Free Speech and Political Conventions

Andrew Napolitano*

Andrew Napolitano

Andrew Napolitano

This summer, we have all witnessed the heavy hand of government intervening in the freedom of speech, as the behavior of the Secret Service at both the Republican convention in Cleveland and the Democratic convention in Philadelphia was troubling and unconstitutional.

Though the First Amendment was originally written only to restrain Congress ("Congress shall make no law ... abridging the freedom of speech"), it is now uniformly interpreted to restrict all government in America from abridging the freedom of speech.

The reason this freedom is referred to as "the" freedom of speech is to reflect the belief of the Framers that the right to speak freely is pre-political. Stated differently, the freedom of speech is an integral aspect of our humanity. The government does not grant the freedom of speech; it is prohibited from interfering with it.

This is known as a negative right, in the sense that government is negated from interfering with a personal natural right. A natural right is one whose exercise does not require a government permission slip. Speech is the classic example.

The reasons for this are numerous, and not the least of them are our natural inclinations to think as we wish and to say what we think in pursuit of happiness and personal fulfillment. The practical reasons for this right are the needs of an informed electorate to challenge the government and demand transparency and accountability.

How did this play out during the hot weeks in Cleveland and Philadelphia? Not well.

Though the political parties are private entities with their own rules, they have invited their members and supporters to these quadrennial conventions for the purpose of engaging in public political conversations.

Yet if the Republicans wanted only pro-Trump sentiments to be expressed in the hall in Cleveland and if the Democrats wanted only pro-Clinton sentiments to be expressed in the hall in Philadelphia, since neither entity is the government, both are free to abridge the freedom of speech without legal consequences.

The consequences of such abridgments would presumably be political; those whose speech is silenced and those who oppose silencing public political speech would cast their votes against the silencers.

Yet this summer, the heavy hand of government was involved in silencing speech.

Here is the back story.

Because both Donald Trump and Hillary Clinton are entitled to Secret Service protection by virtue of a federal statute, the Secret Service either offered or demanded that it be the lead law enforcement agency providing general security -- not just to Trump and Clinton but for everyone -- at the conventions. In both cities, local officials went along with this.

The freedom of speech issues arose when the leadership of both conventions got so cozy with the Secret Service that they began using the federal agency as if it were private security, and they did so in such a manner as to preclude judicial intervention in aid of the freedom of speech.

Thus, when the Republican leadership wanted to quell a "Never Trump" boomlet on the convention floor, it had the Secret Service remove all reporters and producers -- including some of my Fox News colleagues -- from the floor. And when the Democratic leadership wanted to silence a pro-Bernie Sanders onslaught on the convention floor, it had the Secret Service confiscate Sanders placards from delegates on the floor.

The government removal of the press by command of the Republicans and the government removal of Sanders placards by command of the Democrats constitute not only an unheard-of commandeering of the government's coercive powers for a private purpose but also the government's abridging the freedom of speech. And all this was done quickly and without notice -- and without an opportunity for redress to the courts.

The first duty of government is to preserve life, liberty and property. It is a strange and dangerous government that stifles freedom for some fleeting private purpose. It is equally strange that a freedom-loving people would tolerate this.

The whole purpose of the First Amendment and its underlying values is to encourage open, wide, robust, unbridled debate about the policies and the personnel of the government. The prevailing judicial interpretations of these values quite properly keep the government out of the business of assessing the value and propriety of public political speech.

The First Amendment demands that the test for acceptance or rejection of speech in the marketplace of ideas be made by individuals -- uninfluenced, undeterred and unmolested by the government.

When the government stifles free choice in an area such as speech, it is no longer the people's servant. It has become their master. Do you know anyone outside the government who wants that?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Are Voter ID Laws Racist?

Richard Epstein*

Richard Epstein

Richard Epstein

There are few things as controversial in American political life as voting rights. The issue surged to the fore this past week in Veasey v. Abbott when the Fifth Circuit, by a 9-6 vote, delayed the enforcement of Texas Law SB 14. This law limited the forms of photo identification that could be used when registering to vote to state driver’s licenses, U.S. passports, military photo IDs, concealed weapon permits, and U.S citizenship certificates with photographs. Although the law provided for some exceptions for poor and disabled persons, it has been attacked as the most restrictive voting rights law in the United States.

A variety of plaintiffs mounted both a constitutional and a statutory challenge to the law—the former under the Equal Protection Clause of the Fourteenth Amendment, and the latter under Section 2 of the Voting Rights Act, as amended in 1982. The plaintiffs’ burdens under the two provisions are distinct. It has long been accepted under the 1976 Supreme Court decision in Washington v. Davis that an equal protection challenge to any law cannot rest simply on proof that the law has a disparate impact by race, but rather, must show that there was some intention on the part of the lawmakers to abridge those rights on the grounds of race.

In contrast, the 1982 Amendments to the 1965 Voting Rights Act gravitated toward a stricter standard by prohibiting any law “which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” That standard is then further refined in ways calculated to invite litigation, taking into account the possibility that the “political process is not equally open to participation by members of a protected class”—code for minority members, who have “less opportunity to participate in the political process.”

The issue of the constitutionality of photo IDs arose in 2008 in Crawford v. Marion County Election Board, where the Supreme Court, by a 6-3 vote, upheld an Indiana ID law that required voters to show either state or federal picture ID by denying that such a requirement unduly infringed on anyone’s right to vote. The Court only looked at the constitutional challenge and did not consider the 1982 Voting Rights Amendments, presumably because none of the parties thought it could support a claim. Instead, Justice Stevens wrote that the law was neutral on its face, and had a permissible justification of preventing voter fraud that could upset the results of individual elections and undermine public confidence in the electoral process.

One way to look at Crawford is that preventing voter fraud is important enough to justify the small burden on individual citizens of showing photo ID—a burden no greater than that faced for getting on an airplane. The record makes this view attractive. In Texas, the required IDs were held by over 95% of the population, but among the registered voters, “Hispanic and Black voters were respectively 195% and 305% more likely than their Anglo peers to lack SB 14 ID.” No one claimed this differential rate of registration was attributable to any form of state discrimination. Texas did not charge for the required ID, though there was evidence in the record that some individual plaintiffs had difficulty in navigating the system. It was also agreed that the Texas law passed in 2011 only after tremendous political struggle on a straight party-line vote, which reflected the dominance of Republicans in both houses of the Texas legislature.

There is little question that the Fifth Circuit could have easily dismissed the entire case by a respectful citation to Crawford. But instead, it took out the heavy artillery to upend the Texas statute. If Veasey survives, it will be exceedingly difficult for any photo ID law to pass muster in the United States, at least in the absence of heavily documented instances of fraud, and perhaps not even then.

Veasey goes off the rails with its uneven treatment of the fraud question. The debate over the frequency of individual fraud in various elections has been much mooted and the received wisdom is that the fraud risk is overrated in most cases. But the hard question is by exactly how much. The Veasey majority took an overly dismissive view on the question when it treated the risk as minimal, given that there were “only two convictions for in-person voter impersonation fraud out of 20 million votes cast” before the law was passed. But that result is also consistent with the proposition that significant fraud—including the organized fraud-rings found elsewhere—is going undetected by the criminal system, and a simple ID law is needed precisely because the criminal system is so weak. “Landslide Lyndon” Johnson’s victory in the 1948 senatorial election was, after all, rife with fraud. If it is permissible to refer to the inexcusable racism of 1930s Texas with respect to voting, why not take a similarly long view on fraud?

Once the fraud issue was downplayed, the majority in Veasey tackled both the constitutional and the statutory claims. On the constitutional issue, the inescapable difficulty with any intent test is that professional politicians on both sides of the aisle know which party is likely to benefit from any given enactment—which explains why the Democrats stonewalled and the Republicans pushed SB 14 over multiple legislative sessions. But if the simple knowledge of a disparate impact were sufficient to establish the intent requirement in an equal protection case, the jig is over: it is always there, and it always cuts in favor of the Democrats whose own political machinations are outside the purview of judicial review because they are acting on behalf of some protected class. Hence it takes more to establish the intent requirement, and it is here that the majority badly flubs the issue.

Let’s start with the simple point that no one found any statement by any person that indicated an invidious racial motive. To the majority, however, even this clean record was suspect, because it was quite happy to insist, without any documentation, on “the sad truth that racism continues to exist in our modern American society despite years of laws designed to eradicate it.” If you start with that presumption, you look for ways to confirm it. At this point, the majority first cautions against using evidence of misdeeds long ago to prove the charges, but nonetheless refers back to admitted cases of racial injustice, none of which are more recent than 1975. It also thinks it is permissible to infer racist sentiments from official opposition to the Voting Rights Act, which only hampers the ability of politicians to criticize the existing law, one that in my view has long been overly-intrusive into the electoral process.

There was clearly not enough in this disconnected set of dribs and drabs to sink the law, so the Circuit Court then mistakenly remanded the case for further findings to see if this portion of the case could be bulked up by circumstantial evidence gleaned by scrutinizing the long political battle. The simple point here is that every reform undertaken today is reviewed in light of sins committed decades ago. It is easier to think back to the original sins of America’s racist past than to trumpet the manifest progress on race relations that has only come undone in the last several years of heightened racial animosity.

The Fifth Circuit majority engages in equally dubious tactics in finding that the laws in question work a disparate harm on minority individuals. Once again, the heavy weight of the past is said to block equal participation in the political process, without any explanation of the major changes in legislation and voting behaviors since 1965. The 1982 Senate Report on the Voting Rights Amendments places a lot of emphasis on the various electoral devices of recent memory that were used to disenfranchise minority voters: the use of slates and large districts, for example. But the only issue that resonates today is the insistence that the law take into account “the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process."

At this point, it is easy to draw up a story about how the extra burdens of the voter ID laws fall disproportionately on minority persons, given that persistent differences by race in education, employment, and health are the norm today (in part because of the misguided progressive policies that hamper charter school education, place minimum wage and union barriers against minority employment, and block the entry of low-class corporate healthcare providers in minority neighborhoods). And it is easier still to select individual instances where the burdens of compliance are higher than the norm. But the central point is that nothing in the majority opinion stated, let alone demonstrated, that minorities who suffer from educational, employment, or health disadvantages find it any more difficult than white individuals to get the appropriate IDs. The sole objection was that there were more minority individuals in this vulnerable group, so that the disparate impact claim is always made out once the standard demographic information is trotted out.  By this dubious logic, it is possible to order the removal of existing safeguards against fraud because they too have a disparate impact.

It follows that, in light of the double-barreled attack mounted in Veasey, it will be exceedingly difficult to sustain any changes in voter ID laws. This is the highly likely result of any decision that poo-poos the fraud issue, and then relies heavily on past history to taint any efforts to tighten up ID requirements for elections. The long-term consequences of this decision are likely to prove unfortunate. For one thing, much progress could be made in voting rights by simply redoubling registration drives in poor neighborhoods. But instead, the litigation works in the other direction by encouraging people not to get the appropriate IDs if weaker forms of securing the ballot are available. Indeed, the occurrence of fraud is most likely in marginal neighborhoods where white, black, and Latino individuals may well have the weakest attachment to the overall political system.

The decision in Veasey is a careless condemnation of the current system on racist grounds. It may well be that the Texas system is far from ideal, and it would be foolish for any outsider to be overconfident that the ideal set of precautions has been adopted in this case. But based on the weak evidence presented here, it is surely a mistake for a majority of the Fifth Circuit to block the law within months of a presidential election. The Supreme Court should stay Veasey and review the outcome in light of its own now denigrated decision in Crawfold. The odds are 4-4 that this will not happen.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

What if the Fix Was In?

Andrew Napolitano*

Andrew Napolitano

Andrew Napolitano

What if the folks who run the Department of Political Justice recently were told that the republic would suffer if Hillary Clinton were indicted for espionage because Donald Trump might succeed Barack Obama in the presidency? What if espionage is the failure to safeguard state secrets and the evidence that Clinton failed to safeguard them is unambiguous and overwhelming?

What if President Obama never really liked his former rival whom he appointed as his secretary of state? What if he had no real interest in seeing her succeed him because he and his wife simply could never trust her?

What if, when Clinton suggested to the president that the U.S. wage a secret undeclared war against Libya, the president went along with it as a no-lose proposition? What if he assumed that if her secret war succeeded he’d get the credit and if her secret war failed she would get the blame?

What if the means of fighting the secret war consisted of employing intelligence assets rather than the U.S. military? What if Clinton concocted that idea because the use of the military requires a public reporting to the entire Congress but the use of intelligence assets requires only a secret reporting to a dozen members of Congress?

What if Clinton expanded her war by permitting American and foreign arms dealers to bypass the NATO arms embargo on Libya by selling heavy-duty, military-grade arms directly to militias in Libya? What if this was Clinton’s dream scenario -- an apparent civil war in Libya in which the victorious side was secretly armed by the U.S., with democracy brought to the country and Clinton the architect of it all?

What if the CIA warned Clinton that this would backfire? What if the CIA told her that she was arming not pro-Western militias but anti-American terrorist groups? What if she rejected all that advice? What if providing material assistance to terrorist groups is a felony? What if the Department of Political Justice actually obtained an indictment of an American arms dealer for going along with Clinton’s schemes?

What if Clinton’s secret war in Libya was a disaster? What if she succeeded in toppling the Libyan leader, Col. Moammar Gadhafi, only to have him replaced by feuding warlords who control anti-Western terrorist groups that not only failed to produce democracy but instead produced destruction, chaos, terror, torture and death?

What if Clinton managed her Libyan disaster using a non-secure email system even though she regularly sent and received state secrets? What if she sent many emails containing state secrets about her Libyan war to her friend Sid Blumenthal? What if Blumenthal had been turned down for a State Department job by the president himself?

What if Blumenthal did not have a government security clearance to receive lawfully any state secrets? What if Clinton knew that? What if the FBI found that Blumenthal’s emails had been hacked by intelligence services of foreign governments that are hostile to America?

What if there were terrible secrets that Clinton wanted to keep from the public and for that reason she used private servers and non-government-issued mobile devices? What if those terrible secrets involved her enabling the unlawful behavior of her husband and his shoddy, unlawful foundation? What if Mrs. Clinton made decisions as secretary of state that were intended to enrich her husband and herself and she needed to keep emails about those decisions away from the public?

What if the president recognized all this and authorized the FBI to conduct criminal investigations of Mrs. Clinton?

What if, after the ascendancy of Donald Trump in the Republican presidential primaries, the president warmed up to his former rival? What if Trump so got under the president’s skin that it drove him to embrace Clinton as his chosen successor and as the one Democrat who could prevent a Trump presidency?

What if the president sent word to the Department of Political Justice to exonerate Clinton no matter what evidence was found against her? What if, in response to that political interference, the FBI investigation of her failure to safeguard state secrets and her corruption took irregular turns?

What if FBI management began to intimidate FBI agents who had the goods on her? What if FBI management forced agents to sign highly irregular agreements governing what the agents can tell anyone when it comes to what they learned about Clinton?

What if the Department of Political Justice never subpoenaed anything from Clinton? What if it never convened a grand jury to seek and hear evidence against her? What if the FBI requires a grand jury to subpoena documents and tangible things? What if it is highly irregular for a major FBI criminal investigation to be undertaken without a grand jury?

What if the attorney general was involved in a publicity stunt with Clinton’s husband and then used that stunt as an excuse to remove herself and her top aides from making decisions in the case? What if this was a sham, done so as to make it appear that FBI professionals -- rather than someone politically motivated, such as the president or the attorney general -- were calling the shots in the case?

What if Hillary Clinton has engaged in espionage and public corruption and FBI agents know that she has? What if they have evidence to prove it but they could not present anything to a grand jury because President Obama wants Clinton, and not Donald Trump, to succeed him in office? What if this blatant political interference with a criminal investigation is itself a crime? What if, midstream in this criminal investigation, the fix was put in?

What do we do about it?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Religious Liberty Under Siege in Mississippi

Richard Epstein*

Richard Epstein

Richard Epstein

Last month, Judge Carlton W. Reeves of the Northern District of Mississippi handed down an extraordinarily misguided decision in Barber v. Bryant by issuing a preliminary injunction against House Bill 1523, Mississippi’s newly passed religious liberty law, just minutes before it was to go into effect. The court found that House Bill 1523 likely denied the plaintiffs—a diverse group of supporters of same-sex marriage—their rights under Fourteenth Amendment’s Equal Protection Clause, and, furthermore, established preferred religious beliefs, violating the First Amendment’s Establishment Clause. Phil Bryant, the governor of Mississippi, has filed papers in the Court of Appeals to dissolve that temporary injunction. State Attorney General Jim Hood has declined to join in that defense of the Mississippi law. As someone who gave some brief advice and encouragement to Mississippi’s appellate lawyers, I think that their motion should be granted, given the major points of principle that it raises.

To put matters in context, HB 1523 was the latest effort to provide explicit protection of religious liberty and moral conscience for those individuals who are opposed to same-sex marriage. At no point does the legislation limit the right of any person to participate in a same-sex marriage, which would be an obvious nonstarter given Obergefell v. Hodges, a highly dubious Supreme Court decision, which held that the Equal Protection Clause of the Fourteenth Amendment guaranteed that right to all persons. House Bill 1523 does not seek to dislodge or compromise that decision. Indeed, it would have been dead on arrival if it had attempted any such maneuver. But as is often the case, no one quite understands the scope of a particular constitutional right until its correlative duties are accurately specified.

The correct reading of Obergefell comes in two parts. First, no private person can seek to block the performance of a same-sex marriage. Second, some public official must be prepared to solemnize those marriages, so that they have the full force and effect as traditional marriages. What the decision in Obergefell did not do, and indeed disclaimed, was the notion that people who are opposed to same-sex marriages had to participate in their validation. Even public officials can escape that duty under House Bill 1523 so long as alternative arrangements are made to ensure that “the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.” House Bill 1523 thus represents the kind of sensible accommodation that has long been the hallmark of religious liberty.

The explanation for this distinction is not hard to find. When any state bans same-sex marriage, it is using its monopoly power to block the consensual activities of private persons. They have no place else to go once that ban is in effect. The two conditions above neutralize that blocking power. But that mission is fully accomplished without conscripting other individuals to participate in these relationships, or indeed any other arrangements. The correlative duty commanded by Obergefell is noninterference; it is not support, participation, or approval. The Mississippi statute tries to cement that understanding into law by enacting three related provisions.

First, House Bill 1523 protects only those individuals with “sincerely held religious beliefs or moral conviction” that marriage is properly confined to one man and one woman, that sexual relationships should be limited to such marriages, and that the terms male and female refer to “an individual’s immutable biological sex as objectively determined by anatomy and genetics.” The protection applies to participation in religious services, but also to all employment-related and housing activities subject to the same caveat. The wording was chosen in part to make it clear that no explicit preferences were given to religious persons or groups on this score, in order to forestall the charge of favoritism. But there is little doubt that the religious element was the primary motivation for the provision.

Judge Reeves struck down the Mississippi statute because he did not grasp the fundamental distinction between forcing others to yield to your beliefs and just asking to be left alone. His confusion is evident from his opening salvo that quotes the Supreme Court in Epperson v. Arkansas (1968) as saying that the Establishment Clause of the First Amendment means that the state “may not aid, foster, or promote one religion or religious theory against another.” He then uses McCreary County v. American Civil Liberties Union (2005) to argue that it violates the Establishment Clause—“Congress shall make no law respecting an establishment of religion”—“when the government acts with the ostensible and predominant purpose of advancing religion.”

At no point, however, does Judge Reeves attempt to put either of these broad generalities into context. And context matters. The words in Epperson were directed to an Arkansas law that prohibited the teaching of evolution in public schools—a clear instance of a state-compelled law that binds all persons inside the legal system. No one could describe this as a situation in which private parties sought to run their own lives and businesses free of government interference. Similarly, McCreary County struck down two county resolutions that announced that the Ten Commandments were Kentucky’s “precedent legal code,” and authorized extensive religious exhibits on public property intended to extol its virtues. There is no similar commitment of public resources in House Bill 1523. It is practically legal malpractice to rip out of context words that were rightly intended to knock down state coercion for religion and the state subsidy of religion while invalidating a statute whose whole purpose was to insulate private parties from any form of public coercion.

One irony in this case is that Judge Reeves noted, with apparent approval, that Mississippi had passed its own Religious Freedom Restoration Act. Mississippi’s law, in line with the federal version, provides that the state may not substantially burden a person’s exercise of religion, unless it does so to further a compelling governmental issue by the narrowest form possible. This law has a broader scope than House Bill 1523, but its protection is not absolute, although it may be when these two conditions are satisfied. When the original federal statute was passed in 1993, the phrase “compelling state interest” had a reasonably clear meaning, according to which some powerful necessity had to be demonstrated to override the original constitutional right. The Mississippi statute refers to “a government interest of the highest magnitude.” Traditionally, this language meant that the state could curb religious freedom in order to prevent riots in public places. But in line with the general jurisprudence of the time, such instances were few and far between.

Not any more, one can at least argue. More concretely, the argument has been commonly made that the elimination of discrimination in all areas of American life counts as a compelling state interest, of course of the highest magnitude. Just that argument was put forward successfully in Elane’s Photography v. Willock (2014), where the New Mexico Supreme Court held that its state’s Human Rights Act prevented all private discrimination on grounds of sexual orientation. Thus when Elane’s refused to photograph a commitment ceremony for a lesbian couple, at a time when same-sex marriage was not legal in New Mexico, its appeal to the First Amendment protections of religion and speech fell on deaf judicial ears, in a case that the United States Supreme Court denied certiorari. It is therefore reasonable for the defenders of religious liberty to think that the potential evisceration of RFRA required the sterner protection of House Bill 1523.

In this case, they are right. Because there is only this narrow focus on religious and moral convictions, it is virtually impossible to think of any situation where the exercise of that right would in fact cause actionable dislocations to other people. The word “actionable” has to be inserted because otherwise any distaste for the actions of others, e.g. flag burning, becomes a harm that must be put into the scales, which means that every refusal to deal necessarily hurts the individuals who were rejected and their sympathizers.

Nonetheless, this overbroad account of harm resonated with Judge Reeves, who noted that the various plaintiffs could suffer some irreparable harm if the injunction in question were delayed. But at this point, a cold look at the relative tradeoffs explains why these alleged harms should be disregarded. On the one side, the targeted individuals may face the choice of having to go out of business to protect their religious or moral conscience. This is no better than the choice between your money and your life. But just what is the harm on the other side? There are thousands of employers and landlords, and dozens of vendors that are eager to cater to the interests of gay and lesbian couples. Indeed, it is highly unlikely that they would (as is their right) hire a photographer or caterer who was unsympathetic to their views. So how do individuals with many choices suffer from irreparable harm when persons who have no choice do not? The point should be as clear to the opponents of religious liberty as to its defenders.

Given this current impasse, it is critical to rethink the basic legal rules on private discrimination that set the stage for Barber v. Bryant. House Bill 1523 was drafted in ways in which the right to refuse service was tied to religious and moral convictions. Otherwise, a broader right would run into a collision course with one of the most venerable parts of the Civil Rights Act of 1964, the public accommodation provisions embodied in Title II. Historically, Title II had two potent justifications. The first is that it was a necessary corrective against massive abuses of state power under Jim Crow. Thankfully, that risk is gone today. The other justification was that the traditional common law view—still good today—that any common carrier or public utility, by virtue of holding a monopoly position, was duty-bound to take all customers on reasonable and nondiscriminatory terms. When ordinary people have no where else to go for power, water, or transportation, they are entitled to get these services at reasonable rates. The rule covered all cases of racial discrimination, but it was not limited to it.

The implicit drawback of this position was that there was no duty to serve anyone in a competitive industry, precisely because disappointed customers had a full range of alternatives to which they could turn. The common law rightly held that refusals to deal in competitive industries counted as basic liberties. In the progressive run-up to the New Deal, the argument was put forward that every refusal to deal in economic matters was an exercise of coercion—the kind of coercion that the state had a compelling interest to stop. That misguided view marked the end of economic liberties in all cases, and led to the passage of laws like the 1935 National Labor Relations Act, which forced collective bargaining in otherwise competitive industries.

The battle over religious liberties is a novel extension of the older war in one of the few bastions of individual liberty. Until recently, the older view on religious liberties exempted private religious beliefs from this hopelessly broad definition of coercion. But with the new progressive resurgence, that protected liberty shrinks while the domain of government power expands. It is a genuine intellectual tragedy that the people who speak on behalf of religious liberties—including the plaintiffs in Barber, many of whom represent gay, lesbian, and transgender people—can be so alert to their own claims of personal liberty, and yet so insensitive and indifferent to the claims of others.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Hillary Clinton and Personal Honesty

Andrew Napolitano*

Andrew Napolitano

Andrew Napolitano

When FBI Director James Comey publicly revealed his recommendation to the Department of Justice last week that former Secretary of State Hillary Clinton not be prosecuted for espionage, he unleashed a firestorm of criticism from those who believe that Clinton was judged by different standards from those used to judge others when deciding whether to bring a case to a grand jury.

The FBI investigation had a bizarre ending to it. FBI recommendations are never made public as this one was. Attorney General Loretta Lynch had been compromised by her politically disastrous but legally consequential meeting out of the view of the media with Bill Clinton just one week before Comey's announcement. Whatever they discussed, the overwhelming public impression was such that Lynch removed herself and her senior aides from the case, effectively leaving the FBI to have the final say. This is unheard of in the post-Hoover FBI.

The Comey announcement itself gave two reasons for recommending against indictment. One was that "no reasonable prosecutor" would take the case. That is not a judgment the FBI gets paid to make. The FBI's job is to gather, present and evaluate facts and evidence, not predict what prosecutors might do with it. The other stated reason for recommending against indictment was that though Clinton may have been "extremely careless" in handling state secrets, she was not "grossly negligent," which is the standard required by the espionage statute.

Yet Comey also acknowledged that Clinton sent state secrets to nongovernmental colleagues who lacked national security clearances, that those people were hacked by hostile intelligence services and that she used her numerous non-secure mobile devices recklessly while inside the territorial borders of those hostile governments. If all that is somehow extremely careless but not grossly negligent, then many who have done far less than Clinton -- and have been prosecuted and convicted -- were wrongly prosecuted.

Since Comey's announcement last week, several new factors have come to light. One is that the DOJ never presented any evidence to a grand jury. It never sought subpoenas from a grand jury. This is unheard of in major criminal investigations because the FBI alone has no subpoena power and needs a grand jury to issue subpoenas for it.

The absence of a sitting grand jury also makes one wonder about the circumstances under which and the purpose for which the DOJ obtained immunity for Bryan Pagliano, Clinton's internet technology adviser. She paid him $5,000 to migrate her public and her secret State Department email streams from the government's secure servers to her own non-secure servers. Immunity, which is essentially the pre-indictment permanent forgiveness of criminal behavior, cannot be given lightly and can only be given in return for testimony -- usually to a grand jury or a trial jury. Strangely, that was not the case here.

Nevertheless, Clinton's persistent problems with personal honesty have brought her face to face with three more criminal investigations. One is for public corruption. The second is for perjury. And the third is for misleading Congress.

The public corruption investigation has been underway for a few months. The allegations are that she exercised the powers of her office as secretary of state to enrich her husband and herself. The evidence here is ample. There are dozens of documented instances in which foreign governments and individuals received beneficial treatment from her State Department -- usually exemptions from compliance with American laws or regulations -- and then collectively gave hundreds of millions of dollars to the Clinton Foundation at a time when it was not a registered lawful charity.

The second investigation Clinton faces is for perjury. This arises out of a Freedom of Information Act civil lawsuit during which she swore in writing and under oath, citing the phrase "under penalty of perjury," that she surrendered all of her work-related emails to the State Department. When she left the State Department, she effectively took all of her emails with her. Then, when the FOIA cases began, she returned about half of what she had taken, claiming that the other half was personal.

The FBI found that she failed to return thousands of work-related emails, some of which she and her lawyers attempted to destroy and some of which they succeeded in destroying. Who ordered the destruction?

Finally, Clinton will most likely be confronted with charges of misleading Congress. Misleading Congress consists of intentionally creating a false impression in response to material congressional questions. She did this when she denied to the House Select Committee on Benghazi that she had sent or received emails via her home servers that contained state secrets.

The FBI found 110 emails in that category, at least two dozen of which were at the highest level of protection that the government accords its secrets. She also told that same committee that she had surrendered all her work-related emails to the State Department.

Former New York Yankees pitching great Roger Clemens was tried twice (after a trial that ended with a hung jury, he was ultimately acquitted) for misleading Congress when he was forced to speak to a House committee about the contents of his blood and urine as a baseball player. Clinton has misled Congress about her lawful obligations as secretary of state, and she skates free.

Back in the Whitewater days, when the propensity of both Bill and Hillary Clinton to lie routinely and naturally first became apparent to the media and the public, the late, great New York Times columnist William Safire referred to Mrs. Clinton by a moniker that enraged her husband. He became so fearful of the truth and so furious with Safire that he publicly threatened to punch Safire in the nose.

Safire called Hillary Clinton a congenital liar. He was right. That was 20 years ago. Some people never change.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Hasty Judgment On “Institutional Racism”

Richard Epstein*

Richard Epstein

Richard Epstein

Over the past few dizzying days, the nation has been shaken by the killings of Alton Sterling in Baton Rouge, Louisiana, Philando Castile in St. Paul, Minnesota, and the five police officers mercilessly gunned down in Dallas, Texas. These events have intensified a bitter debate about whether institutional racism is endemic in police forces across the nation. Sterling and Castile, some say, were murdered in cold blood simply because they were black. But individual cases are unique, and often are notoriously difficult to judge, even with the benefit of hindsight.

Take the case of Sterling. He was surely resisting arrest, but the video shows him being subdued by two police officers when one pulled out a gun from his holster and shot him several times in the head. It is hard to imagine any earlier events that could have justified this action. To be sure, we should hear from the officers before making a final judgment, but the public outrage in this case seems well justified.

But the situation with Castile is draped in obscurity. The video taken by Castile’s girlfriend Diamond Reynolds only picked up the action after Castile was shot four times by Officer Jeronimo Yanez. According to Reynolds, Castile had already told the police he carried a licensed concealed weapon as he was reaching for his license. By her account, he was doing everything possible to avoid engaging in confrontation with his girlfriend at his side and a four-year child sitting in the back seat. Those facts paint a picture of excessive force used by a police officer in an incident with clear racial overtones. Indeed, just that judgment was reached by Minnesota Governor Mark Drayton who, obviously shell-shocked by the event, mused out loud: "Would this have happened if those passengers, the driver and the passengers, were white? I don't think it would have. So I'm forced to confront, and I think all of us in Minnesota are forced to confront, that this kind of racism exists."

This verdict, though, may not be entirely fair. The facts are still coming in and at least one recent account insists that Castile’s automobile was not stopped for a broken tail light, but because Castile matched the picture of a suspect involved in a recent robbery in a nearby convenience store, meaning the stop was connected to a past felony. There is also some evidence that a handgun that matched the kind used in the convenience store was found near Castile’s hand, leaving the question of why, if Castile were reaching for his license, the gun was at his side. The audio also reveals the officers telling Reynolds to keep her hands up, which makes good sense if in fact the gun was in easy reach for her. Indeed, it is far from clear whether she knew that the gun was there when she made her commentary.

There will doubtless be more iterations in the evidence before the case winds down. But the lesson is clear. Everyone should be very careful about making judgments about individual homicides before the evidence is fully in.

We have been here before. Today, the narrative about Ferguson, Missouri, is that Officer Darren Wilson gunned down Michael Brown, an unarmed black man. But that indictment misses the true story. An exhaustive Department of Justice investigationexonerated Wilson of any wrongful conduct, only to be buried when DOJ simultaneously released a report that blasted Ferguson for its “racist” practices in issuing traffic tickets for revenue purposes. As a result, there is a great deal of confusion about the case, and Ferguson continues to fuel massive protests, often violent, against police brutality. A similar thing happened in the case of Trayvon Martin. At trial, his killing was found to be done in self-defense, notwithstanding the rush to judgment the other way. The moral: we need to hear both sides.

In my initial reaction to last week’s news, I ignored this key rule. Instead, I sought to explain that Drayton’s key error was his uncritical willingness to infer some level of institutional racism from the sad facts of an individual case. In other words, if, in fact, the account that Reynolds offered were correct in all its particulars, the inference that the case itself represented a form of institutional racism would still be a mistake. It is difficult to imagine that anyone, in any position of power, condones racially motivated killings. The situation, therefore, is worlds apart from the institutional racism of Jim Crow, where horrific practices were approved at the highest levels of state, county, and local governments throughout the South, and other places as well.

The more likely explanation for these tragic killings is more sophisticated, and seeks to undercut any connection between individual tragedy and institutional racism. These homicides likely stem from the fear that officers have about their own perceived risks given the so-called “Ferguson effect,” or the higher level of resistance by black citizens to police arrests, especially those conducted by white officers. There is also the background statistics that are driving individual police behaviors. The rate of criminal conduct by blacks is higher than that for whites, especially in the area of homicides. And with the rise of the Black Lives Matter movement, there is an organized resentment against police that is race-based, leading to higher levels of hostility toward white police officers, especially those making arrests of young black males.

None of this is lost on the cops who face these realities every day. The police are intuitive Bayesians, as it were, meaning they believe that the crime statistics give some indication of potential danger in their confrontations with citizens. So white police officers are more likely to regard interactions with black people as involving relatively higher risks of injury. Jumpy and scared, they think they are acting in self-defense when they confront a black man, when it turns out that they are just jumping to conclusions. Black officers are less likely to take extreme measures against black men because they may not, at least not to the same extent, regard themselves as subject to the same level of hostility that white officers are. These are rational police adjustments to perceived risks, which in some cases lead to tragic overreactions.

The key point here is that no matter what happened in the Castile case, large claims about institutional racism are hard to connect with the facts on the ground. There is no one in a high position who condones the shootings. There are countless programs in place to teach the police how they ought to behave in potentially risky settings. Training on racial sensitivity is at an all time high. There is an increasing use of police cameras to document police movements on a continuous basis. The ubiquity of private mobile devices makes it a virtual certainty that someone will record these events, in ways that eliminate much of the factual uncertainty surrounding individual incidents. Affirmative action programs are firmly in place across the land. There have been an increasing number of black and brown officers appointed to high positions in major settings, including in Dallas, where Police Chief David Brown is well known for his commendable initiatives to improve community policing. It is easy to understand Brown’s reaction to the horrific events in Dallas: “All I know is that this must stop—this divisiveness between our police and our citizens.” It is hard to know what to do next.

Sadly, Brown’s focus is misplaced. Public perceptions, largely influenced by the media’s coverage of such events, overlook the simple point that police homicides, whether or not justified in individual cases, are outlier events. It is not the general public that is the problem. Let 99.99 percent of all races and ages agree with every word Brown spoke. Yet we still have a major crisis. As Thomas Hobbes understood a long time ago, when the question turns to the use of force, what matters is the outlier, not the average citizen. A single outlaw has the capacity to disrupt and destroy many innocent lives. Preaching peace and cooperation to the multitudes that are appalled by violence does nothing to control the tiny tail, whose hatred could be perversely magnified by public expressions of love, cooperation, and peace.

Alas, there is a real risk that the harsh rhetoric denouncing racism only makes matters worse. The distribution of low frequency events is always hard to predict. Sometimes they cluster, sometimes they don’t. Here, what really matters is what happens when outraged individuals who are driven by incendiary anti-police rhetoric take the law into their own hands. Micah Johnson, the Dallas shooter, was an outlier and loner who took to heart the message of the New Black Panther Party that advocates violence against whites in general and Jews in particular. There are reports of similarly inspired violence against police in Tennessee,Missouri, and Georgia—but again these events have to be thoroughly investigated.

But the larger lesson is clear. Just one person, with military training no less, can send the entire system into turmoil by killing five police officers and wounding seven other officers and two civilians. It is impossible to regard Johnson’s actions as anything other than horrific individual racism. But unlike the police who have killed black men, he was motivated by divisive mainstream rhetoric.

The question of whether anything can be done, given the law of large numbers, is yes. If a large population becomes more resentful, the extreme tail moves as well—closer to violence. So here again the message is clear: it is necessary to tamp down on inflammatory claims.

But how? On these issues, leadership starts at the top. Many have praised President Barack Obama for what they regard as his measured remarks on the killings in Louisiana and Minnesota, just hours before Johnson’s senseless killings in Dallas. But the President’s carefully crafted message may well have prejudged the situation in Minnesota, as it did with Trayvon Martin and Michael Brown.

To be sure, he ends his speeches by saying some version of: “We have extraordinary appreciation and respect for the vast majority of police officers who put their lives on the line every day.” But the words ring hollow when they follow his indictment of police for institutional racism. The killings in Louisiana and Minnesota, he said, were not “isolated incidents,” but were “symptomatic of a broader set of racial disparities in our criminal justice system.”  But that linkage has just not been established in these two most recent cases.

No one should be foolish enough to say that the criminal justice system is beyond improvement. It has improved and should continue to improve. But the matter has to be kept in perspective. We are not living in the age of Jim Crow. The first thing that the President should do is acknowledge the enormous progress that has been made. Instead, he lists a dubious set of statistical claims: blacks are pulled over more frequently for traffic stops, and they are subject to higher arrest rates for homicides. Obama has rightly been criticized on this front by the ever-alert John Lott for ignoring the underlying rate of violations, especially in connection with arrest rates for homicide, which are twice as high for blacks even though they are six times as likely than whites to commit homicide. Underenforcement looks like the more serious charge.

It is good that the President declared the actions of Micah Johnson despicable. But he, and everyone else, should be more cautious about claims of institutional racism based on a few disconnected homicides. The rush to judgment can have, and has had, fatal consequences.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects. 

The Department of Political Justice

Andrew Napolitano*

Andrew Napolitano

Andrew Napolitano

Is it worth impairing the reputation of the FBI and the Department of Justice to save Hillary Clinton from a deserved criminal prosecution by playing word games?

What has become of the rule of law -- no one is beneath its protections or above its requirements -- when the American public can witness a game of political musical chairs orchestrated by Bill Clinton at an airport in a bizarre ruse to remove the criminal investigation of his wife from those legally responsible for making decisions about it?

How hairsplitting can the FBI be in acknowledging "extreme carelessness" while denying "gross negligence" about the same events, at the same time, and in the same respect?

These are questions that now beg for answers in light of what can only be the politically motivated FBI report delivered earlier this week on the likely criminal behavior of Hillary Clinton.

The espionage statute that criminalizes the knowing or grossly negligent failure to keep state secrets in a secure venue is the rare federal statute that can be violated and upon which a conviction may be based without the need of the government to prove intent.

Thus, in the past two years, the DOJ has prosecuted a young sailor for sending a single selfie to his girlfriend that inadvertently showed a submarine sonar screen in its background. It also prosecuted a Marine lieutenant who sent his military superiors a single email about the presence of al-Qaida operatives dressed as local police in a U.S. encampment in Afghanistan -- but who inadvertently used his Gmail account rather than his secure government account.

And it famously prosecuted Gen. David Petraeus for sharing paper copies of his daily calendar in his guarded home with a military colleague also in the home -- someone who had a secret security clearance herself -- because the calendar inadvertently included secret matters in the pages underneath the calendar.

Yet earlier this week, FBI Director James Comey -- knowing that his bosses in the DOJ would accept his legal conclusions about Clinton's failure to keep state secrets secure, because they had removed themselves from independently judging the FBI's work -- told the public that whereas the inadvertence of the above defendants was sufficient to justify their prosecutions, somehow Clinton's repeated recklessness was not.

It is obvious that a different standard is being applied to Clinton than was applied to Petraeus and the others. It is also now painfully obvious that the game of musical chairs we all witnessed last week when Bill Clinton entered the private jet of Comey's boss -- Attorney General Loretta Lynch -- unannounced and spent 30 private minutes there with her at a time when both he and his wife were targets of FBI criminal probes was a trick to compromise Lynch and remove her and her aides from the DOJ chain of command regarding the decision as to whether to present evidence of crimes against either of the Clintons to a federal grand jury.

Why do we stand for this?

The criminal case against Mrs. Clinton would have been overwhelming. The FBI acknowledged that she sent or received more than 100 emails that contained state secrets via one of her four home servers. None of those servers was secure. Each secret email was secret when received, was secret when sent and is secret today. All were removed from their secure venues by Clinton, who knew what she was doing, instructed subordinates to white out "secret" markings, burned her own calendars, destroyed thousands of her emails and refuses to this day to recognize that she had a duty to preserve such secrets as satellite images of North Korean nuclear facilities, locations of drone strikes in Pakistan and names of American intelligence agents operating in the Middle East under cover.

Why do we stand for this?

Comey has argued that somehow there is such a legal chasm between extreme carelessness and gross negligence that the feds cannot bridge it. That is not an argument for him to make. That is for a jury to decide after a judge instructs the jury about what Comey fails to understand: There is not a dime's worth of difference between these two standards. Extreme carelessness is gross negligence.

Unless, of course, one is willing to pervert the rule of law yet again to insulate a Clinton yet again from the law enforcement machinery that everyone else who fails to secure state secrets should expect.

Why do we stand for this?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Barack Obama's Failed Presidency

Richard Epstein*

Richard Epstein

Richard Epstein

The week after the Fourth of July is a good time to take stock of the presidency of Barack Obama. It is highly unlikely that he will change course in his six remaining months in office, so he will be judged by history on his current record. That record reveals an enormous gap between his grandiose promises and his pitiful performance over the past eight years.

Ironically, one of Obama’s finest moments came before he was elected President. When he secured his nomination in June 2008, a younger Obama waxed eloquent about his future role as a world historical figure:

I am absolutely certain that generations from now, we will be able to look back and tell our children that this was the moment when we began to provide care for the sick and good jobs to the jobless; this was the moment when the rise of the oceans began to slow and our planet began to heal; this was the moment when we ended a war and secured our nation and restored our image as the last, best hope on Earth.

Obama constantly used the word “we” in that speech, but all too often that first person plural sounded more like the first person singular, as if his nomination heralded a sharp demarcation between the past and future. He spoke as if no one had ever addressed these issues before he “began” a transformation that was “absolutely certain” to reach full flower in his future administration. Obama here is a visionary captured by the nobility of his ends. But vision and skills are not always doled out in equal measure, and his lack of the latter made him unfit to choose the proper means for meeting the challenges he set out for himself.

It is sobering to examine how and why his presidential performance stacks up so poorly against his ideals. An important question for any president is what issues fall in the domain of government action, and which should be left to the private sector. Any sensible answer starts with two presumptions that are antithetical to Obama’s progressive frame of mind. First, the government should seek to avoid interfering in economic affairs to allow the forces of competition and innovation to increase the size of the social pie from which everyone can benefit. Second, the government should focus its exercise of national power on defending the nation and its allies from aggression. Obama inverts these key relationships—a fundamental mistake. He is all too willing to use coercion in domestic economic affairs against disfavored groups, and all too reluctant to use it against sworn enemies of the United States and its allies.

A mistake of this magnitude cannot be corrected by marginal adjustments in office. The sad truth is that the United States today is weaker economically, more divided socially, and more disrespected across the globe than it was before Obama took office. With few exceptions, he made the wrong choices in all the areas in which he declared the dawn of a new era. Consider:

Just how has Obama provided care for the sick? On this, as in so many other economic and social issues, he faced this critical choice: Either he could seek to remove barriers to entry in markets, or he could impose a regime of regulation, taxation, and exclusion. The former increases growth and reduces administrative and regulatory overhang. The latter blocks potential gains from trade while increasing administrative and compliance costs.

His vaunted health-care exchanges violated every sound principle of economic theory. The benefit packages that were mandated were far more exhaustive than those supplied under any private plan. The more exacting standards for existing private plans forced many of them to close down or curtail their operations. The insistence that administrative expenses be capped at a predetermined fraction of total expenditures micromanaged businesses by outsiders who were totally ignorant of the trade-offs among various firm functions. Large numbers of insured people were forced out of sensible private plans into a restricted diet of public plans, typically heavily subsidized. The standard insurance problem of adverse selection was overlooked, as the president and his supporters acted as if young and healthy people were anxious to stay in health-care plans that forced them to provide extensive subsidies to older recipients. Instead, these healthy people simply delayed joining any plan until they had an immediate need of expensive medical services. Longer waiting periods for coverage of pre-existing conditions or required minimum periods of membership were brushed aside in a fit of ideological purity. The exchanges have had a rocky reception at best, and they have an uncertain future.

The situation is no better when we talk about “good jobs” for the “jobless.” The president’s policies have wreaked havoc on labor markets. A correct analysis starts with the simple insight that any regulation or tax on employers necessarily limits what employees can receive. In competitive labor markets, therefore, the government should enforce contracts as written, rather than rewrite them from above. Our unfortunate New Deal legacy contains many laws disrupting labor markets that no president can repeal at will. But the president can use his enormous administrative discretion to ease their burden.

Not this president. Just recently, the Department of Labor announced new overtime regulations under the 1938 Fair Labor Standards Act that now cover workers who earn less than $47,476 annually, double the previous figure of $23,660. The FLSA was an unwarranted interference at the time of passage, but the distortions it creates are greater in today’s fluid economy. At a minimum, the new regulations impose heavy compliance costs on both private and public employers, forcing them to rethink virtually every job classification. It makes the “hour” the official unit of compensation even where it is entirely inappropriate in practice. Here are three examples. First, tech start-ups provide much compensation in stock and stock options, whose accounting value for regulatory purposes the FLSA caps at 10 percent of wages, forcing cash-poor firms to redo their entire business plans. Second, university graduate students and post-docs work long hours to secure an education and job. Yet no one knows where to find the extra cash once they become hourly workers subject to overtime protection. Finally, the entire “gig” economy works on a piecemeal basis because neither Uber nor Task Rabbit can monitor workers’ hours at a distance.

Elsewhere, the Obama administration has sought to prop up union membership by ordering quickie elections, limiting employer speech, and treating franchisors like McDonald’s as though they were the employers of their franchisees. These clumsy forms of labor market intervention have led his administration to takeprotectionist positions on free trade in order to safeguard faltering labor monopolies. President Obama has given some support to the Transpacific Partnership, but often under a mercantilist  “fair trade” banner. It is all self-defeating. To be sure, unemployment rates have gone down, but so too have labor market participation and median family income.

The president’s policies also falter when it comes to the hugely complex issues of global warming and the environment. Most people think, all else being equal, that an increase in carbon dioxide will increase overall global temperatures. But how? Are the relatively flat temperature readings of the past 15 years a blip or a trend?  Even though the president puts global warming at the top of his agenda, he ignores these questions, only to preside over an Environmental Protection Agency that refuses to rework its permitting rules to allow low-carbon emission plants to displace the antiquated coal facilities still in operation. Obama also champions massive overregulation under the Clean Water Act and the Clean Air Act. And his international protocols could easily create domestic dislocation without securing any tangible environmental benefits.

Foreign affairs, for their part, have been an unmitigated disaster. Everywhere one looks—Russia, China, the Middle East—the situation is more dangerous than it was before President Obama took office. That is the inescapable consequence of a presidential reluctance to trust military affairs to generals, and to rule out of bounds, virtually categorically, the use of American ground troops to stem the violence in the Middle East. The relative stability that George W. Bush bequeathed to Obama in 2009 has been shattered in Afghanistan, Iraq, and Syria, and by the rising power of Iran. ISIS commits atrocities nearly daily, most recently in Baghdad and Bangladesh. And the turmoil has created a migration crisis in Europe and throughout the Middle East. Red lines in Syria count for nothing, and ISIS has set up multiple permanent bases throughout the Middle East, which serve as springboards for terrorist activities that have reached the United States, most recently in Orlando. The breakdown has only heightened global intrigue, transient alliances and political instability. Yet Obama’s only firm commitments are to cut down our military capability and not to use ground forces in the Middle East, leaving a huge power void that the Russians are all too eager to fill. Pax Americana is indeed dead.

Nor has Obama done better on an issue close to his heart: race relations. Instead of firm moral leadership, the president has raised tensions. He announced, for example, that “if I had a son, he’d look like Trayvon.” And even after his Department of Justice exonerated Darren Wilson in the killing of Michael Brown, it buried that story behind a searing denunciation of Ferguson, Missouri for the alleged racism of its ticketing practices. The “Ferguson effect” has made policing ever more difficult in African-American communities. No wonder crime rates are rising across the country, even in cities like Chicago that have strict, but largely ineffective, gun control laws, which the president relentlessly champions without any explanation of how they are likely to do any good.

Behind all of these social ills lies a president who lacks the skills of a leader. Sadly, his frayed political legacy has left us with a choice between two undesirable candidates, Hillary Clinton and Donald Trump, neither of whom has the capacity and temperament to correct the many ills that President Obama has created at home and abroad over the past eight years.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Illegal War and Disguised Truth

Andrew Napolitano*

Andrew Napolitano

Andrew Napolitano

The 800-plus-page report of the House Select Committee on Benghazi was released earlier this week. It slams former Secretary of State Hillary Clinton for her willful indifference to her obligation to repel military-style attacks on American interests and personnel at the U.S. Consulate and a nearby CIA annex in Benghazi, Libya. She particularly failed to save the lives of U.S. Ambassador Christopher Stevens and three of his colleagues, all under her care and control while she was secretary of state.

The report also slams Clinton for her repeated lies about the cause of the attacks. After she told her daughter in an email that the Benghazi consulate had been attacked by an organized terrorist group using heavy military hardware, she told her colleagues at the State Department that the attacks were a spontaneous overreaction by locals to an American-made internet video about the Prophet Muhammad.

After telling that lie, she sent another email, this one to the Egyptian foreign minister, repeating what she had truthfully told her daughter.

The Obama administration then spread the "internet video-inspired" myth by dispatching Susan Rice, the U.S. ambassador to the U.N., to repeat it to five Sunday morning American television talk shows. This was met with profound disbelief in the diplomatic and intelligence communities. Yet, still unwilling to acknowledge the truth publicly, Clinton then retold the myth to the families of the four dead Americans in the presence of their loved ones’ bodies as the bodies were being reverently removed from a U.S. transfer plane at Joint Base Andrews.

What does all this say of the character of Clinton? How cold and heartless is she? How can she expect voters to reward her with the presidency when she failed to lift a finger to save Americans and then she repeatedly lied in public about her failures -- while being truthful about them in private?

Yet the committee's report is incomplete and has aroused dissent from some Republican members of the committee. The essence of their dissent is that the unstated and unacknowledged but true mission of the committee was not to reveal facts but to conceal them. There is ample evidence to support their argument that Benghazi was the unintended consequence of Clinton’s private war against Libyan strongman Col. Moammar Gadhafi.

Yet the report does not delve into that.

The war against Gadhafi was, of course, never declared by Congress. It was conceived by Clinton, approved by President Barack Obama and agreed to by leadership in both houses of Congress and from both major political parties. It was supposed to be the crown jewel of Clinton’s foreign policy stewardship -- ousting the dictator, replacing him with a democracy, putting no American boots on the ground and avoiding American bloodshed.

As is often the case in war, particularly illegal ones and especially secret ones, there were unintended consequences. Here the consequences have been the destruction of the government of an American ally, the imposition of mob-ruled chaos in Libya, the empowerment of terror groups in the Middle East, the deaths of innocent American civilians, the rejection of the rule of law and the obfuscation of the truth.

One of those who signed off on this secret war was the person who appointed the committee and its senior staff with personal loyalists -- former House Speaker John Boehner. Another is a former congressman whose wife personally prospered from all this by serving as the go-between in the delivery of military hardware from Western sources to terror groups on the ground.

The method of those who authorized the secret war was for Clinton to issue waivers -- as the secretary of state may do -- to the U.S., NATO and U.N. embargo of arms sales to Libya. What did this do? Instead of issuing waivers so as to permit arms to be sold to a friendly government, Clinton and her colleagues conspired to get arms into the hands of terrorist organizations masquerading as local militias. The CIA warned her about this, but she was indifferent to the warnings.

Those who signed off on this war and its methodology were arguably conspirators in an effort to provide material support to terrorist organizations by supplying them with military equipment, allegedly to be used to topple the Gadhafi government. That is a felony -- and the beneficial or strategic use of the weapons is not a defense to the charge of providing them to terror groups.

How dangerous and reckless was Clinton? She ignored the CIA’s advice and let the weapons spread among deranged madmen and committed killers. Who in the intelligence community would work for her in light of this behavior? Ambassador Stevens and the others were killed by heavy military hardware that Clinton and her colleagues permitted to make its way into the hands of terror groups.

Though Clinton was the creator of the conspiracy and remained at its heart and hoped to ride it triumphantly into the White House -- and though she bears more blame than any other conspirator -- the committee’s work fails as a seeker of the whole truth.

The truth is that some of the committee’s congressional allies set in motion the awful events that led to the tragedy in Benghazi. The truth is that these people will probably escape accountability for their lawless behavior. The truth is that Congress knows that the president wages secret wars and it does nothing to stop them. The truth is that Hillary Clinton put her own political ambitions above fidelity to the rule of law and properly doing her job.

The truth is that the House Select Committee on Benghazi concealed more truth than it revealed. Yet the government is supposed to work for us. Aren’t we entitled to know what the government has done in our names?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Trade And Immigration After Brexit

Richard Epstein*

Richard Epstein

Richard Epstein

No matter what happens next, last week’s stunning “LEAVE” vote on Brexit has permanently disrupted the status quo ante. Both the Conservative and Labour parties are facing major leadership changes; conservative Prime Minister David Cameron has resigned, and Labour’s Jeremy Corbyn has been besieged by his shadow cabinet for his tepid support of the REMAIN option. Stock markets worldwide continue to tumble and the British pound has taken a beating. The Sunday New York Times lead storytook a somewhat hysterical tone when it announced that the Brexit vote “is already threatening to unravel a democratic bloc of nations that has coexisted peacefully for decades.” And the strong supporters of REMAIN are now determined, it seems, to predict the worst, perhaps in the hope that Great Britain will take the opportunity to “reconsider” its decision in light of the global economic hit that occurred the day the Brexit vote was announced.

As I recently argued, the Brexit vote was complicated, given the pros and cons on both sides. But now that the voting has occurred, the correct response is to put the fear-mongering aside and to think hard about the two major issues, so central to the Brexit debate, which will continue to vex Britain and the EU—trade and immigration. On this score, it is important to realize that those two issues are distinct. The argument for free trade is pretty clear—but with the much murkier issue of immigration, it is virtually impossible to come up with a knockdown argument in favor of either fully open or fully closed borders.

Let’s start with free trade. Here, the basic economic principle of comparative advantage works with equal force in both domestic and international markets. The most efficient form of production comes through a division of labor in which all parties provide those goods and services at which they are, relatively speaking, better at producing than anyone else. Thus, even if nation A were better than nation B at all forms of production, it hardly follows that nation B should remain idle. Instead, it should produce in that area in which it has the smallest disadvantage relative to nation A. So long as trade between the two nations remains open, both nations should on balance be better off than they would have been if each kept tariff walls high against any imports. The mutual exchange produces higher outputs across the board, and thus fuels growth in both nations. The principle is scalable, so that the more nations that come to the table, the greater the gains from trade, in both the international and domestic arenas. The substantive goal is to make the borders among sovereign nations porous.

The strength of this free trade position was evident in the recent discussions over Brexit. It was easy for the opponents of Brexit to denigrate their supporters as “little Englanders” who want to stick their heads in the sands by disengaging from Europe. But that gross mischaracterization misses a key point: being in the EU prohibits Great Britain, and its other member nations, from negotiating trade deals unilaterally with other nations, such as between Britain and India and the United States, where the potential gains are enormous. It is odd, as Paul Gregory writes, that professional economists think that Brexit is likely to lead to a systematic catastrophe, as if its only consequence is the loss of unfettered British access to the sclerotic European markets, whose systematic slow growth stems from the foolish assumption that uniform restrictions on labor and capital markets are better than no restrictions at all.

Unfortunately, just that misconception is the view of Glenn Hubbard, the Dean of the Columbia Business School, who has treated the British vote as a narrow form of populism driven by people who have a “deep distrust of the benefits of the global economy.” But it is all too clear that he has not paid any attention to the writings of the most articulate defenders of Brexit, such as Daniel Hannan, whose entire pitch runs in exactly the opposite direction. Britain is a small maritime nation with few natural resources that has to make its way by trade to the far corners of the globe. The difficulty with the EU is that Great Britain had to take the bitter with the sweet. To gain access to the stagnant EU, it had to accept the power of the EU to block the trade deals that Britain could make with Canada, India, and the United States—at least so long as President Obama refuses to back off his foolish threat to put Great Britain at the back of the queue. Indeed, if all went well, Britain could enter into a free trade agreement with the EU.

 To be sure, the case for free trade is not without its drawbacks. The usual complication from free trade is the massive dislocation in domestic markets as workers lose out to cheap goods and services from foreign competition. These jarring social and political complications make it clear that even with trade we live in a second-best world. But again, it is critical to draw the right inferences. Free trade is a tonic that can unlock strong domestic competition by allowing local consumers and firms to cast a wider net for appropriate trading partners. The ability to both enter and exit local markets is a powerful prod toward internal improvement that loses its sting if outsiders are kept at bay. Even in domestic markets, the only way in which consumers can benefit is if incumbent firms are subject to displacement by newer and superior rivals.

The same rule applies in the international market. Job placement programs are often thought of as a political necessity, but that common conclusion should be tempered for two reasons. First, no such program will ever allow displaced union workers who enjoyed some element of monopoly rents to replicate their higher wages even after they get new jobs in the competitive economy. Second, scaling back this program lowers taxes and thus increases the prospects of overall domestic growth, giving all workers, including displaced workers, better opportunities. The best approach here is not to ratchet the current system of unemployment benefits to give greater protection to workers who lose out to foreign instead of domestic competition, even if these two could be kept in separate compartments. At all times, the primary effort is to keep up the flow of goods and services across the national and state lines.

That relatively clear prescription, however, does not hold with respect to immigration. The source of the contrast is all too obvious. The full range of adjustments to new people streaming into a country in the hundreds and thousands are far greater than those required with respect to goods. Goods do not have to be housed and fed. They are not capable of committing crimes. They do not have divided loyalties to their home country. They do not demand the right to vote or to participate in political affairs. They do not intermarry with local citizens or with immigrants from other lands. They do not have to receive driver’s licenses or social security or education for their children—the very issues that led a divided Supreme Court in United States v. Texas to deny President Obama the opportunity to unilaterally rewrite the U.S. immigration laws. Goods and services are not, in a word, people. Immigration was always easier in a small government state, because strong property and contract rights are scalable, but positive rights to housing, education, or health care, are not. All transfer payments must be recalibrated to take into account how new population flows.

The powerful anti-immigration forces play on these negatives, which become especially acute with mass migration borne of political oppression and economic desperation. There is no doubt whatsoever that fears of mass immigration played a critical role in the Brexit decision, and there is little wonder why, given the looming influx of immigrants and refugees from the Middle East.

Yet there is another side to the story. Immigrants have often proven to be positive sources of vigor and innovation for the countries to which they come. They should not be seen only as competitors for scarce British or American jobs and homes. They should also be regarded as potential sources of new businesses that create jobs and homes for current British and American citizens. These immigrants often display fierce loyalties to their new home countries precisely because they have suffered under the lash of tyranny, which makes them willing to go to any lengths to defend their new freedoms. As Fraser Nelson wrote in the Wall Street Journal, Brexit in part was fueled by a conscious uneasiness about the loss of British identity, coupled with a sense that the British could not open their doors to productive people from anywhere, but had to take in, no questions asked, anyone who had the requisite papers from some other EU nation.

So therein lies the rub. It is often difficult to know whether the benefits of immigration outweigh the costs. Immigration from unstable and war torn countries may well carry greater perils than immigration from more stable places. Yet, by the same token, it is just those people from war torn areas that may work hardest to preserve the set of local freedoms. So what strategy is to be used to separate the good from the bad effects? Should nations have strong checks to make sure bad immigrants do not come in, even if it means keeping desirable immigrants out? Or should the doors be opened wider to let more people in, knowing that they can be deported with relative ease? The choices come in infinite gradations that makes consensus hard to achieve. Differences in national and regional cultures may matter, but it is hard to say in which direction.

In light of these considerations, it is possible to defend free trade, but not free immigration, in relatively categorical terms. The Brexit debate on immigration resonates in the United States, where gridlock is the order of the day. To break that impasse, it is best to begin where the ripest fruit is easiest to pick, namely, by reforming the rules that keep the best and the brightest from around the world, often with graduate training in the United States, out of the country. But the President and Congress have shown little interest in removing the tight lid on the number of H-1B visas issued to skilled foreigners who seek employment in the United States. The list of stated entry qualifications is filled with anticompetitive restrictions. Potential applicants are told that “you must have an employer-employee relationship with the petitioning U.S. employer”; that you must meet educational requirements in your specialty set by the federal government; and, of course, that “you must be paid at least the actual or prevailing wage for your occupation, whichever is higher.”

It is all too clear that these regulations are not adopted to protect consumers or to promote their welfare. They are just another in the endless set of anticompetitive restrictions that cripple a nation in order to protect incumbent workers. There may be no general solution to the immigration question. But we should allow more skilled workers into the United States, with the explicit understanding that their time in the United States does not move them forward on the path toward citizenship. And it might be wise to grant temporary asylum to persons from war torn lands on the same terms. Perhaps, best of all, it makes sense to reduce trade barriers with poorer nations so that their citizens can improve their own position without having to leave home. The basic lesson applies with equal force to the Great Britain, the EU, and the U.S. The more free trade among nations, the less pressure there is on the immigration systems whose shortcomings are not likely to be resolved either here or anywhere else anytime soon.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.