Reason Magazine - Staff

Punk's Dead, You're Next

info@reason.com (Damon W. Root) — Tue, 08 Jul 2008 11:34:00 EDT

New York magazine's Alex Morris recently spent some quality time with the latest crop of NYC gutter punks, those unwashed Sid Vicious wannabes who crowd St. Mark's Place every summer, begging for change and literally stinking up many of the punk and hardcore shows. Here's a typical paragraph, giving Suvy, the star of the article, plenty of space to express his deepest thoughts:

Punk, says Suvy, is "the only view that makes sense to me." Work is for yuppies. Rent is for yuppies. Shelter is a basic human right. The government is bullshit. Corporations are bullshit. He "fucks capitalism" by pissing in the corner of the Dunkin' Donuts.

Wow, dude, that'll show those capitalists—or at least the poor employees responsible for cleaning up the mess. Here's Morris on two of Suvy's supporting players:

Alex goes to college, but during summer break he comes down to the city from Westchester to get stoned. Toast lives in Queens and wears Armani glasses and calls himself Toast "because I'm always toasted." They're both house punks, meaning that they have homes they sleep in every night and at least some money, and for this the squatter kids—even the ones from the city who can go home when it rains or if they need a good meal—find them both slightly suspicious and also intermittently useful for buying things like beer and weed. But make no mistake: A house punk is not a punk punk. They water down what's left of the scene.

"A house punk is not a punk punk." Did Morris actually type that sentence? Since when was homelessness a job requirement? Lefty favorite Joe Strummer (of the Clash) was the son of a diplomat, for heaven's sake, educated in boarding school. And what about New Jersey's hardest working band, the Misfits? Brothers Jerry Only and Doyle (bassist and guitarist, respectively) put in 12-hour days at their father's machine shop while singer Glenn Danzig ran the band's mail order Fiend Club business. Those guys definitely weren't squatting in Tompkins Square Park. Hell, even end of days Sid Vicious had a bed at the Chelsea Hotel.

This whole notion of watering down the scene reminds me of the lefties I used to know who thought historian Howard Zinn was more important than the immortal band Black Flag. For these types, let's call them P.C. punks, left-wing politics weren't just encouraged, they were required. I once actually argued with someone who said that guitarist Johnny Ramone didn't count since he was a Republican. Johnny's band (the Ramones) basically set the musical template followed by every punk rocker for the last three decades. If he doesn't count, nobody does.

Along the same lines, it's always interesting to remind the P.C. crowd that the Bad Brains, the legendary Afro-punks who combined Rastafarianism, reggae, and hardcore, also happened to be virulent homophobes. As Steve Blush records in his great oral history American Hardcore, Bad Brains's singer H.R. let loose with the occasional sermon, including, "We're in Babylon! This is holy Hell! San Francisco is Babylon! All these faggots and bald-headed women running around!" Try to squeeze that into A People's History of the United States!

All of this gets at one of the key problems with the New York piece. Morris buys into the idea of an "authentic" punk identity when the reality is an incoherent and frequently contradictory mess, blending music, attitude, and, yes, sometimes some pretty ridiculous politics. But not always.

For more reason punk coverage, check out Brian Doherty and Nick Gillespie on the P.C. eulogizing of Joey Ramone, Radley Balko on Los Lobos's L.A. punk origins, and Tim Cavanaugh on how the Clash's "Sandinista! sucks a million times more than Combat Rock."

The Decider?

info@reason.com (Damon W. Root) — Mon, 07 Jul 2008 18:01:00 EDT

Over at Balkinization, legal scholar Sanford Levinson throws some cold water on David Broder's description of Supreme Court Justice Anthony Kennedy as "arguably...the single most influential arbiter of domestic policy in the land." Not so fast, Levinson says:

The overestimation of the power of the Supreme Court, which usually includes Tocqueville's demonstrably wrong quotation from his 1835 book Democracy in America on all political issues turning into judicial issues, is one of the continuing scandals of American political analysis.... Why isn't it enough to say that the Supreme Court is an institution of some importance with regard to some issues and, therefore, that Kennedy plays a key role with regard to those particular issues (i.e., where the Court is otherwise evenly split on ideological grounds)?

Mark Tushnet made a related point in a great reason interview a few years back, arguing that the Court basically just affects American society at the margins. "10 years down the line," he maintained, "the society's going to be pretty much where it would've been even if the courts hadn't said a word about it."

I'm curious what reason's readers make of this. Is Kennedy as influential as Broder makes him out to be? What about the Court in general? One more thing to consider: Narrow majorities do issue landmark decisions. To take a recent example, D.C. v. Heller came down 5-4 in favor of an individual right to keep and bear arms for self-defense. And while Justice Kennedy's comments during oral arguments gave a strong indication of his eventual majority vote, it's at least conceivable that he might have voted the other way, hamstringing the Second Amendment for decades to come.

Workin' Man Blues

info@reason.com (Damon W. Root) — Thu, 03 Jul 2008 13:46:00 EDT

Over at The Nation's political blog, John Nichols reports on efforts by AFL-CIO Secretary-Treasurer Richard Trumka to get steelworkers and other union members to throw their support behind a black presidential candidate:

Trumka knew that the steelworkers had backed John Edwards for this year's Democratic presidential nomination—and that the union had only endorsed Obama when Edwards finally came around. He understood that a part of his job was to get a union that is especially strong in the battleground states of Ohio and Pennsylvania excited about a candidate who must win those states.

Trumka knew, as well, that there are steelworkers—and autoworkers and machinists and others—who are committed to the labor movement but cautious about backing a person of color for president. So the Pennsylvania populist went to the heart of the matter—challenging ignorance and fear and calling on the House of Labor to identify and reject the politics of race in order to elect an ally to the presidency.

Whole thing here.

Left unexamined is the American labor movement's long, ugly history of racism and discrimination, one that older left-leaning historians tried their best to downplay. But the problem historically wasn't just racist attitudes among white workers, it was the monopoly bargaining powers that the government granted to racist unions, allowing them to exclude blacks and other unwelcome groups from participating in the only game in town. For instance, under the collective bargaining practices established by the National Recovery Administration (which went into effect in 1933 as part of Franklin Roosevelt's National Industrial Recovery Act), a union representing a majority of employees was granted exclusive representation over all employees. White-controlled unions, in other words, were given a state-sanctioned monopoly, one that forbid competition from unions representing a minority of workers. Here's something I wrote about the practice in 2004:

While such compulsory unionism is routinely celebrated as a milestone for the American worker, many African Americans saw things differently. The NAACP's publication The Crisis, for example, decried the monopoly powers granted to racist unions by the NRA, noting in 1934 that "union labor strategy seems to be to obtain the right to bargain with the employees as the sole representative of labor, and then close the union to black workers." Members of the black press had something of a field day attacking the NRA, rechristening it the "Negro Removal Act," "Negroes Robbed Again," "Negro Run Around," and "No Roosevelt Again."

The Supreme Court unanimously struck the NRA down in 1935, but the collective bargaining provisions were reinstated a few months later via the National Labor Relations Act, also known as the Wagner Act, after its sponsor, Sen. Robert Wagner (D-N.Y.). And the Wagner Act, it's worth pointing out, originally contained a clause forbidding discrimination against African Americans, but it was removed at the behest of the AFL.

Needless to say, this is some of the necessary background you don't hear about when the pundits question Obama's ability to reach "working class" voters.

Palmer for President

info@reason.com (Damon W. Root) — Thu, 03 Jul 2008 12:17:00 EDT

First, Republican presidential wannabe Tom Tancredo told America that when the terrorists strike, "I'm looking for Jack Bauer," a reference to the federal agent and torture enthusiast portrayed by Kiefer Sutherland on TV's 24. Now, Dennis Haysbert, the actor who portrayed President David Palmer on several seasons of the hit show, is taking partial credit for the phenomenon known as Barack Obama. From CNN's account:

"If anything, my portrayal of David Palmer, I think, may have helped open the eyes of the American people," said the actor, who has contributed $2,300 to the Illinois Democrat's presidential campaign.

"And I mean the American people from across the board—from the poorest to the richest, every color and creed, every religious base—to prove the possibility there could be an African-American president, a female president, any type of president that puts the people first," he said Tuesday.

Culture matters, no doubt about it. So what about President Tom Beck, expertly portrayed by the great Morgan Freeman in the asteroid epic Deep Impact? (I retain no memory of the president's color or creed in the related Bruce Willis classic Armageddon.) And I suppose this means that Geena Davis's turn on Commander in Chief wasn't enough to save Hillary Clinton's floundering campaign.

As usual, The Onion was there first.

Rush Limbaugh, Francophile

info@reason.com (Damon W. Root) — Wed, 02 Jul 2008 18:13:00 EDT

There are tons of fascinating details in the New York Times's long profile of talk radio king Rush Limbaugh, from his twelve-step pill purge to his dismissals of competitors Michael Savage ("He's not even in my rearview mirror") and Sean Hannity ("I have no competitors...Hannity isn't even close to me"). But who knew Limbaugh favored pommes frites over freedom fries?

Unlike many right-wing talk-show hosts, Limbaugh does not view France with hostility. On the contrary, he is a Francophile. His salon, he told me, is meant to suggest Versailles. His main guest suite, which I did not personally inspect, was designed as an exact replica of the presidential suite of the George V Hotel in Paris.

Whole thing here.

Damon Root on the Radio

info@reason.com (Damon W. Root) — Wed, 02 Jul 2008 14:30:00 EDT

I’ll be on Jerry Hughes’s Straight Talk radio show today at 3 p.m. to discuss the Supreme Court's recent habeas corpus and Second Amendment decisions.

Click here to listen live.

Individual Rights and the Supreme Court

info@reason.com (Damon W. Root) — Tue, 01 Jul 2008 18:25:00 EDT

George Mason's David Bernstein wrote a great article for the Cato Institute last week making the necessary point that the Supreme Court's liberals aren't necessarily its most reliable defenders of individual rights. As Bernstein notes, the dissents in D.C. v. Heller presented "the remarkable spectacle of four liberal Supreme Court justices tying themselves into an intellectual knot to narrow the protections the Bill of Rights provides." As he notes, there's also liberal malfeasance on cases dealing with election-related speech, eminent domain abuse, racial classifications, and "hate speech" to keep in mind.

The only thing I would add is that the Court's conservatives aren't exactly eager to take up the slack. As Radley Balko pointed out, Chief Justice John Roberts and Justice Samuel Alito are

judges who defer to police and prosecutors on criminal justice issues, who would put broad restrictions on your ability to sue government agents who have wronged you, and who embrace the Unitary Executive, essentially the belief that when it comes to foreign policy and national security (and a number of other issues), the president's powers are unlimited, absolute, and unchecked by either Congress or the courts. That isn't an exaggeration.

Justice Antonin Scalia, of course, voted the wrong way in Gonzales v. Raich, siding with the majority against California's medical marijuana law. And in his ugly Boumediene v. Bush dissent, Scalia viciously asserted that recognizing habeas corpus for enemy combatants held at Guantanamo Bay "will almost certainly cause more Americans to be killed."

Perhaps it goes without saying, but wouldn't a few genuine libertarians be a nice improvement?

"Yeah, sure, I know, it's a free country and I ain't got the right. But I got a badge. What do you got?"

info@reason.com (Damon W. Root) — Tue, 01 Jul 2008 09:42:00 EDT

Yesterday's New York Times brought the shocking and bizarre story of "Sergeant Bill" Jakob, the unemployed former trucking company owner and wedding-performing minister (among other things) who apparently hoodwinked the entire town of Gerald, Missouri into thinking he was a federal agent sent to save them from the scourge of methamphetamine.

The whole outrageous and sadly hilarious thing is well worth your time, but here are a few particularly notable details:

In addition to having a badge and a car that seemed to scream law enforcement, Mr. Jakob offered federal drug enforcement help, [Mayor Otis] Schulte said, (a notion local officials said must have somehow grown out of their recent application for a federal grant for radio equipment) and asked [Police] Chief McCrary to call what he said was his supervisor's telephone number to confirm Gerald's need for his help.

When the call was placed, a woman—whose identity is unknown—answered with the words "multijurisdictional task force," and said that the city's request for federal services was under review, the mayor said. Mr. Schulte said he now suspects that Mr. Jakob adapted the nonexistent task force name from the "Beverly Hills Cop" movies starring Eddie Murphy.

Read it and weep.

Arming America

info@reason.com (Damon W. Root) — Fri, 27 Jun 2008 18:00:00 EDT

For the past 32 years, law-abiding residents of Washington, D.C. have been at the mercy of one of America's most unforgiving gun control laws: a total ban on the possession of handguns in the home, as well as strict trigger lock and disassembly requirements for rifles and shotguns. Taken together, these restrictions have left Washingtonians unable to mount any sort of meaningful defense of themselves, their families, and their homes from armed intruders.

But things changed on Thursday. In a landmark 5-4 decision in the case of District of Columbia v. Heller, the Supreme Court held that D.C.'s gun ban was unconstitutional under the Second Amendment since it deprived individuals of their right "to use arms for the core lawful purpose of self-defense." In a forceful, tightly argued opinion, Justice Antonin Scalia declared that the amendment protects an essential individual right, one that is "unconnected with service in a militia."

One major thing the decision didn't do, however, was directly address a crucial question going forward: whether the constitutional right to keep and bear arms is applicable against the states as well as the federal government (which administers Washington, D.C.). Under what's known as the incorporation doctrine, the Supreme Court has gradually ruled that the Fourteenth Amendment applies many of the protections contained in the Bill of Rights against infringement by state and local governments. The Second Amendment, however, has been glaringly absent from this process. Did Heller change that, too?

Technically no. But since the Court wasn't asked to settle that matter, the fact that it didn't do so is no cause for alarm. In fact, the decision offers cause for some real hope. Justice Scalia's extensive reliance on historical sources and scholarship sends a very promising signal to those who'd like to see the Second Amendment enforced against the states. If history matters, and Heller certainly says that it does, then strong evidence for incorporation is likely to carry real weight in future litigation.

So let's consider the origins of the Fourteenth Amendment, which states in part, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As legal historian Michael Kent Curtis makes clear in his definitive book, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights, the radical Republicans who drafted and then spearheaded the 1868 ratification of the amendment clearly intended and understood it to apply the entire Bill of Rights to the states.

In short, these legislators, most of whom had been active in the anti-slavery and abolitionist movements, wanted to secure the life, liberty, and property of the recently freed slaves and their white allies in the former Confederate states. This quite obviously and quite necessarily included the right to keep and bear arms for purposes of self-defense. Ohio Rep. John Bingham, for instance, the author of the Fourteenth Amendment's crucial first section, which was quoted above, declared that "the privileges and immunities" it refers to "are chiefly defined in the first eight amendments to the Constitution." Similarly, Sen. Jacob Howard of Michigan, who presented the amendment to the Senate, described its object as "to restrain the power of the States and compel them at all times to respect these great fundamental guarantees," including "the right to keep and to bear arms." For a state or federal judge following the methodology laid out in Heller, such information could prove very persuasive.

In modern-day Chicago, meanwhile, gun rights activists have already seized the initiative. Within hours of Heller's announcement, the Second Amendment Foundation and the Illinois State Rifle Association filed a lawsuit in federal court challenging the city's draconian handgun ban, a law that has deprived Chicagoans of the right to self-defense for the past quarter of a century. Benna Solomon, deputy corporation council for the city, responded by telling the Chicago Tribune that "the 2nd Amendment does not apply to state and local government," adding: "We are prepared to aggressively litigate this issue and defend this ordinance."

Alan Gura, the attorney who successfully argued Heller before the Court, and who is now representing the plaintiffs in the Chicago case, is more than ready. As he told reason this week, "The next step is obviously 14th Amendment incorporation. I'm looking forward to leading that fight."

Damon W. Root is an associate editor of reason.

Gun Powder, Trigger Locks, and Justice Stephen Breyer

info@reason.com (Damon W. Root) — Thu, 26 Jun 2008 12:45:00 EDT

During the oral arguments for D.C. v. Heller last March, one of the more interesting—and, as it turns out, important—exchanges concerned a comparison between Washington, D.C.'s strict trigger lock provisions and early American laws regulating the storage of gunpowder in cities. In essence, the question was whether or not D.C.'s trigger locks left residents effectively unarmed and thus unable to protect their homes, and were there any historical precedents for this outcome? In his dissent today, Justice Stephen Breyer returned to this comparison, arguing that even if the Second Amendment does protect an individual right to self-defense (which he accepts, though he maintains that the amendment does not contain "a specific untouchable right to keep guns in the house to shoot burglars"):

colonial history itself offers important kinds of gun regulation that citizens would then have thought compatible with the "right to keep and bear arms," whether embodied in Federal or State Constitutions, or the background common law. And those examples include substantial regulation of firearms in urban areas, including regulations that imposed obstacles to the use of firearms for the protection of the home.

Thus Breyer accepts the District's position that the handgun ban and accompanying trigger lock provisions do not deprive individuals of the right to self-defense. Moreover, they represent "a permissible legislative response to a serious, indeed life-threatening, problem," that of "high-crime urban areas."

Supreme Court Watch

info@reason.com (Damon W. Root) — Wed, 25 Jun 2008 11:31:00 EDT

Big morning today at the Supreme Court, which ruled that the death penalty is unconstitutional in cases of child rape "where the crime did not result, and was not intended to result, in death of the victim." Justice Anthony Kennedy wrote the 5-4 majority, which was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and David Souter. Justice Samuel Alito dissented, joined by Justices Antonin Scalia and Clarence Thomas and by Chief Justice John Roberts. You can find the decision here.

For those of us eagerly awaiting the Court's decision in DC v. Heller, which looks at the constitutionality of Washington, DC's sweeping handgun ban, as well as whether the Second Amendment protects an individual or collective right to keep and bear arms, that ruling will be issued tomorrow. And it is looking very likely that Justice Scalia will be the author of a plurality, if not a majority decision, which suggests a big win for individual rights.

"When it comes to public health, I don't think I have any apology for that"

info@reason.com (Damon W. Root) — Wed, 25 Jun 2008 10:01:00 EDT

At his great food blog Crispy on the Outside, reason contributor Baylen Linnekin has some choice words for the Texas officials that nearly derailed a Juneteenth celebration over a few hundred "illegal" sandwiches. From the KSWO story:

Black Cultural Council President Jo Ann Davenport-Littleton said health inspectors told organizers it was illegal for the group to serve 600 free barbecue sandwiches because the sandwiches weren't prepared at the site where they were served.

Organizers say volunteers and the black community felt "humiliated" by the incident.

[...]

The county's top health official, Gino Solla, said state law prohibits any food service operation from having food prepared in a private home for public consumption.

Linnekin also found this gem from the charming Mr. Solla:

"We have to be aggressive when the public interest is involved," [Solla] told the [Dallas Morning News]. "If there was any kind of forwardness and if it was perceived as rude, that I'll apologize for. But when it comes to public health, I don't think I have any apology for that."

Whole thing here.

Mr. Modesty

info@reason.com (Damon W. Root) — Tue, 24 Jun 2008 17:15:00 EDT

During his Senate confirmation hearings, soon-to-be Chief Justice John Roberts stressed his belief that the Supreme Court should practice judicial "modesty," a respect for precedent and consensus that he extended all the way to the abortion-affirming Roe v. Wade, a decision he described as "the settled law of the Land."

Did Roberts mean what he said? Jeffrey Rosen thinks so. In a provocative piece for the New Republic, Rosen argues that while it's too early to say for sure,

it seems increasingly clear that liberals dodged a bullet when President Bush nominated [Roberts] to be chief justice. Instead of siding with conservative extremists like Clarence Thomas, who are eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power whenever possible, Roberts prefers narrow opinions that can attract support from the center. Liberals ought to applaud this instinct because, even if Barack Obama gets to appoint the next justice or two, it's the only thing standing between them and a Court eager to roll back progressive reforms.

Setting aside Rosen's tiresome crusade against the non-existent "Constitution-in-Exile" movement, the point about Roberts and narrow opinions rings true. As Rosen learned from the chief justice himself, Roberts has, among other things, encouraged the Court to hear more business cases, since those tend not to divide the justices along stark ideological lines, contributing to "a culture and an ethos that says, 'It's good when we're all together.'"

Interestingly, Rosen's conclusions are very different from those of other liberal legal scholars, particularly New York University's Ronald Dworkin, who has argued that Roberts and his fellow conservatives have been fomenting a revolution that is "Jacobin in its disdain for tradition and precedent."

As evidence against such claims, Rosen points to the differences between the recent habeas dissents of Roberts and Justice Antonin Scalia. There is definitely something to that. As I've previously noted, Scalia's dissent is an ugly, even menacing document, while Roberts's makes the surprising point that, "the habeas process the Court mandates will most likely end up looking a lot like the [Detainee Treatment Act] system it replaces." That's a long way from Scalia's vicious assertion that Boumediene v. Bush "will almost certainly cause more Americans to be killed."

But of course we're not done with the current term yet. There's still the eagerly anticipated District of Columbia v. Heller, where the Supreme Court will decide on the constitutionality of Washington, DC's sweeping gun ban and most likely settle whether the Second Amendment protects an individual or a collective right to keep and bear arms. That decision may come as early as tomorrow morning. We'll see if Rosen still wants to call this term "something of a bipartisan lovefest" after that.

Eminent Domain Abuse in Brooklyn

info@reason.com (Damon W. Root) — Mon, 23 Jun 2008 16:21:00 EDT

As previously noted, today is the third anniversary of the Supreme Court's terrible Kelo decision, which upheld New London, Connecticut's use of eminent domain to seize private property on behalf of the Pfizer Corporation. Unfortunately, though perhaps fittingly, the Court today signaled its unwillingness to revisit the issue, refusing to hear the case of Goldstein v. Pataki, one of the first major eminent domain appeals since the Kelo ruling came down.

At issue in Goldstein is the Atlantic Yards development in Brooklyn, New York, a 22-acre boondoggle centered on a new taxpayer-subsidized basketball stadium for the New Jersey (soon-to-be Brooklyn) Nets. All told, more than 40 business owners and tenants face losing their property to the real estate developer (and New Jersey Nets owner) Bruce Ratner, whose Forest City Ratner Companies is overseeing the project along with New York's quasi-public Empire State Development Corporation. As someone who just relocated from one of the thriving neighborhoods sitting in dangerous proximity to the proposed site, I'm here to tell you that the Atlantic Yards will be a catastrophe and a disgrace, ruining many more lives and livelihoods than this lawsuit could ever hope to reflect.

But all hope isn't lost. Matthew Brinckerhoff, lead attorney for the plaintiffs, has declared his intentions to take the fight to New York's state courts:

We are, of course, disappointed that the Court declined our request to hear this important case. This is not, however, a ruling on the merits of our claims. Our claims remain sound. New York State law, and the state constitution, prohibit the government from taking private homes and businesses simply because a powerful developer demands it. Yet, that is what has happened. Recent events have revealed that the public, and the Public Authorities Control Board were sold a bill of goods by Ratner and the Empire State Development Corporation. We now know that Ratner's project will cost the public much more than it will ever receive.

Another interesting fact: Justice Samuel Alito noted that he would have granted review to the case. No other member of the Court shared their votes, nor is it common for them to do so when simply denying review. While this doesn't reveal how Justice Alito would have actually voted on the case, it does suggest that he's a potential ally in future property rights fights.

What Ever Happened to the Kelo House?

info@reason.com (Damon W. Root) — Fri, 20 Jun 2008 10:17:00 EDT

This Monday is the third anniversary of Kelo v. City of New London, the notorious decision where the Supreme Court upheld that city's use of eminent domain on behalf of the Pfizer Corporation. So what's the status of the "comprehensive" and "revitalized" development site today? Here's the Institute for Justice, the libertarian public interest firm that litigated the case:

Like so many other projects that use eminent domain and rely on taxpayer subsidies, New London's Fort Trumbull project has been a failure. After spending $78 million in taxpayer dollars, the city of New London and the private developer have engaged in no new construction since the project was approved in 2000. Indeed, since the property owners disputing the takings owned less than two acres in a 90-acre project area, the city has always had a vast majority of the land available for development. Yet, no new development has occurred. The preferred developer for part of the site, Corcoran Jennison, recently missed its latest deadline for securing financing for building on the site and was terminated as the "designated developer."

The property at the center of the case, the house owned by plaintiff Susette Kelo, has since been relocated in its entirety to another part of town. And tomorrow is the grand re-opening, complete with a ribbon cutting ceremony. If you're in the area, stop by and thank Susette Kelo and the fine folks at the Institute for Justice for fighting the good fight. Details here.

"But the really new thing is that the authorities are coming to our attention."

info@reason.com (Damon W. Root) — Wed, 18 Jun 2008 12:30:00 EDT

The science fiction blog io9 has a great interview up with cyber/steam/techno-punk novelist William Gibson, touching on everything from the surveillance state to Godzilla. Here's Gibson's response to being dubbed a "dystopian" writer:

None of us ever live in dystopia. That's an imaginary extreme. They just live in shitty cultures. And these societies [in my books] seem dystopian to middle class white people in North America. They don't seem dystopian if you live in Rio or anywhere in Africa. Most people in Africa would happily immigrate to the Sprawl.

Whole thing here. reason's legendary look at the upside of "zero privacy" here.

Is the Habeas Ruling Really One of the Worst Decisions in American History?

info@reason.com (Damon W. Root) — Wed, 18 Jun 2008 07:59:00 EDT

As Matt Welch recently noted, John McCain is none too happy with Boumediene v. Bush, calling the Supreme Court's recognition of habeas corpus for enemy combatants "one of the worst decisions in the history of this country." Could that possibly be true? As a measuring stick, I'd suggest using The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, a new book by the Cato Institute's Robert Levy and the Institute for Justice's Chip Mellor.

On issues ranging from eminent domain abuse to the restriction of civil liberties during wartime, Levy and Mellor paint a consistent—and consistently depressing—picture of the Court upholding and enhancing government actions at the expense of individual rights. That's as good a definition of a "worst decision" as you'll ever get: state power trumping individual liberty.

Where does Boumediene fall on that scale? Even if you accept Chief Justice John Roberts's dissent, which argues that the Court permanently weakened the separation of powers by substituting its judgment for that of "the people's representatives," the decision hardly sinks to the depths of, say, Korematsu v. United States, where the majority upheld Franklin Roosevelt's internment of Japanese Americans during World War II.

In Roberts's view, Congress already protected "whatever rights the detainees may possess" via the Detainee Treatment Act, making the Court's actions both unwarranted and unnecessary. Moreover, his dissent predicts that, "the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces." If this is correct, then the real problem with Boumediene isn't the risk it poses to national security (as McCain has stressed) but its long-term political fallout. That's at least a debatable point, though I'd argue that the Court has upheld the separation of powers by exercising a necessary check on the other branches. Furthermore, as legal blogger Marty Lederman has noted:

On the basic habeas question, perhaps the most explanatory line of the majority opinion is this one: "The test for determining the scope of [the Suspension Clause] must not be subject to manipulation by those whose power it is designed to restrain." In other words, because the Government chose to detain these prisoners at GTMO for the very purpose of avoiding a judicial check on the legality of the detentions, the Court will ensure that the constitutional guarantee extends to the naval base.

But for the last word, I turn to the increasingly libertarian George Will, whose column yesterday made short work of McCain's legal scholarship:

Did McCain's extravagant condemnation of the court's habeas ruling result from his reading the 126 pages of opinions and dissents? More likely, some clever ignoramus convinced him that this decision could make the Supreme Court—meaning, which candidate would select the best judicial nominees—a campaign issue.

"People should go ahead and obey the law, keep their mouths shut, and let the government run the war."

info@reason.com (Damon W. Root) — Mon, 16 Jun 2008 12:39:00 EDT

On this day in 1918, Socialist Party leader Eugene V. Debs gave a speech in Canton, Ohio denouncing America's participation in what we now call World War I. For this "crime," Debs would spend nearly three years rotting in prison, convicted of violating Woodrow Wilson's vile Espionage Act, which essentially made it illegal to criticize the government during wartime (Wilson later refused to pardon Debs, leaving that act of basic human decency to the criminally underrated Warren G. Harding). That's the story told in Ernest Freeberg's new Democracy's Prisoner: Eugene V. Debs, the Great War, and the Right to Dissent, which received a big thumb's up from Peter Richardson in yesterday's Los Angeles Times. Here's Richardson on the climate of obedience and cowardice that helped Wilson get his way:

Throughout this time, many civic groups and public officials defended the Espionage Act. One leader of the American Defense Society declared, "Those who are not for us, must be against us." A congressman advised: "People should go ahead and obey the law, keep their mouths shut, and let the government run the war." Supreme Court Justice Oliver Wendell Holmes Jr. dismissed criticism of the court's unanimous ruling against Debs as "a lot of jaw about free speech."

Whole thing here.

Did the Supreme Court Make Things Worse for Future Enemy Combatants?

info@reason.com (Damon W. Root) — Sat, 14 Jun 2008 19:09:00 EDT

There's a lot worth thinking about in Justice Antonin Scalia's harsh Boumediene v. Bush dissent, but one passage jumped out right away. After noting that the Bush administration used the naval base at Guantanamo Bay precisely because it believed that enemy combatants would not enjoy habeas corpus and other constitutional rights while being held there, Justice Scalia suggests the following: "Had the law been otherwise, the military surely would not have transported prisoners there, but would have kept them in Afghanistan, transferred them to another of our foreign military bases, or turned them over to allies for detention." Here's the kicker: "Those facilities might well have been worse for the detainees themselves."

Given that "allies" such as Egypt and Syria regularly torture their prisoners, I'd certainly agree that things "might well have been worse" elsewhere. But isn't Justice Scalia contradicting President Bush, who famously declared that "torture is never acceptable, nor do we hand over people to countries that do torture." And maybe I'm reading too much into it, but Scalia's words sure sound like an implied threat. You liberals think Guantanamo is bad? Next time you won't even know where the prisoners are held.

A Man's Home is Another Man's Castle

info@reason.com (Damon W. Root) — Wed, 11 Jun 2008 15:00:00 EDT

Last Tuesday, voters in California faced the choice between two statewide initiatives, each claiming to protect property rights against eminent domain abuse. The loser, Proposition 98, which was sponsored primarily by the Howard Jarvis Taxpayers Association, would have imposed significant limits on the ability of state and local officials to seize private property using eminent domain, and would have phased out rent control everywhere in California. The winner, Proposition 99, which was championed by the League of California Cities, will do neither of those things.

In fact, despite being titled the "Homeowners and Private Property Protection Act," Prop. 99 will dramatically undermine the rights of California property owners, farmers, landlords, and renters. Of particular concern is the fact that Prop. 99 specifically protects only "owner-occupied residence[s]" from eminent domain abuse, leaving apartment buildings and other rental properties, not to mention family farms, churches, and small businesses, wide open for the taking. And even that flimsy safeguard contains loopholes. Under the most notable exception, owner-occupied residences may be condemned on behalf of "private uses incidental to, or necessary for," public works and improvements (emphasis mine). As George Mason University law professor Ilya Somin notes, "This means that homes could still be taken for transfer to private developers if the proposed project allocated some space for a ‘public' facility such as a community center or library."

So what happened? Did Prop. 99 trick voters into thinking they were protecting property rights when they were actually undermining them? Or did a majority of Californians simply reject Prop. 98's controversial attack on rent control?

The short answer is yes to both. As critics charged, Prop. 99 looked like a legitimate reform measure, despite the fact that it actually leaves city and state officials with vast powers to condemn and seize property. Moreover, for those voters opposed to eminent domain abuse but unaware of Prop. 99's fine print, it would have made sense to vote yes on both measures, just to be safe. Yet under Prop. 99, if both measured passed, "the provisions of this measure [99] shall prevail in their entirety." In other words, Prop. 99 benefited—by design—from both intentional and miscast votes.

But Prop. 98's critics had a point, too. Limiting what a landlord charges in rent is a far cry from seizing somebody's house and handing the property over to a developer. Furthermore, while reforming eminent domain is a popular issue in California (and elsewhere), ending rent control is highly controversial. So not only was including the anti-rent control plank a bad strategic move, it gave Prop. 98 the appearance of bad faith as well. To put it another way, why bundle an unpopular proposal with an extremely popular one unless you're trying something fishy?

In hindsight, it seems clear that Prop. 98 should have been a straightforward assault on eminent domain abuse. That approach would have attracted a broad coalition of support. Consider the various liberal and left-of-center voices that spoke out against Kelo v. City of New London (2005), where the Supreme Court allowed the Pfizer Corporation to acquire private property via eminent domain under the city's "economic revitalization" scheme. Rep. Maxine Waters (D-Calif.), for instance, declared, "the taking of private property for private use is in my estimation unconstitutional, un-American, and is not to be tolerated."

Similarly, the National Association for the Advancement of Colored People (NAACP), in the amicus curiae brief it filed on behalf of the victimized Kelo homeowners, charged that not only were Kelo-style takings in violation of the Constitution, their burden "has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and the economically disadvantaged." In California, however, groups representing racial and ethnic minorities and the elderly overwhelmingly lined up against Prop. 98, a testament to the measure's narrow appeal.

But the future isn't entirely bleak. Chip Mellor, President of the Institute for Justice, the libertarian public interest firm that litigated Kelo, recently told reason that the outcry against the Court's decision has resulted in forty-two states enacting "laws that change the status quo that was in existence at the time of Kelo." And while not all of these laws are perfect, "all of them are better than what existed before."

Prop. 99, of course, is now the exception to that statement, but Mellor's point remains strong. The Kelo backlash has sparked eminent domain fights from Brooklyn, New York to Raytown, Missouri. Too bad the authors of Prop. 98 squandered their shot at winning a real victory in California.

Damon W. Root is a reason associate editor.

I Got a Letter from the Government the Other Day

info@reason.com (Damon W. Root) — Fri, 06 Jun 2008 10:56:00 EDT

Libertarian heavyweight Robert Higgs is none too happy about those "economic stimulus" checks currently winding their way to our bank accounts:

There is, however, a little catch for you younger people: because the government was already running a deficit, its outlays for the stimulus payments must all be covered by borrowing, which means that the public debt will rise by the full amount of the payments. And guess who will be responsible for servicing that additional debt and paying it off when it matures. If you said "we, the U.S. taxpayers, will be responsible," then give yourself an A in the course. In short, we are getting a check from the government today, but at the same time, we are also being given the privilege of paying that same amount back, with interest, in the future.

Whole thing here.

Cue "The Times They Are A-Changin'"

info@reason.com (Damon W. Root) — Fri, 06 Jun 2008 09:42:00 EDT

Speaking to The Times (London) about an exhibition of his sketches opening next week in England, Bob Dylan tips his leopard skin pillbox hat to the Democratic nominee:

"Well, you know right now America is in a state of upheaval," he says. "Poverty is demoralising. You can't expect people to have the virtue of purity when they are poor. But we've got this guy out there now who is redefining the nature of politics from the ground up...Barack Obama. He's redefining what a politician is, so we'll have to see how things play out. Am I hopeful? Yes, I'm hopeful that things might change. Some things are going to have to." He offers a parting handshake. "You should always take the best from the past, leave there and go forward into the future," he notes as the door closes between us.

Whole thing here. And don't miss Brian Doherty's classic 2001 reason account of Dylan's "wonderfully inauthentic art."

California Voters Endorse Eminent Domain Abuse

info@reason.com (Damon W. Root) — Wed, 04 Jun 2008 10:37:00 EDT

Voters in California yesterday overwhelmingly supported Proposition 99, a ballot measure that will significantly empower state and local officials to seize private property via eminent domain, and rejected Proposition 98, which would have protected property rights and ended rent control. As legal scholar Ilya Somin noted in the Los Angeles Times, Proposition 99, though masquerading as a defense of private property, was actually sponsored by groups representing counties, cities, and other redevelopment interests who drafted it specifically to counter Proposition 98. Among other crimes, Proposition 99 will protect only owner-occupied residences from condemnation, leaving apartment buildings and other rental properties wide open for abuse. Moreover, as Somin observed:

Even the protection for homeowners covered under Proposition 99 is likely to be ineffective, because the measure allows the condemnation of owner-occupied homes if they are "incidental" to a "public" project. This means that homes could still be taken for transfer to private developers if the proposed project allocated some space for a "public" facility such as a community center or library.

Proposition 98, on the other hand, would have placed significant limits on such abuse. But while that might have gone over with the voters, ending rent control was far less popular, even though the law would only affect rent controlled apartments once they became vacant, thus leaving current tenants unaffected. Gov. Arnold Schwarzenegger came out against Prop. 98, however, claiming it "would undermine California's ability to improve our infrastructure."

Finally, as the Pacific Legal Foundation's Timothy Sandefur has warned, Prop. 99 will "make things far worse not only by providing fake protection, but because the courts would interpret it as meaning that Californians did not want more serious protections for property rights."

Just A Boogie Woogie Country Man

info@reason.com (Damon W. Root) — Tue, 03 Jun 2008 11:51:00 EDT

In the latest New York Review of Books, Elizabeth Drew takes a long look at Virginia Senator, Vietnam vet, and rumored Obama running mate Jim Webb. It's a flattering profile, though I'm not sure if this bit will win over the Review's genteel readership:

Webb's fierce pride in his own people tells us a great deal about him. Though he grew up in different parts of the country, he identifies most closely with the people who live in the mountains and hollows of southwest Virginia, among whom he has countless relatives. His father came from there and he has a brother living there. Webb proudly describes his brother as "a real mountain man." The Scots-Irish, he wrote, produced the nation's warriors and its country music, and "the building blocks of America's working classes." Yet, he said, "no other group has been so denigrated, attacked, and even feared by America's ever more interconnected ruling elites."

Then there's this:

In his writings, as well as in his new book, Webb has argued that a combination of blacks and the Scots-Irish working class could form an electoral majority. He argues that they have similar grievances: lack of adequate education and health care, job training and job opportunities; and that both have been put upon or neglected by the elites. To him, the basic issue is more one of class than of race.

Webb's got a point here. I distinctly remember the rapper Ice T arguing sometime in the early 1990s that rap and country music were really very similar. Both were about hard living, good times, local pride, and so forth. The blues, of course, shares a number of common ancestors with country music.

So in the spirit of racial harmony and urban-hillbilly unity, I submit Brooklyn's country heroes Uncle Leon and the Alibis performing Sir Mix-A-Lot's "Baby Got Back."

I Cannot Live Without Books

info@reason.com (Damon W. Root) — Mon, 02 Jun 2008 17:01:00 EDT

Writing from the annual publishing industry brouhaha BookExpo America, which is being held this year in Los Angeles, New York Times reporter Edward Wyatt chronicles the fear and resentment sparked by electronic reading gadgets such as Amazon's Kindle. Have e-book buyers forsaken the physical originals? "We don't see people buying both versions," one publishing executive told Wyatt. "I think there is almost a one-to-one cannibalization."

For a more optimistic, or at least more idiosyncratic case for the printed word, the great urban historian Luc Sante offers this gem at the end of a long, discursive Wall Street Journal essay on the endless book collecting that has shaped and dominated his life:

I would very much miss books as material objects were they to disappear. The tactility of books assists my memory, for one thing. I can't remember the quote I'm searching for, or maybe even the title of the work that contains it, but I can remember that the book is green, that the margins are unusually wide, and that the quote lies two-thirds of the way down a right-hand page. If books all appear as nearly identical digital readouts, my memory will be impoverished.