David Boaz

Sen. Barack Obama resumed his winning streak by beating Sen. Hillary Clinton in the Wyoming caucuses after a brief full-court press by both sides. The Wall Street Journal noted one of Obama’s themes in the rugged-individualist Cowboy State:

Tailoring his message to the state’s antigovernment streak, Sen. Obama put new emphasis on his criticisms of the Bush administration’s warrantless wiretaps and other heightened law-enforcement activities implemented as antiterror measures. “You can be liberal and a libertarian, or a conservative libertarian,” Sen. Obama told a crowd of about 1,200 at a recreation center here. But “there’s nothing conservative” about President Bush’s antiterror policies. “There’s nothing Republican about that. Everybody should be outraged by that,” he added. 

He may have been reading some of the articles David Kirby and I wrote about the libertarian vote and the Mountain West:

In the Goldwateresque, “leave us alone” Mountain West, Republicans not only lost the Montana Senate seat; they also lost the governorship of Colorado, two House seats in Arizona, and one in Colorado. They had close calls in the Arizona Senate race and House races in Idaho, New Mexico, Colorado, Nevada, and Dick Cheney’s Wyoming. In libertarian Nevada, the Republican candidate for governor won less than a majority against a Democrat who promised to keep the government out of guns, abortion, and gay marriage. Arizona also became the first state to vote down a state constitutional amendment to define marriage as between one man and one woman….

If Republicans can’t win New Hampshire and the Mountain West, they can’t win a national majority. And they can’t win those states without libertarian votes.

Jeffrey Rosen has praised Obama’s civil libertarian record. Lest we get too excited about Obama’s new libertarian appeal, though, we should note that in his speech he also said he would undermine trade agreements and promised enough goodies from the Treasury to make Ted Kennedy happy.

The most fascinating story in the world is China today, as the world’s most populous country struggles toward modernity.

The Chinese rulers seem to be trying to emulate Singapore’s success in creating a dynamic modern economy while maintaining authoritarian rule. But can a nation of a billion people be managed as successfully as a city-state Since 1979 China has liberated its economy, creating de facto and even de jure property rights, allowing the creation of businesses, and freeing up labor markets. The result has been rapid economic growth. China has brought more people out of back-breaking poverty faster than any country in history.

And, as scholars such as F. A. Hayek have predicted, the development of property rights, civil society, and middle-class people has created a demand for political rights as well. Every week there are reports of actual elections for local posts, lawyers suing the government, dissidents standing up and often being jailed, labor agitation, and political demonstrations. It’s reminiscent of the long English struggle for liberty and constitutional government.

And it would be great if it turns out that modern technology can make that struggle shorter than it was in England. A hopeful example was reported this week. According to the Washington Post, hundreds of thousands of “text messages ricocheted around cellphones in Xiamen,” rallying people to oppose the construction of a giant chemical factory. The messages led to “an explosion of public anger,” large demonstrations, and a halt in construction.

Leave aside the question of whether the activists were right to oppose the factory. The more significant element of the story is that, as the Post reported, “The delay marked a rare instance of public opinion in China rising from the streets and compelling a change of policy by Communist Party bureaucrats.”

Cellphones and bloggers fighting against the Communist Party and its Propaganda Department and Public Security Bureau — and the “army of Davids” won. Reporters and editors afraid to cover the story followed it on blogs, even as the censors tried to block one site after another. This isn’t your father’s Red China.

Citizen blogger and eyewitness Wen Yunchao

said he and his friends have since concluded that if protesters had been armed with cellphones and computers in 1989, there would have been a different outcome to the notorious Tiananmen Square protest, which ended with intervention by the People’s Liberation Army and the killings of hundreds, perhaps thousands, in the streets of Beijing.

The cause of freedom is not looking so good in Russia these days. But in China a hundred flowers are blooming, a hundred schools of thought contending.

Libertarians sometimes say that they are “liberal on free speech but conservative on economic freedom,” or that “liberals believe in free speech and personal freedom, while conservatives believe in economic freedom.” That proposition got another test in the Supreme Court yesterday. Conservatives and liberals split sharply on two free-speech cases.

And let’s see . . . in two 5-4 decisions, the Court’s conservative majority struck down some of the McCain-Feingold law’s restrictions on campaign speech and upheld a high-school principal’s right to suspend a student for displaying a “Bong Hits 4 Jesus” banner. Liberals disagreed in both cases.

So the liberals strongly defend a student’s right to engage in nonsensical speech that might be perceived as pro-drug, but they approve a ban on speech criticizing political candidates in the 60 days before an election.

Now I’m for free speech in both these cases. But if you had to choose, which is more important–the right of a high-school student to display silly signs at school-sponsored events, or the right of citizen groups to criticize politicians at the time voters are paying attention Political speech is at the core of the First Amendment, and conservatives are more inclined to protect it than are liberals. That’s a sad reflection on today’s liberals.

The liberal attitude toward speech is also on display on the front pages of our leading liberal newspapers. A banner headline in the Washington Post reads “5-4 Supreme Court Weakens Curbs on Pre-Election TV Ads/Ruling on McCain-Feingold Law Opens Door for Interest Groups in ‘o8.” This long headline mentions “TV Ads” and “Interest Groups” but never uses the words “speech” or “First Amendment.” But the sidebar on the high-school case is headed “Restrictions on Student Speech Upheld.” For that issue, a straightforward understanding that speech is involved. And the New York Times website leads with “Justices Loosen Ad Restrictions in Campaign Finance Law,” while the sidebar on the school case reads, “Vote against Banner Shows Divide on Speech in Schools.” Though I should note that the old-fashioned, tree-destroying version of the Times does have a subhead reading “Political Speech Rights.”

Maybe libertarians should try to describe their philosophy by saying “libertarians believe in the free speech that liberals used to believe in, and the economic freedom that conservatives used to believe in.”

A few weeks ago, when I introduced ACLU executive director Anthony Romero at a Cato Book Forum, I began by asking

which right the American Founders considered most basic, that is, indispensable to securing all the others. Is it the right to property, which Arthur Lee described as “the guardian of every other right,” because without it we are all at the mercy of whoever controls all the resources Is it the right to keep and bear arms, without which resistance to the state is rendered toothless Is it, as Thomas Jefferson said, the right to trial by jury that protects citizens from the arbitrary power of the state Is it the case that, as Winston Churchill said – not an American Founder, of course, but always good for a quote – “A free press is the unsleeping guardian of every other right that free men prize” Or could it be the writ of habeas corpus, known as the Great Writ, which in 1969 the Supreme Court called “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action”

Afterward, my smarter colleague said, “It’s habeas.”

So that’s why it’s good that the ACLU has declared today a “Day of Action to Restore Law and Justice.” ACLU members and others are rallying on Capitol Hill and visiting congressional offices asking Congress to restore the right of habeas corpus.

One of the most frightening elements of the powers asserted by the Bush administration in the war on terror is the power it claims to arrest American citizens and hold them without access to a lawyer or a judge. The conservatives of the American Freedom Agenda have joined the ACLU in calling for repeal of the Military Commissions Act and restoration of the right of habeas corpus. Cato adjunct scholar Richard Epstein petitioned Congress not to curtail habeas corpus as it considered the Military Commissions Act last fall, to no avail. This issue will provide a good test of the proposition that divided government is a good thing. Will the Democratic Congress do the right thing and restore our constitutional rights

A headline in the Saturday Washington Post reads:

Russia’s Gazprom Purchases Siberian Gas Field From BP

The story begins:

The state-controlled energy giant Gazprom on Friday bought a vast natural gas field in Siberia from a unit of British-based petroleum conglomerate BP, continuing the Kremlin’s policy of shifting control of the country’s major energy projects from foreign to state hands.

The last part of the sentence begins to hint at what really happened, a truth that is concealed by words like “purchases” and “bought.” In fact, the Russian government and its giant energy firm Gazprom forced BP to sell, as it has forced other companies to turn valuable properties over to Gazprom and the oil company Rosneft, often through the use of trumped-up tax or regulatory issues.

Journalists should be straightforward about such things. Gazprom did not “purchase” a gas field from BP. This was no “willing buyer, willing seller” transaction. It would more accurately be described as a seizure, a confiscation, or at best a forced sale.

The Wall Street Journal used similar language. The New York Times, to its credit, was more honest and clear: Its headline read, “Moscow Presses BP to Sell a Big Gas Field to Gazprom,” and the story began, “Under pressure from the Russian government, BP agreed on Friday to sell one of the world’s largest natural gas fields to Gazprom, the natural gas monopoly, in the latest apparently forced sale that benefited a Russian state company.”

Footnote: Today is the second anniversary of the Kelo decision, in which the U.S. Supreme Court ruled that states could take private property for the benefit of other private owners such as developers. In a stinging dissent, Justice Sandra Day O’Connor wrote:

The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. …Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

The United States is not Russia. But O’Connor’s warning that “the beneficiaries [of forced takings] are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms” is certainly borne out — not just by a new Institute for Justice report on eminent domain in action — but by the actions in Putin’s Russia.

The New York Times reports on American troops’ efforts to push Al Qaeda insurgents out of Baqaba, Iraq, and liberate residents from their strict rule:

The insurgents have imposed a strict Islamic creed, and some have even banned smoking, one resident told Capt. Jeff Noll, the commander of Company B of the First Battalion, 23rd Infantry, during his patrol through the neighborhood.

Banning smoking President Bush is right — if we don’t stop them in Iraq, we’ll have to fight them in Manhattan, and Montgomery County, and San Francisco….

Tuesday is the 40th anniversary of Loving v. Virginia, in which the Supreme Court struck down Virginia’s ban on interracial marriage. It’s a good time to reflect on the social progress that Brink Lindsey discusses in The Age of Abundance: How Prosperity Changed America’s Politics and Culture. Indeed, the Freedom to Marry Coalition has been celebrating the anniversary with a series of newspaper ads highlighting the interracial marriages of such prominent Americans as Jeb Bush, Mitch McConnell, Clarence Thomas, Jim Webb, and Tiger Woods.

But Virginia’s attempts to impede the course of true love didn’t begin or end with its “anti-miscegenation” statute. As I noted for Reason a couple of years ago, in the early part of the 20th century the state was in the habit of sterilizing “imbeciles.” The Supreme Court, influenced by Progressivism, approved that exercise in social engineering. And in our own times, Virginia has been repeatedly banning same-sex marriage, not worrying excessively about how much collateral damage it does to wills, custody agreements, medical powers of attorney, or joint bank accounts.

I wrote about the state’s tradition of interfering with private choices:

Neither of these now-derided laws is a perfect match with the predicament facing gays in Virginia, but both flowed from an arrogant desire by the state to control private relationships. The state is schizophrenic about such things, but if the past is any indicator, things do not look good for gay Virginians. In the 1995 case of Sharon Bottoms, the Virginia high court took a two-year-old child away from his lesbian mother, because of her sexual orientation. If voters pass the amendment against gay marriage and civil unions next year, it would have real teeth. Already, many gays in Virginia are talking about moving to Washington or Maryland if what they view as an anti-gay crusade doesn’t recede. If things continue on their present course, the state might have to amend its slogan, “Virginia is for lovers,” to include the caveat, “some exceptions apply.”

Surprising as it is to me, I’ve run into a number of libertarians and libertarian-leaning Republicans recently who think the tax-cutting, pro-choice Rudy Giuliani would make a good president. To those people I recommend my recent op-ed in the New York Daily News:

Throughout his career, Giuliani has displayed an authoritarian streak that would be all the more problematic in a man who would assume executive powers vastly expanded by President Bush.

As a U.S. attorney in the 1980s, Giuliani conducted what University of Chicago Law Prof. Daniel Fischel called a “reign of terror” against Wall Street. He pioneered the use of the midday, televised “perp walk” for white-collar defendants who posed no threat to the community….

As a presidential hopeful, Giuliani’s authoritarian streak is as strong as ever. He defends the Bush administration’s domestic surveillance program. He endorses the President’s power to arrest American citizens, declare them enemy combatants and hold them without access to a lawyer or a judge. He thinks the President has “the inherent authority to support the troops” even if Congress were to cut off war funding, a claim of presidential authority so sweeping that even Bush and his supporters have not tried to make it.

Giuliani’s view of power would be dangerous at any time, but especially after two terms of relentless Bush efforts to weaken the constitutional checks and balances that safeguard our liberty.

In 1964, Barry Goldwater declared it “the cause of Republicanism to resist concentrations of power.” George W. Bush has forgotten that; Rudy Giuliani rejects it.

Justin Logan discussed the “Travesty in Tehran” – the arrest and incarceration of Haleh Esfandiari — astutely yesterday. As he noted, these actions are a real provocation at a time when reduced tensions between Iran and the United States are devoutly to be hoped for. But more importantly, the unjust imprisonment of a peaceful scholar is a striking affront to human rights. The people of both Iran and the United States who want to see Iran as part of a peaceful and democratic world must deplore these actions.

And of course, to make matters worse, Esfandiari is not the only scholar currently being held by the Iranian government. The regime is also holding Kian Tajbakhsh of the Open Society Institute; journalist Parnaz Azima from the U.S.-funded Radio Farda; and Ali Shakeri, a peace activist and founding board member at the University of California, Irvine’s Center for Citizen Peacebuilding. There is no evidence that any of these people are engaged in espionage or threatening Iranian national security. Indeed, most or all of them have worked to improve relations between Iran and the United States and to turn both countries away from a collision course.

Leading human rights groups and activists have spoken out against these arrests. In a joint statement, Amnesty International, Human Rights Watch, Reporters without Borders, the International Federation for Human Rights, and 2003 Nobel Peace Prize laureate Shirin Ebadi urged Iran to stop “harassment of dual nationals.”

To add insult to injury, Esfandiari’s husband was informed yesterday that Citibank had frozen his wife’s bank accounts ”in accordance with U.S. Sanctions regulations,” which stipulate that U.S. banks are prohibited from servicing accounts for residents of Iran. A resident She’s an involuntary resident of the notorious Evin Prison. Late in the evening, after many phone calls and the intercession of the State Department, Citibank relented and unfroze the accounts. As painful as that experience was, her husband no doubt wishes that a day’s worth of phone calls could persuade an Islamic government to admit its mistake.

In Albania, anyway. NPR reports that garbage is piling up in the streets of Tirana, and “It’s something you could blame on the fall of communism.” As reporter Vicky O’Hara explained,

When communism collapsed here in the early 1900s so did the city’s system of garbage removal. Shpresa Rira, a teacher at the foreign language institute in Tirana, remembers that under communism families were ordered to spend part of their weekend picking up trash.

Ms. SHPRESA RIRA: It was called the communist Saturday because people were meant to come to come together and give their services to the community.

O’HARA: Rira says that people were not paid but they turned out anyway, because if they didn’t, the consequences could be dire.

So it was universal compulsory service, like Melvin Laird and John Edwards want for the United States. But it turns out it didn’t work so well in Albania.

The communist tactic, she says, destroyed community spirit in Albania.

Ms. RIRA: We thought that we were closely connected, but as soon as communism was over, you know, we understood that that community spirit didn’t exist at all. It was just a fake.

And like most collectivist systems, it did not “foster a culture of responsibility for our democracy.” Instead, it left people expecting that government would handle everything. So now, the government no longer threatens people with dire consequences for not picking up trash, and no one does. The city has been slow to create a normal garbage collection system. Maybe this forced community spirit stuff isn’t such a good idea after all.