Category: reason

The holiday season is now upon us! If you are looking for possible gifts for the loyal Volokh Conspiracy readers in your life, what could better than books by VC bloggers?

VC contributors published two new books this year: Jonathan Adler’s  Marijuana Federalism and my own Free to Move: Foot Voting, Migration, and Political Freedom.

Jonathan’s outstanding edited volume has everything you ever wanted to know about the relationship between federalism and pot. It includes contributions by leading scholars in several different disciplines.

Free to Move makes the case for expanding opportunities for people to “vote with their feet” in federal systems, the private sector, and through international migration. I describe key advantages of foot voting over conventional ballot box voting, and explain how breaking down barriers to foot voting can massively increase freedom and opportunity for millions of people around the world. I am donating 50% of all royalties from the book to charities benefiting refugees, who – sadly – are in more need than ever in this difficult time. The Introduction to Free to Move (which includes an overview of the rest) is available for free here.

Among my favorite books by VC authors are Randy Barnett’s Restoring the Lost Constitution, David Bernstein’s Rehabilitating Lochner, Dale Carpenter, Flagrant Conduct: The Story of Lawrence v. Texas, Jonathan Adler’s Business and the Roberts Court, Josh Blackman’s Unprecedented and Unraveled, and Eugene Volokh, Academic Legal Writing.

Randy’s book is one of the best recent works on originalism and constitutional legitimacy. It is relevant to ongoing debates over legal interpretation that are sure to heat up again as the Supreme Court considers several major cases in the near future. Rehabilitating Lochner explodes numerous myths about one of the Court’s most reviled decisions, one that remains relevant to current debates over “judicial activism.” Flagrant Conduct is a great account of a milestone in the history of gay rights. It provides useful historical context for the still-ongoing battles over same-sex marriage and related issues. Jonathan Adler’s edited volume is an excellent guide to the issue of whether the Supreme Court favors business interests, and how we might assess claims that it has a pro-business bias. Josh Blackman’s two books provide excellent blow-by-blow accounts of the extensive litigation generated by the Affordable Care Act. The two books cover the period up to 2016; I understand that Josh is working on a third volume that will bring us up to the present. Finally, Academic Legal Writing is filled with useful advice, while also somehow managing to make this generally unexciting topic interesting.

The Cambridge Handbook of Classical Liberal Thought (edited by Todd Henderson), includes chapters by three different VC bloggers: Jonathan Adler on environmental policy, David Bernstein on anti-discrimination law, and my own contribution on “voting with your feet.”

This list is not intended to slight important books by Ken Anderson, Sam Bray, Orin Kerr, David Kopel, David Post, and other VC bloggers. I have not discussed them only because their subjects are distant from my own areas of expertise.

In the spirit of shameless self-promotion, I will also mention the much-expanded second edition of my own book Democracy and Political Ignorance: Why Smaller Government is Smarter. Sadly, the problem analyzed in the book played an important role in the 2016 and 2018 elections, and was a factor in 2020, as well.

My most recent book before Free to Move was Eminent Domain: A Comparative Perspective, co-edited with Iljoong Kim and Hojun Lee. It analyzes the use and abuse of eminent domain in a variety of countries around the world.

My other books include The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, which is the first book by a legal scholar about one of the Supreme Court’s most controversial modern decisions, and A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (coauthored with VC-ers Randy Barnett, Jonathan Adler, David Bernstein, Orin Kerr, and David Kopel). Conspiracy Against Obamacare focuses on the VC’s significant role in the Obamacare litigation, and is the only book that includes contributions by six different VC bloggers. In 2016, the University of Chicago Press published an updated paperback edition of the The Grasping Hand, which incorporates new material on recent developments such as the growing legal and political struggle over pipeline takings.

I wish all our readers a happy – and safe – Thanksgiving, and a great holiday season. Hopefully, it will be the last marred by the Covid pandemic.

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Over the past 50-plus years, Charles Koch grew his family business, Koch Industries, into one of the largest privately held companies in America. At the same time, he played a leading role in creating or supporting the modern libertarian movement and some of its major institutions. Among them: The Cato Institute, the Institute for Humane Studies, the Mercatus Center, and the Charles Koch Foundation, a nonprofit that supports many organizations, including Reason Foundation, which is the publisher of Reason magazine. Along with his brother David, a longtime trustee of the Reason Foundation who passed away last year at the age of 79, the 85-year-old billionaire became not only one of the most successful businessmen in the country but also one of the most controversial, with leftists blaming  “the Koch brothers” for many of our contemporary problems.

Koch has just published Believe in People, a book that seeks to “offer a paradigm shift [that] calls for all of us to move away from the top-down approach to solving the really big problems” by instead “empowering people from the bottom up to act on their unique gifts and contribute to the lives of others.”

In a conversation with Koch and his co-author, Brian Hooks, who is the chairman and CEO of Stand Together and the president of the Charles Koch Foundation, Reason‘s Nick Gillespie discusses the 2020 election, the successes and failures of the libertarian movement, and what Koch and Hooks see as the defining challenges and opportunities in the coming decade.

For a video version of this interview, go here.

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Nearly a year into the COVID-19 pandemic, many questions about the virus that causes the disease, including the infection fatality rate, the significance of mutations, and the efficacy of lockdowns, remain controversial. But epidemiologists and public health specialists have reached a consensus on at least one point: The risk of virus transmission is much lower in outdoor settings than it is indoors, especially when the latter spaces are poorly ventilated, crowded, and occupied by people who are expelling a lot of respiratory droplets by talking, singing, coughing, or sneezing. Yet some state and local governments have responded to the ongoing surge in newly identified infections by imposing irrational restrictions on outdoor activities that are bound to test the patience of Americans as they try to “hang in there” until vaccines are widely available.

Under a two-week order that New Mexico Gov. Michelle Lujan Grisham issued this month, golf courses and state parks “must reduce in-person operations by 100%.” The order also tells residents, “You really should not be leaving the house unless it’s an emergency or for an essential need like food and water.” Residents who do venture beyond their doorsteps “must wear a mask,” indoors and out, regardless of how close they are to people from other households. The only exceptions are for people who are “drinking, eating, or under medical instruction.” The rules explicitly say people must “wear face-coverings while exercising,” even “outdoors.”

New Mexico had previously recognized that people could engage in outdoor activities with minimal risk of catching or transmitting the coronavirus. It described in detail “safe practices for golf courses,” for example. Given that the scientific evidence regarding virus transmission has not changed since those guidelines were issued, it is hard to see why closing off outdoor recreation opportunities is justified now. You might think preserving those opportunities is especially important at a time when private, indoor gatherings are being blamed (without much evidence) for driving a spike in new cases.

Last week, Minnesota Gov. Tim Walz banned “social gatherings” that include people from different households. “This prohibition includes indoor and outdoor gatherings, planned and spontaneous gatherings, and public and private gatherings,” he said. It applies to groups of any size, “even if social distancing can be maintained.”

Even The New York Times, usually a big fan of COVID-19 restrictions, was taken aback. Walz “took the extraordinary step of banning people from different households from meeting indoors or outdoors, even though evidence has consistently shown the outdoors to be relatively safe,” the paper reported.

“If people are going to meet up, doing so outdoors is probably the lowest-risk way to do it,” Ashleigh Tuite, an infectious disease modeler at the University of Toronto, told the Times. “Telling people they can’t spend time safely outdoors isn’t a rational approach. People are going to recognize that and push back.”

Rhode Island Gov. Gina Raimondo likewise has banned all inter-household social gatherings. Her order also includes a ban on “all amateur adult and youth sports,” both “outdoors and indoors.” Indoor dining in restaurants is still permitted, subject to restrictions.

Rhode Island’s mask rule is a bit looser than New Mexico’s: “Any time you are near people who don’t live with you, wear a mask.” Similarly, California and Washington say you don’t have to wear a mask outdoors as long as you are at least six feet from people who don’t live with you.

Chicago is advising all residents to “only leave home to go to work or school, or for essential needs such as seeking medical care, going to the grocery store or pharmacy, picking up food, or receiving deliveries.” If they do dare to leave home, they “must always wear a face covering.” Mayor Lori Lightfoot also has imposed a 10-person limit on outdoor gatherings, although that restriction does not apply to indoor businesses such as fitness clubs, retail stores, or movie theaters. Outdoor dining at restaurants is allowed as long as tables are spaced at least six feet from each other and no more than six people sit at each table.

Philadelphia has banned “recreational activities and sports for youth, community groups, and schools,” although “parks, trails, playgrounds, and athletic fields will remain open for individual use.” The city also continues to allow outdoor dining at restaurants, with tables limited to four people, all from the same household.

Los Angeles County plans to impose new restrictions that will close playgrounds and ban all outdoor gatherings that include people from different households. But the Los Angeles Times reports that “beaches, trails and parks would remain open, as would outdoor venues like golf courses, tennis courts, skate parks, and community gardens.”

California’s message about outdoor recreation is mixed. “It’s okay to go outside to go for a walk, to exercise, and participate in healthy activities as long as you maintain a safe physical distance of 6 feet and gather only with members of your household,” the state’s official COVID-19 website says. “You can also participate in activities at outdoor playgrounds and recreational facilities that are allowed to open.” But it adds that “parks may be closed to help slow the spread of the virus” and warns that “Californians should not travel significant distances for recreation,” even if they want to visit one of the parks that remains open.

There are several problems with these restrictions on outdoor activities. First, many of them are inconsistent and scientifically dubious. Second, foreclosing opportunities for people to recreate or gather outside is apt to increase the risk of virus transmission indoors, especially in private settings where the authorities have no idea what is happening, even if they are notionally imposing limits there. Third, arbitrary COVID-19 edicts that make life more inconvenient and less enjoyable for no rational reason foster resentment and defiance, which make compliance with reasonable safeguards less likely. In their determination to seem like they are doing something to slow the spread of COVID-19, many politicians are actively undermining that goal.

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No journalist is more relentlessly iconoclastic than Glenn Greenwald, who shared a 2014 Pulitzer Prize for his reporting on the Edward Snowden revelations. 

Though unapologetically progressive, the 53-year-old former lawyer never shrinks from fighting with the left. A week before the 2020 election, he quit The Intercept, the online news organization he co-founded in 2014, because, by his own account, it refused to run a story unless he “remove[d] all sections critical of” Democratic presidential candidate Joe Biden. Denouncing what he called “the pathologies, illiberalism, and repressive mentality” that led him to be “censored” by his own media outlet, Greenwald railed that “these are the viruses that have contaminated virtually every mainstream center-left political organization, academic institution, and newsroom.”

Like a growing number of refugees from more-traditional news organizations, Greenwald took his talents to Substack, a platform for independent content creators to earn revenue directly from their audiences. He wasted no time lobbing grenades, posting stories and videos with titles like “No Matter the Liberal Metric Chosen, the Bush/Cheney Administration Was Far Worse Than Trump” and “The Three Greatest Dangers of Biden/Harris: Militarism, Corporatism and Censorship, All Fueled by Indifference.”

Nick Gillespie spoke with Greenwald via Zoom at Greenwald’s house in Brazil, where he lives with his husband, two children, and numerous dogs. Among other topics, they discussed what Greenwald sees as a generational fight playing out in newsrooms, the challenge identity politics poses to free expression, and whether a coalition of libertarians and progressives can effectively push non-interventionist foreign policy, lifestyle liberation, and an end to corporate subsidies during the Biden presidency.

Narrated by Nick Gillespie. Edited by Regan Taylor, John Osterhoudt, and Lex Villena.

Photo: Marcelo Chello/ZUMA Press/Newscom; SERGIO MORAES/REUTERS/Newscom; Ole Spata/dpa/picture-alliance/Newscom; ليبي صح, World Economic Forum, Pete Souza/Photoshot/Newscom; Carlos Barretta/ZUMA Press/Newscom; AP Photo/Vincent Yu; Fotoarena/Newscom; AP Photo/Leo Correa; Paulo Lopes/ZUMA Press/Newscom; Carlos Barretta/ZUMA Press/Newscom; Gage Skidmore/Creative Commons/Flickr; Senado Federal/Creative Commons/Flickr; FERNANDO BIZERRA JR/EFE/Newscom

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President-elect Joe Biden is being warned not to bring torture apologists who served under President Barack Obama into his administration.

The Daily Beast reported this week that Biden was considering Michael Morell as a potential CIA director, but Sen. Ron Wyden (D–Ore.) had objections. Wyden publicly warned that Morell, who served as deputy director of the CIA under Obama, shouldn’t be considered due to his past ties in obscuring CIA torture. CNN subsequently interviewed Wyden:

“No torture apologist can be confirmed as CIA director. It’s a nonstarter,” Wyden told CNN, referring to Morell’s previous suggestions that the agency’s so-called “enhanced interrogation” of terrorists was both effective and moral—claims that go further than those made by other officials who have faced scrutiny over the agency’s handling of detainees at black sites, including former Director John Brennan and current Director Gina Haspel.

Wyden isn’t the only person trying to raise alarms about Morell. Over at Just Security, Scott Roehm, along with Daniel Jones (who investigated the CIA torture and wrote the Senate Intelligence Committee’s report on it), also warned against Morell. They note Morell’s role in essentially absolving CIA staff (including current CIA Director Gina Haspel) of responsibility for destroying tapes of CIA torture of suspected terrorists during the Iraq War. He was also responsible for the CIA’s response to the Senate’s torture report, insisting that the CIA’s methods had resulted in actionable intelligence. They had not. Roehm and Jones write:

In an interview … Morell said he rejected the description of the CIA program as torture “because to call it torture says my guys were torturers” and “I’m going to defend my guys to my last breath.” He would go on to vocally support Haspel and her candidacy for CIA director.

CNN reported that Nick Shapiro, a spokesperson for Morell, insists that Morell was not familiar or involved with the CIA’s torture program, didn’t learn about it until 2006, and has since said that “he believed that waterboarding is indeed torture.”

Biden hasn’t named his choice for CIA director yet, but he did name Avril Haines as his choice for director of national intelligence. But Haines comes with similar baggage. Haines also supported Haspel’s nomination as CIA director. And as deputy CIA director for a year under Obama, CNN notes, Haines made the decision not to punish any of the CIA employees who were secretly snooping on Jones and other Senate staffers working on the torture report.

As we start transitioning back to a Democratic administration, this fight is a reminder about the bipartisanship that drives a lot of the worst tendencies of national intelligence behavior. For anybody who might have forgotten what that looks like, check out The Report, which dramatizes the Senate’s investigation of the CIA and absolutely does not shield the behavior of leaders under Obama from criticism.

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