Kopel's Corner Weblog, September-October 2012
• October 30, 2012 6:39 pm
Growth of Government,
That was the provocative title of a seminar earlier this month
organized by the Istituto Bruno
Leoni, Italy’s free market think tank. The event was the IBL’s 9th
Mises Seminar. As is common at multinational seminars in Europe, the
event and the papers were in English, which is today’s lingua franca
among well-educated Europeans.
My favorite paper was presented by
Kaetana Leontjeva, who is a Senior Policy Analyst at the
Lithuanian Free Market Institute. Her paper, Old-age
state social insurance: may its failure be averted?, examines the
history of old-age pension systems throughout Europe, with a special
focus on the USSR, Lithuania and Georgia. She shows how these programs,
initially of modest size, grew to an unustainable level that is
financed by borrowing. She argues that there are only two realistic
1. Continuing the present systems, with only “technical” reforms.
This will eventually lead to complete failure of the old-age pension
system, as occurred in the USSR. “ This would lead to a sudden and
dramatic change in conditions of the elderly, bringing about poverty and
chronic insecurity.” OR
2. “managed failure.” This means starting to shrinking the existing
pension systems, by requiring that they operate on a balanced budget.
Young people should not be told to depend on the current system, but
should be encouraged to start making plans for their own retirement, by
setting aside some of their current income to provide for their
retirement. “For the ‘managed failure’ approach to work, one generation
has to concede and make a sacrifice by paying for the pensions of the
current retirees and for their own. In the absence of such a consent and
solidarity, the generation to make the sacrifice would emerge
spontaneously, and the process of an unexpected old-age social insurance
failure would be much more painful.”
Another interesting paper came from
Peter J. Boettke (Mercatus Center,
George Mason University) and
Daniel J. Smith (Manual H. Johnson Center for Political Economy,
Troy University). “Monetary
Policy and the Quest for Robust Political Economy” examines the
failures of economists in thinking about the Federal Reserve. It is
possible to imagine a Federal Reserve which conducts its affairs in an
economically sound and apolitical fashion. But in practice, the Fed has
often been a pump-priming engine of inflation, for political reasons. In
other words, “Technical optima are nonoperational in a contemporary
democratic setting.” In the wake of the Great Recession, the economics
profession has been busy dissecting recent technical mistakes by Fed.
Boettke and Smith argue that economists instead ought to be analyzing
the only solutions which can put an end to a century of Federal Reserve
failures: the adoption of a monetary policy (e.g., based on an external
standard, such as a commodities bundle) which removes Fed discretion to
promote inflation. While such a policy might not be politically feasible
in the short run, it is the only constructive alternative, and would
become more politically feasible if economists did not self-censor their
recommendations based on short-term political viability.
Why are Banks Treated Differently Anyway?,” Mathieu
Bédard (Ph.D. candidate in economics, Aix-Marseille Université, and
a Fellow at the Institute for Humane
Studies) classifies and analyzes the 29 different forms of
government intervention into bank failures. He argues that ordinary
bankruptcy is often superior to liquidations managed by the Federal
Deposit Insurance Corporation.
Even if you don’t agree with the policy recommendations in these
papers, they are worth reading for their thoughtful analysis.
• October 24, 2012 2:29 am
“Syria is Iran’s only ally in the Arab world. It’s their route to the
sea.” So said Mitt Romney at the Monday debate. The
Associated Press, The
U.S. News, Brad
DeLong, Rachel Maddow’s
Central, and The
Daily Kos promptly seized the opportunity to show off their
superior geographical knowledge, pointing out that Iran has a coastline.
The explicit or implicit explanation was that Romney does not even know
basic geography. “Romney Flubs Geography” announced the A.P. headline on
the Washington Post website. Readers in search of more
sophisticated coverage might have turned to Yahoo!
Q. Why did Romney say that Syria is Iran’s “route to the sea”?
...when 1) Iraq stands between Syria and Iran, and 2) Iran already
has the Persian Gulf, not to mention the Indian Sea?
A. Romney was speaking in the context of the debate topic on
foreign policy and the sanctions restricting the finances and trade
of Iran. Although Iran is indeed located on the seacoast of the
Indian Ocean and the Persian Gulf, the international trade sanctions
have restricted and impeded its ability to transport armaments and
other goods through its own seaports. To defeat these trade
sanctions, Iran has resorted to using its air transportation to
transport goods through an air corridor in Iraqi airspace into Syria
and its seaports, such as Latakia.
Fact-checkers who actually investigate the facts might have started
with expert websites such as StrategyPage. A 2006 article titled Syrian
Delivery System for Iranian Nukes details the extensive seaborne
smuggling operations carried out by Syrian companies operating out of
Syrian ports. The article concludes:
Iran was generous with its “foreign aid” because Syria provided
support for terrorists Iran backed. Now Iran is keen on getting
nuclear weapons. The first ones Iran will get will be large and
delicate. The only feasible intercontinental delivery system will be
a ship. A ship that is accustomed to moving illicit goods.
Stratfor, which is an outstanding site for the collection and
analysis open source intelligence, has the following reports involving
Syria/Iran sea-related collaboration: An Iranian ship at the Syrian port
of Tartus (also spelled “Tartous”) picked up Syrian oil for delivery to
China, to evade the economic sanctions on Syria (Mar. 30, 2012). Iran
warships docked at the port of Latakia in early 2012 (Feb. 18, 2012),
and in early 2011 (Feb. 22, 2011; Feb. 24, 2011). During the 2011 visit,
the Iranian navy’s commander, Admiral Habibollah Sayyari, announced that
Iran was ready to help Syria improve its port facilities, and to
collaborate on technical projects with Syria. (Feb. 26, 2011). (All the
Stratfor articles are behind a paywall.)
So in short, Syria is Iran’s route for the projection into the
Mediterranean Sea (and from there, the Atlantic Ocean) of conventional
naval power, and, perhaps soon, of nuclear weaponry.
Post-debate, the Washington Post‘s Glenn Kessler at least
made a start towards a serious factcheck of the Romney quote. He
published an updated
and condensed version of a longer piece he had written
last April about Romney’s repeated use of the phrase.
In the April piece, Kessler wondered what difference Syria made,
since Iranian ships can enter the Mediterranean via the Suez Canal.
True, but anyone with even a mild knowledge of naval affairs could
explain the utility of a Mediterranean port, as a opposed to a Persian
Gulf port, for ships operating in the Mediterranean. In April and in
October, Kessler wrote:
We also checked with other experts, many of whom confessed to
being puzzled by Romney’s comments. [DK: Kessler should have named
all the "other" experts, and should also have included the
explanation of at least one of the experts who was not among the
"many" were were confused.] Tehran certainly uses Syria to supply
the militant groups Hezbollah and Hamas, but that has little to do
with the water. The relationship with Syria could also effectively
allow Iran to project its power to the Mediterranean and the border
with Israel. But does that really mean, “a route to the sea”?
The last two sentences are really the buried lede of the
story: Romney is raising a very important issue (Syria as the base for
the projection of Iranian naval power), but Romney is not explaining
himself in a manner which the less well-informed members of the public
(e.g., the sources linked in the 1st paragraph of this post) can
understand. If Romney were a better communicator, he would have laid out
the facts in greater detail, as Ronald Reagan and Winston Churchill did
in their own time, when warning their countrymen about the military
dangers of aggressive totalitarian regimes. As Kessler wrote in April,
“If Romney is elected president, he will quickly learn that words have
consequences. Precision in language is especially important in
diplomacy, and here Romney used a phrase that left people befuddled as
to his intent and meaning, especially since he did not even make a
distinction between the Mediterranean and Arabian seas.”
If you’re a journalist or a commentator, there’s no reason be ashamed
just because a Washington Post writer reported a story much
better than you did. But when you find yourself being outclassed by
Yahoo! Answers, perhaps it’s time to rethink your assumptions that
you’re much smarter and better informed than Mitt Romney.
• October 3, 2012 7:04 pm
Right to carry,
State constitutional law
In state elections, the most important vote this November will be in
Louisiana. A referendum there would significantly strengthen protection
of the right to keep and bear arms in the state, and would set a very
significant national precedent.
Before the Civil War, the Louisiana Constitution did not mention a
right to arms. The Louisiana Supreme Courts, however, viewed the federal
Second Amendment as directly applicable to state government. So in State
v. Chandler (1850), the court held that the Second Amendment
protected a general right to carry arms, but that a legislature could
ban concealed carry.
A new state constitution, adopted in 1879, provided: “A well
regulated militia being necessary to the security of a free State, the
right of the people to keep and bear arms shall not be abridged. This
shall not prevent the passage of laws to punish those who carry weapons
concealed.” La. Const., art. 3. The first sentence is, of course, nearly
verbatim from the Second Amendment.
A century later, firearms prohibitionists had convinced some courts
to reinterpret the Second Amendment so as to make it practical nullity.
Supposedly, the Second Amendment right was not an individual right, but
instead a “state’s right” or “collective right”–which meant that
individual gun ownership could be entirely outlawed. Because the
Louisiana Constitution’s language so closely paralleled the Second
Amendment, there was a danger that a Louisiana court could interpret the
state constitutional language to protect nothing at all. Indeed, some
courts in other states had already done so, regarding state law language
that copied the Second Amendment.
So in 1974, the Louisiana constitutional right was strengthened, with
new language: “The right of each citizen to keep and bear arms shall not
be abridged, but this provision shall not prevent the passage of laws to
prohibit the carrying of concealed weapons.” La. Const., art. I, sect.
11. The new language made it indisputable that the state constitution’s
right to arms was an individual right, belonging to each citizen.
Unfortunately, Louisiana’s Supreme Court, like some other courts of
the late 1970s, was hostile to the right to arms. According to a 1977
Louisiana Supreme Court decision, “The right to keep and bear arms, like
other rights guaranteed by our state constitution, is not absolute. We
have recognized that such rights may be regulated in order to protect
the public health, safety, morals or general welfare so long as that
regulation is a reasonable one.” State v. Amos 343 So.2d 166,
168 (La. 1977).
It was unexceptional for the court to observe that the right to arms
is no more “absolute” than any other right. But the court went much
further, and essentially stripped the Louisiana arms right of any
meaningful judicial protection. According to the Amos court,
any form of gun control was constitutional, as long as it was
In 2001, the Louisiana Supreme Court affirmed a lower court ruling
that held: “The right to bear arms is established by the Second
Amendment to the United States Constitution and Article I, § 11 of the
Louisiana Constitution. The State of Louisiana is entitled to restrict
that right for legitimate state purposes, such as public health and
safety.” State v. Blanchard, 776 So.2d 1165 (La. 2001). The Blanchard
court cited Louisiana state and federal cases from 1986 through 1999 for
So Blanchard adopted an even weaker standard of right to
arms protection than had Amos. Under Blanchard, any
restriction is alright so long as the government has a “legitimate”
purpose. Blanchard‘s legitimate purpose test copies one prong
of the weakest standard of judicial review, the “rational basis” test,
which was originally created for Fourteenth Amendment Equal Protection
cases. Under this test, every law is constitutional so long as the
government has a “legitimate” purpose, and the law has a “rational”
connection to that purpose.
Fortunately, gun control has not been politically popular in
Louisiana in recent decades. So even though the state’s courts have
essentially nullified the constitutional right to arms, Louisiana’s
firearms statutes are not, in general, oppressive.
In the November 2012 referendum, Louisiana citizens will be given the
opportunity to remedy the wrong decisions in Blanchard and
Amos. Voters can adopt new constitutional language: “The right of
each citizen to keep and bear arms is fundamental and shall not be
infringed. Any restriction on this right shall be subject to strict
If adopted, the referendum would make two direct changes:
1. For the first time in Louisiana, concealed carry would be
constitutionally protected. This makes sense, because in the 21st
century (unlike in the 19th), concealed carry is most common way that
Louisiana citizens exercise their right to carry handguns for lawful
protection. Like most other states, Louisiana has a statutory system by
which concealed carry permits are issued under fair and objective
2. The judicially-imposed “legitimate purposes” test (the weakest
test) of judicial review would be replaced by the strongest test: strict
scrutiny. Under “strict scrutiny,” the burden of proof is reversed; the
government bears the burden of proving that a gun control law is
constitutional. To pass strict scrutiny, a law must be proven to serve a
“compelling state interest” (not merely a “legitimate purpose”). Even if
the law does advance a compelling state interest, the law is
constitutional only if the government additionally proves that the law
is “narrowly tailored” and is the “least restrictive means” to advance
the compelling state interest.
Louisiana would be the first state to write the “strict scrutiny”
standard into its constitution. This would become the model in other
states for significantly strengthening protection of their own
constitutional right to arms. So it is unsurprising that the proposed
amendment is strongly supported by the National Rifle Association,
the Louisiana Shooting Association, and Gov. Bobby Jindal, who is the
most pro-right to arms Governor in Louisiana history, and a national
leader on the issue.
Surprisingly, some people in Louisiana are opposing the Amendment on
the grounds that it supposedly promotes anti-gun laws. For example, at
this website, the author remains invincibly ignorant, even when the
facts are patiently explained an attorney from the Louisiana Shooting
Association. The website author wants to live in a world of absolute
rights. Be that as it may, Louisiana today is not a state of absolute
rights; it is a state where the right to arms essentially does not
exist, as a matter of state constitutional law, as mis-interpreted by
state courts. The amendment would remedy the misinterpretation, and make
it drastically harder for future courts to uphold anti-gun laws.
A victory for the Louisiana referendum will profoundly strengthen the
right to arms in Louisiana, and have significant positive effects
nationally. A defeat would validate the actions of previously Louisiana
judges in recent decades who deigned that the right to arms was unworthy
of judicial protection.
• October 2, 2012 6:05 pm
Last week, I filed an
amicus brief on behalf of petitions for certiorari in Chafee v.
United States and Pleau v. United States. These related
cases could be among the most important federalism cases before the
Court this term. The amici are the Cato Institute and the Independence
The State of Rhode Island and the federal government are fighting for
custody of Jason Pleau, who is accused of perpetrating a murder during
the course of a bank robbery. Rhode Island got him first, by revoking
his parole for previous crimes. Pleau has offered to plead guilty in
Rhode Island state court, and receive a sentence of life without parole
for the murder/robbery. Although Pleau’s robbery of the bank’s night
depository involves no particularly strong federal interest (such as the
murder of a federal officer), the U.S. Attorney for Rhode Island wants
to prosecute Pleau in federal court, and has stated that capital
punishment may be sought.
Over four decades ago, the States entered into an interstate compact,
the Interstate Agreement on Detainers Act (IADA). The Act provides the
procedures for the temporary transfer of a prisoner from one state to
another state, for criminal prosecution in the second state. Congress
liked IADA so much that it not only gave permission for the compact, it
also enacted IADA as a federal statute, and made the U.S. a party to the
compact. So under IADA, the U.S. functions just like any other “sending”
or “receiving” state.
The U.S. Attorney filed a detainer under IADA, to obtain temporary
custody of Pleau. IADA explicitly provides that the Governor of the
sending state has an unlimited right to refuse to transfer a prisoner.
Rhode Island Governor Lincoln Chafee exercised this right. Because Rhode
Island does not have the death penalty, Chafee believes that it would be
contrary to Rhode Island public policy for Pleau to be subject to
capital punishment for a crime perpetrated in Rhode Island, by a Rhode
Island citizen, against another Rhode Island citizen.
Having been rejected under IADA, the U.S. Attorney then sought to
obtain Pleau by asking a federal district court to issue a writ of
habeas corpus ad prosequendum. This common law writ is used by a
court to obtain a prisoner for prosecution, and it is implicitly
recognized in the 1948 federal habeas corpus statute.
Lower courts split on whether the ad prosequendum writ could
be used to evade IADA. Rhode Island lost in federal district court, won
2-1 before a First Circuit panel, and then lost 3-2 before the First
Circuit en banc. What made the case of particular interest to Cato and
the Independence Institute was the en banc majority’s casual use of the
Supremacy Clause as a trump card automatically resulting in a win for
the federal government.
The National Governors Association filed an amicus brief on behalf of
Governor Chafee before the en banc panel; the NGA argued vigorously
against the U.S. Attorney’s theory that the Supremacy Clause can
override a valid compact between the States and the federal government.
The NGA argued that this interpretation makes all federal/state compacts
into worthless scraps of paper, as far as federal adherence to the
compact is concerned.
Although the Solicitor General initially declined to respond to the
cert. petitions by Chafee and Pleau, the Supreme Court has requested a
response from the SG, which should be filed later this month.
The Cato Institute’s write-up of the case is
here. Scotusblog’s collection of the various briefs is
here, including the cert. petition amicus briefs of the National
Governor’s Association and the Rhode Island ACLU. (Note that this is for
docket number 12-223, the Chafee case. The related case of Pleau is
12-230, which is linked from the Scotusblog page for Chafee.) Below is
the summary of argument from my amicus brief:
The First Circuit’s decision violates Supreme Court teachings
about the relationship between habeas corpus writs and state
sovereignty, as explicated by Chief Justice Marshall in Ex Parte
Bollman, 8 U.S. (4 Cranch) 75 (1807), and by Chief Justice
Taft in Ponzi v. Fessenden, 258 U.S. 254 (1922).
More fundamentally, the First Circuit misuses the Supremacy Clause
to make it an absolute trump card to defeat any state claim. This is
not, and never has been, the meaning of the Supremacy Clause.
The decision below mangles the Supreme Court’s major case about
the Interstate Agreement on Detainers Act, United States v.
Mauro, 436 U.S. 340 (1977). Westlaw characterizes the First
Circuit’s decision as the “most negative” of the more than 600 lower
court cases applying Mauro. The decision below does not
merely misread Mauro, but instead chops quotes and inverts
language so as to turn Mauro into the opposite of what
Mauro actually said.
There is no evidence, let alone an “unmistakably clear
statement,” that any act of Congress, including the 1789 and 1948
habeas corpus statutes, was intended to abrogate state sovereignty,
including the sovereign right of Governors to refuse a writ of
habeas corpus ad prosequendum.
The First Circuit grants unauthorized additional power (indeed,
statutorily forbidden power) to the federal government, which makes
it imperative that this Court grant certiorari to protect our
constitutional system of dual sovereignty.
Thanks to my fine summer interns, Christopher Ferraro and Rachel
Maxam, of Denver University Sturm College of Law, for their work on this
• September 21, 2012 6:08 pm
I thought it would useful to compile a list of some of the most
offensive words, images, etc. which have been held to be protected by
the First Amendment. I’m especially interested in Supreme Court cases,
but other cases are fine too. So commenters, please submit your
Archive of Kopel's Corner
2006, Oct. 3- Dec. 31.
2006, Jan. 1- Oct. 2.
The rest of Kopel's website
Share this page: