David Boaz

Daniel Hannan writes in the Wall Street Journal today about Magna Carta, whose 800th anniversary will also be celebrated at a Cato conference next week. Alas, he persists in an error that I regret to say he’s made before.

Hannan is a great advocate of liberty and particularly of English liberty. His patriotism is admirable in an English representative to the European Parliament. But he fails to grasp the shift in the idea of liberty that took place in America in the 1770s. Hannan, I think correctly, celebrates Magna Carta as the great foundation of ordered liberty, of what I have called the greatest libertarian achievement in history, bringing power under the rule of law:

As Lord Denning, the most celebrated modern British jurist put it, Magna Carta was “the greatest constitutional document of all time, the foundation of the freedom of the individual against the arbitrary authority of the despot.”

It was at Runnymede, on June 15, 1215, that the idea of the law standing above the government first took contractual form. King John accepted that he would no longer get to make the rules up as he went along. From that acceptance flowed, ultimately, all the rights and freedoms that we now take for granted: uncensored newspapers, security of property, equality before the law, habeas corpus, regular elections, sanctity of contract, jury trials.

But he goes wrong when he glosses over the change in thinking that occurred around 1776 in the American colonies:

The American Revolutionaries weren’t rejecting their identity as Englishmen; they were asserting it. As they saw it, George III was violating the “ancient constitution” just as King John and the Stuarts had done. It was therefore not just their right but their duty to resist, in the words of the delegates to the first Continental Congress in 1774, “as Englishmen our ancestors in like cases have usually done.”

Nowhere, at this stage, do we find the slightest hint that the patriots were fighting for universal rights. On the contrary, they were very clear that they were fighting for the privileges bestowed on them by Magna Carta. The concept of “no taxation without representation” was not an abstract principle. It could be found, rather, in Article 12 of the Great Charter: “No scutage or aid is to be levied in our realm except by the common counsel of our realm.” In 1775, Massachusetts duly adopted as its state seal a patriot with a sword in one hand and a copy of Magna Carta in the other.

I recount these facts to make an important, if unfashionable, point. The rights we now take for granted—freedom of speech, religion, assembly and so on—are not the natural condition of an advanced society. They were developed overwhelmingly in the language in which you are reading these words.

When we call them universal rights, we are being polite.

It’s true that the colonists came here with the spirit of English liberty running in their veins. They brought with them the books of Locke and Sydney, the examples of Lilburne and Hampden, the writings of Edward Coke. In the 18th century they read Cato’s Letters and William Blackstone. They petitioned Parliament and the king for their rights as Englishmen. 

But the Declaration of Independence marks a break in that thinking. When Thomas Jefferson sat down to write “an expression of the American mind,” he did not appeal to the rights of Englishmen. Instead, the Americans declared:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. (emphases added)

They appealed not to the British Parliament nor to King George III, but rather to “the opinions of mankind…a candid world…the Supreme Judge of the world.” Hannan glosses over this when he makes reference to 1774 and writes, “Nowhere, at this stage, do we find the slightest hint that the patriots were fighting for universal rights.” True, not in 1774. But by 1776, when Thomas Paine published Common Sense, in which he defended “the natural rights of all mankind” and denounced kings as “ruffians” and “a French bastard landing with an armed banditti,” and the Continental Congress made its case on the basis of the unalienable rights of all men, American thinking had changed. Americans declared their belief in universal rights and their independence from a nation that denied those rights.

As I was researching this post, I found a similar argument from Tim Sandefur a year ago. Alas, Hannan persists in making this error year after year. Besides citing the argument of the Declaration, Sandefur presents in evidence the thoughts of John Quincy Adams on the 50th anniversary of the Constitution:

English liberties had failed [the Patriots]. From the omnipotence of Parliament the colonists appealed to the rights of man and the omnipotence of the God of battles. Union! Union! was the instinctive and simultaneous cry throughout the land. Their Congress, assembled at Philadelphia, once—twice had petitioned the king; had remonstrated to Parliament; had addressed the people of Britain, for the rights of Englishmen—in vain. Fleets and armies, the blood of Lexington, and the fires of Charlestown and Falmouth, had been the answer to petition, remonstrance and address.

Independence was declared. The colonies were transformed into States. Their inhabitants were proclaimed to be one people, renouncing all allegiance to the British crown; all co-patriotism with the British nation; all claims to chartered rights as Englishmen. Thenceforth their charter was the Declaration of Independence. Their rights, the natural rights of mankind. Their government, such as should be instituted by themselves, under the solemn mutual pledges of perpetual union, founded on the self-evident truths proclaimed in the Declaration…. The omnipotence of the British Parliament was vanquished. The independence of the United States of America, was not granted, but recognized. The nation had “assumed among the powers of the earth, the separate and equal station, to which the laws of nature, and of nature’s God, entitled it.”

Daniel Hannan is a thoughtful, forceful, and eloquent advocate of liberty under law. But he needs to read the Declaration of Independence and respect what it says, that the United States of America, though inspired by the tradition of English liberty, was founded on the self-evident truth that all men are endowed by their Creator with certain unalienable Rights, and that those rights reside in all men and women in every country of the earth.

Benjamin Franklin said, “There never was a good war or a bad peace.” Given Franklin’s leadership in the struggle for American independence, we can infer that he did not think that there never was a war that was necessary, or a war that was worth its cost. But he reminds us that even necessary wars have terrible costs.

I thought about Franklin when I read an eloquent column on the meaning of Memorial Day by the novelist Mark Helprin, who is also a senior fellow at the Claremont Institute. He lamented:

Though if by and large we ignore the debt we owe to those who fell at Saratoga, Antietam, the Marne, the Pointe du Hoc, and a thousand other places and more, our lives and everything we value are the ledger in which it is indelibly recorded.

It’s a worthy sentiment, one heard frequently in Memorial Day addresses, and we do indeed owe our lives and our pursuit of happiness to the freedom that America’s soldiers have sometimes had to defend.

But I can’t help wondering: Have all of America’s wars have been necessary to American freedom? Helprin mentioned the Second Battle of the Marne, the great turning point of World War I and the first battle in which Americans started experiencing the enormous casualties that Europeans had been facing for nearly four years. The problem is that World War I was a catastrophe, a foolish and unnecessary war, a war of European potentates that both England and the United States could have stayed out of but that became indeed a World War, the Great War. In our own country, the war gave us economic planning, conscription, nationalization of the railroads, a sedition act, confiscatory income tax rates, and prohibition. Internationally, World War I and its conclusion led directly to the Bolshevik revolution, the rise of National Socialism, World War II, and the Cold War. World War I was the worst mistake of the 20th century, the mistake that set in motion all the tragedies of the century. The deaths of those who fell at the Marne are all the more tragic when we reflect that they did not in fact serve to protect our lives and all that we value.

Did the wars in Vietnam and Iraq protect American lives and liberties? Two weeks ago, Republican presidential contender Jeb Bush said that discussing whether the Iraq war was a mistake “does a disservice to a lot of people who sacrificed a lot.” It’s understandable that an aspiring commander-in-chief would want to spare the feelings of those who lost a loved one in Iraq. But surely it’s more important that a commander-in-chief ask tough questions about when it’s advisable to go to war.

In my book The Libertarian Mind, I wrote about the effects of war: not just death on a large scale but the destruction of families, businesses, and civil society. And thus:

War cannot be avoided at all costs, but it should be avoided wherever possible. Proposals to involve the United States—or any government—in foreign conflict should be treated with great skepticism….We should understand the consequences of war for our entire social order and thus go to war only when absolutely necessary.

On this weekend we should mourn those who went to war, such as my father, who planned and participated in the liberation of Europe, and his brother who was lost off the coast of Normandy, and we should resolve not to risk American lives in the future except when our vital national interests are at stake.

In about 30 seconds this morning on Fox News Sunday, George Will laid out the prudential case for proceeding very cautiously when contemplating a war:

WALLACE: So George, with that as trailer, what’s the lesson that we should take from Iraq, and particularly as it comes to future U.S. policy?

WILL: Four lessons, I think.

First, the government has to choose always on the basis of imperfect information. I agree with Bob [Woodward]. There were no lies here [in the Bush administration’s incorrect claims about WMD]. It was a colossal failure to know what we didn’t know.

Second, the failure to ask Admiral Yamamoto’s question. When he was asked by the government of Japan could he take a fleet stealthily across the Pacific and strike Pearl Harbor, he said yeah, but then what? He knew they would have on their hands an enormous problem in the United States.

Third, Colin Powell’s Pottery Barn rule: if you break it, you own it. Just as when the Kennedy administration in November 1963 was complicit in the coup against Diem, in South Vietnam, we owned South Vietnam ever after.

But fourth and most important, the phrase nation-building is as absurd as the phrase orchid building. Orchids are complex, organic things. So are nations. And we do not know how to build nations any more than we know how to fix English-speaking home grown Detroit. 

In New Hampshire yesterday, Jeb Bush found something to disagree with his brother’s presidency—sort of:

“I think that, in Washington during my brother’s time, Republicans spent too much money,” Mr. Bush said Thursday when asked to describe where there was a “big space” between himself and his brother George W. Bush. “I think he could have used the veto power. He didn’t have line-item veto power, but he could have brought budget discipline to Washington, D.C.”

As Peter Suderman noted in Reason, there’s some weaseling in there—it’s “Republicans” who spent too much, not specifically the Republican president. And Jeb quickly went on to say that such criticism “seems kind of quaint right now given the fact that after he left, the budget and deficits and spending went up astronomically.” Suderman notes that George W. Bush in fact

presided over the most significant increase in federal spending since Lyndon B. Johnson was president in the 1960s… Federal spending under Obama has increased at a far slower rate than under President Bush. Obama took Bush’s baseline and built on it, but George W. Bush’s spending increases were a big part of what made Obama’s spending possible.

Jeb had said this before—in fact, during his brother’s presidency. At CPAC in 2007, he said, “If the promise of pork and more programs is the way Republicans think they’ll regain the majority, then they’ve got a problem.” He said then that he was talking about the Republicans in Congress. And I noted then: 

But who’s he kidding? President Bush sponsored most of those “more programs,” and in six years he hasn’t vetoed a single piece of pork or a bloated entitlement bill or a new spending program. And if Jeb thinks “we lost … because we rejected the conservative philosophy in this country,” he must realize that his brother has set the agenda for Republicans over the past six years almost as firmly as Putin has set Russia’s agenda. If Republicans turned their back on limited-government conservatism, it’s because the White House told them to. Not that congressional leaders were blameless—and on Social Security reform, they did decide to resist Bush’s one good idea—but it was President Bush and his White House staff who inspired, enticed, threatened, bullied, and bully-pulpited Republicans into passing the No Child Left Behind Act, the biggest expansion of entitlements in 40 years, and other big-government schemes.

I also pointed out then, as Peter Suderman does today:

Although Jeb seems to have convinced conservatives that he’s much more committed to spending restraint than W—and he did veto some $2 billion in spending over eight years [as Florida governor]—his real record is much more like his brother’s. According to the Cato Institute’s Fiscal Policy Report Card on America’s Governors (pdf), he presided over “explosive growth in state spending.” Indeed, in the latest report card, only 10 governors had worse ratings on spending restraint, though—again like his brother—Jeb scored much higher on tax cutting. Federal spending is up 50 percent in six years; Florida’s spending was up 52 percent in eight years, and Jeb wasn’t fighting two foreign wars.

Republicans like to promise spending restraint, to deplore past profligacy, and then to deliver more of the same. That’s what George W. did, and it looks like Jeb is starting down the same path.

In the news this morning, Sen. Orrin Hatch (R–UT), author of the Trade Promotion Authority bill, makes the usual case for trade agreements and TPA:

We need to get this bill passed. We need to pass it for the American workers who want good, high-paying jobs. We need to pass it for our farmers, ranchers, manufacturers, and entrepreneurs who need access to foreign markets in order to compete. We need to pass it to maintain our standing in the world.

It’s certainly good that the chairman of the Senate Finance Committee supports freer trade. But I fear he’s as confused as most Washingtonians about the actual case for free trade.

This whole “exports and jobs” framework is misguided. Thirty years ago in the Cato Journal, the economist Ronald Krieger explained the difference between the economist’s and the non-economist’s views of trade. The economist believes that “The purpose of economic activity is to enhance the wellbeing of individual consumers and households.” And, therefore, “Imports are the benefit for which exports are the cost.” Imports are the things we want—clothing, televisions, cars, software, ideas—and exports are what we have to trade in order to get them.

And thus, Krieger continues, point by point:

Cheap foreign goods are thus an unambiguous benefit to the importing country.

The objective of foreign trade is therefore to get goods on advantageous terms.

That is why we want free—or at least freer—trade: to remove the impediments that prevent people from finding the best ways to satisfy their wants. Free trade allows us to benefit from the division of labor, specialization, comparative advantage, and economies of scale.

I write about this in The Libertarian Mind (buy it now!):

Politicians just don’t seem to get this. President Obama’s official statement on “Promoting U.S. Jobs by Increasing Trade and Exports” mentions exports more than forty times; imports, not once. His Republican critics agree: Senator Rob Portman says that a trade agreement “is vital to increasing American exports.” More colorfully, during his 1996 presidential campaign, Pat Buchanan stood at the Port of Baltimore and said, “This harbor in Baltimore is one of the biggest and busiest in the nation. There needs to be more American goods going out.”

That’s fundamentally mistaken. We don’t want to send any more of our wealth overseas than we have to in order to acquire goods from overseas. If Saudi Arabia would give us oil for free, or if South Korea would give us televisions for free, Americans would be better off. The people and capital that used to produce televisions—or used to produce things that were traded for televisions—could then shift to producing other goods. Unfortunately for us, we don’t get those goods from other countries for free. But if we can get them cheaper than it would cost us to produce them ourselves, we’re better off.

Sometimes international trade is seen in terms of competition between nations. We should view it, instead, like domestic trade, as a form of cooperation. By trading, people in both countries can prosper. And we should remember that goods are produced by individuals and businesses, not by nation-states. “South Korea” doesn’t produce televisions; “the United States” doesn’t produce the world’s most popular entertainment. Individuals, organized into partnerships and corporations in each country, produce and exchange. In any case, today’s economy is so globally integrated that it’s not clear even what a “Japanese” or “Dutch” company is. If Apple Inc. produces iPads in China and sells them in Europe, which “country” is racking up points on the international scoreboard? The immediate winners would seem to be investors and engineers in the United States, workers in China, and consumers in Europe; but of course the broader benefits of international trade will accrue to investors, workers, and consumers in all those areas.

The benefit of international trade to consumers is clear: We can buy goods produced in other countries if we find them better or cheaper. There are other benefits as well. First, it allows the division of labor to work on a broader scale, enabling the people in each country to produce the goods at which they have a comparative advantage. As Mises put it, “The inhabitants of [Switzerland] prefer to manufacture watches instead of growing wheat. Watchmaking is for them the cheapest way to acquire wheat. On the other hand the growing of wheat is the cheapest way for the Canadian farmer to acquire watches.”

Congress has a golden opportunity over the next six weeks to significantly improve public policy and expand American freedom by doing nothing. In fact, a long vacation would be just the ticket.

The Export-Import Bank’s authorization expires on June 30, after being kicked down the road from last September. Let it expire.

And the Patriot Act’s most controversial provisions — bulk collection of Americans’ phone records stemming from Section 215 (already ruled illegal by a federal court), roving wiretap authority, and “lone wolf” provisions — will expire on June 1 unless they are reauthorized.

“A six-week vacation would give a boost to economic growth and our Fourth Amendment privacy rights. It’s a win-win.”

This is a great opportunity for Congress to take a long vacation — go back to their districts and find out what’s on voters’ minds, take a fact-finding trip to Paris and Rome, or just relax at the beach — and let these misguided laws expire.

Members should stay on vacation through the Fourth of July and come back to Washington after listening to some speeches about our inalienable rights, free enterprise, and the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

The Ex-Im Bank is the most visible example of cronyism and corporate welfare, which has lately come under fire from both Tea Party and Occupy Wall Street activists. It has an especially close relationship with Boeing, which receives about 40 percent of the bank’s subsidies.

Free enterprise means that people are free to start and build companies, seek customers, and make profits if they succeed. The system works well if there’s competition. But subsidy programs like Ex-Im put a thumb on the scale. They help some companies at the expense of others. The bank backs only about 2 percent of American exports, with 76 percent of its assistance going to a few big companies such as Boeing, General Electric, and Bechtel. Government shouldn’t be picking winners, it should set a few rules of the road and let companies go out and compete vigorously for customers.

Members of Congress committed to free enterprise and competition should let the Ex-Im Bank die, no matter what the Chamber of Commerce and Sen. Elizabeth Warren (D-Mass.) say.

As for the Patriot Act provisions, we’ve heard plenty of dire warnings from advocates of the surveillance state. Sen. Mitch McConnell (R-Ky.) says vacuuming up all Americans’ phone records is a “critical capability” in combating terrorism. Yet as my colleague Julian Sanchez notes, two groups of experts came to a different conclusion:

A Surveillance Review Group appointed by the president found that information from the NSA database “was not essential to preventing attacks,” and concluded that there was “no sufficient justification for allowing the government itself to collect and store bulk telephony meta-data.” Those findings were echoed by the Privacy and Civil Liberties Oversight Board, which was unable to find “a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation.” Rather, the Board wrote, “the information supplied by the NSA through Section 215 offered no unique value, but simply mirrored or corroborated information that the FBI obtained independently using other means.”

What if the three provisions aren’t reauthorized? Sen. Rand Paul (R-Ky.) says, “I see no reason why we couldn’t use the Constitution for a while.” And then Congress could spend the summer contemplating what sorts of surveillance authorization are really needed. Members can debate the USA Freedom Act, the Surveillance State Repeal Act, or other alternatives.

Congress gets a lot of criticism for “doing nothing.” Considering some of the things that Congresses actually do, doing nothing is often a better idea. In this case, a six-week vacation would give a boost to economic growth and our Fourth Amendment privacy rights. It’s a win-win.

In this 15th year of war in Afghanistan, as the United States is becoming further entangled in military conflicts in Iraq, Syria and Yemen, we need a serious debate about whether we want to be permanently at war.

We can start by noting a few simple rules about war and foreign policy. First, war kills people. Especially in the modern world, it often kills as many civilians as soldiers. War cannot be avoided at all costs, but it should be avoided wherever possible. Proposals to involve the United States — or any government — in foreign conflict should be treated with great skepticism.

Second, war creates big government. That’s one reason libertarians and other believers in limited government have tried to avoid war. Throughout history, war has provided an excuse for governments to arrogate money and power to themselves and to regiment society.

“We need a serious debate about whether we want to be permanently at war.”

During World Wars I and II, the United States government assumed powers it could never have acquired in peacetime — powers such as the military draft, wage-and-price controls, rationing, close control of labor and production and astronomical tax rates. Constitutional restrictions on federal power were swiftly eroded.

That doesn’t tell us whether those wars should have been fought. It does mean that we should understand the consequences of war for our entire social order and thus go to war only when absolutely necessary.

Third, the United States can no more police and plan the whole world than it can plan a national economy. Without a superpower threat to rally against, the political establishment wants us to deploy our military resources on behalf of democracy and self-determination around the world and against such vague or decentralized threats as terrorism, drugs and environmental destruction. The military is designed to fight wars in defense of American liberty and sovereignty; even the world’s largest bureaucracy is not well-equipped to be policeman and social worker to the world.

Fourth, our Cold War allies have recovered from the destruction of World War II and are fully capable of defending themselves. The countries of the European Union have a collective population of more than 500 million, a gross domestic product of $18 trillion a year and nearly 2 million troops. They can defend Europe and deal with internal problems such as the conflict in Ukraine without U.S. assistance. South Korea has twice the population and 40 times the economic output of North Korea; it doesn’t need our 29,000 troops to protect itself.

Fifth, the communications explosion means that the information imbalance between political leaders and citizens is much reduced. For all our vast intelligence network, presidents often watch world events unfolding on satellite news networks, along with all the rest of us. That means that presidents will find it more difficult to expect public deference on matters of foreign policy, so they should proceed cautiously in undertaking foreign commitments without popular support.

Despite the constant warnings of war hawks, and the ongoing images of conflict on our screens, the world is safer than it’s ever been. And for the United States, the most secure power in world history, protected by two oceans and friendly neighbors, that’s especially true.

The first purpose of government is to protect the rights of citizens. We must maintain an adequate national defense, but we can defend the vital interests of the United States with a military budget about half the size of the one we have — if we reorient our foreign policy to one of self-defense and restraint, not global commitments to collective security agreements.

Libertarians who propose to bring U.S. troops home and concentrate on the defense of the United States are sometimes accused of being isolationist. That’s a misconception. Libertarians are, in fact, confident and cosmopolitan. We look forward to a world bound together by free trade, global communications and cultural exchange. We support maintaining the world’s largest and most powerful military, by a wide margin, although not as big as the foreign-policy establishment wants.

Military intervention around the world costs Americans substantial blood and treasure and benefits them little. Although the world is growing closer together in many ways, it is inappropriate to view the whole world as a village in which everyone must pitch in to stop every fight. In a world with terrorism and nuclear weapons, it is better to keep military conflicts limited and regional rather than to escalate them through superpower involvement.