world.

The movement has attracted fewer than 6,000 adherents since it began almost three years ago.

The communitarian state is simply too seductive. It co-opts its citizens through progressive corruption: higher spending to curry favor with voting blocs, higher taxes to fund higher spending and to perpetuate the mechanisms of the state, still higher spending, and so on. Each voting bloc insists on sustaining its benefits — and increasing them at every opportunity — for one of two reasons. Many voters actually believe that largesse of the communitarian state is free to them, and some of them are right. Other voters know better, but they grab what they can get because others will grab it if they don’t.

Communitarianism leads inevitably to statism because the appetite for largesse is insatiable. The resultant statism may be relatively benign, like the statism of pre-Thatcher Britain or today’s France and Germany, but it is statism nevertheless.

The good news is that statism is an easier target for reform than communitarianism. The high price of statism becomes obvious to more voters as more facets of economic and personal behavior are controlled by the state. In other words, statism’s inherent weakness is that it creates more enemies than communitarianism.

That weakness becomes libertarians’ opportunity. Persistent, reasoned eloquence in the cause of liberty may, at last, slow the rise of statism and hasten its rollback. And who knows, perhaps libertarianism will gain adherents as the rollback gains momentum.

If we reach for the stars we may at least rise above the Earth.

Fear of the Free Market — Part III

If it’s unnecessary to regulate health care — as I’ve argued in Part I (April 8) and Part II (April 11) of this series — can we take the next step and denationalize it? Can we forgo other forms of nationalization (particularly Social Security) and the regulation of other industries (e.g., telecommunications, banking, and securities)?

The prospect of deregulating health care; giving up Medicare, Medicaid, or Social Security; and leaving consumers generally “at the mercy of the market” may seem unthinkable. So let us think about it.

Regulation and nationalization (an extreme form of regulation) restrict competition and therefore reduce the supply and quality of regulated products and services. Many have argued, rather persuasively, that individuals would be far better off with the privatization of Social Security. (See, for example, my posts of March 5.) Moreover, there is ample evidence that proper deregulation leads to higher quality and lower prices. Phone service, for example, is not only cheaper (in real terms) but indisputably better, given the range of options available to consumers. Air travel, to take another example, is also cheaper (in real terms) and certainly better for the great majority of travelers who prefer more legroom to the so-called meals that airlines used to serve in coach class.

Why, despite sound arguments and concrete evidence, do most Americans tend to resist denationalization and deregulation? Their resistance arises from two things: risk aversion (both personal and paternalistic) and economic illiteracy.

Risk aversion is revealed in questions like these: Will I choose the right doctor? Will he choose the right medicine? Will that over-the-counter drug poison me? Will I save enough for retirement? What about my parents, my children, my friends, and the elderly poor? The answers are:

• Licensing of doctors doesn’t ensure your doctor’s competence or help you choose the right doctor.

• The FDA’s approval of drugs doesn’t ensure that your doctor will choose the right drug for you or a drug that’s safe for you.

• That over-the-counter drug is unlikely to poison you, especially if the one you choose has been on the market for at least a few years.

• Your parents, children, and all the rest (even you) would have plenty of money for retirement living (including private medical insurance) if the government didn’t collect taxes for Social Security, Medicare, and other welfare programs. The elderly poor would be taken care of by greater charitable donations (afforded by lower taxes) and relatively small, strictly means-tested, welfare programs.

I could go on and on about other components of our over-regulated economy, but I think you get the idea. There is little risk of coming to harm in a free-market economy, where individuals learn to look out for themselves, especially if they are backed by strict enforcement of tough laws against deception and fraud. Conversely, the rewards of a free-market economy are great: more competition, higher quality, lower prices, greater output, higher employment, and higher incomes (from which to fund minimal welfare programs for those who are truly dependent on society because no one else can meet their needs).

Economic illiteracy blinds people to the benefits that flow from a truly free-market economy. The illiterates (that’s most of us) therefore become easy prey for the real beneficiaries of nationalization and regulation, what Bruce Yandle aptly calls “Bootleggers and Baptists”:

• The “bootleggers” are market incumbents (as represented by the American Medical Association and the American Bar Association, for example) who benefit from the suppression of competition (as bootleggers did during Prohibition).

• The “Baptists” are self-appointed guardians of our health and well-being (the sum of all our risk-averse fears, you might say).

Economics can be as abstruse as the physics of special relativity. But it rests on two things that are easily remembered:

• Incentives matter.

• There’s no such thing as a free lunch.

Nationalization and regulation suppress incentives and therefore weaken the economy. The benefits of nationalization and regulation come at a high cost, but we tend to focus on our own benefits (the “free lunch”) and forget the cost (the taxes we pay for benefits that go to others).

Fear of the Free Market — Part II

In Part I of this series (second post under April 8, 2004), I pointed out that

[i]t is easier to list those markets in which the government doesn’t intervene (namely, “black markets”) than it is to list those markets in which the government does intervene. There simply isn’t a lawful business activity that isn’t affected by government regulation….[G]overnment intervention in the market for any product or service tends to reduce the supply of that product or service.

Health care, being something almost everyone needs (like electricity and phone service), has been regulated to the point of being nationalized (see Part I). Yet it is unclear that the regulation of health care does anything but restrict our access to doctors and drugs. Licensing exams have no meaningful effect on our ability to choose competent doctors (see Part I).

What about FDA approval of drugs? The FDA doesn’t test drugs, it prescribes testing procedures for drugs. The responsibility for testing falls to the maker of the drug. According to a statistics published on the FDA web site, The FDA ultimately approves about 20% of applications for new drugs. The three phases of the FDA’s prescribed testing process last at least one year and sometimes six years and longer. What does the FDA hope to accomplish through its approval process? Here’s some of what the FDA’s Ken Flieger has to say:

Most of us understand that drugs intended to treat people have to be tested in people. These tests, called clinical trials, determine if a drug is safe and effective, at what doses it works best, and what side effects it causes–information that guides health professionals and, for nonprescription drugs, consumers in the proper use of medicines.

Clinical testing isn’t the only way to discover what effects drugs have on people. Unplanned but alert observation and careful scrutiny of experience can often suggest drug effects and lead to more formal study. But such observations are usually not reliable enough to serve as the basis for important, scientifically valid conclusions. Controlled clinical trials, in which results observed in patients getting the drug are compared to the results in similar patients receiving a different treatment, are the best way science has come up with to determine what a new drug really does. That’s why controlled clinical trials are the only legal basis for FDA to conclude that a new drug has shown “substantial evidence of effectiveness.”

It boils down to safety and effectiveness. But safety and effectiveness are also your doctor’s concern. Do you suppose that your doctor would prescribe a drug that its manufacturer hadn’t thoroughly tested for safety and effectiveness? Of course, your doctor might well flub his diagnosis (something that happens a lot, despite the medical licensing exam) and prescribe the wrong medication. Or your doctor might diagnose you correctly but prescribe a medication that produces an unpleasant side effect. In summary, the safety and effectiveness of the drugs your doctor prescribes depends mainly on your doctor’s competence.

Misadventure is more likely with non-prescription (over-the-counter) drugs. As the FDA acknowledges, “Most OTC drug products have been marketed for many years, prior to the laws that require proof of safety and effectiveness before marketing.” Very interesting. As with prescription drugs, OTC drugs, used to be available without the FDA’s imprimatur. That is, individuals used to be trusted to buy and use OTC drugs wisely, but then the FDA got into the act. Why? According to the FDA:

Languishing in Congress for five years, the bill that would replace the 1906 [Food and Drugs Act] was ultimately enhanced and passed in the wake of a therapeutic disaster in 1937. A Tennessee drug company marketed a form of the new sulfa wonder drug that would appeal to pediatric patients, Elixir Sulfanilamide. However, the solvent in this untested product was a highly toxic chemical analogue of antifreeze; over 100 people died, many of whom were children. The public outcry not only reshaped the drug provisions of the new law to prevent such an event from happening again, it propelled the bill itself through Congress. This was neither the first nor the last time Congress presented a public health bill to a president only after a therapeutic disaster. FDR (pictured at left) signed the Food, Drug, and Cosmetic Act on 25 June 1938.

The new law brought cosmetics and medical devices under control, and it required that drugs be labeled with adequate directions for safe use. Moreover, it mandated pre-market approval of all new drugs, such that a manufacturer would have to prove to FDA that a drug were safe before it could be sold. It irrefutably prohibited false therapeutic claims for drugs, although a separate law granted the Federal Trade Commission jurisdiction over drug advertising. The act also corrected abuses in food packaging and quality, and it mandated legally enforceable food standards. Tolerances for certain poisonous substances were addressed. The law formally authorized factory inspections, and it added injunctions to the enforcement tools at the agency’s disposal.

And on it went:

Enforcement of the new law came swiftly. Within two months of the passage of the act, the FDA began to identify drugs such as the sulfas that simply could not be labeled for safe use directly by the patient–they would require a prescription from a physician. The ensuing debate by the FDA, industry, and health practitioners over what constituted a prescription and an over-the-counter drug was resolved in the Durham-Humphrey Amendment of 1951. From the 1940s to the 1960s, the abuse of amphetamines and barbiturates required more regulatory effort by FDA than all other drug problems combined.

Notice that the focus is always on abuses and never on successes. Here’s what The Cato Institute’s Handbook for Congress has to say about the FDA::

As an agency, the FDA has a strong incentive to delay allowing products to reach the market. After all, if a product that helps millions of individuals causes adverse reactions or even death for a few, the FDA will be subject to adverse publicity with critics asking why more tests were not conducted. Certainly, it is desirable to make all pharmaceutical products as safe as possible. But every day that the FDA delays approving a product for market, many patients who might be helped suffer or die needlessly.

For example, Dr. Louis Lasagna, director of Tufts University’s Center for the Study of Drug Development, estimates that the seven-year delay in the approval of beta-blockers as heart medication cost the lives of as many as 119,000 Americans. During the three and half years it took the FDA to approve the drug Interleukin-2, 25,000 Americans died of kidney cancer even though the drug had already been approved for use in nine other countries. Eugene Schoenfeld, a cancer survivor and president of the National Kidney Cancer Association, maintains that ‘‘IL-2 is one of the worst examples of FDA regulation known to man.’’

In the past two decades patients’ groups have become more vocal in demanding timely access to new medication. AIDS sufferers led the way. After all, if an individual is expected to live for only two more years, three more years spent testing the efficacy of a prospective treatment does that person no good. The advent of the Internet has allowed individuals suffering from specific ailments and patient groups to use websites and chat rooms to exchange information and to give them an opportunity to take more control of their own treatment. They now can track the progress of possible treatments as they are tested for safety and efficacy and are quite conscious of how FDA-imposed delays can stand in the way of their good health and even their lives….

[I]n a free society individuals should be free to take care of their physical well-being as they see fit. The advent of the Internet gives individuals even more access to information about medical products and treatments. Individuals should be allowed to choose the treatments they think best. Such liberty does not open the door for fraud or abuse any more than does a free market in other products. In fact, informed consent by patients probably will become more sophisticated as the market for information about medical treatments becomes more free and open.

Government regulation of health-care products and services makes them harder to get and more expensive than the products and services that would be delivered in the absence of regulation. Would quality suffer in a free-market health-care system? It might in some cases, but competition among producers and providers would lead to an overall increase in quality, in response to consumers’ demands for competent medical practitioners and effective drugs.

If it’s unnecessary to regulate health care, can we take the next step and de-nationalize it? What about other industries and types of economic activity? Stay tuned for Part III of this series.

Fear of the Free Market — Part I

In So When Are We Going to Get That Free-Market Health Care Everyone’s Complaining About?, Trent McBride guesstimates that with the addition of the prescription drug benefit to Medicare “our health care system will be paid for by explicit or implicit public funds at a rate of 65-70%.” By “explicit or implicit public funds” he means direct payments (e.g., Medicare, Medicaid, and the VA) plus the sundry regulatory activities (e.g., FDA approval of new drugs) that are funded by taxes. McBride therefore characterizes the health-care system as “marginally nationalized.” He asks, “if we have a nationalized health-care system now, and that system is [considered] broken, is more nationalization the way to go?”

Sasha Volokh objects to McBride’s characterization of the health-care system as “nationalized” because what matters is not only “who pays but also…who controls.” Apparently, in Sasha Volokh’s view, Medicare doesn’t count as a form of nationalization because beneficiaries get to choose their doctors. In this regard, it’s important to recall the old variation on the Golden Rule: “Them what has the gold makes the rules.” I might get to choose my doctor from a government-approved list, but all good doctors won’t be on that list, nor will all the treatments I might like to have. It would cost me more to go to doctors who aren’t on the list and to receive non-approved treatments, but I may not be able to afford either because my wealth has been depleted by many years of paying into Medicare. Bottom line: Medicare is most certainly a form of nationalization.

Government’s effective control of the health-care system is only a notorious example of government’s distortion of free-market mechanisms. It is easier to list those markets in which the government doesn’t intervene (namely, “black markets”) than it is to list those markets in which the government does intervene. There simply isn’t a lawful business activity that isn’t affected by government regulation.

If, for example, I wished to turn this blog into a business by selling advertising space on it, I would (or should) get a business license from the city, pay property tax on my computer (as a piece of business equipment), keep a set of business books for tax purposes, file a special income tax return (Schedule C, at a minimum), and pay additional Social Security taxes at the rate for self-employed persons. If business thrived and I hired someone to help me produce the blog (or handle the paperwork), that would compound my compliance problem and the cost of dealing with it.

Alternatively, I could ignore the law and run the risk of being caught and fined or even imprisoned. That’s a risk that I might take for the sake of a low-profile blog. It’s not a risk that I would take for the sake of making big bucks as an untrained, unlicensed M.D., though it is a risk that others (sometimes trained but unlicensed doctors) have been willing to take.

In summary, government intervention in the market for any product or service tends to reduce the supply of that product or service.

But, but, but…the proponents of regulation say…if government didn’t require doctors to pass licensing exams people wouldn’t know if they were being served by “good” or “bad” docs (not to mention lawyers, electricians, plumbers, and beauticians). Similarly, if the FDA didn’t approve drugs, people wouldn’t know if they were buying efficacious drugs or snake oil. And so on and so forth.

Are all medical school graduates equally competent? Are all medical school graduates who pass licensing exams equally competent? Is the doctor who barely passes the exam significantly better than the doctor who barely flunks it? The correct answer in every instance is “no.”

Do medical licensing exams weed out a large percentage of incompetent doctors? It’s not obvious that they do. Statistics for takers of the <a href="

http:// http://www.usmle.org/news/2002perf.htm”>U.S. Medical Licensing Examination in 2002 indicate that about 85% of first-time takers of the exam from allopathic (conventional) medical schools in the U.S. and Canada successfully complete all three steps of the exam. With re-takes, the percentage successfully completing all three steps is expected to be 97%. Osteopaths have a lower success rate — 60% for first-takers — but they represent only 2% of the first-takers from U.S. and Canadian medical schools.

The only real weeding-out takes place among graduates of medical schools outside the U.S. and Canada. First-takers from those medical schools have only a 34% success rate. This weeding-out may reflect incompetence in English — even though applicants had to pass an English-language proficiency exam — as much as it does incompetence in medicine. These results suggest a simple strategy of avoiding doctors who weren’t trained in the U.S. or Canada — a strategy that many Americans follow instinctively.

As for graduates of medical schools in the U.S. and Canada, you’re on your own. When you go to a licensed doctor for the first time you will probably have no clue about that doctor’s competence. You can avoid the relatively few doctors who have been disciplined because most States now make such information available online. You can get recommendations from family, friends, and acquaintances, but those recommendations may tell you more about a doctor’s “bedside manner” than about his or her competence. And in some large cities you can find lists in local magazines for the “best” doctors, by specialty, though you will have no idea of the criteria underlying such lists. In the end, you’ll simply hope that your doctor is competent, if not warm and fuzzy.

You’ll learn from experience whether your doctor seems competent, just as you’ll learn from experience whether your auto mechanic is competent (and honest) or merely a smiling face. So much for licensing as a boon to consumer choice.

Never Relent: A Tale of Libertarian Dissent

I’m a heretic from libertarian orthodoxy on two major issues: immigration (which I’d tighten considerably) and pre-emptive war (which I favor). I’m also willing to give law-enforcement agencies the benefit of the doubt when it comes to snooping in search of terrorist conspiracies.

I’m still a staunch libertarian on most other issues, but when it comes to terrorists, I say keep them out (or as many as we can), kill as many as possible before they get here, and if they get here, catch them before they kill us. I don’t want my murder to be avenged by justice or retribution, I want to fully enjoy my golden years in the sunshine. I want the same for my wife, my children, my grandchildren, and all my progeny.

When my wife and I turned on our TV set that morning of 9/11/01, the first plane had just struck the World Trade Center. A few minutes later we saw the second plane strike. In that instant a horrible accident became an obvious act of terror. Then, in the awful silence that had fallen over Arlington, Virginia, we could hear the “whump” as the third plane hit the Pentagon.

Our thoughts for the next several hours were with our daughter, whom we knew was at work in the adjacent World Financial Center when the planes struck. Was her office struck by debris? Did she flee her building only to be struck by or trapped in debris? Was she smothered in the huge cloud of dust? Because telephone communications were badly disrupted, we didn’t learn for several hours that she had made it home safely.

Thousands of grandparents, parents, husbands, wives, children, grandchildren, lovers, and good friends — the survivors of the 3,000 who died that day in Manhattan, the Pentagon, and western Pennsylvania — did not share our good fortune. Never forgive, never forget, never relent.

The Erosion of the Constitutional Contract

Contracts come in many forms and serve many purposes. They may be as informal and ephemeral as the understanding between barber and customer that the barber will cut the customer’s hair and the customer will pay the barber a certain amount of money for the haircut. They may be as solemn and hopefully eternal as marriage vows.

In the public realm there is no more solemn contract than the Constitution of the United States. But the great national crises of the Twentieth Century — especially the Depression and World War II — fostered the habit of giving illegitimate power to the federal government. Thus the constitutional contract and the pillars of the Constitution — the States and citizenry — have been undermined.

The immense, illegitimate power that has accrued to the federal government cannot be found in the Constitution. It arises from the cumulative effect of generations of laws, regulations, and court rulings — each ostensibly well-meant by its perpetrators.

The habit of recourse to the federal government has become a destructive cycle of dependency. Elected representatives and non-elected elites have vested unwarranted power in the federal government to deal with problems “we” face — problems the federal government cannot, for the most part, begin to solve and which it demonstrably fails to solve many more times than not. The conditioned response to failure has been to cede more power (and money) to the federal government in the false hope that the next increment will get the job done.

There has been much bold talk in recent times about making the federal government smaller and devolving federal power to the States. The bottom line is that the executive branch still regulates beyond its constitutional license, Congress still passes laws that give unwarranted power to the federal government, and federal spending still consumes about the same fraction of economic output that it did two decades ago.

To break out of this cycle of addiction, we must restore the constitutional contract and thus enable the States and citizens — especially citizens — to realize their economic, social, and spiritual potential.

The Constitutional Contract, Its Reach, and Its Principles

The Constitution is a contract between the States. In it, the States cede certain powers to a government of the united States, created by the States on behalf of the States and their citizens. Thus, for example, in Section 10 of Article I, the States voluntarily deny themselves certain powers that in Section 9 they vest in Congress — creation of money, regulation of trade among the States and between the States and other nations, conduct of foreign relations, and conduct of war.

The Preamble lists the States’ reasons for entering into the constitutional contract, which are “…to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity….” These are ends desired, not outcomes promised.

To further these ends, the Constitution establishes a government of the united States, and authorizes it to enact, execute, and adjudicate laws within a delimited sphere of authority. The Constitution not only delimits the federal government’s authority but also diffuses it by dividing it among the federal government’s legislative, executive, and judicial branches.

The Framers knew what we are now only re-learning: A government is a power-hungry beast — even a representative government. More power in the hands of government means less power for individuals. Individuals are better off when they control their own lives than when government, directly or indirectly, controls their lives for them.

Thus the limited scope of the constitutional contract provides for:

• primacy of the federal Constitution and of constitutional laws over those of the States (This primacy applies only within the limited sphere of authority that the Constitution grants to the federal government. The federal government is not, and was not intended to be, a national government that supersedes the States.)

• collective obligations of the States, as the united States, and individual obligations of the States to each other

• structure of the federal government — the three branches, elections and appointments to their offices, and basic legislative procedures

• powers of the three branches

• division of powers between the States and federal government

• rights and privileges of citizens

• a process for amending the Constitution.

The principles embodied in the details of the contract are few and simple:

• The Constitution and constitutional laws are the supreme law of the land, within the clearly delimited scope of the Constitution.

• The federal government has no powers other than those provided by the Constitution.

• The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the federal government or reserved by the States in the creation of the federal government.

The Limits of Federal Power

The Constitution may be the “supreme law of the land” (Article VI), but as the ardent federalist Alexander Hamilton explained, the Constitution “expressly confines this supremacy to laws made pursuant to the Constitution…[Federalist number 33].”

Thus the authority of the federal government — the government formed by the united States — enables the States to pursue common objectives. But that authority is limited so that it does not usurp the authority of States or the rights of citizens.

Moreover, the “checks and balances” in the Constitution limit the federal government’s ability to act, even within its sphere of authority. In the legislative branch neither the House of Representatives nor the Senate can pass a law unilaterally. In his sole constitutional role — as head of the executive branch — the President of the United States must, with specified exceptions, sign acts of Congress before they become law, and may veto acts of Congress — which may, in turn, override his vetoes. From its position atop the judicial branch, the Supreme Court is supposed to decide cases “arising under” (within the scope of) the Constitution, not to change the Constitution without benefit of convention or amendment.

The Constitution itself defines the sphere of authority of the federal government and balances that authority against the authority of the States and the rights of citizens. Although the Constitution specifies certain powers of the federal executive and judiciary (e.g., commanding the armed forces and judging cases arising under the Constitution), federal power rests squarely and solely upon the legislative authority of Congress, as defined in Article I, Sections 8, 9, and 10. The intentionally limited scope of federal authority is underscored by Amendments IX and X; to repeat:


The rights of citizens include not only those rights specified in the Constitution but also any unspecified rights that do not conflict with powers expressly granted the federal government or reserved by the States in the creation of the federal government.

The Rise of Unconstitutional Laws and Regulations

The generations of laws and regulations that have seized the powers and rights of States and citizens are, to put it plainly, unconstitutional. Most such laws and regulations seem to rest on these foundations:

• the phrase “promote the general welfare” in the Preamble. This was a desired result of the adoption of the Constitution, not an edict to redistribute income and wealth.

• the power of Congress “to regulate commerce…among the several states [Article I, Section 8].” This power was meant to prevent the States from restricting or distorting the terms of trade across their borders, not to enable the federal government to dictate what is traded, how it is made, or how businesses operate.

• the authority of Congress “[t]o make all Laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof [Article I, Section 8].” The words “necessary and proper” have been wrenched out of their context and used to turn the meaning of this clause upside down. It was meant to limit Congress to the enactment of constitutional legislation, not to give it unlimited legislative authority.

• the “equal protection” clause of Amendment XIV: “…nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” Amendment XIV was meant to secure the legal equality of those former slaves whose freedom had been secured by Amendment XIII. Amendment XIV became, instead, the basis for Supreme Court decisions and federal laws and regulations that have given special “rights” to specific, “protected” groups by curtailing the constitutional rights of the many who cannot claim affiliation with one or another of the “protected” groups. As the proponents of such groups might ask, is it fair?

Restoring the Constitutional Contract

The constitutional contract charges the federal government with keeping peace among the States, ensuring uniformity in the rules of inter-State and international commerce, facing the world with a single foreign policy and a national armed force, and assuring the even-handed application of the Constitution and of constitutional laws. That is all.

It is clear that the contract has been breached. Only by restoring it and reversing generations of federal encroachment on the rights and powers of the States and people can we “secure the Blessings of Liberty to ourselves and our posterity.”

In a future post I will link to a restored constitutional contract, one that would undo the damage that has been done to the Framers’ great work.

First Principles

A society is formed by the voluntary bonding of individuals into overlapping, ever-changing groups whose members strive to serve each others’ emotional and material needs. Government — regardless of its rhetoric — is an outside force that cannot possibly replicate societal bonding, or even foster it. At best, government can help preserve society — as it does when it deters aggression from abroad or administers justice. But in the main, government corrodes society by destroying bonds between individuals and dictating the terms of social and economic intercourse — as it does through countless laws, regulations, and programs, from Social Security to farm subsidies, from corporate welfare to the hapless “war” on drugs, from the minimum wage to affirmative action. On balance, the greatest threat to society is government itself.

The constitutional contract charges the federal government with keeping peace among the States, ensuring uniformity in the rules of inter-State and international commerce, facing the world with a single foreign policy and a national armed force, and assuring the even-handed application of the Constitution and of constitutional laws. That is all.

The business of government is to protect the lawful pursuit and enjoyment of income and wealth, not to redistribute them.

Liberty is the right to make mistakes, to pay for them, and to profit by learning from them.

The most precious right is the right to be left alone.