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Free Minds and Free Markets

Power Without Principle
Markets vs. Morals?
The Streetcar Swindle
Q&A: Randy Barnett

Three and a half years later, White
House officials are still making wildly
optimistic comments about the
economy they mismanaged
October 2012
$3.95 U.S. & Canada
Books That Have Made
History: Books That
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ED T E OF Taught by Professor J. Rufus Fears
IT university of oklahoma



lecture titles
1. Bonhoeffer, Letters and Papers From Prison
2. Homer, Iliad
off 3. Marcus Aurelius, Meditations

4. Bhagavad Gita


ER B 5. Book of Exodus
BY O C TO 6. Gospel of Mark
7. Koran
8. Gilgamesh
9. Beowulf
10. Book of Job
11. Aeschylus, Oresteia
12. Euripides, Bacchae
13. Plato, Phaedo
14. Dante, The Divine Comedy
15. Shakespeare, Othello, the Moor of Venice
16. Aeschylus, Prometheus Bound
17. Aleksandr Solzhenitsyn, The Gulag Archipelago
18. Shakespeare, Julius Caesar
19. George Orwell, 1984
20. Vergil, Aeneid
21. Pericles, Oration; Lincoln, Gettysburg Address
22. Remarque, All Quiet on the Western Front
23. Confucius, The Analects
24. Machiavelli, The Prince
25. Plato, Republic
26. John Stuart Mill, On Liberty
27. Sir Thomas Malory, Morte dArthur
28. Johann Wolfgang von Goethe, Faust, Part 1
29. Johann Wolfgang von Goethe, Faust, Part 2
30. Henry David Thoreau, Walden

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32. Lord Acton, The History of Freedom
33. Cicero, On Moral Duties (De Officiis)

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34. Gandhi, An Autobiography
35. Churchill, My Early Life;
Painting as a Pastime; WWII
36. Lessons from the Great Books
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reason Free Minds and Free Markets
October 2012
Volume 44, No. 5

Departments 62 Worse Than the Recession

The Obama administration has 48 Scott Shackford on the TV show
2 The Insatiable Taxman engineered a recovery in name The Newsroom
New laws push expatriate only. Tim Cavanaugh 50 Anthony Fisher on Johnny
Americans to keep their money in Ramones Commando
their mattresses. Matt Welch 52 Matt Welch on Berlins DDR
Features Museum
6 Contributors 54 Jesse Walker on Michael
20 We Won in Our Effort to Preserve Muhammad Knights William S.
7 Letters and Reaction the Constitution Burroughs vs. the Quran
Why were losing Legal scholar Randy Barnett 56 Brian Doherty on Rob Salkowitzs
on why the Supreme Court Comic-Con and the Business of Pop
10 Citings ObamaCare decision isnt as bad Culture
1st Amendment vs. big labor; as you think.
video game subsidies; intrusive Interview by Damon Root 53 San Franciscos Darkest Hours
TSA tech; DEA car cameras; a win The founder of Salon takes a
for Arizona immigrants; mobility 27 fascinating tour of the Golden
and equality for all Three and a half years later, White Gate City, 19671982.
Tim Cavanaugh
wildly optimistic comments about Season of the Witch: Enchantment,
Columns the economy they mismanaged. Terror, and Deliverance in the City
Tim Cavanaugh, Matt Welch, and of Love, by David Talbot
8 Bloombergs Big Beverage Katherine Mangu-Ward
Ban Illustrated by Terry Colon 56 Markets vs. Morals?
The mayors soda scheme wont The mistaken worry that money
make anyone thinner, but it sets a 30 and morality are at odds.
paternalistic precedent. Polls show that Americans want Tom G. Palmer
Jacob Sullum smaller government everywhere What Money Cant Buy: The Moral
and fewer obligations abroad. Limits of Markets, by Michael J.
16 Bike to the Future Scott Rasmussen Sandel
As pedaling goes electric,
alternative transport goes 36 The Streetcar Swindle 60 The Age of the Infographic
individualist. Greg Beato Its time to rethink Americas Charts, graphs, and timelines in
retrograde love affair with trolley the post-newspaper world.
18 Debt Ceiling Fight Club technology. Samuel L. Scheib Greg Beato
Bring on the next round of ugly
budget battles. Veronique de Rugy 64 Greenwashing the Games?
Culture & Reviews An oil company emphasizes its
44 The End of International environmental credentials at the
Environmentalism 46 Power Without Principle London Olympics. Matt Welch
Green ideology crashes and burns Robert Caros epic account of LBJs
at the Rio +20 Earth Summit. vice presidency. Glenn Garvin
Ronald Bailey The Passage of Power: The Years of Cover Photo: AP Photo/Susan Walsh
Lyndon Johnson, by Robert A. Caro

duction or use, without permission, of editorial or graphic content is prohibited. reason and Free Minds and Free Markets are registered trademarks owned by the Reason Foundation.
reason, P.O. Box 8504, Big Sandy, TX 75755, Tele. 888-

in Readers Guide to Periodical Literature, InfoTrac, Historical Abstracts, Political Science Abstracts, America: History and Life, Book Review Index, and P.A.I.S. Bulletin. Available on

POSTMASTER: Send address changes to reason, P.O. Box 8504, Big Sandy, TX
75755. Publications Mail Sales Agreement No. 1476696.
From the Top: Matt Welch
The Insatiable Taxman
New laws push expatriate Americans to keep their money
in their mattresses.

Does the government have a right to your United Statesunlike every other country in
money after youve paid taxes on it? This ques- the world except Eritreataxes its citizens
tion, unsurprisingly, has considerably more based on passport, not residence. If my French-
urgency for me at age 44 than it did at 24. The American daughter moved to Lyon tomorrow
answer, in an age of chronically underfunded and lived there for the rest of her life, she would
and overspending governments the world over,
is increasingly disturbing. including all those aforementioned intimate
I married my wife, a French journalist, and convoluted banking details. (So convoluted
in 1997. Sometime prior to that she had writ- that my paid tax preparer this year contem-
ten some articles for a couple of U.K.-based plated the TD 90-22.1 form used to report hold-
newspapers. She opened a bank account in
London to ease the transactions and provide a and handed me a highlighter pen in case I could
little walking-around money when she visited
town. Since her primary source of U.K. income
collapsed in the late 90s, the account has lan- But it gets worse for our expatriate friends.
Thats because in 2010 a revenue-starved popu-

Under tax rules that went into full effect this (oryou guessed it! ) to combat tax
year, we have to report that little savings pot evasion by U.S. persons holding investments in
including the account number and the maxi- offshore accounts. The law jacked up the pen-
mum value of the holdings during the calendar alties for those of us above the $10,000 thresh-
yearto the Internal Revenue Service (IRS)

- It also charged IRS agents with determining

can (which my wife now is) who holds more whether the foreign assets Americans report
- were properly taxed before being parked
tions, either individually or together with his abroad. Underpayments of tax attributable to
Back when I was living in Bratislava and website warns, will be subject to an additional
making money as a street musician in Vienna substantial understatement penalty of 40 per-
(dont ask), I opened up an Austrian savings cent. Worse,
account just to deal with the plethora of pfen- institutions to disclose information about their
nigs. It is possible that account still exists, with American customers to the IRS and send 30 per-
about $1 in it, and that by not reporting it to cent of assets believed to be untaxed directly to
the U.S. government.
are for piggy banks, not the real things! -
There are many things American residents ine what unintended consequence might
do not realize about their 6 million or so coun- result from such an unprecedented power grab
trymen living abroad. One of them is that the in the name of bringing rich tax outlaws to
2 | reason | October 2012
This book should be read by all
who care about freedom.
VACLAV KLAUS, President of the Czech Republic

Realizing Freedom is Tom Palmer has the ability

thoughtful, thought-provoking, to make the complex under-
articulate, insightful fascinating standable and to go to the heart
from beginning to end. of the most difficult problems.

Tom Palmer Drawing on

has been one of his extraordinary
libertys most interdisciplinary
eloquent and learning, Palmer
learned spokes- offers a sociologi-
persons for many cally, institution-
years. It is a joy to ally, and his-
have so many of torically informed
his lucid, readable, libertarianism
and trenchant one that is true
essays, written to the rich legacy
over most of those and tradition
years, between one of classical
set of covers. liberalism.
University of Waterloo; author, Tomlinson Professor of
You and the State: A Short Political Theory, McGill
Introduction to Political Philosophy University; author,
and The Libertarian Idea The Multiculturalism of Fear

tireless educator, Tom Palmer has traveled the world to bring the message of freedom to people on every con-
tinent. At home, he has been an incisive commentator on current affairs as well as an original thinker in po-
litical philosophy. The exceptional essays in this volume are drawn from his decades of work.

Save 50%
heel. Yes, thats right: Nonrich Ameri- Who are these hateful tax evad- institutions that just dont want to
cans the globe over can no longer ers? Some are billionaires, such deal anymore with anything involv-
open bank accounts. as Facebook co-founder Eduardo ing the United States. In an age of
Saverin, a longtime Singapore globalization, when countries that
A group called American Citizens resident and dual national who trade are countries that thrive, Wash-
Abroad collected dozens of stories renounced his U.S. citizenship in -
from such Americans for an April advance of his companys initial pub- cult for Americans to live abroad and
2012 letter to the IRS. Heres an lic offering. But many are guys like for the best and brightest foreigners
American retiree and former non- - to live here.
governmental organization employee
who has lived in Geneva for all but who has lived abroad for a quarter
four years since 1973: Just since the of a century, and who (according to Schumer (D-N.Y.) in May unveiled
beginning of the year, I have been a Reuters article) felt American citi- yet another ham-handed acronym of
informed by one of Switzerlands two zenship had become more of a liabil- a bill: The Expatriation Prevention
largest banking institutions that due ity than a privilege. by Abolishing Tax-Related Incentives
to the fact that I am an American, I If it was just me then it would for Offshore Tenancy (ExPATRIOT)
had to divest myself of all my invest- be one thing, Dunn told Reuters in Act. Schumers brainchild would slap
a 30 percent tax on the capital gains
institution. Another bank agreed to New regulations on of anyone renouncing U.S. citizen-
accept my investments; then, just overseas bank accounts ship and bar him from ever setting
this month, on the day that I went foot in the country again.
to sign the papers, I was informed All because Americans have
that the authority to do this had been
for Americans to live the temerity to park their after-tax
withdrawn.I feel that I now am abroad and for the best
being squeezed between my country and brightest foreigners dont want to face draconian IRS
of citizenship and my country of to live here. sanctions should they fail to under-
residence and they are forcing me to -
choose my mattress as the only site April. Disclosing joint accounts I ments. This is what happens when
where I can place my savings. I am hold with my wife and anyone I ever government is as broke as its politi-
an American who loves my country. want to do business withthats just cians are immoral. Time to invest in
too much. My wifes account is none mattresses.
tax return.I do not understand of their business. is making
why my government is treating me Matt Welch ( is
editor in chief of reason and co-author with
this way. said. Its driving us away. Nick Gillespie of The Declaration of Inde-
Suddenly (and I mean why pendents: How Libertarian Politics Can Fix
doesnt my ATM card work any- Whats the upside of such harass- Whats Wrong With America (PublicAffairs),
now out in paperback with a new foreword.
more? suddenly), expatriate Ameri- ment? The U.S. Treasury projects that
cans are discovering they can no lon- increased enforcement will
ger use banks where they live. Some bring in a little less than $1 billion a
are opting to renounce their U.S. citi- year. The federal government spends
zenship rather than continue dealing about that much every two and a half
with the hassle. A presumed record
of at least 1,788 Americans turned in formula isnt whacked enough, con-
their passports in 2011. We know that sider that Swiss and other European
number because the IRS publishes a expatriate executives who live and
name and shame list of citizenship work in America are seeing their
renouncers it suspects of evading home-country bank accounts uncer-
taxes each year.
4 | reason | October 2012
Editor in Chief Matt Welch
( Contributors As executive vice president for international
Editor, reason online Nick Gillespie
( programs at the Atlas Economic Research Foun-
Managing Editor Katherine Mangu-Ward
( dation, Tom G. Palmer spends a lot of time on
Managing Editor, reason online Tim Cavanaugh
( the road. Technically a resident of Washington,
Senior Editors
Brian Doherty (
Damon Root (
Peter Suderman (
mostly. The high point of his travels may have
Jacob Sullum (
Jesse Walker ( -
Associate Editors
Mike Riggs (
slovakian border in 1989 with a photocopier,
Lucy Steigerwald (
Burton C. Gray Memorial Intern Melanie Kruvelis
5,000 sheets of paper, [and] 100 photocopies of
Summer Intern Calvin Thompson
Tom G. Palmer The Road to Serfdom
Science Correspondent Ronald Bailey
( author of The Morality of Capitalism ( Jameson
Editorial Assistant Mary Toledo
( Books) and Realizing Freedom
Art Director Barb Burch ( In Markets vs. Morals? (page 56), he takes on
Photo Researcher Blair Rainey
Contributing Editors Harvard philosopher Michael J. Sandels cri-
Peter Bagge, Greg Beato, Gregory Benford,
Veronique de Rugy, James V. DeLong, Charles tique of markets.
Paul Freund, Glenn Garvin, Mike Godwin, David
R. Henderson, John Hood, Kerry Howley, Carolyn In The Streetcar Swindle (page 36),
Lochhead, Loren E. Lomasky, Mike Lynch, John
McClaughry, Deirdre N. McCloskey, Michael Samuel L. Scheib chronicles American plan-
McMenamin, Michael Valdez Moses, Michael
C. Moynihan, Charles Oliver, Walter Olson, John
J. Pitney Jr., Julian Sanchez, Thomas Szasz, Jeff Samuel L. Scheib ners obsession with streetcars. Scheib, 38, is the
A. Taylor, David Weigel, Cathy Young, Michael editor of Trip Planner Magazine and senior plan-
Legal Adviser Don Erik Franzen ner for Tallahassees StarMetro. A native Florid-
3415 S. Sepulveda Blvd., Suite 400 ian, he became fascinated by transportation in
Los Angeles, CA 90034-6064
Tel: 310-391-2245 Fax: 310-391-4395 college, eventually getting a Masters degree in
1747 Connecticut Avenue, NW urban and regional planning from Florida State
Washington, DC 20009
Tel: 202-986-0916 Fax: 202-315-3623 University. Though he studies more elaborate
Advertising Sales
Burr Media Group forms of transportation, his favorite method of
Ronald E. Burr, 703-893-3632
Joseph P. Whistler, 540-349-4042 Scott Rasmussen getting around is walking. The key, he says, is
Subscription Service
not being stuck in a car.
P.O. Box 8504, Big Sandy, TX 75755
1-888-reason-8 (1-888-732-7668) Scott Rasmussen, 56, is the founder and
president of Rasmussen Reports polling and
Circulation Specialists Inc.
Newsstand Distribution
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ida Panhandle, Rasmussens rsum includes
Thomas E. Beach, (Chairman), Baron Bond, Drew
more than just polling: He co-founded ESPN
Carey, Derwood S. Chase Jr., James R. Curley,
Richard J. Dennis, William A. Dunn, David W.
and worked as a hockey play-by-play announcer
Fleming, Hon. C. Boyden Gray, James D.
Jameson, Manuel S. Klausner, David H. Koch, for the New England Whalers. But his favorite
James Lintott, Stephen Modzelewski, David
Nott, George F. Ohrstrom, Robert W. Poole Jr., job was umbrella boy at the Jersey Shore.
Carol Sanders, Vernon L. Smith, Richard A.
Wallace, Fred M. Young, Harry E. Teasley Jr.
(chairman emeritus), Frank Bond (emeritus),
Walter E. Williams (emeritus)
President David Nott
Vice President, Magazine Nick Gillespie
Vice President, Policy Adrian T. Moore
Vice President, Research Julian Morris
Vice President, Development Victoria Hughes
Vice President, Operations; Publisher Mike Alissi
Jon Graff

6 | reason | October 2012

Letters Reaction

- -

Andrew Sullivan, in response to Tim
- Cavanaughs Is the GOP an Echo or a
Choice? (June), writing at The Daily

Bob Debevec
Mentor, OH
Why Were Losing
Letters are welcome and should be gabacho
addressed to
- reason
1747 Connecticut Avenue, NW
Washington, DC 20009
fax: 202-315-3623
- reason online commenter PM in
response to Taco USA (June)

reason online commenter C.S.P.

reason -
mans The Technocratic Mind (June)
com/subserve -


reason | October 2012 | 7

Columns: Jacob Sullum

Bloombergs Big Beverage Ban

The mayors soda scheme wont make anyone thinner,
but it sets a paternalistic precedent.

Everyone expected that New drinks sold by convenience stores, If so, whats the point? The plan
York Citys Board of Health, all 11 supermarkets, and vending machines cannot possibly work unless the
members of which were appointed (which are not regulated by the citys burdens it imposes lead people to
by Mayor Michael Bloomberg, would health department), means 7-Elevens consume less soda than they other-
rubber-stamp his proposed 16-ounce Big Gulpthe very epitome of the wise would. Even then, there is no
cap on servings of sugar-sweetened effervescent excess decried by Bloom- assurance that they wont make up
soft drinks. But at a meeting in June, bergwill remain available. There the difference in unregulated areas of
several board members zeroed in also was murmuring about the con- their diets.
on the most obvious problem with So why would anyone, even a fer-
Bloombergs plan to treat adults like will allow people to drink as much
children: It does not go far enough. soda as they want, provided they do it big beverage ban? The endorsements
Given Bloombergs avowed goal 16 ounces at a time. touted by the city range from the
of reducing New Yorkers waistlines And why focus exclusively on highly improbable (curtailing the
by reducing their calorie intake, beverages, when man does not get sale of supersize sugary drinks can
his soda scheme is indeed absurdly fat by soda alone? If the city is going have a huge impact on the health of
inadequate, as he inadvertently to ban extra-large drinks in movie our children) to the barely coher-
emphasizes every time he minimizes theaters, what about extra-large pop- ent (Sugar is the tobacco of this
the extent to which it will restrict corn? The popcorn isnt a whole decade!Energy Up! Wooooo!). But
consumer freedom. Once we accept lot better from a nutritional point of the most common theme is that inter-
the premise that our weight is the view than the soda is, board mem- fering with peoples drink orders,
governments business, we open the ber Bruce Vladeck observed, and even if it has no measurable impact
door to meddling far more intrusive may have even more calories. Phil- on its own, represents a step in the
and oppressive than Bloombergs lips likewise questioned the mayors right direction.
pint-sized pop prescription, which is liquidity preference. Were really Which direction is that, exactly?
bound to fail as an anti-obesity mea- looking at restricting portion size, They are establishing the role of
sure but could still succeed as a pater- he said, so the argument could be
nalistic precedent. what about the size of a hamburger explained Yale obesity expert Kelly
Comments by Board of Health or the jumbo fries, and all that kind Brownell, adding that well have
members highlighted the timidity of of stuff? to do many such things in order to
the mayors supposedly courageous Bloomberg himself undermines reverse the epidemic. If that prospect
plan. Joel Forman questioned the the case for his rule by insisting that
exception for milk-based beverages it will not constrain peoples choices now is the time to speak up, before
such as coffee drinks and chocolate in any meaningful way. Its a little healthier-than-thou busybodies like
shakes, which have monstrous less convenient to have to carry Bloomberg get serious.
amounts of caloriesmore per two 16-ounce drinks to your seat in
ounce than soda, in fact, which is also the movie theater rather than one Senior Editor Jacob Sullum (jsullum@reason.
com) is a nationally syndicated columnist.
true of the fruit juices that are exempt 32-ounce [drink], he conceded when Copyright 2012 by Creators Syndicate Inc.
from Bloombergs serving ceiling. he unveiled the plan in May, but I
Another board member, Michael dont think you can make the case
Phillips, noted that the carve-out for that were taking things away.
8 | reason | October 2012

Fortunately, there is an awakening powerful enough to halt that

juggernaut of governmental control. It is a natural law known as the
law of right action, calling for rational, honest behavior.
Natural laws never play favorites. People obey natural laws or suffer
the consequences.
That is the awakening information for this generation.
Visit The Alpha Publishing House Website ( to
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Citings Synthetic drug ban Drug Abuse Prevention Act of cal tests on Rudy Eugene, who
Bath Salts Face Off 2012. was shot to death by police in
The law, part of the Food the course of his ghoulish attack.
and Drug Administration There was no evidence that he
When they learn about Safety and Innovation Act, bans had consumed bath salts or any
1st Amendment vs. this face-chewing situation in mephedrone and methylene- other recreational drug aside
Florida, Charlie Dent told Roll dioxypyrovalerone (MDPV), two from marijuana.
big labor; video game Call in early June, hopefully that chemicals commonly used in
will change a few minds. bath salts, along with canna-
subsidies; intrusive Dent, a Republican con- bimimetic agents used in ersatz SCOTUS on censorship
TSA tech; DEA car gressman from Pennsylvania, - FCC, 0 for 3
was referring to a grisly May 26
cameras; a win for assault in which Rudy Eugene, nine synthetic psychedelics in
a naked, Bible-toting 31-year- the 2C family. Although the When the Supreme Court
Arizona immigrants; - Drug Enforcement Administra- agreed to hear a case involving
mobility and equality ence of a synthetic stimulant the Federal Communications
sold as bath salts, gnawed off ban, unnamed DEA Commissions ban on broad-
for all most of a homeless mans face complained to ABC News that cast indecency, it had a chance
on Miamis MacArthur Cause- it should have covered more to address fundamental First
way. Dent hoped the widely stimulants. Dents original bill Amendment questions about
publicized cannibalistic crime listed 17. government censorship of the
would boost support for a ban The day after the bath salt airwaves. But in June the Court
on chemicals used in the quasi- - shrugged off the opportunity,
legal speed substitutes. He got sional hurdle, the Miami-Dade choosing instead to overturn
his wish a few weeks later, when County medical examiner three FCC decisions on narrow
Congress approved the Synthetic released the results of toxicologi- due process grounds.
FCC v. Fox involved three
instances in which the FCC
concluded that broadcasters
had violated its indecency ban:
two uses of four-letter words by
celebrities on live award shows
broadcast by Fox and an episode
of the ABC cop drama NYPD Blue
in which a female characters

30 years ago in reason

Samuel Blumenfeld, The Victims of Dick and Jane

Robert Poole Jr., War and Morality

Jim Murray, Football Slaves

October 1982

ible. In all three cases, the FCCs responding to a worrisome go out and check on these indi- Quotes
notices of liability were based on trend: According to the U.S. viduals. No word on where the
rules established after the alleged Centers for Disease Control and criminal record will appear in
violations. Prevention, fatal poisonings,
Writing for the majority, Jus- which are mainly overdose Indiana, meanwhile, is tak-
tice Anthony Kennedy noted that deaths, exceeded 41,000 in 2009 ing online restrictions for sex
the regulatory history makes it (the most recent year for which offenders a step further by ban-
apparent that the Commission data are available), more than ning them from all social net-
policy in place at the time of the double the number in 2000. working sites that allow minors
broadcasts gave no notice to Fox Unfortunately, Good Samari- to join. A federal judge upheld
or ABC tan laws usually dont include the 2008 law in June, but the
or a brief shot of nudity could be any provision to inform the pub- American Civil Liberties Union
actionably indecent; yet Fox and lic about their existence, a cru- plans to appeal that decision,
ABC were found to be in viola- cial component if the new rules arguing that the ban violates the
tion. The Court unanimously are to achieve their intended First Amendment because the
concluded that the lack of prior purpose. The Drug Policy Alli- overly broad legislation prevents
notice rendered the FCCs stan- ance, a national advocacy group sex offenders from engaging
dards impermissibly vague in seeking to ameliorate the harms in political and professional
these instances. of both drug laws and drug communication via Twitter,
The decision was a loss for Facebook, or other social media
the FCC but a punt on the ques- spreading the word to relevant sites. Under Indiana law, all sex
tion of whether the indecency communities, including people
policy is so vague that its chill- in drug rehab. and teenagers who engaged in
ing effect on speech violates the consensual sex, have to register
First Amendment (as a federal for life.
appeal court had concluded), not Online sex offensive
to mention the issue of whether Disclosure for Flashers
broadcasting should continue to 1st Amendment vs. big labor
receive less constitutional pro- Union Shutdown
tection than other media. As the Political views, favorite mov-
Court emphasized, this opinion ies, and criminal record? A new
leaves the Commission free to Louisiana law requires regis- In California and other states
modify its current indecency tered sex offenders in the Bayou without right-to-work laws,
policy in light of its determina- State to include their criminal nonunion state workers must
tion of the public interest and pay dues to cover collective bar-
applicable legal requirements Under the law, sex offenders gaining and other basic union
and leaves courts free to review who fail to disclose their record activities but not to fund political
online face felony charges pun- activism. In 2005 the California
policy in light of its content and ishable by imprisonment with branch of the Service Employees
application. hard labor for up to 10 years International Union (SEIU) nev-
without parole. Although Face- ertheless levied a special fee to
book prohibits convicted sex fund several political campaigns
911, not jail offenders from using the site, in California without provid- West Wing Newsroom
Safer Samaritans child predators arent necessar-
nonmembers, essentially leaving The Globe and
place, state Rep. Jeff Thompson those nonunion workers who Mail
Calling for emergency help (R-Bossier City) explained to did not want to participate with
when someone is dying of an CNN on June 19. We dont want no recourse but to seek a refund
accidental drug overdose can to leave it to Facebook police to of their money after the fact.
often result in the arrest of both Those actions were uncon-
caller and victim. A few states are stitutional, the U.S. Supreme
working to change that situa- Court ruled in June. Public-
tion through so-called 911 Good sector unions have the right
Samaritan laws, which offer under the First Amendment to
immunity from prosecution for express their views on politi-
drug law violations discovered cal and social issues without
during an emergency response. government interference,
New Mexico pioneered Justice Samuel Alito wrote for
the trend in 2007. Seven other the majority in Knox v. Service
states have since followed suit. Employees International Union.
The movement is picking up But employees who choose not
speed. Colorado, Florida, and to join a union have the same
Rhode Island all passed 911 rights.To respect the limits of
Good Samaritan laws in 2012, the First Amendment, the union

List about the companys troubles from $4.9 million in 2010 to
and scaring potential investors a projected $3.9 million this
away. The state has launched year. Unlike many other units of
Fly Free an investigation into company government in the United States
today, the small town of 7,000
how much the studios collapse souls has responded to tight
will cost taxpayers.
In addition to cutting deals
with neighboring towns to pro-
Intrusive TSA tech -
Hall Monitor vices, Milton axed its activities
director. When an insurance con-
sultant pointed out that unen-
Within a decade, air travelers forceable laws are a liability risk,
will be able to walk casually the city council repealed many
through the checkpoint of the of them, including one requiring
future, a high-tech hallway that bicycle riders to wear helmets.
will scan passengers bodies, Of course you should wear
a hel-
Wade Eyerly language, and detect metal and met,
worrying liquidsall on the way Mayor
to the food court and duty-free Debra
shopping. The International Air Perry told
Transport Association (IATA), an The New York
1 Al Qaedas greatest victory is the TSA.
industry trade group, is develop-
ing the new technology, which
Times in June.
But this is
aims to free passengers from a parents
tiresome lines, rude staff, and issue
2 We enable commerce. uncomfortable prodding and
poking while giving government
need to be

3 We create jobs. than ever to peoples personal

Perry Flint, head of corpo-
ing their
children, making
sure their chil-
rate communications for the dren are well
Americas at IATA, says the new dressed and have hel-

and will improve the passenger

should have sent out a new publishing history at the time experience. We think it will be on skateboards and bikes is just
notice allowing nonmembers to but was developing Kingdoms of less intrusive, he says. But ques- stupid.
opt in to the special fee rather Amalur: Reckoning, a fantasy role- tions about how much data will
than requiring them to opt playing game. The company used be collected, how much will be
out. In a notable twist, liberal the subsidy to move its staff from retained, and how it will be used DEA car cameras
Justices Sonia Sotomayor and Massachusetts to Rhode Island remain unanswered. Tagged and Tracked
Ruth Bader Ginsburg also ruled and to help fund an online multi- The Transportation Secu-
against the SEIU, although they player sequel, all in the name of rity Administration (TSA) will
did so on narrower grounds. job creation. operate and manage the new When the Drug Enforce-
Kingdoms of Amalur was technology, and the New York ment Administration (DEA)
released in February and had Port Authority plans to install announced plans to position
Video game subsidies sold 330,000 copies by March, the walkthrough detectors in automated license plate cameras
Neverquest according to game industry new terminals being built at the along Interstate 15 to identify
Newark and LaGuardia airports.
million after 90 days on the mar- Eventually all 600 million pas- travel patterns, some state law-
Former Red Sox pitcher Curt ket, according to 38 Studios. sengers who enjoy the TSAs ser- makers were leery of a scheme
Schillings failed effort to break But revenue from the game vices every year could be walking that could keep motorists move-
into the video game industry may through these nosy corridors.
end up costing Rhode Island tax- Studios was no longer able to From the public relations
payers millions of dollars. make payments on its state-guar- aspect and the government
- anteed loan. A public scandal Less money, fewer laws intrusion into life, I hate this,
ling game company 38 Studios erupted as 38 Studios laid off its Helmet Optional Utah Senate President Michael
received a $75 million loan employees, closed shop in May, Waddoups (R-Taylorsville) told
guarantee from Rhode Islands The Salt Lake Tribune in May.
Economic Development Cor- Schilling blamed Gov. Lincoln The annual tax revenue of But the DEA already has similar
poration. 38 Studios had no Chafee for publicly speaking Milton, Washington, dropped cameras in California and Texas,

and is considering locations in Brickbats
Arizona. The drug agency is fol-
lowing in the footsteps of many
local police departments, which
have quietly installed license
plate recognition (LPR) cameras
with minimal debate.
A 2010 study from George
Mason Universitys Center for
Evidence-Based Crime Policy
found that over a third of large
police agencies have already
adopted LPR with little discus-
sion of its effectiveness or com-
munity concerns. The fact that
only 28.5 percent of agencies
researched the legal implications
of the technology may explain
their widely varying policies for
storing and using data.
That disparity could disap-
pear, thanks to Vigilant Video, a
Livermore, California, company
that offers police the ready-to-
use National Vehicle Location
Service. California Watch, a non-
partisan online journalism oper-
ation funded by the Center for
Investigative Reporting, reports
that the database is bulging
with more than 550 million
license-plate records obtained
from law enforcement agencies
and the companys own 2,000
camera-equipped scout cars.

Boozing while pregnant

Drink Up, Moms!

Despite the familiar surgeon

generals warning advising
women to abstain completely
from alcoholic beverages during
pregnancy because of the risk
of birth defects, there has never
been any solid evidence that
light to moderate consumption
harms the fetus. New research
from Denmark, funded by the The Dirty
U.S. Centers for Disease Control Cowboy
and Prevention (CDC), indicates
once again that heavy drinking is
the real hazard.
In a study involving more
than 1,600 women reported
in the June issue of BJOG: An
International Journal of Obstet-
rics and Gynaecology, children
whose mothers consumed nine
or more drinks per week during
pregnancy had shorter attention Charles Oliver
spans than children of abstain-

Follow-Up new research unhelpful. These

dangerous message to pregnant

A Win for Arizona Immigrants women, he told CBS News.
Women may underestimate
reason ing the frequency or quantity of
alcohol consumed. Those suffer-
ing from alcoholism may attempt
The One-Man Wall
How a single Arizona legislators
obsession has changed immigration
to rationalize that it is safe to
policy for the worse

Kerry Howley
drink moderately, something
they may ultimately be unable
to do. The CDC likewise is not
Russell Pearce was far from home the day his son got
shot. Minutes from the White House, the state legislator
was preaching the Pearce gospel. Theyre taking jobs
away from Americans, he told a small audience at a promi-
nent DC think tank. Health care systems are failing. The
education system has imploded. Eighty percent of the vio-
lent crimes in Phoenix are involving illegal aliens. Pearce
changing its recommendation of
speaks softly, and he has a sad-puppy look about him when
he mentions the men and women he has devoted his life
to pushing back behind the Mexican border. You cant
complete abstinence in light of
continue to pander and have pathetic policies that hurt
Moments later, a Brookings Institution staffer handed
Pearce a note instructing him to call his wife LuAnne
the new data.
now. Pearces son Sean, a sheriff s deputy in Arizonas
Maricopa County, was being airlifted to a hospital with a
bullet lodged in his abdomen. Plane delays and red lights
slowed an excruciating trip to a crawl. LuAnne called back
with an update. Youre not going to believe this, she said.
Sean was shot by an illegal alien.
Rep. Russell Pearce talks little about himself and much
about state politics, but his personal life has an uncanny desert. Arizona is now the second fastest growing between Tijuana and California. Border agents, another. He has been a state legislator for only eight years,
Unlicensed diet advice

Russell Pearce (center) at a Minuteman Project rally

in April 2006. AP Photo/Khampha Bouaphanh
way of colliding with his political obsessions. Like his son, state in the nation, and the Phoenix-Mesa met- once a rare sight, began to dot the more popu- but he has used nearly every political position he has held,
Pearce bears a wound from his days in law enforcement: ropolitan region, where Pearce was born, raised, lated Texas and California borders. So those who from deputy sheriff to director of the Arizona Department

Paleo Punishment
30 years ago a Latino gang member put a bullet in his and elected, is the fastest growing region in the aspired to work in America charted a course right of Transportations Motor Vehicle Division, to crack down
state. through the middle, braving the Sonoran Desert on undocumented workers. He wants to end birthright
where most peopleLatino or otherwiseare transplants, Sun-seeking natives drove most of that in hopes of avoiding armed guards. According to citizenship, slash immigration quotas, and throw up more
the Republican lawmaker can honestly say that he has growth, but over the last decade Arizona has the Pew Hispanic Center, 10 percent of Arizonas
been observing the transformation of Arizona since the become a major corridor for unauthorized immi- work force in 2005 was undocumented, twice the Protective Services be required to root out undocumented
grants. In the mid-1990s, federal authorities took national average. children. The representative of a city named Mesa, Pearce
his native city spread like syrup over the pancake-colored Vietnam-era landing mats and erected a steel wall Pearce aims to change that, one way or co-authored an initiative to ban the use of Spanish in most
34 | reason | October 2008 reason | October 2008 | 35

In January the state of North

Carolina ordered Steve Cooksey
to stop writing about how the
paleo diet helped him cope
with diabetes.
The paleo diet, which con-
sists mostly of meat and fresh
vegetables, is modeled after
pre-agricultural eating patterns.
Cooksey, a logistics manager for
a medical supply company from
Stanley, North Carolina, found
that the diet controlled his blood
Illinois v. Caballes sugar levels and helped him lose
more than 75 pounds. He began
a website,,
to tell the world about the diets
good effects on him. North
Carolinas Board of Dietetics/
Nutrition ordered him to stop,
sending him an edited version of
the sites content that it deemed
acceptable. Even private email
messages or calls discussing his
diet experience were forbidden,
he was told, unless he became a
can standard of 14 grams, one- state-licensed dietician.
as likely to have low IQs. But no sixth more. But given the rela- In May, with the help of the
such effects were apparent in tively wide consumption ranges, Institute for Justice, a libertarian
the children of women whose that difference probably does
alcohol consumption during not matter much. Furthermore, in Arlington, Virginia, Cooksey
pregnancy was light (one to four self-reported drinking, especially sued the board in federal court,
drinks per week) or moderate by pregnant women, probably claiming its attempt to censor his
underestimates actual consump- website violates his right to free-
tion, meaning that the amounts dom of speech. The case touches
moderate drinking is not associ- associated with no neurological on one of the great unresolved
ated with adverse effects on the impairment may be larger than questions in First Amendment
children aged 5, the researchers those indicated by the study. jurisprudence: When does occu-
said. Bruce Goldman, director of pational licensing trump free
Substance Abuse Service at the speech? The implications are
study contained 12 grams of pure Zucker Hillside Hospital in Glen potentially wide. Data from a
ethanol, compared to the Ameri- Oaks, New York, deemed the 2010 study by economists Mor-

ris Kleiner of the University of Soundbite
Minnesota and Alan Krueger of
Princeton indicate that occupa- Mobility and Equality for All
tional licenses are required for
one in three American work-

Prison assault prevention

Rape Rules

A 2008 survey by the U.S.

Department of Justice found
that 10 percent of state prisoners Q:
had been victims of rape or other
sexual misconduct, with the
aggressors split evenly between
inmates and staff members.
Nearly a decade after Congress A:
enacted legislation aimed at
addressing this problem, the Jus-
tice Department has unveiled the
new rules mandated by the law.
The regulations, released in
June, apply to all incarceration Scott Winship Q:
facilities in the United States,
which under the Prison Rape
Elimination Act of 2003 stand
to lose 5 percent of their federal A:
funding if they fail to comply.
The 268 pages of guidelines
prescribe 43 different action
items to combat prison abuse,
- Q:
els for juvenile facilities, no time
limit for when an inmate may
submit a grievance regarding A:
sexual abuse, and methods to
ensure effective communication
with inmates who are deaf or
hard of hearing. They require
that inmates be screened for
risk of being sexually abused
or sexually abusive, and that
post-incident reviews consider
whether the incident was moti-
vated by hate. Several rules
reason online Q:
inmates, separating them from
adult prisoners in mixed settings A:

The Justice Department esti- Q:

mates implementation will cost
states $6.9 billion over 15 years,
amounting to an average of
$55,000 a year per prison. Judg-
ing from comments to the Justice
Department summarized in the

concerned that compliance will

require hiring additional staff,
which could be a tough sell in A:
some states.

Columns: Greg Beato

Bike to the Future

As pedaling goes electric, alternative transport goes individualist.

On a recent afternoon in one of San Fran- have made car travel so popular. You can come
ciscos hilliest neighborhoods, I experienced and go on your own timetable. Youre free to
what it must be like to be a world-class cyclist choose your ideal route and can modify it on
doped to the gills on high-oxygen blood and -
testosterone. Streets with mild upward slopes taneity and promotes autonomy.
felt like childs play. Even double-digit grades But there are also many ways in which
suddenly seemed manageable. Heart pounding, bikes arent nearly as convenient. First and
Id summit one peak and then quickly set out foremost, they require physical effort. And even
for another.
The secret to my new prowess was not a bike are relatively modest. Choosing to make
pharmacological but mechanical: I was riding a trip via car usually just involves looking for
a Focus Jarifa Speed, a $3,399 German-engi- your keys. Choosing to make a trip via bike
neered bicycle equipped with a small lithium- typically involves a series of questions: Do you
ion battery pack and a 350-watt motor.
Remember when our car-free future was
supposed to be powered by jet packs, trans-
sweaty and disheveled when you arrive at your
happy postwar vision has long since devolved
from Jetsonian utopia to postpeak oil apoca- With an electric bike, which federal regula-
lypse, a new Mad Max era of economic collapse
and medieval brutishness. But while electric with a maximum motor-assisted speed of 20
bikes cant quite match the autonomy and miles per hour, bike travel becomes a little
convenience that yesteryears imminent dream more like car travel, which is to say, a little
machines once promised, they do suggest a more spontaneous and convenient. That minor
future marked by technological progress and shift may be just enough to make bike travel
greater individual freedom. practical for a much wider range of individu-

Automobiles, those long-maligned gas

guzzlers, are incredible freedom machines. Traveling by bike even when youre pressed for
Their ability to cover great distances in rela- time, covering long distances, carrying lots of
tively short amounts of time, in all kinds of cargoall of this becomes much more feasible
weather, on schedules we largely determine if youre riding a bike equipped with a small
ourselves, greatly expands our ability to choose electric motor.
where we live, where we work, and with whom
we socialize. Fifteen years ago, electric bikes were strictly
Unlike buses, trains, and other forms of
public transportation frequently proposed as
an alternative to mitigate rising petroleum costs eight hours to charge and were environmen-
and the environmental impact of cars, bikes tally undesirable. Todays electric bikes are still
feature many of the same characteristics that a relatively immature technology, but theyre
16 | reason | October 2012
improving rapidly. The Focus Jarifa the average vehicle occupancy for Brett Thurber, owner of The New
Speed claims a range of up to 80 - Wheel, a San Francisco shop that
miles. Pi Mobility, a Sausalito, Cali- sons. The average vehicle occupancy specializes in electric bikes. But the
fornia, manufacturer, sells a model, for all purposes (e.g., shopping,
socializing, schlepping the kids to
a top speed of 30 mph. (When elec- way to overcome.
tric bikes exceed the 20-mph federal At best, our cars are perpetually half -
standard, licensing regulations vary full. ship with GE Capital, he says. Its
from state to state.) Shifting at least some of our basically a credit card with deferred
- transportation to electric bikes -
ited costs $5,995, but according to addresses this phenomenon in a way tion, they get an instant credit deci-
Pi founder Marcus Hays that price that shifting to electric cars does sion from GE, and if theyre approved
could decrease substantially as the not. Electric bikes require fewer they can spend that on the bike.
company ramps up production from resources to manufacture. They con- Thus a bike that would otherwise
its current level of around 500 units sume less energy and take up less cost $3,499 upfront can be had for
a year. When lithium batteries get space on roads and parking lots. Best
cheaper, when we bring a new manu- of all, they cost a fraction of what
facturing process online that allows electric cars cost and are cheaper to Electric bikes expand
maintain. consumer choice and
retail level is possible, he says. But personal autonomy and
glance may seem like a product
Compared to traditional bikes, borne out of scarcity, dwindling
remind us were actually
electric bikes, which typically weigh resources, diminishing possibilities, already well on our
between 45 and 80 pounds, are and the politics of limits, the oppo- way to a more mobile,
heavy. Compared to a 3,500-pound site is actually true. Electric bikes liberating, and affordable
allow people to harness the power
As sustainability advocate Alan and convenience of private trans-
transportation future.
Grist article, portation while letting them deploy payments of about $300 each. Or to
most e-bikes battery charge can be their comparative savings elsewhere. put it another way: Even if you cant
spent moving the mass of the rider, They expand consumer choice and really afford an electric bike, you can
while most of electric cars charge personal autonomy and remind us
must be spent moving the bulk of the that while tomorrows transporta- While it may seem odd to apply
car itself. tion challenges are often posited as such unbridled salesmanship to a
an insurmountable uphill slog, were product typically associated with
Furthermore, while zero-emissions actually already well on our way to a low-impact consumption, few prod-
cars fueled by solar, hydroelectric, more mobile, liberating, and afford- ucts ever go mainstream because
or other forms of clean energy can able transportation future.
theoretically eliminate their carbon cash-back incentive on a new electric
footprints, even they do little to Yet its still not as easy as it should bike may not make it quite as entic-
address how overbuilt traditional be to buy an electric bike. Car deal- ing as your own personal hovercraft,
automobiles are for many purposes. ersand also motorcycle and scooter but it will certainly help narrow the
Although the ample passenger space, gap between an enhanced bicycle
cargo space, and driving range of rebates, and various other incentives and an old-fashioned car.
gas-powered cars all contribute to that make buying a car seem more
their extraordinary utility and conve- like a windfall than a burden. With Contributing Editor Greg Beato (gbeato@ writes from San Francisco.
nience, we habitually underuse our bikes, traditional or electric, that isnt
automobiles. According to the 2009 usually the case. The lifetime cost
National Household Travel Survey, of an electric bike is really low, says
reason | October 2012 | 17
Columns: Veronique de Rugy

Debt Ceiling Fight Club

Bring on the next round of ugly budget battles.

At the current rate of federal spending, showdown the only pain and damage that
the national debt will crash through its legal resulted was probably to [Geithner] and his

happens, both sides of the aisle will be hop- federal spigot open in case the Treasurys bor-
ing to avoid a repeat of the hysterical debt rowing authority expired during early August
last year. Financial markets and the economy
Democrats have not managed to pass a budget provide no evidence for the Treasury Secre-
in years and do not have plans to reduce our tarys pain and damage claims.
mounting debt. Republicans generally wind Gokhale is right. While many argue that the
up trying to weasel out of whatever spending Standard & Poors (S&P) ratings downgrade for
cuts they agreed to before the ink on the deal U.S. bonds last summer was a direct result of
has dried. Republican opposition to raising the debt limit
Treasury Secretary Timothy Geithner has
argued that when the time comes to raise the is different. It was Washingtons unwillingness
debt limit, members of Congress should avoid to cut spending and put us on a sustainable
path, not the melee staged for the cameras, that
Markets and investors are not caused the downgrade. Weeks before the August
afraid of a little political hair S&P warned that it would
pulling and eye gouging. The real downgrade the U.S. bond rating unless lawmak-
horror was that neither side was ers took credible steps to reduce government
spending. S&P laid out clear criteria for avoiding
serious about cutting spending.
another debate about offsetting the inevitable trillion, 2) agree to a credible plan within three
hike with cuts in spending because of the
drama and the pain and the damage that they discipline will stick.
caused the country last time around. Geithner
would rather have the power to raise the debt S&P
ceiling when cash is needed, with no strings was
attached. trillion as part of the Budget Control Act (BCA)
While the Treasury secretary is correct that -
any call to cut spending will cue much drama, tion measures that S&P asked for, the U.S. lost
he is wrong that we should avoid it. In fact, a notch on its AAA rating. S&P correctly con-
precisely what this country needs right now is cluded that the deal was a joke. The debt reduc-
tion package was much smaller than the one
this time, when the smoke clears, we need to see demanded by the ratings agency, committing
actual spending cuts that kick in today, not fake only $900 billion in spending cuts through

As the Cato Institutes Jagadeesh Gokhale Only in Washington would anyone believe
explained in Politico -
18 | reason | October 2012
Perhaps more important, econo-
Historical Bipartisan Debt Ceiling Increases ( in $ trillions) mists have shown that in some
countries (excluding Japan) very
high levels of debt havent led to a
National Debt (subject to the federal systematically large increase in inter-
est rates. In a recent National Bureau
Budget Surplus 19982001 of Economics working paper called
Debt Overhangs: Past and Present,
Debt Ceiling economists Carmen Reinhart, Vin-
cent Reinhart, and Kenneth Rogoff

their sample, countries in which debt

exceeded 90 percent of GDP for at

REAGAN BUSH CLINTON G.W. BUSH OBAMA increase in interest rates.


But stable interest rates are not a

sign that these countries are in good

Geithners threatened pain and than in other periods, the average

damage also did not materialize. duration of debt-overhang episodes
Interest rates stayed low as markets is 23 years, and it produces a mas-
all parties were well aware that more shrugged off last years contentious sive shortfall in output that is almost
debt would be required within the debt ceiling negotiations. This reac- one-quarter less, on average, than in
next two years. Even if all spending tion is evidence that investors never low-debt periods. In other words,
caps and cuts were implemented, truly feared the government would the fact that bond markets are blas
government spending would still default on interest payments owed about high levels of debt in countries
to bondholders. Thats because if an perceived as safe tells you very little
agreement had not been reached, it about how well they are doing. It
percent increase in military spending is likely that the government would certainly should not be mistaken for
above and beyond war spending. have paid the $29 billion it owed a signal that the government can bor-
The BCA - bondholders in August and decided row more without risk.
cant changes to the programs that which expenditures not to pay for at
that point. debt ceiling last year was brutal. But
sustainability: Medicare, Medicaid, That being said, it would be markets and investors are not afraid
and Social Security. Nor did the deal dangerous to read the countrys low of a little political hair pulling and
provide credible guarantees that interest rates as a sign of its credit- eye gouging. The real horror was that
Congress would go through with all worthiness. The Federal Reserve neither side was serious about cut-
of the spending reductions. In fact, is keeping rates low in the hope of ting spending. And for that to change,
since the deal was signed, Repub- boosting the economy. Another rea- things are going to have to get a lot
licans and Democrats alike have son for our low interest rates is that uglier.
been looking for ways to avoid the most other countries are in even
cuts. Appropriators have ignored the Contributing Editor Veronique de Rugy
( is a senior research fel-
budget caps imposed by the law, and States. This extraordinary situation, low at the Mercatus Center at George Mason
many lawmakers have been vocal which makes the U.S. look better University.
about reducing the automatic budget than it should, cannot continue
reason | October 2012 | 19
We Won in Our Effort to
Preserve the Constitution
Legal scholar Randy Barnett on why the Supreme Court
ObamaCare decision isnt as bad as you think

Interview by Damon Root

ON JUNE 28, the U.S. Supreme Court announced its

eagerly anticipated decision in National Federation of
Independent Business v. Sebelius, the case arising from the
legal challenge to the Patient Protection and Affordable
Care Act, a.k.a. ObamaCare. In his majority opinion,
Chief Justice John Roberts rejected the Obama admin-
istrations claim that Congress may force Americans to
buy health insurance under its power to regulate com-
Headlines of New York newspapers after the Supreme Court

merceamong the several states but found the man-

decision on ObamaCare. Richard B. Levine/Newscom

date lawful under a different constitutional provision,

Congress power to lay and collect taxes. The Gov-
ernment asks us to interpret the mandate as imposing
a tax, if it would otherwise violate the Constitution,
Roberts declared. Granting the Act the full measure of
deference owed to federal statutes, it can be so read.

reason | October 2012 | 21

Most opponents of the health care law promptly only constitutional leverage point, to defeat Obama-
described the ruling as an unmitigated disaster, but not the Care generally, and the second is because the theory
libertarian legal scholar most closely associated with the by which the mandate was enacted, if it had been
case: Georgetown University law professor Randy Barnett. -
An attorney for the National Federation of Independent ory. In fact, it would end the idea of limited and enu-
Business and one of the architects of the ObamaCare legal merated powers found in Article I of the Constitution.
challenge, Barnett maintains there is a silver lining to Rob-
erts ruling. The chief justice substituted a less dangerous and for the Constitution. And what I was pointing
tax power for a far more dangerous Commerce Clause out in the Washington Post piece is that we lost in our
power, Barnett said during an interview in reasons Wash-
explain how we may not have lost as badly as some
accepted the governments unprecedented theory of the
Commerce Clause, Barnett explains, Congress would have Constitution, and in fact we moved the ball in a posi-
had the power to do anything it wants with respect to the tive direction.
economy. The upshot, he argues, is we won in our effort reason: The editorial page of The Wall Street Journal said
to preserve the Constitution and in fact, we moved the ball Roberts opinion substituted one unconstitutional
in a positive direction. expansion of government power for another and gave
Barnett, a professor of legal theory at Georgetown Uni- the federal government a vast new taxing power. Is
versity Law Center and the author of nine books, including that wrong?
Restoring the Lost Constitution: The Presumption of Liberty Barnett:
(Princeton), sat down with Senior Editor Damon Root to unconstitutional version for another, but he substi-
discuss the ObamaCare ruling, the echo chamber of lib- tuted a much less dangerous unconstitutional prin-
eral academia, and whether the Constitution is consistent ciple for a much more dangerous one. Thats exactly
with libertarian principles. To see a video of this interview, the reason why this was a pretty big, important victory.
go to
was the Commerce Clause. Thats how the law is writ-
reason: Three days after the health care decision came ten, as a regulation of commerce. And if Congress can
down, you wrote in The Washington Post, We lost on regulate you when youre not doing anything, that is a
health care. But the Constitution won. What did you huge expansion. The theory under which that expan-
mean by that?
Randy Barnett: We brought the action against the man- power to address all national problems. Its as though
date for two reasons. One is as a leverage point, our we have a national problems clause in the Consti-
tution. Thats what most law professors
actually believe, and if that were true, that
would be the end of the enumerated powers
What Chief Justice Roberts substituted
tion, which he admitted was not the best

the tax power that law professors have been

advocating. Law professors said, You could
just do this whole thing under the tax power.
Randy Barnett on

You could just call it a tax; itd be the same.

its written like a tax, if you take the require-

ment out. First of all, youve got to take the
requirement out. There was a requirement
22 | reason | October 2012
Had we lost, we would have had a national
problems clause in the Constitution, and Congress
would have had the power that all law professors
want it to have, which is the power to do anything it
wants with respect to the economy.

that everybody buy insurance. Youve got to take that people out under that reading of the Constitution.
out because thats unconstitutional under the Com- reason:
merce Clause. So [if ] you take the requirement out, Barnett:
what youre left with is the penalty. And the penalty, he States and certainly the only legal commentator who
said, is so low that it could actually be a tax and not a holds the view that he announced last week. And that
penalty. is this view that the Commerce Clause makes the man-
date unconstitutional because it compels commerce in
was so low. If it had been higher, it might have been
a penalty, and it would have been unconstitutional we have to adopt a saving construction to eliminate the
because it would be coercive. What he really said was
that Congress can tax inactivity as long as those taxes which cant be more than a reasonable amount. That
allow people to make a choice. But if that monetary
exaction, he said, ever got so punitive that it would before. No academic who supported the mandate has
be coercive, in that case it would be a penalty and it held that view. No judge whos considered this case
has held that view. No other justice holds that view.
be unconstitutional; that wasnt before him. This view is unique to Chief Justice Roberts and was
So he substituted a less dangerous tax power for unknown until he announced it. And that should tell
a far more dangerous Commerce Clause power. If the you something about whether it was a legally com-
Commerce Clause power had been upheld, not only pelled outcome, because if this was the obvious, best
would the enumerated powers scheme have gone legally compelled outcome, someone would have held
away, but Congress could have changed the law to it before, and no one did.
punish this or any future mandates by very extensive reason: If its not a legally compelled outcome, whats the
last way of explaining the difference: Imagine that all Barnett: Its circumstantial evidence that this was a politi-
cally compelled outcome. And in fact, Im not exactly
not under the commerce power. All the drug laws we sure why that would even be so controversial to say
have are Commerce Clause power. But imagine they
the chairman of the Senate Judiciary Committee on

would mean the only thing the government could do to Justice Roberts to save the legitimacy of the Court by
you for violating the drug laws would be to charge you not going along with the 5-to-4 conservative-liberal
a reasonable, modest tax. They couldnt even charge decision striking down the presidents signature leg-
you a punitive tax, and they certainly couldnt put you islation. [Those] are political considerations, none of
in jail. If we actually achieved that reading of the drug which relate to the Constitution or even to Supreme
laws, it wouldnt be a perfectly libertarian solution, Court doctrine about the Constitution. It all relates to
but youd have to open up the jails and let millions of political considerations, and if those were the consid-
reason | October 2012 | 23
The Founders built a Constitution that was so well-
engineeredand [they] built in so many redundant
checks on powerthat even if you get rid of this
one, and this one, and this one, just the ones that
are left are enough to keep us relatively free.

erations urged upon him that persuaded him to cop Barnett: Its unprecedented, the courts are empowered to
out in the way he did, then that makes it a political enforce it, and the individual insurance mandate vio-
But I want to be clear about one thing. Its not like whole case.
Im saying it was a political decision in the sense of the reason: -
tices accepted your arguments on the Commerce
acting politically. I think four justices were acting on Clause. Is that a binding outcome?
principle. They have a principled view that theres a Barnett: There are two different ways of looking at it. The
national powers clause in the Constitution; thats their
principled view. Then four justices were acting in prin-
ciple against that view. One justice, the swing justice, holding was? And it turns out there were. It turns out
his view was the one that was possibly motivated polit- that the liberal justices signed on to part three of Jus-
ically. tice Roberts opinion in which he said the holding of
reason: In his opinion, Roberts wrote, It is not our job this Court is that you cannot be compelled into activity
to protect the people from the consequences of their under the Commerce Clause, so were going to do this
political choices. Whats wrong with that? We have saving construction instead. It says the Court holds
a presidential election coming up. If youre unhappy this and four liberal justices signed on to that part of
with ObamaCare, why not just take your complaints to
the ballot box? holding of the Court. Thats one way of looking at it.
Barnett: Thats exactly wrong. It is the Courts job to pro- Thats the way thats pertinent for other courts.
tect the people from the consequences of their politi- In terms of future Supreme Courts, and the gen-
cal choices when they violate the Constitution of the eral public, the other way of looking at it is pragmati-
United States, which is a higher law, also enacted by
the people, to check Congress and the other branches went to a district court judge in the future, would a dis-
of government. The Constitution is the law that gov- trict court judge look up at the Supreme Court and say,
erns those who govern the people. It was put in place
by the people. So the people who are supposed to be saying Congress cant go that far? Clearly there are. So
bound by that law, which are Congress, the courts, and if you just look at it doctrinally, or if you look at it prag-
the president, they cant change it to make it more suit- matically, its the holding of the case.
able to them. Its the Courts job to follow the Constitu- reason: None of your arguments challenged any existing
tion. Supreme Court precedents. Doesnt that make this a
reason: Although Roberts ultimately upheld the individual limited victory?
mandate under the tax power, he did fully accept your Barnett: For two years Ive been hearing, If Barnetts view
argument that the mandate was an unprecedented or the challengers view is accepted, its a threat to the
exercise of congressional power under the Commerce entire post-New Deal apparatus and its a return to
Clause. the bad old days. And Ive been denying it. Ive been
24 | reason | October 2012
saying if we win, itll apply to one law thats ever been ers scheme, they wont have a super bad precedent
passed, the Affordable Care Act, the individual man- standing in their way, which they would have if wed
lost on the Commerce Clause. No. 2, theyve got a tre-
you say, we havent challenged any precedent. It will mendous precedent for the idea that the enumerated
leave all precedent in place, it will leave all laws in powers scheme means something and is judicially
place, it will actually be a very limited victory. The day enforceable, and the Necessary and Proper Clause
after the opinion is issued, Im hearing liberal com- is not a blank check for government. Thats a huge
mentators like Geoff Stone, former dean of Chicago accomplishment.
Law School, saying, You know, this is actually a very reason: You also prevailed on the spending power.
limited opinion, it only applies to mandates and they Barnett:
probably wont be doing mandates again anyways.
And thats exactly what Ive been saying all along. So in we actually won. Theres never been a case since the
that sense, its very limited. New Deal where the Court found any restriction on
the spending power. And the power to spend is actually
of all, if we had lost, it would not have been limited. not in the Constitution. Theres a power to tax, which
- presumably includes power to spend the money you
lems clause in the Constitution, and Congress would get from the taxes. Theres been no judicial limitation
have had the power that all law professors want it to on that at all.
have, which is the power to do anything it wants with Well, the Supreme Court found that line had been
respect to the economy. They clearly were refuted. crossed. The vote was 7 to 2 that there was a line on
The view that 99 percent of law professors hold today the spending power, it got crossed, and then the rem-

Thats huge. But even more so, it basically says the

Commerce Clause has limits. The Supreme Court is that with respect to these Medicaid funds, Congress
will enforce those limits. And heres a third important cannot withhold money for the existing Medicaid pro-
thing: The Necessary and Proper Clause cannot be gram in order to get the states to agree to an expansion
used for an end run around those limits, which there of that program. They cant leverage the money theyre
was much less case law on. That was in some sense spending on existing programs to coerce [the states]
the doctrinally weakest part of our argument. The into doing this other one. This is a huge victory also.
Supreme Court has been very deferential about whats reason: Why do you think liberal law professors lined up
a necessary law. They basically defer to Congress. so overwhelmingly against the idea that the Commerce
And a lot of people have claimed that the word proper Clause imposes any sort of limits on congressional
doesnt do any independent work. power?
Our theory was based on the idea that proper is Barnett:
separate from necessary and however necessary this is almost no diversity in liberal academia, its a com-
law was to the Affordable Care Act, it was an improper plete echo chamber where they basically talk to each
means. Most law professors rejected that idea. In fact, -
there is very little authority one way or the other on prudence and the Warren Courts jurisprudence stand
that. We had some case law. But this case made fantas- for the proposition that Congress has a national prob-
lems power. They have the power to solve any national
mandate was an improper means under the Necessary problems, especially national problems that pertain to
and Proper Clause for executing the commerce power. the economy, which is, when you think about it, every-
reason: Whats the practical impact of winning on these thing.
grounds? Thats their view. Thats what they think the New
Barnett: The future depends on what future justices want Deal stood for. Its not what the New Deal Court ever
to do. Lets be realistic. Ive been realistic from day one. said; its not even what the Warren Court ever said,
It all depends on what future justices want to do. No. 1, though the Warren Court took it a little farther than
if future justices want to protect the enumerated pow- the New Deal Court. But theyve been teaching it this
reason | October 2012 | 25
way for 70 years. Thats why in 1995 when the Lopez always going to be people who enjoy security over lib-
case found a limit [by striking down the Gun Free erty, because thats another part of the natural instincts
School Zones Act for exceeding the Commerce Clause], that people have. And so the best that we can ever
they went berserk. Now Lopez is hallowed precedent accomplish is keeping liberty alive. And you can keep
that they use to show they believe in limits too, but at liberty alive just by being a libertarian yourself, and
the time Lopez was conservative judicial activism writing about it, and getting other people to be. Even
because it found any limit at all. It violated their fun- if the society you live in is not, you can at least keep the
damental belief that there were no limits. So they dis- idea of liberty alive, possibly liberty itself.
missed Lopez. Then in the Morrison case, the Violence reason: In a famous 1905 dissent, Justice Oliver Wendell
Against Women [Act] case in 2000, when the Court
again held the line and found something unconsti- Social Statics, meaning that the Con-
tutional, then they got scared and said, Oh, maybe stitution did not enshrine libertarian principles. Is that
the Courts serious, and maybe we were wrong. And wrong?
lower courts actually started operating then. Barnett:
Then in 2005, in the Raich about almost everything. The Constitution we have is a
behalf of Angel Raich and Diane Monson that I rep- Lockean Constitution. Its informed by Lockean prin-
ciples. As a result, its quite consistent with freedom of
Justice Scalia and Justice Kennedy crossed over and contract, and property rights, and those sorts of things.
joined the liberals in upholding the application of If it were true that it was consistent with all political
the Controlled Substance Act to marijuana you grow theories, you wouldnt have to have a living version of
in your own back yard to consume yourself, they it that leaves out whole parts. Why did they cut out the
breathed a sigh of relief. They said, We were right Privileges or Immunities Clause? Why did they cut out
all along. The little new blip of federalism is noth- the Ninth Amendment? Why were all these parts gone?
ing. They said, Were back to our default position that Because they got in the way. If they didnt get in the
Congress has unlimited power. When we made our way, you could just use them. But youve got to get rid
argument now, seven years later, they were already of them, because theyre in the way. You cant have it
back in their original position. We were arguing, both ways. You cant say, The Constitution we have is
Theres a limit, and they said, Thats crazy. That vio- consistent with all legislative ends, all laws, and then
lates everything we know. get rid of the [parts] that get in the way.
reason: Do you think academia will become less of an echo reason: So the Constitution is compatible with libertarian
chamber? principles?
Barnett: I dont know. I hope it will. I have a center at Barnett: It is compatible with them, and it is actually what
Georgetown, called the Georgetown Center for the
Constitution, thats gearing up this fall. One of its mis- about it: The Founders built a Constitution that was so
sions is to bring fellows in who might go on to teach- -
ing, and other institutions are doing similar things.
Its going to be a long process because in fact the bias one, and this one, and this one, just the ones that are
against libertarians and conservatives in academia is left are enough to keep us relatively free. Its as though
overpowering, in law schools in particular. Though I youre on a four-engine jet. Youve lost three engines.
will say that theres a greater bias toward conservatives The last remaining engine is still keeping you aloft,
than there is toward libertarians. Libertarians are con- because the jet was well designed. It was designed to
sidered safer or something, a little more interesting,
and conservatives are more out there.
Whats left of the Constitution is still good enough to
keep us aloft. But it would sure be a lot better if we
cant make your happiness contingent on getting a lib-
ertarian society. The struggle for liberty will never end
because there are always going to be statists. There are
26 | reason | October 2012
The Recovery
That Wasnt
Three and a half years later, White House

Tim Cavanaugh, Matt Welch,

and Katherine Mangu-Ward
Illustrated by Terry Colon

Two weeks after being sworn in as the 44th presi- Timothy Geithner announced in The New York Times
dent of the United States, President Barack Obama more than two years ago. In June of this year, Presi-
told CNN: The only measure of my success as presi- dent Obama claimed that The truth of the matter is

or nine years from now is going to be, Did I get this

That gap between rhetoric and reality shows no
judged harshly. Headline unemployment, which the -
incoming administration projected to top out at 8.0
percent as long as its landmark February 2009 stimu- the same. On the following pages you will see two
lus package was passed, has yet to be lower than 8.0 timelines. One depressing mountain range depicts
percent. The labor force non-participation ratethe the distance between the administrations 8.0 per-
percentage of healthy, working-age Americans who cent unemployment worst-case claim and a reality
that has been considerably worse; the other uses as
counted in headline unemployment statisticshas a baseline the once-catastrophic 34.2 percent labor
steadily climbed from 34.2 percent (then a two-decade force non-participation rate that now seems to be an
unreachable low.
percent as of press time. -
trated collection of administration quotations about
minute now. Its a humorous if grim reminder that
Ben Bernanke famously spoke of economic green
shoots as early as March 2009, while unemploy- that politicians will say anythingno matter how
ment was zooming northward toward the 10 percent ridiculousto maintain their grip on power.

The Recovery That Wasnt June 17, 2010:
Deputy Secretary
of Housing and
January 10, 2009: Incoming October 31, 2009: Urban Development
Obama administration economic President Barack Ron Sims: This
advisers Christina Romer and Obama: I am summer is sure to be a
Jared Bernstein: Even with the pleased to offer Summer of Economic
large prototypical [stimulus] some better Recovery.
package, the unemployment news that
rate in 2010Q4 is predicted to while not cause for
be approximately 7.0%, which is celebrationis certainly
well below the approximately July 21, 2010: Federal Reserve Chairman
reason to believe that we Ben Bernanke: The economic expansion
8.8% that would result in the are moving in the right
absence of a plan. that began in the middle of last year is
direction. proceeding at a moderate pace,
supported by stimulative monetary and
fiscal policies.
February 25, 2009: Vice December 13, 2009: Director of the
President Joe Biden: National Economic Council Larry
We have an Summers: Today, everybody August 2, 2010: Treasury Secretary
opportunity to agrees that the recession is over, Tim Geithner: Welcome to the
and the question is what the pace recovery....The recession that began
of the expansion is going to be. in late 2007 was extraordinarily
severe, but the actions we took at its
get the nation
height to stimulate the economy
back to work January 27, 2010: President Barack helped arrest the freefall, preventing
and back on Obama: And after two years of an even deeper collapse and putting
its feet.... recession, the economy is growing the economy on the road to
And we have again. recovery.
to do it right.

Unemployment 2009 2010


Labor force non-participation


February 1, 2010: Office of

Management and Budget Director
Peter Orszag: We just came
April 14, 2009:
through a year in which a second
Great Depression was averted.
Barack Obama:
We are beginning
to see glimmers of
April 27, 2010: Vice President Joe
Biden: Im absolutely confident
that the policies that we put in November 9, 2010: Vice President
place are sending the economy Joe Biden: The initiatives
August 4, 2009: Boston Globe: Vice
and the American public in the announced today are putting the
President Joe Biden, put in charge of
right direction. Recovery Through Retrofit reports
keeping waste and fraud out of the $787
billion economic stimulus package, recommendations into action
declared today without reservation giving American families the
that the recovery plan is working. May 6, 2010: Federal tools they need to invest in home
Reserve Bank of Richmond energy upgrades.
President Jeffrey M.
Lacker: The most likely
September scenario is for the recovery December 16, 2010: Treasury
24, 2009: to strengthen further in Secretary Tim Geithner: Thanks
CNN: Biden coming months. to a comprehensive and careful
on the Thats the broad strategy to address the financial
Recovery Act: brush view; now crisis, we are in a much stronger
If It Fails, Im I would like to position to address our still very
Dead fill in the canvas substantial remaining economic
with some details. challenges.

28 |
January 25, 2011: President Barack August 31, 2011: February 6, 2012: White House
Obama: We are poised for progress. Two Former Biden Press Secretary Jay Carney:
years after the worst recession most of us economic advisor Lets look at some
have ever known, the stock market has Jared Bernstein: of the facts,
come roaring back. Corporate profits are The evidence which include
up. The economy is growing again. shows the stimulus that a large
(and other stimulative measures, percentage of that
including those of the Fed) worked, but [decline in labor
ended too soon, before the private force participation]
sector was ready to walk on its own. The evidence shows is due to younger
we need to do more of these sorts of policy interventions. people
getting more
September 13, 2011: National Economic which in the
Council Director Gene B. Sperling: You just end is an
have to stay at it. You have to dig and keep economic
digging, and stay at it, and try. Do more of positive.
February 17, 2011: Vice President Joe whats working, less of whats not working,
Biden: Through the Recovery Act, but for Gods sakes stay at it until we get
weve proved that the government can this recovery at a pace and a momentum
April 26, 2012: Council of Economic
move quickly and get the job done that can start making a more serious dent
Advisers Chairman Alan B. Krueger:
and do it right. in unemployment
Expanding middle class jobs in
and a more
manufacturing, especially
positive impact
advanced manufacturing, is part of
on job
March 4, 2011: President Barack Obama: the Presidents comprehensive
Our economy has now added 1.5 million strategy for reversing the
private sector jobs over the last year, and middle-class jobs deficit.
thats progress.

2011 2012


October 18, 2011: Vice May 6, 2012: Vice President Joe

President Joe Biden: The Biden: Look, this goes up and
other thing Ive heard from my down. But theres been a steady
friends who are opposed to path26 months straight
this whole jobs bill is that this employment
is just temporary. Well let me gain, private
tell you: Its not temporary employment.
when that 911 call comes in
and a womans being raped
and the cop shows up in time
May 28, 2011: Vice President Joe Biden: to prevent the rape. Its not
Because of what we did, the auto industry temporary to that woman.
is rising again. Manufacturing is coming
back. And our economy is recovering and
its gaining traction. November 30, 2011: Acting
Director of the Office of
Management and Budget
July 21, 2011: Obama spokesman Jay Carney: Thats why Jeffrey Zients: This [Federal
he is focused every day, he wakes up every day and goes Infrastructure Projects
to sleep every night thinking about the fact that he Dashboard] is the latest
will not rest, he will not cease in his efforts to result of a series of executive
grow the economy and create jobs until actions President Obama has June 8, 2012: President Barack
he knows that every American taken to create jobs because Obama: The private sector is
whos looking for a job can he is adamant that we cant doing fine. Where were seeing
find one. And that will wait for Congress to act to weaknesses in our economy
undoubtedly remain true boost job growth and have to do with state and local
throughout his first term. strengthen our economy. government.

Ready to Cut Military
Polls show that Americans want smaller
government everywhere and fewer
obligations abroad.

Scott Rasmussen
In July presumptive Republican presidential nominee Mitt
Romney wrote an open letter to Barack Obama slamming
the president for considering Pentagon cuts. Your insis-
tence on slashing our military to pay the tab for your irre-
sponsible spending could see over 200,000 troops forced
from service, Romney warned. It will shut the doors on

heavy toll on the guard and reserves, and potentially shut-

ter Virginia military bases. It will shrink our Navy below a
level that is already not adequate for protecting our national
security. Romney, by contrast, promises to spend at least
4 percent of gross domestic product on defense every year
during his tenure.
Republicans who demand cuts in every program except

charges of hypocrisy. Exempting major budget catego-

ries from spending discipline is a key reason government
almost never gets cut. The American people are ready to
take a more mature approach. A 2011 poll conducted by
Reagans attitude was correct in one basic
sense: If we cant defend the nation, nothing else
January 2007, San Antonio. Ben Sklar/Getty Images
Ribbon cutting at Brooke Army Medical Center,

budget item, Americans emphatically believe, needs to be matters. But it is also important to remember
on the table. that he was speaking in a particular place and
time. Recognizing that the Soviet economy could
not keep up with the more vibrant U.S. econ-
getary terms, since Americans are understandably uncom- the communist empire and hasten its collapse.
fortable with putting a price tag on safety. As Ronald Rea- That Reagan succeeded is one of the reasons we
can consider different approaches in the 21st
what you need. century.
30 | reason | October 2012
Today we face no rival superpower with mas- regard. Seventy-nine percent would rather live here than
sive military capabilities and aggressive ambi- anywhere else, and at a time of deep cynicism about large
tions. Threats of terrorism and cyberwarfare institutions 81 percent have a favorable opinion of the U.S.
are real but stem mostly from small cells, rather military.
than large blocs of countries. Still, defense spend- Yet this respect and admiration for the troops co-exists
ing questions are hard to discuss because most with doubts about the jobs theyve been asked to do. Most
voters now believe it was a mistake for the U.S. to have
and perceptions that cloud the debate and shift gotten involved in Iraq, and most now want to see troops
the focus to almost everything except money. brought home quickly from Afghanistan. Support for the
As a starting point, Americans are proud of military action in Libya peaked at 20 percent.
their country and hold its armed forces in high Americans are also in a mood to dramatically reduce
reason | October 2012 | 31
our security guarantees for other nations. Less than half (49 vices total about $125 billion, including $45 bil-
percent) believe the U.S. should remain in its bedrock mili- lion for health care. Maintaining a military with
tary alliance, NATO. Out of 54 countries with which Wash- 1.4 million active-duty personnel, it turns out, is
ington has signed mutual-defense treaty obligations, plus expensive.
two others (Israel and Mexico) that receive our implicit In addition to military personnel and veter-
backing, a majority of Americans supports defending just ans, the national security budget includes nearly
12. Countries that dont reach the 50 percent threshold 800,000 civilian personnel. That number does
include our oldest ally, France, along with Japan, Poland, -
ment of Homeland Security and other defense-
Americans are willing to defend are Canada, the United related agencies.
Kingdom, Australia, and Israel. For most people, these numbers are sim-
ply too big to fathom. One way of contextu-
gap between the citizenry and its political class. Three alizing the cost is by looking at how fast the
out of four Americans believe U.S. troops should never be national security budget has grown during the
deployed for military action overseas unless vital national
security interests are at stake. Yet the last several presidents 9/11 terrorist attacks, the federal government
have adopted far less restrictive criteria for sending troops spent about $350 billion on defense and veter-
abroad. The military is often dispatched for humanitar- ans affairs. If that spending had kept pace with
ian purposes or in the belief that the U.S. should police
the world, but only 11 percent of voters believe Uncle Sam total about $481 billion today. Current spending
should play global cop. is 82 percent higher than that. It is no surprise
that defense budgets increased after 9/11, but it
are not isolationists. They still want Washington to play is legitimate to ask if an 82 percent hike was the
a leading role in world affairs; they see their country as a right amount.
force for good and reject those who tend to blame America Military spending today, adjusted for popu-

default Washington position that we should respond to

Soviet empire was still pointing nuclear weap-
voters are seeking a strategy that might best be described
as Protect America First. If the military is successful in its
core duty of protecting the nation, they believe, our other and a deadly hot war in Vietnam. Although Amer-
national assets will win over hearts and minds around the icans will support spending whatever it takes to
globe. defend the country, polling suggests they dont
This mix of public attitudes suggests it is possible to realize how much were spending right now.
develop a popular 21st-century defense strategy that will Only 58 percent of voters are aware that the
support the troops and protect the nation while reducing United States spends more on defense than any
annual military spending by hundreds of billions of dol- other country in the world. And just 33 percent
lars. recognize that Washington spends roughly as
much on defense as the rest of the world com-
bined. Military spending has grown dispropor-
- tionately compared to Americans own priori-
lion on national defense and veterans affairs, around one-
soon make taxpayers blink.
Consider: The United States spends more
consisted mostly of the wars in Iraq and Afghanistan, plus than $2,500 per person on national defense;
$155 billion for the direct costs of military personnel and Russia and our NATO allies each spend about
$31 billion to care for wounded, ill, and injured service
- percent of Americans have a favorable view of
32 | reason | October 2012
NATO. In the aggregate, while the U.S. is spend- just that the citizenry rejects the political classs postCold
ing close to $900 billion a year on the military War approach to pursuing these ideals.
and veterans affairs, China is coughing up less A Protect America First policy would mean returning
than $200 billion. North Korea, Iran, and Syria
combined spend less than $30 billion. The Pen- Eisenhower and Ronald Reagan. Those presidents did not
tagon spends more just on research and devel-
opment than Germany, the United Kingdom, of when it was appropriate: only when vital U.S. interests
France, Russia, and Japan each spend on their were at stake.
entire defense budgets, according to Cato Insti- Reagan articulated additional restrictions. Forces
tute Vice President Christopher A. Prebles 2009 should not be sent without the clear intent and support
book The Power Problem. If we are at risk militar-
ily, it is certainly not for a lack of spending. objectives. And there must be reasonable assurance that
Adm. Mike Mullen, then chairman of the
Joint Chiefs of Staff, said in 2010 that the most have the support of the American people and Congress.
Even when those criteria were met, Reagan emphasized
debt. The American people agree: 82 percent that our troops should be committed to combat abroad
believe the economy is now a bigger concern only as a last resort. Although the Gipper himself occa-
than military challenges. Sooner rather than sionally fell short of those ideals (circumventing Congress
later, defense spending will have to come back
in line with voter desires. back the guidelines he spelled out.
Aligning U.S. military strategy with public opinion
would save trillions of dollars during the coming decade
As with just about every aspect of the federal and dramatically reduce the debt burden we are imposing
budget crisis, the main question is whether the on future generations. This important realignment would
political class will continue pursuing its own put us in a better position to deal with the serious eco-
agenda or be forced to accept the commonsense -
wisdom of the American people. Following the rock American notion that governments derive their only
logic of the publics strategic preferences would just authority from the consent of the governed.
lead to tremendous savings on defense. Still, it wont be easy, given the emotions and vested
Americans, like their political representa- interests involved. One way to tackle the problem is by
tives, are not isolationists; 88 percent say the breaking defense spending into its constituent chunks:
countrys relationship with Europe is important, Supplemental Budget Requests. The supplemental bud-
for example, and 53 percent say its very impor- get for operations in Afghanistan and Iraq cost the United
tant. Voters have no expressed desire to retreat
from our historical idealism and sympathy for Obama administration plans to reduce this number to
people who believe in liberty and freedom. Its about $118 billion in 2012.

Three out of four Americans believe U.S.

troops should never be deployed for military
action overseas unless vital national security
interests are at stake. Yet the last several
presidents have adopted far less restrictive
criteria for sending troops abroad.
reason | October 2012 | 33
Most Americans have decided that its time to bring go down, as would administrative costs and the
these troops home within a year, much faster than either number of civilian support personnel.
major political party currently contemplates. While such Veterans Affairs. If we cut back on the num-
ber of soldiers today, we cut back on the number
account, bringing policy more in line with public desires of veterans we need to serve in the future. If we
could save hundreds of billions of dollars. suffer fewer casualties now, we will have fewer
Baseline Military Budget. General military spending, or disability payments, lower medical costs, and
the baseline budget, totaled about $530 billion for 2011. The
only way to substantially reduce that number is through It sounds pretty basic, and it is. But the
strategic cuts in troop levels and deployments, which could impact is huge. By reducing the number of sol-
take years and may not begin to show up in reduced bud- diers today, we will reduce the total spending
burden we are passing on to future generations
Still, the biggest savings available here can be found in by trillions of dollars. Consider these facts, from

protect and the 12 countries a majority of Americans sup- and women who served in the Gulf War, 45 per-
ports defending. If the global mission is reduced, the cost
will be too. Simply put, fewer troops are needed to defend of these requests were approved. On average,
the United States than are needed to police the world. Just
bringing home U.S. troops currently deployed in Western year; this amounts to $4.3 billion paid out annu-
Europe and Japan would result in direct savings of about ally by the U.S. government. Thats the cost
$25 billion per year. paid every year for veterans of just one military
at the Navy Leagues Sea Air Space Exposition the massive The savings wont show up right away in

need 11 carrier strike groups for another 30 years when no the price we pay for yesterdays veterans. But as
other country has more than one? Any future plans must with other unfunded liabilities, that accounting
address these realities. A Protect America First strategy issue says more about the faulty way we measure

number of aircraft carriers, airplanes, submarines, support the magnitude of the savings.
staff, and sailors. Even with all these reductions, the U.S.
All of these changes would reduce procurement bud- would enjoy an unmatched capability in military
gets because the military wouldnt need as many new weap- strength and technology.
ons, ships, and aircraft each year. Considering that there
are more than 80 weapons systems that cost more than $1
billion a year, reducing procurement would lead to real By reducing the number of strategic commit-
savings overnight. Training and recruiting costs would also ments in places such as Europe and Japan, we

Big savings can be found in the yawning

gap between the 56 nations we are obliged
to protect and the 12 countries a majority of
Americans supports defending.

34 | reason | October 2012

can return military spending to 2001 levels, would be essential to set in place some long-term budgetary
discipline within a more rational federal spending outlook.
might balk at setting targets for defense spend- As long as the strategic environment remains the same,
annual military spending increases should be pegged to

Eisenhower did in the 1950s. Ike recognized the emerged, obviously, it would be time for a new strategic
need to balance military power with domestic -
resources. It would be irrational to demand that ous military rival that could threaten the territory of the
the military continue policing the world with a United States.
reduced budget, but it is quite rational to expect There is no magic to choosing the 2001 defense budget
the military to accomplish the narrower mission as a starting point, but it does have the advantage of clarify-
of Protect America First with a budget appropri- ing the strategic choices. If we spend as much today as we
ate for that role. did in 2001 but reduce our legacy commitments from the
These reductions would still allow around World War II era, we could cut overall spending levels while
$420 billion in annual military spending, nearly
three times as much as what China or anybody the post-9/11 world.
else in the world currently shells out. And that
spending level would be much more in line with should be the focus of intense debate and experimenta-
voter preferences. If anything, it might be a bit tion. Voters clearly believe the focus should be more on
on the high side: Just 25 percent of voters believe defending the United States rather than the whole world.
the United States should always spend at least Substantial resources would still be deployed to address
three times as much as any other nation; 40 per- the terrorist threat and probably also to help secure the
cent think such a target is excessive. southern border of the United States.
Once the initial cutbacks and savings have Many on both sides of the partisan and ideological
divides will be unhappy with this approach to military
spending. Thats especially true of a political elite that sup-
ports the Send Americans First status quo. For them, there
is a simple solution: If you dont like the Protect America
First strategy, go to your boss, the American people. If there
are arguments to be made for a wider U.S. engagement and
for interventions in places such as Libya, make them. If
there are reasons to leave U.S. troops in Europe forever,
state them. If we need to spend more, build support for the

sive and costly military strategy than the American people
are willing to support. Americans have rejected Washing-
tons bipartisan foreign policy. Its time for politicians to
take the hint.

Scott Rasmussen ( the founder and president

of Rasmussen Reports, is the author of The Peoples Money: How Voters
Will Balance the Budget and Eliminate the Federal Debt, from which this
essay is adapted by permission of Threshold Editions.
The Peoples Money

reason | October 2012 | 35

The Streetcar
Its time to rethink Americas
retrograde love affair with trolley
Samuel L. Scheib

A person born in Tampa, Florida, in 1888the


TECO streetcar, iStockphoto/Photohoo

- -

objets dart
36 | reason | October 2012

died en route.
Streetcar Heyday

reason | October 2012 | 37

Demand for streetcars is driven not by the public but by
land-use planners and downtown boosters who imagine
that aesthetically pleasing vehicles lumbering in slow
circles through walkable areas will somehow prompt a
boom in economic activity.

- -

stadtbahn -
strassenbahn) and

a century.

38 | reason | October 2012



Powering the Streetcar Craze

not. -

Bay City Blues and


ried -


Wall Street Journal The Firm


reason | October 2012 | 39
- -





40 | reason | October 2012
In 2006 Tampas 578,000 residents took just 520,000
trips on the new, $63 million TECO trolley, or less than one
each. Ridership was down 45,000 from the previous year.
With an operating speed slower than eight miles per hour,
the TECO trolley is in every way worse than a bus.

to operate the peo-


repaying the

- -

The Ledger A New Way for Streetcars


reason | October 2012 | 41

At Brand and the Grove the developers are entirely
on the hook for the cost of the streetcars, and no
one mistakes the systems for mass transit. This is
a model that works: The shoppers get taken for a
ride, but taxpayers do not.

- -

- -

. Stu-

- Samuel L. Scheib ( is the editor of Trip

- Planner Magazine.

42 | reason | October 2012

Columns: Ronald Bailey

The End of International

Green ideology crashes and burns at the Rio +20 Earth Summit.

Twenty years ago,



Canadian Journal
- of Economics -

The Future We Want

- -

44 | reason | October 2012


- - -

- -

The same

- -


- -

- -

- -
Secretary of State Hillary Clinton at Rio +20, June 2012.

AFP Photo/Evaristo Saevaristo SA/AFP/Getty Images

Science Correspondent Ronald
Bailey ( is
- the author of Liberation Biology
reason | October 2012 | 45
Culture and Reviews

Power Without Principle

Robert Caros epic account of LBJs vice presidency
Glenn Garvin

The Passage of Power: The Years of Lyndon

Johnson, by Robert A. Caro. Knopf, 736 pages,
The Passage of
A few years back, somebody gave Power
me a copy of The Path to Power, the

In The Passage of Power, Caros

Dallas, November 22, 1963. Universal History Archive/Getty Images
Lyndon Baines Johnson is sworn in as president on Air Force One in

B The Passage of Power

Means of
Ascent Master of the Senate

reason | October 2012 | 47

in Mexico City begging for a visa from Fidel
Castros Cuban embassyJohnson held Wash- on her like a lox, reported another
ington on a peaceful course. He kept peace, guest.)
too, with a Kennedy team that nearly to a man The freeze-out extended well
detested him, seducing some members and qui- beyond social territory. Johnson got
etly neutralizing others. And he rescued Ken- only a third of the staff he requested,
nedys hopelessly stalled congressional agenda and its members didnt even tech-
with such alacrity that Kennedys presidency is nically work for him; they were
remembered as a magical and transformative attached to the Pentagon. He was
Camelot rather than what it was, domestically not only barred from Air Force One
ineffectual and terrifyingly disaster-prone on but refused regular use of any other
What Would Cronkite Do? foreign policy. government plane as well. His travel
Aaron Sorkins new HBO drama, Johnsons role in burnishing Kennedys requests had to be okayed by a White
The Newsroom, argues that reputation is ironic, because to the Kennedy House clerk. So did his speeches and
television news was better in White House he was anathema. JFK barely toler- even his press releases.
the days of Edward R. Murrow ated LBJs presence, quite literally; White House
and Walter Cronkite, when the logs show that the two men spent less than 15
men of the traditional media minutes a month alone together in the admin-
considered it their duty to Kennedy presidency. He wasnt even
use the public airwaves to Robert, the attorney general and virtual co-pres- in Washington when JFK launched
provide an hour of news each ident, openly and proudly hated Johnson. The the Bay of Pigs invasion; he wasnt at
word hated is neither hyperbole nor to be taken the meeting where Kennedy and his
the public understood about lightly. As Roberts notoriously ruthless father intimates decided to end the Cuban
every issue. Joe once said, admiringly: When Bobby hates missile crisis by offering Nikita
Sorkin overestimates the you, you stay hated. Khrushchev a secret promise to with-
power of anchors in the 1950s draw U.S. missiles from Turkey and a
and 60s while overlooking
the fact that cable channels
produce 24 hours of news a
J ohn Kennedy, after defeating Johnson in a
bitter and dirty campaign for the 1960 nomi-
nation, offered him the vice presidential slot
pledge never to invade Cuba. Johnson
never even saw Kennedys civil rights
bill until he was president, reluc-
day without using the public only because he needed to carry Texas. (Even so, tantly admitting to reporters that all
airwaves. His cast, led by Jeff Bobby spent three frantic hours trying to undo
Daniels as a bland but secretly
angry cable anchor seeking on.) Once the election was safely won, the Ken-
relevance, spits out conde- nedys methodically turned Johnson into what
scending and familiar political Sen. Daniel Patrick Moynihan (D-N.Y.) would
lectures while trying to develop call a bull castrated very late in life.
a prime time show that arro- Johnson would later write that the White
gantly presumes to reveal the House is small, but if youre not at the center,
truth. it feels enormous. And he was as far from the
Straw men are giddily set center as Kennedy could keep him. Referred to
derisively by the White House staff as Colonel
music notwithstanding, the Cornpone (and his little Pork Chop, if wife
The Newsroom, John P. Johnson/HBO

show manages all the gravitas Lady Bird was along), Johnson found himself
of a gaggle of poli-sci under- treated as a nonperson, even left off the guest
The Passage of Power

grads arguing in a dorm hall-

way. Scott Shackford when he did attend didnt help matters, espe-
cially when he tried to dance with one of Ken-
nedys concubines and tripped, falling on top
48 | reason | October 2012
New York Times


The Passage of Power

A Notice To Our Subscribers

From time to time, our subscriber list
is rented to others. We carefully screen
those to whom we rent our list and try
only to rent to those whose offers we

believe may interest our subscribers.
If you do not wish to have your name
included on our rental list, simply let us
know by writing us at:
The Passage of Power

r eason
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Los Angeles, CA 90034
Attn: List rentals

reason | October 2012 | 49

Ramones Final Riff
Commando (Abrams Image),
the posthumously published
autobiography of punk pioneer
Johnny Ramone, is not a typical
rock n roll confessional. Bet-

grouchy anecdotes from an

iconoclast in business as well
as music.
A lifelong conservative,
Ramone delighted in torturing
his band mates by listening to
Rush Limbaugh in the tour van.
Obsessed with saving for retire-
ment and dismissive of artistic
pretensions, he unapologeti-
cally sold Ramones songs for
commercials. Always the con-
trarian, Johnny gave up drugs
after becoming a professional
musician, preferring to spend
his down time watching base-
ball and horror movies.
Johnny realized early that
the Ramones would never be
pop superstars. As de facto
manager, he kept band mem-
bers on a strict weekly salary
and made sure they reaped

T-shirt sales. His insistence on

relentless touringto keep
Commando (cover detail)

the Ramones brand in the Zeit-

geistpaid off in an astonish-
ingly long run as cultural icons.
Anthony Fisher

50 | reason | October 2012

SiteworksReasonK 10/10/08 2:28 PM Page

The Enduring
Elegance of

Johnson began his rise to

power as a congressional
aide during the New Deal,
learning every nook and
cranny of the vast new
bureaucracies created
by Franklin Roosevelt,
particularly those in which
loose change could be

Y Liberate Your Fireplace

from ordinary ...
With the enduring elegance of
Custom Limestone Mantels

r Your
l To d ay Fo alog!
Cal Cat
R E E Color
Johnson began his rise to power as a

reason | October 2012 |

The Banality of The Passage of Power
Most people recognize the
chilling iconography of lived
communism: the gulag, the
tank, the machine gun, the
wall. The genius of Berlins six-
year-old DDR Museum lies in
focusing instead on the more
mundane details of every-
day life in the former police
state known as the Deutsche
Demokratische Republik.
Here we see East Germans
plastic toilets and beloved
(if comically underpowered)
Trabant cars, watch their dead- The Passage of
ening newsreel propaganda, Power
and witness serial attempts to
express the tiniest amounts of
individualism under the suf-
focation of enforced solidarity.
From regime-unapproved gar-
den gnomes to mass vacation
nudity, communisms captives
never stopped trying to make
the best of a bad system. As
a caption to the nudism sec-
Trabant automobile, DDR Museum, Berlin 2012

tion memorably phrases it, It

was almost, but not quite, an

adventure. Contributing Editor Glenn Garvin
( is a columnist
Tucked in a bunker-like and television critic for The Miami Herald.
space in East Berlin, the DDR is
notable for one other achieve-
ment: Unlike most museums
in town, it is privately owned.
Matt Welch

52 | reason | October 2012

San Franciscos Darkest Salon

The founder of Salon takes a
fascinating tour of the Golden
Gate City, 19671982. Salon
Tim Cavanaugh
Mother Jones Rolling
Season of the Witch: Enchantment, Terror, and Stone Examiner
Deliverance in the City of Love, by David Tal-
bot, Free Press, 452 pages, $28
David Talbot

S eason of the Witch

Season of the Witch (cover detail)

reason | October 2012 |

Dirty Harry

Remixing Muhammad
William S. Burroughs vs. the
Quran (Soft Skull) begins with
the author, punk-Muslim novel- This being San Francisco, the out-
ist Michael Muhammad Knight,
deciding to write the biography

writer Peter Lamborn Wilson

(a.k.a. Hakim Bey). Knights
attachment to the project is
shaken when he learns that
Wilson was an apologist for
the shah in the 1970s, and it is
shattered when he discovers
Wilsons defenses of pedo-
philia. Abandoning both the
bio and the friendship, Knight
goes searching for new gurus
and creeds, discovering with
discomfort along the way that
many of his readers want him to
be their guru.

expresses himself when rebel-

ling against someone elses
system. The pattern peaks
when he moves into a West
Virginia compound built by
William S. Burroughs vs. the Quran (cover detail)

his white supremacist father

and transforms it into a one-
man mosque devoted to black
Islam. Inside, Knight spends
his days cutting up and remix-
ing the Koran, using someone
elses words to make some-
thing of his own. Jesse Walker

54 | reason | October 2012

T In Talbots telling, the
period after the original
hippie bloom was both a
time of transformation and
a parade of horribles, from
bombing campaigns to
wars against the police to
the Kool-Aid
the dawn of AIDS.


Season of the Witch

Season of the Witch

San Francisco Chronicle

Tim Cavanaugh ( is

managing editor of reason online.

New West

reason | October 2012 | 55

Markets vs. Morals?
The mistaken worry that money and
morality are at odds
Tom G. Palmer

What Money Cant Buy: The Moral Limits of Mar-

kets, by Michael J. Sandel, Farrar, Straus and Giroux,
256 pages, $27

Michael Sandel
Comics Culture

superhero-themed Hollywood
blockbusters, and more than
100,000 crowd in yearly at
San Diego Comic-Con, where
fantastic storytelling, whether
rooted in comics or not, is valo-
rized along with huge doses
of Hollywood cash and hype.
What does it all mean?
Comics obsessive and media What Money Cant Buy: The Moral Lim-
consultant Rob Salkowitz draws its of Markets
on his experiences at the 2011
Comic-Con to muse on the
future of the comic business
and the entertainment industry
in the digital age in Comic-Con for money
and the Business of Pop Culture
Comics fans lament that the
coolness and media cash now
associated with their medium
of choice dont help sell actual
comics. Larded with bromides
about how content companies
will need to think globally and
Comic-Con and the Business of Pop Culture (cover detail)

distribution system, Salkow-

itzs exploration of peak geek
has no answers for the comics
What Money Cant Buy (cover detail)

industry, beyond the not-to-

be-forgotten lesson that value
arises from the individual work
of creative storytellers, not cor-
porations power over intellec-
tual property. Brian Doherty

| reason | October 2012


Making it illegal to
exchange kidneys for
money may be costing
thousands of people their

Sandels desire to avoid


SCOTT RASMUSSEN demonstrates

how the American people are
the solution to our governments
budget issues. Specific proposals
supported by a majority of voters
would balance the budget, com-
pletely eliminate the federal
debt, and prepare the nation for
What Money Cant Buy (cover detail)

the twenty-first century.

Available wherever
books and eBooks
are sold.

reason | October 2012 | 57

Sandel explains that some things

Give the gift of chean Ethics

N Birthdays

Or just about any occa-

sion, why not give a
reason gift subscription?
Its fast and easy and
your gift will last all year!


Simply go to

58 | reason | October 2012

The new book from the
FOX Business News Host

I Government
can solve our

can solve our


What Money Cant Buy

The New York Times
bestselling author and
Fox News commentator
debunks the most sacred cow
of all: our intuition and belief
that government can solve
Tom G. Palmer (tom.palmer@atlasnetwork.
our problems.
org) is executive vice president of the Atlas
Its not as if this point has never been Network and a senior fellow at the Cato Insti- Pick up or download
tute. He is the author of Realizing Freedom your copy today!
(Cato Institute) and editor of The Morality of
Capitalism (Jameson Books) and After the Wel-
fare State (Jameson Books).

reason | October 2012 | 59

The Age of the Infographic
Charts, graphs, and timelines
in the post-newspaper world
Greg Beato
As a comprehensive new volume
In February 2012,


USA Today


Information Graphics

Information Graphics

| reason | October 2012

Information Graph-
ics that The New York

Mission(s) to Mars, IEEE Spectrum, 2009, Information Graphics (interior detail)

A book like Information Graphics, Contributing Editor Greg Beato (gbeato@ writes from San Francisco.
reason | October 2012 |
Tim Cavanaugh

Worse Than the Recession So is economic health returning? The

The Obama administration has
engineered a recovery in
name only.

When this column

The Wall Street


Against this slow (and sometimes

Terry Colon

| reason | October 2012

online store

The recovery, which is

not a recovery at all but

stagnation, has become

worse than the Great
Recession that allegedly
ended in 2009.
Visit the new
reason store for
t-shirts, sweatshirts,
mugs, caps, and
The Crash of 79 The Panic more.
of 89

From the Coming Devaluation

The Black Swan

Tim Cavanaugh ( is

managing editor of reason online.

reason | October 2012 |


Greenwashing the
London won the right to host the
2012 Summer Olympic Games largely
due to its vow to run an environ-
mentally sustainable fortnight of
athletic competition, entertainment
spectacle, and concentrated tourism.
To meet this goal, organizers devised
a removable track stadium, recycled
a reported 90 percent of the games
construction waste, and solicited
various sponsors, which they dubbed
sustainability partnersinclud-
ing one of the environmental move-
ments most hated petroleum compa-
nies, BP.
All over London streets and
across British media, BP
fuel and gas provider of the Olym-
pics, sponsored ads promoting a cam-
paign to minimize carbon production
during the games. Green groups
accused London of facilitating cor-
porate greenwashing of one of
the dirtiest companies on earth and
vandalized several BP billboards with
well-placed splashes of oil.
Although there is indeed some-
thing farcical about an oil company
branding itself as a green champion,
environmentalists might pause to
consider one happy (for them) fact:
Partly because of their pressure, the
very companies they hate are adopt-
ing at least part of their agenda. It
might not be good enough for a gold
medal, but it sure sounds like a win-

Matt Welch ( is editor

in chief of reason.

64 | reason | October 2012

The city of Portland threatened me with $635,000 in fines for offering online discounts for sedan rides.

But the government cannot make me charge my customers more just to

protect taxicabs from competition.

I am fighting for economic liberty, and I will win.

I am IJ.

Mike Porter
Portland, Oregon Institute for Justice

Economic liberty litigation