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January 2015 reason Volume 46, No. 8 Free Minds and Free Markets

Departments 16 ‘Enough, For All, Forever’ Culture & Reviews A report from New York’s mixed 2 The Reality and Propaganda up, anti-capitalist People’s 58 When Judicial Activists Switched of War Climate March. Ronald Bailey Sides An honest conversation about Deference to elected majorities foreign policy requires us to 78 Stop Complaining About That was a Progressive ideal long confront the brutality and imagery Flying Car. You Have Amazon. before modern conservatives of violence. Matt Welch Getting stuff gets more awesome picked up the baton. Damon Root every day. Greg Beato 4 Contributors Briefly Noted 60 Jesse Walker on S.R. Staley’s 5 Letters and Reaction Features St. Nic, Inc. A lethal injection of reality; Putin’s 62 Matt Welch on the TV show Russia… 18 The Crony Capitalism Litmus Test Manhattan The Ex-Im Bank won’t survive 64 Zenon Evans on the filmThe 6 Citings 2015—if the GOP is serious about Internet’s Own Boy Obamacare costs; patent trolling free market principles. 66 Peter Suderman on the TV show in court; encrypted iPhones; Timothy P. Carney The Knick Uber under siege; the Clinton 68 Robby Soave on the TV show comeback; getting high vs. 26 In Search of Libertarian Shark Tank benefits; we are all mutants Realism now… How should anti-interventionism 68 How Liberals Put Black America apply in the real world? Behind Bars 56 Reason TV: Sex, Spice, and Will Ruger, Sheldon Richman, A surprising new history about Small-Town Texas Justice Fernando R. Tesón, and Christopher race and prison. Thaddeus Russell A rogue prosecutor makes the Preble The First Civil Right: How Liberals war on drugs personal. Built Prison America, by Naomi Anthony L. Fisher 39 Americans Want Action Against Murakawa ISIS…But Do Not Expect Quick, Easy Success 72 Alt-Constitution Columns A Reason-Rupe poll Rewriting the Constitution without Washington’s permission. 12 Ebola, Smoking, and Mission 42 Dr. Never Brian Doherty Creep at the CDC Former Rep. Ron Paul on how America’s Forgotten Constitutions: Controlling contagious diseases ‘military interventions by the Defiant Visions of Power and is just one of many items on the United States after World War II Community, by Robert L. Tsai agency’s to-do list. Jacob Sullum were all unjustified.’ Interview by Matt Welch 76 Our Fairy Godfather 14 Foreign Aid Is a Failure Crockett Johnson’s brilliant Throwing good money at bad 48 The Conservative Realist? Barnaby is back in print. governments makes poor Sen. Rand Paul on ISIS, the Middle Jesse Walker countries worse off. East, and when America should go Veronique de Rugy to war. Interview by Matt Welch 80 Artifact: Meet the ‘Reason’ A new 3-D printed metal gun with a 50 The Case for Conservative familiar name. Brian Doherty Realism Rand Paul Cover Photo: youtube.com

reason (ISSN 0048-6906) is published monthly except combined August/September issue by the Reason Foundation, a nonprofit, tax-exempt organization, 5737 Mesmer Avenue, Los Angeles, CA 90230-6316. Periodicals postage paid at Los Angeles, CA, and additional mailing offices. Copyright © 2014 by Reason Foundation. All rights reserved. Reproduction or use, without permission, of editorial or graphic content is prohibited. reason and Free Minds and Free Markets are registered trademarks owned by the Reason Foundation. SUBSCRIPTIONS: $38.50 per year. Outside U.S. add $10/year surface, $55/year airmail. Address subscription correspondence to reason, P.O. Box 8504, Big Sandy, TX 75755, Tele. 888-732-7668. For address change (allow six weeks), provide old address and new address, including zip code. UNSOLICITED MANUSCRIPTS returned only if accompanied by SASE. INDEXED in Readers’ Guide to Periodical Literature, InfoTrac, Historical Abstracts, Political Science Abstracts, America: History and Life, Book Review Index, and P.A.I.S. Bulletin. Available on microfilm from University Microfilms International, 300 North Zeeb Rd., Dept. P.R., Ann Arbor, MI 48106. Printed in the United States.Publications Mail Agreement No. 40032285, return undeliverable Canadian addresses t0 P.O. Box 503, RPO West Beaver Creek, Richmond Hill ON L4B 4R6. POSTMASTER: Send address changes to reason, P.O. Box 8504, Big Sandy, TX 75755. Publica- tions Mail Sales Agreement No. 1476696. From the Top: Matt Welch The Reality and Propaganda of War An honest conversation about foreign policy requires us to confront the brutality and imagery of violence.

The threatening-looking man on the out campaigns of murder, including against cover of this magazine is an Islamic State (ISIS) Americans, from the murky corners of failed terrorist with a British accent who took the lead states. Neoconservatives on the right and liberal role in propaganda videos showing the behead- internationalists on the left have been treating ing of American journalists James Foley and national sovereignty as an archaic obstacle to Steven Sotloff, acts of horrifying brutality that overcome for most of the post–Cold War era, helped propel the United States into war. with a mixed track record at best. But even Considerably more graphic versions of that someone as committed to nonintervention as image, including a visibly terrified Foley, were Ron Paul (see “Dr. Never,” page 42) will admit run the day after his murder under the headline that having the Taliban help plot the 9/11 “SAVAGES” by both of New York’s major tab- attacks from the safe haven of a dysfunctional loids—the Post and the Daily News. The papers Afghanistan necessitated American military received a smattering of criticism in the press action. So any plausible foreign policy, let alone and across social media for sensationalism, for a libertarian one, needs to grapple with the insensitivity to Foley’s parents, and for amplify- reality of non-state actors. ing the terrorists’ publicity. So why did we put this image on the cover ISIS is also the latest excrescence of a militant of reason? and expansionist wing of Islam that seeks to impose a retrograde Shariah law upon unwill- This special issue of the magazine is dedicated ing human beings, by murderous force if need to the project of applying the clean philosophi- be. And it is an organization that sprang from cal and theoretical underpinnings of libertari- the chaos left behind after misguided American anism to the messy world we live in. That real military interventions in Iraq and Libya. Too world includes several complicating factors many foreign policy commentators—includ- that are best illustrated by the cover image. ing not a few self-identified libertarians—will The first isISIS itself and what it repre- acknowledge only one of the previous two sen- sents. Since the 1648 Treaty of Westphalia, the tences. As Sen. Rand Paul (R-Ky.) says (see “The inviolability of the nation-state has been the Conservative Realist?,” page 48), “Will they bedrock of international relations theory and hate us less if we are less present? Perhaps. But action. No matter how awful the government of hatred for those outside the circle of ‘accepted’ said state might be to its own residents, other Islam exists above and beyond our history of countries maintained a default setting of not intervention overseas.” interfering with its internal affairs unless and The younger Paul, amid much contro- until they spilled over the border in the form of versy, is attempting to apply the principles of state-on-state aggression. The bulk of interna- intervention-skepticism to the also messy world tional conflict, therefore, was government-to- of national politics. The senator is almost cer- government. tainly seeking the presidential nomination of a ISIS—like Al Qaeda, from which it sprang— political party that is considerably more hawk- has complicated that narrative by being a ish than he, and he has been calibrating his transnational aggressor organization carrying message and positioning—including support

2 | reason | January 2015 for bombing ISIS—against that back- noninterventionism,” but that mes- cartoon caricatures of the Prophet drop. Which brings us to the next sage can fall flat on the ears of a pub- Muhammad. key foreign policy concept our cover lic in mid-panic. Engaging people image represents: politics, and the emotionally—even only to acknowl- You can interpret the image on the underlying public opinion behind it. edge their emotion in the course of cover as a scary harbinger of an ISIS’ beheading videos were dosing it with reason—is a necessary open-ended transnational war in carefully composed to maximize step if libertarian foreign policy is the Middle East peppered by spo- Western attention and dread, with going to escape the margins to which radic moments of gruesome anti- their native English narrator and it is too often confined. American blowback. Conversely, stark all-black and all-orange cos- It’s also important to recognize you can see it as a transparent and tumes against a tan desert back- that the propaganda (intentional or desperate attempt to drive up the ground. The impact was powerful not) works in the other direction, too. ransom cost of Western hostages enough to change the course of U.S. Many news outlets agonizing over (a key source of ISIS income) and foreign policy. how to portray images of the ISIS inflate the Islamic State’s jihadist P.R. A remarkable 94 percent of videos had no such qualms about by successfully poking the hornet’s respondents in a September NBC/ showing the worst of U.S. behavior at nest of Uncle Sam. When we let two Wall Street Journal poll said they had the notorious Abu Ghraib prison in lives, no matter how precious and heard about the beheadings, “higher Careening from crisis unjustly snuffed out by barbarians than any other news event the NBC/ who deserve much worse, dictate WSJ poll has measured over the past to crisis, butting in and the course of U.S. foreign policy, that five years,”NBC News reported. Not out of civil wars we little becomes the most glaring reminder coincidentally, that same poll found understand, is no way to yet that American statecraft is rud- 47 percent of Americans feeling less protect the national or derless, headline driven, and long safe than they did before September overdue for a philosophical and prac- 11, 2001, a high-water mark since international interest. tical course-correction. 9/11 and up from just 28 percent Iraq (where, in case you have blotted So, like The New York Times and the year before. Surveys throughout out the memory, U.S. soldiers gave USA Today, we are using a less provoc- the fall showed around three-fifths thumbs-up poses next to dead Iraqis, ative version of a startling image to of Americans favoring sovereignty- stacked prisoners in naked clumps, illustrate the foreign threat du jour. busting military action in Syria, and tortured their charges). We at But unlike most, we also see it as an versus around only one-fifth just 12 reason have long argued not only that indictment of the way foreign policy months before. What felt like surg- it’s crucial for citizens to have access is conducted nowadays. Careening ing anti-war sentiment in September to such graphic representations of from crisis to crisis, butting in and 2013 had yielded to a kind of pas- their government’s war making, out of civil wars we little understand, sionless, fatalistic interventionism but that President Barack Obama is no way to protect the national or by September 2014, in large part deserves special scorn for campaign- international interest. Yes, libertar- because of these two videos. ing on releasing all of the Abu Ghraib ians need to get real. But so do the images, then abruptly changing his people who actually hold power. r Any successful libertarian realism mind once handed the awful respon- needs to understand and engage with sibility of power. Editor in Chief Matt Welch (matt.welch@ reason.com) is the co-host of The Independents the impact of images, news, and pro- Citizens need to be trusted with on Fox Business Network and co-author, with paganda on a human race with a long the visual truth, whether it’s pic- Nick Gillespie, of The Declaration of Inde- track record of rallying around the tures of people jumping out of the pendents: How Libertarian Politics Can Fix What’s Wrong with America (PublicAffairs). tribe, particularly in times of duress. World Trade Center on 9/11, footage You can argue, as Sheldon Richman of children maimed by U.S. drone does in our forum on foreign policy warfare, shots of flag-draped coffins (“In Search of Libertarian Realism,” of U.S. soldiers returning from the page 26), that “libertarianism means battlefield, or allegedly inflammatory

reason | January 2015 | 3 reason Editor in Chief Matt Welch ([email protected]) Contributors Managing Editor Katherine Mangu-Ward ([email protected]) William Ruger makes “The Case for Realism Deputy Managing Editor Stephanie Slade ([email protected]) Books Editor Jesse Walker ([email protected]) and Restraint” (page 29). Ruger, 43, is an assis- Senior Editors Brian Doherty ([email protected]) tant professor of political science at Texas State Damon Root ([email protected]) Peter Suderman ([email protected]) University and a scholar at the Mercatus Center, Jacob Sullum ([email protected]) Science Correspondent Ronald Bailey ([email protected]) where he co-wrote Freedom in the 50 States. He’s Art Director Barb Burch ([email protected]) also a veteran of the war in Afghanistan. Asked Graphic Designer Jason Keisling ([email protected]) Photo Researcher Blair Rainey about America’s biggest foreign policy mistakes, Editorial Assistant Mary Toledo ([email protected]) Burton C. Gray Memorial Intern Lucian McMahon Ruger says “unnecessary wars deserve top bill- Fall Intern Patrick Hannaford ing.” He points to conflicts in Iraq and Vietnam, reason.com Editor in Chief Nick Gillespie ([email protected]) William Ruger adding that “the recent intervention in Libya is Managing Editor J.D. Tuccille ([email protected]) Managing Editor, Reason TV Meredith Bragg (mbragg@ underrated as a mistake.” reason.com) Associate Editors Fernando R. Tesón says “Don’t Underes- Ed Krayewski ([email protected]) Scott Shackford ([email protected]) timate the Costs of Inaction” on page 34. Tesón, Staff Editors Elizabeth Nolan Brown ([email protected]) 64, is a professor at Florida State University Zenon Evans ([email protected]) Robby Soave ([email protected]) College of Law. He’s the author of the forthcom- Producers Paul Feine, Senior Producer ([email protected]) ing Justice at a Distance (Cambridge University Paul Detrick ([email protected]) reason Jim Epstein ([email protected]) Press) with Contributing Editor Loren Alexis Garcia ([email protected]) Todd Krainin ([email protected]) Fernando R. Tesón Lomasky. Tesón served for several years as a Alex Manning ([email protected]) Will Neff ([email protected]) diplomat for Argentina’s Foreign Ministry, but Tracy Oppenheimer ([email protected]) Joshua Swain ([email protected]) eventually resigned “to be an academic, and in Zach Weissmueller ([email protected]) Amanda Winkler ([email protected]) protest against the human rights violations of Contributing Editors the then–Argentine government,” he says. Peter Bagge, Greg Beato, Gregory Benford, Veronique de Rugy, James V. DeLong, Charles Paul Freund, Glenn Garvin, Mike God- On page 32, Sheldon Richman argues that win, David R. Henderson, John Hood, Kerry Howley, Carolyn Loch- head, Loren E. Lomasky, Mike Lynch, John McClaughry, Deirdre N. “Libertarianism Means Noninterventionism.” McCloskey, Michael McMenamin, Michael Valdez Moses, Michael C. Moynihan, Charles Oliver, Walter Olson, John J. Pitney Jr., Julian Richman, 64, lives in North Little Rock, Arkan- Sanchez, Jeff A. Taylor, David Weigel, Cathy Young, Michael Young Legal Adviser Don Erik Franzen sas, is vice president of The Future of Freedom Headquarters Sheldon Richman 5737 Mesmer Avenue, Los Angeles, CA 90230-6316 Foundation, and edits its monthly publication, Tel: 310-391-2245 Fax: 310-391-4395 Washington Offices Future of Freedom. He’s a longtime proponent of 1747 Connecticut Avenue, NW, Washington, DC 20009 Tel: 202-986-0916 Fax: 202-315-3623 noninterventionism. “With Ron Paul’s retire- Advertising Sales Burr Media Group ment, there is no clear and consistent voice for Ronald E. Burr, 703-893-3632 Joseph P. Whistler, 540-349-4042 nonintervention,” he says. “Considering the ([email protected]) Subscription Service public support for new wars in Iraq and Syria, P.O. Box 8504, Big Sandy, TX 75755 1-888-reason-8 (1-888-732-7668) we can see that noninterventionism has not yet ([email protected]) Circulation Circulation Specialists Inc. Christopher Preble taken root.” Newsstand Distribution Kable Distribution Services, 212-705-4600 Christopher Preble reason is published by the Reason Foundation, a 501(c)(3) non- examines “Toward profit educational foundation. Contributions to the Reason Foun- dation are tax-deductible. Signed articles in reason reflect the a Prudent Foreign Policy” (page 37). Preble, views of the authors and do not necessarily represent those of the editors, the Reason Foundation, or its trustees; articles should 47, is the vice president of defense and foreign not be construed as attempts to aid or hinder the passage of any bill before any legislative body. The claims and opinions set forth policy studies at the Cato Institute. He is also in paid advertisements published in this magazine are not neces- sarily those of the Reason Foundation, and the publisher takes no the author of three books, including Terrorizing responsibility for any such claim or opinion. Reason Foundation Trustees Ourselves: Why U.S. Counterterrorism Policy Is Fail- Thomas E. Beach, (Chairman), Baron Bond, Drew Carey, Derwood S. Chase Jr., James R. Curley, Richard J. Dennis, Dr. Peter Farrell, ing and How to Fix It (Cato Institute). The biggest David W. Fleming, Hon. C. Boyden Gray, James D. Jameson, Manuel S. Klausner, David H. Koch, James Lintott, Stephen misconception about libertarian foreign policy, Modzelewski, David Nott, George F. Ohrstrom, Robert W. Poole Jr., Carol Sanders, Richard A. Wallace, Kerry Welsh, Fred M. Young, he says, is that it’s “frequently mischaracter- Harry E. Teasley Jr. (chairman emeritus), Frank Bond (emeritus), William A. Dunn (emeritus), Vernon L. Smith (emeritus), Walter E. ized as ‘isolationist,’ ” which he calls “obviously Williams (emeritus) President David Nott incorrect.” Libertarian reluctance about war Vice President, Online Nick Gillespie Vice President, Magazine Matt Welch “doesn’t signal opposition to all wars, or to the Vice President, Policy Adrian T. Moore Vice President, Research Julian Morris use of force generally.” Vice President, Operations; Publisher Mike Alissi Chief Financial Officer Jon Graff

4 | reason | January 2015 Letters Reaction

“The only problem with millenni- als accepting the notion that the government should manage the economy is that the government by virtue of its structure is not, nor will it ever be, capable of managing anything.” —reason.com commenter “The Realist” in response to “Generation Independent” (October)

“As someone strongly in favor of criminal justice reform, I’ll take the support where I get it. However, the realization that prison is really expensive does not mean that peo- ple advocating change care about A Lethal Injection of Reality and the European Union (E.U.). racial justice.” Jacob Sullum’s interesting column As an English expat legally resid- —reason.com commenter “maddarter” on physician-assisted execution, “A ing in the United States I know how in response to “Rand Paul, Racism, and Lethal Injection of Reality” (August/ undemocratic, unaccountable, bureau- Prison” (October) September), aptly illustrated the loca- cratic, and intolerant the European tion between a rock and a hard place Union is—a reason I left England. The “I for one (as an Xer) welcomed the in which libertarians frequently find E.U. stirred up the problems in Ukraine term millennials. What they were themselves. for its own grand expansion plans. using before, Generation Y, just irri- Sullum correctly points out that Ukraine itself has been corrupt and tated me, for the reasons that it had “most people with medical expertise do incompetent since independence in no real meaning and the pundits not want to assist executions because 1991. And before that it had a fine his- were being obnoxiously lazy in their they view it as contrary to their profes- tory of supporting Hitler and suppress- search for a demographic defini- sional ethics.” By what euphemism ing Jews and other ethnic groups. tion.” can we justify abortion and how do we The present problems have more to —reason.com commenter “Thomas square professional ethics with that do with E.U. meddling and the “liberal” O.” in response to “Generational act? Must our ethics be selective and Ukrainians in Kiev than with Putin, Generalizations Gone Wrong” are we to give certain medical interven- who acted to protect his Russians in (October) tions a free pass on those ethics? The Crimea. smallest minority is the individual, and Graham Webster-Gardiner “Explaining to young people that none are smaller than the life inside a Mims, FL the government is keeping them woman’s womb. from doing the things they desire Dave Quirk Letters are welcome and should be has value, as does letting those that Mosinee, WI addressed to already are natural libertarians and anti-authoritarians [know] that reason Putin’s Russia there is a political movement of the 1747 Connecticut Avenue, NW Cathy Young (“Putin’s Russia,” August/ like-minded.” Washington, DC 20009 September) confirms that Russia is —reason.com commenter “SugarFree” fax: 202-315-3623 not a great place to live, but she gives in response to “Rise of the Hipster [email protected] too much credence to the Ukrainians Capitalist” (October)

reason | January 2015 | 5 Citings Recording law enforcement change. “People who want to California businesswoman Lee Candid Camera Cops make frivolous complaints, Ann Allman. Allman’s college- people who want to make false aged kids knew people who Katherine Mangu-Ward complaints will know that were worried about running On October 1, a group of 165 there’s evidence to show that into trouble navigating intimate Obamacare costs; volunteers from Washington, those complaints are false,” Fra- relationships on campus, given D.C.’s Metropolitan Police ternal Order of Police Chairman the increased national focus on patent trolling in Department hit the streets wear- Delroy Burton told local news sexual assault and affirmative ing body cameras for the first channel WJLA. consent. California recently court; encrypted time. The $1 million pilot pro- In places where body cam- approved a first-of-its-kind law iPhones; Uber under gram will test various configura- eras for law enforcement have definingconsent as “affirmative, tions of recording devices over already been tried, complaints unambiguous, and conscious.” siege; the Clinton the next six months, including against officers have dropped The law also mandates proce- cameras mounted on glasses, dramatically—up to 80 percent dures for dealing with accused comeback; getting clipped to the chest, even one in D.C. suburbs where the cam- rapists that fall short of robust high vs. benefits; we perched on the shoulder like a eras are already the norm. When due process. parrot. Officers will be instructed asked if the existence of a video Allman thought an iPhone are all mutants now to roll tape at all times, except record encouraged the police or app that facilitated consent could in “sensitive areas” such as rest- the public to be on good behav- improve on the law’s rooms. ior, Lanier answered candidly: requirements by On September 24, when “Both.” r clearing up some the program was announced of the confu-

at a press conference, Police sion that (Leonido/Veer) Couple Uliasz/Thinkstock) reservoir (Marek Irrigation Chief Cathy Lanier joked that Yes means yes “it’s very rare that we’re not iConsent being videotaped somewhere by somebody anyway. I mean, Robby Soave we’re the last people to get cam- People use iPhone apps to find eras, right?” Lanier said she had sexual partners. Could they also also instructed officers not to use an app to signal their inten- interfere when members of the tion to actually do the deed with public choose to make their own said partners? A California-based recordings. developer thought so, but the In an unlikely moment of intriguing concept has several harmony, even the police union kinks to work out. backed the top-down policy The idea was conceived by 30 years ago in reason

“The imperative of surviving the next “The good news for the taxpaying public is that proj- election can explain why the political ects like Garrison are beginning to arouse constitu- process is short-sighted. But it does encies for free-market environmentalism. This new not explain why it is more short-sighted environmental perspective, based on the recognition than the market process.” of property rights, an understanding of the market —Dwight R. Lee, “Patience Is a Market process, and an appreciation of limited government, Virtue” provides responsible answers to the issues surround- ing resource developments.” —Renee Wyman and John Baden, “The Garrison File: Profile of a Pork Barrel”

—January 1985 (Benchart/Veer) Winemaker (Yuoak/Thinkstock) game Video

6 | reason | January 2015 occurs when intoxicated stu- where citizens can shop for and violations are very serious. What Quotes dents hit the sheets. Her team purchase health insurance plans. happens if someone has a cata- debuted that app, Good2Go, in The exchange failed dramatically strophic injury at the winery?” September. on launch in 2013 and is still not He neglected to mention that “I don’t want my guns registered in Washington Things then quickly went complete. r when the winery uses a volun- downhill. Negative reviews and teer instead of an employee, it is or my marriage. Founding concerns about privacy (the app also likely to pass along less in Fathers all got married by going down to the local stores information about sexual Grape-stained labor law taxes to the state. r courthouse. It is a local encounters) surfaced in the Wine Workers press. Apple yanked Good2Go issue and always has from its app store a mere two Scott Shackford More games, less crime been.” r weeks after it debuted, and the The tiny Westover Winery in Video Correlation —Sen. Rand Paul (R-Ky.), company released a statement Castro Valley, California, is open asked about where he saying that it “was given no only 10 hours a week and earns Ronald Bailey stands on gay marriage, further information about why about $11,000 a year in profits For as long as there have been CNN, October 3 Good2Go was pulled by Apple for owner Bill Smyth and his violent video games, there have other than that it violated clause wife. In order to produce Westo- been politicians decrying their 16.1 of the developer’s guidelines ver’s specialty ports, he has effects on young minds. In 1993, “The Nuns on the Bus and was deemed ‘excessively drawn on volunteers, often folks the Senate held a hearing on fought like the devil for objectionable or crude.’ ” who themselves were learning to games that included clips from health care.” r Allman says she plans to keep make wine. The volunteers were fighting gameMortal Kombat. —Vice President Joe Biden, working on the project and re- essentially interns or appren- More recently, President Obama after spending time with

Couple (Leonido/Veer) Couple Uliasz/Thinkstock) reservoir (Marek Irrigation release it next year as an educa- tices. the liberal Catholic group tional tool without data storage. Their work turns out to be Nuns on the Bus, ABC News, For now, students who want to illegal. California forbids the September 17 put their intentions on record use of volunteer labor at for- should keep in mind: There is profit businesses, period. Like a “On any given day, 16 of my definitelynot an app for that. r foot crushing grapes, the state’s Department of Industrial Rela- members decide they’re tions came down hard on Smyth, going to go this way, and all the sudden I have nothing. Big bucks for the ACA fining him $115,000—equiva- You might notice I have a Obamacare Costs lent to a decade’s earnings. As a result, the winery expects to shut few knuckleheads in my Peter Suderman its doors by the end of the year. conference.” r According to a Bloomberg It’s not uncommon for small —Speaker of the House Government report released in wineries to use volunteer labor, John Boehner (R-Ohio), September, the startup costs of and the crackdown on Westover giving a speech to the Inter- Obamacare and an associated has put others on alert, forcing national Franchise Associa- 30 years ago in reason health technology program are them to send their free workers tion, The Hill, September 16 much higher than projected. home and delaying the harvest. More than $73 billion has been Peter Melton, a spokesman for declared in a 2013 speech that spent so far, an amount “sub- the state, defends a punishment “Congress should fund research stantially greater than what the that amounts to destroying into the effects that violent video Congressional Budget Office the small business, telling the games have on young minds.” (CBO) initially estimated health Hayward Daily Review: “People The clear implication in both reform would cost by this point,” should be paid for their labor. instances was that violent games the report notes. The workers’ compensation produce violent behavior. About $25 billion of that tab Yet research published in the went to implementing an elec- August 2014 Psychology of Popular tronic health records program. Media Culture finds that playing That program was supposed violent video games is in fact cor- to save money while making it related with less aggression and easier to transfer medical records crime in the real world. between providers. But reports The researchers probed cor- indicate that the new systems are relations between crime rates being neglected in many places. and video games sales, Internet Where they are used, they rarely searches for game guides, and communicate with one another. the monthly and annual release One of the more common uses dates of popular violent games. of the system: exploiting built- The researchers reported, in tools to increase billing to “Annual trends in video game Medicare. sales for the past 33 years were

Another $2 billion went to unrelated to violent crime both ≥

Winemaker (Benchart/Veer) Winemaker (Yuoak/Thinkstock) game Video the federal health exchange, concurrently and up to 4 years

reason | January 2015 | 7

List and non-addictive. Departing In the first half of 2014, Apple Attorney General Eric Holder reports, American law enforce- spoke out about the drug’s value ment served it with 4,132 “device Patent Trolling in Court last March, and the Centers for requests” for 13,743 separate Disease Control and Preven- devices. According to Apple, the William J. Watkins Jr., a research fel- tion estimates that, even with its vast majority of these were in low at the Independent Institute, is availability legally restricted, it order to recover a stolen mobile the author of the August monograph has saved over 10,000 lives since phone. The company says it has Patent Trolls: Predatory Litigation 1996. received 789 “account requests” and the Smothering of Innovation. In September, a coalition of for 1,739 separate accounts, rep- Watkins’ book argues that pat- urban health officials called the resenting requests that are part ent lawsuits from “nonpracticing Big Cities Health Coalition rec- of criminal or other law enforce- entities”—“patent trolls” who accu- ommended that the FDA work ment investigations. mulate intellectual property just to on the federal level to expand Apple received fewer than sue people using similar ideas— access to naloxone, including full 250 national security orders in cost the U.S. economy billions and over-the-counter availability for the first half of 2014. By law, the deter the diffusion of ideas. In Sep- anyone who thinks they might company is not allowed to say tember, Watkins described three William J. Watkins Jr. need it. r more about those requests than important patent lawsuits: that. r In NTP Inc. v. Research in Motion Ltd. (2005), patent troll NTP brought an infringement action to shut down the Apple locks mobile data BlackBerry1 system and settled the case for $612.5 million. The Encrypted iPhones Arizona medical rules U.S. Patent and Trademark Office ultimately reexaminedNTP ’s Ed Krayewski Fingerprinting Doctors patents and found they were invalid. Apple’s latest mobile operat- J.D. Tuccille In (2006), a unani- eBay Inc. v. MercExchange L.L.C. ing system, iOS 8, has a new secu- In April, Arizona lawmakers 2 mous Supreme Court held that a permanent injunction rity feature. Users’ phones will passed a law requiring physi- shouldn’t be granted upon a mere finding of patent infringe- encrypt stored data by default, cians renewing or applying ment. Prior to this decision, a prevailing party could easily making that data inaccessible to for medical licenses to submit shut down a competitor’s business even if the competitor had Apple—even when the govern- fingerprints for mandatory not acted in bad faith. ment is involved. As the company criminal background checks. In VirnetX Inc. v. Apple Inc. (2012), a jury in the Eastern explained in the privacy note for The requirement isn’t just a 3 District of Texas (notoriously easy ground for patent iOS 8, “It’s not technically fea- burden for applicants. It has also trolls) ordered Apple to pay $368 million for infringement of a sible for us to respond to govern- tripped up the Arizona Medi- technology used in Apple’s FaceTime function, despite strong ment warrants for the extraction cal Board, which already had a evidence that the technology at issue was only tangentially of this data.” backlog of license applications. related to the device’s core functions. Apple is using this as a selling The board responded in Sep- point. “Unlike our competitors, tember to the extra workload by > later.” In addition, they found Gov. Jerry Brown signed a bill Apple cannot bypass your pass- freezing all applications for new that “unexpectedly, monthly legalizing access to naloxone code and therefore cannot access licenses. sales of video games were from pharmacists without a this data,” the company says on An official statement assured related to concurrent decreases prescription. The drug, which its website. physicians that “the Board, in in aggravated assaults and can reverse opiate overdoses in Google followed by announc- conjunction with the Arizona were unrelated to homicides. process, will still not be available ing that the next iteration of its Department of Public Safety and Searches for violent video game over the counter, as the state will own mobile operating system, the Federal Bureau of Investiga- walkthroughs and guides were require buyers to receive mini- Android, will also encrypt data tions, is working to resolve the also related to decreases in aggra- mal education in its use based on by default. The current version of matter as quickly as possible.” vated assaults and homicides 2 guidelines that are still in devel- Android allows users to choose More importantly, to avoid months later. Finally, homicides opment. to have their data encrypted, but paralyzing medical care, the tended to decrease in the months The drug, also known by this is not the default setting. Board allowed physicians following the release of popular the trade name Narcan, was Apple can still access data already working in Arizona to M-rated violent video games.” approved by the Food and Drug saved onto its cloud storage ser- continue practicing on expired The paper does not draw pol- Administration (FDA) in 1971. vice and, presumably, will con- licenses “provided that the icy conclusions, but the results Emergency medical personnel tinue to be compelled to honor lend support to one course of have long used it in the field to government demands for that action: Relax and let gamers save lives, and it can be admin- data. In its privacy note, Apple harmlessly murder pixels. r istered by nasal spray or injec- explains that “if we are legally tion. Several other states have compelled to divulge any infor- also recently widened the legal mation and it is not counterpro- California naloxone access availability of the drug, includ- ductive to the facts of the case, Overdoses, Overcome ing Washington, Rhode Island, we provide notice to the cus- Vermont, New York, and New tomer when allowed and deliver Brian Doherty Mexico. the narrowest set of information

In September, California Naloxone is non-abusable possible in response.” Illustration/Veer) (ImageZoo room Waiting

8 | reason | January 2015

renewal application was filed Brickbats timely.” Even before the freeze, Ari- zona was dogged by a physician shortage. According to a 2010 agreed, saying, “We value inclusivity and diversity University of Arizona report, 16 on our campus and all of our events and activities percent of Arizonans lived in are going to adhere to our mission.” areas underserved by primary care physicians in 2008. (The Kyle Bradford saw that a friend didn’t care for national average is 11.8 percent.) the cheese sandwich he’d been served in the Within three years, the report lunch room at California’s Weaverville Elementary said at the time, the state would School. So Bradford offered him part of his chicken need hundreds more physicians, burrito, which also came from the lunch room. dentists, and psychiatrists. School officials caught him and gave Bradford In October, the Arizona Medi- detention. Tom Barnett, superintendent for the cal Board ended the freeze. At Trinity Alps School District, says school policy bans the time, there was a backlog of students from sharing food because of hygiene at least 700 applications from issues, as well as the possibility some students physicians, according to the If you are holding a Talk Like a Pirate Day might have food allergies. Arizona Daily Star. Many had celebration, you might expect someone already been waiting months. to show up dressed as a pirate. But when The board did not directly one employee at North Carolina’s Rich- Police locked down respond to concerns about the lands Elementary School saw another and searched JFK delays. It was unclear when the worker dressed as a pirate, the first Middle School in backlogged licenses would be staffer reported a suspicious person. Southington, Con- issued. r Officials then locked down not just the necticut, after some- elementary school but all schools in the one reported seeing area. a student wearing a Car-service crackdowns military-style jacket. Uber Under Siege Police located the Officials in the city of Yakima, Washing- student and deter- Stephanie Slade ton, fired Sarah Matheny from her job mined that there was The latest municipalities to with the city court. They’ve also asked no threat. demand that rideshare services the state attorney general to investigate such as Uber cease operating are her. They say Matheny, who is running for Anchorage, Alaska, and Tusca- county clerk, used her job to improperly The Hall County, Georgia, district attorney’s office loosa, Alabama. In Tuscaloosa, search government databases for infor- has dropped a meth possession charge against drivers who defy the injunction mation on her political opponents. Ashley Gabrielle Huff. Huff was a passenger in an face not just penalties but poten- SUV that got stopped by a Gainesville police officer tial arrest. Virginia already tried for a tag light violation. The officer obtained per- Connecticut mission to search the vehicle and found a spoon to prohibit the company from officials placed operating within its borders, a that had some sort of residue on it. A field test indi- Granby Memo- cated it was meth, but the lab results later showed rule reversed in August. rial Middle By contrast, both California no controlled substances on the spoon. Huff says School Princi- the residue was from SpaghettiOs. and Colorado have authorized pal Mark Foley Uber and similar services to on leave after operate legally statewide. How- discovering he Community Action of Minneapolis is supposed ever, Los Angeles and San Fran- had a second to provide energy assistance, skills training, and cisco think that Uber is violating career making other services for poor people. But a state audit aspects of California’s regula- horror movies. found that it spent hundreds of thousands of tax- tions and have threatened the Nothing about payer dollars over a two-year period on cruises, company with injunctions. And the pictures is illegal, but Superintendent trips, spa as of mid-October, the service Alan Addley says the films, which contain treat- was operating in Pennsylvania blood and nudity, made him question ments, only under emergency tempo- Foley’s judgment. a loaner rary authority of the state’s Pub- car, and lic Utilities Commission, await- bonuses ing a final ruling. In California, Ventura High School Princi- for staff Uber may have an ally in the pal Val Wyatt barred the football booster and board world of academia. The Univer- club from selling meals donated by Chick- members. sity of Chicago’s Booth School fil-A at back-to-school night. Wyatt cited of Business recently surveyed a company president Dan Cathy’s opposi-

panel of economists on the issue. tion to gay marriage as the reason for the ≥ Charles Oliver

Waiting room (ImageZoo Illustration/Veer) (ImageZoo room Waiting They all said letting rideshare TerryColon.com) (Illustrations: ban. Superintendent Trudy Tuttle Arriaga

reason | January 2015 | 9 Follow-Up software companies, are in the process of getting certified. Earning the certification The Clinton Comeback depends on a mix of factors, Peter Suderman including a company’s efforts to recruit and train women for When Bill Clinton was first elected president leadership roles and whether in 1992, he was widely viewed as an avatar men and women in equivalent of the New Democrats, a relatively moderate positions are paid similarly. coalition that had grown in response to the Megan Beyer, director of exter- perception that the party had tilted too far nal affairs at the EDGE Founda- toward the left. New Democrats thought of tion, told The Business Journals in Clinton’s victory as their biggest success, or August that the goal is to reach at least they did until he took office, accord- the point where it’s a disadvan- ing to Joel Kotkin’s February 1995 reason tage not to be EDGE certified. r article, “The Center Folds.” Two years in, Clinton’s presidency repre- sented a “fundamental betrayal of the New Off-the-record forests Democrat agenda by the very president War on Cameras whose ascendancy was thought to put Scott Shackford the movement’s ideas on the political fast track,” Kotkin wrote. Clinton ran “as a New The lands managed by the Democrat but [governed] as an old one,” United States Forest Service may putting the Democratic Leadership Council technically be public, but that (DLC)—the movement’s central organization doesn’t mean members of the —in “an untenable position” thanks to its public can just go in there and members’ “personal associations and past take pretty pictures anytime they associations with the president.” Left-wing please. Democrats who abandoned the DLC agenda, The Oregonian reported in wrote Kotkin, would “only serve to destroy September that the agency was the party as a serious national force.” of the job he was doing. Surveys show low going to start enforcing a rule public support for the president’s specific that requires media outlets to get Almost 20 years later, the left wing of the party permission and filming permits, is considerably stronger. But the party’s march handling of health care, the economy, and foreign policy as well. potentially costing up to $1,500, toward progressivism didn’t destroy it. Instead, in order to shoot pictures or it led to a series of sweeping national victories, Democrats in tight races tried to avoid videos on federally controlled culminating with the election of President Barack association with their party’s leader. In the wilderness property. Outlets that Obama in 2008 and again in 2012. run-up to the election, Obama’s policies defy the rules could face fines of But the good times for liberalism may be on the were so widely disliked that it was seen as up to $1,000. verge of ending. Going into the 2014 midterm a gaffe when he said that his “policies are First Amendment advocates election, there was no question that Republicans on the ballot” this fall. feared the possibility of censor- would gain seats in Congress—the only question And who did the party turn to for support? ship from administrators choos- was whether the GOP would regain control of the None other than Bill Clinton, who cam- ing who would get permits. A Senate. Meanwhile, Obama’s overall poll ratings paigned for Democratic candidates and director interviewed by The Ore- have been trending downward since late 2012, begged voters not to cast protest votes gonian didn’t cite any examples with Gallup reporting a record low in September, against the president. of why the policy even exists. when just 38 percent of the public said it approved Asked whether the rule violates the right of a free press to report, > services compete on an equal workplace gender inequality sentation of women. Smart com- she said there was an exception footing with traditional taxi tend to have little faith that mar- panies have increasingly sought companies “raises consumer kets can address the issue. But to bring in women, and a new welfare.” Six in 10 said they it makes good business sense global certification program lets agreed strongly with the claim— to recruit and value women them show off those smarts to not that regulators in Anchor- workers, according to a slew of consumers, investors, and poten- age and Tuscaloosa are likely to studies linking a good gender tial employees. care. r balance with good company per- In August, cosmetics maker formance. For instance, a study L’Oreal USA became the first of Fortune 500 companies from American company to earn the Workforce gender equality research organization Catalyst Economic Dividends for Gender Women’s EDGE found that those with the high- Equality (EDGE) certificate, join- est representation of women ing some 60 others worldwide, Elizabeth Nolan Brown on their boards of directors including Deloitte and Ikea. Supporters of government performed significantly better More U.S. companies, including

initiatives aimed at curbing than those with the lowest repre- government contractors and (Cthoman/iStockphoto) ranger Park

10 | reason | January 2015 for “breaking news.” Soundbite Following criticism, U.S. For- est Service Chief Tom Tidwell told the Associated Press that the We Are All Mutants Now permitting rules were intended Interview by Tracy Oppenheimer to apply only to commercial film- ing, such as a movie production, A: Obviously being different and an outsider, and and not to newsgathering activi- the majority world being xenophobic and prej- ties. Regardless of intent, at least udiced against those people, is something that two television stations have been can stand as a metaphor for racism, for sexism, told they needed permits to film, for anti-Semitism, for homophobia. and the lawyer for the National Different people read mutantcy and anti- Press Photographers Association mutantcy different ways. [Director] Bryan says the language of the rule is Singer, when he started the film franchise with so vague as to not make it clear X-Men and then X2 and now Days of Future when it applies. r Past, he’s a big gay rights activist, and the homophobia angle of it was interesting to him. But he’s also Jewish, and I think the anti-Semi- Getting high vs. benefits tism was interesting. Magneto is a Jewish char- Welfare, Drug-Tested acter who lost his parents in the Holocaust. So Ed Krayewski Simon Kinberg there is an inherently political aspect to it. Facing a tight race for re- Q: It really comes down to individualism. There’s election in the November mid- good and bad on both sides—on the govern- term election, Gov. Scott Walker ment, mutants, every walk of life—and it really (R-Wis.) released a 62-page plan boils down to the person and their choices. in September called “Greater A: We could have set [the movie] in the ’60s when Prosperity for All.” The plan, Simon Kinberg is a screenwriter and pro- X-Men: First Class took place. We could have longer on rhetoric than details, ducer on the latest movie in the long-run- set it in the ’80s. We chose the ’70s because includes an income tax cut of ning X-Men franchise, Days of Future Past. it was a particularly dark period in American an unspecified amount, as well The time-travel story follows the adven- history, because of what happened with Nixon as a reduction in the amount of tures of Marvel’s mutant superheroes and because of Vietnam. The movie shows time that able-bodied people through an alternate version of the 1970s that there is the possibility for evil or nefarious can receive food stamps and and a dark near-future. Kinberg’s résumé activity on the human side and on the mutant unemployment benefits. It also includes a slew of Hollywood blockbust- side, and that ultimately people can change. proposes drug testing welfare ers, and he will write and produce the You’re not just born good, and you’re not just recipients. upcoming X-Men: Apocalypse, The Fantas- born and destined to be bad. Florida passed a similar tic Four, and Star Wars Rebels. Q: A government program run amok—that story requirement in 2011. That law line is somewhat popular in these kinds of was struck down earlier this In July, Kinberg spoke with Reason TV producer Tracy Oppenheimer at San Diego movies. What makes that such a usable plot year by U.S. District Court Judge line? Mary Scriven, who declared she Comic-Con about the politics of superhero could find “no set of circum- films, the legacy of Richard Nixon, and A: I think there’s always suspicion of large orga- stances under which the war- why we all relate to mutants. nizations and immense amounts of power. rantless, suspicionless drug test- Q: Part of why X-Men is so successful is Whether it’s a corporation or government or an ing at issue in this case could be how relatable it is to a wide audience. evil society of mutants. constitutionally applied.” While A: With the X-Men, there’s something Q: And they’re working together. that program was in place, only inherently relatable to the idea that A: Yeah, especially when they’re all working 2.6 percent of recipients tested everybody feels a bit of an outsider, together. The ’70s is a rich time for that, positive for narcotics (mostly feels a little different, feels like because there was corruption in the govern- marijuana), a lower rate of drug they have something that makes ment, and there was maybe more pernicious use than among the general them embarrassed or ashamed. For things happening than even in the ’80s and population. everybody there’s something about ’90s and this last decade. Even still, bills requiring drug mutantcy that we can connect to, relate We wanted to show the human capacity for testing welfare recipients have to. been introduced in more than 20 doing bad, but also the human capacity for states. Despite Walker’s proposal, It’s probably truest for teenagers who doing good and learning a lesson. We had similar legislation was not intro- are sort of going through physical a line actually that was cut out of the movie duced in Wisconsin before the transformations and not in total control because it just didn’t fit—it was a scene we cut 2014 midterms. In 2011, Republi- of their bodies. out. But there was a sort of epilogue scene with can legislators proposed a bill to Q: They start out as outcasts, but society Nixon. Nixon has a moment where he says, “I lower benefits for welfare recipi- grows to accept them. Can you talk don’t think these machines are the answer. I ents who fail drug tests. The bill about how that might parallel our soci- think we’re going to need some of them on our side.” Meaning the mutants. Park ranger (Cthoman/iStockphoto) ranger Park did not pass. r ety?

reason | January 2015 | 11 Allison_LeadershipCrisis_Reason_BW2.qxp_Layout 1 11/3/14 11:43 AM Page 1

Columns: Jacob Sullum Ebola, Smoking, and Mission Creep THE VOICE OF EXPERIENCE at the CDC John Allison gives us principles of logical thinking that take Controlling contagious diseases is just one of many items on “ the agency’s to-do list. emotion, psychology, and virtue into full account. And he gives us

Before Tom Frieden became recipe for mission drift, as reflected in reduce tobacco-related disease. charming personal anecdotes showing how logical thinking turns us into director of the U.S. Centers for Dis- the CDC’s ever-widening agenda. So maybe it’s not budgetary con- ease Control and Prevention (CDC) “As the scope of CDC’s activities straints so much as a lack of focus leaders—of businesses, institutions, and most important, our own“ in 2009, his two nemeses were tuber- expanded far beyond communicable that explains the CDC’s Ebola-related culosis and smoking. Although both diseases,” explains CDC historian missteps. Frieden conceded that lives. Not reading The Leadership Crisis would be irrational. are commonly described as threats to Elizabeth Etheridge, “its name had to the CDC should have acted faster in “public health,” they differ in ways be changed.” Beginning as a branch response to the first case diagnosed —P.J. O’Rourke that may help explain the CDC’s of the Public Health Service charged in the U.S., that it should not have stumbles in dealing with Ebola. with malaria control in Southern greenlighted air travel by a nurse Tuberculosis, which Frieden states during World War II, it became with an elevated temperature who New from John A. Allison, President helped control in New York City and the Center for Disease Control in turned out to be infected, and that its India as a CDC epidemiologist, is a 1970, the Centers for Disease Control initial protocols for preventing trans- and CEO of the Cato Institute and contagious, potentially lethal disease. in 1981, and the Centers for Disease mission to health care workers, two former Chairman and CEO of BB&T Smoking, which Frieden targeted as Control and Prevention in 1992. of whom were diagnosed with Ebola New York City’s health commissioner, Today the CDC’s mission includes in October, were inadequate. —the highly anticipated follow-up is a pattern of behavior that increases pretty much anything associated An Ebola expert told The New York to his New York Times, Wall Street the risk of disease. with disease or injury. In 2013 The Times the original guidelines were That distinction matters to people New York Times mentioned the agency “absolutely irresponsible and dead Journal, and Washington Post best- who reject paternalism as a justifi- more than 200 times. Communicable wrong.” He added that when he sug- seller, The Financial Crisis and the cation for government action. We diseases accounted for 54 of those ref- gested as much to the CDC, “they kind believe the use of force can be justi- erences, but the topics also included of blew me off.” Free Market Cure. fied to protect the public fromTB car- smoking, drinking, electronic ciga- At the end of September, Frieden riers but not to protect smokers from rettes, obesity, diet, suicide, addiction, was confident that the country was their own choices. driving, sports injuries, contracep- Ebola-ready. “I have no doubt that we This book is an invaluable guide

Frieden rejects that distinction. tion, economic inequality, domestic will stop it in its tracks in the U.S.,” he “ He sees the goal of public health as violence, and gun control. declared. Two weeks later, he began for all those who believe that the minimizing morbidity and mortality, If you visit the CDC’s website, you a press briefing on a different note. “ even when they arise from volun- will see that the agency is very inter- “Stopping Ebola is hard,” he said. surest path to happiness is follow- tarily assumed risks, and he does not ested in your life: what you eat, how That was four days before hesitate to rely on state power in pur- much exercise you get, whether you President Obama appointed a politi- ing your own vision. suing that mission. For him, public smoke, how much you drink, whether cal hack as his “Ebola czar,” charged health means quarantining and treat- you wear a bicycle helmet, whether with coordinating control of the —John Mackey ing disease carriers, but it also means you brush after meals, whether you deadly virus. You may wonder: Isn’t Co-CEO, Whole Foods Market imposing heavy taxes on cigarettes, get enough sleep. Lately Frieden and that Frieden’s job? Yes, but he has a banning trans fats, and forcing res- his subordinates even have found lot of other things on his plate. r taurants to post calorie counts. time to repeatedly warn us about the This understanding of public menace supposedly posed by e-cig- Senior Editor Jacob Sullum (jsullum@reason. AVAILABLE com) is a nationally syndicated columnist. health is an open-ended license for arettes, an innovation that should Copyright © 2014 Creators Syndicate Inc. NATIONWIDE government meddling. It is also a be welcomed by anyone seeking to

12 | reason | January 2015 Allison_LeadershipCrisis_Reason_BW2.qxp_Layout 1 11/3/14 11:43 AM Page 1 THE VOICE OF EXPERIENCE “John Allison gives us principles of logical thinking that take emotion, psychology, and virtue into full account. And he gives us

charming personal anecdotes showing how logical thinking turns us into leaders—of businesses, institutions, and most important, our own“ lives. Not reading The Leadership Crisis would be irrational. —P.J. O’Rourke

New from John A. Allison, President and CEO of the Cato Institute and former Chairman and CEO of BB&T —the highly anticipated follow-up to his New York Times, Wall Street Journal, and Washington Post best- seller, The Financial Crisis and the Free Market Cure.

This book is an invaluable guide

“ for all those who believe that the surest path to happiness“ is follow- ing your own vision. —John Mackey Co-CEO, Whole Foods Market

AVAILABLE NATIONWIDE Columns: Veronique de Rugy Foreign Aid Is a Failure Throwing good money at bad governments makes poor countries worse off.

It’s been almost a decade since one of the to address both short-term crises, such as deadliest natural disasters in modern history natural disasters, and longer-term challenges, devastated the coast of South Asia. In the final such as global poverty and economic develop- days of 2004, a 9.1-magnitude undersea earth- ment. quake triggered a tsunami in the Indian Ocean, In his 2013 book Doing Bad by Doing Good, killing over 230,000 people in places such as the George Mason University economist Indonesia and Sri Lanka and leaving thousands Christopher Coyne explains why measures stranded without the basic necessities of life. intended to alleviate suffering often go so International leaders immediately called wrong. Most people agree that wealthy coun- on the global community to provide help. What tries have some responsibility to help relieve happened after that underscores the flaws in the hardship in distressed areas. But while we are developed world’s approach toward foreign aid: usually clear about our goals, we rarely stop to Governments gave generously, pledging more consider whether government can realistically than $10 billion. Yet the humanitarian response accomplish them. Our efforts abroad tend to be to the crisis fell far short, and many desperate marred by culturally illiteracy. Without mean- needs went unmet. ing to, we frequently create perverse incentives that harm the people we are trying to assist. For years, it was believed that solutions to Foreign aid is the main tool of state-led complex global problems could be engineered humanitarian efforts among wealthy members if only wealthy nations mustered enough will of the Organization for Economic Co-operation and funding to see them through. But despite and Development (OECD). While such spending a desire to help and a willingness to give, the accounts for a mere drop in the bucket of the international community keeps stumbling donating nations’ budgets, the combined sum

Top Recipients of U.S. Foreign Aid, 2012 (in millions of U.S. dollars)

Afghanistan $12,888.5 Israel $3,100.1 Iraq $1,940.1 Egypt $1,404.0 Pakistan $1,214.9 Jordan $1,135.3 Ethiopia $870.1 Kenya $749.2 Colombia $644.3 Haiti $510.4 West Bank/Gaza $457.4 South Sudan $444.3 Economic Russia $440.9 Military Somalia $419.6 Tanzania $402.0 Congo (Kinshasa) $388.4 $0 3,000 6,000 9,000 12,000 15,000 Source: U.S. Overseas Loans and Grants, Obligations and Loan Authorizations, USAID. Produced by Veronique de Rugy, Mercatus Center at George Mason University, October 6, 2014.

14 | reason | January 2015 from governments around the world transparent ways of raising develop- international organizations’ tendency is enough to cause big problems in ment finance.” to double down on their failures developing economies. In Fiscal Year Of course, no amount of evi- in his 2008 book The White Man’s 2013, OECD countries spent a total dence can dissuade a true believer. Burden. Like governments, multilat- of $138 billion on foreign aid. From Among the foreign-aid faithful is eral aid institutions can suffer from 1962 to 2012, they contributed a the Columbia University economist central-planning paralysis, which cumulative $3.98 trillion. Jeffrey Sachs, author of 2006’s The makes it difficult to isolate mistakes It was long believed that direct- End of Poverty and champion of the and find ways to better serve their ing money to stagnant communities United Nations’ experimental (and “clients.” could jump-start economic growth. controversial) Millennium Villages Yet numerous studies have found Project. Sachs acknowledges that Foreign aid suffers from a principal- little evidence that foreign aid actu- foreign aid often fails, yet he still calls agent problem, in which organiza- ally leads to greater economic devel- for the design of “highly effective tions prioritize donors’ political and opment. aid programs.” He is short on details commercial interests over recipients’ Take Africa as an example. To about the specific changes that would needs. In 2012, for example, Egypt date, the continent has received distinguish those ideal programs received $1.3 billion in U.S. mili- well over $600 billion in outside from existing, mistake-riddled boon- tary aid. Most of those funds flowed assistance. World Bank data show doggles. through Foreign Military Financ- that a majority of African countries’ Sachs takes it on faith that aid ing (FMF), a program that provides government spending comes directly programs can be made effective. foreign governments with grants from foreign aid. Yet much of Africa Unfortunately, he and his acolytes for the acquisition of U.S. defense remains impoverished, and rampant have failed to grapple with the fun- equipment and services. One of the corruption continues. damental reason so much aid fails: program’s objectives, according to Governments simply do not have the State Department, is to “support Dambisa Moyo has a personal per- enough information to know what the U.S. industrial base by promot- spective on the matter. In her 2009 each dollar’s best use would be. ing the export of U.S. defense-related book Dead Aid: Why Aid Is Not Working People are forced to compete for goods and services.” Translated from and How There Is a Better Way to Help resources in the political arena, and bureaucratese, that means FMF fun- Africa, the Zambian-born economist money ultimately goes to those with nels dollars to foreign governments characterizes foreign aid to Africa as the most connections, not to those for the explicit purpose not of help- an “unmitigated economic, political, most in need. ing people on the ground but of ben- and humanitarian disaster” that has Aid providers also have trouble efitting U.S. contractors and manu- actually made the continent poorer. figuring out which investments are facturers. The same is true of many Africans will never see their govern- most appropriate for a particular other aid programs. ments as legitimate, she explains, as developing economy, so money ends The problems caused by poverty long as most of the spending for edu- up being poured into bad projects. and natural disasters are enormous, cation and health care comes from These white elephants not only fail but aid’s track record suggests that it foreign countries. to encourage economic growth but too often only makes matters worse. To Moyo, continued aid spend- frequently divert scarce resources to Our global neighbors deserve more ing reinforces the perception that destructive ends. Aid money becomes from us. To serve them well, we must African governments are ineffective a tool of oppression rather than have the humility to admit we don’t and makes it nearly impossible for empowerment. As Moyo put it in a have all the answers. r them to break free from dependence 2009 Wall Street Journal essay, “A on foreign help. Sketching the sad constant stream of ‘free’ money is a Contributing Editor Veronique de Rugy ([email protected]) is a senior outcome for outside observers, she perfect way to keep an inefficient or research fellow at the Mercatus Center at writes: “Stuck in an aid world of no simply bad government in power.” George Mason University. incentives, there is no reason for gov- New York University’s Bill East­ ernments to seek other, better, more erly does an excellent job describing

reason | January 2015 | 15 Columns: Ronald Bailey ‘Enough, For All, Forever’ A report from New York’s mixed up, anti-capitalist People’s Climate March

The People’s Climate March ambled genially Monsanto. The assembled marchers fervently down 6th Avenue in New York City on a Sun- damned the crop biotechnology company day afternoon in September. The slogan was despite the fact that modern high yield biotech “To Change Everything, We Need Everyone.” crops cut CO2 emissions by 13 million tons in Not everyone showed up, but the march did 2012—the equivalent of taking 11.8 million cars attract between 300,000 and 400,000 par- off the road for one year. By making it possible ticipants, making it by far the largest climate to grow more calories on less land, biotech change mobilization in history. Prominent crops helped conserve 123 million hectares marchers included former Vice President Al from 1996 to 2012. Many of the protesters Gore, United Nations Secretary-General Ban oddly believe that eating locally grown organic Ki-Moon, and Sens. Bernie Sanders (I-Vt.), crops—which require more labor and land to Sheldon Whitehouse (D-R.I.), and Charles produce less food— will somehow help stop Schumer (D-N.Y.), along with such leading global warming. Vegans are right that eating environmentalists as Bill McKibben, Vandana less meat would mean that more land could be Shiva, and Leonardo DiCaprio. The marchers returned to forests that absorb carbon diox- were hoping to pressure the United Nations ide from the atmosphere. On the other hand, Climate Summit into promising to adopt strin- researchers estimate that lab-grown meat could gent measures to prevent catastrophic man- cut greenhouse gas emissions by 96 percent made global warming. relative to farmed meat. They sorted themselves into various affinity groups: faith-based organizations, scientists, From the sidelines, I spied a man holding a sign students, labor unions, old folks, organic food that said, “Overpopulation Is Not A Myth.” This enthusiasts, renewable energy proponents, provoked some marchers to come over to sug- indigenous peoples, and so forth. Wandering gest to him that he was blaming the poor for through the throngs prior to kickoff, it was their poverty. He responded that they were not apparent that every progressive cause can and the problem; rich Americans are the problem. does find a home in the climate change move- Another guy, who was clearly not a marcher, ment. The demonstrators’ chief demand was approached to contend that the 19th-century “climate justice,” which broadly entails redis- doomsayer Robert Malthus had been proven tributing wealth from the countries and indus- wrong. The stalwart furiously responded that tries that have benefited from the consumption Malthus would be proved right and that the end of fossil fuels. was nigh, thanks to out-of-control population “System change, not climate change,” was growth. the ubiquitous slogan, and the system that they In fact, shortly before the march, the think needs changing is markets and private respectable journal Science published an article property. I overhead one marcher explaining warning that world population will reach 11 bil- to another, “We must have a better capitalism, lion by the end of this century. But the Science better than the malignant corporate system we study misses the mark, mostly because nearly have now.” all of the projected increase—4 billion people— Among the chief capitalist villains: is in sub-Saharan Africa. Demographers at the

16 | reason | January 2015 International Institute for Applied it may be theoretically possible to 5 billion tons, the E.U. emitted 3.6 Systems Analysis counter that the stabilize the climate without nuclear billion tons, and India emitted 2.5 researchers behind the Science projec- power, in the real world there is no billion tons. China now emits more tions failed to take into account the credible path to climate stabilization carbon dioxide per capita (7.2 tons) pace and extent of improved school- that does not include a substantial than does the European Union (6.8 ing in Africa, which will dramatically role for nuclear power.” As it hap- tons). The U.S. emits 16.4 tons per lower future population increases. pens, in October, researchers at capita; for India, the figure is just 1.9 Fracking aggravated a lot of Lockheed Martin declared that they tons per capita. the demonstrators. Artful placards had devised a cheap fusion reactor In his statement, Chinese Vice alluded to another f-word as a way that could be deployed in a decade. Premier Zhang Gaoli made it clear of indicating displeasure. Many While I found much that pro- that his country expects to get a asserted that fracking taints drinking voked dismay at the march, there pass when it comes to reducing water. Yet just the week before the is one placard with which I whole- the amount of its greenhouse gas parade, new studies published in the heartedly agreed: “Enough, For All, emissions. Instead, Zhang reiter- Proceedings of the National Academy Forever.” Sadly, many of the march- ated China’s pledge to cut its carbon of Sciences by research teams led by ers oppose the only system that has intensity by 40 to 45 percent by 2020 the Ohio State University’s Thomas ever enabled hundreds of millions of from its 2005 level, noting that it had Darrah and the U.S. Department of people to rise above humanity’s natu- already achieved a 28 percent reduc- Energy found that the controversial ral state of abject poverty. tion. Assuming that China’s economy technique to produce natural gas grows at 7 percent per year, some does not contaminate groundwater. Did the world leaders who gathered researchers calculate that meeting And never mind that burning natural later in the week for the U.N. Climate that carbon intensity goal would gas produces about half of the carbon Summit fulfill the hopes of the ear- actually allow China’s carbon dioxide dioxide that burning coal does. nest marchers? Not so much. emissions to increase from about 10 Another low-carbon energy The formal statements at the billion tons today to as much as 14.7 source was also a cause of stress for summit made it clear that there is still billion tons by 2020. That increase the demonstrators: nuclear power. a wide gulf between the developed would nearly equal current U.S. car- Some demanded that the Indian countries and the poorer nations bon dioxide emissions and is almost Point nuclear power plant on the when it comes to who bears respon- two and a half times greater than the Hudson River be closed down. This sibility to act and who should pay for two billion tons it argues the U.S. is particular petition is just perverse, that action. When President Barack obligated to cut between now and since nuclear power is a big part of Obama noted that America is on 2020. why New Yorkers emit a relatively track to reduce the country’s green- In his summary remarks on the low average of 8 tons of carbon diox- house emissions by 17 percent below Summit, Secretary-General Moon ide per person each year, compared their 2005 levels by 2020, he added: claimed that the leaders who met with the U.S. average of 16.4 tons per “We can only succeed in combating there “committed to finalize a mean- capita. climate change if we are joined in ingful, universal new agreement” No less an environmentalist than this effort by every nation—devel- next year. As it stands now, that James Hansen, the climatologist who oped and developing alike. Nobody amounts to little more than a pious testified before Congress back in gets a pass.” He further observed that hope. r 1988 that climate change had already emerging economies—China, India, begun, declared in a 2013 open letter Brazil—are both growing rapidly and Science Correspondent Ronald Bailey (rbailey@ reason.com) is the author of the forthcoming cosigned by his colleagues Kenneth emitting ever-higher levels of green- The End of Doom: Environmental Renewal in Caldeira of the Carnegie Institution, house gases. the 21st Century (St. Martin’s). Kerry Emanuel of the Massachusetts In total, humanity emitted about Institute of Technology, and Tom 36 billion tons of carbon dioxide in Wigley of the National Center for 2013. Roughly speaking, China emit- Atmospheric Research that “while ted 10 billion tons, the U.S. emitted

reason | January 2015 | 17 The Crony Capitalism Litmus Test The Ex-Im Bank won’t survive 2015—if the GOP is serious about free market principles. Timothy P. Carney

Rep. Eric Cantor didn’t just lose his Virginia Republican primary. He was demolished. Dave Brat—a mostly unknown economics professor from a local college—beat the power- ful Republican incumbent by 11 percentage points. Cantor on June 10, 2014, became the first sitting House majority leader in the history of the job to lose his own party’s primary. Nearly every pundit in America called Brat’s win a political earthquake, and it didn’t seem like much of an exaggeration. One of the Cantorquake’s biggest aftershocks came on Wall Street, where the next morning shares of Boeing dropped 2.3 percent—the biggest decline of all companies on the Dow Jones Industrial average that day. The headline at Bloomberg News told the story: “Boeing Tumbles as Cantor Loss Clouds Ex-Im Bank’s Future.” How could the loss of a single House seat so thoroughly rattle the stockholders of a giant, profitable, stable company parties share a broad enthusiasm for corporate like Boeing, let alone the supporters of an obscure Wash- welfare. But this time around, as the September ington institution like the Export-Import Bank? Boeing, it 30 deadline for re-authorization approached, an turns out, is the largest beneficiary of the Ex-Im Bank’s loan epic battle erupted on the Republican side of guarantees, which are typically awarded to foreign compa- the aisle, with free marketeers, libertarians, and nies and governments for the purposes of buying big-ticket Tea Partiers taking on the business lobby over a items like U.S.-made jets. comparatively tiny but hugely symbolic federal And Cantor? He was the political point man tasked agency. with holding down a grassroots insurrection against what As issues like war in Syria crowded out the many free market champions consider the embodiment of September legislative calendar, the showdown Beltway crony capitalism. His downfall signaled to activists was postponed when lawmakers agreed to a on both sides of the Ex-Im fight that the Tea Party wave of nine-month renewal of the agency, thus push- 2010 might be on the verge of forcing the Republican Party ing the re-authorization battle to as late as June to live up to its limited government principles. 2015 or as soon as December, should the lame- In normal times, Congress re-authorizes the Ex-Im duck Congress decide to intervene on a longer-

Bank every few years with minimal fuss, since both major term deal. The bruised combatants on both sides Stock York the New at Cantor Eric Leader Majority Then-House Images) Platt/Getty 2011 (Spencer May Exchange,

18 | reason | January 2015 are split over whether the postponement signals ment. Due to special accounting methods, it resides almost business as usual or the first real chance at lop- entirely outside the federal budget. Even its building is non- ping off this dispenser of political favors. descript—the agency is housed in the least impressive struc- However it plays after the 2014 elections, the ture in the neighborhood immediately around the White questions at stake remain the same: Do Republi- House, and that’s saying something. cans believe their free market talk? Or is it merely Franklin Roosevelt created Ex-Im in part as a way to a cover for doing the bidding of business? And subsidize Joseph Stalin. “Since the Bolsheviks had seized if Republicans can’t kill or seriously trim a New power in Russia in 1917, the United States had refused to Deal program that subsidizes foreign govern- accept the legitimacy of the new Soviet regime,” Ex-Im’s ments—mostly to buy Boeing jets—will they ever official historians William Becker and William McClena- get serious about fighting corporate welfare? han explain in their 2003 history The Market, the State, and the Export-Import Bank of the United States. “Through- What Is Ex-Im? out the 1920s, Presidents Harding, Coolidge, and Hoover Most people have never heard of the Export- conditioned recognition on the USSR agreeing to accepted Import Bank of the United States. standards of international conduct. That is, they wanted

Then-House Majority Leader Eric Cantor at the New York Stock Stock York the New at Cantor Eric Leader Majority Then-House Images) Platt/Getty 2011 (Spencer May Exchange, Ex-Im exists outside of any cabinet depart- the Soviet government to end its support of revolutionary

reason | January 2015 | 19 activities in other countries, return confiscated property, taxpayers cover the bank’s loss. and accept the international financial obligations of its pre- The long-term loan guarantee program is decessor government.” mostly a subsidy program for Boeing. Of the But as Hitler’s threat grew, FDR’s foreign policy advis- agency’s $52.6 billion in loan guarantees over ers and the business lobby pushed for normalized relations the past three years, more than half has covered without conditions. To this end, FDR created the Export- Boeing sales. This isn’t a very diversified portfo- Import Bank, initially capitalizing it with $10 million from lio, but luckily for Ex-Im (and U.S. taxpayers), the New Deal Reconstruction Finance Corporation. “Roo- purchasers of jumbo jets have a tiny default rate sevelt’s executive order of February 2, 1934, authorized the so far. new bank to finance American trade with theUSSR ,” Becker Ex-Im also makes direct loans—$25 billion and McClenahan explain. over the past three fiscal years. For instance, FDR steadily expanded the agency’s purpose beyond Ex-Im loaned $1.03 billion to Global Foundries, the initial goal of helping Stalin, as Cuba and then China a semiconductor manufacturer owned by the became Ex-Im customers. In 1945, Congress passed the Emirate of Abu Dhabi. The loan covered Global Export-Import Bank Act, codifying the agency. Soon, ironi- Foundries’ purchase of U.S.-made equipment to cally, Eisenhower was sold on Ex-Im’s importance as a Cold build a factory in Germany. War tool—the goal was to subsidize Third World countries In 2011, Ex-Im loaned $75.8 million at 1.68 to win them away from communism, as Becker and McCle- percent interest to China’s state-owned Indus- nahan tell it. Since then, the justification for it has constantly trial Commercial Bank of China (ICBC), whose shifted: a foreign policy lever, an international development aircraft-leasing arm was buying private jets from agency, a weapon in trade wars, and finally a job creator. Hawker Beechcraft. ICBC happens to be the larg- Ex-Im subsidizes U.S. exports through a few different est bank in the world. Hawker, at the time, was financial products that all have one thing in common: they owned by Goldman Sachs. So when the largest put the U.S. taxpayer on the hook if a foreign customer fails bank in the world bought corporate jets from or refuses to pay back a loan. In Fiscal Year 2013, Ex-Im Goldman Sachs, Ex-Im greased the skids with a extended $27.3 billion in financing. loan from U.S. taxpayers. Ex-Im’s biggest product is the long-term loan guaran- Ex-Im also offers smaller financial products, tee. Over the past three fiscal years, such guarantees made and these are the ones it talks about most. For up $52.6 billion of the agency’s $95.9 billion in financing. instance, Miss Jenny’s Pickles is a North Caro- A fairly typical guarantee is the one that the Ex-Im’s board lina–based pickle producer and retailer that of directors approved on August 22: Virgin Australian began exporting to China in 2011, as the Heritage International Airlines was buying a new batch of Boeing Foundation’s Diane Katz tells it. Around then, jets and Canadian TD Bank was providing the financing, Miss Jenny herself—Jennifer Fulton—attended a in the form of a 20-year loan to the Aussie airline. This seminar in North Carolina conducted by Ex-Im looks like a regular market transaction until the Ex-Im CEO Fred Hochberg. Fulton shrewdly hunted Bank steps in to guarantee the loan, meaning that if Vir- down Hochberg’s limousine driver and handed gin Australian fails to pay back the Canadian lender, U.S. him a jar of her brined cucumbers. “They are very

When the largest bank in the world bought corporate jets from Goldman Sachs in 2011, Ex-Im greased the skids with a loan from U.S. taxpayers.

20 | reason | January 2015 good pickles,” Hochberg would later comment. past, but who would face a Tea Party primary challenge “And as a New Yorker, I know my pickles.” himself in 2014, came out against re-authorization in March Soon, Miss Jenny had secured Ex-Im credit 2012, blocking a vote on the bank. insurance. If a Chinese grocer doesn’t pay Miss Still, in May 2012, the upper chamber voted 78-20 to Jenny, U.S. taxpayers will foot the bill. These days, renew the bank’s charter. Those 20 “nay” votes were the Miss Jenny, clad in a pickle-green polo, travels most ever, and they included McConnell, soon-to-be Finance the country with Hochberg, preaching the gospel Committee ranking member Mike Crapo (R-Idaho), and of Ex-Im. Credit insurance constitutes about 19 other senior Republicans, alongside the new Tea Partiers. In percent of all Ex-Im authorizations, overlapping the House, nearly 100 Republicans voted against renewing substantially with Ex-Im’s small-business port- the charter—also the highest total on record. folio, which also accounts for 19 percent of the Whence this flare-up of anti-corporatism? agency’s financing. First, much of the anger that initially fueled the Tea Party storm was rooted in the 2008 bailouts—AIG, Fannie Then Comes the Tea Party Mae, Freddie Mac, TARP, Chrysler, General Motors. Cor- “Ex-Im has long enjoyed broad bipartisan sup- porate welfare joined Obamacare and the national debt on port in the Congress,” Boeing Vice President of the short list of evils the insurgent Republican candidates Government Operations Timothy Keating remi- promised to battle. Paul, then a Senate candidate in Ken- nisced in a speech this September. Keating is tucky, blasted his primary opponent because one of his fund right. Ex-Im is the perfect totem of Washington raisers was an AIG lobbyist. Sen. Bob Bennett (R-Utah) and bipartisanship. For Democrats, Ex-Im is a New Rep. Bob Inglis (R-S.C.) both lost primaries while being Deal government program that supports manu- branded as “Bailout Bob.” facturing (where workers are 50 percent more The anti-establishment, anti–Ex-Im freshman senators likely to be unionized than in the rest of the —Paul, Lee, Rubio, and Toomey—not only had to beat the private sector) and gives bureaucrats the power party leadership to win their primaries, but they also had to steer money toward things like green energy to beat K Street: The business lobby firmly backed their and women-owned businesses. For Republicans, primary opponents. Ex-Im is pro-trade, pro-business, and pro-Wall Which brings us to the most important force powering Street. the GOP’s nascent free market populism: a new source of The House re-authorized Ex-Im with a voice money. Traditionally, the business lobby was the primary vote in 2002 and then the Senate passed the bill source of contributions for GOP candidates, which made by unanimous consent. In 2006, Congress re- Republicans wary of alienating big business. But Internet authorized the agency again by voice vote and advances and the liberalization of campaign finance laws unanimous consent. At times—such as in 2001— have decentralized fundraising. some conservatives and a very few liberals put After Citizens United v. Federal Election Commission, a 2010 up a fight over the bank, but it never faced a real Supreme Court case that voided some campaign finance existential threat. restrictions, Internet-enabled rivals to K Street sprung up: Then came the 2010 elections, the Tea Party, the “SuperPACs” for Club for Growth, Senate Conserva- and the GOP takeover of the House of Repre- tives Fund, FreedomWorks, and Americans for Prosperity, sentatives, all of which complicated the sched- among others. When House and Senate candidates backed uled 2012 re-authorization of the bank. Many by these new grassroots funders started winning elections House conservatives said “no way.” Tea Party- against business-backed opponents, it liberated the party ish Sens. Mike Lee of Utah, Rand Paul of Ken- from K Street’s clutches. With that freedom, and supported tucky, Marco Rubio of Florida, and Pat Toomey by the vote-whipping muscle of the newly powerful Heri- of Pennsylvania—all of whom had to beat the tage Action For America (HAFA), the lobbying arm of the GOP establishment to get to Washington—came conservative Heritage Foundation, the anti–corporate-wel- out foursquare against the agency. fare cause began to grow. Then-Minority Leader Mitch McConnell In spring 2012, Club for Growth, FreedomWorks, Sen- (R-Ky.), who had never objected to Ex-Im in the ate Conservatives Fund, and Heritage Action put Ex-Im

reason | January 2015 | 21 re-authorization on their scorecards, so that a vote for the Heritage Foundation, a spooked export lobby Ex-Im was considered a vote against free markets. Club for turned to Cantor. Growth even tried to block the re-nomination of Hochberg, the Ex-Im CEO, unless Congress agreed to wind down the Yes We Cantor agency. In party leadership, different people have dif- Hochberg easily won reappointment in 2012, just as ferent jobs, determined by leadership position, Ex-Im received votes from a majority of Republicans (and geography, seniority, and personal skills. Eric all Democrats) in both chambers, thanks to support from Cantor’s job—first as a deputy whip, then as industry players with lots to lose. In other words, the Ex-Im minority whip, and finally as majority leader— fight of 2012 showed that the Tea Party represented a new was always the same: to be the GOP’s No. 1 liaison force in the party, but that big business still called the shots. to Wall Street and one of its main interlocutors with the broader business lobby. The Battle of 2014 This is why Cantor was the right guy to save The most important “nay” in Ex-Im’s 2012 re-authorization Ex-Im in 2012, and it’s why K Street and the wasn’t fiscally conservative budget wonk Rep. Paul Ryan Chamber again looked to him to save them from (R-Wis.) or McConnell. It was Texas Republican Rep. Jeb Hensarling in 2014. Hensarling. A former chairman of the Republican Study Brat, the economics professor, made crony Committee, the conservative caucus within the House GOP, capitalism a central theme of his campaign against Hensarling was in line to become chairman of the House the heavily favored incumbent. Brat called him- Financial Services Committee after the 2012 elections. self “pro-business” but contrasted himself with In June 2013, Hensarling took the occasion of a sub- Cantor by saying that he was “against big busi- committee hearing to lay a rhetorical broadside on Ex-Im. ness in bed with big government.” “By inserting political considerations into the market,” he On the night of June 10, Brat shocked every- declared, “the Bank’s activities do expose taxpayers to risks one outside his immediate family by winning his while producing a less efficient economy than would oth- primary against Cantor, 55 percent to 44 percent. erwise occur in a free market without the Bank’s interfer- In the victory speech, he swore, “I will fight to ence. I have long believed that many taxpayers feel that it is end crony capitalist programs that benefit the indeed time to EXIT the EXIM.” rich and powerful.” Hensarling’s press office blasted these comments out to When the stock market opened a few hours the media. Democrats griped that he hadn’t done the spade- later, Boeing’s stock sank. It recovered a bit later work of calling a hearing to discuss, craft, and eventually in the day, but as Bloomberg reported, the slide pass an Ex-Im bill. Finally, in May, Hensarling planted the to $134.10 per share was still “the steepest drop flag. Speaking at the Heritage Foundation, he said, “Today since April 10,” enough that it “erased a year-to- I call on every Republican in Congress to simply let Ex-Im date gain for the Chicago-based manufacturer.” expire.” Cantor’s defeat also opened up the majority Over the summer, Hensarling and his staff went from leader job, which House Majority Whip Kevin office to office trying to convince Republicans to let Ex-Im McCarthy (R-Calif.), a Cantor acolyte, slid into. die. Instead of holding a meeting to mark up a re-authoriza- McCarthy’s first national media hit as presump- tion bill, Hensarling held a June hearing simply to discuss tive majority leader, days after Cantor’s loss, was whether the agency should exist, featuring as many Ex-Im on Fox News Sunday. Host Chris Wallace asked critics as customers. McCarthy, who had voted for Ex-Im in 2012, On one level, the persuasion was unnecessary. If a about the 2014 re-authorization. When McCar- committee chairman doesn’t want a bill to pass, he simply thy criticized the agency, Wallace pinned him doesn’t hold a hearing on it and the bill dies. down: “You would allow the Ex-Im Bank to Unless, that is, the majority party’s leadership circum- expire in September?” vents normal order and brings the bill straight to the floor. “Yes,” McCarthy immediately said. “Because This was how Majority Leader Eric Cantor had passed it’s something that the private sector can be able Ex-Im in 2012. And so after Hensarling’s May speech at to do.”

22 | reason | January 2015 That statement kicked the anti–Ex-Im lobby Ex-Im’s budget shenanigans exacerbate the problem: into gear. The agency’s operating expenses are not direct outlays, Heritage Action has led the charge. The group because Ex-Im is able to cover those with interest charges made killing Ex-Im “a major theme” of weekly and origination fees. The agency’s real costs are risk and calls with its local activists, or “sentinels,” accord- exposure, which is easy to disguise or ignore. ing to HAFA President Mike Needham. Sentinels, But most of the damage caused by Ex-Im comes from in turn, brought up Ex-Im at town halls with market distortions. Subsidizing one company tends to hurt their congressmen and flooded congressional another. Favorable financing for Miss Jenny’s Pickles gives switchboards with phone calls. Heritage Action it an advantage over other U.S. pickle producers, who have also produced two Web videos explaining Ex-Im, to compete with Miss Jenny for cucumbers, dill, glass jars, and for a while this summer and fall, HAFA’s offi- and brand recognition. Subsidizing Chinese steel mills cial Twitter account had the words End Ex-Im in hurts U.S. steel mills. Subsidizing European purchases of its avatar. U.S. tractors puts upwards price pressure on tractors, which Needham calls Ex-Im “the Bridge to Nowhere hurts American farmers. of the corporate welfare fight.” In the last decade, These victims of Ex-Im are unlikely to coalesce into a conservatives won a symbolic—but ultimately lobbying force—the harm, while real, is both hidden and small—victory when they eliminated a beloved diffuse. But in the current fight, one victim has spoken out: earmark benefitting the powerful Sen. Ted Ste- Delta Airlines. vens (R-Alaska). Killing that pet project saved In 2013, Delta sued Ex-Im for subsidizing its foreign taxpayers a few hundred million dollars, but it competitors. Pointing out that about 46 percent of Ex- also broke down the dike. Soon, Republicans had Im’s total outstanding exposure—nearly $50 billion—was to become the anti-earmark party. Activists saw that foreign airlines, Delta argued: “These foreign airlines will Ex-Im could be the fight that likewise turned the recoup their investment in their new aircraft faster or reduce GOP into the anti–corporate-welfare party. ticket prices on competing routes without adversely impact- The Club for Growth and Americans for ing their relative rate of return on those investments.” Prosperity, too, began whipping their grassroots Delta executives charged that Air India, having received members against Ex-Im. It helped that the free billions in Ex-Im subsidies over the years, used those arti- marketeers also had air support—from the coun- ficially cheap Boeings to lower its operating costs, thus try’s largest airline. crowding out Delta on the New York-to-Mumbai route. Suddenly, a big American company was lobbying against Delta Force Ex-Im. This opened the ears of many Republicans, who tend Concentrated benefits and diffuse costs are to be more persuaded by business concerns than lofty ideas the best defense that corporate welfare enjoys. like free enterprise. A billion-dollar subsidy to a big company costs each American only $3 in taxes. Who’s going to Exporters for Ex-Im lobby harder on the matter: the subsidizer or “A government that robs Peter to pay Paul,” George Bernard the subsidized? Shaw quipped, “can always depend on the support of Paul.”

Delta executives charged that Air India, having received billions in Ex-Im subsidies over the years, used those artificially cheap Boeings to lower its operating costs, thus crowding out Delta on the New York-to-Mumbai route.

reason | January 2015 | 23 Ex-Im’s clients have been unabashed about this truism, and sold overseas.” As for Ex-Im’s opponents, launching the “Exporters for Ex-Im” campaign, in which Keating brands them as “mostly far-right politi- profitable subsidized businesses explain how much they cal consultants, think tanks and congressmen” enjoy their subsidies. who “banded together in a fit of ideological road Leading the pro–Ex-Im charge in 2012 and 2014 has rage to kill the bank.” been the U.S. Chamber of Commerce, the largest lobby- Even Barack Obama, that self-styled scourge ing organization in the country. The Obama administra- of corporate lobbying, dedicated his August 23 tion appreciated this pro-subsidy lobbying so much that weekly address to boosting Ex-Im and imploring Hochberg, Ex-Im’s president, gave Chamber President Tom businesses to lobby for renewal. “Your members Donahue the “Chairman’s Award” in 2013, to thank him for of Congress are home this month,” Obama said, helping save the bank. transitioning to his role as lobbyist advisor. “If The National Association of Manufacturers joined the you’re a small business owner or employee of Chamber in spearheading the Exporters for Ex-Im Coali- a large business that depends on financing to tion, along with the Nuclear Energy Institute, the Associa- tackle new markets and create new jobs, tell them tion of Equipment Manufacturers, the Aerospace Industries to quit treating your business like it’s expendable, Association, and other industrial lobbies. Bankers got in the and start treating it for what it is: vital to Amer- fight, too—the Financial Services Roundtable and the Bank- ica’s success. Tell them to do their jobs—keep ers Association for Finance and Trade both joined. JPMorgan America’s exports growing, and keep America’s Chase and Wells Fargo also lobbied on Ex-Im, according to recovery going.” their lobbying disclosure forms. Exporters for Ex-Im over the summer deployed its The Battle Postponed “Dream Team” of lobbyists, including Haley Barbour, for- September was supposed to bring resolution to mer governor of Mississippi and former chairman of the the Ex-Im fight. Because Hensarling wouldn’t Republican National Committee, and Dick Gephardt, for- pass a re-authorization bill through committee mer House minority leader and former Democratic presi- and McCarthy wouldn’t circumvent Hensarling dential candidate. On the P.R. front (that is, not lobbying to move a bill straight to the floor, Ex-Im’s only members directly) was former Bush White House Deputy hope for survival was to ride on the back of Spokesman Tony Fratto. some unrelated must-pass legislation before its Keating, Boeing’s vice president and top lobbyist, has September 30 expiration date. been busy as well. He was previously a top aide in the Clin- Senate Majority Leader Harry Reid threat- ton administration—a “consummate political insider,” as ened to attach a five-year Ex-Im renewal to an the Seattle Times describes him. Bill Clinton even called out omnibus appropriations bill that would fund the Keating by name while speaking at Ex-Im’s annual confer- government past the end of the fiscal year. The ence in 2012. “Continuing Resolution,” or “C.R.” as it’s known Keating brags about having lobbied “almost every mem- on Capitol Hill, would have forced conservatives ber of Congress” on behalf of the bank. “We are what Amer- to either shut down the government on October ica should be,” he told the Seattle Times, “manufactured here 1—again—or cave on re-authorizing Ex-Im.

Candidates for the GOP presidential nod will court the conservative base, which sees corporate welfare as a signature vice of both the GOP establishment and Obamanomics. That means most Republican contenders will have to oppose Ex-Im.

24 | reason | January 2015 Instead of any of that, leaders of both cham- and more House seats in 2015 than in 2014. As of press time, bers on September 17 agreed to stick a nine- all major election models were predicting a GOP takeover of month extension of Ex-Im into a C.R. funding the Senate. the government through mid-December. The Still, if you took a poll of both chambers on Ex-Im, more deal passed the House 319-108, and the Senate members would favor the bank than oppose it. All Demo- 78-22. crats voted for Ex-Im in 2012. About half of Republicans Conservative groups immediately came out probably support it now. against the short-term extension—any vote for That means that to win—to kill or significantly pare back Ex-Im is a vote for corporate welfare, they main- Ex-Im—Hensarling, Heritage Action, the Club for Growth, tained. “There will be some who profess opposi- and their allies need to actually change Republicans’ hearts. tion to Ex-Im while publicly worrying that Presi- They’ll get a boost if November brings victories to Senate dent Obama and Senate Democrats will consider challengers being attacked for opposing Ex-Im: John Cas- an extension of the bank as a prerequisite to sidy in Louisiana, Cory Gardner in Colorado, and Thom fund the federal government,” Heritage Action Tillis in North Carolina. CEO Mike Needham wrote in an email. “Ex-Im is Most important might be the presidential primary, the poster child for cronyism and corporate wel- which will be in full swing by the May and June re-authori- fare, and conservatives cannot shy away from the zation debate. Candidates for the GOP nod will be courting national spotlight or allow others to muddle what the conservative base. Increasingly, that base sees corporate should be a clear, anti-cronyism, anti–corporate welfare as a signature vice of both the GOP establishment welfare message.” and Obamanomics. That means most Republican contend- Tea Party enforcers at Heritage Action and ers will have to oppose Ex-Im. Club for Growth felt that conservatives would When 29 governors wrote to Congress demanding re- lose their political leverage after the November authorization in July 2014, a number of Republican gover- election—specifically, when McCarthy won a full nors declined to sign the letter, including Scott Walker, Mike term as House majority leader. Their best chance, Pence, Bobby Jindal, Rick Snyder, Chris Christie, and John many conservatives would argue behind closed Kasich. In other words, every governor with 2016 ambitions doors, was to make it clear to McCarthy that he refused to back Ex-Im, except for Rick Perry. could keep his job only by helping kill Ex-Im. Fearing next summer’s political atmosphere, K Street But many Ex-Im allies also hated the nine- has begun pushing for a re-authorization vote tied to the month extension. House Minority Leader Nancy C.R. that expires December 17. Proponents hope the Senate Pelosi (D-Calif.) made it clear she wanted any will pass a C.R. to fund the government for the rest of the short-term Ex-Im renewal to have the same tim- fiscal year—that is, through September 2015—and include in ing as the C.R., so that opponents of the bank the deal a five-year Ex-Im renewal. would always be faced with an unpopular gov- In October, California’s Maxine Waters, the top Demo- ernment shutdown as their only mechanism for crat on the Financial Services Committee, and Gary Miller, ending the bank. “I’m totally opposed to” a nine- the committee’s former Republican chair, introduced such month extension, Pelosi said on September 11. “If a long-term re-authorization. This could set up a fight in the you put the date to next June, you are effectively 2014 lame duck session. putting a marker as to the demise of the Ex-Im If not, the Ex-Im battle will come in 2015. In either case, Bank.” it will be a test of the Republican congressional leadership: Boeing lobbyist Keating was similarly non- Have they learned a lesson from the public’s reaction to the plussed, railing in October that “The temporary bailouts, from the Tea Party’s energy, and from Eric Cantor’s extension recently enacted in many respects defeat? Or will the GOP abandon free enterprise for busi- leaves us worse off than before. The extension ness, as usual? r is to next summer, when in all likelihood the Congress will be more polarized than even Timothy P. Carney is the senior political columnist at the Washington now.” Examiner, a visiting fellow at the American Enterprise Institute, and the author of The Big Ripoff (Wiley) and Obamanomics (Regnery). Republicans will probably hold more Senate

reason | January 2015 | 25 In Search of Libertarian Realism How should anti-interventionism apply in the real world?

On May 1, 2003, President George W. Bush landed a Lockheed S-3 Viking on the deck of the aircraft carrier U.S.S. Abraham Lincoln off the coast of San Diego, then delivered a triumphant speech under a banner that read “Mission Accomplished.” “In the Battle of Iraq,” the president proclaimed, “the United States and our allies have prevailed.” video of the beheading of American journalist James Wright Foley Wright James journalist American of the beheading of video ISIS

For the next decade, that premature declaration gave Land grabs by ISIS across the region gave way to insurgencies, sectarian warfare, troop surges, cor- rhetorical ammunition to hawks and anti- rupt Iraqi governments, 4,000 U.S. combat deaths, even interventionists alike. The influential camp led more Iraqi deaths, and $1 trillion in taxpayer money down by Sen. John McCain (R-Ariz.) argued that the the drain. The American appetite for war, occupation, and battlefield successes of ISIS demonstrated the the concomitant surveillance state went on a steady and folly of leaving Iraq too soon and of not toppling uninterrupted decline, culminating in the shockingly suc- Assad when we had the chance. McCain’s former cessful September 2013 public and congressional revolt campaign sparring partner Ron Paul—Rand’s against President Barack Obama’s plans to attack Bashar father—countered that watching the Iraqi army Assad’s regime in Syria. With the occupation of Afghani- abandon its weapons after $26 billion worth of stan becoming the most unpopular war in recorded U.S. propping up by Washington proved the hope- history, and with people telling pollsters they feared lessness of war and nation-building (see “Dr. their own government more than they feared terrorists, Never,” page 42). Rand Paul, meanwhile, vacil- it became possible to imagine a cross-ideological coali- lated between those poles, arguing in one breath tion against war, spanning from the progressive left to the that the U.S. should “stay the heck out of [Syria’s] constitutional-conservative right, and headed up by the civil war,” and in the next that America should libertarian-leaning Sen. Rand Paul (R-Ky.). “destroy” ISIS, though only after congressio- But 2014 has complicated that narrative. The rise of the nal debate and vote. (For an interview with the Islamic State (ISIS) within war-torn Syria, Iraq, and Libya younger Paul, see “The Conservative Realist?,” halted the public’s decade-long bear market on war, with page 48.) more Americans favoring combat troops against ISIS in With Rand Paul at or near the top of GOP October than in September, in part because of the Islamic presidential polls for 2016, the principled non- State’s horrific beheadings of two U.S. citizens. interventionism of his father is colliding with Photo/J. Scott Applewhite) Scott Photo/J. AP President George W. Bush declaring the end of major combat in Iraq, May 1, 2003. ( 1, 2003. May in Iraq, combat major the end of declaring Bush W. George President

28 | reason | January 2015 the complications not just of the Islamic State goal must be to provide security efficiently without sacrific- but of Washington politics. If Ron’s project is to ing other important goals that Americans hold in common. spread the pure principles of anti-intervention, An important caveat up front: There is no universal, Rand’s is to see how much anti-intervention he one-size-fits-all foreign policy for the ages. A single, compre- can sneak into the mainstream diet. These differ- hensive policy cannot be applied uniformly to any state at ing approaches—and the different men behind any period in history. Geography, institutional constraints, them—have triggered all sorts of fierce debates technology, history, and strategic context will always shape about what a libertarian foreign policy really how we conduct foreign policy. So the U.S. today might looks like. require a very different approach than it needed during, The Hoover Institution’s Richard Epstein, say, the early Cold War or the first years of the republic. in a September piece titled “Rand Paul’s Fatal But today, American defense policy should be charac- Pacifism,” criticized libertarians for being “clue- terized by strategic restraint; its economic policy must be less on the ISIS front,” arguing that “In principle, one of free trade, and its diplomacy ought to be focused on even deadly force can be used in anticipation of articulating—but not aggressively imposing—liberal values an attack by others, lest any delayed response and the benefits of free markets. prove fatal.” Responding at Antiwar.com, reason Ends and means in politics and war are intimately con- Contributing Editor David R. Henderson coun- nected. The primary goal of the state should be to protect tered that “whatever else libertarian non-inter- the territorial integrity of the United States and the prop- ventionists believe, few of us have what Profes- erty rights—broadly understood, including throughout the sor Epstein calls an ‘illusion of certainty.’ It is the global commons—of the people residing within it. The state exact opposite: we are positive that there is great is also tasked with securing the conditions that allow for a uncertainty. It is this uncertainty that should, in free people to flourish in America. These elements combine general, cause us to pressure our government to to form the national interest. stay out of other countries’ affairs.” The state’s role is properly limited to serving these So who’s right? And what should libertarian interests rather than meeting the needs of outsiders or of principles about foreign policy look like after the state itself. However, a libertarian realist foreign policy colliding with messy reality? In the pages ahead, will have positive benefits for Americans and people of we have convened a forum of self-identified lib- other countries beyond achieving these fairly limited ends. ertarians who have a range of informed opinions Realism is important to this schema because, in order on U.S. foreign policy. The results are designed to secure our interests properly, we need to understand to start a debate rather than finish it, to take a the world as it is, not as we would like it to be. Realists thoroughgoing skepticism about intervention recognize there are important limiting and complicating Photo/J. Scott Applewhite) Scott Photo/J. AP into the realm of the real. In short, it’s a search factors in politics, just as there are in economics. We can for libertarian realism. —Matt Welch no more wish away the constraints that an anarchic world, the balance of power, and geography impose on statesmen than we can disappear the laws of supply and demand or The Case for Realism and Restraint comparative advantage. We need to understand and adapt to what realism tells us about the laws of international Will Ruger relations. What role should the United States play in the For example, we might wish we could rely on the rule world? When we ask that question, we are talk- of law internationally as much as we do domestically, and ing about foreign policy: the sum of our defense to maintain a very limited military, if any at all. However, policy, trade policy, and diplomatic relations this does not accord with what we’ve known about interna- with other countries. tional life since Thucydides: The strong often do what they The answer: The U.S. should adopt a foreign will, while the weak suffer what they must. If you doubt policy that is both consistent with a free society this, look at what is happening in Ukraine. and aimed at securing America’s interests in the Realism teaches that power matters significantly in

President George W. Bush declaring the end of major combat in Iraq, May 1, 2003. ( 1, 2003. May in Iraq, combat major the end of declaring Bush W. George President world—in other words, libertarian realism. The the world, and states can use force to meet a variety of

reason | January 2015 | 29 Will Ruger: We have to be realistic about the danger terrorism poses. It is rarely an existential threat and often best handled by careful intelligence collection, police work, and special operations forces.

goals, some of them malignant. But even great powers face out wartime coalitions like the one that formed constraints. As we saw in the Iraq War and aftermath, the in World War II or that would have emerged after world—including the comparatively powerless—also gets 9/11 to counter our enemies in Afghanistan in a vote, placing limits on what the U.S. can impose. Indeed, the absence of NATO. the application of power often brings negative unintended Second, the U.S. ought to employ the minimal consequences and even outright failure. use of force abroad, consistent with the national Ultimately, the long-term security of America rests interest narrowly defined above. Defense and upon the foundation of a strong economy. Free trade is a deterrence will be the primary methods of meet- key ingredient in the recipe for economic growth, and the ing U.S. security needs. However, this is not the U.S. should pursue it maximally. As individuals and firms absolute noninterventionism or the functional leverage their comparative advantages in the global econ- pacifism often advocated by left-liberals and lib- omy, the ensuing robust growth will allow Washington to ertarians. Aggressive military action should be better provide for the common defense at a relatively low on the table where and when warranted, such as cost as a percentage of GDP. There are some rare cases, such what might have been necessary had the French, as specific strategic goods (missile and weapon technology, in the early 1800s, been unwilling to sell New nuclear materials, etc.) where trade might be limited on Orleans and threatened to forcibly close off our security grounds, but we should be leery of rent seekers trade down the Mississippi. Moreover, defense who use this rationale as a means to nakedly self-interested includes pure pre-emption when necessary, as it protectionism. was for Israel in the Six-Day War or might be in In the military realm, the watchword of U.S. policy the future for the U.S. should we have absolutely should be restraint. The restraint approach harkens back solid intelligence of an imminent forthcoming to the traditional American thinking about defense that attack against American soil or U.S. ships. dominated from George Washington’s Farewell Address Restraint, rooted in realism, requires the to the beginning of the Spanish-American War in 1898. It maintenance of a very strong—but smaller and finds its most important modern expression in the work of more focused—military, with the Navy and the MIT-affiliated scholars such as Eugene Gholz, Daryl Press, Air Force having the most important roles and Harvey Sapolsky, and Barry Posen, and in the political the Army sustaining the deepest cuts. Naval and realm by Sen. Rand Paul (R-Ky.). air power will be critical to protect America far Restraint traditionally has two pillars. First, the U.S. from shore should deterrence fail. They also pro- should avoid permanent military alliances and be quite vide power projection capability as needed. But wary of making even temporary commitments in times of restraint will entail less need for the type of peace or war. That will maximize U.S. independence and large standing army the U.S. currently maintains ensure a free hand to avoid or choose engagements on its around the globe. Of course, a highly profession- own terms. It also means that the U.S. ought to carefully alized, well-equipped Army (and Marine Corps) wind down its many security commitments around the will still be needed and ought to be designed for globe, including NATO. This pillar of restraint does not rule expandability in the event of a significant threat.

30 | reason | January 2015 Restraint also requires a capable intelligence Our traditional fear, an emergent Eurasian hegemon, is community, though one focused abroad and nowhere on the horizon, not least because any attempt at respectful of American civil liberties at home. regional primacy will likely be resisted by neighbors and Restraint is particularly well-suited to the undermined by nationalism. Russia and China, to name realities of the modern world. The U.S. is excep- two potential rivals, have internal challenges ahead that tionally safe today, despite what you see on Fox dwarf our own domestic problems. Lastly, economic and News or in The Wall Street Journal. The country political developments over the last half-century mean that has an extremely favorable geographic position, states such as Japan, South Korea, and our current Euro- with two huge “moats” separating us from strong pean allies are plenty rich enough to defend themselves or threatening powers. It’s continent-sized, with individually or as parts of regional alliances. The U.S. is plentiful resources, the world’s largest economy, simply not needed to play the central, stabilizing role it did and a large, growing population. The neighbors during the Cold War. Indeed, its continuing deep engage- are friendly and comparatively weak, represent- ment around the globe only makes it less likely that these ing zero military threat. countries will take responsibility for their own security, Importantly, the U.S. also has a major mili- thereby releasing American taxpayers from the cost of their tary advantage that will remain unrivaled in the defense. decades ahead, even if right-sized in accordance When your ends are “making the world safe for democ- with a restrained realist strategy. Its superior racy” or other ambitious do-gooderism, your means are Navy and Air Force together offer an exceptional going to involve a permanent and expensive military/ deterrent capability and the ability to defeat foreign policy establishment, always primed for aggressive attackers far from our shores. The U.S.’s secure interventionism. More restrained ends require much more second-strike nuclear capability in particular limited means. gives us virtual invulnerability from traditional Restraint’s incompatibility with do-gooderism­ does not threats. It is extremely unlikely that any other mean that realism is immoral or amoral. There is morality country would dare attack the U.S. with nuclear to a realistic foreign policy, especially one connected to weapons or conventional forces. liberal values. The state acts justly when it serves its citi- Of course, the U.S. should be vigilant about zens’ interests and limits itself to things that people would the threat posed by explicitly anti-American generally favor contracting out to government (foremost terrorist groups, especially those that seek to among these is protecting the homeland). But a state with use weapons of mass destruction. However, we an expansive foreign policy can do a great deal of harm in also have to be realistic about the danger terror- the world, even if its motives are pure. ism poses. It is rarely an existential threat and A limited, realistic foreign policy is much less likely to often best handled by careful intelligence collec- require means that threaten the purpose of having govern- tion, police work, and special operations forces. ment in the first place. State action taken in the name of an Nuclear terrorism is also a very unlikely scenario activist national security policy can have terrible domestic for a variety of reasons, though still something consequences: civil liberty violations, increased militari- we should guard carefully against. zation of police, an unaccountable and bloated national Appropriately, then, restraint does not a security apparatus, more debt and larger deficits, and so on. priori rule out the use of military force against The United States, thankfully, can afford to pursue terrorist groups and their state supporters when a significantly more restrained foreign policy, spend- necessary. Afghanistan in 2001 was one such case ing modestly to maintain forces more than adequate for where war was justified even within a restraint defense and deterrence. We no longer need to support an framework, since the regime in Kabul provided extensive web of alliances like those of the early Cold War. a safe-haven for the notorious terrorist group Instead, the country can rely on its own economic and which carried out the deadly attacks of 9/11. military strength, along with temporary alliances during Another virtue of restraint is that the world wartime, just as George Washington counseled. today, and especially the balance of power, has To quote John Quincy Adams, the U.S. needs to stop changed in a way favorable to American security. going “abroad in search of monsters to destroy.” Humani-

reason | January 2015 | 31 tarian crises in non-democratic/illiberal regimes do not more. U.S. government policies and technologies automatically threaten U.S. interests. Americans should developed to efficiently carry out the occupation not have to spend their own blood and treasure policing of foreign societies eventually “boomerang” on the globe, even assuming that we could do so successfully Americans at home, as George Mason University (which recent history has demonstrated otherwise). economists Christopher Coyne and Abigail Hall Given that war is the health of the state, and a reliable convincingly argue in a paper published in the destroyer of domestic liberty, there are great costs to a free fall 2014 Independent Review. As the late Chalm- society in maintaining a massive military and using it for ers Johnson, author of three books on American anything other than true defense of the homeland. A free imperialism, used to say, we either dismantle the society is better off opting for realist-inspired restraint, empire or live under it. coupled with economic, diplomatic, and personal engage- On the foreign side, wars and occupations ment with the world. r immorally threaten noncombatants, vital infra- structure, and social institutions, sowing the Will Ruger ([email protected]) is an associate professor of political seeds of despotism and humanitarian disaster. science at Texas State University and a veteran of the war in The ambivalence that some libertarians Afghanistan. feel toward strict noninterventionism stems, I believe, from faulty thinking about “national Libertarianism Means Noninterventionism defense.” Intervention is often presented as defensive in order to conceal geopolitical and Sheldon Richman economic objectives. Yet some libertarians A noninterventionist foreign policy is the natural defend intervention with a simple bully-on-the- complement to a noninterventionist domestic policy. Even schoolyard model: Anyone would be justified setting aside the formidable anarchist challenge to the in defending a victim and retaliating against a very authority of the state, we can see that government is bully. The problem is that we cannot move seam- uniquely threatening to liberty and that this threat warrants lessly from individuals on a jungle gym to states keeping the state on as short a leash in the international in the international arena. arena as in the domestic arena—or shorter, because foreign States are comprised of individuals, of policy will inevitably be conducted covertly. course, but as the public choice school of eco- William Graham Sumner, an anti-imperialist classical nomics teaches, these people face vastly differ- liberal of the 19th century, noted that intervention trans- ent incentives than private citizens do. Govern- lates to “war, debt, taxation, diplomacy, a grand govern- mental decisionmakers can impose the financial mental system, pomp, glory, a big army and navy, lavish and other costs of their policies on a captive expenditures, political jobbery.” He should have included population through taxation, regulation, and conscription on the list. James Madison, who was nobody’s (potentially) conscription. Those decision mak- libertarian, nevertheless got this right: “Of all the enemies ers rarely suffer personally for their misjudg- to public liberty war is, perhaps, the most to be dreaded, ments. The mystique of the nation-state makes because it comprises and develops the germ of every other. many people credulous about and vulnerable War is the parent of armies; from these proceed debts and to patriotic appeals for support of “their” gov- taxes; and armies, and debts, and taxes are the known ernment and troops in times of crisis. While instruments for bringing the many under the domination heroes on the schoolyard are responsible for of the few.” He goes on: “In war, too, the discretionary their actions, essentially irresponsible political power of the Executive is extended; its influence in dealing personnel have a dangerously broad range of out offices, honors, and emoluments is multiplied; and all action that is unique in society. the means of seducing the minds, are added to those of sub- It’s tempting to sum up the public choice duing the force, of the people.…No nation could preserve case for nonintervention by saying that people its freedom in the midst of continual warfare.” in the private and political spheres are similarly That constitutes a daunting domestic case against mili- self-interested, with different incentives leading tary intervention in the affairs of other countries. But there’s to different kinds of behavior. But the economist

32 | reason | January 2015 Sheldon Richman: Even if a well-intended, risk-free interventionist foreign policy could be conceived in the abstract, its chances of being carried out correctly by any real-world government are virtually nonexistent.

and historian Robert Higgs adds an important free market outcomes or abolish the market altogether amendment: “Whatever its merits as an operat- cannot possibly acquire what Hayek called the requisite ing assumption in positive political analysis, the knowledge of time and place, much of which is tacit. This proposition that the people who wield political systemic ignorance guarantees the loss of welfare for soci- power are just like the rest of us is manifestly ety even if the planners have the best intentions. false,” he wrote in The Independent Review in We find an analogous problem in the managing of for- 1997. “Lord Acton was not just expelling breath eign affairs. Interfering in a foreign land is likely to bring when he said that ‘power tends to corrupt, and chaos, thanks to the imperial administrators’ ignorance absolute power corrupts absolutely.’ Nor did he of the target society’s complex political, social, religious, err when he observed that ‘great men are almost sectarian, and tribal dynamics. Invading and occupying always bad men’—at least if ‘great men’ denotes another country is like playing Jenga—“the classic block- those with great political power. Among the stacking, stack-crashing game”—while blindfolded and most memorable lines in Friedrich A. Hayek’s intoxicated. A seemingly innocuous move can produce Road to Serfdom is the title of chapter 10, ‘Why the catastrophic consequences. Worst Get on Top.’ Hayek was considering col- There is no better example of these pitfalls than the lectivist dictatorships when he noted that ‘there recent U.S. experience in the Middle East. Before not- will be special opportunities for the ruthless and ing some recent lowlights, a word of caution: In viewing unscrupulous’ and that ‘the readiness to do bad the government’s record, it can be difficult to distinguish things becomes a path to promotion and power.’ incentive/character problems from knowledge problems. But the observation applies to the functionaries When the same apparent error persists decade after decade, of less egregious governments, too. Nowadays it may not actually be an innocent error, but rather the nearly all governments, even those of countries pursuit of perverse interests. After all, people tend to learn such as the United States, France, or Germany, from mistakes. We cannot rule out the possibility that mili- laughably described as ‘free,’ provide numer- tary quagmires represent successful pursuits of geopo- ous opportunities for ruthless and unscrupulous litical and economic advantage for particular political and people.” “private” interests. The upshot is that even if a well-intended, To pick an arbitrary starting point, in March 2003 risk-free interventionist foreign policy could be President George W. Bush ordered the invasion of Iraq. The conceived in the abstract (leaving aside the prob- intent was to overthrow the government of Saddam Hus- lem of taxation), its chances of being carried sein, whom the U.S. government had helped place in power out correctly by any real-world government are and then later helped to make war on Iran. Officials told virtually nonexistent. the public that decapitating the Iraqi government would In addition to these incentive and character not only safeguard Americans—remember those phantom problems, there is a knowledge problem. Liber- weapons of mass destruction?—but would also win the tarians appreciate the seriousness of this issue in gratitude of the Iraqis and usher in a liberal democracy. the economic realm: Those who would modify It did no such thing. With the devil-may-care attitude

reason | January 2015 | 33 of that soused Jenga player, the U.S. invasion and occupa- atrocities perpetrated by the Islamic State (ISIS) tion plunged Iraq into chaos, which cost many Iraqi and range from public beheading to rape, forced con- American lives, disrupted Iraqi society, and produced a version, and expulsion. The United States and new authoritarian regime. Nearly a dozen years later, Iraq a few other countries are already attacking ISIS is threatened by the Islamic State, a violent organization from the sky and giving some aid to resistors on that grew out of Al Qaeda in Iraq, which did not exist before the ground. But these bombings will not be suffi- the U.S. invasion. cient to stop ISIS’ crimes. By all appearances, only In Saddam’s Iraq, minority Sunni Muslims dominated a full invasion with ground troops could get the the majority Shiites (and Kurds) in a secular regime. Was it job done. And Americans are weary of invasions. ignorance or the pursuit of a hidden agenda that accounts Most libertarians oppose intervention on for the U.S. policy makers’ seeming obliviousness of the principle. But let us take a moment to focus not Sunni-Shiite divide in Iraq? Why did the U.S. government on principles but consequences. Arguments for carry out a pro-Shiite policy pleasing to Iran, the American or against intervention should always consider foreign-policy establishment’s favorite bête noire? (That costs; the problem lies in calculating those costs. strained relationship is another product of U.S. foreign pol- We know that every war kills and destroys. We icy: In 1953, the CIA ousted a democratic Iranian prime min- also know that sometimes war produces a posi- ister and reinstated the despotic Shah, which led to the 1979 tive result. How do we measure and weigh the Islamic revolution and the U.S. embassy hostage taking, outcomes? producing the Iran-U.S. cold war that persists to this day.) I do not have enough information to say with The Islamic State is in Syria too. That country became any confidence whether the costs of a full inva- prime real estate for an extremist Islamic insurgency the sion to defeat ISIS would be acceptable. But I can day President Barack Obama and then–Secretary of State propose two guidelines to help policy makers Hillary Clinton declared Syrian President Bashar al-Assad think through the problem. illegitimate and announced that he “has to go.” This set First, when contemplating military action, the stage for a bizarre new U.S. war in which Assad’s most leaders should consider the price of inaction as formidable enemy is now America’s target. Whatever our well. Second, the more distant effects—such as (mis)leaders may say, U.S. ground troops in Syria and Iraq future unrest, wars, and massacres—must be are on the table. evaluated alongside immediate results. These It takes an interventionist foreign policy, devised sound like simple things, but they are neglected by ignorant and perfidious politicians, to make such a surprisingly often in public debate over foreign godawful mess. This does not mean that nonintervention policy. would have brought the world only sweetness and light. To Here’s the tricky part: The effects of inter- slightly modify Adam Smith: “There’s a great deal of ruin vention, like those of any contemplated human in the world.” But a free American people (we would have action, have to be evaluated ex ante, that is, from to get free first) could better defend themselves without a the standpoint of the person who is considering global empire, which is both bloody and bloody expensive. whether to act beforehand, and not only ex post, At least America wouldn’t be creating its own enemies, that is, when all the effects are known after the which is what U.S. foreign policy seems best at doing. r fact. Especially when you consider that inaction, too, could have led to unforeseen miseries. In Sheldon Richman ([email protected]) is vice president of The Future of other words, hard though it may be to accept, a Freedom Foundation and editor of its monthly publication, Future of disastrous outcome is not itself proof that a deci- Freedom. sion to go to war was the wrong one. People who defended the 2003 Iraq War Don’t Underestimate the Costs of Inaction (myself included) did not accurately predict all the bad things that the invasion would enable, Fernando R. Tesón including the prolonged insurgency and the Current events in Syria and Iraq have rekindled talk continued inability of the Iraqi leadership to about humanitarian intervention. The amply documented preserve the gains of Saddam Hussein’s ouster.

34 | reason | January 2015 The stronger predictions about the short- and inevitable and what didn’t happen was unlikely. But his- mid-term effects of the war came from non- tory is not that linear, and acting as if it is can lead to bad interventionists, who correctly argued that the decisions in the future. invasion would open a Pandora’s box in the So how do we go about measuring the most seri- region. It might therefore be tempting to say ous immediate costs of proposed intervention? Defeat is that those who make the case for inaction most obviously the most costly scenario. Runner-up, arguably, often (or even always) have the facts (and justice) is the killing of civilians. Many wars that might seem on their side. justified are nonetheless troubling because they will pre- But those who blast the Iraq War are looking dictably cause the death of a high number of innocent at the consequences ex post, that is, after a num- persons. If there is an acceptable level of collateral damage, ber of bad things are known to have happened. then a war that exceeds that level is unjustified because There’s nothing wrong with trying to learn from it is disproportionate: The harm caused is greater than your mistakes, but it’s easy to criticize the Iraq whatever good the intervention brings about. If defeating decision in hindsight. If events had unfolded ISIS will bring about the deaths of hundreds of thousands differently—if there had been no Baathist insur- of persons, then many would conclude the United States gency, if the Arab Spring had consolidated some should not act. liberal reform, if the democratic institutions in But this way of thinking about consequences may be Iraq had taken root—then we would regard the too narrow. What if military intervention causes great 2003 invasion differently today. Perhaps betting harm now but improves the lives of millions in the future? Photo/Jerome Delay) Photo/Jerome

AP on those outcomes was foolhardy from the start. Even if invading and defeating ISIS would cause a troubling But because we are human, we tend to believe number of civilian deaths, it is possible that failure to inter-

The toppled statue of Saddam Hussein in downtown Baghdad, Baghdad, in downtown Hussein Saddam of statue The toppled ( 2003 April retroactively that what actually happened was vene would mean death and suffering for millions of more

reason | January 2015 | 35 Fernando Tesón: The terrible consequences of inaction are as hard to gauge as the terrible consequences of invading. It is simply false to assert that in the face of uncertainty it is invariably best not to act.

people for years to come. Balancing present certain harm exponentially more rich and powerful could against future uncertain harm is always problematic. But inflict. leaders must evaluate the immediate and remote effects As Richard A. Epstein wrote in a Septem- of both action and inaction when making foreign policy ber essay for the Hoover Institution, one of the decisions. classical functions of government is to defend I understand that for the U.S. government, the lives of citizens against foreign aggression. It is thus Americans are more important that the lives of foreigners, surprising, Epstein argued, to hear many liber- and the lives of people alive today are more important than tarians “unwisely demand that the United States the lives of people who will be born later. This is because keep out of foreign entanglements unless and the U.S. government has a fiduciary duty to protect its until they pose direct threats to its vital inter- current citizens. But that does not mean that the lives of ests—at which point it could be too late.” An foreigners are irrelevant in the calculus, particularly when invasion to defeat ISIS, in other words, might be we think about the consequences of inaction. necessary to defend us effectively against future Consider the genocide perpetrated in Rwanda in 1994. attacks emanating from the Islamic State. I know If the U.S. had intervened, at a comparably low cost of that similar arguments were made in the lead-up American lives and money, maybe 800,000 people would to the Iraq war. But the fact that those arguments be alive today. Many made a principled case for inaction were wrong then (if they were wrong) does not at the time, arguing that it was not the proper role of the mean they are wrong now. United States to act in other nations’ affairs. But the cost in What are the consequences that the U.S. gov- human lives—foreign lives, to be sure, but lives nonethe- ernment can reasonably expect would follow less—received insufficient weight in the discussion, leading from an invasion against ISIS? There are so many to a bad decision. possible scenarios that any prediction would be Assume for a moment that the United States govern- no more than an educated guess. While some ment had ruled out even air strikes against ISIS over under- would argue that our lack of information one standable fears of short-term costs. ISIS, in that scenario, way or the other is an argument against war, would be free to solidify its own totalitarian state. In all my claim is that there is equally an argument likelihood, the chances of war and other ills in the region against inaction. Our imaginations necessarily would increase, because the new state’s harsh and expan- fail to conjure all the ways things might go hor- sionist worldview would mortally threaten its neighbors. ribly wrong if we expend American blood and And it’s quite possible that the United States would eventu- taxpayer dollars on war, but are equally lacking ally be dragged into the very war it sought to avoid. when we try to envision the way things might go All indications are that the Islamic State would be wrong if we do not act. militantly committed to violent strikes against United The terrible consequences of inaction are States’ interests everywhere, including on American soil. If as hard to gauge as the terrible consequences of a handful of modestly financed individuals could pull off invading. I confess not to know where the con- the 9/11 attacks, imagine the damage that a sovereign state sequential calculus leads. But it is simply false to

36 | reason | January 2015 assert that in the face of uncertainty it is invari- to question authority and to demand good and proper rea- ably best not to act. r sons for government actions,” writes Ronald Hamowy in The Encyclopedia of Libertarianism. He continues, “War pro- Fernando R. Tesón ([email protected]) is a professor at motes collectivism at the expense of individualism, force Florida State University College of Law and a co-founder of at the expense of reason, and coarseness at the expense of the blog Bleeding Heart Libertarians. sensibility. Libertarians regard all of those tendencies with sorrow.” Toward a Prudent Foreign Policy Nobel Laureate Milton Friedman stated the issue more succinctly. “War is a friend of the state,” he told the San Christopher Preble Francisco Chronicle about a year before his death. “In time In domestic policy, libertarians tend to of war, government will take powers and do things that it believe in a minimal state endowed with enu- would not ordinarily do.” merated powers, dedicated to protecting the The evidence is irrefutable. Throughout human his- security and liberty of its citizens but otherwise tory, government has grown during wartime, rarely sur- inclined to leave them alone. The same principles rendering its new powers when the guns fall silent. should apply when we turn our attention abroad. Some might claim that a particular threat to freedom Citizens should be free to buy and sell goods and from abroad is greater than anything we could do to our- services, study and travel, and otherwise interact selves in fighting it. But that is a hard case to make. Even with peoples from other lands and places, unen- the post-9/11 “global war on terror”—a war that hasn’t cumbered by the intrusions of government. involved conscription or massive new taxes—has resulted But peaceful, non-coercive foreign engage- in wholesale violations of basic civil rights and an erosion ment should not be confused with its violent of the rule of law. From Bush’s torture memos to Obama’s cousin: war. American libertarians have tradi- secret kill list, this has all been done in the name of fight- tionally opposed wars and warfare, even those ing a menace—Islamist terrorism—that has killed fewer ostensibly focused on achieving liberal ends. American civilians in the last decade than allergic reactions And for good reason. All wars involve killing to peanuts. It seems James Madison was right. It was “a people and destroying property. Most entail universal truth,” he wrote, “that the loss of liberty at home massive encroachments on civil liberties, from is to be charged to the provisions against danger, real or warrantless surveillance to conscription. They pretended, from abroad.” all impede the free movement of goods, capital, But surely, some say, the United States is an exceptional and labor essential to economic prosperity. And nation that serves the cause of global liberty. The United all wars contribute to the growth of the state. States pursues a “foreign policy that makes the world a An abhorrence of war flows from the clas- better place,” explains Sen. Lindsey Graham (R-S.C.), “and sical liberal tradition. Adam Smith taught that sometimes that requires force, a lot of times, it requires a “peace, easy taxes and a tolerable administra- threat or force.” By engaging in frequent wars, even when tion of justice” were the essential ingredients of U.S. security isn’t directly threatened, the United States acts good government. Other classical liberals, from as the world’s much-needed policeman. That’s the theory, Richard Cobden and John Stuart Mill to Ludwig anyway. von Mises and F.A. Hayek, excoriated war as In practice, the record is decidedly mixed. This sup- incompatible with liberty. posedly liberal order does not work as well as its advocates War is the largest and most far-reaching of claim. The world still has its share of conflicts, despite a all statist enterprises: an engine of collectiviza- U.S. global military presence explicitly oriented around tion that undermines private enterprise, raises stopping wars before they start. The U.S. Navy supposedly taxes, destroys wealth, and subjects all aspects keeps the seas open for global commerce, but it’s not obvi- of the economy to regimentation and central ous who would benefit from closing them—aside from planning. It also subtly alters the citizens’ view terrorists or pirates who couldn’t if they tried. Advocates of the state. “War substitutes a herd mentality of the status quo claim that it would be much worse if the and blind obedience for the normal propensity U.S. adopted a more restrained grand strategy, but they fail

reason | January 2015 | 37 Christopher Preble: Freedom has many champions; it betrays a curious disregard for other freedom fighters’ work to suggest that liberty can only flourish under the covering fire of American arms.

to accurately account for the costs of this global posture ment—in foreign conflict should be treated with and they exaggerate the benefits. And, of course, there is great skepticism.” The obviously desirable end of the obvious case of the Iraq War, a disaster that was part advancing human liberty should, in all but the and parcel of this misguided strategy of global primacy. It most exceptional circumstances, be achieved by was launched on the promise of delivering freedom to the peaceful means. Iraqi people and then to the entire Middle East. It has had, The United States is in a particularly advan- if anything, the opposite effect. tageous position to adopt foreign policies con- Libertarians should immediately understand why. sistent with libertarian principles. Small, weak We harbor deep and abiding doubts about government’s countries might not have the luxury of avoiding capacity for effecting particular ends, no matter how well wars, but the United States is neither small nor intentioned. These concerns are magnified, not set aside, weak. Our physical security is protected by wide when the government project involves violence in foreign oceans and weak neighbors, and augmented by lands. the deterrent effect of nuclear weapons. We get These doubts are informed by Hayek’s observations to choose when and whether to wage war abroad, about the “fatal conceit” of trying to control an economy. and we could do so by assessing the likely costs Throughout his career, the economist convincingly argued against the anticipated benefits. that government is incapable, over the long term, of effec- Instead, as the University of Chicago’s John tive central planning. Attempts inevitably fall short of Mearsheimer notes, “The United States has been expectations, because human beings always have imper- at war for a startling two out of every three years fect knowledge. since 1989,” and U.S. policy makers show little This knowledge problem contributes to unintended regard for how such wars advance U.S. secu- consequences. These can be serious enough in the domes- rity. Large-scale military intervention is usually tic context; they’re more serious still in foreign policy. irrelevant when dealing with non-state actors Even well-intentioned wars—those designed to remove such as Al Qaeda, and the U.S. government has a tyrant from power and liberate an oppressed people, no magic formula for reordering Iraqi or Syr- for example—unleash chaos and violence that cannot be ian politics, the true breeding ground of the so- limited solely to those deserving of punishment. And wars called Islamic State. always cost us some of our liberty, in addition to blood and Although there may be occasions when mili- treasure. tary force is required to eliminate an urgent For all of these reasons—the expansion of state power, threat, thus necessitating an always-strong mili- the problem of imperfect knowledge, the law of unin- tary, our capacity for waging war far exceeds that tended consequences—libertarians must treat war for what which is required in the modern world. Despite it is: a necessary evil. “War cannot be avoided at all costs, the ostensible end of the wars in Iraq and but it should be avoided wherever possible,” writes the Afghanistan, the U.S. military’s non-war bud- Cato Institute’s David Boaz in Libertarianism: A Primer. get remains extraordinarily high. In inflation-

“Proposals to involve the United States—or any govern- continued on page 40 Keisling) (Jason

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adjusted dollars, Americans annually spend more now than instead on the presumption that all governments we did, on average, during the Cold War, when we were fac- have a core obligation to defend their own citi- ing off against a global empire with a functioning army and zens, could be a safer one and also a freer one. navy, a modern air force, and thousands of nuclear weap- Libertarians have traditionally been reluc- ons capable of reaching the United States in a matter of tant to support foreign military interventions. minutes. Al Qaeda and all of its copycats combined can’t We still should be. We will defend ourselves New From the muster even 1/1000th of the destructive power of the when threatened. When there is a viable military Soviet Union. option for dealing with that threat, and when If the United States used its military power less often, we have exhausted other means, we may even Cato Institute might that be OK for Americans but worse for everyone reluctantly choose to initiate the use of force. else? What if the cause of freedom needs the United States Such instances are rare, however, because most as its champion? People living under a tyrant’s heel deserve of today’s threats are quite modest. Libertarians liberation; the threat of U.S. intervention might convince have a very clear sense of the risks associated ournalists face constant intimidation. the petty despot to step down; if not, the sharp end of with military operations. We retain a sober sense J Whether it takes the extreme form of American military power could deliver him to a prison cell, of the certainty of unintended consequences and beheadings, death threats, government or the gallows. the possibility of failure. We should therefore be Such a view unfairly privileges U.S. military power, and skeptical of any claim that preventive war will censorship, or simply political correctness the power of the American state, over the power of ideas. turn a suboptimal but manageable situation into —it casts a shadow over their ability to Freedom has many champions; it betrays a curious disre- something much better. tell a story. gard for other freedom fighters’ work to suggest that liberty The experiences of the past decade have can only flourish under the covering fire of American arms. reaffirmed these truths, and taught us some new No one knows this better than Flemming The question, therefore, isn’t whether we should wish to lessons, too. Although we marvel at the profes- Rose, the editor at the Danish newspaper see freedom spread worldwide. The real issue is about how sionalism and commitment of those who serve who, in 2006, published best to do it. in our military, we have been reminded of war’s Jyllands-Posten Toward that end, U.S. policies have often been coun- unpredictability, and that the military is always cartoons of the prophet Muhammad, incit- terproductive, sometimes having the perverse effect of a blunt instrument. Above all, we have learned ing a worldwide firestorm. In The Tyranny eroding the very concept of individual liberty. Quite a that the costs of waging wars are rarely offset by he not only recounts that story, few oppressed people have watched in horror as Iraq the benefits we derive from them. of Silence, has descended into civil war and anarchy. If that is what That does not mean that military interven- but takes a hard look at the slippery slope freedom and democracy look like, they might reasonably tion is never warranted, or never will be in the of attempts to limit free speech in a world conclude, we’ll happily opt for something else. Similarly, future. It does mean that we need to more clearly the United States’ entangling alliances with illiberal Arab define those infrequent situations in which war that is increasingly multicultural, multireli- regimes such as Saudi Arabia make a mockery of Washing- is the last best course of action. gious, and multiethnic. ton’s claim to be an advocate for freedom. The United States should and will partici- This is not an argument against either military power pate in the international system. It must remain AVAILABLE NATIONWIDE or alliances per se. It is an argument against allowing the engaged in the world. But it is wrong to equate world to become overly reliant upon the military power of engagement with global military dominance and HARDBACK: .  • EBOOK:  . a single nation. Who’s to say, for example, that a more mili- perpetual warfare. Human liberty exists in spite tarily capable European Union would not have proved bet- of, not because of, the power of any one nation, ter able than the United States to deter Russian aggression and it is dubious in the extreme to presume in Georgia in 2008, and now in Ukraine? Could even mod- that freedom’s flame will be extinguished if est military capabilities (e.g., a functioning coast guard) the United States adopts a more discriminating better defend Philippine claims to the Scarborough Shoals approach toward the use of force. r in their ongoing dispute with China? Might Turkey be fighting the ISIS threat on its border if the Turks didn’t Christopher Preble ([email protected]) is the vice president believe the United States would do the fighting for them? for defense and foreign policy studies at the Cato Institute. An international order that is less dependent upon the U.S. military as a vehicle for promoting liberty, and based

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New From the Cato Institute

ournalists face constant intimidation. J Whether it takes the extreme form of beheadings, death threats, government censorship, or simply political correctness —it casts a shadow over their ability to tell a story. No one knows this better than Flemming Rose, the editor at the Danish newspaper Jyllands-Posten who, in 2006, published cartoons of the prophet Muhammad, incit- ing a worldwide firestorm. In The Tyranny of Silence, he not only recounts that story, but takes a hard look at the slippery slope of attempts to limit free speech in a world that is increasingly multicultural, multireli- gious, and multiethnic.

AVAILABLE NATIONWIDE HARDBACK: .  • EBOOK:  .

Dr. Never Former Rep. Ron Paul on how ‘military interventions by the United States after World War II were all unjustified’

Interview by Matt Welch

On May 15, 2007, at a Republican primary debate and burned. Not only would the rambling sep- in Columbia, South Carolina, longshot presiden- tuagenarian outpace the famous former New York tial candidate Ron Paul shocked the room with mayor in both delegates and the popular vote dur- his answer to a question about how 9/11 changed ing the 2008 campaign, his message of peace and America: “Have you ever read the reasons they American pullback electrified a new generation attacked us? They attack us because we’ve been of activists and voters, while Giuliani’s hawkish over there; we’ve been bombing Iraq for 10 years.” stance has become less popular by the day. Then-frontrunner Rudolph Giuliani, visibly Now retired from Congress after a second, agitated, interrupted the proceedings to condemn more successful run at the White House, Paul can Paul’s “extraordinary statement…that we invited gaze out at a world and a GOP that has become the attack because we were attacking Iraq” and much more sympathetic to his once-lonely view then demand a retraction as the crowd went wild. of the world. His son, Sen. Rand Paul (R-Ky.), has Campaign reporters, straight and ideological been hanging out near the top of the polls for the alike, started writing Ron Paul’s obituary. Politico 2016 presidential race, selling a more Republican- Executive Editor Jim VandeHei, on CNN’s American friendly version of intervention-skepticism. There Morning the next day, said that “Rudy Giuliani are entire armies of young libertarian activists— came off terrific…mostly because he got that soft- including many recent military veterans —who ball, where Ron Paul lobs it to him and basically got their introduction to the philosophy through blames the U.S. for the 9/11 attacks.…You dream Ron Paul’s bracing criticism of U.S. misadventures of those moments when you’re a candidate, that’s abroad. You can’t talk about libertarian foreign for sure.” Conservative radio host Hugh Hewitt policy without talking about—and to—Ron Paul. agitated for Paul to be barred from future GOP reason Editor in Chief Matt Welch caught up with debates. National Review’s headline captured the the three-time presidential candidate over the

Photo/Mary Ann Chastain) Photo/Mary media zeitgeist succinctly: “Giuliani Up, McCain phone in October. AP Up, Romney Down, and Ron Paul Out—Way Out.” But a funny thing happened on the way to reason: What should we be doing with our foreign Paul’s seemingly inevitable ostracism from the policy? How should we approach the world? Republican Party for the sin of nonintervention- Ron Paul: We certainly had some good advice in

Ron Paul at the Republican primary debate in Columbia, South South in Columbia, debate primary the Republican at Paul Ron ( 15, 2007 May Carolina, ism: His star began to rise, while Giuliani’s crashed our early history, and we haven’t followed

reason | January 2015 | 43 it. Whether it was Washington or Jefferson, they gen- authority, and there’s no practical advantage for us [to erally talked about a foreign policy of staying out of go abroad].…We shouldn’t be an ally of the Soviets, but the internal affairs of other nations and staying out of we’re not going to invade them either. entangling alliances. That’s 100 percent opposite of So that’s a big difference from what we do. Either what we do. we’re close allies with the monsters or then we turn on But on the very positive side, [their advice] was to them and throw them out and put a new monster in set an example and have a country that defended lib- place. It’s a policy of insanity. erty, and maybe others would want to follow us. As far reason: Is there something that the United States and/or as dealing with other nations, it was to strive for peace. the international community should do proactively The best way to achieve that would be through com- in response to one country basically gobbling up merce, through trade. So they were strong believers in another one? This is the initial Gulf War scenario: Iraq that, and I am too. invades Kuwait. Take the U.S. and its backing of Iraq We’re so much better off now with China than we out of that for a second—should there be some kind of were when I was in high school and we were killing response? What do you do when one country gobbles each other. Hopefully we don’t drift back into that kind up another? of thing with China. Ron Paul: You learn your lesson and you learn not to Those would be the goals that are very, very posi- encourage this. Because actually we had been a close tive. Along with the moral and constitutional right and ally with Saddam Hussein. We encouraged him to obligation for us to have a strong national defense to invade Iran, and he saw that we were friends and did a defend our security, but never to use it to go around the deal. So then he suggests that he might go into Kuwait world looking for monsters to destroy, which has been and gets a green light from our administrators. I would driving our foreign policy, especially these last 15 or 20 say that’s how you prevent these things from happen- years. It just seems like if we don’t have somebody, we ing. have to go looking for them. I think that is a policy of But once it happens, it’s not in our self-interest disaster, and it’s going to bankrupt our country. The to sacrifice a lot of American lives to go over and start policies always fail. a war that’s still going on. It started in 1990 and here reason: You mention monsters—there are monsters in the we are 24 years later and we’re still fighting this same world, for sure. Whether they are exactly as Washing- war? Maybe there would be a balance of power over ton defines at any given moment is perhaps a separate there right now if we wouldn’t have been involved. question. But there are moments when a dictator or We’re still fighting World WarI over there. Those lines a group is committing genocide. What is the role of a are artificial. Who says that there’s something sacred U.S. foreign policy in a world with monsters? about Kuwait? The lines were drawn up by Europeans Ron Paul: Well, if you know they are monsters, you and maybe some people had a beef about it. shouldn’t help them, you shouldn’t ally yourself with But I think the worst thing to do is to go over there them. That would not be an honest friendship. and sacrifice life—American lives—getting involved in If you have a monster like Stalin, who had killed a threat that is not a threat to us. It’s a threat to them, hundreds of millions of people through all methods the instability of that region. That’s not our responsi- and [with] what that system did, it would hardly be bility and things have been made much worse by us good advice to say, well, become close military allies, assuming that responsibility. and then divide up the world between the West and reason: Is there a U.S. intervention after World War II that the East and have a Cold War for 50 years. you think retrospectively was a good idea? You don’t become an ally to them, but neither do Ron Paul: Not really. And even if I thought so, it was not you decide that you can change the monsters of the done properly. If we got involved militarily, I think world. Because there are some in every country, and there should’ve been a declaration of war. there are some in this country. Our obligations are I was very much aware of the Cold War, and was to deal with some of the warmongers we have here drafted when the missiles were found in Cuba. The and the infractions of our liberties here at home. But thought crossed my mind—and this is not a conclu- there is no moral obligation, there’s no constitutional sive thought—[that] maybe what a president ought to

44 | reason | January 2015 “Somebody might think it’s impractical to be a noninterven­ tionist right now. Well, what if we totally go broke and we’ve had such violation of our civil liberties that the people rebel and want a decent government over us? Maybe the most practical thing would be to move in the direction of what they call ‘impracticality.’”

do under these circumstances is say: Don’t expand the bor?” You have to retaliate even though we are a con- war in Vietnam without congressional approval of war, tributing factor to the ongoing war. I would say we had [but] maybe doing something with Cuba made more to do something. sense for our national security. Right on our borders The authority to go after those individuals pre- and nuclear weapons on our borders; you could make cisely responsible, I voted for that. So I guess that a case for that. I’m glad they didn’t do it; I probably might be the exception to what I said earlier. It was would not have supported it. But in comparison, that a reluctant support, at least to go after those particu- made a lot more sense. lar individuals. But I also was struggling with that, But for the rest of the stuff that went on over all because that is when I came up with trying to revital- those years—Vietnam, Korea, everything in Lebanon ize the concept of a letter of marque and reprisal in and the Middle East and even Grenada, going into order to limit our problems. Because it wasn’t a coun- South America, going into Panama, and continuing try, it wasn’t the whole world, we weren’t about to be the fight with Cuba that was so unnecessary and actu- truly invaded. We had a problem—regardless of how it ally solidified the power of the Castros—I would say was created—that maybe by targeting an individual, we that military interventions by the United States after might’ve gotten him very early on. We knew where bin World War II were all unjustified. Had they been justi- Laden was and it looked like they could’ve gotten him, fied, they should have been done precisely through the but it went on for years and years after that. I think that Congress and not a president just arbitrarily starting was a worthwhile thought, but of course no one was these wars. interested. reason: What about the post-9/11, failed-state-that-gives- reason: So you think that would be a decent model going harbor-to-people-who-attack-us model? Which might forward, instead of the 30-year war that we are appar- be coming up again with ISIS, depending on how that ently now launching in the broader Islamic world? all turns out. But certainly in Afghanistan—although Ron Paul: I think it would be much better. The big question right now it’s the least popular war in history and is what is the practicality of it? The Congress is sup- deservedly so. But in an ideal scenario, what militarily posed to write the letter of marque and reprisal. But I do you do when a lousy or a failed state harbors people think it was easier to target a small group of people— who then attack the U.S.? and I do believe it was a small group of people because Ron Paul: Well, I don’t think the government of Afghani- they couldn’t have kept 9/11 secret unless it was a very, stan attacked us. Yes, it is true that Al Qaeda traveled very close-knit group. The real conspirators on that all through there, but they did a lot of training in Ger- got killed, so there were a lot less [to track down]. many and Spain and southern Florida in order to Now we have a phenomenon going on that is attack us here on our homeland. a pervasive phenomenon. Just recently in a 16-day But you still have to contend with this. I could period there were 350 villages overrun in Iraq. Well, make a case for the stupidity of World War II by point- there aren’t that many ISIS members. That means ing to the stupidity of World War I, but that doesn’t there’s something wrong with the villagers and the answer the question, “What do you do after Pearl Har- people and the governments. Think of the millions and

reason | January 2015 | 45 “Our opposition is interventionists. They intervene in the economy, they intervene in personal lives, and they intervene overseas. Republicans and Democrats, they endlessly argue about degrees. Should we bomb this week or next week? Should we use cruise missiles? Which company should we buy our helicopters from? It’s all details of intervention.”

millions of people who claim they hate ISIS. So there Kremlin and the Baltics would wonder if they’re going must have been some token support. It’s sort of a phil- to survive. What do you think the world would look osophic thing; they’re getting a consensus, and to me, like and how do you think other actors would act in I’d have trouble writing the letter of marque and repri- the face of an American retreat from its role right now? sal. It would be different because it’s not a 9/11 attack. Ron Paul: There’s a little bit of guesswork on how they’d On 9/11 they bombed our cities. It’d be a lot easier to react. But you can go by the history and [conclude] deal with that by writing a letter because there’s the they may act a lot better. downside of our war in Iraq. When we’re pounding on their borders, when We’re seeing all the unintended consequences, all NATO is on the borders of Russia, maybe their reac- the blowback. Supporting [an Iraqi] government is a tion is very logical. Once the Soviet system collapsed total failure. So I think the conditions wouldn’t be the and we backed off, they started trading. That’s why same. But I think if you had to go one way or the other, so much trading is going on there. Maybe that would a 30-year war shouldn’t be the way to go. And I just have continued and expanded. That’s what I think think that any time we get involved there it really helps would have happened. the enemy more than it helps us. China doesn’t have a history of wanting to have reason: In a Ron Paul universe, would NATO [the North a world empire, but I think because they get pushed, Atlantic Treaty Organization] exist? and we go over there and assume that we have control Ron Paul: No. I sort of go along with Robert Taft on that over all the sea lanes over there and that we’re going to one—and Robert Taft wasn’t exactly an individual who be involved in their affairs. I don’t think China has the was an absolutist. He saw this as impractical. His ten- history of expansion. dencies were for nonintervention, so he thought NATO It’s the same way with the Iranians. They don’t would commit us to more involvement than need be. have [that history], yet they’re probably top of the list Look, NATO is involved in Ukraine. Afghanistan was a right now of our enemies. They do not have a history NATO war and NATO was involved with Libya. But all [of expansion] unless you go back maybe a thousand that is a cover for us. We’re NATO. When NATO votes to years, at least hundreds of years. go in, who pays and where do the weapons come from So I think the assumption that all of a sudden and who makes the money? It’s our weapons produc- Russia and China are going to take over—what we ers that make all the money. ought to look at is [that] they may well take over finan- reason: Without a NATO, without the current system with cially. We’re setting the stage for the disintegration of America assuming a hegemonic superpower role, if the West, the financial empire, the disintegration of the you withdraw all troops from Japan and Korea over- dollar as the reserve currency of the world. night—which is something that you and I would prob- If people are worrying about a powerhouse, they ably enjoy watching—one would expect that one of ought to worry about our policies now in Ukraine, the reactions would be that China would say, “Great!” which are insanely driving wedges between the East and flex its power more. If we disbandedNATO tomor- and West. They’re going to get annoyed enough that row, Russians would be high-fiving each other in the they would just love to see us go down, and we’re not

46 | reason | January 2015 in the driver’s seat. We have the debt and they have the the progressives will stick with this. At the same time, money in the bank. It’s exactly opposite of what it was I think manning the fort of a less aggressive foreign like at the end of World War II. policy is coming more from the constitutional conser- reason: Do you think that American foreign policy basi- vatives and the libertarians. cally post-World War II has overall been a force for reason: Speaking of which, there’s an interesting [former good and peace? Rand Paul and Ron Paul adviser] Jesse Benton quote Ron Paul: There’s a mixed bag. The governments have not in The New Yorker recently where he says, “If Ron were been a force for peace, but there’s something pretty president, he would have had to govern like Rand. Ron neat happening in the states. The governments them- is much more of a purist about nonintervention and selves are losing credibility, [but] the people are more that’s fine, but in many ways Ron’s foreign policy can likely to speak out. The governments are still as anx- exist only in an academic sense.” I’m not necessarily ious to have wars as ever before for their various rea- interested in divining divisions between you and your sons, the commercial reasons and who knows what son here, but what of that kind of notion that there is a else; at the same time, I see their power weakening and purist libertarian ideal about nonaggression and non- the people speaking out. intervention, but that in both political practice and in For instance, the other day they polled the military geopolitical reality, it couldn’t actually work that way? and it was something like 72 percent of our military Ron Paul: Well, the only way you can find out is try it. It’s said, “Don’t go in [to Iraq and Syria] with boots on the true that pure nonaggression has never existed. Of ground.” Maybe reason recognized it, but where I got course, there were experiments with pure commu- the support during the last campaign came from the nism, too, and that didn’t do so well. But no, I don’t military. My top three donors were [members of] the think you have purities; no perfection. I think we have Air Force, the Army, and the Navy. Of course, for my to try to understand these views and the philosophy. If opponent the top three were banks. I always thought we come to the conclusion that we definitely think it’s that would’ve been interesting news, but that got by better for humankind to pursue [nonintervention], we the media. have to do our best to promote it. What is practical in reason: Whenever reason opens its doors in D.C., we fre- one generation might be impractical for the next. You quently have members of the military who are pass- just don’t know. Somebody might think it’s impractical ing through or taking 12 months in Washington in to be a noninterventionist right now. Well, what if we between tours. They will come over and say, in a very totally go broke and we’ve had such violation of our intense way, “I came to libertarianism because I saw civil liberties that the people rebel and want a decent what happened over there and I started listening to government over us? Maybe the most practical thing Ron Paul.” It’s a great, unremarked-on source of new would be to move in the direction of what they call libertarians out there. “impracticality” that we advocate. Who knows? Ron Paul: I don’t know if I can claim any credit, but if it’s I think false expectations are bad; I think you true I would feel good that I was able to get some peo- have to be realistic. But I do believe you have to know ple to think differently and not be ashamed of it. what you believe in, because our opposition is inter- It’s been drilled into us that if you’re not for these ventionists. They intervene in the economy, they inter- wars, that means you’re not for the military, you’re not vene in personal lives, and they intervene overseas. for the Constitution, you’re not for defending liberty, Republicans and Democrats, they endlessly argue and all these things. Yet because there weren’t enough about degrees. Should we bomb this week or next libertarians and conservatives to take this [anti-war] week? Should we use cruise missiles? Which company position—it was always the wild-eyed Jane Fonda lib- should we buy our helicopters from? It’s all details of eral left, they didn’t have the credibility and it was eas- intervention. The argument has to be whether inter- ier to attack. Today, though, it’s left up to us to defend vention is bad or good, and then you have to strive for this and make people feel good so we can win more the nonintervention. Because I think that is the only converts. We don’t want to chase the progressives chance we have to work for a truly peaceful and pros- away, and that’s why I like to talk to Dennis Kucinich perous world. r and Ralph Nader and these people, and I hope that

reason | January 2015 | 47

The Conservative Realist? Sen. Rand Paul on ISIS, the Middle East, and when America should go to war Interview by Matt Welch

On October 23, Sen. Rand Paul (R-Ky.) gave a major foreign policy address at the Center for the National Interest in which he declared himself a “conservative realist,” aligning himself with the tradition of Ronald Reagan and Caspar Weinberger. (See “The Case for Conservative Realism,” page 50) As he did in a simi- lar February 2013 speech at the conservative Heritage Foundation, the libertarian-leaning 2016 GOP presi- dential contender attempted to sell his foreign policy vision to fellow Republicans as a middle path between the near-absolute anti-intervention of his (unmen- tioned) father and the hyper-interventionism of the Washington Republican establishment. Reaction to the speech varied widely. Anti-tax cru- sader Grover Norquist, who has long advocated a less interventionist foreign policy, told reporters “I think I just heard Ronald Reagan speaking.” The lefty analysis site Vox enthused that “Rand Paul just gave one of the most important foreign policy speeches in decades” because Rand Paul: I see the airstrikes really as defending vital he “declared war on his own party.” The Hill described American interests, and that would be our embassy in the address as “anti-isolationist,” while neoconservative Baghdad as well as our consulate in Erbil. I’ve been Washington Post writer Jennifer Rubin scoffed that Paul was very critical of Hillary Clinton over the last couple of “still pretending he’s not an isolationist.” And so on. years for her lack of defense for Benghazi. I do think Of particular interest to libertarians looking to probe that it is a function of our national defense and our for- the senator’s foreign policy principles was his seemingly eign policy that when we do have embassies around dissonant support for U.S. air strikes against the Islamic the world, we do defend that presence. State (ISIS) and opposition to intervening in the ongoing reason: But then what would be the limiting factor on that? Syrian civil war. When Paul first backed hitting ISIS in Because we have embassies all around the world, obvi- mid-September, the national political press erupted in a ously, and bad things will happen from time to time. So spasm of articles accusing him of politically motivated flip- how do you prevent that from being a reason to launch flopping, a charge the senator testily rejects. airstrikes anytime some random group of bad guys Four days after the speech, reason Editor in Chief Matt gets within 15 miles of a place that you control? Welch spoke with Sen. Paul over the telephone to flesh out Rand Paul: I think actually if you look at the world, you’ll his notion of realism and probe some limiting principles on find very few of our embassies are actually under threat taking the nation to war. from war. There’s probably a list of 20 that may have some threat. Then you narrow the list down, there’s reason: You mentioned in your speech that America probably only I would think less than five. I would shouldn’t fight wars when there is no plan for victory. think Libya would have been one of those. And you’re still supporting airstrikes against ISIS. How One of the reasons I fault Hillary Clinton is for not do you visualize our plan for victory while doing air- recognizing and understanding that Libya probably

strikes against ISIS? would have been either at the top of the list or in the South in Charleston, cadets Citadel with Paul Rand page: Previous Images) Ellis/Getty (Richard 2013 November Carolina,

The Case for Conservative plan for victory. America shouldn’t outside the circle of “accepted” Islam Realism fight wars that aren’t authorized by the exists above and beyond our history of American people, by Congress. America intervention overseas. Rand Paul should and will fight wars when the ***​ consequences—intended and unin- The world does not have an Islam prob- The following is an edited excerpt from tended—are worth the sacrifice. lem. The world has a dignity problem, an address that Sen. Rand Paul gave in The war on terror is not over, and with millions of men and women across front of the Center for National Interest America cannot disengage from the the Middle East being treated as chat- on October 23. You can read the whole world. To contain and ultimately defeat tel by their own governments. Many of speech at reason.com. radical Islam, America must have con- these same governments have been Americans want strength and leader- fidence in our constitutional republic, chronic recipients of our aid. ship but that doesn’t mean they see our leadership, and our values. To When the anger boils over, as it did war as the only solution. Ronald Reagan defend our country we must under- in Cairo, the anger is directed not only had it right when he spoke to potential stand that a hatred of our values exists against Mubarak but also against the adversaries: “Our reluctance for conflict and acknowledge that interventions in United States because of our support should not be misjudged as a failure of foreign countries may well exacerbate for Mubarak. Some anger is blowback, will.” this hatred, but ultimately, we must be but some anger originates in an aber- After the tragedies of Iraq and Libya, willing and able to defend our country rant and intolerant distortion of religion Americans are right to expect more and our interests. As Reagan said: that wages war against all infidels. We from their country when we go to war. “When action is required to preserve can’t be sentimental about neutralizing America shouldn’t fight wars where the our national security, we will act.” that threat, but we also can’t be blind best outcome is stalemate. America Will they hate us less if we are less to the fact that drone strikes that inad- shouldn’t fight wars when there is no present? Perhaps. But hatred for those vertently kill civilians may create more

50 | reason | January 2015 top five most dangerous places to be in the world for ally is a very general principle that includes not only an American diplomat. Right now probably top of the libertarians but conservatives as well. list would be our consulate in Erbil and our embassy The question on whether to go to war, I think as in Baghdad. So I don’t think that is a generalized war- events have unfolded, or whether or not we have to rant to go to war anytime. In fact, I’ve also said that the have a response or a defense against ISIS, has changed president should have made the case to the Congress as circumstances have changed. I think when Syria and asked for authority to be involved in defense of came up a year ago, there were people, myself included, these embassies and in defense of this consulate. He who were loud voices against getting involved in that should have asked for permission from Congress the messy civil war because we felt like it would be coun- way the Constitution intends. terproductive, and that you actually might enable and reason: What happened to that notion? In September embolden ISIS and other radical jihadist groups in that 2013, when you were leading a ragtag army of bipar- war. I still maintain that. tisan backbenchers against the president, something My main reason for saying that we have to be like 140 congressmen signed a letter saying you can’t involved now is that you have a group that is attack- engage in airstrikes in Syria without coming to us first. ing and killing Americans—I think there is a reason- What happened to those people and that movement? able threat of [them] attacking our embassy or consul- Rand Paul: I think there are still a lot of them there. I think, ate—and also that has frankly declared war on us. Their though, there are two sorts of issues. One issue is how spokesmen have said that they will come when they you go to war. The other question is whether you go to are able and that they do consider that they’re at war war. with us. I think the how you go to war, that coalition is still reason: Do you see the Islamic State as more dangerous out there, of people who believe in the Constitution, and worthy of us coming up with a robust response

Previous page: Rand Paul with Citadel cadets in Charleston, South South in Charleston, cadets Citadel with Paul Rand page: Previous Images) Ellis/Getty (Richard 2013 November Carolina, that Congress declares war. I think that principle actu- than, say, you would have seen Al Qaeda or some of

jihadists than we eliminate. weapons are either indiscriminately project power but rather weakness. The truth is, you can’t solve a dig- given to “less than moderate rebels” Our national power is a function nity problem with military force. It was or simply taken from moderates by of the national economy. During the Sec. Robert Gates who warned that our ISIS. Six hundred tons of weapons have Reagan renaissance, our strength in foreign policy has become over-milita- been given to the Syrian rebels, inad- the world reflected our successful rized. Yes, we need a hammer ready, vertently creating a safe haven for ISIS. economy. but not every civil war is a nail. Although I support the call for Low growth, high unemployment, ***​ defeating and destroying ISIS, I doubt and big deficits have undercut our I support a strategy of air strikes against that a decisive victory is possible in the influence in the world. Americans have ISIS. Our airpower must be used to short term, even with the participation suffered real consequences from a rebalance the tactical situation in favor of the Kurds, the Iraqi government, weak economy. of the Kurds and Iraqis and to defend and other moderate Arab states. In the Free trade and technology should Americans and our assets in the region. end, only the people of the region can be the greatest carrot of our statecraft. Just as we should have defended our destroy ISIS. In the end, the long war Promoting free markets should be a consulate in Benghazi, so too we must will end only when civilized Islam steps priority. The only long-term strategy defend our consulate in Erbil and our up to defeat this barbaric aberration. that will change the world is fostering embassy in Baghdad. This brings me to the last principle successful capitalist economies that I don’t support arming the so-called I’d like to discuss today: we are only as increase living standards and connect

Sunni moderates in Syria, though. I strong as our economy. Admiral Mike people through trade. r said a year ago and I say it again now: Mullen, then the chairman of the Joint The ultimate sad irony is that we are Chiefs of Staff, put it succinctly: the forced to fight against the very weap- biggest threat to our national security ons we send to Syrian rebels. The is our debt. A bankrupt nation doesn’t

reason | January 2015 | 51 “Four years ago I was an ophthalmolo­ gist practicing in a small town. So my worldview might have been a little more narrow at the time because I really wasn’t thinking that an ophthal­ mologist had to have a foreign policy.”

their offshoots three or four years ago? Is there a quali- Rand Paul: Instead of looking at the nightmare scenario, tative difference in the type of organization that they I’d look at the opposite way: What can we do to try to have, do you think? prevent a nightmare scenario? I think there are several Rand Paul: I think it’s hard to compare and contrast. The things. one thing that many writers have talked about with One, I think that encouragement through dip- ISIS is that they control territory and they control lomatic means or through withholding or advanc- munitions and they control access to money, to capital. ing help to the Iraqi government is something that So in some ways they have a greater degree of organi- we ought to do. That would mean that it needs to be zation and ability to be a threat than others would. You a government that is inclusive as well as an army that could see how if there were a nation that were created is inclusive. If they’re an army of Shia, they’re never called the Islamic State that it would be basically the taking back any of those cities and [ISIS] will continue breeding ground for barbarity. So I think you can make to grow and it will basically be a divided Iraq. Maybe that argument. that is what ends up happening anyway. But the only You can make some of the argument that in 1998 chance for the national government to function is for it bin Laden was already sowing, and that him training to be inclusive of Sunnis. in Afghanistan was a threat even back into ’98. But to The other thing that could dramatically change give a qualitative or exact differentiation between the the situation on the ground and lessen the risk of ISIS— two, I don’t know if that’s helpful. to our consulate as well as to our embassy—would be I think there’s a pretty strong argument to be to see if we could be part of facilitating a peace agree- made that this group that took Mosul in a matter of ment between the Kurds and the Turks. The main thing hours, with Erbil not being that far away, that there that prevents the Turks from being involved—and they is some threat to that. As they grow stronger, can we could be involved in a big way—is that they’re not really with certainty believe that anyone is going to sure who they dislike worse; in fact, they probably dis- defend our embassy other than us in Baghdad? That’s like the Kurds worse than they dislike ISIS. So they’re the sad state of things over there. For 10 years we were watching things unfold on their border because the supporting the Iraqi people, supporting the govern- people in those towns on the border have been fight- ment, giving them arms, training them, but I have my ing them for 70 years, trying to take Turkish land and doubts as to whether they’re going to show up on the make it into a Kurdish homeland. I think there is a pos- day that ISIS comes rolling in to breach the walls of the sibility for there being a Kurdish homeland as part of embassy. Iraq. If that were to happen, and we were to support it, reason: That looks to me like a Saigon 1975 situation, you might find that the Turkish Kurds would maybe be where we’ve poured in $26 billion just in military aid interested in a peace deal that would allow them, the in Iraq to prop up the guys who gave the weapons to Turks, to be more helpful. the bad guys. What do you look at as a nightmare sce- None of this is easy, but I think there is a role for nario, of the things that could go horribly, horribly America to be involved with trying to help find a nego- wrong in the Middle East if we don’t reverse course or tiated end or settlement that involves people who live if things just don’t get better? there doing more to try to fix the problem.

52 | reason | January 2015 reason: You said a couple of different things which may nent politician—how has that, if at all, altered your very well be true but might seem to be at least at some worldview about U.S. foreign policy? tension with one another. The two that stuck out at me Rand Paul: Some of it is, four years ago I was an ophthal- were “the war on terror is not over” and “we can’t have mologist practicing in a small town. So my world- perpetual war.” How do you square that circle, or how view might have been a little more narrow at the time do you even visualize an approach that can contain because I really wasn’t thinking that an ophthalmolo- both of those truisms? gist had to have a foreign policy. Rand Paul: Understanding that people over there dislike us I’ve had some principles that I’ve had probably for for a variety of reasons. Sometimes they dislike us for a long time. They’re principles that we should obey the our policy and our presence there. But sometimes they law in foreign policy, that the Constitution is impor- also dislike us just because they have an aberrant and tant, that our Founding Fathers were very explicit that bizarre notion of religion that hates people that are not it would be difficult to go to war and they would have part of the true religion. So, I think it is a combination to pass through Congress and that’s a messy process, of both. that it probably would be infrequent because you have I think [we also have to understand] that per- to have consensus when it happens. That remains a petual war is not going to win. The long war only steadfast belief. wins when civilized Islam decides to stamp out this The second part, though, is not the process of how aberrant form. [Hernando] de Soto had an article in it occurs, but the facts of it. I think that’s something The Wall Street Journal a couple of weeks ago that we that good people can debate, but it involves facts and quoted from [in my speech]. In it he talked about the it involves presentation of whether or not something experience in Peru, where they did build up their mili- is in our national security interest or a vital American tary presence, they did recruit citizens to be involved interest. I think that’s where the real debate needs to in it, but they also recognized that the recruitment to occur. One is how you do it: The Congress should do the Shining Path [terrorist group] was often one where it, not the president unilaterally. But then when you people were outside the economy because of govern- get to Congress, then it is a debate over the facts, and ment obstruction. So they made it much easier to incor- sometimes reasonable people might disagree on when porate people from the nonofficial marketplace into an exactly a vital American interest is broached. official marketplace, meaning making it easier to get But the thing that we should do is not just make licenses, easier to sell your stuff on the corner. In doing a conclusion [without] a debate. I think probably too that, he felt that there was a great deal of lessening of often in the past several decades politicians have sim- the impetus for people to join the Shining Path. I think ply said, “Oh, it’s in our national interest.” Well, that’s [the reformers] have largely won that war. a conclusion, and that skips the debate. Part of the rea- He studied the problem in Egypt, and I like the son to come into Congress is that then there would be way that he looked at the man who committed self- a full-throated debate, hearing the facts, listening to immolation in Tunisia. He wasn’t a religious radical. it, discussing whether or not involvement in a region He wasn’t really looking so much for religious coun- around the world is in our vital interest. But hav- terbalance; he was looking basically for economic free- ing skipped that step is a serious problem, and I will dom. [De Soto] mentioned how much off-the-books continue to push when Congress comes back that it is economy there is in Egypt because of the crony capital- our obligation, it is our role to vote on this. Although it ism, that if you can get that as part of the official mar- seems a day late and a dollar short to do it four months ketplace then the economy booms and things become after the campaign has commenced. more secure, title becomes more certain, and really the reason: Shifting gears a little bit here, you’ve been digging impetus for terrorism [recedes]. deep in the well of George Kennan, and you’ve read So there are other ways to fight other than perpet- enough of him by now to realize that George Kennan ual war, is what I’m trying to say. contained multitudes throughout a very long and sto- reason: How have your travels to the region, your term in ried career. He was a huge late-in-life critic of expand- office, even the process of running—or, I’m sorry, not ing NATO, which a lot of libertarians are against and for running for president, just being a nationally promi- whatever reasons I am not. Do you agree with that bit

reason | January 2015 | 53 Money and Banking: “Perpetual war is not going to win. What Everyone Should Know The long war only wins when civilized Taught by Professor Michael K. Salemi  
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   ED O T FF 1. The Importance of Money aberrant form.” I E IM R 2. Money as a Social Contract L 3. How Is Money Created? 4. Monetary History of the United States 70% 5. Local Currencies and Nonstandard Banks 9 O 1 6. How Infl ation Erodes the Value of Money R off Y 7. Hyperinfl ation Is the Repudiation of Money D R ER A 8. Saving—The Source of Funds for Investment BY JANU 9. The Real Rate of Interest of Kennanism? Do you think we expanded NATO too don’t have the exact numbers, but it’s considerably less 10. Financial Intermediaries much? than it was 20 years ago. I think there is definitely an 11. Commercial Banks 12. Central Banks Rand Paul: There are two sides to the argument. One side argument to be made that we don’t have to have hun- 13. Present Value says, well if you put them in NATO then Russia won’t dreds of thousands of troops forward-deployed, but 14. Probability, Expected Value, and Uncertainty attack them because they’ll know that we’ll defend 15. Risk and Risk Aversion that we should have good relations with allies, good 16. An Introduction to Bond Markets them. The other side says, you put them in NATO and places to be at port with allies, and there will still be 17. Bond Prices and Yields you provoke the bear and you end up having more war. presences in certain places around the world. 18. How Economic Forces A¨ ect Interest Rates 19. Why Interest Rates Move Together I think some of it depends on exactly what geography But our goal should not be to be involved in every 20. The Term Structure of Interest Rates we’re talking about. civil war around the world, but to actually try to be able 21. Introduction to the Stock Market 22. Stock Price Fundamentals We have included the Baltic nations, but we did to defend our interests without being drawn into every 23. Stock Market Bubbles and Irrational Exuberance not include Georgia or Ukraine, I think, because Geor- war. 24. Derivative Securities 25. Asymmetric Information gia and Ukraine had historically been part of Russia for reason: I’ll end on politics. [In] 2007 it was basically Ron 26. Regulation of Financial Firms a long, long time. I think it was not advisable to put Paul versus nine uber-hawks; 2012, the field starts to 27. Subprime Mortgage Crisis and Reregulation them into NATO, and at this point in time it is still not look a little bit different, people questioning the Iraq 28. Interest Rate Policy at the Fed and ECB 29. The Objectives of Monetary Policy advisable. The Baltic nations are part of NATO, and war, at least a little bit. How do you assess the compara- 30. Should Central Banks Follow a Policy Rule? I think that is what it is. We have to approach things tive broad strains of the foreign policy debate in the 31. Extraordinary Tools for Extraordinary Times 32. Central Bank Independence from where we are, and not from where we want to Republican Party heading into the 2016 election? 33. The Foreign Exchange Value of the Dollar be, because I think once people become part of NATO, Rand Paul: I think there are two audiences. The audience in 34. Exchange Rates and International Banking 35. Monetary Policy Coordination there’s not an undoing part of that process. Washington is basically in favor of involvement every- 36. Challenges for the Future reason: Speaking of the world as it is, we are extended into where, all the time. At the top of both parties, often any number of hundreds of bases and troop deploy- they’re for indiscriminate involvement, I think. But ments in Korea and Japan and the usual litany that I Money and Banking: if you talk to the American people, in the Republican Learn the Secrets of What Everyone Should Know don’t need to bore us both with. To what extent, even Party or the Democratic Party, I think you’ll find that, Course no. 5630 | 36 lectures (30 minutes/lecture) as maintaining a very robust defense, to what extent even within the rank and file of the military, there’s Money and Banking can or should America withdraw some of its reach or less enthusiasm for being involved in every civil war Money and banking drive financial institutions and political systems. SAVE UP TO $275 just numbers in places that are relatively peaceful? around the world, and that people out in the country- And they’re indispensable in both your daily financial transactions and Rand Paul: I think the world we live in, it is no longer prob- side recognize that we have problems here at home: your most essential long-term plans. ably as necessary to have large amounts of land troops that the economy is still struggling, that we have to Get a working knowledge of the financial world with the 36 lectures DVD $374.95 NOW $99.95 in different places. Is it still necessary to have air bases defend the country and that we need strong leadership. of Money and Banking: What Everyone Should Know, in which +$15 Shipping, Processing, and Lifetime Satisfaction Guarantee CD $269.95 NOW $69.95 and places to refuel and to have our presence out there I think the vast majority of people are not for economist and professor Michael K. Salemi leads you on a panoramic +$10 Shipping, Processing, and Lifetime Satisfaction Guarantee as a force for open commerce? For example, since the sending 50,000 troops back into Iraq at this point. exploration of our monetary and financial systems. You’ll investigate Priority Code: 105555 beginning of the republic we thought there was a role But the vast majority is also for standing up and say- how money is created by commercial and central banks; the psychology of stock market “bubbles”; why the value of the dollar depends on For 24 years, The Great Courses has brought the for not letting pirates attack our ships. Is there a role ing to barbarians that we’re not going to let you behead international interest rates; and so much more. world’s foremost educators to millions who want to for us around the world? I would say yes. our citizens. So I think it’s a little bit of both. I think if go deeper into the subjects that matter most. No Over time, even without having a lot of libertarian you’re looking at audiences in Washington you’ll find O¨ er expires 01/19/15 exams. No homework. Just a world of knowledge available anytime, anywhere. Download or stream influence, I think cost influences downsizing greatly. that there’s an opinion that doesn’t really reflect the TG
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 to your laptop or PC, or use our free mobile apps The number of folks that are stationed in Europe, I American opinion that well. r for iPad, iPhone, or Android. Over 500 courses 1-800-832-2412 available at www.TheGreatCourses.com. 54 | reason | January 2015 Money and Banking: What Everyone Should Know Taught by Professor Michael K. Salemi  
  
 
   ­  TIME 
   ED O T FF 1. The Importance of Money I E IM R 2. Money as a Social Contract L 3. How Is Money Created? 4. Monetary History of the United States 70% 5. Local Currencies and Nonstandard Banks 9 O 1 6. How Infl ation Erodes the Value of Money R off Y 7. Hyperinfl ation Is the Repudiation of Money D R ER A 8. Saving—The Source of Funds for Investment BY JANU 9. The Real Rate of Interest 10. Financial Intermediaries 11. Commercial Banks 12. Central Banks 13. Present Value 14. Probability, Expected Value, and Uncertainty 15. Risk and Risk Aversion 16. An Introduction to Bond Markets 17. Bond Prices and Yields 18. How Economic Forces A¨ ect Interest Rates 19. Why Interest Rates Move Together 20. The Term Structure of Interest Rates 21. Introduction to the Stock Market 22. Stock Price Fundamentals 23. Stock Market Bubbles and Irrational Exuberance 24. Derivative Securities 25. Asymmetric Information 26. Regulation of Financial Firms 27. Subprime Mortgage Crisis and Reregulation 28. Interest Rate Policy at the Fed and ECB 29. The Objectives of Monetary Policy 30. Should Central Banks Follow a Policy Rule? 31. Extraordinary Tools for Extraordinary Times 32. Central Bank Independence 33. The Foreign Exchange Value of the Dollar 34. Exchange Rates and International Banking 35. Monetary Policy Coordination 36. Challenges for the Future

Money and Banking: Learn the Secrets of What Everyone Should Know Money and Banking Course no. 5630 | 36 lectures (30 minutes/lecture) Money and banking drive financial institutions and political systems. SAVE UP TO $275 And they’re indispensable in both your daily financial transactions and your most essential long-term plans. Get a working knowledge of the financial world with the 36 lectures DVD $374.95 NOW $99.95 of Money and Banking: What Everyone Should Know, in which +$15 Shipping, Processing, and Lifetime Satisfaction Guarantee CD $269.95 NOW $69.95 economist and professor Michael K. Salemi leads you on a panoramic +$10 Shipping, Processing, and Lifetime Satisfaction Guarantee exploration of our monetary and financial systems. You’ll investigate Priority Code: 105555 how money is created by commercial and central banks; the psychology of stock market “bubbles”; why the value of the dollar depends on For 24 years, The Great Courses has brought the international interest rates; and so much more. world’s foremost educators to millions who want to go deeper into the subjects that matter most. No O¨ er expires 01/19/15 exams. No homework. Just a world of knowledge available anytime, anywhere. Download or stream TG
C
.±/4
 to your laptop or PC, or use our free mobile apps for iPad, iPhone, or Android. Over 500 courses 1-800-832-2412 available at www.TheGreatCourses.com. Reason TV Sex, Spice, and Small-Town Texas Justice A rogue prosecutor makes the war on drugs personal. Anthony L. Fisher

On the morning of May 7, a law enforcement team headed by the Drug Enforcement Administration (DEA) broke down the door of The Purple Zone, a smoke shop in the small, rural community of Alpine, Texas, owned by 29-year-old Ilana Lipsen. With their weapons drawn, officers pointed the security cameras at the wall and tore apart the store. Lipsen’s sister, Arielle, who happened to be on the premises, was pinned to the ground by the butt of one agent’s rifle, according to witnesses. Next, DEA officers raided a nearby apartment also owned by Lipsen. When her tenant, Nicholas Branson, asked to see a search warrant (which they didn’t have), a gun-wielding agent reportedly replied, “What are you, a fucking lawyer?” No illegal substances turned up at County District Attorney Rod Ponton ing slowly by her house “like he was either the store or the apartment. is Lipsen’s jilted ex-lover, and has stalking me.” been carrying out a personal vendetta After Ponton was elected dis- Why did the government go after The against her for the past few years. He trict attorney for the county that Purple Zone? The DEA says the raid prompted federal law enforcement includes Alpine, he started using state was one in a series of nationwide agents to pursue a groundless and resources to go after the smoke shop enforcement actions carried out that expensive crusade against her smoke owner, publicly accusing her of “sin- day with the goal of taking down pur- shop, turning life for Lipsen and gular incorrigibility” and “poisoning , and local police raid The Purple Zone (Tom Cochran); Cochran); (Tom Zone The Purple raid police , and local veyors of synthetic drugs who funnel her family into a living hell. (Ponton the youth of the town.” DHS their proceeds to Middle Eastern ter- declined to be interviewed by reason, rorists. It also says that Lipsen was a and denied the charge.) The first raid on The Purple Zone was Krainin) (Todd Texas Alpine, Shop, Smoke Zone The Purple Cochran); (Tom arrest DEA prime suspect. But as a Jew and avid Shortly after moving to Alpine at in 2012, when police seized “spice Patrol, , Border DEA supporter of Israel, she hardly fits the age 18, Lipsen had a brief affair with packets,” or synthetic cannabinoids, profile of an Islamic terrorism finan- Ponton, who at the time was a lawyer which Lipsen sold as potpourri in cier. in private practice. After their tryst the store’s incense section. “You Arielle Lipsen’s neck after neck Lipsen’s Arielle A more likely reason: Brewster ended, she says she caught him driv- can buy these products online or Krainin) (Todd Lipsen Ilana owner, Zone Purple top: from Clockwise

56 | reason | January 2015 in any gas station or smoke shop arrested and brought up on felony charges stemming from both raids in in Texas,” says Lipsen. Though lab charges. exchange for serving no jail time. To tests revealed no illegal substances, date, she’s lost over $100,000 on legal Ponton later moved to indict Lipsen In 2014, Ponton convinced the DEA to bills and seized property. Now she’s on the grounds that the Controlled carry out another raid on The Purple ready to move on with her life and Substance Analogue Enforcement Zone. When the bust turned violent, is selling The Purple Zone. Of her , and local police raid The Purple Zone (Tom Cochran); Cochran); (Tom Zone The Purple raid police , and local

DHS Act of 1986 makes it illegal to sell and the DEA attempted a cover-up. At the relationship with the town of Alpine, possess substances that are “similar behest of the U.S. attorney’s office, a Lipsen says: “I love it here, but it’s arrest (Tom Cochran); The Purple Zone Smoke Shop, Alpine, Texas (Todd Krainin) (Todd Texas Alpine, Shop, Smoke Zone The Purple Cochran); (Tom arrest to controlled substances.” The basis judge strong-armed Lipsen into sign- become toxic.” r DEA , Border Patrol, Patrol, , Border of the indictment: three chemicals ing a letter absolving the agency of DEA in the potpourri that were legal in any wrongdoing by asserting that she Anthony Fisher ([email protected]) is a producer at Reason TV. To see a video version Texas at the time they were seized and her sister had attacked the DEA of this story, go to reason.com. but would be banned by the federal officers first. Arielle Lipsen’s neck after neck Lipsen’s Arielle Purple Zone owner, Ilana Lipsen (Todd Krainin) (Todd Lipsen Ilana owner, Zone Purple top: from Clockwise government a year later. Lipsen was Lipsen agreed to plead guilty to

reason | January 2015 | 57

Culture and Reviews

When Judicial Activists Switched Sides Deference to elected majorities was a Progressive ideal long before modern conservatives picked up the baton. Damon Root

On July 1, 1987, President Ronald would be forced into back-alley once declared, “even if it will take us Reagan introduced the American abortions, blacks would sit at seg- to hell.” people to the man he had selected to regated lunch counters…and the Bork’s Democratic opponents, replace retiring Justice Lewis Powell doors of the Federal courts would meanwhile, followed Kennedy’s on the U.S. Supreme Court. Robert be shut on the fingers of millions of example and zeroed in on the ways Bork “is recognized as a premier citizens for whom the judiciary is that Bork’s jurisprudence threatened constitutional authority,” Reagan often the only protector of the indi- to upset the political balance. “As I announced, with the nominee stand- vidual rights that are the heart of our understand what you have said in ing by his side. A former solicitor democracy.” the last 30 minutes,” said Judiciary general of the United States, a distin- The basic script for Bork’s con- Committee Chairman Joseph Biden guished former professor of law at firmation process had been set. (D-Del.), who was then questioning Yale University, and a sitting judge Following Reagan’s lead, Bork’s sup- Bork about whether the Constitution on the prestigious U.S. Court of porters characterized him as the heir secured a right to privacy, “a State Appeals for the District of Columbia to a long and noble tradition rooted legislative body, a government, can, Circuit, Bork did indeed come well in the judicial deference favored if it so chose, pass a law saying mar- qualified for the position. Further- by turn-of-the-century Progres- ried couples cannot use birth control more, Reagan continued, Bork is sives. “I would ask the committee devices.” “widely regarded as the most promi- and the American people to take Bork would object to that char- nent and intellectually powerful the time to understand Judge Bork’s acterization of his views, but there advocate of judicial restraint,” the approach to the Constitution,” said was no denying that Biden had a

Images) idea that judges should defer to the Republican Sen. Bob Dole of Kansas. point. If the Supreme Court had fol- AP will of the majority and refrain from “That approach is based on ‘judicial lowed Bork’s deferential approach striking down most democratically restraint’…Now, Judge Bork did not to legislative determinations in the enacted laws. As a justice, Reagan invent this concept,” Dole continued. 1965 case of Griswold v. Connecticut, concluded, Robert Bork “will bring “It has been around for a long time. it never would have invalidated that credit to the Court and his col- One of the most eloquent advocates state’s ban on the use of birth control leagues, as well as to his country and was Oliver Wendell Holmes.” devices by married couples. Simi- the Constitution.” Dole picked a good example. larly, if the Court had followed Bork’s Less than an hour later, Sen. Appointed in 1902, Justice Oliver approach eight years later in Roe v. Edward Kennedy of Massachusetts, Wendell Holmes was one of the Wade, Texas’ anti-abortion restriction a prominent liberal Democrat, took Supreme Court’s earliest and most would still be on the books. to the floor of the Senate to offer a influential advocates of judicial def- But Bork’s supporters also had a very different take on Reagan’s pick. erence. “A law should be called good point. Reagan and Dole were right: “Robert Bork’s America,” Kennedy if it reflects the will of the dominant Bork was a principled advocate of

Robert Bork at his confirmation hearing, September 1987 (Bettmann/Corbis/ 1987 September hearing, confirmation his at Bork Robert declared, “is a land in which women forces of the community,” Holmes judicial minimalism. He not only

reason | January 2015 | 59 Briefly Noted opposed what he saw as the Court’s liberal made with oil rather than milk fat. activism in Griswold and Roe but also rejected The dairy industry viewed the prod- what he saw as the conservative activism of uct as a competitor and lobbied suc- Lochner v. New York, the famous 1905 case in cessfully for its restriction. Adopting which the Supreme Court struck down a state a deferential posture, the Supreme restriction on economic liberty (over the dissent Court concluded that Congress must of Justice Holmes). Indeed, during his confir- have had its reasons for passing the mation hearings, Bork took pains to remind Filled Milk Act and voted to sustain his interrogators “that there was a time when the ban. When it came to “regula- the word liberty in the 14th Amendment was tory legislation affecting ordinary used by judges to strike down [Progressive] commercial transactions,” the Court How the DEA Stole legislation.” Those conservative and libertarian declared in United States v. Carolene Christmas judges, Bork argued, “were wrong because they Products Co., “the existence of facts If Santa Claus existed, the feds were using a concept to reach results they liked, supporting the legislative judgment would probably mistake the and the concept did not confine them, and they is to be presumed.” operation for a drug cartel. So should not have been using that concept.” Lawyers today know this goes the premise of St. Nic, It was a sentiment worthy of Justice Holmes approach as the “rational-basis test.” Inc. (Southern Yellow Pine), himself. Yet not only did Bork’s ode to legal Essentially, it tells judges to give law- S.R. Staley’s comic thriller Progressivism fail to win him any additional makers the benefit of the doubt and about a Drug Enforcement Democratic supporters, it almost certainly scrutinize a law only if it seems to Administration operation that helped doom his already troubled nomina- lack any conceivable connection to nearly takes Christmas down. tion, which eventually went down to defeat in a legitimate government interest. In Staley, a frequent contributor the Senate by a vote of 58–42. That’s because Carolene Products, because Congress to reason, teaches economics American liberals had long ago abandoned the did have a legitimate interest in mon- at Florida State when he isn’t sort of all-encompassing judicial deference itoring the interstate milk market writing novels. He draws on espoused by Oliver Wendell Holmes. Instead, and because the regulation in ques- both careers when describ- modern progressives like Kennedy and Biden tion did not appear to be a completely ing NP Enterprises, an Arctic took their cues from a new breed of liberal nonsensical way to advance that software firm and toy distribu- jurist, best represented by figures such as Earl interest, the Supreme Court made no tion network run by one Nicole Warren and William O. Douglas. Those justices attempt to determine whether or not Klaas. Nicole, the fourth Klaas had led the mid-20th-century Supreme Court Congress had any verifiable scientific to run the family business, through what has been dubbed a “rights revolu- evidence for declaring filled milk to relies heavily on the skills of tion,” a busy stretch during which government be “injurious to the public health.” the world’s little people, for actions were overturned in the name of voting Had the justices looked further, they whom the company’s polar rights, privacy rights, and many other rights might have discovered that filled community is a haven against besides. Put differently, in the half century that milk was a perfectly safe (and afford- the discrimination they face fell between the presidencies of Franklin Roo- able) alternative to whole-fat milk, down south. sevelt and Ronald Reagan, the American left as countless consumers could have Their cash transactions had learned to stop worrying and love judicial attested. catch the government’s eye, activism. Armed with the rational-basis and soon a federal agent is test, the Supreme Court proceeded convinced he’s found a nest Footnote Four to grant overwhelming deference to of narco-traffickers. He hasn’t The story of this sweeping liberal transfor- a range of regulatory measures. In spotted any actual drugs, but mation begins in the most humble of places: the 1948 case of Goesaert v. Cleary, for the pattern looks unmistak- a footnote. In 1938 the Supreme Court con- example, the Court upheld a Michi- able. And then a bona fide War sidered the constitutionality of a federal law gan law forbidding women from on Christmas begins. forbidding the interstate shipment of so-called working as bartenders unless they

—Jesse Walker filled milk, which is basically a milk product happened to be “the wife or daugh- detail) Nic, Inc. (cover St.

60 | reason | January 2015 ter of the male owner” of a licensed normally employed by citizens to for the presidency. One year later, establishment. “We cannot cross- vindicate their rights. Finally, “preju- Hand himself appeared on the Pro- examine either actually or argumen- dice against discrete and insular gressive ticket as a candidate for tatively the mind of Michigan legis- minorities” may also require a “more the chief judgeship of New York’s lators nor question their motives,” searching judicial inquiry.” Accord- highest court. In 1914, he joined declared Justice Felix Frankfurter, a ing to Footnote Four, in other words, Herbert Croly in founding The New leading Progressive jurist. “Since the the Supreme Court need not after all Republic, where he regularly contrib- line they have drawn is not without commit itself to the practice of judi- uted articles and editorials until his a basis in reason,” he continued, “we cial restraint in all cases. appointment to the 2nd Circuit in cannot give ear to the suggestion that To the members of the burgeon- 1924, where he spent the next three the real impulse behind this legisla- ing civil rights movement, the call for decades. When he died in 1961, The tion was an unchivalrous desire of enhanced judicial scrutiny on behalf New York Times eulogized him as “the male bartenders to try to monopolize of “discrete and insular minorities” greatest jurist of his time.” the calling.” sounded exactly right. In fact, the In February 1958, at the age of Yet at the same time that the NAACP Legal Defense Fund was then 87, Hand returned to Harvard to Court was committing itself to this asking the courts to breathe real life deliver the Oliver Wendell Holmes near-total submission to lawmakers into the post-Civil War 14th Amend- Lecture, an annual event featuring Robert Bork refurbished ment by securing equal treatment a distinguished legal speaker. The under the law for African Americans. theme of his remarks was the funda- the Progressive case for That strategy famously paid off with mental illegitimacy of judicial review judicial restraint into a the Supreme Court’s historic 1954 and what he saw as the troubling weapon he might wield ruling in Brown v. Board of Education rise of liberal judicial activism. He on behalf of conservative of Topeka, Kansas, which found racial began with a critique of the “patent segregation in public schools to be usurpation” whereby the Court had legal goals. “inherently unequal” and therefore transformed itself into “a third leg- on the economic front, the justices unconstitutional. islative chamber.” As he explained, were testing the bounds of greater Brown inspired a harsh backlash such activism was inappropriate judicial action in other realms. throughout the country, with segre- no matter what value was at stake. As justification for this bifurcated gationists denouncing it as “judicial “I can see no more persuasive rea- approach, they pointed back to the tyranny.” But Brown also had its crit- son for supposing that a legislature fine print in the 1938Carolene Prod- ics on the left, a fact that is sometimes is a priori less qualified to choose ucts case. In Footnote Four of that forgotten today. Foremost among between ‘personal’ than between opinion, Justice Harlan Fiske Stone them was Learned Hand, recently economic rights,” he announced. As explained that while the courts must retired from his position as chief for the constitutional protections now presume all economic regula- judge of the U.S. Court of Appeals spelled out in the Bill of Rights and tions to be constitutional, “more for the 2nd Circuit. Considered by the 14th Amendment, “we may read exacting judicial scrutiny” would many legal observers to be the great- them as admonitory or hortatory, still be appropriate in other types of est judge never to sit on the Supreme not definite enough to be guides on cases. For example, the Court should Court, Hand was an undisputed concrete questions.” In Hand’s view, not automatically defer to a law that icon of the Progressive movement, a the Constitution did not give judges appeared to violate “a specific pro- revered jurist whose career stretched license to go meddling around with hibition of the Constitution, such as back to the great battles over the role the democratic process. those of the first ten amendments.” of the courts that raged during the Turning next to Brown v. Board In addition, Stone wrote, judicial def- Lochner era. of Education, Hand argued that the erence would be equally inappropri- Born in 1872, Hand studied law justices in that case had substituted ate when the law at issue appeared to at Harvard and went on to serve as a their own values for those of the impact the right to vote or to other- key adviser to Theodore Roosevelt’s Kansas authorities. That, he said, was wise impede the “political processes” 1912 Progressive Party campaign precisely what conservative justices

reason | January 2015 | 61 Briefly Noted had previously done in order to strike down the Frankfurter got his first taste of economic reforms they disapproved of during the Court’s new direction in a pair the Progressive and New Deal periods. Brown, of cases dealing with the question of he informed his increasingly disquieted audi- whether public schools may require ence, was guilty of the same judicial sins that their students to salute the American “An intriguing account of judicial and economic had marred Lochner. flag as part of a daily exercise that To conclude, Hand made a personal plea for included the Pledge of Allegiance. policy re ecting controversies within conservatism the Court to adopt the method of judicial defer- The first case originated in Penn- over civil rights and other issues.” —KIRKUS REVIEWS ence he had been championing for nearly half sylvania, where two children, both a century. “For myself,” he said, “it would be practicing Jehovah’s Witnesses, had most irksome to be ruled by a bevy of Platonic refused to salute the flag and were Manhattan’s Implosions Guardians, even if I knew how to choose them, therefore expelled. Their father chal- JUDICIAL ACTIVISM V. JUDICIAL RESTRAINT Imagine the best elements of which I assuredly do not. If they were in charge, lenged the law on their behalf, argu- the hit AMC series Mad Men: I should miss the stimulus of living in a society ing that it interfered with the chil- the attention to period detail where I have, at least theoretically, some part in dren’s religious liberty. FROM REASON SENIOR EDITOR DAMON ROOT of a forgotten America, work- the direction of public affairs.” Frankfurter thought it was an place/managerial jujitsu, hot In time, those eloquent words would come open-and-shut victory for the local ladies kissing (sometimes to be celebrated as one of the most power- school board. “The courtroom is not each other!), and a secret so ful statements ever made in favor of judicial the arena for debating issues of edu- profound that it eventually restraint. But that eloquence did little to make cational policy,” he declared for the “A riveting account of the raging eats away at the lives of all the Hand’s message any easier to swallow in 1958, majority in the 1940 case of Miners- debate over the future of our major characters. Now transfer especially for the many young liberals who had ville School District v. Gobitis. If a that rich, soapy context to… cheered Brown as among the Supreme Court’s family of Jehovah’s Witnesses (or Constitution… Root reveals the inside World War II–era Los Alamos? finest rulings. As Hand biographer Gerald any other sect) wanted to secure story behind the surging movement A little-viewed but increas- Gunther later put it, “Warren Court admirers accommodations for their religious to restore constitutionally-limited ingly praised drama airing could dismiss the most vocal critics of the Court beliefs, they should do so “in the on WGN transplants TV’s 21st- as extremists; yet here was the nation’s most forum of public opinion and before government. I loved this book.” century storytelling model to highly regarded judge…apparently joining the legislative assemblies rather than to —RANDY E. BARNETT, Carmack Waterhouse Professor of the desperate race to build the Court’s enemies.” transfer such a contest to the judicial Legal Theory, Georgetown University Law Center, and Director, first atomic bomb.Manhattan , arena.” Georgetown Center for the Constitution whose first season closed with Into the Thicket Yet just three years later, thanks a flourish in October, conveys Hand was not the only Progressive veteran in part to a change in the Court’s the patriotic urgency and to line up against the new liberal order. Felix composition, Frankfurter found “I not only learned a lot from Damon almost Prisoner-like paranoia Frankfurter, a Harvard law professor, protégé himself on the losing side of a nearly of the Manhattan Project, of Oliver Wendell Holmes, and New Deal identical dispute in West Virginia Root’s rich and compelling analysis particularly the dysfunction adviser to President Franklin Roosevelt, had State Board of Education v. Barnette. of the clash between the warring plaguing the underdog implo- been rewarded for his accomplishments when This time, the Supreme Court ruled legal traditions but was thoroughly sion research group, led by a FDR elevated him to the Supreme Court in 1939. in the students’ favor. character portrayed by a rivet- But then something unexpected happened. As Frankfurter was furious. “This entertained along the way.” ing John Benjamin Hickey. By his colleagues began to apply Footnote Four Court’s only and very narrow func- —DAVID T. BEITO, co-author of Black Maverick: T.R.M. focusing on the unpredictable scrutiny in cases dealing with civil liberties tion is to determine whether, within Howard’s Fight for Civil Rights and Economic Power compromises and shortcuts and voting rights, Frankfurter, for the first time the broad grant of authority vested great scientists flirted with, the in his professional life, found himself out of in legislatures, they have exercised America) show becomes a meditation on a judgment for which reasonable

step with the liberal consensus. By the time WGN the elusiveness of integrity and he retired in 1962, many young reformers had justification can be offered,” he a cautionary reminder that war come to regard him as one of the Supreme declared in dissent. Pointing to his (courtesy is hell on the homefront, too. Court’s leading reactionaries, and not as any own identity as a Jewish American,

—Matt Welch sort of progressive at all. Frankfurter tartly noted that while Manhattan AVAILABLE EVERYWHERE NOVEMBER 4, 2014 62 | reason | January 2015 $28.00 HARDCOVER/$14.99 EBOOK “An intriguing account of judicial and economic policy re ecting controversies within conservatism over civil rights and other issues.” —KIRKUS REVIEWS JUDICIAL ACTIVISM V. JUDICIAL RESTRAINT FROM REASON SENIOR EDITOR DAMON ROOT

“A riveting account of the raging debate over the future of our Constitution… Root reveals the inside story behind the surging movement to restore constitutionally-limited government. I loved this book.” —RANDY E. BARNETT, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director, Georgetown Center for the Constitution

“I not only learned a lot from Damon Root’s rich and compelling analysis of the clash between the warring legal traditions but was thoroughly entertained along the way.” —DAVID T. BEITO, co-author of Black Maverick: T.R.M. Howard’s Fight for Civil Rights and Economic Power

AVAILABLE EVERYWHERE NOVEMBER 4, 2014 $28.00 HARDCOVER/$14.99 EBOOK Briefly Noted he knew a thing or two about the plight of reli- a democratic society like ours,” gious minorities, that knowledge gave him no Frankfurter maintained, “relief must license as a judge to stamp his own feelings on come through an aroused popular the Constitution. “As appeal from legislation to conscience that sears the conscience adjudication becomes more frequent, and its of the people’s representatives,” not consequences more far-reaching, judicial self- through the courts. restraint becomes more, and not less, impor- It was not an opinion destined tant,” he warned. to win Frankfurter any new fans on Frankfurter would repeat that warning with the American left. Indeed, as legal even greater volume two decades later in what scholar Noah Feldman recently put turned out to be his final opinion as a justice, a it, “With time, it came to seem impos- The Internet Martyr long and bitter dissent from the landmark 1962 sible that a justice who opposed Aaron Swartz was one of the decision in Baker v. Carr. The case dealt with judicial enforcement of voting rights most promising minds of the the thorny issue of how a state government could be considered liberal” at all. Internet Age, but his techno- apportions its legislative districts in the wake What changed? Certainly not logical and political talents of a census. It originated in Tennessee, where Frankfurter—he remained faithful were abruptly interrupted when the plaintiffs charged the secretary of state with to the majoritarian jurisprudence the activist, facing the threat of stacking the deck in favor of rural voters at the of his youth. Back in 1924, outraged decades in prison, killed him- expense of the state’s growing urban popula- over the use of the 14th Amendment self in January 2013. tion. According to the challengers, the Tennes- to overturn economic regulations, The Internet’s Own Boy see government was violating the basic prin- he had called for the repeal of the documents Swartz’s enormous ciple that the Supreme Court would ultimately Due Process Clause in an unsigned contributions to information recognize as “one person, one vote.” Writing for editorial written for The New Repub- freedom on the Web. He got the majority, Justice William Brennan agreed. lic. Now, in the twilight of Jim Crow, rich quick helping create the While he did not pass judgment on the consti- Frankfurter was still urging the social media site Reddit, but tutionality of Tennessee’s current apportion- federal courts to butt out of state he had little interest in money, ment scheme, Brennan made it clear that the affairs and let citizens and their and turned to political activ- challengers had every right to bring suit and elected representatives chart their ism, fighting speech-curtailing that the federal courts were within their rights own political futures. He saw Foot- bills such as the Stop Internet to settle the matter in a future case. “The right note Four as an escape hatch, one Piracy Act. Swartz examined asserted is within the reach of judicial protec- that let federal judges roam free once the relationship between aca- tion under the Fourteenth Amendment,” he more to strike down state and federal demic researchers, corporate held. Two years later, in Reynolds v. Sims, Chief legislation. funding, and government. In Justice Warren went further and nullified Ala- doing so, he downloaded mil- bama’s lopsided districting plan. ‘Penumbras, Formed by lions of academic articles (a In a previous redistricting case, Felix Emanations’ crime comparable to taking too Frankfurter had urged the Court to avoid The growing tension between Pro- many books out of the library) the matter as a basic act of judicial restraint. gressive restraint and liberal activism and was nabbed by federal “Courts ought not to enter this political finally exploded when the Supreme prosecutors who were trying to thicket,” he wrote. Finding himself on the los- Court addressed the issue of repro- boost their careers. ing side of Baker, Frankfurter doubled down ductive privacy. Under a Connecticut Swartz is an important figure on that deferential position. The Court’s rul- statute dating back to 1879, it was and a sympathetic victim, but ing, he announced in dissent, unleashed a illegal to use “any drug, medical as a work of storytelling the film “destructively novel judicial power.” Federal article or instrument for the purpose harms itself with a sometimes judges were now permitted “to devise what of preventing conception,” as well redundant deluge of praise and should constitute the proper composition of as to assist, counsel, or otherwise mourning. —Zenon Evans the legislatures of the fifty States,” a result he aid any person in the use of such

found both offensive and unworkable. “In devices. Birth control advocates had Berger) (Noah Own Boy The Internet’s

64 | reason | January 2015 previously tried to get the Supreme Court to consider the merits of the contraceptive ban on two separate occasions and had been rebuffed both times. But all that changed with the 1965 case of Griswold v. Connecticut. Two agents of the state’s Planned Parenthood League, one of whom DOES SOCIAL JUSTICE REQUIRE BIG GOVERNMENT? was a doctor, had been duly charged with dispensing birth-control devices According to Free Market Fairness (2012), by Brown University to married couples. The Supreme political theorist John Tomasi, the answer is no. Court saw its opportunity and tack- Tomasi’s book has sparked a major debate among political led the case head-on. philosophers. You can read this debate, including The result was a fractured ruling Tomasi’s response to his critics, in a special issue that still sparks debate. At the heart of Critical Review now available for $15. of the case was a deceptively simple question: Does the Constitution pro- Please send check, money order, or Visa/MC card number, expiration date, and billing and shipping addresses to: tect a right to privacy? A majority of the Court held that it did, but then Critical Review Foundation Department R tel (210) 372-1446 quickly divided over precisely how P.O. Box 869 fax (210) 372-9947 the Constitution managed to do it. Helotes, TX 78023 web bit.ly/cr-unfair Writing for a five-justice majority, Justice William O. Douglas argued that while the right to privacy is not specifically enumerated in the text The New Book Everyone Is Talking About of the document, various textual The War State: The Cold War Origins of provisions do nonetheless protect certain aspects of privacy, such as the Military-Industrial Complex and The the Fourth Amendment’s guarantee Power Elite, 1945-1963 against unreasonable searches and Written by Michael Swanson seizures. Furthermore, Douglas argued, those “specific guarantees in American civil liberties are being the Bill of Rights have penumbras, eroded away by NSA spying and the formed by emanations from those federal deficit is exploding due to the guarantees that help give them life costs of empire. It all started during and substance.” Taken together, the the critical twenty years after World “penumbras” and “emanations” of War II when the United States these “fundamental constitutional changed from being a continental re- guarantees” create a distinct “zone public to becoming a global imperial of privacy” that is itself a constitu- superpower. Since then nothing has tional right worthy of judicial ever been the same. In this book you protection. will discover the history of the In a separate concurrence, Jus- United States that formed the basis of tice Arthur Goldberg agreed that the the world we live in today. law “unconstitutionally intrudes upon the right of marital privacy” Buy this book at Amazon.com. Available in paperback or as an ebook. Also for sale at TheWarState.com

(Noah Berger) (Noah Own Boy The Internet’s but instead rested the case more

reason | January 2015 | 65 Briefly Noted squarely on the language of the Ninth Amend- was a big problem for Douglas’ and ment, which holds, “The enumeration in the his Griswold opinion. Constitution of certain rights shall not be Nor did Douglas do himself any construed to deny or disparage others retained favors when it came to crafting his by the people.” Meanwhile, two other justices, legal arguments. On the one hand, John M. Harlan and Byron White, each filed he began by repudiating the liberty separate concurrences ruling against the law of contract line of cases. “Overtones solely under the Due Process Clause of the 14th of some arguments suggest that Loch- Amendment. In short, the Court’s liberal major- ner v. New York should be our guide. ity very much wanted to recognize a constitu- But we decline that invitation,” tional right to privacy, but the justices could he wrote. Yet just two paragraphs What’s Up, Doc? not reach any sort of broad agreement over the later, Douglas proceeded to follow At first glance,The Knick, a proper method for doing so. Lochner anyway when he cited two gritty medical drama set in a Why the disarray? Consider again the precedents from the 1920s, Meyer v. New York hospital at the dawn central proposition of Footnote Four from the Nebraska (1923) and Pierce v. Society of of the 20th century, looks like 1938 Carolene Products decision. It said that the Sisters (1925), in which the Supreme so many other post-Sopranos Supreme Court may only engage in “exact- Court relied directly on Lochner’s anti-hero dramas: The pro- ing judicial scrutiny” when the government expansive protection of liberty in tagonist, Dr. John Thackery appeared to violate a specific provision of order to reach its respective holdings. (Clive Owen), is a brooding, the Constitution, interfere with the political In Meyer, for instance, Justice James middle-aged, upper-middle- process, or discriminate against “discrete and C. McReynolds nullified Nebraska’s class professional with a secret insular minorities.” Simply put, Connecticut’s ban on teaching students in a for- life. In this case, he’s both an intrusion on marital privacy failed to satisfy eign language on the grounds that it experimental surgeon and a any one of those three tests, leaving the justices interfered with the economic liberty drug addict. Directed by Steven scrambling for a fix. of a Bible teacher who worked at Soderbergh, the Showtime Douglas in particular struggled to meet the a private school. “Without doubt,” series is lavish and cinematic, requirements of Footnote Four. Keep in mind McReynolds wrote, citing Lochner, and it often filters history that Carolene Products was written in large part the liberty protected by the 14th through a knowing contem- as a reaction to cases such as Lochner v. New Amendment “denotes not merely porary lens, highlighting the York, which struck down a maximum working freedom from bodily restraint, but racism and class distinctions of hours law for bakery employees, and Adkins v. also the right of the individual to the era it’s set in. Children’s Hospital (1923), which struck down contract, to engage in any of the But The Knick isn’t just a a minimum wage law for women. In each of common occupations of life…and show about a bad man who those cases, the Supreme Court had nullified an generally to enjoy those privileges often does good. It’s about economic regulation for violating the unenu- long recognized at common law as medical innovation and his- merated right to liberty of contract, a right the essential to the orderly pursuit of tory. It emphasizes endless Court first located in the 14th Amendment’s happiness by free men.” Two years cost concerns and dwells on guarantee that no person be deprived of life, later, in Pierce, McReynolds extended how little doctors knew just liberty, or property without due process of law. that libertarian principle to overturn a century ago, how risky their Yet as Chief Justice Charles Evans Hughes had Oregon’s Compulsory Education Act, experiments could be, yet how declared in West Coast Hotel Co. v. Parrish, the which had forbidden parents from many lives those experiments 1937 case that overruled Adkins and effectively educating their children in private would eventually save. In this killed Lochner, “The Constitution does not schools. “The child is not the mere series, medical experimenta- speak of freedom of contract,” and therefore creature of the state,” McReynolds tion is an intense, madcap the Supreme Court would neither recognize it declared. Whether Douglas wanted enterprise—another way for a nor protect it. Well, the Constitution does not to admit it or not, Lochner’s DNA drug-addicted doc to get a fix. speak of privacy either, and according to both is plainly evident in his Griswold

—Peter Suderman Parrish and Footnote Four, that textual absence opinion. Cybulski/Cinemax) (Mary The Knick

66 | reason | January 2015 ‘What Has Occurred May Occur under the guise of determining con- • Again’ stitutionality.…To the people who For Justice Hugo Black, enough was have such faith in our nine justices, Costa Rica enough. Griswold was a Lochner-ian I say that I have known a different $ ruling, and Black had no qualms court from the one today. What has 91095 - D a y To u r about denouncing it as such. An occurred may occur again.” Volcanoes, Beaches & Rainforests� ardent New Dealer when he joined Unhappily for these old-line All Meals Included� Join the smart the Supreme Court in 1938, Black Progressives, however, the call for shoppers and experienced travelers who rely on Caravan to handle all the was outraged by the reappearance of judicial deference fell on increasingly details� Call now for choice dates� those old legal arguments on behalf deaf liberal ears as the 20th cen- ʻʻ Brilliant, affordable pricing ʼʼ of new unwritten rights. “I like my tury entered its seventh decade. But —Arthur Frommer, Travel Editor privacy as well as the next one,” he there was at least one person paying Affordable Guided Vacations declared in his Griswold dissent, “but attention to what they had to say. At 10 days $1295 Guatemala & Tikal 9 days $1095 Costa Rica I am nevertheless compelled to admit Yale Law School, a young professor 8 days $1195 Panama Tour & Canal that government has a right to invade named Robert Bork dusted off the 10 days $1395 Nova Scotia & P�E�I� it unless prohibited by some specific Progressive case for judicial restraint 9 days $1595 Canadian Rockies 8 days $1395 Grand Canyon & Zion constitutional provision.” and began refurbishing it into an 8 days $1295 California Coast That remark captures Black’s intellectual weapon he might wield 8 days $1295 Mt� Rushmore Costa Rica 8 days $1295 New England jurisprudence in a nutshell. When it on behalf of conservative legal goals.

FREE 24-Page Brochure & feesTax extra; Photo: Keel-billed Toucan came to the judicial enforcement of “In wide areas of life,” Bork Caravan com 1-800-Caravan unenumerated rights, Black drew a would write, “majorities are entitled � bright line and refused to cross it. “I to rule, if they wish, simply because cannot accept a due process clause they are majorities.” That approach Guided Vacations Since 1952 interpretation which permits life- eventually became the default posi- appointed judges to write their own tion of the conservative legal estab- 2.25x4.55.Reason.JAN.indd 1 11/3/14 6:37 PM economic and political views into lishment. Give the our Constitution,” he argued, thereby But at the same time that Bork linking Griswold to Lochner. Indeed, was setting the intellectual pace on gift of Black’s Griswold dissent took direct the right, a new breed of libertarian reason aim at Douglas’ use of the libertar- legal thinkers were beginning to craft n Birthdays ian precedent set in Meyer and Pierce, an ambitious agenda of their own, n Graduations “which elaborated the same natural one that would soon put them on a n Anniversaries law due process philosophy found in collision course with the majoritar- Or just about any occasion, why Lochner v. New York.” That approach, ian jurisprudence championed by not give a reason gift subscription? he told his colleagues, “is no less Bork. Why the impending conflict? It’s fast and easy and your gift will dangerous when used to enforce this The answer is simple. Individual last all year! Court’s views about personal rights liberty comes first, the libertarians than those about economic rights.” declared, not majority rule. r Much like Learned Hand and Felix Frankfurter, Hugo Black Senior Editor Damon Root ([email protected]) is the author of Overruled: The Long War for never forgot his outrage over the Control of the U.S. Supreme Court, from which Supreme Court’s earlier use of the the article is adapted by permission of Palgrave 14th Amendment to attack Progres- Macmillan, an imprint of St. Martin’s Press LLC. sive and New Deal–era legislation. “There is a tendency now among some,” Black observed in 1968, “to look to the judiciary to make all the Simply go to reason.com/subscribe

(Mary Cybulski/Cinemax) (Mary The Knick major policy decisions of our society

reason | January 2015 | 67 Briefly Noted How Liberals Put Black America “tolerance” and “equality,” which Behind Bars promised liberation but contained a carceral logic. A surprising new history about race In prewar America, it was entirely and prison respectable to believe that black Thaddeus Russell people were biologically inferior and inherently prone to criminal behav- The First Civil Right: How Liberals Built Prison America, ior. Students in elite universities were by Naomi Murakawa, Oxford University Press, 280 pages, $24.95 assigned Ulrich Bonnell Philips’ American Negro Slavery, the leading The United States is the undisputed world scholarly text on the subject through Swimming With Sharks champion of incarceration. According to the the first half of the 20th century, Pop culture isn’t always friendly latest accounting by the U.S. Bureau of Justice which argued that the plantations to businessmen, but the ABC Statistics, close to 2.3 million adults are held were “the best schools yet invented show Shark Tank portrays in federal and state prisons and county jails in for the mass training of that sort of entrepreneurial success as fun- the United States, which is roughly 1 percent of inert and backward people which the damentally fair, aspirational, the country’s adult population and 25 percent Progressives overthrew and addictively entertaining. of the world’s prisoners. The U.S. incarcerates a The program, which began greater percentage of its total population than scientific racism and its sixth season this fall, fea- any other country in the world, including Cuba, replaced it with ideas tures small business operators Russia, Iran, and, according to some estimates, that were modern and pitching for funding to a panel North Korea. In addition, 4.8 million Americans sophisticated but also a of celebrity venture capitalists, are on probation or parole, which means that a such as Dallas Mavericks owner total of more than 7 million are under correc- more effective rationale for Mark Cuban and “Queen of tional control—some 3 percent of the adult pop- locking up large portions QVC” Lori Greiner. If the sharks ulation in the United States. Nearly 60 percent of the population. think the product has merit of prisoners are black or Latino and roughly and commercial possibilities, half of all prisoners are serving sentences for bulk of the American negroes rep- they invest their own money, nonviolent offenses. resented.” Policy makers and intel- become stakeholders, and give Conventional wisdom holds that mass lectuals generally accepted as fact the everybody a chance to make incarceration of American blacks and Latinos claim made in Frederick Hoffman’s money. The competition is is a result of the “scientific racism” that was The Race Traits and Tendencies of the cutthroat and the sharks can established as the dominant racial ideology in American Negro that “crime, pauper- be brutal, but their wisdom is the 19th and early 20th centuries and which ism, and sexual immorality” among undeniably beneficial, a “teach underlay the Republican “law and order” poli- blacks were biologically determined. a man to fish” humanitarian- cies of the 1970s that brought us to our present Scientific racism was even extended ism. By deliberately putting condition. But in her new book, The First Civil to many Europeans. The National profits first, they have the best Right, Naomi Murakawa upends that narra- Origins Act, which severely restricted chance of helping themselves, tive, locating the roots of America’s “prison immigration from southern and the applicants, and the con- state” instead in the progressive reformism eastern European countries as well sumer. that gained ascendancy during World War II. as from Africa, Asia, and Latin Amer- Shark Tank should be consid- Progressive thinkers overthrew scientific rac- ica from 1924 to 1965, was chiefly ered the TV standard-bearer for ism as a respectable belief system and replaced informed by the work of Madison libertarianism, as Duck Dynasty it with a set of ideas that were modern and Grant, an anthropologist who argued is for conservatism. In a fight, sophisticated but also a more effective rationale that Jews, Spaniards, Italians, Greeks, /Tony Rivetti) /Tony my money’s on the sharks. for locking up large portions of the population. and northern Africans belonged to an ABC —Robby Soave What Murakawa calls “racial liberalism” was inferior “Mediterranean race.”

born out of the discourse of ethnic and racial Murakawa, a professor of African ( Tank Shark

68 | reason | January 2015 American Studies at Princeton Uni- cities of “untidy” Southern blacks Negro protest under cover.” versity, argues that during the war whose habits “were better adapted to By forcing blacks to live in against the genocidal Axis this ideol- cabin life in the palmetto swamps.” “Negro slums” and excluding them ogy was supplanted by “racial lib- Understanding that the applica- from the civilizing influence of white eralism,” an attempt to reform both tion of scientific-racist principles to schools, Myrdal argued, racists had white racism and black disloyalty urban blacks would only provoke an created a population of criminals. with rational, efficient, and coercive unmanageable rage, Myrdal argued Myrdal saw black city dwellers state institutions. that centuries of brutal exploitation “walking the streets unemployed” and exclusion caused “American and “standing around on the cor- he foundational text of racial Negro culture” to become “a dis- ners.” Forced into a hostile relation- Tliberalism was Gunnar Myrdal’s torted development, or a pathological ship with whites, barred from assimi- An American Dilemma, published condition” that was not only debili- lating into the dominant culture, and in 1944, which argued that black tating for blacks but also dangerous left festering in their social patholo- “pathologies” were the product not for whites: “Not only occasional gies, blacks had been made to lead of biology but of slavery, segrega- acts of violence, but most laziness, lives of lawless danger: “They have tion, and discrimination and could carelessness, unreliability, petty steal- a bearing of their whole body, a way be corrected by treating blacks ing and lying are undoubtedly to be of carrying their hats, a way of look- with “scientific social engineering” explained as concealed aggression.… ing cheeky and talking coolly, and a instead of scientific racism. Myrdal’s The truth is that Negroes generally general recklessness about their own study was commissioned by the do not feel they have unqualified and others’ personal security and progressive Carnegie Foundation, moral obligations to white people.… property, which gives one a feeling whose trustees wished to pre-empt The voluntary withdrawal which has that carelessness, asociality, and fear the race wars they feared would intensified the isolation between the have reached their zenith.” result from the influx into Northern two castes is also an expression of To Myrdal and a generation /Tony Rivetti) /Tony ABC ( Tank Shark

reason | January 2015 | 69 and police and replaced with ratio- nal, consistent, and severe rules. The Boggs Act of 1952 and the Narcotic Control Act of 1956, both of which passed with overwhelming support from Northern liberal Dem- ocrats, imposed uniform mandatory minimum sentences for drug-related offenses. “Little Boggs” laws then spread across the states, instituting mandatory and often lengthy mini- mum sentences for trafficking and possession of narcotics. The numbers of prisoners serving time for drug offenses increased geometrically over the next two decades. More impor- tantly, the 1950s laws established cru- cial precedents for the later massive escalation in the war on drugs. National Democratic legisla- tors of the 1960s are well known for the Civil Rights and Voting Rights Acts, which did serve to equalize treatment of the races under the law. They are less well known for a of liberals who followed him, the is true, in varying degrees, of all of slew of federal crime laws that put answer was to modernize, centralize, our minorities. What we have lost in record numbers of black and brown and enlarge the criminal justice sys- money, production, invention, citi- people behind bars. The Interstate tem. In 1947, Harry Truman’s Presi- zenship, and leadership as the price Wire Act of 1961 and the Gambling dent’s Committee on Civil Rights for damaged, thwarted personali- Devices Act of 1962 cracked down on reported that by following “practices ties—these are beyond estimate.” interstate gambling, and the Juvenile which preserve white dominance,” Delinquency Prevention and Control the police and the courts had led The solution the Committee recom- Act of 1968 authorized block grants blacks to reject the whole system. mended became the blueprint for the that enhanced the states’ abilities to “Out of the discriminatory American criminal justice system we incarcerate youth. The cornerstone administration of justice has grown know today, including “increased crime law of Lyndon Johnson’s a disregard of the law,” the Commit- professionalization of state and local administration was the Omnibus tee declared, echoing Myrdal’s claim police forces” and higher salaries to Crime Control and Safe Streets Act about the cause of black criminality. “attract and hold competent person- of 1968, which is rarely discussed “People who live in a state of ten- nel.” From this came a flood of Dem- in textbook accounts of Johnson’s sion and suspicion cannot use their ocratic legislation that was intended, “Great Society” programs. It estab- energy constructively. The frustra- as Murakawa puts it, to “build a lished the Law Enforcement Assis- tions of their restricted existence are better carceral state, one strong tance Administration (LEAA), which translated into aggression against enough to control racial violence in “swelled the flow of federal funds to the dominant group.…It is not at all the streets and regimented enough state and local police departments” surprising that a people relegated to control racial bias in criminal jus- for recruitment and training of offi- to second-class citizenship should tice administration.” Discretion was cers and began what we now know as

behave as second-class citizens. This taken from potentially racist judges the militarization of the police. The detail) (cover Right Civil The First

70 | reason | January 2015 LEAA funded the purchase of heli- dence that the police will enforce the Delaware used the law to respond copters, gas masks, infrared cameras, law and provide effective protection to the common and erroneous criti- riot gear, smoke and gas grenades, without discrimination”; and “To cism that liberals were soft on crime: projectiles, launching cartridges, and make the police responsive to the “Let me define the liberal wing of the flares by police departments. public which is essential in a democ- Democratic Party. The liberal wing All this, says Murakawa, was racy even aside from other pragmatic of the Democratic Party is now for “part of a long-term liberal agenda, advantages.” As we know from the 60 new death penalties. That is what one that reflected a belief that feder- record of black distrust and antago- is in this bill. The liberal wing of the ally subsidized police recruitment nism toward police that followed Democratic Party has 70 enhanced and training could become racially the 1960s, these dreams of socially penalties.…The liberal wing of the fair.” Ironically, it also followed from engineered assimilation did not come Democratic Party is for 100,000 the assumption that federalized true. cops. The liberal wing of the Demo- policing would give blacks reason Murakawa acknowledges that cratic Party is for 125,000 new State to identify with law enforcement conservative Republicans did their prison cells.” authorities. Democratic Sen. Birch part to build the prison state, in par- By the time Clinton left office, the Bayh of Indiana argued for the cre- ticular by prosecuting the war on number of people under correctional ation of the LEAA by declaring that drugs. She details Reagan’s aston- control was seven times greater than “at no time in our history has disre- ishingly punitive Comprehensive at the beginning of the Johnson spect for law and those who adminis- Crime Control Act of 1984, which administration, and the black-to- ter and enforce it been so general and nearly eliminated federal parole and white ratio for incarceration rates widespread.” Similarly, Sen. Joseph allowed for preventive detention of had risen from 3–1 to 6–1. Tydings, a Democrat from Maryland, defendants, and the Anti-Drug Abuse believed that professionalizing the Acts of 1986 and 1988, which insti- As Murakawa says, “there is no mas- police would correct the “deep-seated tuted more mandatory minimum ter narrative of conservative ascen- belief amongst our Negro citizens sentences and created the notorious dance” in the rise of the American that equal law enforcement in police 100–1 disparity in sentences for crack prison state. Indeed, it is a classic practices does not exist anywhere vs. powder cocaine trafficking. But story of progressive ascendance: of in our land” and would teach “slum Murakawa shows that most of the modern efficiency applied to social children [to] have respect for the intellectual and legal scaffolding of problems and errant populations law.” the contemporary American carceral more effectively controlled. Progres- system was erected by Democrats. sives are simply better at getting the n 1966, a memo from the Office The greatest push to criminalize job done. r Ifor Law Enforcement Assistance, and incarcerate came under Bill Clin- another “Great Society” crime ton, who oversaw more expansions Thaddeus Russell (thaddeusrussell@gmail. com) is the author of A Renegade History of The agency, explained that the “Purpose of mandatory minimum sentences United States. and Definition of Good Police- than any other president. His sig- Community Relations” was “To nature crime bill, the Violent Crime encourage citizens to report crime” Control and Law Enforcement Act of A Notice To Our Subscribers or “at least, not interfere with arrests 1994, funded state prison construc- From time to time, our subscriber list is rented to others. We carefully screen and other police work”; “To achieve tion and the hiring of 100,000 new those to whom we rent our list and try adequate financial and other sup- police officers, increased mandatory only to rent to those whose offers we port from legislative bodies”; “To minimums, and applied the death believe may interest our subscribers. If you do not wish to have your name improve recruitment”; “To improve penalty to 60 crimes. Clinton trium- included on our rental list, simply let us respect for law and law enforcement phantly declared that the law was know by writing us at: which has a direct relationship to the “the toughest, largest, smartest Fed- reason amount of crime”; “To remove the eral attack on crime in the history of 5737 Mesmer Avenue incidents which can lead to riots”; our country.” Los Angeles, CA 90230-6316 Attn: List rentals “To assist in giving the public confi- Democratic Sen. Joe Biden of

reason | January 2015 | 71 Alt-Constitution describe their efforts as “defiant.” for example, were rooted in one of Rewriting the Constitution Another apt word would be “futile.” the same ideas that inspired Indian without Washington’s Over eight substantial case studies, Stream: a belief, as Tsai puts it, that permission Tsai shows how the rebels were mar- “true political authority springs from ginalized, co-opted, or crushed. productive use of the land.” Brian Doherty Consider the little republic of The book’s other subjects include “Indian Stream,” which squeezed a socialist communal cult called America’s Forgotten Constitutions: Defiant Visions of Power and Community, by Robert L. for itself a temporary autonomy in “Icaria” in mid-19th-century Illinois, Tsai, Harvard University Press, 352 pages, $35 the interstices of border conflicts the college professors and admin- between the United States and istrators who designed a one-world What do white supremacists and Canada. Declaring independence nation to quash the threat of nuclear black nationalists, abolitionists and in 1832, these frontiersmen—fewer war after World War II, and some Confederates, utopian socialists than a thousand of them—lived in Internet racists who encouraged and crafty frontiersmen, embattled what was then a legal netherworld their fellow white supremacists (but Indian tribes and mandarin globalist between Quebec and New Hamp- no vulgar skinhead ruffians, please) intellectuals have in common? They shire, insisting they were part of nei- to swamp the Pacific Northwest all wrote new constitutions, hoping ther. After three years of playing their and eventually break away from to supersede the document adopted surrounding jurisdictions off one the United States. Tsai’s subjects in Philadelphia in 1787. In America’s another, the Indian Streamers were span a multiverse of fascinatingly Forgotten Constitutions, Robert L. Tsai, crushed by the military might of New conflicted and failed strivers. Aside a professor of law at American Uni- Hampshire. (The federal government from the abolitionist John Brown versity, tells their tales. declined to join in.) But the ideas that and his spiritual enemies, the Con- Each of these projects had at its animated them survive in America federate founders, most of them have heart a colorful man or small group today. The Nevada rancher Cliven remained obscure. of men (yes, it’s pretty much all men) Bundy’s recent attempts to defy Each story Tsai tells would who were spurred to found a polity the Bureau of Land Management’s require a novel to capture in full. for their people. It would be fair to restrictions on his cattle grazing, The professor does not, alas, have a novelist’s eye for incident and char- acter. His stories beg for drama but get scholarly jurisprudence. Tsai is thorough—perhaps too thorough for optimal reader pleasure—in analyz- ing the political structures found in these various constitutions. He notes that they all followed the apple-pie traditions of “popular decision mak- ing, divided powers, and enumer- ated rights.” Even far-out American rebels were American enough to have “accepted the idea that a legitimate claim to rule according to the will of the people must conform to a proto- col.”

ost modern Americans would Mprobably see the characters in this book as kooks who didn’t

amount to much and got what they detail) (cover Constitutions Forgotten America’s

72 | reason | January 2015 SiteworksReasonY 10/10/08 2:33 PM Page 1

deserved. Still, some might feel stir- nature of the “winning” Constitution rings of sympathy—say, for John becomes clearer once one sees what Brown and the constitution he and gets crushed beneath the statues and The Enduring his compatriots wrote as they plotted trampled in the parades celebrating the destruction of slavery. The gov- the America that is. Elegance of erning compact originally applied to their rebellious army, but they hoped The losing constitutions’ partisans, Limestone to apply it to an actual living polity meanwhile, practiced what Tsai once they had some land and more calls “ethical sovereignty”—power popular support. wrapped up in a distinct vision of Similarly, one might understand righteousness. Libertarians would why, after decades of slaughter and certainly find many things to dis- broken promises, the Indian activists agree with in the specifics of these behind the Sequoyah Constitution would-be constitutions, which maneuvered to have a segment of always respected certain liberties for land they controlled join the U.S. as certain people while denying others. its own state in 1905. And who could (Separatist fanatics tend not to value blame the disaffected African Ameri- free expression and free markets very cans hoping to carve out their own highly.) But studying how and why reparations for slavery in 1971 by set- they failed shows possibilities and tling on a farm in Bolton, Mississippi, pitfalls for political change. At least and declaring it the Republic of New four do’s and don’ts can be gleaned: Afrika, dedicated to free, dignified, 1. DO try to mesh with existing legal agrarian lives? That nascent nation authority in a way that is not obviously was harassed into defeat and obscu- hostile. The Icarians were a typical rity by federal agents via overwhelm- utopian socialist commune founded ingly forceful armed raids, allegedly in 1848 by the French refugee Eti- just to serve warrants. enne Cabet. When he and his crew But approve or disapprove, you established a beachhead in Nauvoo, shouldn’t ignore history’s kooks. Illinois, in 1851, they persuaded the Chronicles of failure and defeat say state to ratify the Icarians’ existence as much about a nation’s history and as a joint-stock “agricultural society” identity as success stories do. The that constituted its own “body politic ruthless hegemony of the official and corporate.” State legislators were U.S. Constitution is an important fact happy for a time to let the Icarians do about modern America. their own thing in their own space in This is true even though that Illinois. (One wishes Tsai had delved Live Free Constitution has itself mutated. The into the specifics of how this political with Beauty, Style most influential alternate constitu- coup was pulled off.) and the Enduring tion in American history is one Tsai Tsai calls this practice “inter- Elegance of Limestone. mentions only in passing—what stitial resistance.” Libertarians in SITEWORKS the New Deal economist Rexford New Hampshire’s Free State Project Custom Limestone Mantels Tugwell called the “emergent con- practice a version of this today, striv- 1-800-599-5463 www.siteworkstone.com stitution.” You know, the one where ing both to influence local politics on the federal government does pretty its own terms and to craft spaces to much whatever it wants, under thrive largely outside—or in defiance whatever excuse it pleases, and all of—the state’s reach. (In my experi- Call Today For Your FREE Color Catalog!

(cover detail) (cover Constitutions Forgotten America’s too frequently gets away with it. The ences among the Free Staters, they

reason | January 2015 | 73 find such attempts to live liberty in ran aground against a too-limited of an unpopular social group or chosen fellowship more energizing notion of who a polity was for—in political movement.” and exciting than politics.) The Icari- each case a specific race, pursuing a That’s unlikely. In modern ans schismed, in typical 19th-century specific set of lifeways. Tsai calls this America, declaring your separation utopian socialist fashion, and eventu- “cultural sovereignty,” as opposed from the constitutional consensus ally their state charter was revoked, to the ethical kind, and it just won’t is a good way to make people think long after the community was no lon- work in this multicultural, multira- you’re a bunch of crazies, likely dan- ger a thriving entity. cial nation. gerous ones. The 21st-century American state’s And politics itself can be an insu- The best way to keep a culture’s level of officious interference makes perable barrier: many tense affiliations, tendencies, this kind of world-within-the-world 4. DON’T assume that interacting and peoples together in peace is not a project unlikely to succeed so well with the existing constitutional order specific portmanteau constitution. It today, on the aboveground level at will guarantee success. The Indians is a generic constitution of liberty— least. But seeking interstices where who developed the Sequoyah Consti- F.A. Hayek’s term for a way of gov- you can do your own thing does tution thought they could convince erning that respects as many people’s allow you a certain kind of freedom. the federal government to make rights to manage their own lives and And as the New Afrikan Republic them a state; the globalists behind property as possible. None of Tsai’s Most modern Americans the “World Constitution” thought characters were this dedicated to a the U.S. would ratify a surrender of wider vision of liberty for everyone, would probably see the its sovereignty. Both were mistaken. which is likely part of why they are characters in this book as When you want big change, some- remembered by few, revered by fewer. kooks who didn’t amount times exit is required. But as the The original U.S. Constitution, to much and got what they Republic of New Afrika and North- as much as it has failed us and itself, west American Republic examples does win that kind of affection, to deserved. show, exiting American hegemony the extent that it approached the activists argued, American local- on the North American continent is dream of justice under the blessings ism can allow even small dedicated quite a trick. Maybe the Seastead- of liberty. Seeing where it has gotten groups to legitimately elect a sher- ing movement, with its ideas about us, though, the lover of liberty can’t iff—and “then we will have a [mili- artificial ocean-bound communities, help but suspect that something was tary force] legitimate under U.S. law, has the right idea: A truly fresh con- missing in the idea of a government made up of people who can be depu- stitution might require a truly fresh of constrained powers, created and tized and armed.” homeland. controlled by a written constitution. Before that gets anyone too Part of the success of American excited, remember another clear les- ven considering the above points constitutionalism is that it forever, son from Tsai’s study: Edoubtless marks a movement as as Tsai writes, “wrested legal author- 2. DO eschew violence. Claim- already highly marginalized. Tsai ity from the king and church and ing political or ideological space in does not necessarily recognize this. ushered in a world in which anyone America via violence failed for John Having scrupulously taken these could state a claim to rule.” The last Brown and ultimately for the Con- eccentric constitutionalists seriously frontier of that process, unexplored federates. It would similarly fail for on their own terms, he eventually even by Tsai’s varied and passionate anyone trying it today. goes native: He believes “the col- constitutionalists, is the ultimate in Violence isn’t the only sure losing lective desire to be heard and to be sovereignty, neither cultural nor ethi- strategy for large-scale change: treated as sovereign decision makers cal but personal: every man his own 3. DON’T get obsessed with “cultural worthy of respect can be satisfied to Constitutional Convention. r sovereignty.” The Confederates, the some degree through the publica- Republic of New Afrika, and the tion of a constitution.” Constitution Senior Editor Brian Doherty is the author of four books, including This Is Burning Man white supremacists’ fantasy of a making, he writes, “can go some way (Little, Brown). “Northwest American Republic” all toward altering public perceptions

74 | reason | January 2015

Our Fairy Godfather sprite who alternates between brag- to outlive its direct inspirations. Crockett Johnson’s brilliant ging about his alleged powers and When O’Malley opens a congres- Barnaby is back in print. finding excuses not to use them. (He sional investigation of Santa Claus, does commit actual magic from time for example, Johnson is spoofing Jesse Walker to time, often without realizing it, Rep. Martin Dies (D–Texas) and his but he prefers to focus on a card trick attempts to ferret out subversives. There isn’t a model in all of that he can never quite pull off prop- The strokes are broad enough, political science that could have erly.) though, that a reader who has never predicted the process by which J.J. The adults in Barnaby’s life insist heard of Dies can still enjoy the arc O’Malley was elected to Congress. that O’Malley is merely Barnaby’s as a shot at witch hunts of all kinds. The saga began with an extremely imaginary friend, setting up a garbled press account of O’Malley dynamic that is likely to remind the ohnson is also willing to let his foiling a robbery, transforming the modern reader of Calvin and Hobbes. Jfondness for sheer absurdity over- poker-playing, cigar-chomping But unlike Hobbes the tiger, whose whelm the political point he’s mak- layabout into a folk hero. His ambi- relationship to reality is ambiguous, ing. In another sequence, O’Malley tions sparked, O’Malley made a there’s no chance that O’Malley is and some millionaire ghosts meet to large donation to the local political just pretend. He is constantly inter- make plans for the 1944 elections. machine, hoping it would propel him vening in Barnaby’s world, and in The ghosts are reactionaries, a point into office. The party boss intended to the process he wreaks havoc not just Johnson illustrates by giving one of double-cross him and elect his oppo- Barnaby belongs to a them a watch that runs backward; nent, but his plan backfired when as the meeting progresses, we are he didn’t notice O’Malley had paid tradition of strips, from periodically informed, for example, him in Confederate dollars. When Pogo to Bloom County, that that it is now 1938 and the campaign the machine used the cash to bribe mix kid-friendly fantasy can promise peace in our time. This a bunch of voters, they responded with adult satire. is not the world’s most sophisticated angrily to the funny money by revolt- joke, and Johnson himself eventually ing against their instructions and in small-scale environments such turns it in a different direction, put- electing the wrong man. as a summer camp but in the vaster ting the time-reversal story to a less I’m skipping a few steps along worlds of politics and high finance. It political but much funnier use: When the way, including the part where a helps that the grown-ups, unwilling the watch reaches October 1929, the radio station airs a political speech to believe in fairies, keep imagining meeting breaks up. “Who cares about delivered by a dog. The point is, the that O’Malley is something else—a the election now?” a ghost exclaims. story ends with the voters sending a heroic citizen who should be elected “Stocks are up 50 billion points!” man to Congress without realizing to Congress, say, or a business genius As the backward-watch gag sug- he’s a two-foot fairy with pink wings. whose investments should be emu- gests, Johnson’s sympathies were lated. with the left. He began his career J.J. O’Malley was the co-star of Barnaby thus belongs to a tradi- drawing editorial cartoons for the Crockett Johnson’s Barnaby, a comic tion of strips, from Pogo to Bloom radical magazine New Masses, and strip of the 1940s and ’50s that is County, that mix kid-friendly fantasy Barnaby debuted in PM, a fiercely now being reprinted in a series of with adult satire. The cartoons in liberal paper. His colleagues at PM books from Fantagraphics. (Two these two volumes are filled with the included Theodor Geisel, a.k.a. Dr. volumes have been published so daily texture of early-’40s America— Seuss, and like Seuss he would go far, covering the years 1942 to 1945.) air raid wardens, victory gardens, on to great success in children’s lit- The title character is a 5-year-old ration books—and its characters erature: illustrating his wife Ruth boy who wishes one night for a make frequent references to politics Krauss’ book The Carrot Seed, mentor- fairy godmother. Instead he gets and popular culture. But Johnson ing Maurice Sendak of Where the Wild a fairy godfather: Mr. O’Malley, a almost always takes aim at larger Things Are fame, and writing many W. C. Fields–esque con man of a social trends, allowing his satire books of his own. The most famous

76 | reason | January 2015

of these is Harold and the Purple so that events that sound like they fairy godmother a boy wants, but he’s Crayon, a wonderfully strange story spilled out of a boy’s imagination are the egotistical lowlife of a fairy god- in which a boy who looks an awful in fact real. From there he went to father we all deserve. r lot like Barnaby wanders through a writing and illustrating books where series of landscapes that he draws the boy’s imagination is all that’s real. Books Editor Jesse Walker (jwalker@reason. com) is the author of The United States of himself. (Harold and its sequels may At the end of his life he was paint- Paranoia (HarperCollins). be the most solipsistic books ever ing abstract pictures with no human written. One of them ends with Har- beings in them at all. There is a pro- old drawing his own mother and ask- gression of sorts here, though I’m ing her to read him a story.) not sure what it says about Johnson’s Put another way, Johnson went view of the world. from producing editorial cartoons That worldview, at any rate, gave that directly engaged the material us one of the 20th century’s most (courtesy Fantagraphics) (courtesy world to creating a comic that mixed entertaining comic-strip characters,

Barnaby Barnaby that world with fantasy elements, J.J. O’Malley. He might not be the

reason | January 2015 | 77 Greg Beato bottleneck in the company’s increas- and-mortar store in New York City ingly efficient distribution chain—the that will give its customers there an slow-witted customer—finally real- opportunity to engage in heritage izes he has an urge to obtain a digital shopping. But if customers still do bath scale post-haste. appreciate the instant gratification What Amazon is moving toward you can get at 7-Eleven, not to men- with such capabilities, Wired recently tion the opportunity to comprehen- suggested, is a “21st-century version sively assess a peach before purchase, of the milkman and the mail car- why not combine such functionality rier combined.” And perhaps when with the convenience of mobile? it attains that status, it will attempt Amazon has yet to travel this an even grander feat: Equaling the particular last mile. Uber hasn’t convenience of the 20th-century ice- either. Over the last couple of years, cream truck. the ridesharing service has dis- In 1926, the citizens of Youngs­ patched local ice cream trucks to its town, Ohio, could get a Good Humor customers one day each summer. bar delivered to them without lifting While these events are intended to Stop Complaining About a finger. In the tradition of 19th- promote the convenience of Uber, That Flying Car. You Have century peddlers, ice cream entre- they also complicate the traditional Amazon. preneur Harry Burt introduced a ice cream truck experience in a cou- new technology of predatory retail, ple of ways. First the customer has to Getting stuff gets more equipping a dozen Ford trucks with place an order to initiate a delivery. awesome every day. freezers and going out in search of Then he has to stay chained to a spe- customers wherever he could find cific address until the truck shows In the 20th century, flying cars them. A few decades later, the Good up. This is a step backward from the expressed the ultimate dream of Humor fleet had grown to 2,000 ultra-convenient approach Harry personal autonomy, the power to trucks and was generating the bulk Burt pioneered in 1926, not a bold propel yourself anywhere. In the of the company’s sales. leap forward. 21st century, the stuff we want comes Rising gas prices and a shift Imagine if Amazon’s growing to us. For customers in a handful of toward the less dense suburbs ulti- fleet of delivery vehicles functioned cities who pay an annual $299 fee, mately undermined the power of this like true mobile retail units. With Amazon promises same-day delivery mobile distribution network. In the its deep knowledge of what people of 500,000 items—everything from 1970s, Good Humor sold its vehicles in various neighborhoods are buy- groceries to office equipment. “Place to individual private operators. But ing, it could turn its trucks into your order by 10 AM and have it by conditions are shifting again. Our rolling, demographically tailored dinner,” Amazon’s website advises. cities are packed with consumers convenience stores. If you were on Soon you might only have to who believe that atoms should arrive the street as one was making its wait until lunch. In January 2014, on their doorsteps nearly as fast as daily rounds through your neighbor- Amazon patented a process it calls bits. Pick-up and delivery services hood, you could hail it like a cab and “anticipatory package shipping.” proliferate in these places, and bulky purchase the latest model of its Fire Essentially, this involves predicting and costly physical retail storefronts Phone with a click of your old Fire what items specific customers might are beginning to feel like printing Phone. If you were inside your house buy, shipping those goods to nearby presses—obsolescing infrastructure as a truck approached, your phone fulfillment centers, and possibly even that often adds little value. would alert with you with a signature loading them onto AmazonFresh jingle (or a well-timed SMS) and you delivery trucks before an actual order Traditional retail won’t disappear could go outside to greet it. has been placed. This way, they’ll be completely. In a bit of sales theater, It’s not just that most delivery

near at hand when the last remaining Amazon itself is opening a bricks- trucks don’t act like truly mobile (TerryColon.com)

78 | reason | January 2015 retailers these days. Most mobile a peddler’s permit which allows are consummated by phone, with retailers don’t either. In the wake of mobile boutiques to operate on pub- no actual cash changing hands, is it the food truck vogue, other forms lic streets.” delivery or mobile retail? of truck-based entrepreneurism are Jischke-Steffe says she has only In Oakland, Berkeley, and San starting to show up in cities around heard of a few cases where cities do Francisco, a food company called the country. There are flower trucks, not allow mobile retailers to oper- Spoonrocket is now offering some- dog-grooming trucks, skincare ate at all. “I just talked to a mobile thing that almost qualifies as a 21st studios, clothing boutiques, even a boutique owner in South Florida that century ice cream truck. Every day, mobile cigar lounge. said some of the smaller towns in its central facility produces a small south Florida have denied allowing number of meal choices, and these or budding entrepreneurs, the her to operate in any capacity.” meals are loaded onto its cars, where Fappeal of a truck is obvious. Complying with multiple munici- they’re stored in heating units. Then Because these other forms of mobile pal codes undermines some of the the cars simply head out to various retail don’t need kitchen equipment, flexibility and convenience that neighborhoods and wait for custom- they’re generally much cheaper than makes mobile retail an attractive ers to order. This way, there’s always a food truck—operators pay an aver- venue for micro-entrepreneurism. a car nearby in the areas that Spoon- age of around $20,000, according “Here in the Bay Area, you could rocket serves, which allows it to to a poll conducted by the American have an entrepreneur who’s trying deliver orders in 10 minutes or less. Mobile Retail Association (AMRA). to sell in five different municipalities Customers are expected to go A lease does not have to be secured. as they go to different festivals and out to the curb to complete the meal With only 50 to 200 square feet of outdoor markets,” says Sarah Filley, hand-off. Payments occur in advance floor space to fill at any one time, you executive director of Popuphood, online, so there’s no other business to don’t need much inventory either. a small business incubator based slow down the transaction. You just A mobile retail truck offers micro- in Oakland, California. “As much grab your food and go. The service entrepreneurs an inexpensive and as they would like to comply, they has an app as well—and while you flexible way to test new concepts and can’t.” have a default address, you can enter to determine where demand for such To make it easier for California’s others as well. So if you’re walking goods and services is strongest. mobile retailers to operate more down the street and you see a Spoon- But like food trucks, most mobile mobile-ly, Popuphood advocated for rocket car, you can place an order, retailers aren’t that mobile. They something it calls Standard Popup provide a local address, and poten- drive to a designated spot, stop, and Regulations Zones, or SPURZ. A bill tially get your meal in seconds rather wait for customers. And in the cur- introduced in the state’s legislature than minutes. rent regulatory landscape, even this last year would have created model For the moment, such functional- limited mobility is problematic. As guidelines that cities across the state ity is limited to Mac & Cheese Ital- soon as you start engaging in com- could adopt to regulate mobile retail- iano with Creamy Pesto or Grilled merce on a truck, most municipali- ers and other forms of temporary Chicken Apple Sausage with Chipo- ties require licensing of one sort or retail in a more streamlined way. tle BBQ Sauce. But imagine if Ama- another—one reason why Amazon But Gov. Jerry Brown vetoed the bill zon were to embrace this approach. might be happy just to stick with in September 2014, so now Filley is Suddenly, we’d be able to make hun- delivery for now. trying to fund the development of dreds, maybe thousands, of staple In addition, the rules and regula- a model ordinance through private items appear at our curbs, at speeds tions for how mobile retailers can sources, then encourage cities to that would even make George Jetson operate vary from city to city. “In adopt it once it exists. jealous. r Los Angeles, mobile boutique busi- nesses are restricted to operate on In the meantime, technology is Contributing Editor Greg Beato (gbeato@ soundbitten.com) writes from San Francisco. private property,” says AMRA presi- blurring the lines between retail and dent Stacey Jischke-Steffe. “Other delivery in intriguing ways. If the cities, such as Santa Monica, have transactions that occur on a truck

reason | January 2015 | 79 Artifact (Eric Mutchler) (Eric

Meet the ‘Reason’ from stainless steel on an EOSINT weapon as a company product, his M 280 3-D printer with a technique employer asked him to stop talking Brian Doherty called direct metal laser sintering, to media about the homemade gun. Asked why the 3-D-printed metal which uses a laser to heat metal The machine used to make the gun he designed has the word REASON powder. The whole piece, including Reason costs over a half million dol- emblazoned on its slide, engineer the inscriptions, can be reproduced lars. Still, the gun is an example of Eric Mutchler says, “Who can argue using downloadable CAD specs. the wide-ranging artistic, design, with reason?” Mutchler’s day job is with the 3-D and technical possibilities of per- Mutchler’s gun—which was not, printing firm Solid Concepts, which sonalized metal printing, which will alas, named after this magazine—also was recently acquired by the publi- almost certainly get progressively has the preamble of the Declaration cally held Stratasys. Mutchler worked cheaper and more widely available. r of Independence picked out on the on the Reason (and its predecessor, front of the grip, as well as a unique the 1911, which was released last year Brian Doherty ([email protected]) is a senior editor at reason. trigger designed to look like its cre- and has since been fired over 5,000 ator’s initial, M. times) on his own time. But after the The weapon was made mostly tech press erroneously identified the

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