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Updated: 2018-01-22T00:00:00-05:00


Inconceivable Rights: I Do Not Think That Word Means (Just) What You Think It Means


A reader writes, in response to my post on the different meanings of the word "right": A right is an inherent moral claim the exercise of which does not require anything of another party. It seems that the definitions currently at play are infected with postmodernism. Here's the problem: Whatever the reader might want the word "right" to be limited to, the word as it is actually used in American legal and political discourse has long extended much more broadly. [1.] For instance, the word has extended beyond inherent moral rights to include rights that everyone understood as political decisions within a particular political system or a political tradition. Consider, for instance, the Articles of Confederation provision, The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war. There is no reason to think that anyone saw this as involving an inherent moral claim. Were the drafters saying, for instance, that it's immoral for states to determine peace and war? No. Were they saying that it would be immoral for the power to be lodged elsewhere, for instance with the President signing and the Senate ratifying a peace treaty (the system Americans implemented a dozen years later in the U.S. Constitution)? No. They were just setting up a particular political settlement of a particular political decisionmaking authority. Or consider the Virginia Declaration of Rights of 1776, which provided, That in all capital or criminal prosecutions a man has a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of twelve men of his vicinage, without whose unanimous consent he cannot be found guilty. No-one viewed the right as an "inherent moral claim"; indeed, when Madison proposed the federal Bill of Rights, he recognized that the right to trial by jury wasn't a "natural right," but was a "positive right[], which may seem to result from the nature of the compact" (referring to the decision of "the people in forming and establishing a plan of government"). Certainly the requirement that there be 12 jurors couldn't be an inherent moral assertion. Rather, the right was a political decision established by English legal traditions. [2.] Likewise, the word has long extended to include claims on other parties. For instance, the Pennsylvania Declaration of Rights of 1776 provided, That every member of society hath a right to be protected in the enjoyment of life, liberty and property, and therefore is bound to contribute his proportion towards the expence of that protection, and yield his personal service when necessary, or an equivalent thereto. A right to protection is a right that does require something of another party (here, the government, or at least the rest of society). Yet it was easy to label it as right (though here, I suspect, one that was being recognized as a solemn political obligation but not a judicially enforceable one). Similarly, from the same document, But if any man is called into public service; to the prejudice of his private affairs, he has a right to a reasonable compensation. That is a right to be paid by taxpayers (though there too the expectation was that the right would be secured by political decisions, rather than by judicial ones). [3.] And we can likewise see "right" used to include judicially enforceable demands on other parties -- and demands to get someone to do things, rather than just demands that others leave you alone. The Contracts Clause, for instance, was seen as securing important private rights, but these were rights to get the government to enforce your contracts. Thus, from Chief Justice Marshall in the Darmouth College case (1819) agreed with the proposition that "state legislatures were forbidden 'to pass any law impairing the obligation of contracts,' that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself." Likewi[...]

Vermont Becomes the Ninth State to Legalize Recreational Marijuana


(image) Today Vermont Gov. Phil Scott signed a bill making his state the ninth to legalize marijuana for recreational use and the first to do so through the legislature rather than a ballot initiative. The new law, which takes effect on July 1, allows adults 21 or older to possess up to an ounce of marijuana in public, to grow up to six plants (two of them mature at any one time) per household, and to keep whatever they produce.

"After more than 15 years of hard work by [the Marijuana Policy Project] and our allies in the state, adults in Vermont no longer need to fear being fined or criminalized for low-level marijuana possession and cultivation," says Matt Simon, MPP's New England political director. "Responsible adults will soon have the freedom to enjoy a safer option legally, and law enforcement will be free to concentrate on serious crimes with actual victims."

Unlike the initiatives that legalized recreational marijuana in Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon and Washington, the Vermont law does not permit commercial production or distribution. But it creates a Marijuana Regulatory Commission (with the same membership as the advisory commission that Scott appointed last September) that is charged with studying "regulation and taxation of a commercial adult-use marijuana market that is economically sustainable, reduces the illegal marijuana market, [and] results in net revenues to the State after appropriate costs for education, public health and public safety have been deducted." The commission is required to produce a final report by the end of the year.

Scott, a Republican who vetoed a previous legalization bill last May, is not keen on commercialization. In a message to the General Assembly, he expressed "mixed emotions" about signing the bill. "I personally believe that what adults do behind closed doors and on private property is their choice, so long as it does not negatively impact the health and safety of others, especially children," he said. But he added that he still has "reservations about a commercial system which depends on profit motive and market driven demand for its growth."

Still, Scott indicated that he might be open to going further in the future. "I look forward to the Marijuana Advisory Commission addressing the need to develop comprehensive education, prevention and highway safety strategies," he said. "There must be comprehensive and convincing plans completed in these areas before I will begin to consider the wisdom of implementing a commercial 'tax and regulate' system for an adult marijuana market. It is important for the General Assembly to know that—until we have a workable plan to address each of these concerns—I will veto any additional effort along these lines which manages to reach my desk."

Sexual Politics Needs More Economics: Podcast


Does the fraught conversation around #MeToo and sexual mores need more Peter Suderman explaining that, well actually, we really should be viewing things more through the lens of long-tail economics? The question answers itself. Today's Reason Podcast, which also features Katherine Mangu-Ward, Robby Soave, and yours truly, veers headlong into such touchy subjects, including the generational divide over consent and agency, the gap between federal directives and on-the-ground adjudications of campus sexual assault, the efficacy (or lack thereof) of the Children's Health Insurance Program (CHIP), and what Education Secretary Betsy DeVos has to do with National School Choice Week. Kick the whole shebang is a round of derision and glee about the abortive government shutdown. Audio production by Ian Keyser. Relevant links from the show: "Reminder: The Parts of the Federal Government Authorized to Shoot You Are Still Functioning," by Scott Shackford "The Government Shutdown Is an Artifact of a Broken Budget Process," by Peter Suderman "Vanessa Grigoriadis on the 'Blurred Lines' of Consensual Sex and Assault on Campus," by Nick Gillespie and Justin Monticello "The Fragile Generation," by Lenore Skenazy and Jonathan Haidt "Betsy DeVos Withdraws 'Dear Colleague' Letter That Weaponized Title IX Against Due Process," by Robby Soave "The Case for School Choice Is Overwhelming From Every POV Except One," by Nick Gillespie "To Reduce Campus Rape, Legalize Pot and Alcohol," by Robby Soave "Crowding Out Private Coverage: The Cost of Expanding Children's Health Insurance," by Peter Suderman Subscribe, rate, and review the Reason Podcast at iTunes. Listen at SoundCloud below: src="" width="100%" height="300" frameborder="0"> Don't miss a single Reason podcast! (Archive here.) Subscribe at iTunes. Follow us at SoundCloud. Subscribe at YouTube. Like us on Facebook. Follow us on Twitter. [...]

Aziz Ansari, Bad Sex, and the Dangers of 'Relying on Nonverbal Cues or Mind Reading'


CNN asked me to contribute to a roundup of comments on "how to date in 2018." The prompt was last week's news about actor Aziz Ansari, who was accused of mistreating a woman—ignoring her nonverbal protestations—during an intimate encounter at his apartment. As I wrote in the CNN piece: What allegedly happened to "Grace" in Aziz Ansari's apartment was unpleasant, but almost nobody believes it was sexual assault. Most of the pundits who weighed in called it bad sex or worse, but not anything violent or criminal. Grace herself disagreed; she told that "after a really long time," she came to view the experience as assault rather than mere awkwardness. Ansari released a statement that said he thought the encounter was "completely consensual." It's not just the pundits. I was on Michael Smerconish's Sirius XM radio program last week when he revealed the results of a poll of his listeners, 95 percent of whom did not believe Ansari's behavior constituted sexual assault. Differences of opinion seem especially pronounced between older and younger feminists. Matt Welch highlighted those differences—vis a vis a feud between HLN's Ashleigh Banfield and reporter Katie Way—in a recent Reason blog post. I don't know the ages of the other participants in the CNN roundup, and I probably shouldn't try to guess from looking at their pictures. But opinions here seemed more mixed. Jaclyn Friedman, an activist, wrote that she hopes the #MeToo movement will "scare men into finally paying attention to women as people, whether that means realizing that they probably don't want to be hit on at work, or finally paying attention to what their female partners are experiencing during sex....No more excuses about not being a mind reader or women who aren't forthright enough." Katie Anthony, a feminist blogger, pushed the envelope even further: You need to know that when you take her back to your apartment, there is a part of her that wonders if she's going to die there. Not every time, not every woman. But enough of us, and often. The threat of harm is a flip of the coin with deadly stakes. A 2017 CDC report found that half of murdered women died at the hands of a current or former partner (or their family or friends). With this knowledge, we know we must say no; we also know that resistance could cost us our lives. Say no; go along. Be strong; be easy. According to Anthony, women can't really just say no—the threat of violence is always around the corner. She even deployed a "coin flip" metaphor, wrongly implying there's a 50-50 chance that a date ends violently. Roxanne Jones,* a founding editor of ESPN Magazine, took a much different position: The biggest takeaway of the Aziz Ansari story is that women and girls have to learn to talk, out loud, about our sexuality. It's time to shed the Victorian-era notions still clinging to women—even those who call themselves feminists—that make it shameful to tell a man exactly what we want sexually, and how we want it. It's dangerous to rely on non-verbal cues or mind reading to tell a guy you're OK with oral sex (giving and receiving) and making out on the couch but you do not want to go all the way, as did the woman who called herself "Grace" in the story about her date with Ansari. Speaking up is difficult but there is no better time than this #MeToo moment for women to find their voices, not just to expose real predators who sexually harass and assault women, but overly zealous men, as the Babe article portrays Ansari to be, who may think "yes" to a date at his place automatically means "yes" to sex.... I wrote a column in 2013 advising my college-age son to get a text message from women to indicate they had consensual sex. Just in case, as in the Ansari story, the woman goes home feeling violated because he failed to read her non-verbal cues. I got a lot of criticism for that piece but I still stand by it. When it comes to dating in 2018, let's talk about sex. And if [...]

Maryland Gov. Larry Hogan Takes Cronyism to the Next Level With $5 Billion Bid for Amazon Headquarters


Amazon has narrowed the list of places where it might put its second headquarters down to 20. Maryland's Republican governor, Larry Hogan, is so excited that Montgomery County made the shortlist that he's offering Amazon a new $5 billion package of incentives. "Amazon sent a clear signal that Maryland truly is open for business by selecting Montgomery County as one of an elite group of contenders for this transformative project," Hogan said today as he unveiled the sycophantically named Promoting ext-Raordinary Innovation in Maryland's Economy (PRIME) Act. The PRIME Act offers a lot of sweeteners. It includes 10 years of tax credits against any state and local property taxes, plus a 10-year exemption on any sales taxes owed by Amazon on purchases of construction equipment and warehouse equipment. Maryland would also give Amazon a 10-year tax credit to cover state income taxes paid by any employee Amazon hires within 17 years of setting up shop in the state, as long as that employee earns between $60,000 and $500,000. And it's not just tax abatements. The proposal offers the online retailer $150 million in direct grants. Add the legislation's road, transit, and infrastructure upgrades, and the whole package comes to $5 billion—the same amount Amazon plans to spend on the new headquarters. Luring businesses with corporate handouts is a long-lived American tradition. For instance, Washington state—home of Amazon's current headquarters—has given the aviation giant Boeing $11.9 billion to stay in town. Likewise, Amazon's competitor in the retail market, Walmart, is notorious for scooping up development grants, tax abatements, and any other form of pork it can from the jurisdictions where it sets up shop. The group Good Jobs First calculated in 2011 that Walmart was pulling down $70 million of these incentives annually. The inevitable justification for these giveaways is that they will more than make up for the costs by bringing new jobs, new spending, and new investment to an area. Hogan, for example, says Amazon is offering "the single greatest economic development opportunity in a generation, and we're committing all of the resources we have to bring it home to Maryland." Hogan is indeed bringing all the resources he can to bear with the PRIME Act, which at this point is the second most generous incentive package to be offered in the Amazon bidding war. (New Jersey had offered the company $7 billion, but the state failed to make the final cut.) Yet every dollar the governor is offering will have to be paid by someone. If the PRIME Act passes and Amazon comes to Maryland, residents and businesses without the political clout of a multi-billion-dollar multinational will suffer a higher tax burden. Maryland Senate President Mike Miller (D-Calvert) has already criticized Hogan along those lines, telling the Washington Post that he'd like to see the state give more aid to Baltimore and higher hospital funding in Prince George County before it offers billions to one of the world's wealthiest corporations. Hogan won the governorship in deep-blue Maryland in part on his promise of creating a more business-friendly, fiscally responsible state government. His PRIME Act betrays those promises. And it encourages the other places on Amazon's shortlist to stoop even lower to cinch the deal. Reason TV highlighted highlighted the dangers of that in a recent, all too realistic, video: src="//" allowfullscreen="allowfullscreen" width="560" height="314" frameborder="0"> [...]

The Government Shutdown Is Over for Now


Senate Democrats supplied the necessary votes to reopen the federal government after striking a temporary deal with Senate Majority Leader Mitch McConnell (R-Ky.), according to multiple media reports this afternoon. McConnell, speaking on the Senate floor Monday morning, promised to have a "fair" debate on an immigration bill with an open amendment process as long as Democrats voted to re-open the government by helping Republicans pass a continuing resolution (CR). The CR bill passed with an 82–18 vote in the Senate shortly after noon. Democrats had withheld their support last week in order to force a settlement on the so-called "DREAMers," immigrants who entered the country illegally as children and were given special status by the Obama administration with the Deferred Action for Childhood Arrivals (DACA) policy. Those individuals could be deported beginning in mid-March, unless Congress or the White House extend the protections included in the DACA bill, something President Donald Trump has said he will not do. Senate Minority Leader Chuck Schumer (D-N.Y.) accepted that deal, which will keep the government open for another three weeks. Significantly, the more progressive wing of the Democratic caucus—including Sens. Elizabeth Warren (D-Mass.) and Bernie Sanders (I-Vt.)—largely voted against the CR on the Senate floor Monday. FINAL LIST of Senate Dems who just voted against reopening the govt without protections for DREAMers: Blumenthal, Booker, Cortez Masto, Feinstein, Gillibrand, Harris, Hirono, Leahy, Markey, Menendez, Merkley, Murphy, Sanders, Tester, Warren, Wyden — Jennifer Bendery (@jbendery) January 22, 2018 Monday's action starts the clock ticking on the next shutdown, which could happen February 8 if no deal is reached on immigration and several other issues. Republicans are seeking to lift spending caps on order to pump more money into the Pentagon, Trump wants funding for his border wall, and Democrats want a path to citizenship for the DREAMers. In other words, the fundamental disagreements that led to this shutdown have not been resolved in any meaningful way. Even if McConnell allows an immigration bill to reach the Senate floor, right-wing opposition to even the most basic immigration reforms—here's where we remind you that more than 80 percent of Americans say the DREAMers should be allowed to become U.S. citizens—could sink the effort, either in the Senate or in the House. If that happens, Democrats could use their leverage to force another shutdown. Congressional dysfunction remains high. We're no closer to having an actual federal budget. Republicans are determined to increase spending, even if that requires devising ways to ignore or abolish spending caps they helped implement in the Obama years. The three-week CR is laughably short. This isn't governing from crisis to crisis so much as it's governing from paycheck to paycheck in the midst of a never-ending crisis. Complicating matters is the fact that no one seems to know what Trump wants out of a potential long-term deal—including, possibly, Trump himself. The president has flip-flopped on DACA several times since taking office, and he may have torpedoed a bipartisan immigration deal with his remark about "shithole countries" two weeks ago. Trump was largely silent, except for a few tweets, during the three-day shutdown; it's hard to imagine how Republicans will walk an incredibly thin tightrope on immigration policy without guidance and political cover from the White House. The Panda Cam is on for now, but don't get too attached to it. [...]

Rand Paul's Neighbor Faces Federal Charges for Attack


The world wondered what possessed Rene Boucher, a retired anesthesiologist, to assault his neighbor Rand Paul in November, breaking at least six of the Kentucky senator's ribs and damaging his lungs. Was it political, stemming from Boucher's allegiance to the Democratic Party? Was Donald Trump's "sinister banality" to blame?


Now the official federal charges have come down. They say the motive was, as Boucher's lawyers stated earlier, a dispute over Paul's lawn care style.

As the announcement from the Justice Department sums it up, "Boucher allegedly witnessed the victim stack brush onto a pile near the victim's property and 'had enough.' Boucher ran onto the victim's property and tackled the victim. As a result of this assault, the victim suffered multiple fractured ribs and subsequently contracted and required medical attention for pneumonia. Boucher admitted the assault but denied it was politically motivated."

The charges are federal because Boucher chose to attack a senator, and that's not a typical state assault charge but a federal offense. The Justice Department's announcement quotes Amy Hess of the FBI's Louisville field office: "[T]he FBI will not tolerate violence directed against members of Congress. Those who choose to assault any federal official are certain to face serious consequences."

Boucher has already pleaded guilty to the charge, though "no date has been set for the taking of his guilty plea and the imposition of sentence." He could face as many as 10 years in prison and a fine of up to $250,000.

The Case Against Education: Economist Bryan Caplan Says Government Spending of $1 Trillion a Year on Schooling Is a Waste (New at Reason)


src="" allowfullscreen="allowfullscreen" width="560" height="340" frameborder="0">

"It's absolutely true that school makes people show up, sit down, shut up and that these are useful skills for people to have in adulthood, " says Bryan Caplan, a professor of economics at George Mason University, who blogs at EconLog, and is the author of the new book The Case Against Education: Why the Education System Is a Waste of Time and Money. "So the real question is if all we're trying to do is prepare people for a job, why not prepare them with a job?"

Caplan argues that schools are not only overpriced, but that traditional education fails to prepare students with job skills that reflect the needs of the labor market.

Reason's Nick Gillespie sat down with Caplan to make the case that the government needs to spend so much on education if it isn't relevant to our success in getting a job and earning higher wages.

Reason is a proud media partner of National School Choice Week, an annual event promoting the ability of parents and students to have greater options in K-12 education. Go here [] to get more information about events and data about how increasing school choice--charters, vouchers, educational savings accounts, and more—is one of the best ways to improve education for all Americans. For a constantly updated list of stories on education, go to Reason's archive page on "school choice".

Click here for full text, a transcript, and downloadable versions.

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The Case Against Education: Economist Bryan Caplan Says Government Spending of $1 Trillion a Year on Schooling Is a Waste


"It's absolutely true that school makes people show up, sit down, shut up and that these are useful skills for people to have in adulthood, " says Bryan Caplan, a professor of economics at George Mason University, who blogs at EconLog, and is the author of the new book The Case Against Education: Why the Education System Is a Waste of Time and Money. "So the real question is if all we're trying to do is prepare people for a job, why not prepare them with a job?" Caplan argues that schools are not only overpriced, but that traditional education fails to prepare students with job skills that reflect the needs of the labor market. Reason's Nick Gillespie sat down with Caplan to make the case that the government needs to spend so much on education if it isn't relevant to our success in getting a job and earning higher wages. Reason is a proud media partner of National School Choice Week, an annual event promoting the ability of parents and students to have greater options in K-12 education. Go here [] to get more information about events and data about how increasing school choice--charters, vouchers, educational savings accounts, and more—is one of the best ways to improve education for all Americans. For a constantly updated list of stories on education, go to Reason's archive page on "school choice". Interview by Nick Gillespie. Edited by Alexis Garcia. Camera by Meredith Bragg and Mark McDaniel. AM Trans by Podington Bear is licensed under a Creative Commons Attribution license ( Source: Artist: Mimas by Sounds Like An Earful is licensed under a Creative Commons Attribution license ( Source: Artist: Subscribe to our YouTube channel. Like us on Facebook. Follow us on Twitter. Subscribe to our podcast at iTunes. This is a rush transcript. Check all quotes against the audio for accuracy. Nick Gillespie: I'm Nick Gillespie for Reason and today we are talking with the author of what is almost certainly going to be the most controversial book of the year. Bryan Caplan is an economics professor at George Mason University, and his new book is The Case Against Education. Bryan, thanks for talking with Reason. Bryan Caplan: Thanks for such an exciting introduction. Gillespie: Well, let's get right to it. Early on you say flatly, you write flatly, 'This book argues that our education system is a big waste of time and money.' And now you're not simply saying that our schools are overpriced and uneven in quality, you are actually making the case that much of our traditional education system, especially higher ed, is literally a waste of time, right? Caplan: Absolutely. Gillespie: What do you mean by that? Caplan: What I mean is that people are going there to get a higher income, but they're actually not getting much in the way of job skills, which raises a big puzzle for an economist. How can they be getting a higher income if they're not getting much in the way of job skills? And my answer comes down to something called the signaling model of education that says that a lot of the reason why education pays isn't that you learn useful skills, but that you distinguish yourself. That you're getting stamped or labeled. You're getting a sticker on your forehead, Grade A worker. Gillespie: So it's kind of like you come out as a piece of steak. You're USDA prime, but you haven't been cooked yet. Well, you haven't ... Caplan: Precisely. And the the key thing about this is, selfishly speaking, it doesn't really matter why you're getting more money. But from a social poin[...]

Study of Postsurgical Patients Shows Addiction to Pain Pills Is Rare


A new BMJ study of patients who received opioid analgesics after surgery, touted as evidence of how risky such prescriptions are, actually shows how rarely people become addicted in the course of treatment for acute pain. Tracking 568,612 opioid-naive patients who took prescription pain medication following surgery, Boston surgeon Gabriel Brat and his colleagues found that 5,906, or 1 percent, showed signs of "opioid misuse" during the course of the study, which included data from 2008 through 2016. The outcome measure that Brat et al. used, "opioid dependence, abuse, or overdose," is a broad category that includes patterns of use falling short of what most people would recognize as addiction. That means the actual addiction rate in this study was less than 1 percent, although it's not clear how much less. The researchers note that "overall rates of misuse were low" but do not play up that angle. Instead they emphasize that the risk of misuse increases with the duration of the prescription. "Each refill and week of opioid prescription is associated with a large increase in opioid misuse among opioid naive patients," Brat et al. write. For instance, "the rate of misuse more than doubled among those with one refill...versus those with no refills." But if you take a low number and double it, the number is still pretty low. The researchers say the incidence of opioid misuse rose from 145 cases per 100,000 person-years (roughly 0.15 percent annually) for patients with no refills to 293 cases per 100,000 person-years (0.29 percent annually) for patients who had one refill. The corresponding addiction rates would be substantially lower. "Our study is highly suggestive of the conclusion that getting a refill increases your chances of opioid addiction," Brat told MedPage Today. "For surgical patients, it may be that we should focus less on the dose of opioids immediately after discharge and more on the length of time a patient is exposed to opioids." Maybe, although the causality behind the correlation identified in this study may not go in the direction Brat suggests. It seems plausible that patients who like the psychoactive effects of opioids would be more inclined to ask for refills, in which case patients who are predisposed to addiction would be overrepresented in the group that received them. In other words, getting a refill may be a result rather than a cause of a higher addiction risk. Either way, the overall results of this study should be reassuring, rather than alarming, for anyone who worries about getting hooked on pain pills after surgery. You would not get that impression from the MedPage Today story. "Each postsurgical opioid refill was associated with a 44% increase in misuse among opioid-naïve patients," reporter Judy George says in the second paragraph. "Likewise, each additional week of prescriptions bumped the risk of opioid misuse up nearly 20%, and misuse rates escalated when patients received more than 9 weeks of drugs." A dozen paragraphs later, we learn that "overall rates of misuse were low" and get some sense of what that means in terms of rates. George is so keen to play up the risk of addiction that she says "the risk was nonzero even [when] prescription durations were shorter than 2 weeks." Nonzero is what science reporters say they think negligible is not scary enough. [...]

The Trump Effect: White Men Stand Alone?


White women are souring on the Republican Party, according to a new ABC News/Washington Post poll, leaving white men alone as a pro-GOP voting block. An early measure of voter mood going into the midterm elections, the poll asked whether people were more likely to vote for Democratic or Republican congressional candidates this November. Democrats were the preferred choice overall, earning a 12-point lead over Republicans among registered voters and a 14-point lead among respondents who said they would definitely vote this fall. The "Democrats' 12 percentage-point advantage on this 'generic ballot' question is the largest in Post-ABC polling since 2006," notes Post pollster Scott Clement. Republican candidates did come out on top among male respondents: 51 of all the men surveyed and 48 percent of male registered voters said they would vote GOP in the midterms. The GOP was also the preferred choice among white voters overall, with 48 percent saying they favored Republican candidates and 43 percent backing Democrats. Meanwhile, just 19 percent of nonwhite voters told pollsters they would vote Republican. Sixty-nine percent said they'd vote Democrat. That much looks a lot like what we saw in the 2016 election, when voters of color overwhelmingly backed Hillary Clinton and when Trump was tops with white voters. According to exit polls, about 58 percent of (non-Hispanic) white voters supported Trump, while 66 percent of Hispanic voters and 88 percent of black voters chose Clinton; among black female voters, Clinton's support jumped to 93 percent. Men were also more likely to be Trump voters (53 percent to 41 percent) in 2016, while women were more likely to support Clinton (54 percent to 42 percent). But nonwhite men voted more like their nonwhite female counterparts than like white men, and white women voted more like white men than like their female counterparts of color. According to exit polls, some 53 percent of white women who voted in the 2016 presidential election chose Trump, giving him a nine-point lead over Clinton with this cohort. White women were also more likely to choose Republican candidates in the 2014 midterm elections, by 14 points. This latest survey marks a change. White female voters now poll more like women (and men) of color than like white men. Among registered voters, the poll showed white women preferring Democrats by a 12-point lead. Some 50 percent said they would vote Democrat in the 2018 midterms, with only 38 percent preferring GOP candidates. Non-white female voters preferred Democrats by a 53-point margin. Overall, 64 percent of all women polled preferred Democrats (up from 55 percent in fall 2017), with 29 percent preferring Republicans. The score was 57–31 in Democrats' favor when we consider only women who are registered voters. And two-thirds of this group said they "strongly disapprove" of Trump's presidential performance so far. The only group in the survey to overwhelmingly support the GOP was white men. Among the registered white, male voters surveyed, 58 percent said they would vote Republican in the 2018 midterm elections and only 34 percent said they would vote Democrat. It seems the "Trump effect" on electoral politics so far has been to push white women away from the Republican Party and further isolate white men's voting preferences. The poll was conducted January 15–18, 2018, and it included 1,005 American adults, 846 of which were registered voters. Overall, 31 percent identified as Democrat, 23 percent as Republican, and 40 percent as independent. Independents were more likely to support Democratic candidates (50 percent) than Republicans (34 percent). [...]

NYC Police Union to Limit 'Get Out of Jail Free' Cards


(image) New York City's largest police union, the Patrolmen's Benevolent Association, is limiting the number of "courtesy cards" it distributes to its membership, according to the New York Post. The paper says the group is reducing the number of cards it's giving to active police officers from 30 to 20, and to retired cops from 20 to 10. This was reportedly a reaction to the discovery that some of the cards were on sale at eBay.

The courtesy cards—or "get out of jail free cards," as the Post calls them—can be pretty valuable. While some Patrolmen's Benevolent Associations insist the cards are just public relations tools, the New York union "encourages officers to avoid ticketing cardholders," Newsday explains. The union presumably agrees with Newsday's interpretation, since it has posted the article on its website.

The cards cut to the heart of the problem with public-sector unions: They create an environment where government employees who are supposed to "serve and protect" the public instead get extra privileges. This is particularly dangerous with police unions, whose membership is armed by the state to enforce laws. Such unions regularly push for rules that protect bad cops.

The courtesy cards illuminate the culture of entitlement prevalent in much of law enforcement. Cops expect the cards to protect their friends and families from the indignity of punishment for a minor traffic violation or some other infraction of a petty law. But what about the rest of us?

"They are treating active members like shit, and retired members even worse than shit," an unnamed retired New York cop on disability told the Post. "All the cops I spoke to were very disappointed they couldn't hand them out as Christmas gifts."

Reminder: The Parts of the Federal Government Authorized to Shoot You Are Still Functioning


As the government shutdown dominates the news and partisan posturing today, you might be thinking we're temporarily freer from the oppressive hand of The Man. Don't celebrate. The feds who carry around guns and arrest people are almost all still working. Bloomberg has gone through the list of federal agencies to determine the breadth of the shutdown. Here's what they had to say about law enforcement: About 83 percent of the Justice Department's 115,000 employees will continue to report to work if the government shuts down, according to the department's contingency plan. Criminal litigation will continue without interruption; non-essential civil litigation is to be curtailed or postponed. The Federal Trade Commission will suspend antitrust investigations not related to mergers. Merger reviews by the FTC and the Justice Department will continue. The agencies say they will go to court to challenge deals if necessary. Federal courts, including the Supreme Court, have enough money from sources like fines and filing fees to continue most operations through Feb. 9, according to Jackie Koszczuk, a spokeswoman with the Administrative Office of the Courts. The Department of Homeland Security will remain largely unaffected, with 87 percent of its 232,860 employees deemed exempt from the shutdown. The department includes the Federal Emergency Management Agency, the Coast Guard and the Secret Service. The federal drug war will see no reprieve. Nasty, heartless immigration enforcement tactics will continue. Some libertarians may see any closure of the government as a win, but the Cato Institute's Jeffrey Miron explains that this partial, temporary shutdown does nothing to reduce the size and scope of government power: To begin with, shutdowns are (presumably) temporary. The average length of previous government shutdowns was seven days. And if history is a guide, then most of the suspended expenditures for salaries, benefits, and the like will be paid retroactively. If you think a shutdown helps keep the budget in check, you're wrong. Shutdowns also have zero effect on entitlements like Social Security, Medicare, Medicaid, and Obamacare, which continue automatically unless Congress explicitly amends them. Shutdowns only influence discretionary spending that has to be reauthorized every year. Because entitlements constitute the large majority (roughly 67 percent) of federal expenditure, and because this component is growing at an unsustainable rate, shutdowns cannot have any meaningful impact on the budget deficit. And even with discretionary spending, around half is exempt given that many Department of Defense and Department of Homeland Security functions are exempted from the shutdown, because they are considered "essential" services. I would add that because, unfortunately, large chunks of America's market interactions require permission from federal bureaucrats, extended federal shutdowns end up harming private economic activity. The guys with guns are at work. The guys with approval stamps are not. A shutdown means the government can't give you permission to do things, but it can sure as heck still stop you. The last time we had a federal shutdown, in 2013, I detailed some of the completely private economic activity hampered because people couldn't get permission to do their jobs. Craft brewers couldn't get labels for their products approved and thus couldn't introduce new beers into the market. Fishermen couldn't get permits for the latest season of crab-catching in the Pacific Northwest. We'll probably see more stories like this if the shutdown drags on. As I noted back then: The government is so involved in our lives that even basic commerce—simply hiring people—is threatened by polit[...]

Your Social Media Post Is Not Somebody Else's Tool: New at Reason


(image) Critics of free speech are using the same old arguments on new technologies.

A. Barton Hinkle writes:

The proper response to speech we don't like is not censorship but more speech, as the saying goes. But an increasing number of people seem to think things have gone too far. Lately, they argue, free speech has gotten out of control.

Russian attempts to meddle in the presidential election are part of the reason for this hand-wringing, but by no means the only reason. Social media enables extremism, according to its critics. It gives a platform to white nationalists. (It also gives a platform to opponents of white nationalism, but never mind.) It hijacks the reward centers of the brain, especially in teenagers. It is "ripping apart the social fabric" through "dopamine-driven feedback loops."

That last critique comes from none other than a former vice president at Facebook, Chamath Palihapitiya. Little wonder, then, that politicians and pundits also consider social media a clear and present danger. Hillary Clinton, Dianne Feinstein, Ted Cruz, Steve Bannon, Tucker Carlson—all of them have suggested that social media needs to be reined in.

View this article.

Your Social Media Post Does Not Have To Be Socially Useful


The proper response to speech we don't like is not censorship but more speech, as the saying goes. But an increasing number of people seem to think things have gone too far. Lately, they argue, free speech has gotten out of control. Russian attempts to meddle in the presidential election are part of the reason for this hand-wringing, but by no means the only reason. Social media enables extremism, according to its critics. It gives a platform to white nationalists. (It also gives a platform to opponents of white nationalism, but never mind.) It hijacks the reward centers of the brain, especially in teenagers. It is "ripping apart the social fabric" through "dopamine-driven feedback loops." That last critique comes from none other than a former vice president at Facebook, Chamath Palihapitiya. Little wonder, then, that politicians and pundits also consider social media a clear and present danger. Hillary Clinton, Dianne Feinstein, Ted Cruz, Steve Bannon, Tucker Carlson—all of them have suggested that social media needs to be reined in. As Zach Weismuller noted recently in Reason, this is nothing new: "America's first multi-page newspaper was shut down after a single edition because it spread rumors about the sex lives of government officials and published what the colonial government described as 'uncertain reports,' or what we might today call 'fake news.' " The latest to weigh in with such laments is Zeynep Tufecki, a professor and op/ed writer. In a piece in Wired magazine, Tufecki observes that "the capacity to spread ideas and reach an audience is no longer limited by access to expensive, centralized broadcasting infrastructure." Great news for free speech, right? Well, not in her telling. People can now gorge on any kind of communication they want, without gatekeepers or guardians. But there are "no nutritional labels in this cafeteria... each post [is] just another slice of pie on the carousel." What's more, microtargeting makes it possible for people to direct their speech to specific audiences instead of broadcasting it to the entire world. Thus, she argues, "John Stuart Mill's notion that a 'marketplace of ideas' will elevate the truth is flatly belied by the virality of fake news," and the "idea that more speech—more participation, more connection—constitutes the highest, most unalloyed good" is "a fallacy on its face." We ought to understand free speech as a means to an end, rather than an end in itself, she contends: "a necessary condition for achieving certain other societal ideals" such as creating "a knowledgeable public," "holding powerful people and institutions accountable," and "fostering a healthy, rational, and informed debate." We need to regulate social media, she concludes, much the same way government regulated the auto industry by requiring "seat belts, airbags, emission controls," and so on. This is a fairly common argument these days. The dean of the Yale Law School, Robert Post, frets that "the First Amendment seems to have been transformed into a straitjacket for our institutions of democratic governance." What America needs, in this view, is to protect speech only when it serves some other purpose. This invites some obvious questions. For instance, who gets to regulate social media for the public good—Donald Trump? Ted Cruz? An elite cadre of social-justice warriors? Who gets to decide what constitutes fake news—the man in the Oval Office who screams "Fake news!" at any story about him that is less than fawning? Also: Which "societal ideals" should government foster? How about virtue? Plenty of religious conservatives—and not just Christian ones, either—think government should teach people[...]

How "Rights" Are Like Superscript -1


My post about how the word "right" in American legal usage often includes the entitlements of government as well as of individuals drew this comment: "But as a matter of American legal language...". There you go again, conflating law with reality. Legal consensus makes governmental 'rights' no more real than it would make defining 'pi' as 'three' be three, even though that could be enforced by the state with further (not unfamiliar) grotesqueries to compensate for its being unreal. And this led me to think of this example from math: What does x-1 mean to you? Generally speaking, it would mean 1/x. But what does sin-1 x mean to you, if you know your trigonometry? It wouldn't be 1/sin x, but rather arcsin x, which is to say the inverse of the sin function: sin (arcsin x) = x. More broadly, f-1 (x) is the inverse of the function x, so that f (f-1 (x)) = x. And even if you don't feel at a home with trig and with functions, the point is simple: In math, as in law, we sometimes use the equivalent of homonyms-- two different (but often related) concepts that are represented using the same symbols. The same is true, of course, with computer programming language, where the same symbol can mean quite different things depending on context (usually depending on the data types of the items being operated on) -- in the same language, + might mean addition when used with numbers but concatenation when used with text, or date addition when used with a date and an integer. (This is sometimes labeled "overloading" the operator, not in a pejorative sense but just in the sense that the operator has multiple meanings.) Think of "right" the same way. In ordinary English, of course, the word means many different things -- correct, the opposite of left, to restore to an upright position, and more. In law, it usually means a legal entitlement, but of course it has different logical properties and rhetorical qualities when used to refer to different kinds of legal entitlements: entitlements of individuals, groups, or governments, entitlements to get things or to be free from things, entitlements that are seen as stemming from moral principles or entitlements that are seen as stemming from positive law, and more. Just like superscript -1 in math, or the addition symbol in many computer programming languages, it is a sort of homonym, the meaning of which usually has to be understood from context. Now one could certainly argue that language would be better, because less likely to confuse, if it used fewer homonyms. Perhaps we should stop using sin-1 and instead use arcsin, as many people do, and perhaps we should come up with a new symbol fINV to use for the inverse of a function more generally. At the same time, language is a grown order, developed over centuries, and there are costs to trying to depart from it or to change it. We often use familiar locutions despite their potential ambiguity, precisely because they are familiar. (For instance, the word "homonym" is somewhat ambiguous -- it could refer to two words with the same spelling but different meanings, which are sometimes labeled "homographs," or two words with the same pronunciation but different meanings, which are sometimes labeled "homophones," but I use "homonym" because it's more familiar and because I assume you identified the proper meaning from context.) We certainly don't say that sin-1 is "wrong" in the sense of arcsin just because the same symbol is used for something else in some other context. The same is true for "right," as in asking whether courts have "a right of ultimate jurisdiction," or whether Congress has a "right" "to tempt the navigators of enemy-ve[...]

Women's Marches, Senate Shutdown Vote, Patriots Return to Super Bowl: A.M. Links


  • (image) Women's marches were held across the United States.
  • The Senate will vote today on a potential deal to re-open those portions of the government shut down after funding expired.
  • Gunmen stormed the Intercontinental Hotel in Kabul, killing 18 people.
  • A pair of improvised explosive devices went off at a mall in Florida, but no injuries were reported.
  • Julia Louis-Dreyfus won two more Screen Actors Guild Awards, and now has won more of the awards than any other actor.
  • The New England Patriots will play the Philadelphia Eagles in the Super Bowl in Minnesota.

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Government Rights


A reader mentioned a claim that I'd heard before, which is that governments can only have powers, and only people can have rights. Now I agree that individual rights are in some ways different from organizational rights, whether of nongovernmental organizations or governmental ones; as a moral matter, organizational rights can only be derivative, I think, of individual rights. And as a legal matter, governmental rights and individual rights are often defined somewhat differently. But as a matter of American legal language, governments, other organizations, and individuals are often said to have rights. For instance, consider the Articles of Confederation: Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States .... The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war .... The United States in Congress assembled shall also have the sole and exclusive right and power of regulating the alloy and value of coin struck by their own authority, or by that of the respective States -- fixing the standards of weights and measures throughout the United States -- regulating the trade and managing all affairs with the Indians, not members of any of the States, provided that the legislative right of any State within its own limits be not infringed or violated .... Or consider Federalist No. 22: The right of equal suffrage among the States is another exceptionable part of the Confederation.... In this case, if the particular tribunals [i.e., courts] are invested with a right of ultimate jurisdiction, ... Or Federalist No. 31: It should not be forgotten that a disposition in the State governments to encroach upon the rights of the Union is quite as probable as a disposition in the Union to encroach upon the rights of the State governments.... Or Fenemore v. United States, 3 U.S. 357 (1797) (Iredell, J.): The only question, therefore, that remains to be decided, turns upon the right of the United States, to affirm the original transaction; and, if they have that right, it follows, inevitably, that they ought to recover from the Defendant an equivalent for the value of the certificate, which was surreptitiously obtained. I have no difficulty in saying, that the right exists; and that, the public interest, involved in the credit of a public paper medium, required the exercise of the right in a case of this kind. Or Hannay v. Eve, 7 U.S. 242 (1806) (Marshall, C.J., for the Court): Congress having a perfect right, in a state of open war, to tempt the navigators of enemy-vessels to bring them into the American ports .... A legal right is, generally speaking, just a label for a legal entitlement, and governments can have that, both with respect to other governments and with respect to individuals. One can imagine a different legal system in which one word was used for basic moral entitlements (or even legal entitlements) of individuals and another was used for legal entitlements of governments; one can likewise imagine a legal system in which, for instance, a different word was used for entitlements to be free from governmental constraint than for entitlements to governmental benefit or protection. But in American law, the word "right" has long been used in all these contexts. [...]

Can Big Data Help Save Abused Kids? New at Reason


For too long, we've been asking undertrained social workers to make high-stakes decisions about children and families based on patchy data and gut intuition. The result is a system riddled with the biases, inattention, bad incentives, error, and malice that plague all human endeavors, but especially massive government bureaucracies. Every day, some kids are forcibly taken from their parents for the wrong reasons while others are left to suffer despite copious warning signs. The children the system is failing are disproportionately poor and members of racial minority groups. In many cases, their families have been devastated by generations of family breakdown, unemployment, drug abuse, and crime. But these cannot be excuses for leaving their fates to a system with such deep and abiding flaws.

Conservatives have too often thrown up their hands, arguing that government cannot replace the family and there is not much to be done until the institution of marriage is repaired. Liberals, meanwhile, have suggested that these problems can't be fixed until we end poverty and racism. In the meantime, bureaucrats are bumbling into the lives of too many families just trying to do their best while leaving some of the most vulnerable children in society unprotected.

We can do better.

Naomi Schaeffer Riley explains how in the latest issue of Reason.

View this article.

Can Big Data Help Save Abused Kids?


It has been a little over a year since the death of 6-year-old Zymere Perkins. The boy, who died in Harlem at the hands of his mother's boyfriend, had been smacked as many as 20 times in a row in front of witnesses, beaten with a belt, placed under cold showers, and denied food as a punishment. In addition to bruises and broken bones, he was missing all of his front teeth. But apparently all his mother had to do was tell the city social workers that he had fallen—down the stairs, off a scooter, whatever—and they would close the case. According to a report released by the New York State Office of Children and Family Services in December 2016, 10 children died in the 12 weeks before Perkins, despite each being the subject of at least four abuse or maltreatment complaints. The New York City Administration for Children's Services (ACS) has since undergone an overhaul, installing a new commissioner and instituting greater measures of accountability for its employees. But to anyone who has been keeping track of such cases, the outrage and the plans for reform will sound sadly familiar. Ten years before Zymere Perkins, there was Nixzmary Brown, a 7-year-old girl from the Bedford-Stuyvesant section of Brooklyn who was tortured and murdered by her stepfather. In that case too ACS had been made aware of her situation at least twice before the fatal beating. Her school had reported her absent for weeks at a time. Neighbors said she sustained unexplained injuries, including a black eye, and that she seemed undernourished—weighing less than 45 pounds at the time of her death. In the wake of that case, Mayor Michael Bloomberg ordered the ACS to reopen numerous files. New York state legislators stiffened penalties to allow parents in such cases to be charged with first-degree murder. Efforts to publicize the city's child abuse hotline were expanded. Most metropolitan child welfare bureaucracies have been through such a process at least once in the past two decades. From Gabriel Fernandez, the 8-year-old boy killed by his mother and her boyfriend in Los Angeles in 2013, to Danieal Kelly, the cerebral palsy–stricken girl who died in 2006 at age 14 after almost a decade of investigations by Philadelphia case workers into her mother's failure to feed or bathe her, to 2-year-old Tariji Gordon of Sanford, Florida, who had been sent back to live with her mother after her twin brother suffocated, only to be found in 2014 dead and buried in a suitcase, there is always a shocking case that leads to a public outcry and then reform. But whether it's pumping more money into the system or simply installing a no-nonsense leader at the top, few of these changes seem to make a difference. All too soon, things go back to the way they were. In Out of Harm's Way (Oxford University Press), published last year to much less fanfare than it deserved, sociologist Richard Gelles offers a devastating account of how little effect bureaucratic reforms usually have. More money, more staff, more training, more lawsuits brought against child protective services (CPS), or the ever-popular convening of more "blue-ribbon" committees—nothing has really moved the needle on protecting children in recent years. In some cases, reform amounts to little more than changing the name of the agency. Some 3 million children are the subject of maltreatment investigations each year, 700,000 of which are substantiated. There are about 2,500 child fatalities due to abuse or neglect by a parent or caregiver in the U.S. annually, and about half of those ar[...]

Brickbat: Say What?


(image) Police in Northumbria, England, say they have tracked down and issued warnings to six people who left offensive comments on the department's Facebook page on a post about a sex grooming gang. The comments referred to the race and religion of members of the gang. All of the members of the gang were of Asian or Eastern European descent while all of their victims were of white British origin.

The Case for School Choice Is Overwhelming From Every POV Except One


Today marks the start of National School Choice Week (NSCW), an annual event designed to promote awareness of and interest in K-12 educational policies that give parents and students more ways to personalize and individualize their primary and secondary learning experiences. Reason is a proud media partner of NSCW, which has helped to organize over 30,000 events around the country this week. NSCW is agnostic on the form that choice takes—could be charter schools, voucher programs, private-school scholarships, homeschooling, education savings accounts (ESAs), you name it. All that matters is that it put the needs of students front and center. Go here to find out information about events and activities happening in your area. Throughout the week, Reason will be publishing articles, commentaries, videos, and podcasts on education policy. Tomorrow, for instance, we'll release an interview with George Mason University economist Bryan Caplan, whose forthcoming book on school policy literally makes the case against education (seriously: His book is called The Case Against Education: Why the Education System Is a Waste of Time and Money). On Tuesday, Reason's policy analyst Lisa Snell will host a panel discussion in Los Angeles with Matthew Ladner of the Charles Koch Institute and Jason Bedrick of EdChoice tacking the "most persistent arguments against school choice and why they're wrong." That event will be livestreamed via Hit and Run and Reason's Facebook page at 6:00 P.M. Pacific Time. John Stossel will be interviewing Eva Moskowitz, whose Success Academy is leading the way in charter-school success in New York City. Later in the week, we'll release a video expose of New York City's practice of paying millions of dollars in tuition to send kids with learning issues to private schools; we'll also publish a fascinating magazine story about the "microschool" movement. Consider it Shark Week, but for education policy. For past School Choice Week coverage, go here. For the latest education policy work from analysts at Reason Foundation, the nonprofit that publishes this website, go here. The title of this post makes the claim that the case for giving students and parents more options for K-12 education is overwhelming. Here's some evidence about choice programs that get students into private schools from A Win-Win Solution: The Empirical Evidence on School Choice, by Greg Forster (Fourth Edition, 2016): Eighteen empirical studies have examined academic outcomes for school choice participants using random assignment, the gold standard of social science. Of those, 14 find choice improves student outcomes: six find all students benefit and eight find some benefit and some are not visibly affected. Two studies find no visible effect, and two studies find Louisiana's voucher program—where most of the eligible private schools were scared away from the program by an expectation of hostile future action from regulators—had a negative effect. Thirty-three empirical studies (including all methods) have examined school choice's effect on students' academic outcomes in public schools. Of those, 31 find choice improved public schools. One finds no visible effect. One finds a negative effect. Twenty-eight empirical studies have examined school choice's fiscal impact on taxpayers and public schools. Of these, 25 find school choice programs save money. Three find the programs they study are revenue neutral. No empirical study has found a negative fiscal impact. T[...]

The Limits of Textualism and the Union Agency Fee Case


Friday, I argued that there's no First Amendment problem with compulsory union agency fees in Janus v. ASFCME: Just as there's generally no Free Speech Clause problem with a government requiring taxpayers to pay it taxes that it then uses to advocate for certain things (e.g., against gang violence, against racism, for religious tolerance, for recycling), so there's no such problem with a government employer requiring employees to pay agency fees to unions that the unions then use to advocate for various things (e.g., for certain labor contracts or for certain labor legislation). Some commenters responded that the Constitution does distinguish the two: The Constitution, they noted, specifically provides for the taxing power, but not for requiring agency fee payments. Now looking close at the distinctions that the Constitutional text draws is indeed important -- but we need to make sure we understand what the text actually means. And here, the enumerated taxation power is quite beside the point. [1.] To begin with, the enumerated power to tax is the power of Congress to impose federal taxes -- "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises." It has nothing to do with states imposing state taxes. Illinois and Michigan (the states in Janus and in Abood, the precedent on which the First Amendment challenge in Janus relies) have no express federal authorization to impose taxes that they can use to speak, just as they have no express federal authorization to impose agency fees on their employees that unions can use to speak. But that's just fine, because the U.S. Constitution does not purport to enumerate all the sources of state power (including local power). The Constitution creates a federal government of enumerated powers, but it doesn't limit state governments to such enumerated powers -- state governments, both before the Constitution and after, had plenary powers. States' plenary powers as well as the federal enumerated powers, to be sure, are subject to express federal constitutional constraints (such as the Free Speech Clause, as incorporated via the Fourteenth Amendment, the Contracts Clause, and the like). My argument is that requiring people to pay money that then ends up being used for ideological expression doesn't violate the Free Speech Clause, whether payment is through taxes or through agency fees; but of course I recognize that others disagree with me. It's just that any First Amendment distinction between (A) states' power to compel taxpayers to pay taxes that are used for ideological expression (which is clearly settled) and (B) states' power to compel employees to pay union agency fees that are used for ideological expression (which some are denying) cannot rest on an enumerated powers argument -- since enumerated powers have nothing to do with the proper scope of these particular state powers. [2.] Even if this case involved a federal mandate that federal employees pay union agency fees, I think the existence of the Taxing Power would still be irrelevant. Whatever might be the scope of enumerated powers thinking when it comes to the federal government as sovereign, imposing requirements on all of us, I think it's out of place when it comes to the federal government as employer, imposing requirements on its employees. To have employees at all, the federal government has to be acting within some enumerated grant of power -- for instance, to have post office employees, [...]

Shutdown Day 2: Donald Trump Urges 'Nuclear Option.' That's Not a Good Plan.


This morning, on day 2 of the budget-induced government shutdown, President Donald Trump tweeted: "If stalemate continues, Republicans should go to 51% (Nuclear Option) and vote on real, long term budget, no C.R.'s!" Supermajority demagoguery is one of the most blatantly hypocritical recurring features of U.S. politics. The moment a party takes power, the members of that party start shouting into the nearest microphone that it's morally and politically abhorrent for the minority party to hold up legislation in the Senate by demanding a 60-vote threshold be met. When partisan control flips, so do the talking points. It's obviously true that procedural rules in the Senate are partially responsible for the difficulty recent congresses have had in passing budgets. In a closely divided Senate, getting 60 votes for spending bills—as required by Senate procedure—means the bills must be bipartisan. But even if the Senate turned its focus completely to changing that rule right now, there's no way the government will be open on Monday. For one thing, there's no language for a "real, long term budget" in circulation right now. That budget bill simply doesn't exist. More broadly, a moment of crisis is the wrong time to consider major procedural changes—it's impossible to engage in a serious debate about the merits of the change when everyone (the president, even!) is hyperfocused on whether it means their team will win the very next vote. But we're always in budget crisis. Continuing resolutions (C.R.s) are the order of the decade. And what's more, this round is even shorter and therefore more frequent; there's currently some controversy right now over whether to craft a C.R. with a 3- or 4-week lifespan. For now, party leaders on both sides seem to grasp this is not the time to go full Calvinball."The Republican Conference opposes changing the rules on legislation," David Popp, the spokesman for Majority Leader Mitch McConnell (R–Ky.), said to USA Today. Senate Minority Whip Dick Durbin (D–Ill.) agreed on This Week. "We have to acknowledge our respect for the minority." Should a majority party manage to summon up the will to shoot its future self in the foot, we'll all be worse off. A post-nuclear congressional landscape is one in which there is more partisanship, more low-debate up-or-down voting, more whipping, more winner-takes-all-ism, and less compromise. The first part of the president's tweet was about the underlying conflicts on substantive issues powering the stalemate: "Great to see how hard Republicans are fighting for our Military and Safety at the Border," he wrote. "The Dems just want illegal immigrants to pour into our nation unchecked." This disagreement doesn't go away in an environment where budgets can be passed with a simple majority. Dems don't just throw up their hands and say, "Oh well, we'll just wait until we're in power to do stuff, I guess!" Instead, senators will find even less forthright and more convoluted ways to further their agendas. And meanwhile, elections will become much fiercer and more vitriolic. But Gorsuching will reach epic levels in both parties. None of this is worth it to score a win on this particular continuing resolution. P.S. The only solution to the budget crisis dumber and less practical than the abolition of the 60-vote majority is the proposal to bring back earmarks so that everyone on the Hill can horse-trade their way passing bigger, more[...]

Does the Congressional Gym Lack Towels Due To Shutdown?


Relax. No matter how bad things might seem, they can always get worse. After watching a morning's worth of Sunday talk shows, it's clear that the government shutdown is solely the fault of Donald Trump and the Republicans. Or maybe "Chucky" Schumer, Nancy Pelosi, and the Democrats deserve full blame (or credit). The important thing is that it's causing real pain. Witness this from Robert Costa, who covers Congress for The Washington Post. It pretty much sums up everything about the current state of governance in D.C. Members also complaining to me that the House gym lacks enough towels this morning and they wonder if it's because of the shutdown. — Robert Costa (@costareports) January 20, 2018 This is amazing on several levels, not the least of which is that congressmen aren't even sure if the shutdown they allowed to happen is the reason their gym doesn't seem to be running at full capacity. These are the people who are charged with governing us? I feel so much better now. As Peter Suderman notes, both at Reason and in The New York Times, the budget process—which sets what the government plans to spend in a given year—is fundamentally broken. Indeed, since the current budgeting rules went into effect over 20 years ago, the federal government has enacted a full budget on time just four times. The good news is that annual appropriations on things such as defense and education (also known as "discretionary" spending) cover a smaller and smaller percentage of federal spending, currently just 30 percent of outlays. The bad news is that "mandatory" spending on entitlements and interest on the debt, which don't need to be authorized every year, comprise 70 percent of spending. So the total amount of government spending can keep increasing even if Congress is forced to share towels in its taxpayer-financed gym. From the peacocking on display this morning, it seems likely that the current impasse will last for a while. The last significant shutdown, which occurred in the fall of 2013, lasted 16 days. A year later, Sen. Rand Paul, the libertarian-leaning Republican from Kentucky, said that It cost us more to shut the government down than to keep it open... You know your government's dysfunctional if it costs more to shut it down than to keep it open, because we paid all these people. Paul was pointing out that "non-essential" federal employees who were furloughed during the shutdown eventually got back pay and various interest penalties were incurred. Economists disagree whether shutdowns reduce economic activity. It's a complicated issue partly because government spending is counted immediately as part of GDP, so any reduction in that by definition shrinks the economy. If the evidence on the 2013 shutdown is contested, the Bureau of Economic Analysis found that the economy grew during the 1995 and 1996 shutdowns. The fact of the matter is that the government shutdown will not affect most people and all "essential" functions of government—including stuff like air-traffic control, TSA checks, and the like—will carry on. If you work for the federal government, need an expedited passport, and more, you'll be screwed (though if past is prologue, federal employees will be paid in full for days they didn't work). The Senate is reconvening today with the goal of putting together a short-term continuing resolution that will last at least a couple of weeks. The presid[...]

The Government Shutdown Is an Artifact of a Broken Budget Process


Washington is in the midst of another partisan budget standoff this weekend, but there's one point on which both sides agree: The government shutdown is the other party's fault. Republicans have dubbed the halt in government funding the #SchumerShutdown, or, sometimes, the #DemocratShutdown, after Senate Minority Leader Chuck Schumer, who has demanded that the fate of Dreamers, immigrants brought to the United States as children, be resolved as part of a budget deal. And of course, because we have entered the glorious year of 2018, all this is playing out on Twitter, via hashtags. This is the One Year Anniversary of my Presidency and the Democrats wanted to give me a nice present. #DemocratShutdown — Donald J. Trump (@realDonaldTrump) January 20, 2018 Democrats, in response, have charged that President Trump, who chose to end the Obama-era Deferred Action for Childhood Arrivals (DACA) program last year, and congressional Republicans, who hold majorities in both chambers of Congress, are at fault. "Despite controlling the House, the Senate and the White House, the Republicans were so incompetent, so negligent, that they couldn't get it together to keep government open," Rep. Nancy Pelosi, the top House Democrat, said this weekend. Naturally, Pelosi has a hashtag too: Before he took office, @realDonaldTrump was happy to say the president owns the blame for a government shutdown. As President, he blames Democrats. That tells you all you need to know. #TrumpShutdown — Nancy Pelosi (@NancyPelosi) January 19, 2018 In other words, the shutdown has quickly, and predictably, become a tedious partisan blame game. But the partisan bickering mostly serves as a distraction from the systemic failure at the heart of the shutdown: the consistent failure by Congress to complete the budget process. In today's New York Times, I look back at the history of today's budget development protocols and how we ended up with a government that appears permanently funded by temporary, budget-busting deals: This week's government shutdown is a bipartisan failure, with bad faith all around, and both parties trying to blame the other for the consequences, in hopes of winning one for the team. But it is also a systemic failure, in which an outdated budget process — the complex set of procedures that keeps the government open — has become an empty ritual, twisted in the service of narrow partisan gain. The source of today's dysfunctions goes back more than 40 years, to the Congressional Budget and Impoundment Control Act of 1974. That law was passed as a result of a perception within Congress — which under the Constitution holds the power of the purse — that the White House had too much influence over the budget. The law overhauled congressional budget development procedures in a manner intended to shift the balance of power in federal budgeting away from the executive and toward the legislature — and created the modern budget process. Read the whole thing. [...]

What the Heck Happened?: New at Reason


(image) By my count, there are already well over a dozen books about the 2016 presidential campaign. The first to appear was CNN reporter Thomas Lake's Unprecedented: The Election That Changed Everything, published just a week after Election Day. Technically speaking, Unprecedented wasn't even the first: BuzzFeed's McKay Coppins wrapped up his book The Wilderness in late 2015, a full year before Election Day. And though there are many things to be praised about The Wilderness, its prescience is not among them, writes Glenn Garvin in his round of up of 2016 campaign books.

View this article.

What the Heck Happened?


Devil's Bargain: Steve Bannon, Donald Trump, and the Storming of the Presidency, by Joshua Green, Penguin Press, 272 pages, $27 Shattered: Inside Hillary Clinton's Doomed Campaign, by Jonathan Allen and Amie Parnes, Crown, 480 pages, $28 Unbelievable: My Front-Row Seat to the Craziest Campaign in American History, by Katy Tur, Dey Street, 305 pages, $26.99 Unprecedented: The Election That Changed Everything, by Thomas Lake, Melcher Media Inc., 288 pages, $40 What Happened, by Hillary Rodham Clinton, Simon & Schuster, 512 pages, $30 The Wilderness: Deep Inside the Republican Party's Combative, Contentious, Chaotic Quest to Take Back the White House, by McKay Coppins, Little Brown, 400 pages, $28 By my count, there are already well over a dozen books about the 2016 presidential campaign. The first to appear was CNN reporter Thomas Lake's Unprecedented: The Election That Changed Everything, published just a week after Election Day. Technically speaking, Unprecedented wasn't even the first: BuzzFeed's McKay Coppins wrapped up his book The Wilderness in late 2015, a full year before Election Day. And though there are many things to be praised about The Wilderness, its prescience is not among them. The journalist who invented the quick campaign history, Theodore White, couldn't find a publisher in 1959 when he first came up with the idea of writing an entire book on the 1960 election. Friends warned him that such readers as he could scrape up would be jabbing hot needles in their eyes within the first 100 pages. But the fly-on-the-wall technique White brought to The Making of the President 1960, mixing accounts of rallies and strategy sessions with vivid descriptions of what the candidates wore or had for dinner, was a monster commercial and critical success that won a Pulitzer prize. White wrote four more making-of books. By 1972 he had a host of imitators, all of them hovering about the candidates like a cloud of flies, duly noting every grunt and sneeze. White surveyed the scene and felt like Dr. Frankenstein amid a crowd of his appalling creations. "I sincerely regret it," he said of what he had wrought. "Who gives a fuck if the guy had milk and Total for breakfast?" The Class of 2016's election books contain a lot less of that sort of New Journalism–style omniscience, if only because the principal two candidates regarded reporters as lying swine who should be kept far away, if not simply shot. Donald Trump actually wavered on that last point. NBC reporter Katy Tur's Unbelievable describes a rally where the candidate, musing on Vladimir Putin's reputation for knocking off annoying journalists, weighed the pros and cons. "I hate them, but I would never kill them. I'd never do that," he announces, then pauses in contemplation. "No, I wouldn't," he decides. "But I do hate them." (He soooo wasn't kidding. Tur also describes a night when a reporter colleague got a call from Trump's press office. "Are we off the record?" the Trump staffer inquired. Sure, replied the reporter. "Great," continued the staffer. "Off the record, Mr. Trump wants you to go fuck yourself.") The only dietary commentary comes from Hillary Clinton's What Happened, in which the Democratic nominee is more than happy to offer an exhaustive list of her favorite repasts—Oreo ice cream bars, sliced jalapeño peppers, [...]

Our Largely Non-Libertarian Constitution


My post on Why There's No First Amendment Problem With Compulsory Union Agency Fees drew many interesting comments, and I hope to respond to some of them. Let me turn first to this one: Professor, whatever you may say about thus surprising position, it is decidedly not libertarian.... The government, as government, has the right to compel many things that no other entity possesses. Therefore, your analogy between government and union is grossly misplaced and frankly beneath your level of expertise. A union is no more than a PAC or the local Right to Life organization. Do you support a government mandate that workers must support Right to Life organization or be fired? Please reconsider this authoritarian analysis and bring back your Libertarian thoughtfulness. Now I'm not persuaded by the substantive argument here: True, the government has the right to compel many things that other entities, such as unions, can't. But when a government employee is require to pay union agency fees, that requirement is still imposed by the government, much as the requirement to pay taxes is imposed by the government. (Indeed, requiring government employees to pay agency fees burdens liberty less than does requiring people to pay taxes; government employees could escape agency fees by changing jobs, and taxpayers can't.) And while the government can't require people to "support" right-to-life organizations in the sense of expressing agreement with them, it can certainly require people to financially support -- via taxes -- the government's own anti-abortion advocacy; if so, I think it can equally require people to pay taxes to other organizations that end up using some of that money for anti-abortion advocacy. But there's a deeper point here, and that has to do with my position on the First Amendment / agency fee question being "decidedly not libertarian." Indeed, the position certainly is not libertarian. Yet the proper interpretation of the Constitution is often not libertarian, I think, because the Constitution is not primarily a libertarian document. The Constitution, first and foremost, establishes a federal government. Indeed, it deliberately establishes a stronger federal government than existed before. It also assumes the existence of state governments. It sets up a structure for the federal government that enables democratic lawmaking; state constitutions do the same for state governments. These constitutions do set up checks and balances aimed in part at preventing certain forms of tyranny. But the constitutions certainly authorize a wide range of constraints on liberty, chiefly because they leave judgments about the proper scope of liberty -- and the proper restraints on liberty -- to the democratic process. Now the Bill of Rights, and some similar provisions in other parts of the Constitution, are indeed supposed to directly protect liberty, and courts are understood as having the duty to enforce those protections. In that respect, the Free Speech Clause, for instance, is libertarian; certainly the modern law of the Free Speech Clause has provided broad protection for liberty of speech. But the Free Speech Clause deliberately identifies a certain zone of liberty -- the freedom of speech -- that is an exception to the normal rule of political decisionmaking. Governm[...]

Intern at Reason This Summer!


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Journalism interns have the opportunity to report and write, as well as help with research, proofreading, and other tasks. Previous interns have gone on to work at the The Wall Street Journal, Forbes, ABC News, and Reason itself.

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