Proponents of campaign finance regulation have thrown this trope around freely since 2010’s landmark Supreme Court ruling in Citizens United v. Federal Elections Commission. Fortunately, the Court never actually made such an absurd equation. It would be hard to take the Court seriously if it had.

But the phrase is not just a throwaway idiom. For those who push the idea to the public that the Court has ruled as such—opinion leaders who should (and maybe do) know better—the phrase serves to caricature the Court’s reasoning on campaign finance issues vis-à-vis the First Amendment. And the last thing America needs is to misunderstand the Court when it is actually doing its job: protecting constitutional freedoms from a meddlesome Congress.

The widespread mischaracterization likely stems from an earlier widespread mischaracterization, that of the ruling in Buckley v. Valeo (1976). Buckley overturned restrictions on independent political spending by citizens and associations, and on candidates’ personal spending. A shocking number of scholarly texts and newspaper citations assert that in Buckley the Court ruled that “money is a form of speech.” (Even Wikipedia’s open-source entry for Buckley claimed this at the time of writing.)

In Citizens United the Court went beyond Buckley, ruling that the federal government may not limit corporate or union spending on independent political expression. The ruling is consonant with the text of the First Amendment’s Free Speech Clause, “Congress shall make no law . . . abridging the freedom of speech.” Note that the clause concerns itself solely with its subject—Congress. The nature of the speaker—individual, group, or corporation—was apparently of no matter to the framers.

But putting aside the merits of the Court’s ruling, what relationship does it cast between money and speech?

Though reams of learned text have been devoted to the topic, most economists agree on the very basics of what money is. It is credit for service rendered. Even when we purchase a good, all we pay for is the service of the raw materials having been located, gathered, altered, combined, and then brought to a location convenient to us. If I have a dollar, then I have made a sacrifice (assuming it was not a gift or loot . . . and I’m not a banker!). I expect to be able to use that dollar to induce another person to make a sacrifice on my behalf.

Services can exist independently of money, as in a barter system or when we perform a service directly for ourselves. But every service we receive, however it may come to us, requires a sacrifice from someone for its performance.

Consider the interplay of money, service, and sacrifice in the hypothetical case of a young idealist who wishes to exercise his right to free speech.

Speech Isn’t Free

He considers walking to the town square to regale passersby with his opinions. But he instead decides to take funds from his paycheck to buy a bus ticket. The result of either plan would be the same. His fellow citizens are treated to his well-reasoned proclamations. So do the two dollars he pays for his bus ticket have any nominal connection to the speech he engages in? Would anyone say that the two-dollar fare “equals” his speech?

The idealist’s original plan—to walk to town—would by no means have been cost-free. Depending on what he does for a living, it might even have cost more than the bus fare. He would have had to exert himself—at his job or in his garden—to procure the extra food needed to fuel his walk, sacrificing other services he might have enjoyed with those energy resources. Had he eaten just his usual amount before leaving his house, then the energy he consumed walking could have been used instead to, say, mow his lawn. Or perhaps he would have mowed his neighbor’s lawn . . . for ten dollars.

The point is that there is absolutely no cost-free way to express political beliefs to our fellow citizens. And the cost involved is the means to a completely distinct end.

Certainly, the money that corporations use to effect political expression is of a much larger scale than that involved in the foregoing example. But though some will balk at the notion, it really is just a difference in degree, not in kind. And even if one believes the scale of spending matters when it comes to political expression, “money” cannot be equated with “speech” in any analysis.

Poll Taxes

But money is the operational equivalent of resources, and to regulate the expenditure of resources for political expression is to regulate the expression itself. It brings to mind Jim Crow-era poll taxes. Racist state legislators claimed that they were not violating the Fifteenth Amendment with such fees, because poll taxes were not an actual prohibition on voting. For decades the Supreme Court bought this argument, failing to recognize that interference with the necessary means of voting is tantamount to disfranchisement.

So, much as they might try to fool themselves and others, proponents of campaign finance limitations are opponents of free speech. In many ways, their concerns are understandable—corporate power in today’s America is daunting. But instead of tinkering with fundamental rights, perhaps they should strive instead to hold the federal government to its constitutionally limited functions. With few governmental goodies to be had, and few onerous regulations to fear, corporate America would undoubtedly regard massive political expenditures as a massive waste of money.

Today conservatives more often than so-called liberals are strong defenders of the rights of parents to control the upbringing of their children.  Conservatives are also the most vocal in complaining about “activist judges” who do not stick to the text of the Constitution and who “invent rights” out of thin air, especially on family and privacy issues such as abortion.

Not Mentioned

The historical irony here is that the Constitution nowhere mentions the rights of parents to control the upbringing of their children.  These rights that conservatives correctly think are central to a free society were the product of Supreme Court justices whom under other circumstances they would likely call “activists” who read rights into the Constitution.  The justices did so in a series of cases in the first half of the twentieth century.

The two cases generally considered as establishing constitutional protection for parental rights are Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925).  In the first case a Nebraska law prohibited schools from teaching a foreign language to students before eighth grade.  In the second Oregon passed a law requiring all students to attend public schools.  In both cases, the Court found the laws unconstitutional because they infringed on certain basic liberties all citizens have.  In Meyer, Justice James Clark McReynolds wrote:

The problem for our determination is whether the statute, as construed and applied, unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

And in Pierce he elaborated on the right to “bring up children” in language that libertarians should love:

Under the doctrine of Meyer v. Nebraska, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control … The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

In both cases the rights of parents were seen as implicit in the more general concept of liberty as protected by the Fifth and Fourteenth Amendments.  Is this not the same sort of judicial activism that conservatives oppose when engaged in by liberal courts to justify rights of privacy or the right to engage in sodomy? Yet I have never heard a conservative condemn the finding of parental rights in Meyer and Pierce as “judicial activism.”

Right to Marry

It is also worth noting that Meyer mentions the right “to marry” as an additional right that is nowhere enumerated in the Constitution but that is implicit in the concept of liberty protected by those two amendments.  Each of the succeeding cases that has expanded and defended that right, up to and including Loving v. Virginia (1967), which overturned laws against interracial marriage, has rested on the foundation laid by Meyer.  The Lawrence v. Texas decision  (2003), which overturned state laws against sodomy, did also.  And it is likely that a decision on the constitutionality of same-sex marriage would be heavily influenced by Loving and Lawrence, and therefore by Meyer, which was also cited as part of the constitutional support for the right of privacy found in Roe v. Wade.

This poses a dilemma for conservatives who are strong supporters of parental rights: The same “judicial activism” which produced the cases that protect constitutionally unspecified parental rights conservatives like also provides the justification for other unspecified rights that they tend to dislike.

Indeed, the charge of activism seems to be more the product of disliking the outcome than of any real principle of constitutional interpretation.

Judges also make bad calls sometimes. We know this because there is a judicial form of instant replay: the appeals process, including review by the U.S. Supreme Court. Occasionally, even the politically diverse Court clearly indicates to a lower court, through a unanimous decision, that the judge(s) blew a legal call.

Umpire Jim Joyce’s blown call cost Detroit Tigers pitcher Armando Galarraga the 21st perfect game in major league baseball history. After watching the televised replay, Joyce immediately (and tearfully) admitted his mistake. This notwithstanding, baseball commissioner Bud Selig declined to change the call. But would he have acted differently if Joyce had maintained, in the face of overwhelming evidence to the contrary, that his call was correct—or even worse, that he deliberately called the runner safe?

Turning back to the law, what happens if lower-court judges thumb their collective noses at the Supreme Court? This is a timely question, because it is about to be placed squarely in front of the Supreme Court.

In early 1999 John and Theresa Sophocleus were forced out of their home by Alabama’s Department of Transportation (ALDoT) as part of a highway-widening project. In court ALDoT representatives testified that they needed to raze the home immediately to ensure timely progress on the road project. In fact, the Sophocleus home was not razed for nine months, during which it was used as a residence for contractors employed by ALDoT. In other words, the specific public purpose given by ALDoT to justify the seizure, made under threat of $10,000-per-day fines, proved to be invalid.

Mr. and Mrs. Sophocleus sued ALDoT, arguing that the taking was unconstitutional since the state did not live up to the expressed public purpose used to justify the seizure and that therefore ownership should revert to them. The first federal judge to consider motions in the case, Susan Walker of the U.S. District Court for the Middle District of Alabama, issued three summary judgments in their favor. Their case then was taken over by Judge Myron Thompson of the same court, who ruled that they should have taken their claim to the state courts rather than the federal courts. But as Alabama State Code 18-1A-et seq. makes clear, as affirmed by Judge Walker, the correct venue for plaintiffs in a civil rights case is the federal judiciary. By an 8–0 ruling (Justice John Roberts had not yet joined the Court) the Supreme Court in 2005 remanded the case back to the district court for remedy.

After stalling four full years, Judge Thompson and the judges on the 11th Circuit Court of Appeals refused to admit the earlier call had been blown and reiterated the previously overturned position. Once again, Mr. and Mrs. Sophocleus will appeal to the Supreme Court.

The original writ they filed with the Supreme Court was only 12 pages long. Their point, simple and powerful, was supported fully by the Supreme Court. Make no mistake—a unanimous Supreme Court decision overturning their ruling means the lower court was told, loudly, that it blew the call. So why did it take Judge Thompson over four years to respond? One interpretation is that he knowingly intended to frustrate the stated direction of the Supreme Court by delaying remedial action until either Mr. and Mrs. Sophocleus or their critical witnesses died or became mentally incapacitated. More important: Why, in the face of overwhelming evidence to the contrary, has the lower court refused to admit it blew the call? This is the critical question for all Americans who believe that they live under the rule of law.

Presumably, the Supreme Court has a deep interest in whether lower-court judges follow their instructions—that is, actually follow the law. The law of the land is enshrined in the Constitution as interpreted by the Supreme Court. If lower-court judges do not pay attention to the Supreme Court, they are not upholding the law. By implication, we do not live under the rule of law; rather, we live under the arbitrary and capricious rule of rogue judges, with justice denied when it suits their purpose. The judge is attempting to deny the rule of law to Mr. and Mrs. Sophocleus.

Rogue judges impose their own capricious rulings because they know there is little consequence for their actions. By virtue of lifetime appointments to the federal bench, and with scant likelihood of impeachment by Congress, they can use the legal process and their position to effectively deny justice to victims of civil rights violations. We all have a critical stake in curtailing this type of judicial behavior.

There is one, and only one, remaining protection for Mr. and Mrs. Sophocleus against the denial of justice orchestrated by rogue Judge Thompson and the complicit appellate judges: Instead of remanding the case back to the lower court for remedy again, presumably with the same expected result, the Supreme Court should impose a remedy. Under the best of circumstances, the chance that the Supreme Court will take a particular case is remarkably slim. Nonetheless, the Sophocleuses hit a home run their first time at bat, but have been denied justice due to interference by rogue umpires. We can only hope that on appeal this time, the Supreme Court ensures that their previous home run is ruled a grand slam on behalf of all Americans.

In The Great Decision, journalist-lawyer Cliff Sloan and biographer David McKean offer a popular account of this seminal decision. They begin with an extensive discussion of the litigation’s background. The tale will be familiar to anyone with knowledge of American politics in the early Republic: John Adams’s administration is in its closing days. The chief justice is resigning. Multiple candidates have turned down the appointment, and Adams finally decides to appoint Marshall, his secretary of state. Thus did Republican chieftain Thomas Jefferson’s Federalist cousin come to rule the judiciary roost even as Jefferson’s party dealt the Federalists a fatal drubbing.

Marshall, finding himself both secretary of state and chief justice as the final Federalist administration drew to a close, committed the great gaffe of failing to deliver several judicial appointees’ commissions. When his successor, James Madison, found those commissions sitting on his desk, he decided (surely with Jefferson’s support) not to deliver them. That laid the ground for William Marbury’s lawsuit for possession of his commission.

Counsel for Marbury insisted that presidential nomination plus Senate confirmation entitled him to the office of D.C. justice of the peace. The administration maintained that actual delivery of the commission was necessary.

Nowadays, Marshall likely would have to recuse himself from the Supreme Court case. After all, what was really at issue was the significance of his own failure to deliver the commissions. Marshall didn’t recuse himself.

Also nowadays, a federal court would be expected to structure the explanation of its decision differently than in Marbury. As courts of limited jurisdiction, federal courts first ask whether they have jurisdiction over a particular case; if not, the case is at an end.

Marshall structured his opinion the opposite way: First he asked whether Marbury had a right to his commission, then whether there was a remedy, and only then whether the Supreme Court was constitutionally empowered to afford Marbury that remedy. By the time he got to the point in his opinion where he answered no, he had already leveled a powerful political blast at Jefferson and Madison for supposedly having denied Marbury his rightful commission.

Marshall noted that although the Judiciary Act of 1789 granted the Court power to hear suits for writs of mandamus in the first instance, such suits did not appear among the types of cases over which the Court was granted original jurisdiction by Article III. Marshall claimed that Congress did not have power to lodge original jurisdiction over other types of cases in the Supreme Court. Thus Congress had exceeded its constitutional powers in granting the Supreme Court original jurisdiction over cases like Marbury. Judicial review was born.

The authors display a worshipful attitude as they recount the endorsement of Marbury offered to them by now-retired Justice John Paul Stevens and the incorrect summary of the case’s meaning by ex-Justice Sandra Day O’Connor. Her synopsis—that Marbury makes the Supreme Court “the final arbiter of the constitutionality of all acts of government”—is the current wisdom, although it overlooks the people’s ability to amend the Constitution. For Sloan and McKean, wide-ranging judicial policymaking is a Good Thing, and whatever laid the groundwork was a Good Development. That is the message underlying the book.

That is not a new message but par for the course. The book offers no new insights or data that will add to experts’ store of knowledge; actually, it’s peppered with factual errors.

The idea that the Supreme Court is the final arbiter  is a severe betrayal of the idea of self-government underlying the American Revolution. Presidents as disparate as Thomas Jefferson, Andrew Jackson, and Abraham Lincoln contradicted it directly. In our day, it has been used to justify forced busing for racial integration, judicial imposition of tax increases, and myriad other unconstitutional social experiments.

Far from this vision of a Grand Council with the Final Say, the Revolution stood for popular sovereignty—for the People as ultimately responsible and finally empowered. While Supreme Court justices’ eyes may glisten at the mention of their self-empowering vision, America is about something far better.

We continued to wrangle about it for days. But one day I went out to tea, although not because I wanted to. In Washington you don’t go to parties just because you want to go, you know; you go because you have to go. I had to call upon Mrs. Harlan F. Stone, the wife of the Supreme Court Justice. She was at home on Wednesday afternoons and so about 5:45, which is nearly the end of the day, I went to her house and presented myself. There were a lot of other people there. We went up to the dining room to get a cup of tea, and there I met Mr. Justice Stone who had just come home from the Court and was getting his cup of tea. We greeted each other and sat down and had a little chat.

He said, “How are you getting on?” I said, “All right.” And then I said, “Well, you know, we are having big troubles, Mr. Justice, because we don’t know in this draft of the Economic Security Act, which we are working on—we are not quite sure, you know, what will be a wise method of establishing this law. It is a very difficult constitutional problem, you know. We are guided by this, that, and the other case.” He looked around to see if anyone was listening. Then he put his hand up like this, confidentially, and he said, “The taxing power, my dear, the taxing power. You can do anything under the taxing power.”

I didn’t question him any further. I went back to my committee and I never told them how I got my great information. As far as they knew, I went out into the wilderness and had a vision.

But, at any rate, I came back and said I was firmly for the taxing power. We weren’t going to rig up any curious constitutional relationships. “The taxing power of the United States—you can do anything under it,” said I. And so it proved, did it not?

—FRANCES PERKINS, Secretary of Labor, 1933–1945
“The Roots of Social Security” (1962)
www.ssa.gov/history/perkins5.html

Note that in my short list of examples, each one is due to action by the federal government. In Leviathan, Clint Bolick reminds us that Americans have every bit as much to fear from authoritarian laws, regulations, and confiscations at the hands of local government officials as they do from the great circus of government camped in Washington. In fact, he argues that we actually have more to fear from our local Pooh-Bahs, writing, “If the president starts an unpopular war or raises taxes, people know who to blame and they direct their energy accordingly. But if your kid gets a lousy education in public school, or your local government decides to exercise eminent domain to take your home or business, it is often impossible even to find out who is responsible, much less to fight it.”

Bolick, an attorney who has fought many legal battles against intrusive and authoritarian local government actions, gives us a depressing catalogue of the rights infringements that are becoming commonplace—violations of freedom of speech, freedom to engage in commerce, freedom to use and enjoy one’s property, and more. He first disabuses his reader of the notion that the Constitution protects people against such infringements, noting that most judges—and crucially, the justices of the Supreme Court—don’t take seriously the idea of individual rights. They choose only a few rights they like (for example, free speech, some of the time) and defend them against legislative or regulatory incursion, but adopt a posture of “deference” to the supposed expertise of politicians and their appointed agents on most other questions.

Consider the case of Garland Allen. Allen, a rather elderly black barber, had been practicing his trade for many years in a small town in rural Tennessee. In 1996 he was arrested in his barber shop for the crime of “impersonating a professional.” No customer had complained about Allen’s competence, but a competing barber had notified the august Tennessee Board of Barbering Examiners that Allen didn’t have a license to work as a barber. When he was young, no barbering schools in Tennessee admitted blacks, and now Allen couldn’t afford the nine months and $5,000 it would cost for him to go to school to be taught what he already knew. He was in danger of being put out of business and into poverty because of a completely needless regulation, the sole purpose of which was to restrict competition.

Fortunately for Allen, the Institute for Justice, for which Bolick works, threatened to sue to block the Board of Barbering Examiners from taking away his livelihood. The threat of action succeeded. Unfortunately, thousands of others are caught up in such occupational licensing snares each year. Freedom to engage in simple commerce is blocked by innumerable laws and regulations put in place by friendly state and local politicians—friendly, that is, to interest groups that want barriers to entry into their fields.

Bolick also details the vicious abuse of eminent domain, which under the Supreme Court’s current reading of the Fifth Amendment (hostile both to the document’s intent and to the rights of property owners) allows government to seize land from people whenever politicians decide that transferring it to someone else serves “the public interest.” Again, he shows that the government that’s supposedly the closest to the people can be the most callous.

Perhaps even more disturbing are the many civil asset-forfeiture laws enforced by state and local officials. Those laws permit officials to seize property without any compensation if they can convince a judge—and there are plenty of judges who don’t give a hoot about private property except their own—that it was used in connection with a crime. In one case Bolick relates, a woman whose teenage son had been driving her car when caught selling drugs had to suffer the loss of the vehicle. Never mind that she had no knowledge of her son’s activities. She was eventually able to show that local officials were living high on the proceeds of confiscated property. That particular statute was struck down by an appellate court on due-process grounds, but many others like it remain.

Bolick concludes with a helpful and hopeful chapter, “Fighting Big Government at the Local Level,” which shows that people don’t have to meekly tolerate these assaults on their rights.

If the most useful books are those that make people justifiably angry, Clint Bolick has written an extremely useful one.

To the Editor:

As a former wartime draftee — the Korean War — I’m of two minds re Aeon J. Skoble’s “Neither Slavery Nor Involuntary Servitude” piece in your September issue (“It Just Ain’t So!). No question, he did a very good job of picking apart the operational flaws inherent in any draft. But where I found him woefully deficient (especially considering the wonderful title of the piece!) was in how quickly he backed off from belaboring those two atrocious Supreme Court decisions designed back before 1920 to make military conscription look acceptable. I mean really, how can we libertarians hope to teach young people the rightness of our cause if we roll over so easily?
—JOHN SIMONS
Sheffield, Vermont

Aeon Skoble replies:

John Simons takes me to task for “how quickly [I] backed off from belaboring those two atrocious Supreme Court decisions” that failed to understand conscription from the point of view of the Thirteenth Amendment. But there’s nothing to belabor. My point was that it doesn’t matter, legally, whether I think that since conscription is involuntary servitude it ought to be forbidden by the Thirteenth Amendment—it only matters whether the Supreme Court thinks so. What does matter is my contention that regardless of the Supreme Court’s ruling, conscription is bad public policy. So I concentrated instead on replying to the flawed reasoning of contemporary academics and legislators who are in a position to drum up support for new policies. It would be important to refute the reasoning in Butler and Arver if I were preparing a brief for a court challenge to those decisions. But that’s not what is before us. What is before us are grandstanding politicians, backed up by some mistaken academic theories, proposing new laws that are irrational on several grounds. It is that reasoning to which I was responding. Simons wonders how we can “hope to teach young people the rightness of our cause if we roll over so easily?” I certainly wasn’t rolling over easily—I thought I was fairly strident—but there’s no point in pretending that Supreme Court decisions are other than what they are.

No Common Good?

To the Editor:

Professor Harold B. Jones, Jr.’s cursory dismissal of the idea of a “common good” deserves far more thought. (Review of The Collapse of the Common Good by Philip K. Howard, September 2003.) Relying as he seems to on individualism, of course, is a familiar theme for libertarians, but it seems to neglect matters of criminal law, constitutions, common law, natural law, and just plain common sense. While the author he reviews might have erred in his concept of the common good, e.g., in favor of collectivism, socialistic or bureaucratic solutions, gargantuan government, and so forth, the real debate should maintain respect for the common good while deciding just how far government should go. At times, this may even overlap what Jones might happen to consider the “well-being of the individuals of whom the commonality is composed.” (E.g., does he mean, “To each according to his needs?”) Otherwise, Jones will subject us to anarchy, another familiar pillar of libertarians which they’ve never entirely justified.

Jones’s idea of “justice” or “fairness to particular parties” is no easy paradigm. Both sides in court are seldom equally happy, so on what basis is it to be decided? His very mention of “fairness” and “justice” introduces an element above mere individualism.

Of course, rejecting the “common good” is a standard tactic for new movements — e.g., feminism, which considers it anathema — but it’s always a bit hypocritical since they also enjoy the benefits of civil society, courtesy, gentlemen, right law and order, family, property law, various ordered freedoms, security from predators, etc., all commensurate with the common good. That individuals benefit from the common good in many ways (a sort of trickle-down phenomenon) should be a given.
—W. EDWARD CHYNOWETH
Sanger, Calif.

Harold Jones, Jr., replies:

The “common good” is of necessity the good that is actually enjoyed by particular persons. There is no higher entity from which it can, in Mr. Chynoweth’s words, “trickle down.” It exists only to the extent that it bubbles up in the experience of concrete individuals.

A sense of “justice” is a part of this experience. It arises from the conviction that the law will be consistent in its defense of reasonable conduct. This does not mean that every party to every lawsuit will leave the court rejoicing. It means rather that third parties can look at the decision and reliably find either encouragement or warning with regard to whatever it is they may be planning. It means that laws can be trusted, in the words of Justice Holmes, as “prophecies of what the courts will do.”

The Collapse of the Common Good describes a society in which this has ceased to be the case. Its author fails to see that the ills he deplores are the result of what he suggests as a remedy. They are the result of government by men rather than by law. They are the result of precisely the fact that those whom Mr. Howard refers to as “people with responsibility” (bureaucrats) are permitted to impose their will on others “just because it seems right” (to the bureaucrat). The “plain common sense” to which Mr. Chynoweth makes his appeal says that any “good” forced upon the individuals concerned is not “common,” and it is unlikely to be experienced as “good.”

The level of social cooperation is highest when the government is restricted to guarding the borders, minding the infrastructure, and protecting the unoffending citizen. Under such a system, individuals can be confident about the rewards of honest effort. Each seeks his or her own good by providing something others regard as valuable. Any “debate,” as Mr. Chynoweth puts it, “over just how far government should go” is ultimately a debate over whose interests are to be encouraged and whose are to be sacrificed. When that debate is taken seriously, people seek to advance themselves not by providing a service but by having the law declare they are entitled to something at the expense of their neighbors. It is then only a short step to Hobbes’s description of the struggle of “every man against every man,” and to the social collapse of which Philip Howard writes.

Nature Conservancy Is Not Benign

To the Editor:

Re: Arthur Williams’s letter on the Nature Conservancy (TNC) in your October 2003 issue: TNC is not the benign organization that Mr. Williams holds it out to be. It lives not on individual donations but on corporate grants and federal tax dollars—more than $32 million between 1995 and 2000. Your readers may want to read the Washington Post’s investigative series on TNC, peruse some of the TNC-related postings on www.propertyrightsresearch.org and www.eco.freedom.org (instructive is the article “Nature Conservancy—Fraud and Theft”), and read “Nature’s Landlord,” published by Range Magazine.

The TNC may not engage in the terrorist activities used by Earth First, but it is advancing the same environmentalist goal— evict humans from broad areas of the country (a.k.a. The Wildlands Project) and prevent the productive use of land. The ongoing revelations about TNC’s modus operandi bring to mind Lord Acton’s observation on power and corruption.

—JOHN D’ALOIA JR.
St. Mary’s, Kansas

No Tears for Drug Companies, Please

To the Editor:

I always enjoy the articles in The Freeman: Ideas on Liberty. As a physician, I wish to comment on Doug Bandow’s article, “Healers Under Siege,” in the November 2003 issue.

In the article, the author paints the drug companies as underdogs — under siege. The reality is these companies have had their “foot in the door” at the Food and Drug Administration (FDA) for about 100 years. The Bureau of Chemistry, later renamed the FDA, was formed in 1906. Recent studies showed that over 50 percent of FDA employees were consultants for or in some way had worked for drug companies before or after their tenure at the FDA. This is a shocking case of the “revolving door” between a government agency and the industry it is supposed to regulate.

The legal “drug culture” in America, the product of excellent public relations and FDA rules, is not improving the health of the American people. That is a major reason health-care costs are rising so fast. Drugs are excellent for short-term trauma medicine. However, many drugs are toxic, and longterm they damage the body.

A recent study by the American Medical Association found that side effects of pharmaceuticals killed about 192,000 people each year, just in hospitals. This makes pharmaceuticals the fourth leading cause of death in America. There is definitely trouble in paradise, and the cost explosion in health care is but a symptom. Drug manufacturers lobby hard to defeat any proposals that would allow alternative products on the market that are far safer and less costly. The drug industry is part of a medical cartel held in place by licensing laws, hundreds of other anti-consumer laws, and the FDA, which has legislative, executive, and judicial powers all rolled into one.

For this reason, I grow weary of articles praising or feeling sorry for the drug industry. The reality of the legal drug culture is a classic case of government regulation gone awry.
—LAWRENCE WILSON, MD
via e-mail

Doug Bandow replies:

There’s no doubt that drug makers work hard to game the regulatory process, but that’s hardly a surprise when Washington asserts its control over the approval of new medicines. Government control is no more justified there than elsewhere in the healthcare system—such as limiting competition with MDs by other medical professionals. And while drugs should not be viewed as the only remedy for disease and injury, their benefits can be enormous.

The Supreme Court ruled, 5-4, that the Second Amendment, which forbids Congress from infringing the right to keep and bear arms, applies to state and local governments as well. The case, McDonald v. Chicago, No. 08-1521, involved a challenge to the City of Chicago’s gun control law, regarded as among the strictest in the nation. The justices did not strike down the Chicago law directly, but remanded the case to a lower court for review, where it appeared likely to be struck down under today’s decision.

This looks like a partial — but not a complete — victory for champions of the Second Amendment. The Wall Street Journal‘s news alert said, “The justices on Monday cast doubt on a Chicago area handgun ban, but also signaled in their 5-4 decision that less severe restrictions could survive legal challenges.”

The terrible truth of the matter is that a large complex government is incompatible with political and personal freedom. It is not just the economic freedom in various sectors that is threatened by a large welfare and regulatory state. (Most classical liberal-oriented economists well understand the effect on economic liberty.) However, those other freedoms that modern-day social democrats (aka “liberals”) value are also threatened.

As documented in the brisk book A Manifesto for Media Freedom, this cornucopia of media options has led not to celebration of the marvelous diversity that free choices and technology have brought us. Rather, it has prompted forces from both sides of the conventional ideological spectrum to agitate for regulation and restriction of the ownership and delivery of information and entertainment.

The Manifesto, by Brian C. Anderson of the Manhattan Institute and Adam D. Thierer of the Progress and Freedom Foundation, is a quick and useful survey of various media regulation realities and proposals, and of cogent explanations of why such regulations range from unnecessary to powerfully damaging to American media users.

The book’s greatest virtue is how thoroughly and compactly it delivers the good news about the scope and availability of media. Many antimarket liberals in America are obsessed with fears of too few owners controlling too many different kinds of media outlets, and thus plump to further tighten federal rules about media ownership concentration. (Earlier attempts by the FCC to liberalize those rules were knocked out by a federal appeals court back in 2004, and this year Congress squashed a new attempt by the FCC to loosen them.) Obsession with ownership rules is based on the same misunderstanding that allows for government regulation of broadcast media of a sort that would never be tolerated for other media: that an inherent scarcity requires government to manage distribution and ownership, despite the First Amendment.

As Anderson and Thierer point out, scarcity is far from an issue when it comes to how Americans get their information and entertainment nowadays. America has nearly 14,000 terrestrial radio stations, twice the number in 1970. (And we now have satellite radio as well.) Cable and satellite TV reach 86 percent of American households. And they are not all controlled by a small cabal of sinister megaconsortiums. As they note, a “2002 FCC survey of ten media markets–from the largest (New York City) to the smallest (Altoona, Pennsylvania)–showed that each had more outlets and owners in 2000 than in 1960.”

New means of consuming, storing, and using media are spreading with wildly increasing speed. It took telephones 70 years to go from introduction to 50 percent household saturation; it took Internet access around 15, and MP3 players (which allow portable listening of not only music but all sorts of news and information “podcasts” available for free) even fewer. And the average price for every variety of contemporary electronic media device has fallen anywhere from 17 to 41 percent in the last five years.

All that good news misses the best and most important aspect of our media present and future–the uncountably huge number of websites where everyone everywhere is able to communicate with everyone else. Such a world of free media plenitude doesn’t seem to need much in the way of managing.

But such wondrous profusion of cultural richness–and no one person is going to value or approve of all of it, but that’s exactly the point–means nothing to elites who lament that everyone isn’t consuming the media that they think people should be consuming. This manifests itself in all sorts of regulatory moves, from attempts to censor or hobble innovations such as video games and social-networking sites, to the desire to force us all to pay for “public” broadcasting that can’t survive in the marketplace. As Anderson and Thierer note, the political world is rife with people who “won’t rest until all of us are watching, reading, and listening to the content that they prefer.”

They are savvy in pointing out the most dangerous “media regulation” of all, masquerading as “campaign finance reform,” which restricts all except the owners of officially approved media from speaking out freely on candidates and issues within an arbitrary period before an election–and trace the dangerous moves to enforce such tyranny on websites and radio.

The authors are, I think, alarmist in insisting that the Obama administration or the current Democratic Congress will move to reinstate the clearly damaging and unconstitutional Fairness Doctrine (though the Supreme Court unconscionably upheld it in the 1969 case Red Lion v. FCC). But they are dead on about how it crippled, and would cripple again, lively discussion by enforcing “equal time” on broadcast media in political controversies.

The overall message of this book is optimistic: “The new media abundance will improve democracy, fire creativity, and expand individual and communal knowledge and know-how.” But the authors know this will only remain true if citizens make sure those who would regulate away the advantages of free-flowing new media are kept in line.