Waging War

Judge Andrew P. Napolitano*



James Madison is commonly referred to as the Father of the Constitution in large measure because, in the secrecy of the Constitutional Convention in Philadelphia in 1787, he kept the most complete set of notes. He also had a very keen mind and a modest demeanor and an uncanny ability to solidify consensus around basic principles that are woven into the Constitution.

After he wrote the Constitution and before he became Thomas Jefferson’s secretary of state and eventually a two-term president, he was a congressman from Virginia. When he spoke on the floor of the House, the parts of the Constitution he was most adamant about restrained the president. Chief among those restraints, in Madison’s view, was the delegation to Congress, and not to the president, of the power to wage war.

Madison knew that kings became tyrants through war. He fervently believed that by keeping the war-waging power in the hands of the president and the war-making power in the hands of Congress, the Constitution would serve as a bulwark against tyranny. He explained:

  “Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. … No nation could preserve its freedom in the midst of continual warfare.”

Madison is instructive for us today as President Obama decides whether to ask the nation to go to war or to order hostilities on his own.

Under the War Powers Resolution (WPR), the president can deploy U.S. forces anywhere outside the U.S. for 180 days upon his written notifications of congressional leaders. He does not need a declaration of war to deploy forces for 180 days, yet he cannot deploy forces beyond that without express authorization from Congress.

Obama used the WPR as the legal basis for his air invasion of Libya in 2010. That resulted in the destruction of the government there, which the U.S. had supported with $1 billion annually since 2005 (we literally destroyed armaments that we had paid for), the death of Col. Gadhafi, whom President George W. Bush and British Prime Minister Tony Blair called a friend in the war on terror, the instability of the nation, the death of our ambassador, and the seizure by mobs of U.S. government-owned real estate. The president declined to use the WPR authority last year when he sought -- and did not receive -- express congressional authority to use military force to degrade the offensive weaponry of the Syrian military.

The WPR is a two-edged sword. Though the courts have never reviewed it, it is certainly unconstitutional, as the courts have consistently ruled that one branch of government cannot give away its principal constitutional powers to another. Congress surely cannot give its war-making power to the president any more than it can give it to the courts. So, the political question with respect to war remains: Who will take the heat for fighting a war against ISIS -- the president via the WPR or Congress via the Constitution? 

Yet, beyond the political question is the more profound question of who will enforce the Constitution. In addition to Madison’s fears about foreign wars leading to domestic tyranny, there are profoundly practical reasons why war is a decision for Congress alone.

Here is where it gets dicey and inside the Beltway. Republicans want war because they see ISIS as a dreaded enemy and can use its televised barbarity to rally voters to their candidates. Democrats want war because they can use it to show the voters that they, too, can be muscular against terrorists. Yet, Republican leadership in the House is reluctant to permit the House to debate and vote on a resolution authorizing hostilities, because they can’t agree on how to instruct the president to end the war.

But war often has surprise endings and unexpected human, geopolitical and financial consequences. A debate in Congress will air them. It will assure that the government considers all rational alternatives to war and that the nation is not pushed into a costly and bloody venture with its eyes shut. A congressional debate will compel a written national objective tied to American freedom. A prudent debate will also assure that there will be an end to hostilities determined by congressional consensus and not presidential fiat.

What should Congress do? It should declare once and for all that we will stay out of this ancient Muslim civil war of Shia versus Sunni. We have been on both sides of it. Each side is barbarous. In the 1980s, we helped the Sunni. Now we are helping the Shia. Last year, Obama offered to help ISIS by degrading its adversaries; now, he wants to degrade ISIS. We have slaughtered innocents and squandered fortunes in an effort to achieve temporary military victories that neither enhance our freedom nor fortify our safety. We will only have peace when we come home -- when we cease military intervention in an area of the world not suited for democracy and in which we are essentially despised.

I suspect most Americans have had enough of war, and they understand that if the political class ignores Madison’s warnings, it will do so at its peril.


*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. 

Presidential Indecision

Richard Epstein*



Today’s debate over the uses and limits of American military power is, and should be, solely over means and not ends. In previous columns on the death of Pax Americana and the isolationist follies of Senator Rand Paul—follies that have perhaps diminished in recent days—I argued that there is no principled political disagreement on the ghastly and immoral activities of ISIS, the Islamic State. The only serious debate, therefore, lies in fashioning the right response. On that score, the prompt use of massive force, ground troops included, against an identified target with territorial control must be the first and indispensable step in the overall plan. Long-term economic responses, as some are advocating, may be wise but they will not work now.

Unfortunately, President Barack Obama does not quite see it that way. The President has been immobilized by his deep ambivalence over the use of force. Right now, his stated campaign relies on the limited use of air power largely to knock out ISIS fighters who threaten key dams and other infrastructure—which is all to the good—but he will not budge beyond that target. Before he will move more decisively in Iraq, Obama must be satisfied that the local factions will unite behind a viable plan. Yet he ignores the deep problem that no such plan is possible unless and until the United States puts more resources on the table and more troops on the ground. Before he will move against ISIS, he has to cobble together a coalition of nations and then gain buy-in from Congress—but, he insists, no troops on the ground, please. That decision has powerful consequences for by the President’s own reckoning, the lack of ground forces means that ISIS has a three-year lease on life, during which catastrophe can strike. It is no wonder that the President’s potential allies in the Arab world are skeptical of his all-too measured response.

Committing ground forces is always risky business. But not committing to the fray is risky business as well. Wars are subject to sharp turns, and, as Robert Kagan reminded us recently, dangerous situations can quickly spiral out of control, as they did in the 1930s and may again do so today. The successes of NATO in the dangerous post-war years came from the U.S. willingness to keep ground troops in Europe, where right now they are needed in places like Estonia, lest Putin try to repeat the 1939 annexation. The Israelis learned that lesson quickly when it became apparent in Gaza that even a splendid air force could not remove the need for a bloody land invasion to close the tunnels, disrupt ground movements and communications, and capture enough rockets to reduce the direct threat to Israeli citizens and territory. Indeed, historically, Israel as a nation could not have survived if it had not been prepared to use preemptive force in 1967 to take out Egyptian opposition. Not surprisingly, its greatest peril came in 1973 when it was caught flat-footed in the Yom Kippur War.

So why doesn’t Obama commit himself to decisive actions with ground troops? It can’t be because of the logistical difficulties that are involved. It is one thing to try to ferret out terrorists—which, tellingly, is a term the President won’t use—who are hidden away in mountain caves or inner city safe houses. But the moment they lay siege to helpless cities, occupy air bases, and proclaim their Caliphate, their strong territorial presence makes it possible to confront them on advantageous terms, at least before they further build up strength. We should do everything we can to help the Kurds and other Iraqis, but it is foolish for us to wait until their forces coalesce to bear the brunt of the fighting alone, even if aided by American advisors. A strong military presence is the only way to counter the territorial expansion of ISIS.

The Obama personal hesitation stems, unfortunately, from reasons unrelated to the military and political issues. Part of his problem is that he cannot bring himself to acknowledge that he was wrong to oppose the Iraqi surge in 2006, and wrong to pull out American troops from Iraq as President. A strong president learns from his past mistakes, but Obama does not.

One reason for his dogged persistence lies in his flawed world view, which deep down, regards the United States (and Israel) as akin to colonial powers, whose actions should always be examined under a presumption of distrust. His ingrained uneasiness with the values of western civilization makes it impossible for him to think and act as the leader of a western nation. Instead, he much prefers to regard himself as a nonpartisan critic and a bystander to world affairs. He has no firm conviction in the rightness of his cause, and hence no confidence in his ability to get others to act as perils mount.

What makes the situation even worse is that Obama receives support from commentators and public intellectuals who think that his reluctance to commit military force should be commended as part of some grand plan to restore American hegemony by gentler means. Just that kind of thinking was evident in a recent column by Thomas Friedman, “Leading From Within,” which refuses to come to grips with the short-term peril that ISIS presents. Friedman accepts the conventional analysis that the 2003 invasion of Iraq was a mistake and ignores the current short-term military crisis in order to piece together some long-term strategic plans to make things better. One of his suggestions is that the United States remove its self-imposed limitations on the export of oil products. Of course, that proposal is correct. But it is an insufficient response to the perilous military situation today in the Middle East. It is also correct even in times of peace because free trade policies always work to the long-term advantage of our nation and the world. In good times, as well as bad, a global increase in the supply of oil will enhance prosperity at home and abroad.

The dubious arguments against fracking technology have ever weaker foundations as the technology continues to become both safer and more energy efficient. There is little environmental risk at home (especially compared to coal), and there is much to gain from boosting overall levels of economic activity, which can never be done by piling huge subsidies into Friedman’s preferred clean energies that still don’t work very well. Indeed, if freeing up oil exports had been done years ago, it would have long ago reduced world dependence on both Russian natural gas and Middle Eastern oil, which could have reduced the risk of aggressive action long before it occurred.

It is also clear that the release of American oil overseas suffers from none of the serious difficulties associated with the imposition of sanctions. Quite simply, no adversary (and no friend) can evade the reality of more abundant energy supplies. Yet, it is often difficult to get our friends to implement sanctions, and easy for our enemies to dull their effect, by dealing with third parties who treat the absence of American competition as an open invitation to expand business with rogue nations like Russia.

That said, Friedman’s approach is insufficient because it works off of the wrong time frame. The issue of oil exports is inevitably contentious and the President’s self-image as a reluctant champion of free trade will slow this train down for weeks, months or years. Friedman makes matters still worse by insisting that we tie the change in oil export policy to an acceptance of his regime of stiff carbon taxes to counter global warming, thereby dashing its chances of passage, thereby further delaying a sensible economic response. So after Friedman’s endless speculations, the vital issue that remains is what should be done today militarily, and not tomorrow economically.

So it is back to the military and diplomatic options. At this point, it is quite clear that the greatest obstacle to getting things done overseas is the allergic reaction domestically to foreign entanglements, given our mixed record of failed ventures. Indeed it is just on this point that presidential leadership is so critical. It is instructive that even Friedman’s co-columnist at the Times, Maureen Dowd, rightly frets that an embattled Obama, convinced of his “Solomonic wisdom and Spocky calm” will continue to wallow in self-pity—thinking of himself as the helpless prisoner of events—rather than make a decision about what to do. In this time of peril, we need a President with courage to put aside the political and ask this one question: what mix of American force and diplomacy can bring a halt to the growing disintegration of world order.

*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.

An Unhappy Summer for Liberty

Judge Andrew P. Napolitano*



At the root of the chaos in the Middle East and here at home are governments that respect no limits on their exercise of power. Public officials -- who are supposed to be our public servants -- routinely behave as if they are our masters. They reject the confines of the Constitution, they don’t believe that our rights are inalienable, and they fail to see the dangerous path down which they are leading us.

 It is a path to an authoritarian America, predicted by the British writer George Orwell in his dark and terrifying novel “1984,” in which governmental power was fortified by fear at home and war abroad.

 President Obama has dispatched 60,000 NSA spies to monitor the cellphone and landline calls, as well as the emails, texts, bank statements and utility bills, of nearly all Americans, in utter disregard for the constitutional standard required for doing so: probable cause of criminal acts by the persons spied upon. Yet his spies somehow missed the Boston marathon bombing, Russia's invasion of Ukraine and theft of Crimea, the downing of the Malaysian civilian airliner and the growth of ISIS in the Middle East.

 ISIS was fomented by the tragic, immoral and illegal American invasion of Iraq. That invasion was carried out under the false pretenses that the United States needed to find the weapons of mass destruction we had sold to Saddam Hussein. The Iraq war cost the lives of 650,000 Iraqis and 4,500 Americans. It displaced more than 2,000,000 Iraqis and, because it was paid for by borrowed funds, added $2 trillion to the U.S. government’s debt.

 The consequence of American Middle Eastern imperialism has become the virulently anti-American and viciously efficient fighting force called ISIS. President Bush and his generals and Obama and his spies knew or ought to have known about it. This disciplined group of fanatics is the latest American bogeyman at whom the warmongers are aiming their cries for more American military action and thus more American blood.

 Bush was reckless to have fought an unjust war, and Obama is reckless to have misguided our intelligence resources toward Americans and then feign surprise at the growth of this foreign disease right under his nose.‎ But this is a disease that he and the military-industrial complex will use to terrify us into another useless war. By their standards, any group or government -- except for the U.S. and our allies -- that uses violence to get its way should be eliminated by more violence. That will literally bring war without end.

 Congress is a potted plant. It has permitted Obama -- in defiance of the Constitution -- to destroy Libya, bomb innocents in Pakistan and kill Americans in Yemen. There is a reason only Congress can declare war: to ensure debate about war, to discover whether there is a legal basis for it, to explore all options to it, and to prepare for its human, geopolitical and financial consequences.

 The next domestic political battle will be a fight between the Senate and the CIA, as the Senate Intelligence Committee releases its report on CIA torture. Sen. Dianne Feinstein, D-Calif., the committee chair, has accused the CIA of spying on her and her staff, and just as Congress began its summer break, CIA Director John Brennan admitted the spying. That spying is a felony, and Brennan's job and his personal freedom are at stake, even as he and Feinstein argue about how much of the report should be released.

 Why is this report important? According to those who have seen it, it will demonstrate not only that the U.S. government tortured victims all over the world, but that its techniques were not those revealed and approved by congressional regulators, that the CIA repeatedly lied to its own congressional supporters and, most importantly, that the torture did not produce any material actionable intelligence, including the whereabouts of Osama bin Laden.

 The report is also important because in a democracy, all persons have a fundamental right to know what the government is doing. Transparency is a disinfectant for political corruption, and a people cannot be free when the government gets away with law breaking and lying about it.

 The other coming domestic issue is the militarization of the police. We learned this summer that in New York City, you can be choked to death by cops while selling untaxed cigarettes, and in Ferguson, Mo., you can be shot in the head by a cop while unarmed -- and none of the killers has yet been arrested, charged or prosecuted. This is the result of recent Supreme Court opinions that give the police qualified immunity. That doctrine makes it nearly impossible to sue or prosecute cops who kill innocents so long as they can claim that a reasonable cop would have done as they did. That is no protection from thugs in uniform; it is a license to kill.

 And speaking of killing, why do the police in America now have grenade throwers, a weapon that kills indiscriminately and is banned from use against the civilian population by international law? They have them because of a lack of transparency. The Department of Defense in secret gave or sold these weapons of mass destruction to American police departments in secret and thus without the consent of the public, whom the police are supposed to protect.

 Locally and nationally, we live under governments that prefer to rule rather than to serve, that choose not to tell us the truth but to keep it from us, and that have enacted laws that purport to make their behavior legal.

In 1949, when he wrote “1984,” Orwell predicted all this, including the secret torture, the perpetual warfare, the continuous spying and the fear of the government. His predictions were right on the mark -- he was only mistaken by 30 years.

 *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. 

Rand Paul’s Fatal Pacifism

Richard Epstein*



This past week, President Barack Obama shocked those on the left, right, and center when he announced that he had not yet developed a strategy for responding to the threats that ISIS posed to the Middle East, Europe, and the United States. It would, however, be a mistake to think that his paralysis in foreign policy is characteristic only of the progressive wing of the Democratic Party. Libertarians, both within and outside the Republican Party, are equally clueless on the ISIS threat. In fact, their position on ISIS is, if anything, more dangerous than that of the President. While the President has yet to formulate a strategy on the question, the hard-core libertarians have endorsed a strategy of non-intervention, which I believe is totally inconsistent with libertarian principles.

For my entire professional life, I have been a limited-government libertarian. The just state should, in my opinion, protect private property, promote voluntary exchange, preserve domestic order, and protect our nation against foreign aggression. Unfortunately, too many modern libertarian thinkers fail to grasp the enormity of that last obligation. In the face of international turmoil, they become cautious and turn inward, confusing limited government with small government. Unwisely, they demand that the United States keep out of foreign entanglements unless and until they pose direct threats to its vital interests—at which point it could be too late.

The most vocal champion of this position is Senator Rand Paul. Senator Paul has been against the use of military force for a long time. Over the summer, he wrote an article entitled “America Shouldn’t Choose Sides in Iraq’s Civil War,” for the pages of the Wall Street Journal arguing that ISIS did not threaten vital American interests. Just this past week, he doubled down on this position, again in the Journal, arguing that the past interventions of the United States in the Middle East have abetted the rise of ISIS.

His argument for this novel proposition is that the United States should not have sought to degrade Bashar Assad’s regime because that effort only paved the way for the rise of ISIS against whom Assad, bad as he is, is now the major countervailing force. Unfortunately, this causal chain is filled with missing links. The United States could have, and should have, supported the moderate opposition to Assad by providing it with material assistance, and, if necessary, air support, so that it could have been a credible threat against Assad, after the President said Assad had to go over three years ago. The refusal to get involved allowed Assad to tackle the moderates first in the hope that the United States would give him a pass to tackle ISIS, or, better still, even assist him in its demise, as we might well have to do. It is irresponsible for Paul to assume that the only alternative to Obama’s dithering is his strategy of pacifism. Paul’s implicit logic rests on a worst-case analysis, under which no intervention is permissible because the least successful intervention may prove worse than the status quo. It is hardly wise to wait until ISIS is strong enough to mount a direct attack on the United States, when its operatives, acting out of safe havens, can commit serious acts of aggression against ourselves and our allies. It is far better to intervene too soon than to wait too long.

It is instructive to ask why it is that committed libertarians like Paul make such disastrous judgments on these life and death issues. In part it is because libertarians often have the illusion of certainty in political affairs that is congenial to the logical libertarian mind. This mindset has led to their fundamental misapprehension of the justified use of force in international affairs. The applicable principles did not evolve in a vacuum, but are derived from parallel rules surrounding self-defense for ordinary people living in a state of nature. Libertarian theory has always permitted the use and threat of force, including deadly force if need be, to defend one’s self, one’s property, and one’s friends. To be sure, no one is obligated to engage in humanitarian rescue of third persons, so that the decision to intervene is one that is necessarily governed by a mixture of moral and prudential principles. In addition, the justified use of force also raises hard questions of timing. In principle, even deadly force can be used in anticipation of an attack by others, lest any delayed response prove fatal. In all cases, it is necessary to balance the risks of moving too early or too late.

These insights help shape the serious libertarian debates over the use of force. Correctly stated, a theory of limited government means only that state power should be directed exclusively to a few legitimate ends. The wise state husbands its resources to guard against aggression, not to divert its energies by imposing minimum wage laws or agricultural price supports on productive market activities. Quite simply, there are no proper means to pursue these illegitimate ends.

In contrast, self-preservation and the protection of others form the noblest of state ends. The late economist and Nobel Laureate James Buchanan always insisted that a limited government had to be strong in the areas where it had to act. Perhaps his views were influenced in his time as an aide to Admiral Chester Nimitz in the Pacific theater during World War II. In responding to aggression, the hard questions are strategic—are the means chosen and the time of their deployment appropriate to the dangers at hand? Move too quickly, and it provokes needless conflict. Move too slowly, and the situation gets out of hand.

Senator Paul errs too much on the side of caution. He would clamp down, for example, on the data collection activities of the National Security Agency, which allow for the better deployment of scarce American military resources, even though NSA protocols tightly restrict the use of the collected information. It is wrong to either shut down or sharply restrict an intelligence service that has proved largely free of systematic abuse. The breakdown of world order makes it imperative to deploy our technological advantages to the full. Sensible oversight offers a far better solution.

The same is true in spades about the use of force in Iraq and Syria, where matters have deteriorated sharply since Paul’s misguided plea for non-intervention in June. It was foolish for him to insist (and for President Obama to agree) that the United States should not intervene to help Iraqis because the Iraqis have proved dangerously ill-equipped to help themselves. Lame excuses don’t wash in the face of the heinous aggression that the Islamic State has committed against the Yazidis and everyone else in its path.

Rand Paul likes to insist that the initial blunder was the invasion of Iraq in 2003. Whether that invasion was right or wrong is irrelevant today. The question now is how to play the hand that we have been dealt. Whatever the wisdom of going into Iraq, peace had been restored by the surge when President Obama took office in 2009. Since then Iraq’s factionalism has grown because Obama signaled disengagement the day he took office, and found himself unable to forge a status of forces agreement in Iraq in 2011. Being eager to get out, he could not figure out a credible way to stay in.

Unfortunately, Rand Paul writes as if Iraq’s many deficits are fixed facts of nature, wholly independent of the flawed U.S. policies that he has consistently backed, in sync with Obama’s aloof detachment. Yet these policies, tantamount to partial unilateral disarmament, have given our worst enemies the priceless assurance that they can operate largely free of American influence and power. There is nothing in libertarian theory that justifies dithering at home as conditions abroad get worse by the day.

A nation that believes in the primacy of liberty has to defend it at home and abroad, and do so over the long haul, without imposing artificial deadlines on its military commitments. Our enemies place no such limits on their efforts to kill and uproot innocent people. Our limited airstrikes have shown that force can make a positive difference. Only a fresh willingness to confess error about the President’s decision to remove ground troops from Iraq and keep all American forces out of Syria can reverse the present downhill trend. Containment is wishful thinking, not a stable option. Sadly, where the Islamic State goes, there we must ferret them out.

The American people may be weary of war. But they will become wearier still from the chaos that will follow if we neglect to fight the forces of death and destruction. Senator Paul’s position is inexcusable. It renders him unfit to serve as President of the United States should he be eyeing the 2016 candidacy. Our commander-in-chief cannot be a bystander in world affairs. He has to have the courage to lead and rally a nation in times of trouble, lest the liberties that we all cherish perish by government indifference and inaction.

*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.

Lessons From Ferguson

Richard Epstein*



Last week, I wrote a response of Paul Krugman’s critique of libertarian economics. As I mentioned there, it often turns out that libertarians are their own worst enemies in their critique of tough current affairs. Consider Nick Gillespie assessment of the Libertarian Moment in Ferguson, which is instructive both for what it does and does not say.

Gillespie argues that the modern libertarian movement ranges far beyond the traditional bread and butter issues of limited government. He points out that America is now “more socially tolerant” and that high on the agenda of libertarian causes is gay marriage, smoking pot, and “other forms of self-expression.” The attacks on government are less focused on the choice between monopoly and competition, and more on the perceived heavy-handedness of the government bureaucrats. Mainstream libertarians—and this is where I break with them—harbor grave doubts about the use of military force overseas, the perceived invasions of privacy done in the name of security, and, most recently, the use of police power in places like Ferguson, Missouri. Forget for now the libertarian principles on labor unions, cartels, and rent control. Today’s libertarians are more passionate about police, police militarization, and matters of racial justice.

It is not that I entirely part company with modern libertarians on all issues relating to the police. It is that I would like to see libertarians of all stripes slow down their denunciation of public authorities, without whom we cannot enjoy the ordered liberty that we all prize. The correct attitude on the police force is to see it as a regrettable necessity, but a necessity nonetheless. Without police intervention, many cities in this country would turn into Iraqi-style war zones. The point remains true even if it is the case, as it is in Iraq, that most people have a strong desire to live out their lives in peace So long as some fringe groups are intent on using violence, they can force everyone else to follow suit, until by degrees entire nations can be plunged into chaos and sectarian violence unless there are some organized institutions to protect us.

But that is only half of the story. The next step is to ask what should be done to make sure that the police, with their own monopoly over the use of force, don’t convert the traditional police power into a police state, with all the shuddering connotations that this term carries with it. And so it is back to the old story about the importance of institutions. Running the police is in part a big business, where we have to ask and understand how police are recruited, trained, equipped, deployed, supervised, promoted, punished, and paid. The basic deal is that we give the police extra powers, but we expect them to meet higher standards, which justifies their right to use of deadly force. And when they fall short, the sanctions on them are often the heaviest because they cannot plead the excuses available to ordinary people who have neither the training nor the temperament to engage successfully in the use of force.

All of this then gets us to Ferguson, where Gillespie joins the swollen ranks of those who believe that the police have presumptively misbehaved in killing an unarmed black man, and thus must prove their innocence, much as George Zimmerman was able to do, to the surprise of many, in the Trayvon Martin case. But in these cases, condemnation can run ahead of the evidence. I often like to say that I am a professor of law and not a professor of facts, and thus have no particular insight as to the course of events in fatal confrontations of which I have at most third-hand knowledge. But I do know something about how treacherous individual cases can become contentious whenever the issue of self-defense comes into play. These cases resist any orderly characterization, which makes it imperative not to jump to judgment before the information comes out.

It is not that the problem is not serious. One report indicates that there were 18 unarmed black men shot in the first three months of 2012. More recently, there was the homicide of Eric Garner by a chokehold, where the visual evidence makes it all too clear that the police wildly overacted in subduing the now dead man. It is no wonder that there have been recent peaceful public protests in Staten Island about the incident. Then there was the 2012 killing of the unarmed black man Trayvon Martin, where the acquittal by a Florida jury was, it seems, supported by all the available evidence. The word “unarmed,” as in the sentence, “the police shot an unarmed teenager” is often given too much weight in making snap judgments about right and wrong in these confrontations. A strong-arm robbery, such as that which happened minutes before Michael Brown was killed, is a crime of violence, which is, by definition, done by an unarmed man.

In the case of Ferguson, the hard question is what does that evidence say. The accounts vary all over the map. On one version reported on the Huffington Post, Brown was “compliant” when approached by police office Darren Wilson. Another version, reported on Fox, told a very different story: that Wilson had been jammed back into his car by Brown, and subjected to serious injuries, including a damaged eye socket, that led up to the shooting when, by this version, Brown had started to go after the police officer. Whether the Huffington Post or Fox is correct is something that requires the evidence, which at this point has not been made fully public. Yet all of the general statements about the sorry state of race relations in places like Ferguson are no substitute for an accurate account of what happened.

The role of institutions again surges to the fore here. There is no question that Gillespie (and everyone else) is right to condemn the Ferguson police and Missouri state officials for acting poorly insofar as they kept the release of evidence to the public to a trickle. Full and prompt disclosure has to be the norm in cases of killings by police officers, in order tamp down on local distrust that could easily lead to violence. In Ferguson, moreover, the disputed question of whether a police officer has suffered serious injuries is something that can be answered easily enough by photographs or a direct viewing of the officer. Yet nothing of that sort was done. By the same token, the interventions of Attorney General Eric Holder in the situation only compound the difficulty, because his job is not to seek evidence of a civil rights violation, but to ask whether Wilson had committed any civil rights violation in the first place, which you cannot do effectively if you align yourself publicly with Brown’s parents. It is a sorry state of affairs if every potential investigator of the situation is perceived by some constituency to have axe to grind. There is no faster way for public confidence to go south.

The situation does not get any easier when we seek to draw broad implications from this tragic incident. Crime rates over the past generation are sharply down for both white and black people. It is of course an open question as to why this has happened. In dealing with this issue, Gillespie attacks repeatedly criticizes the “militarization” of the police for the obvious risk that it could give them the reason to attack as if they were soldiers. But the declining numbers of fatalities don’t support that conclusion, and the use of military gear in some cases at least could protect the police from serious bodily injuries. Do shields and tasers save lives, or do they serve only to inspire public resentment?

These are fair questions. But Gillespie goes a bit over the line when he notes, quoting both Reason and Cato, that “The buzz phrase in policing today is officer safety.” At the very least that ought to be a serious consideration. Indeed, even at the height of racial unrest in the late 1960s a liberal Supreme Court in Terry v. Ohio, approved, after anguished reflection, a stop and frisk regime when police had reasonable suspicion of the potential commission of a crime. That decision was not idle. Police officer deaths in the line of duty, year to date for 2014, were 67 of which 27 were by gunfire. For the full year of 2013, the numbers were 105 total deaths, with 30 by gunfire. It would be odd to say that police officer deaths (which are more common than deaths to citizens from police officers) should not count especially since it is very difficult to envision circumstances where killing a police officer counts as a form of justifiable homicide, and easy enough to imagine cases where killings by police officers are justified.

As in the case of mass killings, we have to be very careful before we draw general conclusions from particular cases. The killing of Eric Garner raises lots of serious questions, but it doesn’t seem that one of them should be whether New York City should keep to its “broken windows” policy, which worries about quality of life issues in an effort to create a social climate in which lax policing is taken as a sign of public indifference to serious offenses. The clear point here is that broken windows or no broken windows, the use of excessive force by police is always inexcusable, so that the proper policy is to tamp down on those forms of abuses without redoing general policies of community relationships which, while always subject to revision, should not be regarded as a weak link in the system.

These arguments speak, moreover, to the overreach of modern libertarian thought, which in the end does not have any distinctive take on these critical issues of public administration. No one should condone excessive police force, private crime, or violent public protests. The hard question is figuring out the ways in which to tamp down on these issues. That is ultimately the challenge of any responsible system of public administration. Oddly enough, that task need not raise profound questions of what counts as right and wrong conduct. The inconsistent accounts of the Brown killing all play off a common moral substrate. Killing an unarmed civilian in cold blood is a crime. Killing in self-defense is not. The task of public administration is to find out which happened, and to do it quickly and in a way that can command public confidence and respect. No easy job, it seems. 

*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.

Setting Krugman Straight

Richard Epstein*



The recent story in the New York Magazine, “Has the ‘Libertarian Moment’ Arrived?” by Robert Draper, has given rise to a great deal of speculation about whether we are poised for another great political transformation. Needless to say, the prospect of this “moment” fills the New York Times set with dread. The Times’ all-purpose scold Paul Krugman followed up Draper’s tell-all story with his own harsh critique of “libertarian economics” in his column “Phosphorus and Freedom.” He concludes that it is “foolish” for defenders of free market economics to believe that “we have a vastly bigger and more intrusive government than we need.” Unfortunately, Krugman knows nothing about the libertarian principles that he blithely dismisses.

Krugman points to three places where he thinks that libertarian enthusiasts have gone sadly astray: pollution, the Food and Drug Administration, and the Department of Motor Vehicles.

In order to set the stage for this critique, it is necessary to first establish how libertarians understand free markets. Most emphatically, these markets do not operate in a vacuum. They require that we have clear assignments of rights to both human labor and external objects. The standard position here is that all individuals own their own labor and the various resources, both physical and intangible, that they acquire either by initial capture or by transfer from a prior owner. Its basic system of exchange must be protected by vigorous rules that prevent all self-interested individuals from disrupting voluntary transactions. There must be formalities with certain classes of contracts to increase security of exchange. And there must be strong rules to prevent bad actors from bypassing the market by seizing things that do not belong to them. That prohibition against theft in turn requires the state to provide remedies against other actions that destroy the property of other persons, not only by direct blows but also by pollution. Far from rejecting these government limitations on individual activities, a responsible system of laissez-faire capitalism necessarily embraces them. A sensible libertarian is a classical liberal in the tradition of Adam Smith and David Hume. On economic issues he is no anarchist, but a believer in limited government.

Libertarians and Pollution

Krugman sums up his criticism of libertarianism in one word: phosphorus. Evidently, Erick Erickson, a prominent blogger at Red State, frothed at the mouth when a local city council banned phosphorus in dishwasher detergents. Erickson’s categorical denunciation was ignorant and ill-informed, but so too was Krugman’s purported refutation of that overheated position.

There is little doubt that phosphorus is a pollutant that can kill aquatic life. One possible remedy against parties whose discharges poison the land and waters of others is a tort suit brought to stop its use or collect damages for harms caused. But a moment’s reflection shows that this solution is creaky. First, there are too many users to sue, and second, it is not clear which people should bring suits for the assorted harms. For hundreds of years it has been widely understood that direct regulation is often an efficient substitute for an inferior tort system, which achieves a legitimate government goal at low costs. Krugman is right that the system cannot work if farmers can evade controls, and the sensible libertarian recognizes that as well by expanding the scope of enforcement.

Indeed, the key challenge for regulatory design is what form of regulation works best. Perhaps a total ban of phosphorus in detergents or farming is too costly to productive activities. It is therefore always a fair question to ask whether small amounts might be used, and if so by whom, and further whether to tax those users to give them private incentives to avoid the additional harms.

So stated, the libertarian critique against government regulation no longer operates as a blunderbuss. Instead it asks whether the regulation comes too soon and is too severe. Thus it is commonplace today to require individuals who wish to build homes at a distance from the water to go through extensive government approvals, often administered by an overzealous Army Corps of Engineers, before getting a building permit. The paperwork is expensive and never ending; the delays inordinate, and the required precautions a waste of time and money. For example, the record in the 2006 case Rapanos v. United States, revealed that “The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915—not counting costs of mitigation or design changes.”

Rather than engage in this unending charade, just let the construction start, and then impose a prompt cease-and-desist order, clean-up obligations, fines, and damages—but only for builders whose activities pose an imminent threat of pollution, which, given everyone’s knowledge of the looming sanctions, will typically be a tiny fraction of the cases. In the face of this sensible alternative, and in light of similar difficulties in getting building permits in urban settings, Krugman is a pure ideologue in denying that government is “vastly bigger and more intrusive” than it ought to be.

Abolish the FDA?

Krugman’s second sally ridicules Milton Friedman for suggesting that we should abolish the FDA and use tort law in its place. In this case, both economists get failing marks stemming from their inability to master the institutional details. For starters, the FDA has three distinct functions in regulating drugs: insuring purity, testing for safety, and testing for effectiveness. No serious libertarian mounts an existential attack on the FDA for discharging the first function. An action in tort law (or in contract law for a breach of the implied warranty of merchantability) presupposes that you can find the rogue supplier who puts dangerous stuff into the marketplace. As with pollution, the inadequacy of the individual lawsuit requires some concerted government action to stop these deadly incidents before they occur. Indeed, in practice, the risks of contamination and adulteration are so severe that reputable pharmaceutical manufacturers work hand-in-hand with the FDA to stop illegal imports and domestic sales of bogus drugs.

It hardly follows, however, that the FDA does as well when it oversees clinical trials of new drugs. Here its practices are rigid and obsolete; they impose unconscionable delays on letting new drugs into the market. As a consequence of its incompetence, the FDA is besieged with pleas for exceptions by people for whom all approved therapies have failed. Indeed, the extensive market for off-label uses of FDA-approved drugs shows that physicians are a lot better at making treatment prescriptions than the FDA. Moreover, its effectiveness studies almost always miss the boat. Individual healthcare programs, armed with knowledge of their customer base, can do this job better.

Nor is the tort law any panacea. The actions today are not confined to suits for drugs that are improperly formulated. Those cases are rarities. Virtually all the litigation brought today is by disgruntled patients who insist that the FDA-required warnings did not adequately inform them of the associated risks of the product. These lawsuits are almost always counterproductive given that the FDA warnings are typically far too alarmist, so that they serve no useful function at all. Private systems of warnings developed by such organizations as the National Comprehensive Cancer Network provide far more accurate and up-to-date information than the FDA, because they systematically address such key issues as dosage levels, treatment sequences, and drug interactions that the FDA overlooks. Is this intervention “bigger and more intrusive than we need”? You betcha.

The Case for the DMV

Last, Krugman fantasizes that libertarians recoil at the Department of Motor Vehicles. This is not the case. The case for that body is similar to that for collective controls over pollution, only easier. Keeping bad drivers off the road is often better than allowing them to kill innocent people. Keeping a system of fines and tort remedies in place offers a sensible three-prong program that tends to minimize the risks of keeping too many good drivers off the road and letting too many bad drivers on it. The tests can be reasonably objective and easily processed. It is government at its best. Illinois, which can hardly do anything right, runs a perfectly fine DMV for ordinary drivers.

Yet it hardly follows that all motor vehicle licensing is risk free. Former Illinois Governor George Ryan went to jail for taking bribes to issue licenses to unqualified truck drivers, with deadly results. The abuses of licensing power become greater when the licenses limit the number of trucks that ship tomatoes from Illinois to California, but not back again, or rations taxi cabs medallions that sell at artificially high prices. A sound system of regulation never lets the state use its licensing power to restrict competition on a facility over which the state has monopoly power.

The Bigger Picture

The overall pattern should now be clear. One reason why the debate between hard-line libertarians and their fevered opponents like Krugman has taken such a know-nothing turn is that neither side bothers to take seriously the nitty-gritty institutional details on the uses and limits of regulation in a variety of complex areas. Milton Friedman tended to miss these points because his main targets were minimum wage, rent control, and agricultural price supports, where the hard line libertarian solutions make a good deal of sense.

Krugman doesn’t have that excuse. He fails to understand how institutions work because it is so much easier to slam libertarians for their cultish devotion to Ayn Rand. The truth is, as I argued in an earlier critique of Rand Paul, libertarianism has a strong and useful theory of rights, but offers only loose guidance on the mix between public and private remedies for both breach of contract and harms to strangers, including pollution. All Krugman’s popular work is marred by his obsessive attention to monetary policy and the Fed. If he ever cared to study mid-level regulations on pollution, drugs, and highway usage, he would discover that not all libertarians are as clueless as his New York Times screeds have become. 

*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 Pax Americana is Dead

Richard Epstein*



Thomas Friedman, the respected New York Times columnist, tried to do a beleaguered President Barack Obama a favor by publishing a summary of an extended interview between the two men, which was grandly entitled “Obama on the World.” Friedman tried to present the President in a positive light, by calling his weak responses “feisty.” Yet there is no denying that Obama’s rudderless foreign policy has been a disaster. The international order has rapidly deteriorated since Obama entered the Oval Office. The current situation is so perilous that so long as Obama remains President, the phrase “presidential leadership” will continue to be an oxymoron.

The President suffers from two fundamental flaws. The first is that he is unwilling to make decisions. He much prefers to play the role of a disinterested observer who comments on a set of adverse events that he regards himself as powerless to shape, of which Assad’s carnage in Syria is the prime example. The second is that he fundamentally misunderstands the use of force in international affairs. He handicaps himself fatally by imposing unwise limitations on the use of American force, such as his repeated declarations that he will not send ground troops back into Iraq.

To put these points into perspective, it is important to address two issues that Friedman never raises with the President: military strength and American influence. Regarding the first, Freidman fails to discuss President Obama’s conscious decision to reduce the budgets for, and hence the size of, American military operations throughout the world. In the President’s view, cutting down on the size of the military reduces the American temptation to intervene in disputes around the globe, and thus prevents misadventures such as our interventions in Iraq and Afghanistan that have sapped American strength with little or nothing to show for it.

The second issue Friedman never addressed is the deterioration in world peace that has happened since President Obama became president. No one can claim that Iraq was at peace when George W. Bush left office, but the violence had been curbed. Since Obama has taken over, relative tranquility yielded to factional squabbling, followed by vicious aggression that caught the President woefully off guard. Iraq is not alone. The number of hotspots in the world—including Gaza, Syria, Libya, Nigeria, Ukraine and the China Sea—is increasing. The President wrings his hands over how difficult it has become to find credible allies in the world to address these problems without ever asking why no one trusts him. So he resolves to hold back on the use of American force overseas. Armed with that certainty, every tin pot dictator and terrorist group thinks it has an open field in which to run.

The President’s blunders remind us that we need Pax Americana in international affairs. If the United States maintains a large military force and is prepared to use it, the threat of American force could snuff out a large number of troublemakers and help decent people organize their own affairs. It was this policy that made NATO such a success in the immediate post-war years. It will also allow the United States to use force effectively when needed. But once our commander-in-chief neutralizes America’s military might, weaker but more determined nations and groups know that they have a free hand to follow their own aggressive agendas. Worse still, this passive policy invites new thugs like Abu Bakr al-Baghdadi to propel themselves into regional prominence.

When Friedman asked the President about how his hapless policies created the current tinderboxes, Obama said he "is only going to involve America more deeply in places like the Middle East to the extent that the different communities there agree to an inclusive politics of no victor/no vanquished.” This noble sentiment gets the causation backwards. So long as we remain on the sidelines, we can be quite sure that the various factions in Iraq will continue to take what Obama termed “maximalist positions,” without the spirit of compromise.

The President wants “to speak to the Sunni majority,” but how is that possible in parts of Iraq under the thumb of extremist groups? He also chides the wretched and untrustworthy Prime Minister Nuri Kama al-Maliki for missing opportunities to share power with his mortal enemies. Yet chastising current Iraqi officials won’t get the job done. Left to their own devices, the Sunni, Shiite, and Kurdish factions in Iraq have such well-earned mutual distrust that they will never be able to agree upon a workable long-term power sharing arrangement when each party wants 60 percent of the available power in a world where majority vote rules.

The United States cannot hunker down on the sidelines until those groups reach an agreement. It cannot announce in advance that it will not step in to be the Iraqi or Kurdish air force “in the absence of a commitment of the people on the ground to get their act together and do what’s necessary politically to start protecting themselves and to push back against ISIL.”

There is only one way for this to happen. It is for the United States to put real resources on the table, and to announce in advance it will stay for the duration. It is not a question of putting “a lid” on the problem. Seeking a status of forces agreement that would allow 10,000 American troops to remain in Iraq is hopeless. The warring Iraqi factions will never commit themselves to an American presence that they regard as puny and ineffective. What is needed is American backing with force and determination. As confidence grows, we can pull back some of our commitments. But it will be a long and expensive process, without which the Yazidis will be driven out of Erbil and stranded on Mount Sinjar, both places that no one heard of before the Iraqi meltdown.

Obama knows the dangers of his half measures, given his own regrets on Libya. Friedman writes: “Intervening in Libya to prevent a massacre was the right thing to do, Obama argued, but doing it without sufficient follow-up on the ground to manage Libya’s transition to more democratic politics is probably his biggest foreign policy regret.” When it now comes to salvaging the wreckage in Northern Iraq, he has stressed repeatedly that he prefers months of inconclusive air attacks to placing some boots on the ground that could rout the ISIL forces in a short fraction of that time. It is hard to know how many people will starve or be killed in the interim. But we do know that tens of thousands of people have already been forced from their homes, some of whom have already lost their lives while the President dithered because he wanted the Iraqi government to repair its own internal relations. Half measures do not a great President make.

A record as dismal as Obama’s does not happen by accident. It stems from some fundamental conceptual error, which in this instance is one that is shared by the hard-line libertarian wing of the Republican Party, led by Rand Paul, which is deeply suspicious of the use of force in international affairs. The root of the difficulty is this: a strong libertarian believes that the primary wrong is the use or threat of force. It’s clearly wrong for a powerful nation such as the United States to commit aggression against its weaker neighbors. But the intellectual slogging for libertarians gets a lot tougher when the question is how to respond to both the use and threats of force by others. In these cases, the principle of self-defense reveals how difficult it is to decide when to respond and with how much force even in simple disputes between ordinary individuals. The issues only get tougher in the international arena as the stakes get higher and the overall uncertainty increases.

Obama, like the hard-core libertarians, is skeptical about the use of force in international affairs. Imprudence is of course unwise in any area, but one cannot rule out the extensive use of force in corners of the world where the ends sought—the control of the aggression of others—is indubitably legitimate. The point is true even in cases in which nations act in defense of third parties who are incapable of defending themselves. Of course, intervention is costly and can easily backfire. But less intervention is not always less costly than more intervention.

In many cases, the only effective way to deal with aggression is with a strong and decisive response. Our overly intellectual President has failed to deliver one. He sees himself as a deep thinker who sees issues that lesser minds just miss. He would do a lot better in international affairs if he would stop his philosophical musings and start being the President of the United States and the leader of the free world.

*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.

Spying, Lying, and Torture

Judge Andrew P. Napolitano*

            In some respects, the recent admission by CIA Director John Brennan that his agents and his lawyers have been spying on the senators whose job it is to monitor the agency should come as no surprise. The agency’s job is to steal and keep secrets, and implicit in those tasks, Brennan would no doubt argue, is lying.

            Yet in another respect, this may very well be a smoking gun in the now substantial case against President Barack Obama that alleges that much of his official behavior has manifested lawlessness and incompetence. It is hard to believe that the president did not know about this but not hard to believe he would look the other way.

            About four months ago, California Democrat Dianne Feinstein, the chairwoman of the Senate Select Committee on Intelligence, went to the Senate floor and accused the CIA of committing torture during the presidency of George W. Bush and of spying on the committee that she chairs as it was examining records of that torture. Brennan responded by denying both charges and leveling his own -- that investigators for the Senate Intelligence Committee had exceeded their lawful access to CIA records and that that constituted spying on the CIA.

            Brennan even got his predecessor, George Tenet, under whose watch Feinstein claimed the torture had occurred and the attacks of 9/11 took place, to deny vehemently that his agents had committed torture. With this mutual finger-pointing, both the CIA and the Senate Intelligence Committee reported each other to the Department of Justice, which promptly punted.

            How did all this come about? Under federal law, the CIA gets to do what the president permits and authorizes only when it reports its deeds and misdeeds truthfully to two congressional committees, one of which is the Senate Intelligence Committee. (The other is the House Permanent Select Committee on Intelligence.) None of this is constitutional, of course, seeing as the CIA fights secret wars; the Constitution mandates that only Congress can declare war, and Congress cannot delegate its constitutional authority to committees. This system of secret government is so secret that 90 percent of our elected congressional representatives are kept ignorant of it.

            But last week, on a sleepy Friday afternoon in the middle of the summer, Obama admitted that the CIA had tortured people, and shortly thereafter, Brennan admitted that the CIA had spied on the Senate. Then the president said he still has confidence in Brennan.

            This is approaching a serious constitutional confrontation between the president and Congress. Can the president’s agents lawfully spy on Congress? Of course not. Can the CIA lie to Congress with impunity? Only if Congress and the Department of Justice let it do so.

            Yet this administration thrives on lies. Brennan’s boss, James Clapper, who is the director of national intelligence, lied to the same Senate Intelligence Committee when he denied that the National Security Agency is collecting massive amounts of personal data on hundreds of millions of Americans. And now we have the CIA director lying in secret to his congressional monitors, who were formerly his congressional protectors, and a Justice Department unwilling to do its legal duty by enforcing the law.

            Do you remember former Yankee great Roger Clemens? He was indicted and tried twice for lying to a congressional committee about the contents of his urine. He was acquitted, yet this should tell you about the government’s priorities. It is more interested in chastening a baseball player about a private matter than it is in being truthful to the American people about torture. It apparently thinks that government employment is a defense to lying.

            So where does all this lead us? The president’s agents have lied to Congress and have spied upon it. If Brennan did not know about this, he should be fired for incompetence and for failing to control his agents. If he did know about this, he should be indicted for lying to Congress, because he denied it at a time when he had a lawful obligation to be truthful, and he should be fired for his failure to communicate a violation of the Constitution to the president. If he did tell the president that his agents were about to spy on Congress and the president failed to stop it, the president has committed a serious violation of his oath to uphold the laws and violated the separation of powers by invading the privacy of a coequal branch of the government -- and that is an impeachable offense.

            So, what shall we do about this? House Speaker John Boehner will say, “Let’s sue the president.” That’s a joke. How about subpoenaing the president to testify under oath and asking him what he knew and when he knew it? Now you’re getting warmer. How about impeaching him and calling him as the first witness in his own impeachment trial? His Department of Justice has argued that the Fifth Amendment privilege against self-incrimination applies only in criminal cases. Now you’re getting hot.

            But wait. All this requires moral courage, righteous indignation and fidelity to the rule of law; and the Congress has none of those traits. In the post-9/11 world, Congress has become a potted plant, ready to give any president whatever he wants, lest it appear less than muscular in the face of whatever danger the president says is lurking in the dark. And presidents know that if the kitchen gets hot, all they need to do is foment a foreign crisis in the dark, and the country will unite behind them.

            I am not so sure that unity behind the president will happen this time.

           *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.

"Middle-Out" Economics?

Richard Epstein*



This past week I appeared on the PBS News Hour on a segment hosted by Paul Solman. The segment was titled, “Top-down or middle-out? Debating the key to economic growth.” The show focused on the work of Nick Hanauer, an American entrepreneur and venture capitalist with a net worth of $1 billion, who appeared opposite me on television. Hanauer gave a talk on TED that went viral, receiving over a million views on YouTube, in which he advanced a middle-out thesis for economic growth: “The fundamental law of capitalism is, if workers don’t have any money, businesses . . . don’t have any customers.”

I was asked to comment on his thesis. The exchange was hard to get off the ground. His remarks were made without reference to anything that I said. I directed sharp criticism to his populist creed and argued that the middle class creates wealth through its demand—not the capitalist through his innovation.

Top, Middle, or Bottom?

When you appear on television, it’s hard to control how the central issues are framed. In this instance, the title chosen by PBS bought into Hanauer’s conception of the world with its middle-out perspective. But the phrase “top-down” does not reflect my views, as the segment’s title suggests. I take the classical liberal position on wealth creation.

The first source of difficulty is that a top-down approach frequently implies that wealth is created through central planning. That is, the government coordinates all forms of social investment. Following Friedrich Hayek, I cannot think of a worse way to plan the operation of any economy. The classical liberal view on this subject is that of bottom up wealth creation, which operates as follows.

The initial assumption is that the state is not regarded as the creator of rights, but as their protector. Individual rights in labor and intelligence belong to an individual as a matter of birth, not via a grant from the state. Claims to particular property are initially created by occupying land, capturing animals, or grabbing things that are otherwise unowned. Once individuals own property, the key office of the legal system is two-fold: First, to stop aggression, and second, to allow for coordinated activities, which includes the use of public funds to create the needed infrastructure over which private transactions take place.

At this point, the relationships between consumption, production, and growth are not determined by some magical law that favors a top-down, middle-out, or bottom-up position. What happens is that individual decisions to collaborate on various ventures drive all aspects of the wealth cycle from innovation to implementation. There is no privileged position for either middle class consumption or capitalist innovation. Hanauer is, of course, correct to say that unless consumers have income they cannot buy the services, both new and old, that capitalists produce. But the relationships are reciprocal, so that entrepreneurs must be there to provide goods and services that consumers want, and to pay wages to workers which they then spend in their roles as consumers. All sides of the relationship constantly feed each other.

At this point, any claim of priority no longer makes any sense. Indeed a claim to focus on aggregate consumption for the middle class makes no sense either. Let each individual decide how much of his income or wealth to consume or invest. Let each person also decide whether to direct his or her investments into new or old technologies. Each person makes his or her choices with some knowledge of the plans of others. Their decentralized choices will yield a more informed set of outcomes on both production and consumption than either a state-imposed top-down or middle-out version of the world.

The Problem With Middle-Out Economics

The decision by Hanauer to stress his so-called middle-out position carries with it dangerous policy implications, which are evident in how he treats both labor and taxation policy.

One supposed implication of Hanauer’s consumer-driven account is that efforts to pump out aggregate demand depend on boosting up income for the middle class by devices targeted to that end. This policy goes back as far as the 1930s when one of the rationales for mandatory collective bargaining under the National Labor Relations Act stemmed from the supposed belief, as its statutory findings announced that “the inequality of bargaining power” between employers and employees “depresses the purchasing power of wage earners,” for which the higher wages wrought by concerted union action was the appropriate policy response.

Yet the NLRB miscarried for multiple reasons. First, its pro-union policies only address the union members, not overall consumer demand. If unions get more through industrial action, other workers could easily get less, so that no confident claim can be made about the aggregate effects of unionization. In addition, the shift in market arrangements increases bargaining costs and results in monopoly dislocations, including strikes, lockouts, and other interruptions in production, that offset any supposed gains from more aggregate consumption. Rather than rig markets, the better approach is to secure open competition in all markets, so that wages are bid up as productivity increases, wholly without government intervention.

Hanauer does not grasp these fundamentals. He repeats a common mistake when he writes: “But there is this upper limit on what we can spend. I drive a very nice car, but it’s only one car. I don’t own 1,000, even though I earn 1,000 times the median wage.” True enough. But the point only shows that he has a diminishing marginal utility for one form of consumption, which means that his consumption expenditures will switch to fine wines and private jets, while his unspent wealth is used to fund investments in new businesses or charitable operations. Think of it this way: people who earn huge amounts, but take very little out by way of consumption are doing a public service. Others gain from the increased supply of capital.

Unfortunately, Hanauer does not see matters this way, and thus makes counterproductive recommendations for both labor policy and taxation. On the former, he is an active backer of the $15 minimum wage law in Seattle on the ground that it will put money in workers’ pockets so that they can buy more goods. But that assumes that the jobs will remain after the wages are increased—that the wage increase won’t unleash collateral damage.

Indeed, his defense of major wealth transfers is condemned by his own example: “Wal-Mart earned $27 billion in profit last year. They could afford to pay their bottom million workers $10,000 more a year, raise all of those people out of poverty—save taxpayers billions of dollars, and still earn $17 billion in profit, right?” Not so fast. He speaks as if the huge transfer of wealth is fully captured by subtracting $10 billion from $27 billion. But huge hits generate counterstrategies as management has to find a way to stop the decline in share prices when net earnings drop by close to 40 percent. The cost of capital increases; capital to fund internal investments diminish. The firm looks at ways to cut workers to save labor costs, so that we see more outsourcing and greater automation. By the same token, it may have to raise prices to boost revenues, but only at the risk of lost business, given that its core customer base includes a large percentage of price-sensitive lower-middle class people.

My approach was the opposite. Repeal the minimum wage and let people work for $.02 per hour. Let, not make, of course. This claim does not rest on some ludicrous assumption that anyone can “survive” on that nominal wage. Indeed, one reason that Solman was incredulous at my suggestion lay in his failure to understand why it sometimes makes sense for workers to take a low or nominal wage, namely, in order to improve their ability to earn more money a year later. Gary Becker called this investing in human capital, and clearly any individual who takes this strategy should have some other source of short term income, whether from savings, a second job, family support, or in kind payments of room and board. The constant talk of the living wage should not blind us to the importance of life-cycle earnings, which could be undercut by a high minimum wage that keeps people out of the labor market

A similar criticism can be lodged against Hanauer’s proposal to tax the rich to fund the middle class. It won’t work. The tax increases under the Obama administration have not stopped the slide in median income in the United States, because they do nothing to ease the ever-rising burden of labor regulation, a topic that Hanauer never mentions. Today, the combination of taxation and regulation eliminates job opportunities, especially for workers at the bottom of the market.

The same logic applies to taxation targeted to the rich, which creates political uncertainty, drains investment income, and leads to wasteful albeit legal strategies of tax avoidance, including the now-popular tax inversions that drive companies overseas. Adam Smith was right to insist that low, flat taxes increase stability and spur growth.

The conventional wisdom holds that classical liberals like myself are ideologues untouched by human emotion and uneducated by practical experience. Many believe that to oppose the minimum wage is to tolerate pollution and abandon a public highway system. But that is a false caricature of laissez-faire, which has never once licensed nuisances against strangers or prevented the state construction and maintenance of infrastructure.

Laissez-faire economics is in retreat. Today, the progressive mindset drives much of public policy. So the populist skeptics of laissez-faire have to ask themselves a simple question: How can the decline in median income and the slow growth rate over the past six years be attributable to policies that have not been in place for a long time? The source of our current malaise is the populism of people like Hanauer who fail to understand the negative, but quite real, unintended consequences of their policy prescriptions.

*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.