Monday, August 23, 2010

Obama the "Man of the Year"—for Free Marketeers

The Cato Institute's Dan Mitchell points to the Libertarian Party's tongue-in-cheek designation of President Obama as its "Man of the Year" to support his contention that the free-market movement needed to take one step back in 2008 in order to take two steps forward.

Mitchell first notes that Senator McCain would not have implemented a free-market agenda:
McCain’s healthcare plan also was bad, and surely would have become even worse as it meandered through a legislative process controlled by Harry Reid and Nancy Pelosi. Moreover, cap-n-trade and a value-added tax would have been much more likely under a McCain Administration. . . . In short, a McCain victory would have meant continued growth of government with no prospect of a conservative/libertarian renewal. Obama’s victory has been giving us bad policy, of course, but at least there’s now a backlash for freedom.
Mitchell then proceeds to argue that President Obama's statist policies have spurred a "renaissance" in the free-market movement. He also points out that the 1976 Carter and 1992 Clinton victories resulted in the 1980 Reagan and 1994 Republican Congressional victories.

Hopefully the 2008 Obama victory will result in similar Republican revolutions—and the Republicans will implement a solid free-market agenda.

Thursday, August 19, 2010

Reversal Likely in 10th Circuit Cross Case

Image found on
A Tenth Circuit panel just ordered the removal of 14 crosses memorializing fallen Highway Patrol officers from a Utah roadside.  The court held that these crosses violate the Establishment Clause because they "have the impermissible effect of conveying to the reasonable observer the State endorses a certain religion."

Ah, the endorsement test: Justice O'Connor's proposed means of further convoluting the Supreme Court's hopelessly tangled web of Establishment Clause jurisprudence known as the Lemon test.

The Court adopted the Lemon test almost forty years ago for adjudicating Establishment Clause issues. Lemon v. Kurtzman provides that government action satisfies the Establishment Clause only if it (1) involves a secular purpose; (2) does not have the primary effect of advancing or inhibiting religion; and (3) does not result in "excessive government entanglement" with religion.

Justice O'Connor opined about 25 years ago in a concurring (read: non-binding) opinion that a government endorsement of religion helps determine whether the government has violated Lemon's "secular purpose" prong.

And so, the Tenth Circuit concluded that "the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity."

My first response is . . . how does that violate the Establishment Clause? Let's set Supreme Court precedent aside for a second and examine the First Amendment's text. It states that "Congress shall make no law respecting an establishment of religion. . . ." Its underlying principle is that government may not establish religion. Is the State of Utah establishing Christianity by simply allowing the Utah Highway Patrol Association to use its own money to place crosses on public property? I can't imagine how—this does not coerce or intimidate anyone into adopting Christianity, nor does it prevent anyone from practicing another religion (or the lack thereof). In fact, private money pays for the crosses and there is no other demand for usage of the barren roadside space, so it costs the taxpayers nothing.

The inevitable rebuttal is that people of other faiths may feel uncomfortable with the potentiality that the government endorses Christianity (regardless of whether that is the actual case). I'm not unsympathetic to that argument on public policy grounds. However, public policy is the realm of the legislature, not the judiciary. If you have a problem with it, then write a letter to your local legislator. Don't use the judiciary as a tool to effectuate an agenda unsupported by our constitutional text.

However, even if you support the endorsement test, the crosses are still constitutional because a reasonable observer is unlikely to conclude that they constitute a state endorsement of Christianity. When I see a series of white crosses placed alongside a roadside, the image of Christ's crucifixion is not the first thing that enters my mind—the crosses bring to my attention that someone died there. In fact, unless opponents of the memorial advocate the morbid placement of skulls or coffins along the roadside, I cannot think of a more conspicuous symbol of death.

Fortunately, the Supreme Court is likely to clean up this mess. First Amendment expert Eugene Volokh points out that the majority of the Court opposes the endorsement test. Moreover, perennial swing voter Justice Kennedy recently wrote in the Salazar v. Buono opinion that a "cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs."

This strange coincidence seems to make it clear that the endorsement test will soon be thrown to the wayside, and the crosses may ultimately remain in place.

Thursday, August 12, 2010

New iOS Update to Fix iPhone 3G Problems

Here is a pretty fantastic video parodying the damage the new iPhone OS (4.0) has done to the iPhone 3G:

Sad, but true.

Fortunately, it looks like iOS 4.1 will fix these problems. Hopefully Apple will release it sooner than later.

Tuesday, August 10, 2010

Fed Monetizes 10% of National Debt

"Helicopter Ben," as depicted on
...and almost no one noticed.

The Federal Reserve announced today that it would reinvest the proceeds of its $1.3 trillion in mortgage-backed security (MBS) purchases into long-term Treasuries. Here is the official announcement, as reported by CNBC:
To help support the economic recovery in a context of price stability, the committee will keep constant the Federal Reserve's holdings of securities at their current level by reinvesting principal payments from agency debt and agency mortgage-backed securities in longer-term Treasury securities.
Translation: we fear deflation, so we're going to combat it with inflation.

Here are the facts: the Fed purchased $1.2 trillion in mortgage-backed securities over the past two years to drive down mortgage interest rates. The idea was to increase home sales by making mortgages more affordable. Today, the Fed announced what it will do with the proceeds of those investments: use them to finance our national debt.

In other words, the Fed is printing money out of thin air to pay our national debt.

This really shouldn't be a surprise, either. Ben Bernanke infamously stated in 2002 that he would fight potential deflation at all costs, including a "'helicopter drop' of money" into our economy. Again: fighting deflation with inflation.

Moreover, our politicians have no plan for paying off the $13.3 trillion debt they have created. Their only solution is to print more money.

Enter "Helicopter Ben." By purchasing $1.3 trillion of our $13.3 trillion debt, the Fed is wiping out 10 percent of our national debt simply by printing more money.

This "easy out" may sound attractive, but it devalues—or inflates—our currency. The more you have of something, the less valuable it becomes. After all, there is a reason why a nickel no longer buys you a cup of coffee. Unfortunately, wages—especially blue collar wages—rise much slower than prices. Savers especially suffer because the purchasing power of their cash drops like a rock, and the Fed is always late in raising interest rates.

But, politicians are OK with this because this allows them to pay back our debt with less valuable dollars.

The takeaway: inflation is coming. Bernanke stated this is his plan, and our political spendthrifts agree. Don't sit on large piles of cash, because you'll get slaughtered. Invest in gold and other hard assets, including real estate.

[Disclosure: I am long DGP, a gold ETN. Dammit Jim, I'm a lawyer, not a financial planner, so do your homework and consider consulting with an investment professional before you take my advice. Whatever you do, please don't sue me. Thanks.]

Monday, August 2, 2010

AP's Report of Miranda Rights' Death Greatly Exaggerated


STOP WHINING! is a new segment dedicated to the refutation (and occasional mockery) of needless whining. Just ask Arnold.

Most reporters do a poor job of covering court decisions. They tend to regard the courts as a public policy creator on par with the executive and legislature, rather than as an interpreter of the other branches' laws. This leads them to focus on political ramifications, rather than the substance of the interpretation itself.

Case in point: AP writer Jesse J. Holland's opinionated lamentation—thinly disguised as a news article—of the Supreme Court's recent Miranda-related holdings.

For context, the "Miranda rights" (to remain silent and request an attorney) are mandated by the Supreme Court's holding in Miranda v. Arizona, based upon an expansive reading of the Fifth Amendment's right for an individual to not "be compelled in any criminal case to be a witness against himself."

The headline itself declares Holland's personal bias: "High court trims Miranda warning rights bit by bit." This incendiary language is entirely inappropriate. First, the Supreme Court may only interpret—rather than create—our rights under the law, so these holdings do not "trim" our rights; they just signify that the Court previously erred in deciding that certain rights existed in the first place.

Second, regardless of Holland's opinion, it is poor form for a journalist to conspicuously inject his own bias into a news piece; that's why our newspapers are divided between "news" and "opinion" sections. I learned that basic lesson during high school journalism.

Substantively, the author's sarcastic, indignant tone demonstrates his ignorance of opposing viewpoints just as strong as his contempt for those who hold them.

The lead sentence previews one of his critical themes: "You have the right to remain silent, but only if  you tell the police that you're remaining silent."


He later elaborates that "the court's conservatives used their 5-4 advantage to rule that suspects must break their silence and tell police they are going to remain quiet if they want to invoke their 'right to remain silent' and stop an interrogation, just as they must tell police that they want a lawyer."

In other words, the police must cease an interrogation once a suspect signals a desire to speak to an attorney. Until then, the police may continue asking questions. Holland's indignation is odd, since this "new" rule just spells out a premise that any law student studying Miranda assumes to be true.

After all, it's pretty humorous to imagine a police interrogation under the author's apparently preferred rule that police must stop interrogating a suspect who does not request an attorney, but simply doesn't speak:

Detective: So, we caught you covered in the victim's blood, while clutching a bloody knife in a stabbing posture, and hovering over the victim's corpse. What do you have to say for yourself?

Suspect: ...

Detective: OH! You didn't respond to my question, so the Fifth Amendment obviously compels me to stop asking you questions! Forget that there are a thousand reasons you may not have answered me completely independent of your right to remain silent. The last thing society wants is for me to offend your delicate sensibilities by repeatedly talking until you admit that you just killed someone. After all, I just might bore you into uttering a false confession!

Me: This is preposterous! I as a libertarian believe that the primary purpose of law is to protect us from other persons, and from the state. This means the state certainly cannot compel us to confess against our will; this is the United States, not the Spanish Inquisition. But the law certainly does not prevent law enforcement officers from using reasonable means of securing honest, willful confessions from criminal suspects.

More importantly, why do we want the law to protect a suspect who honestly confesses to a crime absent illegitimate coercion? Justice Antonin Scalia once quipped in a dissenting opinion:
Nonthreatening attempts to persuade the suspect to reconsider that initial decision are not, without more, enough to render a change of heart the product of anything other than the suspect’s free will. Thus, what is most remarkable about the Miranda decision ... is its palpable hostility toward the act of confession per se, rather than toward what the Constitution abhors, compelled confession. The Constitution is not, unlike the Miranda majority, offended by a criminal’s commendable qualm of conscience or fortunate fit of stupidity. Dickerson v. United States, 530 U.S. 428 (2000) (Scalia, J., dissenting).

I'm sure Holland's heart is in the right place—preserving our civil liberties. Hopefully, Holland can see that the battle for the individual right against coerced confessions was won years ago—seeing as how we're squabbling over whether a suspect must burden himself by vocalizing his desire to remain silent, rather than sit in the interrogation room like a bump on a log.

Perhaps, then, Holland and other reporters will re-channel their energy and champion individuals whose property is seized in large quantities and redistributed to other individuals by the government.

OK, a blogger can dream, can't he?