Category: reason

Lawson on Conservatives versus Constitutionalists

Gary Lawson, writing on Gundy v. United States decision in the Cato Supreme Court Review discusses the potential difference between conservative jurisprudence and constitutionalist jurisprudence.

If one is truly an originalist—or, as I would prefer to term it, a constitutionalist—one will not worry too much about how rule-like or standard-like a norm the Constitution prescribes in any given setting. To a constitutionalist, that is the Constitution’s call to make, not the judge’s. If the Constitution gives you a vague and mushy standard, a constitutionalist will do his or her best to apply the vague and mushy standard. There is no a priori reason to suppose that the Constitution will always prescribe crisp and clear rules, and there is a great deal of empirical evidence to the contrary. Constitutionalists think that cases should be decided on the basis of the Constitution, whatever role for courts that turns out to prescribe.

But if one is less a constitutionalist than a conservative,145 one might worry a great deal about the “appropriate” judicial role, public perceptions of the Court, the dangers of judicial “activism,” and a host of other policy-laden considerations that are not grounded in constitutional meaning. Judicial conservatives, as opposed to judicial constitutionalists or originalists, have long worried about exactly these sorts of considerations. Indeed, those considerations are a large part of what defines someone as a judicial conservative.

In the particular context of delegation, Lawson explains how this distinction explains why Justice Gorsuch is more willing to consider whether there are constitutional limits on the delegation of authority to administrative agencies than was Justice Scalia. Although Scalia acknowledged that excessive delegation could pose constitutional problems, he did not believe there was a ready, judicially administrable test to distinguish permissible delegations from impermissible ones.

For more on this distinction, see Lawson’s article with Stephen Calabresi, The Rule of Law as a Law of Law, which is styled as a response to Scalia’s famous paper, The Rule of Law as a Law of Rules.

from Latest – Reason.com https://ift.tt/2FFSK7Q
via IFTTT

Public Education as Public Indoctrination

Dana Goldstein of New York Times has an interesting article describing how state governments in both liberal California and conservative Texas work to skew school textbooks in favor of their preferred ideologies. Despite their differences, both seek to indoctrinate students rather than present facts in any sort of evenhanded way:

The textbooks cover the same sweeping story, from the brutality of slavery to the struggle for civil rights. The self-evident truths of the founding documents to the waves of immigration that reshaped the nation.

The books have the same publisher. They credit the same authors. But they are customized for students in different states, and their contents sometimes diverge in ways that reflect the nation’s deepest partisan divides.

Hundreds of differences — some subtle, others extensive — emerged in a New York Times analysis of eight commonly used American history textbooks in California and Texas, two of the nation’s largest markets.

In a country that cannot come to a consensus on fundamental questions — how restricted capitalism should be, whether immigrants are a burden or a boon, to what extent the legacy of slavery continues to shape American life — textbook publishers are caught in the middle. On these questions and others, classroom materials are not only shaded by politics, but are also helping to shape a generation of future voters….

Requests from textbook review panels, submitted in painstaking detail to publishers, show the sometimes granular ways that ideology can influence the writing of history.

A California panel asked the publisher McGraw-Hill to avoid the use of the word “massacre” when describing 19th-century Native American attacks on white people. A Texas panel asked Pearson to point out the number of clergy who signed the Declaration of Independence, and to state that the nation’s founders were inspired by the Protestant Great Awakening….

Texas policymakers feel strongly about giving students a positive view of the American economy; since 1995, state law has required that high school economics courses offer an “emphasis on the free enterprise system and its benefits.” That emphasis seems to have made its way into the history curriculum as well.

California’s curriculum materials, by contrast, sometimes read like a brief from a Bernie Sanders rally. “The yawning gap between the haves and have-nots and what is to be done about it is one of the great questions of this time,” says the state’s 2016 social studies framework.

As a result, California textbooks are more likely to celebrate unionism, critique the concentration of wealth and focus on how industry pollutes the environment.

As the article notes, California and Texas are far from unique. Other state governments make similar efforts to use school curricula to promote their ideologies.

These findings should not surprise anyone familiar with the history of public education. From the very beginning, one of its main purposes was indoctrination in the dominant ideology of the day. In nineteenth-century Europe, the goal was often to indoctrinate the population in nationalism. In the US, it was to indoctrinate European immigrants—many of whom were Catholic or Jewish—in what were seen as genuine American values, which at the time incorporated much of the then-dominant versions of Protestantism.

Today, the goals of public-school indoctrination have shifted somewhat. But the fact persists.

This state of affairs throws cold water on the popular notion that we can use public education to solve the problem of widespread political ignorance. In principle, we might be able to increase voter knowledge of government and public policy by improving the school curriculum and requiring a high level of knowledge as a prerequisite to graduation. But, in practice, state education officials are usually more interested in inculcating students with their own preferred ideologies than in presenting facts objective or increasing political knowledge across the board. They especially aren’t interested in combating the partisan and ideological bias that infects many voters’ judgement of political issues, especially in our highly polarized era. To the contrary, they often seek to exacerbate that bias by promoting the agenda of Team Red or Team Blue (depending on who controls the state government in question).

Of course, school officials might take a different approach if voters closely monitored school curricula and refused to reelect politicians who use public school curricula for purposes of indoctrination. But if voters were that knowledgeable and that free of bias, we would not have a problem of political ignorance in the first place!

The prevalence of efforts at indoctrination is likely one of the reasons why levels of political knowledge have been largely stagnant (and low) over the last sixty years, even though the average adult American today has several years more education than was the case in 1960.

Some reformers propose to fix the problem by having one centralized set of education standards for the entire nation. Then, California would no longer be free to promote left-wing indoctrination in its schools, and Texas would no longer be able to inflict the conservative version on its students. But centralization could easily make things worse rather than better. In the status quo, liberal bias in blue state schools is to some degree balanced by conservative bias in red states, and vice versa. With a single centralized national curriculum, any bias it includes would have a nationwide impact on public-school students around the country, and there would be no counterweight to it, except perhaps among the relatively small minority of students (about 10%) who attend private schools.

One oft-overlooked argument for school choice is that it would make systematic indoctrination of schoolchildren more difficult. The danger of uniform nation-wide indoctrination is the main reason why John Stuart Mill opposed state control of schools, even though he favored government subsidization of education for those unable to afford it. He warned that “[a] general State education is a mere contrivance for moulding people to be exactly like one another: and as the mould in which it casts them is that which pleases the predominant power in the government, whether this be a monarch, a priesthood, an aristocracy, or the majority of the existing generation, in proportion as it is efficient and successful, it establishes a despotism over the mind, leading by natural tendency to one over the body.” Mill may have overestimated the degree to which such indoctrination is effective, but he was right to fear that it would happen, and right to worry that it is inimical to genuine efforts to increase public knowledge.

While many private schools no doubt have ideological biases of their own, a voucher system with competing private schools would make it harder to impose one dominant ideology on all or most students simultaneously. Moreover, some private schools try to make a genuine effort to present a range of different views on political issues, and others might promote views that do not align neatly with the current left-right political spectrum. That would increase the overall  ideological diversity  of the education system, even if many individual schools were not ideologically diverse internally. It would be a nice example of Heather Gerken’s notion of “second-order diversity,” under which homogeneity in individual institutions can help increase the overall diversity of the system, and widen the range of options available to people “voting with their feet.”

The prevalence of indoctrination is just one of several reasons why using public education to overcome political ignorance is far more difficult than many people think. I discuss both this problem and other obstacles in greater detail in Chapter 7 of my book Democracy and Political Ignorance.

from Latest – Reason.com https://ift.tt/2t2aOXb
via IFTTT

Public Education as Public Indoctrination

Dana Goldstein of New York Times has an interesting article describing how state governments in both liberal California and conservative Texas work to skew school textbooks in favor of their preferred ideologies. Despite their differences, both seek to indoctrinate students rather than present facts in any sort of evenhanded way:

The textbooks cover the same sweeping story, from the brutality of slavery to the struggle for civil rights. The self-evident truths of the founding documents to the waves of immigration that reshaped the nation.

The books have the same publisher. They credit the same authors. But they are customized for students in different states, and their contents sometimes diverge in ways that reflect the nation’s deepest partisan divides.

Hundreds of differences — some subtle, others extensive — emerged in a New York Times analysis of eight commonly used American history textbooks in California and Texas, two of the nation’s largest markets.

In a country that cannot come to a consensus on fundamental questions — how restricted capitalism should be, whether immigrants are a burden or a boon, to what extent the legacy of slavery continues to shape American life — textbook publishers are caught in the middle. On these questions and others, classroom materials are not only shaded by politics, but are also helping to shape a generation of future voters….

Requests from textbook review panels, submitted in painstaking detail to publishers, show the sometimes granular ways that ideology can influence the writing of history.

A California panel asked the publisher McGraw-Hill to avoid the use of the word “massacre” when describing 19th-century Native American attacks on white people. A Texas panel asked Pearson to point out the number of clergy who signed the Declaration of Independence, and to state that the nation’s founders were inspired by the Protestant Great Awakening….

Texas policymakers feel strongly about giving students a positive view of the American economy; since 1995, state law has required that high school economics courses offer an “emphasis on the free enterprise system and its benefits.” That emphasis seems to have made its way into the history curriculum as well.

California’s curriculum materials, by contrast, sometimes read like a brief from a Bernie Sanders rally. “The yawning gap between the haves and have-nots and what is to be done about it is one of the great questions of this time,” says the state’s 2016 social studies framework.

As a result, California textbooks are more likely to celebrate unionism, critique the concentration of wealth and focus on how industry pollutes the environment.

As the article notes, California and Texas are far from unique. Other state governments make similar efforts to use school curricula to promote their ideologies.

These findings should not surprise anyone familiar with the history of public education. From the very beginning, one of its main purposes was indoctrination in the dominant ideology of the day. In nineteenth-century Europe, the goal was often to indoctrinate the population in nationalism. In the US, it was to indoctrinate European immigrants—many of whom were Catholic or Jewish—in what were seen as genuine American values, which at the time incorporated much of the then-dominant versions of Protestantism.

Today, the goals of public-school indoctrination have shifted somewhat. But the fact persists.

This state of affairs throws cold water on the popular notion that we can use public education to solve the problem of widespread political ignorance. In principle, we might be able to increase voter knowledge of government and public policy by improving the school curriculum and requiring a high level of knowledge as a prerequisite to graduation. But, in practice, state education officials are usually more interested in inculcating students with their own preferred ideologies than in presenting facts objective or increasing political knowledge across the board. They especially aren’t interested in combating the partisan and ideological bias that infects many voters’ judgement of political issues, especially in our highly polarized era. To the contrary, they often seek to exacerbate that bias by promoting the agenda of Team Red or Team Blue (depending on who controls the state government in question).

Of course, school officials might take a different approach if voters closely monitored school curricula and refused to reelect politicians who use public school curricula for purposes of indoctrination. But if voters were that knowledgeable and that free of bias, we would not have a problem of political ignorance in the first place!

The prevalence of efforts at indoctrination is likely one of the reasons why levels of political knowledge have been largely stagnant (and low) over the last sixty years, even though the average adult American today has several years more education than was the case in 1960.

Some reformers propose to fix the problem by having one centralized set of education standards for the entire nation. Then, California would no longer be free to promote left-wing indoctrination in its schools, and Texas would no longer be able to inflict the conservative version on its students. But centralization could easily make things worse rather than better. In the status quo, liberal bias in blue state schools is to some degree balanced by conservative bias in red states, and vice versa. With a single centralized national curriculum, any bias it includes would have a nationwide impact on public-school students around the country, and there would be no counterweight to it, except perhaps among the relatively small minority of students (about 10%) who attend private schools.

One oft-overlooked argument for school choice is that it would make systematic indoctrination of schoolchildren more difficult. The danger of uniform nation-wide indoctrination is the main reason why John Stuart Mill opposed state control of schools, even though he favored government subsidization of education for those unable to afford it. He warned that “[a] general State education is a mere contrivance for moulding people to be exactly like one another: and as the mould in which it casts them is that which pleases the predominant power in the government, whether this be a monarch, a priesthood, an aristocracy, or the majority of the existing generation, in proportion as it is efficient and successful, it establishes a despotism over the mind, leading by natural tendency to one over the body.” Mill may have overestimated the degree to which such indoctrination is effective, but he was right to fear that it would happen, and right to worry that it is inimical to genuine efforts to increase public knowledge.

While many private schools no doubt have ideological biases of their own, a voucher system with competing private schools would make it harder to impose one dominant ideology on all or most students simultaneously. Moreover, some private schools try to make a genuine effort to present a range of different views on political issues, and others might promote views that do not align neatly with the current left-right political spectrum. That would increase the overall  ideological diversity  of the education system, even if many individual schools were not ideologically diverse internally. It would be a nice example of Heather Gerken’s notion of “second-order diversity,” under which homogeneity in individual institutions can help increase the overall diversity of the system, and widen the range of options available to people “voting with their feet.”

The prevalence of indoctrination is just one of several reasons why using public education to overcome political ignorance is far more difficult than many people think. I discuss both this problem and other obstacles in greater detail in Chapter 7 of my book Democracy and Political Ignorance.

from Latest – Reason.com https://ift.tt/2t2aOXb
via IFTTT

Marianne Williamson Withdraws from the Presidential Race

The most interesting thing about Marianne Williamson’s presidential campaign may be that it did about as well as you’d ordinarily expect a Marianne Williamson campaign to do. The self-help writer and spiritual leader, who suspended her New Age quest for the Democratic nomination on Friday, made a splash in the press and the meme factories by sounding so different from the other candidates. But her poll numbers never climbed above the low single digits, and now she has withdrawn before the voting begins. Apparently, the Oprah constituency isn’t enough to win a major party’s presidential nod this year. Maybe Oprah herself could do it, but not a regular Oprah guest.

That should not be surprising. Major political parties do not usually hand their national tickets to celebrity candidates who don’t have any elected experience. But one of them did just that last time around, and the guy they picked then got elected president. And that experience has thrust some traumatized analysts into a state of epistemic nihilism, as though they can’t entirely rule out the possibility that the Democrats will nominate an AI and the Republicans will nominate Bernie Sanders.

Relax, folks. We’re just few weeks from the Iowa caucuses now, and the two leading contenders for the Democratic nomination are exactly what standard political wisdom would lead you to expect: (a) the guy who was vice president the last time the party held the White House, and (b) the guy who finished second in the last nomination contest. And the candidate with the best shot at coming from behind to beat them is a well-known senator who’s spent years building a constituency.

Granted, one of those two frontrunners is a self-proclaimed socialist who isn’t technically a member of the party; and yes, there’s also a boy mayor from the Midwest in the mix. But that’s not very far beyond the standard levels of political weirdness. It certainly isn’t as strange as a Marianne Williamson presidency. That’ll have to wait another four years.

from Latest – Reason.com https://ift.tt/2FUko17
via IFTTT

Marianne Williamson Withdraws from the Presidential Race

The most interesting thing about Marianne Williamson’s presidential campaign may be that it did about as well as you’d ordinarily expect a Marianne Williamson campaign to do. The self-help writer and spiritual leader, who suspended her New Age quest for the Democratic nomination on Friday, made a splash in the press and the meme factories by sounding so different from the other candidates. But her poll numbers never climbed above the low single digits, and now she has withdrawn before the voting begins. Apparently, the Oprah constituency isn’t enough to win a major party’s presidential nod this year. Maybe Oprah herself could do it, but not a mere Oprah guest.

That should not be surprising. Major political parties do not usually hand their national tickets to celebrity candidates who don’t have any elected experience. But one of them did just that last time around, and the guy they picked then got elected president. And that experience has thrust some traumatized analysts into a state of epistemic nihilism, as though they can’t entirely rule out the possibility that the Democrats will nominate an AI and the Republicans will nominate Bernie Sanders.

Relax, folks. We’re just few weeks from the Iowa caucuses now, and the two leading contenders for the Democratic nomination are exactly what standard political wisdom would lead you to expect: (a) the guy who was vice president the last time the party held the White House, and (b) the guy who finished second in the last nomination contest. And the candidate with the best shot at coming from behind to beat them is a well-known senator who’s spent years building a constituency.

Granted, one of those two frontrunners is a self-proclaimed socialist who isn’t technically a member of the party; and yes, there’s also a boy mayor from the Midwest in the mix. But that’s not very far beyond the standard levels of political weirdness. It certainly isn’t as strange as a Marianne Williamson presidency. That’ll have to wait another four years.

from Latest – Reason.com https://ift.tt/2FUko17
via IFTTT

Utah Government Considering Canceling DEPORTM Personalized License Plate

The Salt Lake Tribune (Erin Alberty) reports:

[T]he Utah Tax Commission is considering recalling the license plate after complaints this week on social media.

“We’re not sure how it got through,” said Tammy Kikuchi, spokeswoman for the commission, which oversees the Utah Division of Motor Vehicles. “We’re really quite surprised.” … [O]fficials are reviewing the plate for compliance with provisions in state law that forbid vanity plates that “may carry connotations offensive to good taste and decency or that may be misleading” and express “contempt, ridicule or superiority of a race, religion, deity, ethnic heritage or political affiliation.”

“I don’t know why it was approved in 2015,” [Kikuchi] said, adding: “The current DMV director was not the director then.”

I think canceling the plate would violate the First Amendment:

[1.] Vanity plate contents are private speech, not government speech. Though Walker v. Sons of Confederate Veterans held that license plate designs are government speech, and the government can generally pick and choose which ones are allowed, vanity plates convey the owner’s own views. Courts are split on the matter, with a recent Maryland high court decision and a federal district court decision in Kentucky taking the view I articulate here, and an Indiana Supreme Court decision taking the opposite view. To quote the Maryland court’s analysis:

In [Walker v. Texas Div., Sons of Confederate Veterans (2015)], the U.S. Supreme Court determined that a Texas-issued specialty license plate displaying a Confederate flag constituted speech by the government, not speech by the Texas Division of the Sons of Confederate Veterans, the organization that sought the plate design…. The First Amendment protects, however, private speech on government property, with some limitations.

In the present case, … a message on a vanity plate … is private speech. Applying the Supreme Court’s first analytical factor [from Walker], historical usage, although license plates in general function historically as government IDs for vehicles, vanity plates display additionally “a personalized message with intrinsic meaning (sometimes clear, sometimes abstruse) that is independent of mere identification and specific to the owner.”  The unique, personalized messages communicated via vanity plates contrast with the generic, depersonalized speech conveyed by a specialty plate: “[m]any Maryland vehicles display identical specialty plates; only the registration numbers, which on a specialty plate have no intrinsic meaning and carry no message, will vary.”

Additionally, private citizens, not the State of Maryland, create and submit prospective vanity plate messages. “So, historically, vehicle owners have used vanity plates to communicate their own personal messages and the State has not used vanity plates to communicate any message at all. Unlike the license plate slogans that States use ‘to urge action, to promote tourism, and to tout local industries[,]’ vanity plates are personal to the vehicle owner, and are perceived as such.”

Turning to the factor of audience perception, “[t]he personal nature of a vanity plate message makes it unlikely that members of the public, upon seeing the vanity plate, will think the message comes from the State.”  Unlike the specialty plates at issue in Walker, vanity plates bear unique, personalized, user-created messages that cannot be attributed reasonably to the government.

The fact that this kind of speech takes place on government property—a license plate—is not transformative in this context of private speech into government speech.  Indeed, the Supreme Court’s public forum doctrine … exists only because of the need to analyze government restrictions of private speech that takes place on government property. Nor does the juxtaposition of private speech on government property transform the public perception of the speaker’s identity….

Considering the third factor of the government speech analysis, … the [government’s] statutory and regulatory authority to deny or rescind a vanity plate based on the content of its message does not rise to the level of “such tight control that the personalized messages become government speech.”  Maryland does not exercise “direct control” over the “alphanumeric pattern” displayed on vanity plates in the same or similar way that Texas controlled specialty plates.  In Texas, the State had “sole control” over the content of a specialty plate. With respect to vanity plates in Maryland, “vehicle owners, not the State, create the proposed messages and apply for them.”  Although the MVA retains discretion to deny a prospective vanity message, its authority to recall vanity plates issued erroneously suggests that the MVA’s control over vanity plates does not rise to the rigorous level required to transmogrify its regulatory approach into government speech.

Contrarily, a recent ruling by the Indiana Supreme Court held that vanity plates constitute government speech because “[l]icense plates have long been used for government purposes” such as vehicle identification, their messages are perceived to be communicated on behalf of the State, and the State “‘maintains direct control'” over the messages they display…. [W]e reject the [Indiana] court’s reasoning because vanity plates represent more than an extension by degree of the government speech found on regular license plates and specialty plates. Vanity plates are, instead, fundamentally different in kind from the aforementioned plate formats. Maryland has not communicated historically to the public with vanity messages. Observers of vanity plates understand reasonably that the messages come from vehicle owners. Moreover, the MVA does not exercise control over vanity plate messages to the extent that Walker informs us Texas controlled specialty plates.

[2.] Under the First Amendment precedents, the vanity plate program is either a so-called “nonpublic forum” or a “limited public forum,” so the government has some power to restrict speech there—but only in a viewpoint-based and reasonable way.

[3.] Matal v. Tam (the Slants case) held that excluding speech that “disparage[s] … or bring[s] … into contemp[t] or disrepute” any “persons, living or dead”—including speech perceived as racist—is viewpoint-based. Likewise, excluding speech that expresses “contempt, ridicule or superiority of a race, religion, deity, ethnic heritage or political affiliation” is viewpoint-based (even if one concludes that urging the deporting of illegal aliens is based on “race” or “ethnic heritage,” rather than based on their being illegally present in the U.S.). And once we conclude that the personalized license plate program involves private speech rather than government speech (see item 1 above), such viewpoint discrimination is unconstitutional.

 

from Latest – Reason.com https://ift.tt/3a6pTYq
via IFTTT

Utah Government Considering Canceling DEPORTM Personalized License Plate

The Salt Lake Tribune (Erin Alberty) reports:

[T]he Utah Tax Commission is considering recalling the license plate after complaints this week on social media.

“We’re not sure how it got through,” said Tammy Kikuchi, spokeswoman for the commission, which oversees the Utah Division of Motor Vehicles. “We’re really quite surprised.” … [O]fficials are reviewing the plate for compliance with provisions in state law that forbid vanity plates that “may carry connotations offensive to good taste and decency or that may be misleading” and express “contempt, ridicule or superiority of a race, religion, deity, ethnic heritage or political affiliation.”

“I don’t know why it was approved in 2015,” [Kikuchi] said, adding: “The current DMV director was not the director then.”

I think canceling the plate would violate the First Amendment:

[1.] Vanity plate contents are private speech, not government speech. Though Walker v. Sons of Confederate Veterans held that license plate designs are government speech, and the government can generally pick and choose which ones are allowed, vanity plates convey the owner’s own views. Courts are split on the matter, with a recent Maryland high court decision and a federal district court decision in Kentucky taking the view I articulate here, and an Indiana Supreme Court decision taking the opposite view. To quote the Maryland court’s analysis:

In [Walker v. Texas Div., Sons of Confederate Veterans (2015)], the U.S. Supreme Court determined that a Texas-issued specialty license plate displaying a Confederate flag constituted speech by the government, not speech by the Texas Division of the Sons of Confederate Veterans, the organization that sought the plate design…. The First Amendment protects, however, private speech on government property, with some limitations.

In the present case, … a message on a vanity plate … is private speech. Applying the Supreme Court’s first analytical factor [from Walker], historical usage, although license plates in general function historically as government IDs for vehicles, vanity plates display additionally “a personalized message with intrinsic meaning (sometimes clear, sometimes abstruse) that is independent of mere identification and specific to the owner.”  The unique, personalized messages communicated via vanity plates contrast with the generic, depersonalized speech conveyed by a specialty plate: “[m]any Maryland vehicles display identical specialty plates; only the registration numbers, which on a specialty plate have no intrinsic meaning and carry no message, will vary.”

Additionally, private citizens, not the State of Maryland, create and submit prospective vanity plate messages. “So, historically, vehicle owners have used vanity plates to communicate their own personal messages and the State has not used vanity plates to communicate any message at all. Unlike the license plate slogans that States use ‘to urge action, to promote tourism, and to tout local industries[,]’ vanity plates are personal to the vehicle owner, and are perceived as such.”

Turning to the factor of audience perception, “[t]he personal nature of a vanity plate message makes it unlikely that members of the public, upon seeing the vanity plate, will think the message comes from the State.”  Unlike the specialty plates at issue in Walker, vanity plates bear unique, personalized, user-created messages that cannot be attributed reasonably to the government.

The fact that this kind of speech takes place on government property—a license plate—is not transformative in this context of private speech into government speech.  Indeed, the Supreme Court’s public forum doctrine … exists only because of the need to analyze government restrictions of private speech that takes place on government property. Nor does the juxtaposition of private speech on government property transform the public perception of the speaker’s identity….

Considering the third factor of the government speech analysis, … the [government’s] statutory and regulatory authority to deny or rescind a vanity plate based on the content of its message does not rise to the level of “such tight control that the personalized messages become government speech.”  Maryland does not exercise “direct control” over the “alphanumeric pattern” displayed on vanity plates in the same or similar way that Texas controlled specialty plates.  In Texas, the State had “sole control” over the content of a specialty plate. With respect to vanity plates in Maryland, “vehicle owners, not the State, create the proposed messages and apply for them.”  Although the MVA retains discretion to deny a prospective vanity message, its authority to recall vanity plates issued erroneously suggests that the MVA’s control over vanity plates does not rise to the rigorous level required to transmogrify its regulatory approach into government speech.

Contrarily, a recent ruling by the Indiana Supreme Court held that vanity plates constitute government speech because “[l]icense plates have long been used for government purposes” such as vehicle identification, their messages are perceived to be communicated on behalf of the State, and the State “‘maintains direct control'” over the messages they display…. [W]e reject the [Indiana] court’s reasoning because vanity plates represent more than an extension by degree of the government speech found on regular license plates and specialty plates. Vanity plates are, instead, fundamentally different in kind from the aforementioned plate formats. Maryland has not communicated historically to the public with vanity messages. Observers of vanity plates understand reasonably that the messages come from vehicle owners. Moreover, the MVA does not exercise control over vanity plate messages to the extent that Walker informs us Texas controlled specialty plates.

[2.] Under the First Amendment precedents, the vanity plate program is either a so-called “nonpublic forum” or a “limited public forum,” so the government has some power to restrict speech there—but only in a viewpoint-based and reasonable way.

[3.] Matal v. Tam (the Slants case) held that excluding speech that “disparage[s] … or bring[s] … into contemp[t] or disrepute” any “persons, living or dead”—including speech perceived as racist—is viewpoint-based. Likewise, excluding speech that expresses “contempt, ridicule or superiority of a race, religion, deity, ethnic heritage or political affiliation” is viewpoint-based (even if one concludes that urging the deporting of illegal aliens is based on “race” or “ethnic heritage,” rather than based on their being illegally present in the U.S.). And once we conclude that the personalized license plate program involves private speech rather than government speech (see item 1 above), such viewpoint discrimination is unconstitutional.

 

from Latest – Reason.com https://ift.tt/3a6pTYq
via IFTTT

Socialists in Space

Many viewed the space race of the 1950s and ’60s as a battle between American free enterprise and Soviet communism. But the space program wasn’t exactly a free market endeavor.

The original purpose of the National Aeronautics and Space Administration (NASA) was simply to help extend the development of aviation technology into space—a federal intrusion into the economy, but not a huge one. But with the advent of the Apollo program in 1961, the agency expanded into a massive state enterprise with no room for markets. Because the space race was viewed as an urgent battle in a potentially existential war, cost was no object; the saying around the agency was “waste anything but time.” Because there was a mandate to get to the moon quickly, NASA did it in the most expensive possible way.

This unfortunately created the perception that it had been done in the only possible way. Spaceflight, according to the conventional wisdom, simply had to be accepted as an intrinsically exorbitant endeavor, something only the government of a superpower could do.

With the space shuttle, this mentality continued. NASA would develop and operate a single type of launch system, and it would use it to run a government monopoly responsible for getting all American payloads into space. It became almost impossible to raise funds for development of private rockets until the Challenger disaster in 1986 ended the use of the shuttle for commercial payloads. Fortunately, the Air Force had fought to preserve its own capabilities to get its satellites into space, so once it was no longer forced to use the shuttle for military missions it could continue with the Delta, Atlas, and Titan rockets that it had been relying on since the early ’60s.

Even with the advent of commercial launch vehicles in the early 21st century, even with the 2011 retirement of the shuttle, Congress resisted the idea of private enterprise in space. Once Mike Griffin took over NASA in 2005, George W. Bush’s 2004 Vision for Space Exploration quickly devolved from a focus on commercial launch providers to the subsequently canceled Constellation Program, with a focus on new and expensive government rockets that use shuttle components, owned and operated by the space agency. This happened because he knew that Congress would find anything else unacceptable.

Sure enough, when the Obama administration canceled that program, which was vastly over budget and falling behind schedule, space committees in both houses of Congress insisted that it be restored in the form of the Space Launch System and the Orion crew capsule. This was done on a bipartisan basis, because any fealty the Republicans had to private enterprise was vastly exceeded by their desire for NASA pork. Some, such as Sen. Richard Shelby (R–Ala.), derided the low-cost launch company SpaceX as “hobbyists in a garage.” The spectacle prompted one analyst, Polispace founder James Muncy, to declare that “Democrats don’t believe that capitalism works within the atmosphere, and Republicans don’t seem to believe that it works above it.”

Despite all this, we are now on the verge of getting affordable private access to orbit for large masses of payload and people, regardless of how much money Congress insists on wasting on NASA rockets. After years of delay, both Virgin Galactic and Blue Origin are expected to finally start offering suborbital flights to paying passengers in 2020. More important, both Boeing and SpaceX will be delivering crews to the International Space Station in the coming months, finally ending America’s dependence on Vladimir Putin’s Russia for space station access, which began when the shuttle was retired eight years ago.

Most important of all, two versions of an all-new fully reusable spaceship are being assembled by SpaceX in Texas and Florida; their designs will eventually converge into a single one combining the best features of each. On September 28 at the Texas site, the company’s founder, Elon Musk, described a vehicle almost 400 feet tall that would deliver 100 people to various destinations in space, with the initial capability of achieving orbit within six months, at very low marginal cost.

The work is moving at a pace unseen since the 1960s, and it could result in a true spaceflight revolution, driving the cost of orbital access down to a few tens of dollars per kilogram of payload, rather than the thousands per kilogram it’s been since the dawn of the Space Age. That would open vast new off-planet opportunities for humanity.

It will also bring to the fore a lot of ideological issues that up to now were just theoretical. Opening a frontier is hard. It’s even harder when you’re a socialist.

Most American schoolchildren are taught about the first Thanksgiving, when the Pilgrims, with the help of the indigenous people, celebrated their first successful harvest. The part of the story that often goes untold is what happened before that success—the initial failure that led to the loss of so many pioneers in the first years of the colony. It was not a result of the new environment, so different from that of the long-settled England from which the immigrants had come. It was a failure of socialism.

When the Plymouth Company adopted the settlement’s initial economic rules, it stated that “all profits & benefits that are got by trade, traffic, trucking, working, fishing, or any other means” were to be placed in the common stock of the colony, and that “all such persons as are of this colony, are to have their meat, drink, apparel, and all provisions out of the common stock.” In other words, to use a phrase from a subsequent century: From each according to his ability, to each according to his needs.

About half the settlement died of starvation in the first winter. It was only after the colony changed its rules to allow people to keep the product of their own efforts, for their consumption or for sale, that they finally had the first bountiful harvest. This wasn’t a unique event; many of the early English settlements, including Jamestown a few years earlier, had to learn the lesson the hard way.

What are the lessons of this experience for our next frontier, the harshest one to date? Some view settlements in space as a new venue for liberty and social experimentation. But others, including the famously libertarian science fiction author Robert Heinlein, have argued that this time, the environment really is different in important ways: that the lack of gravity, of natural atmosphere, and of easily available water and food—not to mention a radiation environment for which we are not adapted—will introduce dangers that demand collective controls. Space colonists will be critically dependent on new technologies, just one mistake or failure or act of sabotage away from disaster for an entire settlement. It would be too dangerous, we’re told, to permit the kinds of freedoms that people could have had on the American western frontier. The resources needed to sustain space settlements, these critics say, will require collective, not individual efforts.

But as the technologies for living in space continue to develop, they will in fact offer more opportunities for independent living and new forms of social experimentation, including more libertarian lifestyles. For instance, use of extraterrestrial materials, such as lunar regolith (or moon dirt, for the layman), will allow construction of larger and much more robust structures to protect against vacuum breaches and radiation. Additive manufacturing using such resources will enable smaller groups to be independent in terms of equipment crucial to survival. At some point, food may be manufactured, rather than farmed, on a usefully small scale. Ultimately, of course, terraforming of Earth’s moon or Mars (or even other bodies, such as other moons) could provide the same level of safety in volume that we currently have on Earth itself.

Collectivism isn’t needed in outer space, but plenty of people will try to legally compel it there anyway. Princeton space historian Haris Durrani spoke for them when he claimed recently in The Nation that the 1967 Outer Space Treaty (full name: the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies) “famously opened by declaring space ‘the province of mankind.'” The treaty, which repeatedly uses the phrase “exploration and use,” in fact says that space activities “are the province of all mankind.” In any case, Durrani goes on to complain that the treaty still does not provide “strong collective property rights” (emphasis added).

The space collectivists, recognizing this “problem,” a decade later came up with the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, a.k.a. the Moon Agreement, which postulates a “regime” that ensures the solar system’s resources are used in an “equitable” way. It also outlaws private property on extraterrestrial worlds—a violation of Article 17 of the Universal Declaration of Human Rights. For these reasons, among others, the U.S. government has refused to recognize the Moon Agreement as one of the U.N. space treaties. The current administration has repeatedly stated that space is not in fact a commons, and many (including me) have argued that the Moon Agreement’s language is fundamentally incompatible with the wording of the Outer Space Treaty and that no one should be a party to both treaties, though all who have acceded to the Moon Agreement are.

The United States became wealthy not through collectivism but through free markets, including secure contract and property rights under traditional English common law. Some have argued that the combination of Article II of the Outer Space Treaty, which forbids claims of national sovereignty, and Article VI, which requires “continuing supervision” of persons by the states that are parties to the treaty, make it legally impossible to establish those rights in space. But without them, it is extremely unlikely that space will be developed, or that the solar system’s rich resources will be harnessed to improve life on Earth and create abundant new life on other worlds.

Some will consider this a feature, not a bug. There are people both within and outside the space community who see space as, at best, a domain only for pure science—and there are people who view humanity as a curse on the planet that should not be allowed to spread beyond it.

Fortunately, there’s a strong case that this interpretation of Articles II and VI is mistaken, and that in fact property rights, whether for homesteading or for harvesting resources, can be allowed under the Outer Space Treaty. Multilateral agreements with like-minded nations could obviate the notion that doing so would be a claim of “national” sovereignty. Several figures in the space community, including me, are now working on a project to develop such agreements, with the U.S. State Department and National Space Council on board.

Space is too important to be left to government monopolies, and while space settlements shouldn’t require English common law, they must be allowed to embrace it. Socialism, like other ideologies, will be permitted off planet. But socialist space colonies will doubtless languish, as they do on Earth. It is those societies that allow individual liberty and free enterprise that will flourish, filling the solar system, and perhaps eventually the galaxy, with life, consciousness, laughter, and love.

from Latest – Reason.com https://ift.tt/35OwgMq
via IFTTT