David Boaz

In the Wall Street Journal today, Cato senior fellow Walter Olson praises the New York legislature both for passing a marriage equality bill and for including guarantees of religious freedom in the bill:

For those of us who support same-sex marriage and also consider ourselves to be right of center, there were special reasons to take satisfaction in last Friday's vote in Albany. New York expanded its marriage law not under court order but after deliberation by elected lawmakers with the signature of an elected governor. Of the key group of affluent New Yorkers said to have pushed the campaign for the bill, many self-identify as conservative or libertarian. A GOP-run state Senate gave the measure its approval.... To their credit, New York lawmakers devoted much attention to the drafting of exemptions to protect churches and religious organizations from being charged with bias for declining to assist in same-sex marriages. Exemptions of this sort are sometimes dismissed as a mere sop to placate opponents. But in fact they're worth supporting in their own right—and an important recognition that pluralism and liberty can and should advance together as allies.... Critics have charged that same-sex marriage will constrict the free workings of religious institutions and violate the conscience of individuals who act on religious scruples. Many of the examples they give are by now familiar.... Observe, however, that it isn't the legal status of same-sex marriage that keeps generating these troublesome cases; it's plain old discrimination law. Thus New York's highest court ordered Yeshiva University, an Orthodox Jewish institution, to let same-sex couples into its married-student housing. But that ruling happened a decade ago and had nothing to do with last week's vote in Albany. In the case of the wedding photographer ordered not to act on her scruples, New Mexico didn't then and doesn't now recognize same-sex marriage. While some of these rulings are to be deplored as infringements on individual liberty, they're not consequences of the state of marriage law itself.

Also: Cato's forum on the legal challenge to California's Proposition 8, featuring Ted Olson, David Boies, John Podesta, and Robert Levy. And an earlier forum on gays and conservatism featuring Andrew Sullivan, Maggie Gallagher, and British Cabinet minister Nick Herbert.

Since New York passed a law extending marriage to same-sex couples, Republican presidential candidates have been mostly silent. But not Rep. Michele Bachmann, who has had a long and strong interest in gay rights issues. In an interview on Fox News Sunday she endorsed both New York's Tenth Amendment right to make marriage law and the federal government's right to override such laws with a constitutional amendment, confusing host Chris Wallace:

WALLACE: You are a strong opponent of same-marriage. What do you think of the law that was just passed in New York state—making it the biggest state to recognize same-sex marriage? BACHMANN: Well, I believe that marriage is between a man and a woman. And I also believe—in Minnesota, for instance, this year, the legislature put on the ballot for people to vote in 2012, whether the people want to vote on the definition of marriage as one man, one woman. In New York state, they have a passed the law at the state legislative level. And under the 10th Amendment, the states have the right to set the laws that they want to set.... WALLACE: But you would agree if it's passed by the state legislature and signed by the governor, then that's a state's position. BACHMANN: It's a state law. And the 10th Amendment reserves for the states that right. WALLACE: All right. I want to follow up on that, because I'm confused by your position on this. Here's what you said in the New Hampshire debate. Let's put it on. (BEGIN VIDEO CLIP) BACHMANN: I do support a constitutional amendment on marriage between a man and a woman, but I would not be going into the states to overturn their state law. (END VIDEO CLIP) WALLACE: That's why I'm confused. If you support state rights, why you also support a constitutional amendment which would prevent any state from recognizing same-sex marriage? BACHMANN: Well, because that's entirely consistent, that states have, under the 10th Amendment, the right to pass any law they like. Also, federal officials at the federal level have the right to also put forth a constitutional amendment.... WALLACE: My point is this, do you want to say it's a state issue and that states should be able to decide? Or would like to see a constitutional amendment so that it's banned everywhere? BACHMANN: It is— it is both. It is a state issue and it's a federal issue. It's important for your viewers to know that federal law will trump state law on this issue. And it's also—this is why it's important— WALLACE: And you would [sic] federal law to trump state law? BACHMANN: Chris, this is why it's so important because President Obama has come out and said he will not uphold the law of the land, which is the Defense of Marriage Act. The Congress passed the Defense of Marriage Act and Bill Clinton signed it into law, to make sure that a state like New York passed a definition of marriage other [sic] one man, one woman, that other states wouldn't be forced to recognize New York's law.... WALLACE: So, just briefly, you would support a constitutional amendment that would overturn the New York state law? BACHMANN: Yes, I would. I would. That is not inconsistent, because the states have the right under the 10th Amendment to do what they'd like to do. But the federal government also has the right to pass the federal constitutional amendment. It's a high hurdle, as you know.We only have 27 amendments to the federal constitution. It's very difficult. But certainly, it will either go to the courts, or the people's representatives at the federal level.

Congratulations to Chris Wallace for his tenacious questioning. Presumably the way to understand Bachmann's position is that she thinks states have a Tenth Amendment right to make their own laws in any area where the federal government doesn't step in, and she supports a federal law overriding state marriage laws. That includes the Defense of Marriage Act, whose Section 3 says for the first time in history that the federal government will not recognize marriage licenses issued by the states. And it also includes a federal constitutional amendment to prohibit states from implementing equal marriage rights for gay couples. Bachmann is not the only Republican who should be asked about the tension between support for the Tenth Amendment and support for federal laws and amendments to carve exceptions out of the Tenth Amendment. This month George Will has praised two Texas Republicans: First, Senate candidate and former Texas solicitor general Ted Cruz, whom he called a "limited-government constitutionalist" and who wrote a senior thesis at Princeton "on the Constitution’s Ninth and 10th amendments. Then as now, Cruz argued that these amendments, properly construed, would buttress the principle that powers not enumerated are not possessed by the federal government." And second, Governor Rick Perry, who "was a '10th Amendment conservative' ('The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people') before the Tea Party appeared." Cruz boasts on the same page of his website of his support of both the Tenth Amendment and DOMA. Does he really think, as a staunch defender of the Tenth Amendment, that the federal government should override the marriage law of the great state of New York? Perry may be a consistent Tenth Amendment conservative. In his book Fed Up! Our Fight to Save America from Washington he makes his opposition to gay marriage more than clear. But he does write, "Crucial to understanding federalism in modern-day America is the concept of mobility, or the ability to 'vote with your feet.' If you don't support the death penalty and citizens packing a pistol, don't come to Texas. If you don't like medical marijuana and gay marriage, don't move to California." And an NPR interviewer reported:

States should be free to make decisions regulating such things as taxes, marijuana and gay marriage, Perry says. "If you want to live in a state that has high taxes, high regulations — that is favorable to smoking marijuana and gay marriage — then move to California," he says.

Now that a large state has made national headlines by passing a gay marriage law—without any prodding from the judiciary—more political candidates, from President Obama to his Republican challengers, are going to be pressed to make their positions clear on the issue of marriage equality itself, on federalism and the powers of the states, and on the lawsuits that are moving through the courts.

At the Britannica Blog today I note President Obama's concern over ATMs, Hillary Clinton's support for the candlemakers' petition, John Maynard Keynes's simple solution to the problem of unemployment—and how Bastiat refuted all their arguments more than 150 years ago:

And there’s your question for President Obama: Do you really think the United States would be better off if we didn’t have ATMs and check-in kiosks? . . .  And do you think we’d be better off if we mandated that all these “shovel-ready projects” be performed with spoons? In his 1988 book The American Job Machine, the economist Richard B. McKenzie pointed out an easy way to create 60 million jobs: “Outlaw farm machinery.” The goal of economic policy should not be job creation per se; it should be a growing economy that continually satisfies more consumer demand. And such an economy will be marked by creative destruction. Some businesses will be created, others will fail. Some jobs will no longer be needed, but in a growing economy more will be created. . . . Finding new and more efficient ways to deliver goods and services to consumers is called economic progress. We should not seek to impede that process, whether through protectionism, breaking windows, throwing towels on the floor, or fretting about automation.

More here.

Back in the day (February 2008), a senator named Barack Obama said, “I opposed this [Iraq] war in 2002. I will bring this war to an end in 2009. It is time to bring our troops home.” The following month, under fire from Hillary Clinton, he reiterated, ”I was opposed to this war in 2002. . . . I have been against it in 2002, 2003, 2004, 5, 6, 7, 8 and I will bring this war to an end in 2009. So don’t be confused.” Indeed, in his famous “the moment when the rise of the oceans began to slow” speech on the night he clinched the Democratic nomination, he also proclaimed, “I am absolutely certain that generations from now we will be able to look back and tell our children that . . . this was the moment when we ended a war.” So now the Congressional Budget Office looks at the plans of President Barack Obama and reports:

In 2010, the number of U.S. troops (active-duty, reserves, and National Guard personnel) deployed for war-related activities averaged about 215,000, CBO estimates. In the alternative scenario presented here, the number of military personnel deployed for war-related purposes would decline over a five-year period to an average of 180,000 in 2011, 130,000 in 2012, 100,000 in 2013, 65,000 in 2014, and 45,000 in 2015 and thereafter.

That would indeed be an improvement. But it just doesn't seem like "I will bring this war to an end in 2009 [and] bring our troops home." (H/T [on the CBO quote, not the despairing memory of the original Obama]: Ezra Klein) Update: In the Sunday Washington Post, David Fahrenthold found some more differences between Senator Obama and President Obama on the debt limit, judicial nominations, and war powers.

Sunday night at 8 on C-SPAN: Brian Lamb interviews Russell Roberts and John Papola about their Hayek-Keynes rap videos. And Thursday afternoon at 4: Nick Gillespie and Matt Welch of Reason magazine, Reason.tv, Reason.com, and the vast Reason enterprises launch their new book The Declaration of Independents: How Libertarian Politics Can Fix What's Wrong with America at a Cato Book Forum with a multimedia presentation in the Hayek Auditorium. "In a world where our [political] choices are limited to John Boehner and Nancy Pelosi, the survivors envy the dead," they write. But that's not the world they actually see. They argue that despite our stunted politics, despite national bankruptcy, despite the war on drugs, revolutionary innovators have changed our world over the past 40 years: Vaclav Havel and the Plastic People of the Universe, Herb Kelleher and Southwest Airlines, Tiger Woods and the breakdown of categories, the personalization of media, and much more. It's just politics that is resisting freedom and choice. And now millions of voters are trying to break out of stagnant political choices. Gillespie and Welch see a "future so bright, we gotta wear shades." At Marginal Revolution, Tyler Cowen writes, "This is the up-to-date statement of libertarianism. Not warmed-over right-wing politics, but real, true-blooded libertarianism in the sense of loving liberty and wanting to find a new path toward human flourishing." Come see if he's right. Register here.

Today's Politico Arena question is about what President Obama should say in his speech tonight about Afghanistan. My response: If the president indeed withdraws 30,000 troops by the end of 2012, then we will still have about 70,000 troops in Afghanistan more than 11 years after the war began, and twice as many as President Bush deployed. If we can't do whatever we want to do in 10 years, when will we achieve our purposes? U.S. troops have overthrown the Taliban and dispatched Osama bin Laden, and it's time to end this war. Tonight, on June 22, the president should pick up some language from another June speech and tell the nation, "Generations from now, we will be able to look back and tell our children that this was the moment when we ended a war." NOTE: See graphic here of the "incredible expanding Afghan war."

Five years ago this week I noted that Sen. Hillary Rodham Clinton, in a tip of the hat to Frederic Bastiat, had literally endorsed a candlemakers' petition to the federal government to protect them against overseas competition. I was reminded of that today when I read that Rep. Michele Bachmann literally thanked the federal government for its purchase of pork from Minnesota farmers:

On Oct. 5, 2009, Bachmann wrote Agriculture Secretary Tom Vilsack praising him for injecting money into the pork industry through the form of direct government purchases. She went on to request additional assistance. "Your efforts to stabilize prices through direct government purchasing of pork and dairy products are very much welcomed by the producers in Minnesota, and I would encourage you to take any additional steps necessary to prevent further deterioration of these critical industries, such as making additional commodity purchases and working to expand trade outlets for these and other agricultural goods," Bachmann wrote.

The letter was in October, so I guess by then she had forgotten her beach reading of Mises.

John Blundell, former director of the Institute of Economic Affairs in London, has written a new comic book biography of Ayn Rand. Find it in comic book stores, at Barnes and Noble, or on Amazon. Publisher Bluewater says:

"Female Force: Ayn Rand" will hit comic shops and online retailers on June 22nd. The 32-page comic retails for $3.99…. The comic book provides an entertaining yet scholarly look at the author of such seminal works as The Fountainhead and Atlas Shrugged. Even 30 years after her death, her sales of her books continue to sell in the hundreds of thousands each year. Bluewater also worked with the Ayn Rand Institute on the comic book. "When the American economy went into a nose dive recently what did we all turn to? Did we dig out battered old Econ 101 textbooks? Did we turn to the writings of some aged Ivy League professor? NO! Instead we dusted off or repurchased The Fountainhead and Atlas Shrugged those great classic American novels by Russian immigrant Ayn Rand which deal so brilliantly with the fundamentals of a free and prosperous society of responsible individuals,” said author John Blundell. Blundell, author of Margaret Thatcher: A Portrait of the Iron Lady as well as Bluewater's Thatcher bio comic, and formerly the Director General of the Institute of Economic Affairs in London, emphasizes the relevancy and potency of Rand's Objectivism ideas in 21st century America.

Blundell also has a book coming in September, Ladies for Liberty: Women Who Made a Difference in American History. That one, I think, will have words but no pictures.

Polling wizard Nate Silver of the New York Times today points to a couple of poll questions that David Kirby and I have often employed and finds some welcome new results, along with a great graph:

Since 1993, CNN has regularly asked a pair of questions that touch on libertarian views of the economy and society:

Some people think the government is trying to do too many things that should be left to individuals and businesses. Others think that government should do more to solve our country’s problems. Which comes closer to your own view? Some people think the government should promote traditional values in our society. Others think the government should not favor any particular set of values. Which comes closer to your own view?

A libertarian, someone who believes that the government is best when it governs least, would typically choose the first view in the first question and the second view in the second. In the polls, the responses to both questions had been fairly steady for many years. The economic question has showed little long-term trend, although tolerance for governmental intervention rose following the terror attacks of Sept. 11, 2001. The social libertarian viewpoint — that government should not favor any particular set of values — has gained a couple of percentage points since the 1990s but not more than that. But in CNN’s latest version of the poll, conducted earlier this month, the libertarian response to both questions reached all-time highs. Some 63 percent of respondents said government was doing too much — up from 61 percent in 2010 and 52 percent in 2008 — while 50 percent said government should not favor any particular set of values, up from 44 percent in 2010 and 41 percent in 2008. (It was the first time that answer won a plurality in CNN’s poll.)

And then he offers this graph: Check out that green line! Kirby and I used those same two poll questions in our studies beginning with "The Libertarian Vote" (see p. 9). Like Gallup, we combined responses to the two questions in a matrix, finding in 2009 (in "The Libertarian Vote in the Age of Obama") that 23 percent of the public held libertarian views. Adding them, as Silver has done, seems much more fun.

Someone called Stephen Metcalf writes at Slate of his horror at finding in "an otherwise quite groovy loft" in New York's SoHo "not one but two copies of something called The Libertarian Reader." Given that he manages to lump not just Paul Ryan and South Park but Sarah Palin into the libertarian basket, you can appreciate his dismay. Metcalf puts Robert Nozick at the center of his argument, understandably enough. My colleague Tom Palmer says that academic critics almost always cite one chapter of one book, Nozick’s Anarchy, State, and Utopia, and declare that they have grappled with libertarian ideas. Still, it's a good book and worth grappling with, and it did have an impact, as Metcalf notes:

I like to think that when Nozick published Anarchy, the levee broke, the polite Fabian consensus collapsed, and hence, in rapid succession: Hayek won the Nobel Prize in economics in 1974, followed by Milton Friedman in '75 [1976], the same year Thatcher became Leader of the Opposition, followed by the California and Massachusetts tax revolts, culminating in the election of Reagan, and … well, where it stops, nobody knows.

I'll leave it to my more learned colleagues to analyze how successfully Metcalf actually deals with Nozick's arguments. I just want to note one thing here. Like many other critics of libertarianism, Metcalf triumphantly announces:

How could a thinker as brilliant as Nozick stay a party to this? The answer is: He didn't. "The libertarian position I once propounded," Nozick wrote in an essay published in the late '80s, "now seems to me seriously inadequate."

Yes, yes, yes. It gets repeated a lot: "Even Nozick renounced libertarianism." If it were true, it's not clear what it would mean. Libertarianism is true, or not, whether or not Paul Krugman or Russell Kirk believes it, and whether or not Robert Nozick believes it. The idea stands or falls on its own. But as it happens, Nozick did "stay a party" to the libertarian idea. Shortly before his death in 2002, young writer Julian Sanchez (now a Cato colleague) interviewed him and had this exchange:

JS: In The Examined Life, you reported that you had come to see the libertarian position that you'd advanced in Anarchy, State and Utopia as "seriously inadequate." But there are several places in Invariances where you seem to suggest that you consider the view advanced there, broadly speaking, at least, a libertarian one. Would you now, again, self-apply the L-word? RN: Yes. But I never stopped self-applying. What I was really saying in The Examined Life was that I was no longer as hardcore a libertarian as I had been before. But the rumors of my deviation (or apostasy!) from libertarianism were much exaggerated. I think this book makes clear the extent to which I still am within the general framework of libertarianism, especially the ethics chapter and its section on the "Core Principle of Ethics."

So Nozick did not "disavow" libertarianism. Indeed, Tom Palmer adds a point that

David Schmidtz told at a forum about Schmidtz’s book from Cambridge University Press, Robert Nozick, held October 21, 2002 at the Cato Institute. According to David, Nozick told him that his alleged “apostasy” was mainly about rejecting the idea that to have a right is necessarily to have the right to alienate it, a thesis that he had reconsidered, on the basis of which reconsideration he concluded that some rights had to be inalienable. That represents, not a movement away from libertarianism, but a shift toward the mainstream of libertarian thought.

Metcalf's criticisms of libertarianism will have to stand on their own, as will libertarianism itself. He doesn't have Nozick on his side. As for Metcalf's final complaint that advocates of a more expansive state have been "hectored into silence" by the vast libertarian power structure, well, I am, if not hectored, at least stunned into silence. P.S. Matt Welch notes that if Metcalf doesn't have Nozick on his side, at least he has Ann Coulter.