Category Archive: Politics & Policy
Comments Off on Reddit AMA with Economist and Iconoclast, Professor Bryan Caplan
Bryan Caplan is a Professor of Economics at George Mason University. He is a prolific blogger and author of three books: The Myth of the Rational Voter: Why Democracies Choose Bad Policies (2007), Selfish Reasons to Have More Kids: Why Being a Great Parent is Less Work and More Fun Than You Think (2011), and the forthcoming The Case Against Education.
Professor Caplan has appeared in the New York Times, Wall Street Journal, and Washington Post, and has appeared on ABC, Fox News, MSNBC, and C-SPAN. He recently appeared on The Rubin Report in association with Learn Liberty, and starred in the Learn Liberty video series: Econ Chronicles.
Mark your calendar and join us for a rousing conversation at Reddit.com/r/Libertarian this Tuesday, June 20th at 3:00pm ET where you’ll have the chance to chat with Professor Caplan and ask him anything!
Update: The AMA is now live!
Comments Off on How the FDA hides its true costs — dollars lost and progress delayed
How would you feel if you needed to slip the clerk at the DMV a $100 bill to get him to do the paperwork for your driver’s license renewal? Pharmaceutical and medical device companies face a similar situation when they want the FDA to review a product for marketing. Just to get the agency to evaluate a submission for drug approval — with success not guaranteed — they must pay more than $2 million. The government euphemistically calls this sum a “user fee,” but it’s really a tax by another name.
The fees, which constitute a large chunk of the FDA’s budget — about two-thirds of the cost of reviewing new drug applications and about a quarter of the agency’s total spending — are a boondoggle, because they enable Congress to finance much of the agency’s work “off the books.” The pharmaceutical industry agreed to the fees two decades ago in return for the FDA’s promises to meet certain reviewing timelines and milestones.
But fat budgets have enabled the FDA to waste resources. For example, the agency recently sought public comments about its use of focus groups, claiming they “provide an important role in gathering information because they allow for a more in-depth understanding of patients’ and consumers’ attitudes, beliefs, motivations, and feelings.” FDA officials seem to have forgotten that their mission is to make science-based decisions — primarily about product safety, efficacy, and quality — as expeditiously as possible, whatever the public’s beliefs, motivations, and feelings may be.
Far worse, the FDA declared jurisdiction over all “genetically engineered” animals, then took more than 20 years to approve the first one — an obviously benign, faster-growing salmon — and then made a colossal mess of the five-year review of a single field trial of a mosquito to control the mosquitoes that transmit the Zika, yellow fever, dengue fever, and chikungunya viruses. Finally, the FDA relinquished jurisdiction over that mosquito and other animals with pesticidal properties to the EPA!
FDA User Fee Reauthorization in ProgressCongress is in the process of reauthorizing the FDA’s ability to collect user fees from drug manufacturers. Although the FDA and the pharmaceutical industry have worked out an agreement regarding fees for fiscal years 2018 through 2022 (which would impose a burden of about $10 billion on the industry over that period), it might be in jeopardy because President Trump has said he wants to boost the fees by $1 billion in FY 2018. This stated desire is inconsistent with the goals of a president who says he wants to reduce the tax burden, boost innovation, and stimulate American industries. A basic rule of economics is that if you want less of something, tax it.
The user fees should be abolished, but not for the reasons once cited by the New York Times, which condemned them as “cozy cash-fed agreements [that] have given industry far too much influence over the regulatory process.” The truth is that if pharmaceutical companies are exercising undue influence, they must have a death wish.
The Increasing Difficulty of Drug DevelopmentIncreasingly risk averse, capricious, and at times even hostile, the FDA has made drug development progressively more difficult in recent years. Bringing a new drug to market now takes 12 to 15 years and costs more than $2.5 billion — in no small part because FDA policies and actions have increased the average length and complexity of clinical trials, and regulators keep moving the goal posts. Drug approvals are down: during the four-year period from 1996 through 1999, the FDA approved 176 new medicines; from 2013 through 2016, the number fell to 103, a decline of 40%.
These unfavorable statistics are not due to rookie mistakes or inexperience; even for top-tier drug companies, the costs can be staggering. For pharmaceutical giant AstraZeneca, the cost to get a new drug on the market is almost $12 billion per drug, and for GlaxoSmithKline, Sanofi, and Roche, it is around $8 billion. Perhaps it’s not surprising, then, that drug manufacturers recoup their R&D costs for only one in five approved drugs, a deterioration from one in four a decade earlier.
In addition, regulators have concocted additional criteria for marketing approval of a new drug — above and beyond the statutory requirements for demonstrating safety and efficacy — that could inflict significant damage on both patients and pharmaceutical companies. For example, they have sometimes arbitrarily demanded that a new drug be superior to existing therapies, although the Food, Drug and Cosmetic Act requires a demonstration only of safety and efficacy. And Phase 4 (postmarketing) studies are now routine, whereas the FDA used to reserve them for rare situations with subpopulations of patients for whom data were insufficient at the time of approval. The time and expense required to conduct clinical trials to satisfy regulators have been increasing inexorably.
A Poor Argument against FDA User Fees — and a Better One
Searching for any crumb that supports its bias against user fees, the Times doubles down: “In some cases, the agency seems to have been loath to bite the hand that finances it. A survey by the Union of Concerned Scientists found that 40 percent of the [FDA’s] scientists felt that the consideration accorded to business interests was ‘too high.’”
Impressive, right? Not when you consider the huge potential sampling error of the survey — there was only a 17% overall response rate — and that in such surveys, those most likely to respond are the most disaffected. Failing grades, as usual, to the UCS for publishing such a shoddy study, and to the Times for citing it.On one critical point, the Times and I agree: “The best approach would be for the government to fully finance the FDA.” But I support this approach not because, as the Times believes, user fees make regulators beholden to industry. Rather, I support it because drug and device user fees are a discriminatory tax on specific, research-intensive business sectors, a tax that ultimately will be passed along to consumers. I also support it because user fees disproportionately affect smaller companies and because the imposition of user fees is an underhanded way to fund government activities “off the books.” Congress should face up to its responsibilities, appropriate sufficient funds, perform its oversight role conscientiously, and then evaluate the results.
Comments Off on What to expect when you’re expecting: Lots of weird regulations and obscure laws
In one of the wealthiest and most technologically advanced countries in the world, how could maternal mortality be increasing?
The United States has the worst rate of maternal deaths in the developed world, NPR reports. Some of these deaths are due to poor maternal health, but a big part of the problem is high rates of intervention.
We often talk about the US health care system being broken, but usually the focus is on the problem of uninsured Americans or the costs of care in general. What gets less attention are the ways our health care system harms some of our most fundamental rights, including the right to control what happens to our bodies.
For starters, let’s look at how a typical American woman gives birth.
She contacts her insurance company or Medicaid (which pays for over 40% of US births) to find an in-network provider. The in-network provider is almost always an obstetrician, and the care setting is almost always a hospital.While in the hospital, more than 40% of these mothers will have their labor chemically induced, and more than 30% of those induced mothers will end up with a cesarean section. Many more will be hooked up to machines and monitored, prevented from moving or even eating and drinking during labor, and in some cases subjected to vaginal exams and other invasions of their bodies they don’t meaningfully consent to. Most birthing women have little understanding of the risks and benefits of any of these procedures.
All these restrictions and invasions of the mother’s body are done ostensibly for the sake of her’s and the baby’s health, but no medical reason exists for this level of intervention for most of these women. In other words, the vast majority of childbirths could happen as or even more safely if the mother were able to move around, eat, drink, and avoid invasive interventions.
Why Women Can’t Use Hospital Alternatives for Childbirth
As it turns out, alternatives exist that lower intervention rates, lower costs, and provide more satisfactory care. These alternatives include freestanding birth centers and home births, and many European countries use these options as a foundational part of maternity care with great success. But most American women cannot take advantage of these options, either because they do not know they exist, insurance does not cover them, or they don’t exist in their area.
If all this hospitalization and treatment actually helped keep women and babies safe, maybe the economic and human costs would be worth it. But it doesn’t, and they aren’t.
So why do American women give birth like this? What the average new mother does not know is that her choices surrounding how her baby is delivered and how her body is treated during labor and delivery are limited by a tangle of regulations and laws.
Regulations Push Out Entrepreneurial Midwives and Obstetricians
In many states, birth centers must go through a certificate of need (CON) process. They have to ask the permission of their direct competitors — hospitals — to enter the market. Entrepreneurial midwives and obstetricians must pay tens, sometimes hundreds of thousands, of dollars in application and legal fees to navigate the CON process.
In New York State, for example, entrepreneurs must already have their space rented at the beginning of the CON process, which can itself take a year, thus forcing them to pay rent on an empty facility while they ask permission of their direct competitors to enter the market. Guess how often that permission is denied? Frequently.
In addition to getting through the CON process, birth centers in most states are legally required to have a written consulting agreement with a physician. Such agreements increase physician malpractice insurance rates, so many are unwilling to sign such agreements.
Moreover, birth centers must enter written agreements with hospitals to transfer their patients in case of an emergency, even though hospitals are already mandated by law to treat anyone who shows up in need. Birth centers cannot operate without these consultation and transfer agreements.Doctors and hospitals can pull out of an agreement at any time, which means birth centers are at the total mercy of their direct competitors not only to enter the market but to stay in business, even if they are financially successful and providing high quality care.
As a result of the regulatory tangles providers find themselves in, despite the 4 million women who give birth in the United States every year, only around 300 birth centers exist to provide out-of-hospital care. This despite the fact that hospitals in many rural areas are closing their maternity wards, leaving women to drive many miles while in labor to find adequate facilities to deliver their babies, putting themselves and their babies at risk.
How Medicaid Favors Hospital Births
Making the situation even more complex is that until recently, Medicaid did not reimburse patients for using birth centers at all, and now that it does (in some states), the reimbursement rates are laughable. Many birth centers do not accept Medicaid at all because the reimbursement rates are so low that they threaten the facility’s continued existence (in states like New Jersey, reimbursement is as low as $250 per birth for care that costs birth centers $2000 or more to provide). Yet Medicaid reimburses hospitals for the exact same birth at nearly 30 times that rate (an average of $7,000). Government insurers are therefore paying more for women to receive lower quality care.
Of course, part of the difference in reimbursement rates occurs because the reimbursement rates for hospitals do not just cover that average woman’s uncomplicated birth, but also more complicated ones. But another part of it is that government reimbursement policies are fundamentally broken. Because Medicaid payment rates do not clearly track or relate to the care being provided or its quality, they create dramatic access barriers to higher quality care.
Barriers to Home Birth
Some women decide that in order to get the birth experience they want, they will opt out of the system altogether, paying for birth out of pocket at home. That seems like a reasonable exertion of free choice. But government intervention doesn’t stop at hospital doors. Women in many states who want to give birth at home to may find that there are no legal providers to assist them.Until this month, home birth with a certified nurse midwife was illegal in Alabama, for example — any midwife who attempted to assist a woman in labor was subject to criminal prosecution. In still other states, birthing mothers who seek an alternative practitioner are limited to certified nurse midwives, who almost always operate in hospitals.
In many states, women who refuse unnecessary hospital procedures or who attempt home births are subject to state involvement, including threats from Child Protective Services. Things are even worse for women who want a vaginal birth after cesarean (VBAC), which many hospitals prohibit. But most American women, who don’t know that better alternatives exist or who don’t have access to those alternatives, continue to give birth in hospitals where their freedom to control their bodies is extremely limited.
This kind of government activity does not just affect birthing women. Government intervention affects your access to at-home care, urgent care centers, decent and high quality primary care, and a range of other options that can lower costs and increase the quality of care. Until we are fully aware of how our choices are limited — even before we step into the hospital — by CON laws, licensing laws, reimbursement policies, and other regulations, our bodies will continue to be used and abused by the monopolists who control them.
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Bryan Caplan says we could get rid of 95% of government health care intervention, and STILL have subsidized health insurance for the poorest. Watch the full interview
Comments Off on Suffering is Venezuela’s new normal.
Venezuela is an unfolding story of the chaos resulting from government intervention in economic affairs. President Maduro faces a political crisis, and violent protests pose real threats to his desperate attempts to retain power. The economy is collapsing in front of our eyes, but the real tragedy is not the macro indicators that we read about daily: soaring inflation rates, increasing unemployment numbers, nonexistent consumer goods, and crashing oil prices. The real tragedy is that the innocent citizens of Venezuela suffer and that suffering is the new normal.
The Maduro administration continues to believe that it can use policy to assuage the angst of the citizens who cry out against him and the policy wreckage under which they suffer. In a last-ditch effort to “help” people, Maduro raised the Venezuelan minimum wage by 60% and offered free apartments to those who are displaced. This is the 15th minimum wage hike enacted by Maduro since he took office in 2013, and while the increase sounds nice on paper, the new wage amounts to just under $50 per month — hardly a windfall.
Not only is this paltry income insufficient for surviving, let alone thriving, it occurs against the backdrop of out-of-control inflation that the IMF predicts to soar above 1600% this year. Every hour of every day, the bolivar is worth less and less, stealing from citizens their ability to buy basic goods and services and forcing them into the black-market economy.
There is no magic policy wand
F.A. Hayek understood the nature of market activity. It is the organic process of exchange among individuals guided by prices, profits, and losses in the context of the institutions of property rights. As such, economies cannot be directly controlled by experts, technocrats, or dictators.
The economy is not a jigsaw puzzle that we are trying to solve. The economy is a dynamic process of discovering new ways of doing things in the context of institutions that facilitate exchange. When this process is allowed to function, income and wealth grow — across all people and places. There is no policy that can act as a magic wand to override or “fix” what we deem insufficient.
Moreover, as Hayek highlighted, for governments that use policy to increasingly control the economy, totalitarianism is a likely result. The more control government officials extend over what are normally individual economic affairs, the more economic chaos results. That chaos breeds more control, which breeds more chaos. This is the current state of affairs in which Venezuelan citizens find themselves.
Totalitarian authority is a feature, not a bug, of increasing efforts to control economic affairs — precisely because economic affairs are ordered by ordinary people pursing their interests. As the necessary conditions for productive market exchange — prices, property rights, and the rule of law — erode, suffering is exacerbated and the economic breakdown continues to spiral out of control.
Totalitarian governments suppress value creation
Economic activity is about individual exchange within the context of institutional arrangements. That exchange can be productive when individuals are allowed to use profit and loss to guide their use of scarce resources. In a market economy, the result is that we grow richer.
Markets are positive sum. For me to make a profit, I must give you something that you need or want, and there is pressure to deliver at ever-lower prices and ever-higher levels of quality. Growing rich does not come from arbitrary wage increases set by governments; it comes from being rewarded for creating value.
Venezuelans suffer today because it is increasingly difficult to create value for oneself or others in a totalitarian regime that tries to control economic life. Trading partners are limited, needed goods and services are nowhere, and there are no strong incentives to be creative and entrepreneurial because there is no just reward. People are forced into black-market activity and barter economies.
Mandating wage raises will do nothing to restore the necessary institutions of value creation and entrepreneurship. Rather, these mandates restrict the possibilities for legal exchange, thus forcing more people out of work and condemning Venezuelans to further poverty and suffering.
Markets work best when governments retreat
The best way to restore productive institutions of trade, value creation, discovery, and entrepreneurship is to retract the government’s scope and size and allow markets to work. In the words of F.A. Hayek:
It is often said that political freedom is meaningless without economic freedom. This is true enough, but in a sense almost opposite from that in which the phrase is used by our planners. The economic freedom which is the prerequisite of any other freedom cannot be freedom from economic care which the socialists promise us and which can be obtained only by relieving the individual at the same time of the necessity and of the power of choice; it must be the freedom of our economic activity which, with the right of choice, inevitably also carries the rise and the responsibility of that right.
People must be free to choose and to make themselves rich through value creation within the market process. This economic freedom will make them rich in a way that no coercive government policy, no matter how good it sounds, can.
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Prof. Bryan Caplan argues that public funding for education doesn’t make sense. Watch the full interview on the Rubin Report.
Caplan claims that educational degrees communicate a signal of worth rather than delivering valuable skills or information. Second, he argues that public education does not lead to a knowledgeable citizenry, since surveys show high school and college graduates are poorly informed on basic civics and history.
Comments Off on Highlights from our Reddit AMA with Professor Sarah Burns
Did you miss our recent Reddit AMA with Professor Sarah Burns of RIT’s political science department? You can find the whole conversation here, or check out some of the highlights below.
Comments Off on Immigration policy is first and foremost about property rights
What rights are at stake in immigration? The issue is often framed as an either-or question of whether would-be immigrants have a right to immigrate or the native-born have a right to exclude them.
I think that’s an unhelpful way of framing it; it’s collectivist. It seems to ask whether any and all immigrants should be free to go anywhere they wish, or whether (a majority of) the native-born may exclude all immigrants from going anywhere in the country. Isn’t there some middle ground, whereby some of the native-born may admit some immigrants to some places but not others?
A property rights approach can help us answer this question.
Imagine a representative scenario:
A group of poor immigrants heads for some US town to work on the farms there. They arrive at the US border. If they are allowed in, they get on a bus that takes them to the town, stopping at rest stops along the way to eat and stretch their legs.
When the immigrants arrive at the town with the jobs, they walk to a boardinghouse offering bunk rooms and simple cooking facilities. They pay their rent to the boardinghouse owner and get some rest.
The next day they go to the job sites in pickup trucks from the farms. They agree on wages with the farm owners; they go to work. In the evening, they go back to the boardinghouse. Soon they will be able to wire some money home to their families.
Whose rights are involved here?
Let’s answer that indirectly. Suppose it’s not an immigrant, but an American citizen, I myself, for instance, who wants to get on the bus, have meals at the rest stops, sleep in the boardinghouse, and work on the farm. Do I have a right to do that, as I have a right to “life, liberty, and the pursuit of happiness”?
No. I have no inherent right to get on someone else’s bus. But when the bus owner sells me a ticket, he grants me the contractual right to ride his bus on the route specified. I have no right to enter the rest stop restaurant for a meal unless I agree (the contract is implicit in this case) to pay the rest stop owner for the privilege.
Similarly, I have no right to sleep in a room in someone’s boardinghouse unless I get the landlord’s permission through a rental contract. And I have no right to a job at someone’s farm unless he or she hires me, in an implicit or explicit labor contract.
In each of these cases, any right I might acquire to ride the bus, have a meal, sleep in the room, or work on the farm depends on the agreement of the owner of the bus, rest stop, boardinghouse, or farm. The owners do have the right to determine who comes onto their property, so if they agree to do business with me, then I have a right, not an inherent right but a contractual right, to make the trip and take the job as described. The owners’ rights and choices to deal with me determine my acquired, contractual rights.
Should property owners be allowed to hire across national borders?
Now we come to the crucial question: Do those property owners have the right to contract not just with me, but with any people they wish, even if their home addresses happen to be in some other country?
I think the answer has to be yes. It’s the owners’ property. They get to decide who comes there and who doesn’t. If so, the immigrants they choose to welcome have a right to immigrate in the manner described.
The error in the claim that “we” have a blanket right to exclude immigrants from coming into the country at all, “to protect our border,” is that it ignores the property and free association rights of current citizens. The borders relevant to individuals’ rights are the borders of their property, not of political jurisdictions. Property owners have the right to control their own property’s borders – to exclude whom they choose and admit whom they choose.
Any government’s number one job is to protect the rights of the individuals who live within its jurisdiction. That includes the rights of those who own buses, rest stops, boardinghouses, farms, and the like to use their property as they see fit, admitting those they choose to admit. Accordingly, would-be immigrants have a right to immigrate as long as they have the invitation of the various property owners they deal with along the way. To block such immigration is to violate the rights of the native-born citizens.
What about the consequences of free immigration?
As for its practical consequences, this perspective should reassure those who worry that free immigration would lead to overcrowding. Property rights include the right to exclude. The boardinghouse owner in our example has only so many rooms. When they fill, he may and will turn people away. The farmer needs only so many laborers; when he has all he needs, he may and will turn people away.
Congestion naturally checks immigration. Word gets back to the immigrants’ home country that there are no more rooms available in that town and no more jobs at the farms. The flow of immigrants will naturally stop.
One might object that immigrants have no right to use the public roads because they have not paid taxes to build the roads. But that argument also ignores the rights of current citizens. They have paid taxes for the roads to facilitate the business of their lives, including their interactions with others – to drive their buses on, to allow others to rent their rooms, and to get to the jobs they offer. And that includes the riders and renters and employees they’d like to deal with who happen to have been born in other countries.
In this way of thinking, immigration policy is first and foremost about the property rights and freedom of association of those in the destination country. They have a right to welcome immigrants onto their property, or exclude them from it, as they choose.
As with most other areas of human affairs, immigration decisions should be made in a decentralized manner by property owners rather than centrally by governments.
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Bryan Caplan and Christopher Wellman debate immigration. Is there a human right to immigrate to any country in the world?
Debate sponsored by IHS, the John Templeton Foundation, and University of San Diego’s Center for Ethics, Economics, and Public Policy.
Comments Off on How immigration gave rise to American pop culture
Looking back over the second half of the 20th century, among the observations one can make about American society is that our artistic and entertainment assumptions were increasingly dominated by pop culture as the decades passed. From the grand division of culture into high and low that solidified toward the end of the 1800s, the winner one hundred years later seems unquestionably to have been pop.
Pop culture as we know it began with the age of industrialization, which for America means the years after the Civil War. Two driving forces allowed popular culture to flourish: one from the supply side and the other from the demand side, both of which were made possible by the free and unregulated society of 19th-century America.
On the supply side, making possible the constant influx of new entertainment that constitutes pop culture were Industrial Age advances in communication and mass production. The sudden ubiquity of dime novels, Horatio Alger stories, nickelodeon parlors (early movie theaters), and professional baseball all depended on new means of technology and communication and the free market in which they emerged.
In terms of demand, these same years also saw the first massive immigration to the United States from Eastern and Southern Europe. Most immigrants then spoke a language other than English and brought cultural traditions and customs that set them apart from the bulk of those who were already here. How to transform this increasingly diverse population into a unified American people was not in the least bit clear.
Folklore fades; pop culture pervades
The freedom of individuals to associate helped bring about a solution. Far more readily than by centrally directed planning, the natural currents of pop culture form instant communities where none exist. Back in the Gilded Age of the late 19th century,pop culture did this most readily among the children and grandchildren of immigrants.
They may have had little in common with each other, but they shared an ability to laugh at the silent shorts of the nickelodeon and follow the exploits of the first generation of professional baseball players engaging in a game they themselves could play in the crowded streets and empty lots of New York City, Pittsburgh, and St. Louis.
As these children (if not their parents) embraced English, they could bond over exciting stories of gunslingers out west. From its beginning, pop culture has always been the interest of the young and has depended to a high degree a free and open society for its existence.
Before our polyglot world of mass movement and mass immigration, what we know as pop culture didn’t exist. The job it serves now was handled by what we call folklore.
In homogenous cultural communities, the authority of folklore gives a community the commonalities that form its anchors. It was only with the rise of heterogeneous cultural communities that a common folklore ceased to be able to fulfill its traditional mission and pop culture arose to take its place. The difference between folklore and pop culture, however, rests in the former having an authority in tradition and the other having an appeal rooted in novelty.
Pop culture vs. traditional culture
Despite its constructive role of fusing disparate groups of people together, pop culture also grew to play an antagonistic role, particularly toward traditional culture. Authors like Shakespeare, Bunyan, and Swift; composers like Bach and Handel; and painters like Rembrandt and Gainsborough were unquestionably popular and new at one time, but their works evolved over the years into a canon less easily accessible.
Pop culture, by contrast, is quickly and easily absorbed. In April 1969, American art critic Clement Greenberg criticized pop art for being “too agreeable, too readily pleasing; it doesn’t challenge your taste enough. That’s why it became so popular so quickly.” Such an observation is valid with all pop culture, not just the paintings of artists such as Andy Warhol and Roy Lichtenstein.
The best art, Greenberg further elaborated, “makes you a little more uncomfortable at first, challenges you more. It doesn’t come that far to meet your taste or meet the established tastes of the market.” Marketability, however, is and always has been a key ingredient in popular culture.
There’s a complexity here to which lovers of liberty and defenders of tradition have to attend. The problem comes when good elements like liberty and freedom work in a way, abetted by mass marketing, that results in the dismissal of challenging cultural expressions long regarded as essential to those who seek to understand the human condition.
Pop culture and the tyranny of presentism
While its specifics may grate on the ears and eyes of parents — and it’s in part designed to do just that — pop culture itself isn’t bad. What is truly detrimental is a growing relativism that denies a difference between pop culture and other more canonical cultural expressions, as well as the loss of the ability to differentiate between levels of significance.
The greatest risk , increasingly valuing novelty over permanence and making a culture in which there is little expectation of, or regard for, a broad and widely held knowledge of the past.
A cultural egalitarianism fueled by mass marketing and championed by an ill-informed audience that sees its validity only in its numbers is as much a threat to tradition as any centralized government jealous of a rival locus of authority. As intellectual historian and political scholar Richard Weaver once put it, “A simple expression of majority will is not always a good thing, is not always a final verdict on matters. For that reason, [the conservative] tends to set a great store by traditional usages, and also by formulations such as constitutions, which represent settled opinions and, in a sense, directives.”
The willingness to accept a little difficulty in understanding a work of art is anathema to pop culture but central to all other kinds of culture. Abandoning that willingness would not only reinforce our tendency to downplay the role of history in what constitutes an education, it would make us increasingly disdainful of the curiosity that might lead to experiencing anything more than what’s popular — and most aggressively marketed — today.
Comments Off on Reddit AMA with Professor Sarah Burns, scholar of the American founding
Sarah Burns is Assistant Professor of Political Science at the Rochester Institute of Technology. Her research examines the intersection of political liberalization and American constitutional development with an eye toward policy implications for democratization across the globe.
Professor Burns was featured in Learn Liberty’s America’s Founding series. She has also written on American history (1), American foreign policy (2,3), elections (4,5), and constitutionalism (6) for the Learn Liberty Blog.
Join us for a conversation on Reddit this Tuesday, May 9th at 3:30pm ET, where you can ask her anything!
UPDATE: The AMA is now live!
Comments Off on The Constitutional Rights of Noncitizens
Immigration restrictionists sometimes claim that noncitizens have no rights under the Constitution, and that the US government is therefore free to deal with them in whatever way it wants. At least as a general rule, this claim is simply false.
Noncitizens undeniably have a wide range of rights under the Constitution. Indeed, within the borders of the United States, they have most of the same rights as citizens do, and longstanding Supreme Court precedent bans most state laws discriminating against noncitizens. There is little if any serious controversy among experts over this matter.
The more controversial issue is whether the Constitution provides any protection for noncitizens outside US borders, particularly in regard to immigration issues.
Rights That Protect Aliens and Citizens Alike
The First Amendment prevents the government from censoring noncitizens’ speech or suppressing the practice of their religion. The Fourth Amendment protects them against unreasonable searches and seizures. The Fifth Amendment ensures that noncitizens’ property can only be taken by the government for a public use, and only if just compensation is paid.
Should a noncitizen be charged with a crime, he has exactly the same Fifth and Sixth Amendment procedural rights as a citizen, including the right to a jury trial, the right to counsel, and protection against self-incrimination. If convicted, the Eighth Amendment prevents the government from subjecting aliens to “cruel and unusual punishment” in exactly the same ways as it does with citizens.
Rights Reserved to Citizens
The Constitution reserves a few rights for citizens alone. Most notably, the Privileges and Immunities Clause of Article IV, Section 2, and the Privileges or Immunities Clause of the Fourteenth Amendment both protect the “privileges” and “immunities” of US citizens against various types of interference by state governments.
The Second and Ninth Amendments indicate that the rights they protect are those of “the people.” While the Supreme Court has never addressed this issue, lower courts have disagreed over whether “the people” entitled to the Second Amendment right to keep and bear arms includes noncitizens, especially undocumented immigrants.
That a few constitutional rights may be specifically reserved to citizens underscores the broader principle that the vast majority are not. There would be no need to specify such a reservation if the Constitution had a default rule limiting rights to citizens.
In reality, the vast majority of rights outlined in the Constitution are phrased as general limitations on government power, not special protections for a specific class of people — be they citizens or some other group.
Constitutional Constraints on State Discrimination against Aliens
Not only does the Constitution grant noncitizens most of the same rights as citizens, but longstanding Supreme Court precedent also forbids many state laws discriminating against aliens. In cases such as Bernal v. Fainter (1984), the court has ruled that laws discriminating on the basis of alienage are subject to “strict scrutiny” — that is, they will be struck down unless the government can prove that they are “narrowly tailored” to the promotion of a “compelling state interest.”
Under that doctrine, courts have invalidated state laws excluding noncitizens from entering various professions, including becoming lawyers. Bernal, for example, struck down a Texas law preventing non-citizens from becoming notaries public. An important exception to the principle applies to laws excluding aliens from “political functions,” such as voting and holding elected office.
Some conservatives criticize court decisions restricting discrimination against aliens as left-liberal “judicial activism.” But such decisions have a substantial basis in the Fourteenth Amendment.
Representative John Bingham, one of the principal framers of the amendment, emphasized that one of the purposes of the amendment was to ensure “that all persons, whether citizens or strangers, within this land, shall have equal protection in every State in this Union in the rights of life and liberty and property.” While the framers were especially concerned with ending discrimination against African-Americans, they also sought to curb growing state discrimination against immigrants.
State governments are also forbidden to discriminate against immigrants based on national origin. In a recent high-profile decision, a federal court struck down an Indiana policy, enacted by then-governor Mike Pence, that denied state services to Syrian refugees that were made available to refugees from other nations.
The trial court ruled that this practice was “national origin” discrimination, forbidden by the Fourteenth Amendment. Its decision was later upheld by an appellate court panel that included prominent conservative judges Frank Easterbrook and Diane Sykes (the latter generally considered to be a likely future Republican nominee to the Supreme Court).
The Pernicious “Plenary Power” Doctrine
By far, the biggest exception to the courts’ generally favorable attitude toward extending constitutional rights to noncitizens is the so-called “plenary power” doctrine, which gives the federal government broad power to adopt otherwise unconstitutional policies in its treatment of aliens, when it comes to immigration policy.
Since the late 19th century, the doctrine has been understood as giving Congress very broad power to authorize the exclusion of aliens for almost any reason, including many rationales that would be forbidden in virtually any other context.
The plenary power doctrine has no basis in the text or original meaning of the Constitution. With a few exceptions noted above, none of the rights protected by the Constitution are textually limited to citizens. And none include a blanket exception for immigration cases.
The doctrine traces its roots to the highly racist and xenophobic era of the late 19th century. The animating ideology had a close connection to the judicial tolerance of Jim Crow segregation at home, which intensified around the same time. The origins of the plenary power doctrine lie not in the text of the Constitution but in the racial and ethnic prejudice of the same era that gave us Jim Crow and Plessy v. Ferguson.
Some argue that the plenary power doctrine is sound because aliens have no legal right to enter the United States in the first place; such admission is at the discretion of the US government. Whether the Constitution gives the federal government a general power to restrict immigration is debatable. But even if it does, it does not follow that this authority is exempt from the constitutional limitations that apply to every other exercise of federal government power.
For example, few doubt that Congress has the power to give or withhold Social Security benefits. That does not mean it is free to discriminate on the basis of race or religion in doing so, or that it can withhold benefits from individuals who engage in speech critical of the government.
While would-be recipients have no legal right to Social Security benefits as such (at least none that Congress cannot take away), they do have a right to expect that the government will not allocate benefits in ways that violate constitutional constraints on its authority, including by engaging in prohibited discrimination. There is no good reason why federal power over immigration should be treated any differently.
The Future of Plenary Power
It is unlikely that the plenary power doctrine will be fully overturned in the near future. But, as leading immigration law scholars Peter Spiro and Adam Cox have explained, recent Supreme Court decisions suggest that it may not be as robust as it once was and that it might be subject to various constraints.
The reach of the plenary power doctrine is the main issue in the ongoing litigation over President Donald Trump’s “travel ban,” the executive order barring citizens of several Muslim majority countries from entering the United States. In any context other than immigration, Trump’s order would likely be dead in the water.
It was clearly motivated by a desire to discriminate against Muslims, as evidenced by Trump’s own statements and those of his advisers, as well as by its laughably weak security rationale. Discrimination on the basis of religion is clearly unconstitutional in nearly any other context. The initial order was also vulnerable because it forbade entry even to citizens of the affected countries who had preexisting visas or legal permanent resident status.
Legal challenges to the initial order won a series of victories in court that soon forced Trump to withdraw it and replace it with a somewhat less egregious version. But the new order still reflects the discriminatory intent that animated the original and still has a security rationale so transparently weak as to make it implausible that discrimination was not its true purpose.
So far, two federal trial court decisions have ruled against the revised order, while another has ruled in its favor. The litigation will surely continue, perhaps all the way to the Supreme Court. Whatever ultimately happens, the litigation over the two travel ban orders has shown that the plenary power doctrine is not as firmly established as its most fervent defenders like to think.
Over time, perhaps courts will further rethink this indefensible exception to the principle that the rights protected by the Constitution are general limits on government power that protect citizens and noncitizens alike.
With a few exceptions noted above, none of the rights protected by the Constitution are limited to citizens. And none include a blanket exception for immigration cases.