Chris Christie vs. Rand Paul

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

The dust-up between New Jersey Gov. Chris Christie and Kentucky Sen. Rand Paul over presidential fidelity to the Constitution -- particularly the Fourth Amendment -- was the most illuminating two minutes of the Republican debate last week.

It is a well-regarded historical truism that the Fourth Amendment was written by victims of government snooping, the 1770s version. The Framers wrote it to assure that the new federal government could never do to Americans what the king had done to the colonists.

What did the king do? He dispatched British agents and soldiers into the colonists’ homes and businesses ostensibly looking for proof of payment of the king’s taxes and armed with general warrants issued by a secret court in London.

A general warrant did not name the person or place that was the target of the warrant, nor did it require the government to show any suspicion or evidence in order to obtain it. The government merely told the secret court it needed the warrant -- the standard was “governmental need” -- and the court issued it. General warrants authorized the bearer to search wherever he wished and to seize whatever he found.

The Fourth Amendment requires the government to present to a judge evidence of wrongdoing on the part of a specific target of the warrant, and it requires that the warrant specifically describe the place to be searched or the person or thing to be seized. The whole purpose of the Fourth Amendment is to protect the right to be left alone -- privacy -- by preventing general warrants.

The evidence of wrongdoing that the government must present in order to persuade a judge to sign a warrant must constitute probable cause. Probable cause is a level of evidence sufficient to induce a neutral judge to conclude that it is more likely than not that the government will find what it is looking for in the place it wants to search, and that what it is looking for will be evidence of criminal behavior.

But the government has given itself the power to cut constitutional corners. The Foreign Intelligence Surveillance Act, the Patriot Act and the Freedom Act totally disregard the Fourth Amendment by dispensing with the probable cause requirement and substituting instead -- incredibly -- the old British governmental need standard.

Hence, under any of the above federal laws, none of which is constitutional, the NSA can read whatever emails, listen to whatever phone calls in real time, and capture whatever text messages, monthly bank statements, credit card bills, legal or medical records it wishes merely by telling a secret court in Washington, D.C., that it needs them.

And the government gets this data by area codes or zip codes, or by telecom or computer server customer lists, not by naming a person or place about whom or which it is suspicious.

These federal acts not only violate the Fourth Amendment, they not only bring back a system the Founders and the Framers hated, rejected and fought a war to be rid of, they not only are contrary to the letter and spirit of the Constitution, but they produce information overload by getting all the data they can about everyone. Stated differently, under the present search-them-all regime, the bad guys can get through because the feds have more data than they can analyze, thus diluting their ability to focus on the bad guys.

Among the current presidential candidates, only Paul has expressed an understanding of this and has advocated for fidelity to the Constitution. He wants the government to follow the Fourth Amendment it has sworn to uphold. He is not against all spying, just against spying on all of us. He wants the feds to get a warrant based on probable cause before spying on anyone, because that’s what the Constitution requires. The remaining presidential candidates -- the Republicans and Hillary Clinton -- prefer the unconstitutional governmental need standard, as does President Obama.

But Christie advocated an approach more radical than the president’s when he argued with Paul during the debate last week. He actually said that in order to acquire probable cause, the feds need to listen to everyone’s phone calls and read everyone’s emails first. He effectively argued that the feds need to break into a house first to see what evidence they can find there so as to present that evidence to a judge and get a search warrant to enter the house.

Such a circuitous argument would have made Joe Stalin happy, but it flunks American Criminal Procedure 101. It is the job of law enforcement to acquire probable cause without violating the Fourth Amendment. The whole purpose of the probable cause standard is to force the government to focus on people it suspects of wrongdoing and leave the rest of us alone. Christie wants the feds to use a fish net. Paul argues that the Constitution requires the feds to use a fish hook.

Christie rejects the plain meaning of the Constitution, as well as the arguments of the Framers, and he ignores the lessons of history. The idea that the government must break the law in order to enforce it or violate the Constitution in order to preserve it is the stuff of tyrannies, not free people.

*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 and Ted on the Fourth

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

A decision last week about NSA spying by a panel of judges on the United States Court of Appeals in New York City sent shock waves through the government. The court ruled that a section of the Patriot Act that is due to expire at the end of this month and on which the government has relied as a basis for its bulk acquisition of telephone data in the past 14 years does not authorize that acquisition.

This may sound like legal mumbo jumbo, but it goes to the heart of the relationship between the people and their government in a free society. Here is the backstory and the latest.

The Patriot Act is the centerpiece of the federal government’s false claims that by surrendering our personal liberties to it, it can somehow keep us safe. The liberty-for-safety offer has been around for millennia and was poignant at the time of the founding of the American republic.

The Framers addressed it in the Constitution itself, where they recognized the primacy of the right to privacy and insured against its violation by the government by intentionally forcing it to jump through some difficult hoops before it can capture our thoughts, words or private behavior.

Those hoops are the requirement of a search warrant issued by a judge and based on evidence -- called probable cause -- demonstrating that it is more likely than not that the government will find what it is looking for from the person or place it is targeting. Only then may a judge issue a warrant, which must specifically describe the place to be searched or specifically identify the person or thing to be seized.

None of this is new. It has been at the core of our system of government since the 1790s. It is embodied in the Fourth Amendment, which is at the heart of the Bill of Rights. It is quintessentially American.

The Patriot Act has purported to do away with the search warrant requirement by employing language so intentionally vague that the government can interpret it as it wishes. Add to this the secret venue for this interpretation -- the FISA court to which the Patriot Act directs that NSA applications for authority to spy on Americans are to be made -- and you have the totalitarian stew we have been force-fed since October 2001.

Because the FISA court meets in secret, Americans did not know that the feds were spying on all of us all the time and relying on their own unnatural reading of words in the Patriot Act to justify it until Edward Snowden spilled the beans on his former employer nearly two years ago.

The feds argued to the secret court that they were entitled to any phone call data they wanted -- usually sought by area code or zip code or the customer base of telecom service providers -- so long as they claimed to need it to search for communications about terror-related activities, and they claimed they needed EVERYONE’S records, and they claimed the Patriot Act authorized this.

The secret court bought those claims, and -- fast-forward to today -- the feds now have immediate access to our phone calls in real time. They can turn on our cellphones in our pockets and purses and use them as listening devices without us knowing it, and they have physical access to all telephone carriers’ equipment whenever they wish, which today is 24/7.

Some members of Congress reject this. Foremost among the outraged in the Senate is Kentucky Sen. Rand Paul. It is none of the government’s business, he argues, what we say on our phone calls. If the NSA wants to hear us, let them present probable cause to a judge identifying the person they want to hear and seek a search warrant. Paul’s is a genuine outrage from the only voice among those running for president who is faithful to the Constitution.

Other senators, foremost among them Texas Sen. Ted Cruz, also running for president, are pretending outrage by offering a Band-Aid to replace the Patriot Act called the Freedom Act. The Freedom Act gets the NSA physically out of the telecoms’ offices, but lets them come back in digitally whenever one of these secret FISA courts says so, and the standard for saying so is not probable cause as the Constitution requires. It is whatever the government wants and whenever it wants it.

The so-called Freedom Act would actually legitimize all spying all the time on all of us in ways that the Patriot Act fails to do. It is no protection of privacy; it is no protection of constitutional liberty. It unleashes American spies on innocent Americans in utter disregard of the Fourth Amendment.

Earlier this week, Paul announced that he feels so strongly about the right to be left alone, and takes so seriously his oath to uphold the Constitution, and believes so certainly that our phone calls are none of the government’s business that he plans to filibuster all attempts to permit this to continue. For that alone, he is a hero to the Constitution. Perhaps his friend Cruz will return to his constitutional roots and join him.

How do we know that the Freedom Act is a Band-Aid only? Because the NSA supports 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.

My Rand Paul Problem

Richard Epstein

The name of my Defining Ideas column is “The Libertarian.” The title of my recent book on constitutional law is “The Classical Liberal Constitution.” Clearly, I consider myself a proponent of limited government. So does Senator Rand Paul of Kentucky, who has moved the term “libertarian” to the fore of our national political debates. In a recent New York Times analysis, “Rand Paul’s Mixed Inheritance,” Sam Tanenhaus and Jim Rutenberg treat him as today’s exemplar of libertarian thought. But Paul’s ideology is a far cry from classical liberalism, which is conceptually and politically superior to hard-line libertarianism.

Libertarians and Holdouts

Libertarians fall into two distinct groups: strict libertarians like Rand Paul and classical liberals such as myself. “Classical liberal” is not a term that rolls off of the tongue. Consequently, “libertarian” is the choice term in popular discourse when discussing policies that favor limited government. Libertarians of all stripes oppose President Obama’s endless attacks on market institutions and the rich. The umbrella term comfortably embraces both strands of libertarian theory vis-à-vis a common intellectual foe.

The renewed attention to Paul exposes the critical tension between hard-line libertarians and classical liberals. The latter are comfortable with a larger government than hard-core libertarians because they take into account three issues that libertarians like Paul tend to downplay: (1) coordination problems; (2) uncertainty; (3) and matters of institutional design. None of this is at all evident from Tanenhaus and Rutenberg’s unfair caricature of the “mixed inheritance” among the “libertarian faithful,” which to them includes, “antitax activists and war protestors, John Birch Society members, and a smatter of truthers who suspect the government’s hand in the 2001 terrorist attacks.”

This unfortunate list mixes libertarians of all stripes into a convention of unthinking kooks. A more accurate rendition of the various strands of libertarian thought would hearken back to such great thinkers as Hobbes, Locke, Montesquieu, Hume, Smith, and Madison. Their incisive contributions concerned the relationship between individual liberty and the social order.

It is important to understand the differences in views between the strong libertarian and classical liberal position. Serious hard-line libertarian thinkers include Murray Rothbard and Karl Hess. Rothbard believes nonaggression is the sole requirement of a just social order. For Hess, “libertarianism is the view that each man is the absolute owner of his life, to use and dispose of as he sees fit.” There are large kernels of truth in both propositions. It is quite impossible to see how any social order could be maintained if there were no limitations against the use, or threatened use, of force to enslave or butcher other people, which Hess’s proposition of absolute self-ownership strongly counteracts.

Yet the overarching question is how does a group of people move from the Hobbesian “war of all against all” toward a peaceful society? Hess claims that stable institutions are created by “voluntary association and cooperation.” Again, strong libertarians are on solid ground in defending (most) private contracts against government interference, which is why Lochner v. New York (1905), reviled as it is by most constitutional thinkers, was right in striking down New York’s sixty hours per week maximum labor statute. Yet the hard-line libertarian position badly misfires in assuming that any set of voluntary contracts can solve the far larger problem of social order, which, as Rothbard notes, in practice requires each and every citizen to relinquish the use force against all others. Voluntary cooperation cannot secure unanimous consent, because the one violent holdout could upset the peace and tranquility of all others.

The sad experience of history is that high transaction costs and nonstop opportunism wreck the widespread voluntary effort to create a grand social alliance to limit the use of force. Society needs a coercive mechanism strong enough to keep defectors in line, but fair enough to command the allegiance of individuals, who must share the costs of creating that larger and mutually beneficial social order. The social contract that Locke said brought individuals out of the state of nature was one such device. The want of individual consent was displaced by a consciously designed substantive program to protect both liberty and property in ways that left all members of society better off than they were in the state of nature. Only constrained coercion can overcome the holdout problems needed to implement any principle of nonaggression.

The Antitax Divide

Precisely for this reason, the vigorous “antitax” strand of hard-line libertarian thought has never commended itself to classical liberals like myself, who recognize the need for taxation to support the institutions of social order. Usually that view cashes out into a defense of a unified flat tax on either income or, preferably, consumption. That view is in evident tension with antitax activists like Grover Norquist, whose focus is current tax struggles and not general political theory. Norquist wants to shrink government “to the size where we can drown it in a bath-tub.” The classical liberal avoids such over-the-top rhetoric. Instead, he seeks to maximize the net social gain from the tax system, so that each taxpayer receives a bundle of government services whose value exceeds the cost of the tax.

Here institutions matter. The flat tax is preferred because it reduces private incentives to game the tax system and, likewise, the ability of government officials to unfairly target their opponents. The optimal theory of taxation minimizes the distortions created by the need to fund the government activities that maintain public order and supply infrastructure. The classical liberal thus agrees with the hard-line libertarian that progressive taxation, with its endless loopholes, is unsustainable in the long run. At the same time, the classical liberal finds it incomprehensible that anyone would want to condemn all taxes as government theft from a hapless citizenry. The hard-line libertarian’s blanket condemnation of taxes as theft means that he can add nothing to the discussion of which tax should be preferred and why. The classical liberal has a lot to say on that subject against both the hard-line libertarian and the modern progressive.

Beyond Taxes

Hard-line libertarians and classical liberals face a deep methodological schism. The hard-core libertarian dismisses holdout problems as unimportant and thus concentrates his fire exclusively against the evil of aggression. The classical liberal points to major holdout problems that remain even after aggression is curbed, and calls for a balanced social response—in the form of compensation—to individuals subjected to the use of force.

Eminent Domain

Hard-line libertarians are generally opposed to the use of eminent domain to acquire particular parcels of land that might stand in the path of a pipeline or highway. The classical liberal’s views are embodied in the Fifth Amendment to the Constitution—“nor shall private property be taken for public use without just compensation.” The classical liberal recognizes that severe holdout problems on key public projects warrant condemnation so long as just compensation is paid to owners. Designing a system of just compensation is immensely complex. But by ignoring it altogether, hard-core libertarians do much more harm than good.

Monopolization, Antitrust, and Rate Regulation

The hard-line libertarian thinks that there are no difficulties with the behavior of parties who exploit a monopoly position in industries like transportation and communications. The classical liberal realizes that the refusal to deal, which works so well in competitive markets, yields dangerous results in these cases. Thus, for over 200 years, the classical liberal has advocated the implementation of rate regulation for common carriers that walks the fine line between under-regulation (which results in monopoly profits) and overregulation (which results in the confiscation of invested capital). It is very difficult to design these systems and to ask whether, and if so how, they should be applied in individual cases. But the problem cannot just be solved by a wave of the hard-line libertarian hand.

The same considerations point to the creation of an antitrust law, where we must ask whether it is appropriate to prohibit or punish relationships between competitive sellers who in good cartel fashion raise prices and reduce output. To the hard-line libertarian, the nonaggression principle does not limit these activities. He is thus blind to the major resource losses that could attend these pricing schemes. Classical liberals follow Adam Smith in imposing antitrust enforcements on these cases. Again, hard-line libertarians are on the sidelines in the debate over how to organize bodies of law that they think ought never to exist.

Intellectual property

Hard-line libertarians are often harsh opponents of copyrights (which limit freedom of speech) and patents (which limit one’s use of one’s own resources). Classical liberals recognize that a world without intellectual property protection could lead to low levels of social innovation. They work to devise a suitable legal framework for IP protection consistent with the constitutional provision that allows for the creation of copyrights and patents for limited times. Ask how many companies would invest over a billion dollars to formulate and test a new drug if others could enter into competition with them by offering a product developed by others for a fraction of the original price. As before, no hard-line libertarian can help design a system of property rights that he doesn’t think should exist.

The Uncertainty Constraint

Another key difference between these two strands of libertarian thought lies in their treatment of uncertainty. Hard-core libertarian thought stresses compensation ex post for violations of the nonaggression principle and for breach of contract. But it has no program for stopping potentially harmful conduct by private injunctions or public regulation. Yet, just this issue is critical to the institutional design of the common law of nuisance and a more extensive system of environmental regulation to control water and air pollution. Today, much government action abuses the state’s licensing and permitting powers. But it is not possible to shut down the system of regulation in order to stem these abuses. Instead, the classical liberal rightly tries to minimize the sum of the two types of errors, and thus often opposes when government moves too soon, too hard, or too far. The hard-core libertarian simply turns a blind eye to the problem.

The Rand Paul Dilemma

As Tanenhaus and Rutenberg note, Rand Paul knows that he must move to the center to become a credible political candidate. If he embraces a classical liberal framework, he can meet the objections of his critics without abandoning the best elements of his own libertarian position. 

Syria and American Leadership

Richard Epstein

A major question of political theory and statecraft is: What justifies the use of force, and when shall it be exercised? This issue is particularly relevant today given recent events in the Middle East. As a nation, we are struggling with many tough issues. Should we attack Syria? Should we launch a preemptive strike against Iran? Should we back a repressive regime in Egypt?

Everyone accepts, as a normative matter, the basic libertarian credo that, to exit the state of nature, individuals should agree to the mutual renunciation of force, without which social order is not possible. This social contract ends bloodshed and angst, allowing human cooperation to flourish. But the implementation of the policy is treacherous. How does society create a state strong enough to control private aggression, but not so strong that it itself becomes a greater source of aggression?

Of course, libertarian theory says that a nation that is attacked can defend itself. But beyond that noncontroversial principle, libertarian theory has nothing to say about a range of complex questions, such as what level of precaution is needed prior to attack, whether a preemptive strike is permissible in light of the seriousness of the threat, the likely success of the response, and the danger of collateral damages. Libertarian theory is also weak in dealing with uncertainty. But this is not simply a deficit of libertarian thinking. No theory can answer these questions. At most, theory informs the debate.

Nor does the inquiry get any easier by asking how a nation should respond to deadly attacks on innocent nations or innocent people. On this score, think of the domestic analogy to the international situation. If A sees B attack C in a dark alley, what should A do? Libertarian theory says that A cannot join B in attacking C. But it says nothing on the hard choices that remain. Should A seek to prevent B from attacking C, and run the risk of getting wounded or killed, without saving C? Or should A stand aside, at which point B’s attack succeeds against C, and emboldens B and others to try that same tactic again in the near future.

The choices are every bit as hard, and the stakes are higher, in the international arena. No theory of rights explains whether to exercise our admitted right to sit any struggle out, or our admitted right to assist the threatened target, and how. This is not to say that we should throw up our hands in despair and roll the dice. The only workable approach rests on a cold-blooded set of utilitarian calculations that examines each of the possible scenarios with an effort to determine its costs and benefits. But how?

In looking at Syria, it does not take much insight to realize that the Russians have played the United States for suckers. The United States looks as though it has been bullied off the stage by the Russians who now are in the dominant position of quarantining Syrian chemical weapons that for all we know could have been acquired from Russia or its allies. The process of verification by the United States at two steps removed is likely to prove hopeless, now that the Syrians have dispersed their chemical weapons. The administration’s waffling has led to the grave deterioration of America’s bargaining position.

Bad Bargaining, Rand Paul Style

Part of the difficulty lies with the Senate’s most prominent libertarian voice, Rand Paul, who recently wrote in the Washington Times:

I will not vote to send my son, your son or anyone’s daughter to war unless a compelling American interest is present. I am not convinced that we have a compelling interest in the Syrian civil war, and I will push for a permanent delay of this vote.

The first half of his proposition is correct in principle, but difficult to implement in practice. A compelling American interest includes, as Paul recognizes, a strong response to the al-Qaeda attack of 9/11, to avenge past wrongs, and to neutralize or deter their repetition. Ironically, a dovish posture makes this objective elusive, because it is a decision to not stay the course over the long haul. For example, once the United States declares victory and implements a fixed plan to leave Afghanistan, al-Qaeda and its allies know that they need only lay low until the American presence is gone, at which time, they can turn up the heat again. Eternal vigilance is indeed the price of liberty.

The second half of Paul’s proposition is fraught with yet greater danger. The standard of a “compelling American interest” is just too narrow to deal with the full range of threats to world peace. Senator Paul goes to great pains to insist that he is not an “isolationist” in foreign affairs, but the word “American” in the phrase “compelling American interest” creates just that impression both at home, and equally importantly, abroad.

Think back to the onset of the Second World War, and ask whether the Lend-Lease Act of 1941, so critical to British survival, advanced compelling American interest given that German bombs were directed solely towards London and not towards New York City? Should the United States have entered into a nonaggression treaty with the Germans if the Germans had given us a credible promise that they would not attack Canada, Mexico, or the U.S.? What a disaster for the world that would have been! If we are not willing to use force in defense of our allies, we will soon have no allies to defend.

The situation becomes only more difficult in light of the humanitarian issues that are raised by the Syrian conflict, in which over a thousand people have been killed or maimed, and millions have been forcibly displaced from their homes. None of this is a direct threat to any American interests. Consequently, Bashar al-Assad now enjoys a free hand, as far as the United States is concerned, in dealing with his own dissidents.

At this point, repression will increase on the one side, followed by heinous acts of retaliation on the other. Interventions will of course take place by other nations—think Russia or Iran—who define their interests more broadly. Our erstwhile allies have less confidence in our national position. Yet no one knows exactly what the United States will do in response to their shrinking options.  

Bad Bargaining, Barack Obama Style

Whatever the errors of the Paul position, he at least makes one point sorely missing from the President’s playbook. For Obama, the root difficulty comes from a total lack of understanding of the bargaining environment that he is in.

In dealing with friends, the appropriate way to bargain is often to overlook the dangers of going first and putting one’s self at risk. In business, people get to choose the people with whom they want to bargain. By choosing well, it is possible to have some trading partners whom one can prudently trust. Taking the first small step is a way to establish credibility with a potential trading partner who is always worried about the Hobbesian assurance question: if I go first, will you reciprocate?

The risk of being caught can easily be offset by the ability to establish a long-term relationship where substantial long-term gains deter both sides from defecting to garner small short-term gains. Most businesses and partnerships work in just this fashion, and the cynic who trusts no one finds himself working in relative isolation.

Foreign affairs, however, denies nations the luxury of choosing trading partners. We have to deal with the Russians, Chinese, Iranians, and North Koreans because of the power they have to destabilize the world order. Nothing is in my view more dangerous in this setting than to indulge in the same assumptions with foreign enemies that you do with domestic, or indeed, foreign friends.

Making concessions on missile defense in order to work the now fabled “reset” with the Russians will have adverse outcomes. The supposed concession in return will never appear before the next demand is made. The strategies that allowed the President, as a fabled community organizer, to win support from the business world won’t work with the Russians or Iranians, who understand weakness and will exploit it.

Yet that is just what the President is determined to do. His entire effort to gain support for his ill-fated resolution to use limited force against Syrian supplies of chemical weapons was both too weak and too strong at the same time. It was too weak because it did not answer the question of what the United States should do if Assad continues to engage in mass murder by more traditional weapons. It was also too weak because it left the course of action unclear if the Syrians should seek to expand the conflict, say by some attack against Israel.

Yet, at the same time, it was too strong because it committed the United States to a position that it could not possibly win. Rand Paul has a point when he says that a coherent strategy needs a political objective for going in and an exit strategy for getting out. By limiting the means chosen—no boots on the ground—for the stated end, Obama is helping our enemies weather this blow. It is tragic that people who favor firmer, clearer action in the face of major human tragedy should be divided among themselves as to whether the second best choice is to do nothing or to do something that is weak and counterproductive.

The reason for this impasse lays in the casual way that the President announces a red line that he is both unwilling and unable to cross. It was a desperate sign of last minute improvisation to go to Congress after the weapons were used when firm planning was required earlier on. It is quite clear that the American system, which requires a declaration of war for the President to use force, places serious limitations on the ability to wage war. Like all such limitations, it is a mixed blessing that prevents reckless intervention on the one hand, but can lead to hopeless indecision on the other.

The President has put himself in an impossible position. By dithering, he has created a precipitous loss of American credibility. Right now, his Syrian policy has befuddled Congress; emboldened Russia, Syria, and Iran; weakened Israel; and thrown our European allies into disarray. Let us hope that the President can make things right. The Obama/Chamberlain comparisons over Syria and Iran are perhaps premature. But they soon won’t be unless the President stiffens his spine and exerts the leadership that is so desperately needed.